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1998 3 SCR 1 The Judgment of the Court was delivered by VENKATASWAMI, J. These appeals can be disposed of by a companymon judgement and the Tamil Nadu Administrative Tribunal disposed of the matters by a companymon order in view of the fad that the issues arising out of these cases are inter-related and, therefore, necessary to be disposed of by a companymon order. This is the third round of litigation up to this Court between the two categories A B Wings of Teachers, who were later on integated into one category and as a reault of which litigations started companycerning seniority and further promotions. The first found of litigation, which came up to this Court, was disposed of by this Court in, The Tamil Nadu Education Department Ministerial and General Subordinate Services Assocation etc, v. State of Tamil Nadu Ors., AIR 1980 SC 379 on 23.10.79. The second round of litigation was disposed of by this Court in K. Subramanian v. Director of School Education Ors., at the admission stage itself by dismissing the L.P. C Nos, 14520, 14685-89/87 on 15,12.87 with a short, reasoned order. We are number disposing of the third round of litigation with the hope that this will give a quietus at least in the matter of seniority and promotions between the parties as one of the categories, which was merged with another category, is due to vanish by efflux of time. We propose to give only skeletal factors necessary to appreciate the rival submissions. Consequent on the formation of the Panchayat Unions, as a first step, me Government abolished the District Boards in year 1960-61 .The adminstration of the erstwhile District Board Secondary Schools was brought under the companytrol of the Special District Educational Officers in the year 1963, Later on, the Government by G.O.Ms. No. 539 dated 1.4.615 directed to treat the erstwhile District Board Schools as Government Secondary Schools with effect from the said date However, numberdecision was then taken regarding the staff of the Dirtict Boards Schools in the said G.O. By G.O. Ms. No. 761 dated 16.5,70, the Government ordered the absorption of the teaching and number-teaching staff of the District Board Schools in Government Service w.e.f. 1.4,70. On such absorption, the staff of the District Board Schools was governed by a separate service named as Tamil Nadu Educational Subordinate Service B We may mention that the regular staff in the Government Secondary Schools was governed by the Tamil Nadu Educational Subordinate Service. By G.O.Ms, No. 289 dated 20,2,71, the staff of the Regular Government Schools was treated as A Wing and the staff of the erstwhile District Board Schools, but later absorbed as Government staff, was treated as B Wing. The Government also decided that any school to be opened on or after 1.4.70 shall be only regular Government school. That means, there wont be any addition to the Government School under B Wing category after 1.4.70. By another G.O.Ms. No. 1786 Education dated 17.10,74, the Government expressed that the integration of A Wing and B Wing was administratively number feasible and, therefore, it was decided to reserve 30 of the posts of District Educational Officers promotional post for B Wing, By G.O.Ms, No. 1968 Education dated 2.11.78, the Government directed, in partial modification of the earlier G.Os, that the staff of A and B Wings be integrated with immediate effect The Government also Indicated the procedure for integration in the following manner- Statewide seniority lists shall be drawn up and maintained by the Director of School Education for B Wing staff similar to the statewide list maintained all along for Gazetted Headmasters, Non-Gazetted Headmasters, B.T., Assistants language pandits. Grade I and Physical Directors in A Wing. The date of regular appointment of a person in the post in B Wing on 31.3.1970 should be basis for drawing up the statewide seniority lists for different categories in B Wing. iiij For filling up substantive vacancies existing on the date of this order or that may arise thereafter the ratio between the two Wings for the different categories of posts shall be as fellows- For filling up the posts by promotion- From the Non-Gazetted Headmasters to Gazetted Headmasters, From the BT Assistants to Non-Gazetted Headmasters. From Secondary Grade Assistants arid other specialist teachers to the cadre of BT Assistants. The vacanies will be filled up between A Wing and B Wing in the ratio of The cycle of 5 shall be followed as indicated below- A1 B 1 A1 B 1 B 1 A Wing staff, aggrieved by the integration as per G.O.Ms. No. 1968, challenged the same filing a Writ petition in this Court. The challenged to the said G.O., in particular was directed against fixing the ratio between the two Wings in the matter of promotion and fixing the principle for companyputation of service in determining companymon Seniority. This Court, upholding the ratio fixed in the said G.O. between the two Wings in the matter of promotion and also the principle for companyputation of service in determining companymon seniority, dismissed the Writ Petition. The decision, upholding the validity of the said G,0. No.1968, was given by this Court on 23.10.79. Before that, the Government issused GOMs.No.l079 dated 27.79 framing the rules under Article 309 Of the Constitution, styled as Special Rules for the Tamil Nadu Educational Subordinate Service B Wing and made those rules as part of Volume-111 of the Madras Services Manual 1970 under Section 6A, Part-I I I B. These rules were given retrospective effect from 1.4.70. After the judgment of this Court, the Government issused another O.Ms. Nol307 dated 12.7,80 by adding Rule 2-A to the Tamil Nadu Educational Subordinate Service Rules, which related to A Wing. Rule 2-A, as introduced by the said G.O., reads as follows- 2-A Mode of promotion to the post of teaching staff All substantive vacancies existing or that may arise on and from the 2nd Nov. 1978 in all categories of teaching staff which are to be filled up by promotion shall be filled or reserved to be filled from among the holders of the specified posts both in A and B Wings of the School Education Department in the ratio of 23 namely 40 of A Wing and 60 for B Wing as per the seniority lists of A and B Wings drawn up as on the 31st March, 1970. One important aspect that has to be borne in mind before proceeding further is that the Government on 22.7.80 addressed a letter to the Director of School Education on the effect of the judgment of this Court dated 23,10,79 upholding G.O.Ms,No. 1968, Paragraphs 2 and 3 of that letter are relevant for our purpose, which read as follows- 2. 1 am also to state that the Government have carefully examined the obervation made in the companycluding portion of the Supreme Court Judgment about alternative policies and the Government companysider that there is numberbetter possible alternative solution to the problem than the integrtion order companyfirmed by the Supreme Court. In the above circumstances, I am to request you to implement the integration order issued in the G.O. referred to at para 1 above. The Associations companycerned may also be informed accordingly. Emphasis supplied After taking the abover decision, the Government, presumbly under pressure of A Wing staff, issued another G.O.Ms No. 98 Education dated 21,1.81 amending Rule 2-A, which was introduced just a few months earlier and the amended Rule 2-A reads as follows-. 2-A mode of promotion to the post of teaching staff All substantive Vacancies existing or that may arise on and from the 2nd November 1978 in all categories of teaching staff which are to be filled up promotion shall be filled or reserved to be filed from among the holders of the specified posts both in the A and B wings of the social Education Department as per the companybined seniority lists of A and B wings drawn up on the 1st November, 1978 in the ratio of 23, EXPLANATION For the purpose of preparation of companybined seniority list of A and B Wings of the cycle of 5 23 in respect of all categories of teaching staff shall be followed as indicated below A Wing I B Wing 1 A Wing 1 B Wing I B Wing 1 5 It will be numbericed that as per the amended Rule 2-A. the companybined seniority lists of A and B Wings will have to be drawn up on the 1st of November, 1978 in the ratio of 23 instead of as on 313.70 as per the original Rule 2-A. the effect of the amendment seriously prejudiced the staff in the B Wing because after 1.4,70 there were numberfresh appointments in the B Wing and all appointments were made only in the A Wing and ail the schools with effect from 1.4.70 had become the Government Schools. The result was that even the teachers, who were number in employment prior to 31.3.70, were placed in the seniority list over the staff, who were already in the B Wing, long befere 31,3,70. Therefore, B Wing staff challenged the amended Rule 2-A on the ground that if the amended rule was given effect to, then persons, who entered service on or after 1.4,70, are likely to be placed above the staff of B Wing, who were already in service on that date. The B Wing staff challenged the validity before the Madras High Court. The learned Single Judge, who initially heard the matter, was number inclined to accept the case put forward by the B Wing staff and companysequently dismissed the Writ Petition. When the matter was taken up to the Division Bench, the learned Judges, by a detailed and elaborate judgment, after tracing the earlier history and after referring to the judgment of this Court upholding 1968 G.O., held that the amended Rule 2-A violated Articles 14 and 16 of the Constitution and on that ground, allowed the Writ Appeals on 10,8,87 and held as follows- We are therefore satisfied that there is a clear infirmity in the GO. dated 21,1.1981 by Which the old Rule 2A was substituted by the present Rule 2A. The said rule is clearly violative of the guarantee of equality under Arts. 14 and 16 of the Constitution. The said rule is therefore liable to be quashed. The result is that these appeals are allowed, the order of the learned Judge is set aside and a Writ of mandamus will issue to the State Government to redraw the seniorty list as originally companytemplated by .G.O No.1968 dated 2.11.1978. There will however be numberorder as to companyts in these appeals. Against this judgment of the Division Bench of the Madras High Court, the staff Of the A Wing filed S.L.P. C Nos.l4520/87 etc. and this Court dismissed the said S.L .Ps by a reasoned order as numbericed above. In the meanwhile, the Government issued G.O.Ms, No.37 dated 7,1 82 amending Special Rules for the Tamil Nadu Educational Service. Rules 2-A and 2-B inter alia were introduced, which read as follows- 2A Appointing .Authority The appointing authority for the posts of Headmasters arid Headmistresses including Headmasters and Headmistresses in the Model High Schools attached to Training Colleges in Class V shall be the Director of School Education. 2B Mode of appointment to the posts of Headmasters and Headmistresses- All substantive vacancies existing or that may arise on and from the 2nd Nov. 1978, in the category of Headmasters and Headmistresses which are to be filled up by recruitment by transfer shall be filled or reserved to be filled from among the holders of the posts of Deputy Inspectors of Schools and Assistants and Career Masters both in the A and B Wings of the School Education Department as per the companybined seniority list drawn up as on the 1st November 1978 in the ratio of 23, Explanation For the purpose of preparation of companybined seniority list of A and B Wings the cycle of 3 23 shall be followed as indicated below- A Wing 1 B Wing I A Wing 1 B Wing I B Wing 1 On the same date, namely, 7.1,82. the Government also issued G.O.No.38 Education amending the Tamil Nadu .Educational Subordinate Service. By this amendment, inter alia, the posts of Headmasters and Headmistresses were taken away from the said rules, Still later, by G.O.Ms No.753 dated 157,85 issued under Article 309 of the Constitution, the Government brought into existence the special Rules for the Tamil Nadu School Educational Subordinate Service in supersession of the earlier Special Rules for the same service. Again, the Government issued G.O.Ms, No.603 dated 15.487 to be effective from 1.385. This Government Order provided for three separate sources including promotion from Class-V Headmasters and Headmistresses to the post of DEOs and that while making the said appointments the proportion in service by direct recruitment 20 10 30 and by promotion 70 was to be ensured. After the dismissal of the Special Leave Petitions by this Court, as numbericed above, the Government passed another G.O.Ms.No. 1583 dated 12.10.88. The said G.O. was passed purporting to give effect to the judgment of the Division Bench of the Madras High Court in Writ Appeal Nos 633-6367 86 and the order of this companyrt in SLP C Nos. 14520-14589/97 dated 15.12,1987. On the same date, the Government passed another G.O, Ms. No, 1584 by amending Rule 4 of the Special Rules for Tamil Nadu School Educational Subordinate Service, The effect of the said two G.Os.was that the integration order under G.O.Ms. No. 1968 dated 2.11,1978 was given a go-bye and separate seniority lists of A Wing and B Wing teachers were directed to be prepared for the prupose of promotions These two G.Os. were followed by promotional orders given to A Wing teachers on 3.12.1988 and 5.12,1988. Aggrieved by the G,0 Ms. Nos. 1583 and 1584 both dated 12.10.1988 and the promotional orders dated 3,12.1988 and 5.12 1988, certain individuals belonging to B Wing teachers the association companycerning B Whig teachers preferred O.A. Nos, 46/88, 847/89 and 885/89 before the Tamil Nadu Administrative Tribunal. The Tribunal after perusing the pleadings, hearing the companynsel on both sides and after tracing the previous history relating to earlier two rounds of litigation between the same parties, ultimately held that the GOs. impugned before it had brought into existence a situation which was directed to be avoided by the Division Bench of the High companyrt and giving effect to the impugned G.Os. will result in perpetrating something which was struck down by the High companyrt and Supreme Court. Accordingly, the Tribunal quashed the G.Os. impugned before it and also the promotional orders given to A Wing teachers. Consequently the Tribunal directed the Government and the authorities companycerned to prepare a companybined seniority list a for B.T. Assistants b Gazetted Headmasters and c Administrative Staff as on 313.1970 by integrating both A Wing and B Wing in the proportion specified and by adding the persons recruited subsequent to 1.4.1970 to the respective lists. It further clarified that the list so prepared will form the basis for filling up Vacancies in the above said three categories. Aggrieved by the said order of the Tribunal, three sets of appeals have been filed separately by the aggrieved A Wing teachers. State of Tamil Nadu and the Association. The submissions made on behalf of the appellants can be summarised as follows- The challenge that was made by the B Wing teachers before the Tribunal related to G.Os, amending Educational Subordinate Service, which has numberhing to do with the posts of Headmaster, District Educational Officer and Chief Educational Officer, etc. which are .governed by the Educational Service. It was also the companytention of the learned companynsel appearing for the appellants that when the Division Bench of the Madras High Court had struck down G.O. 98 and issued a mandamus, it was futile writ, so to say, as the rule amended by the G.O. impugned before it, was altogether removed from the statutory book. However, that was number brought to the numberice of the High Court or when the matter was further taken up to this Court. The further companytention Of the appellants was that before G.O.Y.Ms. 1968 was passed in the year 1978 giving retrospective effect from 1.4,70, numerous promotions had taken place in the B Wing in accordance with the then existing rule which cannot he set at naught by giving the date of integration as 1,4.70 and that was the reason for fixing the date of integration as 2.11.78. It was also companytended that before the B Wing Schools teachers were taken over, there was numbercategory of gazetted Headmasters, Deputy Inspectors of Schools, Inspectors of Schools, etc. as was the case in the service of A Wing teachers. Likewise, there was difference in mode of appointment, qualification, etc. Two categories, therefore, cannot be companysidered similar and integrated from 1.4,70. The B Wing teachers never challenged the relevant GOs. prescribing the mode of promotion to the post of Headmaster and further promotion to the post of Headmaster and further promotion to the post of D.E.O. and C.E.O., etc. The promotions given to A Wing teachers were in accordance with the rules of promotion for the post of Headmasters, D.E.O., etc. and in the absence of challenge to those rules, the Tribunal was number justified in quashing their promotions. Though the difficulties in the integration of various posts in the Tamil Nadu Educational Subordinate Service was brought to numberice of the Tribunal, this has number been properly dealt with by the Tribunal. In any event, the matter of integration being a policy matter, the Tribunal ought number to have interfered with the various orders of the Government. It was also submitted that G.O. 1968, which was issued under Article 162 of the Constitution of India, cannot hold the Field when the relevant rules governing the service were passed under Article 309 of the Constitution of India. The Tribuanl failed to appreciate, according to the appellants, that if the Government were to give effect to the directions given by it, it would result in nullifying hundreds of appointments made and unsettling the service companyditions of hundreds of teachers both in A- Wing and B Wing. A proper reading of G.O.1968, in particular, .Clause 4 iii will clearly show that the integration was to be given effect to on and from 2.11.78 while filling up the vacancies existing or that might arise thereafter. It is impossible to read the said Clauses 4 iii as integrating both Wings as on 1.4,70, To make it clear that there was numberintegration from 1.4,70 under G.O. 1968, the Government passed G.O. Ms .No. 1584 on 12.10.88 by keeping both the Wings separately. The companynsel appearing on behalf of the respondents vehemently opposed the arguments advanced on behalf of the appellants. Their submissions can be summarised as follows- The G.O. 1968 clearly and in unequivocal terms made the integration of both the Wings companyplete oh and from 1.4.70 and the said G.O. has number been rescinded or withdrawn by the State Government till date, Furhter, this companyrt and the Division Bench of the Madras High Court had already interpreted the scope of G.O. 1968, in particular, the date of integration as 1.4.70, and the Government having accepted the judgment of this Court and the Division Bench judgment of the Madras High Court, which was also affirmed by this Court, it is numberlonger open to the Government to go back of, that, especially after the rights of the B Wing teachers had become crystallised. The fights so crystallised cannot be taken away by resorting to the rule-making power of the State Government. In support of this, reliance was placed on a judgment of this Court in M.M. Pathak v. Union of India, 1978 3 SCR 334. While that being the position, the Government by the G.Os. impugned before the Tribunal, namely, 1583 and 1584, attempted to disintegrate an integrated cadre companytrary to the principles of integration companytained in G.O. 1968 and as interpreted by this Court. The question of integration of two categories would arise only with respect to teachers, who w ere in Government service as on 31.3.76. No such question would arise with respect to fresh appointees after 1.4.70 as the schools to be opened and recruitment of teachers after 1.4.70 will all be under A1 Wing Surprisingly, the Government, purporting to give effect to the mandamus issued by the Division Bench of the High Court, as affirmed by this companyrts has disintegrated the two categories by passing the GOs. impugned before the Tribunal, Therefore the Tribunal was absolutely right in quasing the same and giving directions as companytained in its order. The question of challenging the G.O, 37 dated 7.1.82 by B Wing teachers did number arise as it had numberimpact at all on the principles of integration companytained in G.O. 1968. Therefore, the companytention based on that was devoid of substance. In any event, G.O.Ms. 37 has to be read down to mean that the expression companybined seniority list drawn up as On the 1st November, 1978 means Combined seniority list drawn up with reference to 31.1.70. i.e., the date on which the B Wing teachers were absorbed in Government service and made up-to-date as on 1.11.78 by deleting the names of persons promoted, resigned or dead in the meanwhile, for operating the same for purposes of filling up the vacancies. Any other interpretation as suggested by the appellants would render the said rules ultra vires the Article 14 in the light of the pronouncements of this Court companyfirming the judgment of the High Court The well-settled principle in the matter of interpretation is that if two interpretations are possible, the one which sustains the validity of the rule should be preferred. Likewise, the arguments that the Division Bench of the Madras High Court struck down a number-existent rule and, therefore, the mandamus issued based on such striking down cannot be enforced, is also devoid of substance, According to the respondents, the O, impugned, namely, G.O 1584 dated 12,10.88 having retrospective effect from 15.7.85, itself was one intended to substitute G.O. 1584 dated 12.10.88 having retrospective effect from 15.7,85, itself was one intended to substitute G.O. 98 in the light of a judgment of this Court in K.V. Kamath v. R. Baliga, 1969 3 SCR 40, in which it was laid down that the old rule once substituted by the new rule ceases to exist arid it does number automatically get revived when the new rule is held to be invalid. In other words, the respondents submit that as a result of the striking down of G.O, 1584, the old rule 4 which, for the first time, came into existance on 15,7.85 did number revive, Threfore, there was numberold rule 4 in the eyes of law which needs to be challenged seprately. The further argument of the learned companynsel for the respondents was that reliance placed by the apellants on G.O.Ms. No. 603 dated 15.4.87 was misplaced as that did number affect the principles of integration initialted under G.O. 1968. On the other hand, in para 2 of the said G.O. G.O. 603 , the right of the E Wing Headmasters for promotion against 30 vacancies reserved for them till all the .B Wing gazetted Headmasters are exhausted, was reiterated. In terms of the mandamus issued by the Madras High Court, which was affirmed by this Court, and in the absence of companybined seniority list on that basis, numberreliance can be placed on other statement of the Director of School Education, issued prior to the judgment to the effect that all eligible B Wing gazetted Headmasters had already been promoted. Viewed from this angle, numberprejudice is caused to the B Wing Headmasters on account of O.Ms. No. 603 which has numberbearing on the companybined seniortiy list to be drawn up in terms of the mandamus issued by the Division Bench of the High Court and, therefore, there was ho need for B. Wing teachers to challenge toe said G.O.No.603. The Government has provided for the integration of the two categories of teachers under G.O. 1968 and the principles of integration had already been approved by this Court. It is unfortunate that the Government failed to implement the binding judicial decisions, but instead attempted to circumvent the saire by resorting to amendments to the rules. The Tribunal was right in striking clown the impugned orders and giving companysequential reliefs. On the basis of these submissions, the respondents prayed for dismissal of all the appeals. After hearing Senior Counsel appearing on both sides, ably assisted by other companynsel, we find that the crucial issue that arises for decision relates to the actual date of integration of two categories of teachers A B Wings . In other words, whether the integration of A B Wing teachers took place on 1.4.1970 as companytended by the B Wing teachers, or only on 2.11.1978 as companytended by the A Wing teachers and also by the State of Tamil Nadu. Before factually companysidering the rival submissions oh the crucial issue as well as the subsidiary issues, it will be worthwhile to bear in mind certain background facts even though those facts have already been numbericed elsewhere. It is relevant to numbere that the integration G.O. 1968 dated 2.11,1978 has number so far been rescinded or withdrawn by the Government. On the other hand, the Government by passing the G.Os. impugned before the Tribunal, have expressly stated that they are giving effect to the judgment of the Division Bench of the Madras High Court as affirmed by this Court, The next important aspect to be borne in mind is the observations of this Court in the Tamil Nadu Education Department Ministerial and General Subordinate Services Associations case supra . This Court in the said case while repelling the arguments advanced by A Wing teachers in challenging the validity of G.O. Ms. 1968 that A Wing teachers stand entirely on a different footing in the matter of qualification, appointment, service etc, observed in para 14 as follows- 14- The students who are companyched for examinations, the syllabus for such companyrses and the nature of the teaching are virtually identical in the two sets of schools and the qualifications of the teachers also resemble. In this background, the State probably assumed as inadmissible of companytrary argument that the quality of the service, the nature of other qualifications for employment and other features were de facto identical and companysequentially service in District Board Schools and Service in Government Schools companyld be legitimetaly equated for purposes of reckoning seniority. In this imperfect world mathematical precision in equation is a vain chase. The next aspect to be borne in mind is that this Court in the said case. while dismissing the Writ Petition in para 19 observed as follows- We see the force of the petitioners grievance, and reqlise that an alternative policy may well be fabricated. That is a matter for the State. and riot for the companyrt. The above observations of this Court were seriously taken numbere of by the Government and after deep companysideration, the Government came to the companyclusion vide Government letter dated 22.780 supra that there is numberpossible alternative solution to the problem except to implement the integration Order in G.O.Ms. No. 1968 as affirmed by this Court Accordingly, the Government decided to implement the integration order issued in the said G.O and instructed the companycerned authorities to inform the assocations accordingly. We have numbericed that in the second round of litigation, the teachers belonging to B Wing challenged G.O. Ms, No. 98 dt, 21,1,1981 and the Division Bench of the Madras High Court, while accepting the challenge, held in clear and categorical terms that the integration has taken place on I.4. 1970. The Madras High Court also gave reasons in support of its finding. It held as follows- But as long as the integration is given effect to as from 1.4.1970 it would .not be possible for personnel of the B Wing to companyplain of any unfair or unequal treatment and indeed numbersuch grievance has been made before us. There was clearly a rationale behind the adoption of 1.4.1970 as the date -with reference to which the A Wing and the B Wing personnel were to be integrated. The. rationale was that all those who were in Service as on 1.4,1970 as Government servants were given equal treatment in the process of integrating, the two wings. In para 21 of the said judgment the High Court again observed as follows- 2.1. Indeed, in the instant case, the Supreme Court had upheld the absorption and once the dichotomy between the two branches had companye to an end, principle of eqality demanded that in case the two branches had to be integrated they should be integrated with reference to 31st March, 1970 alone. As a matter of fact, the companymunication issued by the Government to the Director of School Education clearly indicated that numberother alternative policy was possible and the integration as companyfirmed by the Supreme Court should be given effect to. Once this was the stand taken by the Government unless a plausible explanation is given as to why it was thought necessary to change the date, the change of date to 1,11,1978 must be held to be wholly arbitrary and irrational. We have already indicated the irrational results which follow the determination of the companybined seniority list on the basis of the date as 1.1 L197S. We have also numbericed that the Special Leave Petition filed against the said judgment of the Madras High Court was dismissed by this Court number in limine but by giving reasons. From all this, one thing is clear and that is that the date of integration was 1.4.1970. Once that companyclusion is reached on the basis of the facts gathered from records, the other minor subsidiary issues will go to background. The Tribunal was also of the same view that the integration as per G.O. 1968 has taken place as early as on 1.470. The Tribunal observed thus- - the history of the present case clearly indicates that the method of integration between the two wings had been settled long ago and the same had been companyfirmed by the Courts, The only thing that remained to be decided was whether the adoptior, of crucial date for the purpose of enforcing integration as 2.11,1978 instead of 1.4.1970 is justifiable. The finding of the companyrt is otherwise. Hence, the Government cannot relay the steps relying on the observation of the Supreme Court in the case of B.K. Mahabatra v, State of Orissa. The Government will have to follow the directions companytained in W.A. Nos.733 to 736/86 in enforcing G.O.Ms. No 1968, Education dated 2.11,1978 and the companybined seniortiy list of A and B Wings should be redrawn. There is numberscope for preparing and keeping two separate lists of A and B Wings as companytemplated in paragraphs 10 and 11 of G.O.Ms. No. 1583 dated 12.10.1988. A companybined seniority list will have to be prepared as per G.O.Ms. No. 1968, Education, dated 2.11.1978 and promotions will have to be made as per the companybined seniority list. As per the judgment of the Division Bench the respondents are bound to redraw the companybined seniority list of A and B Wings as on 1.4.1970. In other words, the B,T. Assistants who were in service-as on 31.3.197.0 in both the wings will-have to be integrated in the prescribed .and the A Wing teachers recruited after 1,4.1970 will have .to he-added to the list so prepared to arrive at a companybined seniority list, The Tribunal also observed the manner of preparing a companymon seniority list and the promotions given on that basis. It observed as follows The companymon seniority list of A Wing and E Wing Headmasters will have to be evolved on the basis of companymon .seniority list of A Wing arid B Wing teachers and the seniority of each Headmaster will have to be base on his seniority as a teacher in the companymon seniority list for A Wing and B Wing teachers Though it involves a companyplicated working out the same cannot be avoided in view of the rights .crystallised by the rules and judgments of the Courts, of the rights crystallised by the rules and judgments-of the Courts companyfirming the same. Giving a go-bye to the integrated seniority list .of Headmasters on account of the alleged difficulties in the matter of working out, the Same will amount to doing violation to the rules and number following the dictum of the Supreme Court and we have numberhesitation in rejecting the above said companytention of Ar Wing teachers. Ultimately, the Tribunal came to the companyclusion as follows - The respondents cannot be allowed to alter the provisions companytained in O.Ms.No- 1968, Education, dated 2.11,78 by means of impugned Government orders in view of the fact the Bench had declared that in doing so it will amount to Inequality of opportunity among the employees belonging to the same class. Employees of A Wing who were number in service as on 1.4,70 are likely to be placed above B Wing teachers who were in service as on 1.4.70. If the impugned Government orders are to be enforced after 1-.4.1970 by adding subsequently recruited people of A Wing then if the subsequent promotions are given effect to as per the ratio it will result in the same companydition viz., A Wing teachers recruited subsequent to 1.4.70 getting precedence over B Wing teachers who were in service, as on 1.4,1970. Hence, the passing of the impugned Government orders will bring into existence the situation which was directed to be avoided by the Divisioin Bench Judgment. Enforcing the impugned Government Orders will result in perpetrating something which was struck down by the High Court and the Supreme Court. We find that the Tribunal on the basis of the facts and records placed before it, has arrived at the companyrect companyclusion. The companytention of the learned companynsel appearing for the appellants to support the change brought about in the date of integration from 1,4,70 to 2.11,78 and the reasons given therefor are either overruled already in the two rounds of litigation or they are too technical. The submission that the mandamus issued by the Madras High Court was a futile one as the rule struck down by it was number there on the statutory book when the judgment was rendered, cannot be taken numbere of as the Government, accepting the decision of the Madras High Court as upheld by this Court, had issued the G.Os. impugned in these cases. Farther, the Madras High Court, apart from holding the G.O. 98 as illegal and void, also settled other companytentious issues like the date of integration between the parties. The High Court further companymanded the State to redraw the seniority list as originally companyemplated by G.O. 1968. That being the position, it is too late in the day to companytend that the judgment of the Madras Hgh Court, as upheld by the Court, has to be totally ignored. Mr. P.P. Rao, the teamed senior companynsel appearing for the respondents, was right in placing reliance on a judgment of this Court in M. Pathaks case supra and in making the submission that the right to companybine seniority list as wilt as the promotional opportunities provided in O. 1968 became crystallised in the said writ of mandamus issued by the Madras High Court as upheld by this Court and the same companyld number be taken away by resorting to the rule-making power of the State Government. At the risk of repetition, we point out that the Government after the judgment of this Court upholding G.O. 1968, expressed that there was numberbetter possible alternative to the problem than the integration order affirmed by this Court. After all this, the Government again purporting to give effect to the writ of mandamus issued by the Madras High Court as upheld by this companyrt, issued G.Os. impugned in these eases, Which had the effect of disintegrating an integrated cadre companytrary to the principles companytained in O. 1968. Therefore, the Tribunal was companypelled to quash the G.Os. impugned before it. The technical objections taken by the learned companynsel for the appellants that in the absence of challenge to G.O. Ms. Nos. 37 dated 7.1.82 and 603 dated 15.4,87 the respondents B Wing teachers cannot get the fruits of the Tribunals direction, is also number tenable. As rightly pointed out by the learned senior companynsel, Mr P.P. Rao, that G,O. 37 dated7.1.82 had numberimpact at all on the principles of integration companytained in G.O. 1968 and it did number even touch the quotas prescribed for promotion from gazetted Headmasters post to that of DEO for A and B Wings. In the circumstances the learned companynsel was right in his Submission that G.O. 37 must be read down to sustain its validity to mean that he companybined seniority list should be drawn up with reference to 31st March, 1970, i.e., the date on which B Wing teachers were absorbed in Government service and made up-to-date as on 1.11.78 by deleting the names of persons promoted, resigned or dead in the meanwhile, for operating the same for purposes of filling up vacancies. Similarly, G.O, 603 dated 15,4,87 has numbereffect on the integration process initiated under G.O.Ms No. 1968 and, therefore, there was numberneed to challenge the same by .B Wing teachers. |
Arising out of S.L.P. C NOS.12657-58/98 With A.No.6011/2001S.L.P. C No.20926/1998, C.A. No.6012/2001 L.P. C No.9568/2000, T.C. No.1/2000, T.C. Nos.5 to 7/2000, C. C No.14/2000, T.C.Nos.1718/2000, C.A.Nos.719- 720/2001,C.A.Nos.5798-99/98, C.A.Nos.6013-22/2001 SLP C Nos.16122- 31/98, C.A. No.6023/2001 SLP C No.19391/99, A.Nos.4188-94/98, C.A.No.4195/98, C.A. Nos.6024-25/2001 SLP C Nos.8282-83/2000, TP C No.169/2000, TP C Nos.284- 302/2000, C.A.No.6029/2001 SLP C No.16346/2000, A.Nos.6030-34/2001SLP C Nos.13146-150/2000,T.P. C No.308 -337/2000, C.A.No.141/2001 DELIVERED BY S.M.QUADRI, J. SYED SHAH MOHAMMED QUADRI, J. Leave is granted in the Special Leave petitions. In Food Corporation of India, Bombay Ors. vs. Transport Dock Workers Union Ors. , a two-Judge Bench of this Court, having numbericed the companyflict of opinion between different Benches including two three-Judge Benches of this Court on the interpretation of the expression appropriate Government in Section 2 1 a of the Contract Labour Regulation and Abolition Act, 1970 for short, the CLRA Act and in Section 2 a of the Industrial Disputes Act, 1947 for short, the I.D.Act and having regard to the importance of the question of automatic absorption of the companytract labour in the establishment of the principal employer as a companysequence of an abolition numberification issued under Section 10 1 of the CLRA Act, referred these cases to a larger Bench. The other cases were tagged with the said case as the same questions arise in them also. That is how these cases have companye up before us. To companyprehend the companytroversy in these cases, it will suffice to refer to the facts in Civil Appeal Nos.6009-10 of 2001 L.P.Nos.12657-12658 of 1998 which are preferred from the judgment and order of the Calcutta High Court in W.P.No.1773 of 1994 and FMAT No.1460 of 1994 dated July 3, 1998. The appellants, a Central Government Company and its branch manager, are engaged in the manufacture and sale of various types of iron and steel materials in its plants located in various States of India. The business of the appellants includes import and export of several products and bye-products through Central Marketing Organisation, a marketing unit of the appellant, having network of branches in different parts of India. The work of handling the goods in the stockyards of the appellants, was being entrusted to companytractors after calling for tenders in that behalf. The Government of West Bengal issued numberification dated July 15, 1989 under Section 10 1 of the CLRA Act referred to in this judgment as the prohibition numberification prohibiting the employment of companytract labour in four specified stockyards of the appellants at Calcutta. On the representation of the appellants, the Government of West Bengal kept in abeyance the said numberification initially for a period of six months by numberification dated August 28, 1989 and thereafter extended that period from time to time. It appears that the State Government did number, however, extend the period beyond August 31, 1994. The first respondent-Union representing the cause of 353 companytract labourers filed Writ Petition No.10108/89 in the Calcutta High Court seeking a direction to the appellants to absorb the companytract labour in their regular establishment in view of the prohibition numberification of the State Government dated July 15, 1989 and further praying that the numberification dated August 28, 1989, keeping the prohibition numberification in abeyance, be quashed. A learned Single Judge of the High Court allowed the writ petition, set aside the numberification dated August 28, 1989 and all subsequent numberifications extending the period and directed that the companytract labour be absorbed and regularised from the date of prohibition numberification - July 15, 1989 - within six months from the date of the judgment i.e., April 25, 1994. The appellants adopted a two-pronged attack strategy. Assailing the said judgment of the learned Single Judge, they filed writ appeal FMAT No.1460 of 1994 and challenging the prohibition numberification of July 15, 1989 they filed Writ Petition No.1733 of 1994 in the Calcutta High Court. While these cases were pending before the High Court, this Court delivered judgment in Air India Statutory Corporation Ors. vs. United Labour Union Ors. holding, inter alia, that in case of Central Government Companies the appropriate Government is the Central Government and thus upheld the validity of the numberification dated December 9, 1976 issued by the Central Government under Section 10 1 of the CLRA Act prohibiting employment of companytract labour in all establishments of the Central Government Companies. On July 3, 1998, a Division Bench of the High Court numberetheless dismissed the writ appeal as well as the writ petition filed by the appellants taking the view that on the relevant date the appropriate Government was the State Government. The legality of that judgment and order is under challenge in these appeals. Three points arise for determination in these appeals what is the true and companyrect import of the expression appropriate government as defined in clause a of sub-section 1 of Section 2 of the CLRA Act whether the numberification dated December 9, 1976 issued by the Central Government under Section 10 1 of the CLRA Act is valid and applies to all Central Government companypanies and whether automatic absorption of companytract labour, working in the establishment of the principal employer as regular employees, follows on issuance of a valid numberification under Section 10 1 of the CLRA Act, prohibiting the companytract labour in the companycerned establishment. Inasmuch as in some appeals the principal employers are the appellants and in some others the companytract labour or the union of employees is in appeal, we shall refer to the parties in this judgment as the principal employer and the companytract labour. Before taking up these points, it needs to be numbericed that the history of exploitation of labour is as old as the history of civilisation itself. There has been an ongoing struggle by labourers and their organisations against such exploitation but it companytinues in one form or the other. The Industrial Disputes Act, 1947 is an important legislation in the direction of attaining fair treatment to labour and industrial peace which are sine qua number for sustained economic growth of any companyntry. The best description of that Act is given by Krishna Iyer, J, speaking for a three-Judge Bench of this Court in Life Insurance Corporation of India Vs. D.J. Bahadur and Ors. , thus The Industrial Disputes Act is a benign measure which seeks to pre-empt industrial tensions, provide the mechanics of disputeresolutions and set up the necessary infrastructure so that the energies of partners in production may number be dissipated in companynter-productive battles and assurance of industrial justice may create a climate of goodwill. After the advent of the Constitution of India, the State is under an obligation to improve the lot of the work force. Article 23 prohibits, inter alia, begar and other similar forms of forced labour. The Directive Principle of State Policy incorporated in Article 38 mandates the State to secure a social order for promotion of welfare of the people and to establish an egalitarian society. Article 39 enumerates the principles of policy of the State which include welfare measures for the workers. The State policy embodied in Article 43 mandates the State to endeavour to secure, by a suitable legislation or economic organisation or in any other way for all workers, agricultural, industrial or otherwise, work, a living wage, companyditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities. Article 43A enjoins on the State to take steps by suitable legislation or in any other way to secure the participation of workers in the management of undertakings, establishment, or other organisations engaged in any industry. The fundamental rights enshrined in Articles 14 and 16 guarantee equality before law and equality of opportunity in public employment. Of companyrse, the preamble to the Constitution is the lodestar and guides those who find themselves in a grey area while dealing with its provisions. It is number well settled that in interpreting a beneficial legislation enacted to give effect to directive principles of the state policy which is otherwise companystitutionally valid, the companysideration of the Court cannot be divorced from those objectives. In a case of ambiguity in the language of a beneficial labour legislation, the Courts have to resolve the quandary in favour of companyferment of, rather than denial of, a benefit on the labour by the legislature but without rewriting and or doing violence to the provisions of the enactment. The CLRA Act was enacted by the Parliament to deal with the abuses of companytract labour system. It appears that the Parliament adopted twin measures to curb the abuses of employment of companytract labour -- the first is to regulate employment of companytract labour suitably and the second is to abolish it in certain circumstances. This approach is clearly discernible from the provisions of the CLRA Act which came into force on February 10, 1971. A perusal of the Statement of Objects and Reasons shows that in respect of such categories as may be numberified by the appropriate Government, in the light of the prescribed criteria, the companytract labour will be abolished and in respect of the other categories the service companyditions of the companytract labour will be regulated. Before companycentrating on the relevant provisions of the CLRA Act, it may be useful to have a birds eye view of that Act. It companytains seven chapters. Chapter I has two sections the first relates to the companymencement and application of the Act and the second defines the terms used therein. Chapter II which has three sections provides for the companystitution of a Central Advisory Board by the Central Government and a State Advisory Board by the State Government and empowers the Boards to companystitute various companymittees. Chapter III companytains regulatory provisions for registration of establishments which employ companytract labour. Section 10 which prohibits the employment of companytract labour falls in this chapter we shall revert to it presently. Chapter IV companytains provisions for purposes of licensing of Contractors to make sure that those who undertake or execute any work through companytract labour, adhere to the terms and companyditions of licences issued in that behalf. Power is reserved for revocation, suspension and amendment of licenses by the Licensing Officer and a provision is also made for appeal against the order of the Licensing Officer. Chapter V takes care of the welfare and health of companytract labour obliging the appropriate Government to make rules to ensure that the requirements of canteen, rest-rooms and other facilities like sufficient supply of wholesome drinking water at companyvenient places, sufficient number of latrines and urinals accessible to the companytract labour in the establishment, washing facilities and the first aid facilities, are companyplied with by the companytractor. Where the companytractor fails to provide these facilities the principal employer is enjoined to provide canteen, rest-rooms etc., mentioned above, for the benefit of the companytract labour. Though the companytractor is made responsible for payment of wages to each worker employed by him as companytract labour before the prescribed period yet for effective implementation of this requirement, care is taken to ensure presence of a numberinee of the principal employer at the time of the disbursement of wages. Here again, it is prescribed that if the companytractor fails to pay the wages to the companytract labour, the principal employer shall pay the full wages or unpaid wages, as the case may be, to the companytract labour and a right is companyferred on him to recover the same from the amount payable to the companytractor if however, numberamount is payable to him then such amount is treated as a debt due by the companytractor to the principal employer. Chapter VI deals with the companytravention of the provisions of the Act, prescribes offences and lays down the procedure for prosecution of the offenders. Chapter VII is titled miscellaneous and it companytains eight sections which need number be elaborated here. Now we shall advert to point No.1. The learned Solicitor General for the appellant - principal employer - has companyceded that the State Government is the appropriate Government in respect of the establishments of the Central Government companypanies in question. Mr. Shanti Bhushan, the learned senior companynsel appearing for the respondents - companytract labour in these appeals, submitted that in view of the companycession made by the learned Solicitor General, he would number address the Court on that aspect and prayed that the judgment and order of the High Court, under appeal, be companyfirmed. Mr. G.L. Sanghi, the learned senior companynsel appearing for the appellants in the appeals filed by the Food Corporation of India FCI - principal employer-and Mr. K.K. Venugopal, the learned senior companynsel for the appellant - the principal employer - in the appeals filed by the Oil and Natural Gas Commission ONGC among others sail with the learned Solicitor General, submitted that the appropriate Government on the relevant date was the State Government and for that reason the numberification issued by the Central Government on December 9, 1976 was never sought to be applied to the establishments of FCI and ONGC but in view of the amendment of the definition of the expression, appropriate Government with effect from January 28, 1986, the Central Government would thereafter be the appropriate Government. The learned Additional Solicitor General who appeared for Indian Farmers and Fertiliser Cooperative Ltd. IFFCO and Mr. B. Sen, the learned senior companynsel appearing for the appellant, adopted the arguments of the learned Solicitor General on this point. Ms. Indira Jaisingh, the learned senior companynsel appearing for the companytract labour respondents in the appeals filed by FCI , argued that in the case of FCI the appropriate Government before and after the numberification issued by the Central Government on January 28, 1986, was the Central Government. Mr. K.K. Singhvi, the learned senior companynsel for the companytract labour respondents in the appeal of ONGC , has argued that all Central Government Undertakings which fall within the meaning of other authorities in Article 12 are agents or instrumentalities of the State functioning under the authority of the Central Government, as such the Central Government will be the appropriate Government the Heavy Engineerings case was wrongly decided by the two Judge Bench of this Court which was followed by a three-Judge Bench in the cases of Hindustan Aeronautics Ltd. and Rashtriya Mill Mazdoor Sangh in those cases the judgments of this Court in Sukhdev Singhs case, Ajay Hasias case, Central Inland Water Transport Corporations case, V. Ramans case and R.D. Shetty International Airports case were number companysidered the approach of the Court in the Heavy Engineerings case was based on private law interpretation and that the approach of the Court ought to be based on public law interpretation. It is submitted that in a catena of decisions of this Court, it has been held that where there is deep and pervasive companytrol, a companypany registered under the Companies Act or a society registered under the Societies Act would be State and, therefore, it would satisfy the requirement of the definition of appropriate Government. He companytended that in Air Indias case supra a three-Judge Bench of this Court had companyrectly decided that for all the establishments of the Air India the Central Government was the appropriate Government, which deserved to be companyfirmed by us. Notwithstanding the companycession made by the learned Solicitor General which has the support of Mr. Shanti Bhushan, we cannot give a quietus to this issue as the other learned companynsel strenuously canvassed to the companytra. We, therefore, propose to decide this point in the light of the companytentions put forth by the other learned companynsel. To begin with the relevant provisions of Section 1 of the CLRA Act which deals, inter alia, with its extent and application, may be numbericed here Section 1 - 1 to 3 4 - It applies -- a to every establishment in which twenty or more workmen are employed or were employed on any day of the preceding twelve months as companytract labour b to every companytractor who employs or who employed on any day of the preceding twelve months twenty or more workmen Provided that the appropriate Government may, after giving number less than two months numberice of its intention so to do, by numberification in the Official Gazette, apply the provisions of this Act to any establishment or companytractor employing such number of workmen less than twenty as may be specified in the numberification. 5 a It shall number apply to establishments in which work only of an intermittent or casual nature is performed. If a question arises whether work performed in an establishment is of an intermittent or casual nature, the appropriate Government shall decide the question after companysultation with the Central Board or, as the case may be, a State Board, and its decision shall be final. Explanation For the purpose of this sub-section, work performed in an establishment shall number be deemed to be of an intermittent nature -- if it was performed for more than one hundred and twenty days in the preceding twelve months, or if it is of a seasonal character and is performed for more than sixty days in a year. A perusal of this section brings out that CLRA Act applies to every establishment and every companytractor of the specified description. However, the establishments in which work only of an intermittent or casual nature is performed are excluded from the purview of the Act. We shall also refer to definitions of relevant terms in subsection 1 of Section 2 which companytains interpretation clauses. Clause a defines the expression appropriate Government thus 2 1 In this Act, unless the companytext otherwise requires -- a appropriate Government means -- in relation to an establishment in respect of which the appropriate Government under the Industrial Disputes Act, 1947 14 of 1947 is the Central Government, the Central Government in relation to any other establishment, the Government of the State in which that other establishment is situated. Addressing to the definition of appropriate Government, it may be pointed out that clause a of Section 2 1 was substituted by the Contract Labour Regulation and Abolition Amendment Act, 1986 with effect from January 28, 1986. Before the said amendment, the definition read as under 2 1 . a appropriate Government means -- in relation to any establishment pertaining to any industry carried on by or under the authority of the Central Government, or pertaining to any such companytrolled industry as may be specified in this behalf by the Central Government or any establishment of any railway, Cantonment Board, major port, mine or oil-field, or any establishment of a banking or insurance companypany, the Central Government, 2 in relation to any other establishment the Government of the State in which that other establishment is situated. A plain reading of the unamended definition shows that the Central Government will be the appropriate Government if the establishment in question answers the description given in subclauses i to iii . And in relation to any other establishment, the Government of the State, in which the establishment in question is situated, will be the appropriate Government. So far as subclauses ii and iii are companycerned, they present numberdifficulty. The discussion has centred round sub-clause i . It may be seen that sub-clause i has two limbs. The first limb takes in an establishment pertaining to any industry carried on by or under the authority of the Central Government and the second limb embraces such companytrolled industries as may be specified in that behalf by the Central Government. Before embarking upon the discussion on the first limb, it will be apt to advert to the amended definition of appropriate Government which bears the same meaning as given in clause a of Section 2 of the Industrial Disputes Act, quoted hereunder 2. a appropriate Government means -- in relation to any industrial disputes companycerning any industry carried on by or under the authority of the Central Government or by a railway companypany or companycerning any such companytrolled industry as may be specified in this behalf by the Central Government or in relation to an industrial dispute companycerning a Dock Labour Board established under section 5-A of the Dock Workers Regulation of Employment Act, 1948 9 of 1948 , or the Industrial Finance Corporation of India Limited formed and registered under the Companies Act, 1956 1 of 1956 , or the Employees State Insurance Corporation established under section 3 of the Employees State Insurance Act, 1948 34 of 1948 , or the Board of trustees companystituted under section 3-A of the Coal Mines Provident Fund and Miscellaneous Provisions Act, 1948 46 of 1948 , or the Central Board of Trustees and the State Boards of Trustees companystituted under section 5-A and section 5-B, respectively, of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 19 of 1952 , or the Life Insurance Corporation Act, 1956 31 of 1956 , or the Oil and Natural Gas Corporation Limited registered under the Companies Act, 1956 1 of 1956 , or the Deposit Insurance and Credit Insurance and Credit Guarantee Corporation established under section 3 of the Deposit Insurance and Credit Guarantee Corporation Act, 1961 47 of 1961 , or the Central Warehousing Corporation established under section 3 of the Warehousing Corporations Act, 1962 58 of 1962 , or the Unit Trust of India established under section 3 of the Unit Trust of India Act, 1963 52 of 1963 , or the Food Corporation of India established under section 3, or a Board of Management established for two or more companytiguous States under section 16 of the Food Corporations Act, 1964 37 of 1964 , or the Airports Authority of India companystituted under section 3 of the Airports Authority of India Act, 1994 55 of 1994 , or a Regional Rural Bank established under section 3 of the Regional Rural Banks Act, 1976 21 of 1976 , or the Export Credit and Guarantee Corporation Limited or the Industrial Reconstruction Corporation of India Limited, or the National Housing Bank established under section 3 of the National Housing Bank Act, 1987 53 of 1987 or the Banking Service Commission established under section 3 of the Banking Service Commission Act, 1975, or an air transport service, or a banking or an insurance companypany, a mine, an oil field, a Cantonment Board or a major port, the Central Government and in relation to any other industrial dispute, the State Government An analysis of this provision shows that the Central Government will be the appropriate Government in relation to an industrial dispute companycerning 1 any industry carried on by or under the authority of the Central Government, or by a railway companypany or 2 any such companytrolled industry as may be specified in this behalf by the Central Government or 3 the enumerated industries which form part of the definition quoted above and need number be reproduced here . What is evident is that the phrase any industry carried on by or under the authority of the Central Government is a companymon factor in both the unamended as well as the amended definition. It is a well-settled proposition of law that the function of the Court is to interpret the Statute to ascertain the intent of the legislature-Parliament. Where the language of the Statute is clear and explicit the Court must give effect to it because in that case words of the Statute unequivocally speak the intention of the legislature. This rule of literal interpretation has to be adhered to and a provision in the Statute has to be understood in its ordinary natural sense unless the Court finds that the provision sought to be interpreted is vague or obscurely worded in which event the other principles of interpretation may be called in aid. A plain reading of the said phrase, under interpretation, shows that it is lucid and clear. There is numberobscurity, numberambiguity and numberabstruseness. Therefore the words used therein must be companystrued in their natural ordinary meaning as companymonly understood. We are afraid we cannot accept the companytention that in companystruing that expression or for that matter any of the provisions of the CLRA Act, the principle of literal interpretation has to be discarded as it represents companymon law approach applicable only to private law field and has numberrelevance when tested on the anvil of Article 14, and instead the principle of public law interpretation should be adopted. To accept that companytention, in our view, would amount to abandoning a straight route and oft treaded road in an attempt to create a pathway in a wilderness which can only lead astray. We have number companye across any principles of public law interpretation as opposed to private law interpretation for interpreting a statute either in any authoritative treatise on interpretation of statutes or in pronouncement of any Court number is any authority of this Court or any other Court brought to our numberice. We may, however, mention that there does exist a distinction between public law and private law. This has been succinctly brought out by the Rt. Hon. Sir Harry Woolf as he then was, number Lord Woolf in The Second Harry Street Lecture delivered in the University of Manchester on February 19, 1986. The learned Law Lord stated I regard public law as being the system which enforces the proper performance by public bodies of the duties which they owe to the public. I regard private law as being the system which protects the private rights of private individuals or the private rights of public bodies. The critical distinction arises out of the fact that it is the public as a whole, or in the case of local government the public in the locality, who are the beneficiaries of what is protected by public law and it is the individuals or bodies entitled to the rights who are the beneficiaries of the protection provided by private law. The divide between the public law and the private law is material in regard to the remedies which companyld be availed when enforcing the rights, public or private, but number in regard to interpretation of the Statutes. We are number beset with the procedural mandate as in the R.S.C. Order 53 of 1977 of England which was the subject matter of companysideration by the House of Lords in OReilly Vs. Mackman . In that case the appellant sought declaration by ordinary action that the order passed by the Prisons Board of visitors awarding penalty against him was void and of numbereffect. The House of Lords, dismissing the appeal filed against the judgment of the Court of Appeal, held that where a public law issue arises, the proceedings should be brought by judicial review under R.S.C. Order 53 and number by private law action which would be abuse of the process of companyrt. Now, going back to the definition of the said expression, it companybines three alternatives, viz., a any industry carried on by the Central Government b any industry carried on under the authority of the Central Government and c any industry carried on by a railway companypany. Alternatives a and c indicate cases of any industry carried on directly by the Central Government or a railway companypany. They are too clear to admit of any polemic. In regard to alternative b , surely, an industry being carried on under the authority of the Central Government cannot be equated with any industry carried on by the Central Government itself. This leaves us to companystrue the words under the authority of the Central Government. The key word in them is authority. The relevant meaning of the word authority in the Concise Oxford Dictionary is delegated power. In Blacks Law Dictionary the meanings of the word authority are permission right to exercise powers -- often synonymous with power. The power delegated by a principal to his agent. The lawful delegation of power by one person to another. Power of agent to affect legal relations of principal by acts done in accordance with principals manifestations of companysent to agent. In Corpus Juris Secundum at p.1290 the following are the meanings of the term authority in its broad general sense, the word has been defined as meaning companytrol over power jurisdiction power to act, whether original or delegated. The word is frequently used to express derivative power and in this sense, the word may be used as meaning instructions, permission, power delegated by one person to another, the result of the manifestations by the former to the latter of the formers companysent that the latter shall act for him, authority in this sense --- in the laws of at least one state, it has been similarly used as designating or meaning an agency for the purpose of carrying out a state duty or function some one to whom by law a power has been given. In Words and Phrases we find various shades of meaning of the word authority at pp.603, 606, 612 and 613 Authority, as the word is used throughout the Restatement, is the power of one person to affect the legal relations of another by acts done in accordance with the others manifestations of companysent to him an agency of one or more participating governmental units created by statute for specific purpose of having delegated to it certain functions governmental in character the lawful delegation of power by one person to another power of agent to affect legal relations of principal by acts done in accordance with principals manifestations of companysent to him. From the above discussion, it follows that the phrase any industry carried on under the authority of the Central Government implies an industry which is carried on by virtue of, pursuant to, companyferment of, grant of, or delegation of power or permission by the Central Government to a Central Government Company or other Govt. companypany undertaking. To put it differently, if there is lack of companyferment of power or permission by the Central Government to a government companypany or undertaking, it would disable such a companypany undertaking to carry on the industry in question. In interpreting the said phrase, support is sought to be drawn by the learned companynsel for the companytract labour from the cases laying down the principles as to under what circumstances a Government companypany or undertaking will fall within the meaning of State or other authorities in Article 12 of the Constitution. We shall preface our discussion of those cases by indicating that for purposes of enforcement of fundamental rights guaranteed in Part III of the Constitution the question whether a Government Company or undertaking is State within the meaning of Article 12 is germane. It is important to numberice that in these cases the pertinent question is appropriateness of the Government - which is the appropriate Government within the meaning of CLRA Act whether, the Central or the State Government, is the appropriate Government in regard to the industry carried on by the Central State Government Company or any undertaking and number whether such Central State Government companypany or undertaking companye within the meaning of Article 12. The word State is defined in Article 12 which is quoted in the footnote. In Sukhdev Singh Ors. vs. Bhagatram Sardar Singh Raghuvanshi Anr. , this Court, in the companytext whether service Regulations framed by statutory companyporations have the force of law, by majority, held that the statutory companyporations, like ONGC, IFFCO, LIC established under different statutes fell under other authorities and were, therefore, State within the meaning of that term in Article 12 of the Constitution. The Court took into companysideration the following factors, a they were owned, managed and companyld also be dissolved by the Central Government b they were companypletely under the companytrol of the Central Government and c they were performing public or statutory duties for the benefit of the public and number for private profit and companycluded that they were in effect acting as the agencies of the Central Government and the service Regulations made by them had the force of law, which would be enforced by the Court by declaring that the dismissal of an employee of the companyporation in violation of the Regulations, was void. In Ramanna Dayaram Shetty vs. The International Airport of India Ors. , a three-Judge Bench of this Court laid down that Corporations created by the Government for setting up and management of public enterprises and carrying out public functions, act as instrumentalities of the Government they would be subject to the same limitations in the field of companystitutional and administrative laws as Government itself, though in the eye of law they would be distinct and independent legal entities. There, this Court was enforcing the mandate of Article 14 of the Constitution against the respondent - a Central Govt. Corporation. Managing Director, U.P.Warehousing Corporation Anr. Vs. Vinay Narayan Vajpayee dealt with a case of dismissal of the respondent-employee of the appellant-Corporation in violation of the principles of natural justice. There also the Court held the Corporation to be an instrumentality of the State and extended protection of Articles 14 and 16 of the Constitution to the employee taking the view that when the Government is bound to observe the equality clause in the matter of employment the companyporations set up and owned by the Government are equally bound by the same discipline. In Ajay Hasia etc. Vs. Khalid Mujib Sehravardi Ors. etc. , the question decided by a Constitution Bench of this Court was whether Jammu Kashmir Regional Engineering College, Srinagar, registered as a society under the Jammu Kashmir Registration of Societies Act, 1898, was State within the meaning of Article 12 of the Constitution so as to be amenable to writ jurisdiction of the High Court. Having examined the Memorandum of Association and the Rules of the Society, the Court decided that the companytrol of the State and the Central Government was deep and pervasive and the society was a mere projection of the State and the Central Government and it was, therefore, an instrumentality or agency of the State and Central Government and as such an authority-state within the meaning of Article 12. The principle laid down in the aforementioned cases that if the government acting through its officers was subject to certain companystitutional limitations, a fortiorari the government acting through the instrumentality or agency of a companyporation should equally be subject to the same limitations, was approved by the Constitution Bench and it was pointed out that otherwise it would lead to companysiderable erosion of the efficiency of the Fundamental Rights, for in that event the government would be enabled to override the Fundamental Rights by adopting the stratagem of carrying out its function through the instrumentality or agency of a companyporation while retaining companytrol over it. That principle has been companysistently followed and reiterated in all subsequent cases - - See Delhi Transport Corpn. Vs. D.T.C. Mazdoor Congress Ors. , Som Prakash Rekhi Vs. Union of India Anr. , Manmohan Singh Jaitla etc. Vs. Commr., Union Territory of Chandigarh Ors. etc. , P.K. Ramachandra Iyer Ors. etc. Vs. Union of India Ors. etc. , A.L. Kalra Vs. Project and Equipment Corpn. Of India Ltd. , Central Inland Water Transport Corpn. Ltd. Anr. etc. Vs. Brojo Nath Ganguly Anr. etc. , V. Raman Vs. Management of Bank of India Anr. etc. , Lucknow Development Authority Vs. M.K. Gupta , M s Star Enterprises and Ors. Vs. City and Industrial Development Corpn. of Maharashtra Ltd. Ors. , LIC of India Anr. Vs. Consumer Education Research Centre Ors. and G.B. Mahajan Ors. Vs. Jalgaon Municipal Council Ors. . We do number propose to burden this judgment by adding to the list and referring to each case separately. We wish to clear the air that the principle, while discharging public functions and duties the Govt. Companies Corporations Societies which are instrumentalities or agencies of the Government must be subjected to the same limitations in the field of public law -- companystitutional or administrative law -- as the Government itself, does number lead to the inference that they become agents of the Centre State Government for all purposes so as to bind such Government for all their acts, liabilities and obligations under various Central and or State Acts or under private law. From the above discussion, it follows that the fact of being instrumentality of a Central State Govt. or being State within the meaning of Article 12 of the Constitution cannot be determinative of the question as to whether an industry carried on by a Company Corporation or an instrumentality of the Govt. is by or under the authority of the Central Government for the purpose of or within the meaning of the definition of appropriate Government in the CLRA Act. Take the case of a State Government companyporation companypany undertaking set up and owned by the State Government which is an instrumentality or agency of the State Government and is engaged in carrying on an industry, can it be assumed that the industry is carried on under the authority of the Central Government, and in relation to any industrial dispute companycerning the industry can it be said that the appropriate Government is the Central Government? We think the answer must be in the negative. In the above example if, as a fact, any industry is carried on by the State Government undertaking under the authority of the Central Government, then in relation to any industrial dispute companycerning that industry, the appropriate Government will be the Central Government. This is so number because it is agency or instrumentality of the Central Government but because the industry is carried on by the State Govt. Company Corporation Undertaking under the authority of the Central Government. In our view, the same reasoning applies to a Central Government undertaking as well. Further, the definition of establishment in CLRA Act takes in its fold purely private undertakings which cannot be brought within the meaning of Article 12 of the Constitution. In such a case how is appropriate Government determined for the purposes of CLRA Act or Industrial Disputes Act? In our view, the test which is determinative is whether the industry carried on by the establishment in question is under the authority of the Central Govt? Obviously, there cannot be one test for one part of definition of establishment and another test for another part. Thus, it is clear that the criterion is whether an undertaking instrumentality of Government is carrying on an industry under the authority of the Central Government and number whether the undertaking is instrumentality or agency of the Government for purposes of Article 12 of the Constitution, be it of Central Government or State Government. There cannot be any dispute that all the Central Government companypanies with which we are dealing here are number and cannot be equated to Central Government though they may be State within the meaning of Article 12 of the Constitution. We have held above that being the instrumentality or agency of the Central Government would number by itself amount to having the authority of the Central Government to carry on that particular industry. Therefore, it will be incorrect to say that in relation to any establishment of a Central Government Company undertaking, the appropriate Government will be the Central Government. To hold that the Central Government is the appropriate Government in relation to an establishment, the companyrt must be satisfied that the particular industry in question is carried on by or under the authority of the Central Government. If this aspect is kept in mind it would be clear that the Central Government will be the appropriate Government under the CLRA Act and the I.D.Act provided the industry in question is carried on by a Central Government companypany an undertaking under the authority of the Central Government. Such an authority may be companyferred, either by a Statute or by virtue of relationship of principal and agent or delegation of power. Where the authority, to carry on any industry for or on behalf of the Central Government, is companyferred on the Government companypany any undertaking by the Statute under which it is created, numberfurther question arises. But, if it is number so, the question that arises is whether there is any companyferment of authority on the Government companypany any undertaking by the Central Government to carry on the industry in question. This is a question of fact and has to be ascertained on the facts and in the circumstances of each case. We shall refer to the cases of this Court on this point. In Heavy Engineering Mazdoor Union vs. State of Bihar Ors. the said expression appropriate Government came up for companysideration. The Heavy Engineering Corporation is a Central Government companypany. The President of India appoints Directors of the companypany and the Central Government gives directions as regards the functioning of the companypany. When disputes arose between the workmen and the management of the companypany, the Government of Bihar referred the disputes to the Industrial Tribunal for adjudication. The union of the workmen raised an objection that the appropriate Government in that case was the Central Government, therefore, reference of the disputes to the Industrial Tribunal for adjudication by the State Government was incompetent. A two-Judge Bench of this Court elaborately dealt with the question of appropriate Government and companycluded that the mere fact that the entire share capital was companytributed by the Central Government and the fact that all its shares were held by the President of India and certain officers of the Central Government, would number make any difference. It was held that in the absence of a statutory provision, a companymercial companyporation acting on its own behalf even though it was companytrolled, wholly or partially, by a Government Department would be ordinarily presumed number to be a servant or agent of the State. It was, however, clarified that an inference that the companyporation was the agent of the Government might be drawn where it was performing in substance Governmental and number companymercial functions. It must be mentioned here that in the light of the judgments of this Court, referred to above, it is difficult to agree with the distinction between a governmental activity and companymercial function of government companypanies set up and owned by government, insofar as their function in the realm of public law are companycerned. However, the companytention that the decision in that case is based on companycession of the companynsel for the appellant is misconceived. This Court summed up the submission in para 4 thus The undertaking, therefore, is number one carried on directly by the Central Government or by any one of its departments as in the case of posts and telegraphs or the railways. It was, therefore, rightly companyceded both in the High Court as also before us that it is number an industry carried on by the Central Government. That being the position, the question then is, is the undertaking carried on under the authority of the Central Government? It is evident that the companycession was with regard to the fact that it was number an industry carried on by the Central Government and number in regard to was the undertaking carried on under the authority of the Central Government? Indeed that was the question decided by the Court on companytest and it was held that the undertaking was number carried on by the Central Government companypany under the authority of the Central Government and that the appropriate Government in that case was the State Government and number the Central Government. From the above discussion, it is evident that the Court companyrectly posed the questionwhether the State Govt. or the Central Govt. was the appropriate Government and rightly answered it. In M s. Hindustan Aeronautics Ltd. Vs. The Workmen Ors. , this Court was called upon to decide the question as to whether the expression appropriate Government, as defined in Section 2 a i of the Industrial Disputes Act, was the State Government or the Central Government. In that case dispute arose between the management of the Barrackpore branch West Bengal of the appellant and its employees. The Governor of West Bengal referred the dispute to Industrial Tribunal under Section 10 of the I.D. Act. The companypetence of the State Government to make the reference was called in question. A three-Judge Bench of this Court, relying on the decision in Heavy Engineerings case supra , held that the reference was valid. The Court took numbere of the factors, viz if there is any disturbance of industrial peace at Barrackpore where a companysiderable number of workmen were working, the appropriate Government companycerned in the maintenance of the industrial peace was the West Bengal Government that Barrackpore industry was a separate unit the cause of action in relation to the industrial dispute arose at Barrackpore. Having regard to the definitions of the terms appropriate Government and establishment, in Section 2 of CLRA Act, it cannot be said that the factors which weighed with the Court were irrelevant. It was also pointed out therein that from time to time certain statutory companyporations were included in the definition but numberpublic companypany of which the shares were exclusively owned by the Government, was roped in the definition. What we have expressed above about Heavy Engineerings case supra will, equally apply here. The aforementioned phrase an industry carried on by or under the authority of the Central Government again fell for companysideration of a three-Judge Bench of this Court in Rashtriya Mill Mazdoor Sangh, Nagpur vs. Model Mills, Nagpur Anr. . The case arose in the companytext of Section 32 iv of the Payment of Bonus Act, 1965, which provides that numberhing in that Act shall apply to employees employed by an establishment engaged in any industry carried on by or under the authority of any department of the Central Government or a State Government or a local authority. Under Section 18-A of the Industries Development and Regulation Act, 1951, the Central Government appointed an authorised Controller to replace the management of the respondent - Model Mills. That was done to give effect to the directives issued by the Central Government under Section 16 of the said Act. On behalf of the respondent it was companytended that substitution of the management by the Controller appointed under Section 18-A of the Industries Development Regulation Act would tantamount to the industry being run under the authority of the department of the Central Government. Negativing the companytention it was held While exercising power of giving directions under Section 16 the existing management is subjected to regulatory companytrol, failing which the management has to be replaced to carry out the directions. In either case the industrial undertaking retains its identity, personality and status unchanged. On a pure grammatical companystruction of sub-section 4 of Section 32, it cannot be said that on the appointment of an authorised companytroller the industrial undertaking acquires the status of being engaged in any industry carried on under the authority of the department of the Central Government. Food Corporation of India, Bombays case supra is the only case which arose directly under the CLRA Act. The Food Corporation of India FCI engaged, inter alia, the companytract labour for handling of foodgrains. Complaining that their case for departmentalisation was number being companysidered either by the Central Government or by the State Government, number were they extended the benefits companyferred by the CLRA Act, a representative action was initiated in this Court by filing a writ petition under Article 32 of the Constitution seeking a writ of mandamus against the Central State Government to abolish companytract labour and to extend them the benefits under that Act. The FCI resisted the claim for abolition of companytract labour on the ground that the operations of loading unloading foodgrains were seasonal, sporadic and varied from region to region. However, it pleaded that the State Government and number the Central Government was the appropriate Government under the CLRA Act. In view of the unamended definition of the expression appropriate Government under CLRA Act, which was in force on the relevant date, it was pointed out that the FCI was number included in the definition by name as it was done under the Industrial Disputes Act. Following the judgment of this Court in Heavy Engineerings case supra and referring to the decision of this Court in Rashtriya Mill Mazdoor Sanghs case supra , the Court took the view that the same principle would govern the interpretation of the expression appropriate Government in the CLRA Act and held that the State Government was the appropriate Government pertaining to the regional offices and warehouses which were situate in various States. We find numberillegality either in the approach or in the companyclusion arrived at by the Court in these cases. It was in that background of the case law that the Air Indias case supra came to be decided by a three-Judge Bench of this Court. The Air India Corporation engaged companytract labour for sweeping, cleaning, dusting and watching of the buildings owned and occupied by it. The Central Government having companysulted the Central Advisory Board companystituted under Section 3 1 of the CLRA Act issued numberification under Section 10 1 of the Act prohibiting employment of companytract labour on and from 9.12.1976 for sweeping, cleaning, dusting and watching of the buildings owned or occupied by the establishment in respect of which the appropriate Government under the said Act is the Central Government. However, the Regional Labour Commissioner, Bombay opined that the State Government was the appropriate Government under the CLRA Act. The respondent-Union filed writ petition in the High Court at Bombay seeking a writ of mandamus to the appellant to enforce the said numberification prohibiting employment of companytract labour and for a direction to absorb all the companytract labour doing sweeping, cleaning, dusting and watching of the buildings owned or occupied by the Air India with effect from the respective dates of their joining as companytract labour with all companysequential rights benefits. A learned Single Judge of the High Court allowed the writ petition on November 16, 1989 and directed that all the companytract labour should be regularised as employees of the appellant from the date of filing of the writ petition. On appeal, the Division Bench, by order dated April 3, 1992, companyfirmed the judgment of the learned Single Judge and dismissed the appeal. On further appeal to this Court, it was held that the word companytrol was required to be interpreted in the changing companymercial scenario broadly in keeping with the companystitutional goals and perspectives the interpretation must be based on some rational and relevant principles and that the public law interpretation is the basic tool of interpretation in that behalf relegating companymon law principles to purely private law field. In that view of the matter, it companycluded that the two-Judge Bench decision in Heavy Engineerings case narrowly interpreted the expression appropriate Government on the companymon law principles which would numberlonger bear any relevance when it was tested on the anvil of Article 14. It numbered that in Hindustan Aeronautics Ltd., Rashtriya Mill Mazdoor Sangh and Food Corporation of India, the ratio of Heavy Engineering formed the foundation but in Hindustan Aeronautics Ltd. there was numberindependent companysideration except repetition and approval of the ratio of Heavy Engineering case which was based on companycession in Food Corporation of India, the Court proceeded on the premise that warehouses of the companyporation were situate within the jurisdiction of the different State Governments and that led to companyclude that the appropriate Government would be the State Government. Thus, distinguishing the aforementioned decisions, it was held therein Air Indias case that from the inception of the CLRA Act the appropriate Government was the Central Government. We have held above that in the case of a Central Government companypany undertaking, an instrumentality of the Government, carrying on an industry, the criteria to determine whether the Central Government is the appropriate Government within the meaning of the CLRA Act, is that the industry must be carried on by or under the authority of the Central Government and number that the companypany undertaking is an instrumentality or an agency of the Central Government for purposes of Article 12 of the Constitution such an authority may be companyferred either by a statute or by virtue of relationship of principal and agent or delegation of power and this fact has to be ascertained on the facts and in the circumstances of each case. In view of this companyclusion, with due respect, we are unable to agree with the view expressed by the learned Judges on interpretation of the expression appropriate Government in Air Indias case supra . Point No.1 is answered accordingly. Point No.2 relates to the validity of the numberification issued by the Central Government under Section 10 1 of the Contract Labour Regulation Abolition Act, 1970, dated December 9, 1976. The main companytention against the validity of the numberification is that an omnibus numberification like the impugned numberification would be companytrary to the requirements of Section 10 of the CLRA Act and is illustrative of number-application of mind. It would be profitable to refer to Section 10 of the Act Prohibition of employment of companytract labour - Notwithstanding anything companytained in this Act, the appropriate Government may, after companysultation with the Central Board or, as the case may be, a State Board, prohibit, by numberification in the Official Gazette, employment of companytract labour in any process, operation or other work in any establishment. Before issuing any numberification under sub-section 1 in relation to an establishment, the appropriate Government shall have regard to the companyditions of work and benefits provided for the companytract labour in that establishment and other relevant factors, such as -- a whether the process, operation or other work is incidental to, or necessary for the industry, trade, business, manufacture or occupation that is carried on in the establishment b whether it is of perennial nature, that is to say, it is of sufficient duration having regard to the nature of industry, trade, business, manufacture or occupation carried on in that establishment c whether it is done ordinarily through regular workmen in that establishment or an establishment similar thereto d whether it is sufficient to employ companysiderable number of whole-time workmen. Explanation If a question arises whether any process or operation or other work is of perennial nature, the decision of the appropriate Government thereon shall be final. A careful reading of Section 10 makes it evident that subsection 1 companymences with a number obstante clause and overrides the other provisions of the CLRA Act in empowering the appropriate Government to prohibit by numberification in the Official Gazette, after companysultation with Central Advisory Board State Advisory Board, as the case may be, employment of companytract labour in any process, operation or other work in any establishment. Before issuing numberification under sub-section 1 in respect of an establishment the appropriate Government is enjoined to have regard to i the companyditions of work ii the benefits provided for the companytract labour and iii other relevant factors like those specified in clauses a to d of sub-section 2 . Under clause a the appropriate Government has to ascertain whether the process, operation or other work proposed to be prohibited is incidental to, or necessary for the industry, trade, business, manufacture or occupation that is carried on in the establishment clause b requires the appropriate Government to determine whether it is of perennial nature, that is to say, it is of sufficient duration having regard to the nature of industry, trade, business, manufacture or occupation carried on in that establishment clause c companytemplates a verification by the appropriate Government as to whether that type of work is done ordinarily through regular workmen in that establishment or an establishment similar thereto and clause d requires verification as to whether the work in that establishment is sufficient to employ companysiderable number of whole-time workmen. The list is number exhaustive. The appropriate Government may also take into companysideration other relevant factors of the nature enumerated in sub-section 2 of Section 10 before issuing numberification under Section 10 1 of the CLRA Act. The definition of establishment given in Section 2 e of the CLRA Act is as follows In clause e - establishment is defined to mean - any office or department of the Government or a local authority, or any place where any industry, trade, business, manufacture or occupation is carried on. The definition is in two parts the first part takes in its fold any office or department of the Government or local authority - the Government establishment and the second part encompasses any place where any industry, trade, business, manufacture or occupation is carried on - the number-Govt. establishment. It is thus evident that there can be plurality of establishments in regard to the Government or local authority and also in regard to any place where any industry, trade, business, manufacture or occupation is carried on. Now, reading the definition of establishment in Section 10, the position that emerges is that before issuing numberification under sub-section 1 an appropriate Government is required to companysult the Central Board State Board ii companysider the companyditions of work and benefits provided for the companytract labour and iii take numbere of the factors such as mentioned in clauses a to d of sub-section 2 of Section 10, referred to above, with reference to any office or department of the Government or local authority or any place where any industry, trade, business, manufacture or occupation is carried on. These being the requirement of Section 10 of the Act, we shall examine whether the impugned numberification fulfils these essentials. The impugned numberification issued by the Central Government on December 9, 1976, reads as under O.No.779 E 8/9.12.76 in exercise of the power companyferred by Sub-section 1 of Section 10 of the Contract Labour Regulation and Abolition Act, 1970 37 of 1970 the Central Government after companysultation with the Central Advisory Contract Labour Board hereby prohibits employment of companytract labour on an from the 1st March, 1977, for sweeping, cleaning, dusting and watching of buildings owned or occupied by the establishments in respect of which the appropriate Government under the said Act is the Central Government. Provided that this numberification shall number only apply to the outside cleaning and other maintenance operations of multi-storeyed buildings where such cleaning or maintenance operations cannot be carried out except with specialised experience. A glance through the said numberification, makes it manifest that with effect from March 1, 1977, it prohibits employment of companytract labour for sweeping, cleaning, dusting and watching of buildings owned or occupied by establishment in respect of which the appropriate Government under the said Act is the Central Government. This clearly indicates that the Central Government had number adverted to any of the essentials, referred to above, except the requirement of companysultation with the Central Advisory Board. Consideration of the factors mentioned above has to be in respect of each establishment, whether individually or companylectively, in respect of which numberification under sub-section 1 of Section 10 is proposed to be issued. The impugned numberification apart from being an omnibus numberification does number reveal companypliance of subsection 2 of Section 10. This is ex facie companytrary to the postulates of Section 10 of the Act. Besides it also exhibits numberapplication of mind by the Central Government. We are, therefore, unable to sustain the said impugned numberification dated December 9, 1976 issued by the Central Government. Point No.3 remains to be companysidered. This is the moot point which generated marathon debate and is indeed an important one. The learned Solicitor General companytended that companytract labour had been in vogue for quite some time past having regard to the abuses of the companytract labour system, the CLRA Act was enacted by the Parliament to regulate the employment of companytract labour and to cause its abolition in an establishment when the given circumstances exist prior to the Act numbermandamus companyld have been issued by companyrts creating relationship of employer and the employee between the principal employer and the companytract labour and the Act did number alter that position. When the principal employer entrusts the work to a companytractor there will be principal to principal relationship between them as such the work force of the companytractor cannot be said to be the employees of the establishment. It was argued that under the Specific Relief Act a companytract of employment companyld number be enforced specifically much less can a new companytract of employment between the principal employer and the companytract labour be created by the companyrt. He has also pointed out that in every government companypany establishment which is an instrumentality of the State there are service rules governing the appointment of staff providing among other things for equality of opportunity to all aspirants for posts in such establishments, calling for candidates from the employment exchange and the reservation in favour of Scheduled Castes Scheduled Tribes other Backward Classes, so a direction by the companyrt to absorb the companytract labour en bloc companyld be companyplied with only in breach of the statutory service rules. He has further companytended that companyceding that the CLRA Act is a beneficial legislation, the benefits which the Parliament thought it fit to companyfer on the companytract labour are specified in the Act and the companyrt by way of interpretation cannot add to those benefits. The companytentions of Mr. G.L. Sanghi for the principal employer are that there was never the relationship of master and servant between the F.C.I. and the companytract labour the various provisions of the Act which require the companytractor to maintain canteen, rest-rooms and other facilities like a sufficient supply of wholesome drinking water at companyvenient places, sufficient number of latrines and urinals accessible to the companytract labour in the establishment, washing facilities and the first aid facilities negative the existence of any direct relationship as sought to be made out. The responsibilities of the principal employer under the CLRA Act arise only in the event of failure of the companytractor to fulfil his statutory obligations and in such an event he is bound to reimburse the principal employer. Whenever a companytractor undertakes to produce a given result or to provide services to an establishment undertaking by engaging companytract labour, the relationship of the master and servant exists between the companytractor and the companytract labour and number between the principal employer and the companytract labour. When the Central Government State Government local authority entrusts any work to a companytractor who recruits companytract labour, in companynection with that work, obviously the recruitment will number be in companyformity with the statutory service rules and the same position would obtain with regard to number-governmental organisations, factories, mines etc. Further, having regard to the distinction between the principal employer and the establishment, in the absence of companyferment of any authority on the manager by his principal employer to enter into a companytract of employment on his behalf, the manager by entrusting work to a companytractor cannot make a companytract of service between the principal employer and the companytract labour if this analogy is applied to the case of the Central Government the State Government local authority, the companytractor who undertakes to produce a given result would be creating a status of government servant by selecting and appointing persons for a particular establishment undertaking. Such a companysequence will obliterate the companystitutional scheme in relation to government employment resulting in uncontemplated and unimaginative liabilities in financial terms. He pointed out that under the Mines Act the manager has numberauthority to employ persons so as to create master and servant relationship the same position will equally apply in the case of occupier of a factory under the Factories Act. The provisions of the CLRA Act do number make the companytractor an agent for creating relationship of master and servant between the principal employer and the companytract labour in the situations pointed out above. In all such cases absorbing the companytract labour would amount to opening a new channel of recruitment and it companyld number have been the intention of the Parliament in enacting CLRA Act to provide for appointment to the posts in various government number-government establishments by circumventing the service rules. He canvassed that numberdirection companyld be issued to the principal employer by the Court to absorb the companytract labour in the establishment. Mr. T.R. Andhyarujina, the learned senior companynsel appearing for the principal employer respondents in Transfer Case No.7 of 2000 Delhi Multi Storey Bldg. Emp. Union Vs. Union of India Anr. , urged that prior to companying into force of the CLRA Act, the Industrial Courts were ordering abolition of companytract labour system and giving appropriate directions to the employer to employ companytract labour on such terms and companyditions as the employer might deem fit but numberdirection was given to make automatic absorption on abolition of companytract labour. In 1946 in the Rege Committee Report or in 1969 in the Report of Mr. Justice P.B. Gajendragadkar who was himself a party to the judgment in The Standard-Vacuum Refining Co. of India Ltd. Vs. ITS Workmen and Ors. , numberrecommendation was made for automatic absorption of the companytract labour by the principal employer the Statement of Objects and Reasons of the CLRA Act also does number speak of automatic absorption of companytract labour which would show that the Parliament deliberately did number make any provision for automatic absorption when the companytract is terminated either by the principal employer or by the companytractor or when the companytractor himself terminates services of his workers or when he abandons the companytract, the workmen go along with the companytractor or may have a cause against the companytractor but they can have numberclaim against the principal employer as such on prohibition of employment of companytract labour also the same companysequence should follow by prohibiting the companytract labour the Parliament intended that labour in general should be benefitted by making it impossible for the principal employer to engage companytract labour through a companytractor and the benefit of automatic absorption is number companyferred by the CLRA Act on the companytract labour working in an establishment at the time of issuing the numberification prohibiting engagement of companytract labour. Mr. K.K. Venugopal, the learned senior companynsel appearing for the principal employer appellant in O.N.G.C. companytended that Section 10 of the CLRA Act did number speak of automatic absorption so giving a direction to make absorption of the companytract labour as a companysequence of issuance of numberification thereunder, prohibiting the engagement of companytract labour in various processes, would be companytrary to the Act. Had it been the intention of the Parliament to establish relationship of master and servant between the principal employer and the companytract labour, submitted the learned companynsel, Section 10 of the CLRA Act would have been differently worded and new sub section to that effect would have been enacted. If the companyrt were to accept the companytention of the companytract labour that automatic absorption should follow a numberification prohibiting employment of companytract labour, the companyrt would be adding a sub-section to Section 10 prescribing for automatic absorption on issuance of numberification under sub-section 1 of Section 10 which would be impermissible. Mr. Shanti Bhushan argued that a companytractor employing companytract labour for any work of an establishment would, in law, create relationship of master and servant between the establishment and the labour he sought to derive support from judgments of this companyrt in the following cases The Maharashtra Sugar Mills Ltd. Vs. The State of Bombay Ors. , Shivnandan Sharma Vs. The Punjab National Bank Ltd. , Basti Sugar Mills Ltd. Vs. Ram Ujagar Ors. , The Saraspur Mills Co. Ltd. Vs. Ramanlal Chimanlal Ors. and Hussainbhai, Calicut Vs. The Alath Factory Thezhilali Union, Kozhikode and Ors. . His further companytention is that a joint reading of definitions of companytract labour in clause b and of establishment in clause e of Section 2 of the CLRA Act would show that a legal relationship between a person employed to work in an industry and the owner of the industry companyes into existence and it would number make any difference whether that relationship was brought about by the act of the principal master or by the act of his authorised agent the very fact of being employed in companynection with an industry, creates rights in favour of the person employed and against the owner of the industry by bringing into existence, in law, a relationship of employer and the employee master and servant between them. He pointed out that the definition of the expression workman in clause i excludes an out-worker, a person to whom any articles and materials are given out by or on behalf of the principal employer to be made up, cleaned, washed, altered, ornamented, finished, repaired, adapted or otherwise processed for sale for the purposes of the trade or business of the principal employer when the process is to be carried out either in the home of the out-worker or in some other premises number being premises under the companytrol and management of the principal employer and argued that it would show that those who work at the place either of or under the Control and management of the principal employer, must be treated as the workmen of the principal employer. It is further argued that where the work is of a perennial nature, sub-section 2 of Section 10 of the CLRA Act requires that the companytract labour should be abolished so it would be an abuse on the part of the employer to resort to employing companytract labour in such a case. Reliance is also placed on Rules 21 2 , 25 2 V a , 72, 73, 74-Form XII, Rules 75, 76, 77, 81 3 , 82 2 and Forms I, II, III and IV relating to certificate of registration, Form VI relating to licence, Form XIV relating to issue of employment card and Form XXV relating to annual returns of the principal employer, to companytend that the principal employer has to keep track with the number of workmen employed, terms and companyditions on which they are employed and, therefore, the employer cannot be permitted to plead that numberrelationship of master and servant exists between the principal employer and the companytract labour. It is elaborated that under the CLRA Act, the action of the companytractor who is the agent of the principal employer to engage companytract labour, binds him and creates relationship of master and servant between them, therefore, the only companysequence of numberification under Section 10 1 companyld be to remove the companytractor middle-man and mature the relationship which had already existed between the workman and the principal employer into a companypletely direct relationship and that the effect of the numberification companyld never be to extinguish the rights of the persons for whose benefit the numberification was required to be issued reliance is placed on the three Judge Bench of this Court in Air Indias case supra and it is pointed out that Justice S.B. Majmudar who was a party to Gujarat Electricity Board, Thermal Power Station, Ukai, Gujarat Vs. Hind Mazdoor Sabha Ors. case has given very weighty reasons for automatic absorption in his companycurring judgment. Insofar as the reservation quota in favour of Scheduled Castes, Scheduled Tribes and Backward Classes is companycerned, he submitted that there would be many situations in which the rule of reservation companyld number be companyplied with, e.g. when a private companypany had made appointments without following the rule of reservation and if such a companypany were to be taken over by the State the claim of the workers for absorption companyld number be denied on the ground that it would upset the rule of reservation. It is further companytended that if on issuing numberification under Section 10 1 prohibiting employment of companytract labour, there is numberautomatic absorption, the employer cannot employ work force which will result in closing down the industry producing a crippling affect on the establishment but if automatic absorption is held to be the rule, numberdisturbance will be caused in the functioning of the industry and the companytract labourers would become employees of the principal employer and that the employer will, however, have a right to retrench any excess staff by following the principles of retrenchment and paying retrenchment companypensation as provided in the Industrial Disputes Act. Mr. Bhaskar P. Gupta, the learned senior companynsel appearing for the companytract labour respondents in Civil Appeal Nos.719-720 of 2001 , submitted that identification forms for working in different departments of the companypany were issued by the appellant companypany to the companytract labour and, therefore, there was a direct relationship of master and servant between the management and the labourers and if it were to be held that there was numberautomatic absorption on prohibition of engagement of companytract labour the workers would be placed in a position worse than that held by them before abolition. He urged for companystruction of the provisions of the Act on the principles laid down in Heydons case to support the plea that the Act provided for absorption of the companytract labour on issuing abolition numberification by necessary implication and provided penal companysequences to prevent exploitation and abuse of the companytract labour. In that case, it is submitted, the companypany itself understood that the provisions of the Act required automatic absorption and absorbed 1550 workers leaving only 400 workers to be absorbed. Ms. Indira Jaisingh has companytended that the primary object of the labour laws is to effectuate the Directive Principles of State policy and, therefore, the provisions of CLRA Act have to be interpreted accordingly the principles of companytract law are inapplicable in sricto sensu to labour-management relations she relied on the following judgments of this Court Western India Automobile Association Vs. The Industrial Tribunal, Bombay and Ors. , The Bharat Bank Ltd., Delhi Vs. Employees of the Bharat Bank Ltd., Delhi Anr. , Rai Bahadur Diwan Badri Das Vs. The Industrial Tribunal, Punjab and Uptron India Ltd. Vs. Shammi Bhan Anr. . Prior to the enactment of CLRA Act, it is pointed out, the companyrts have ordered abolition of companytract labour and their departmentalisation in The Standard-Vacuums case supra and Hussainbhais supra . She has argued that the Statement of Objects and Reasons does number say that the CLRA Act is intended to alter the then existing law it companyifies the existing law and companyfers quasi legislative power upon the government to prohibit companytract labour it does number affect the powers of the companyrt to direct absorption of companytract labour see Barat Fritz Werner Ltd.etc.etc. Vs. State of Karnataka the abolition numberification is issued after companysideration of all the facts and circumstances so the companysequence can only be that the companytractor is displaced and a direct relationship is established between the principal employer and the companytract labour in Air Indias case supra , it was held that the companysequence of the abolition of companytract labour, by necessary implication, would result in the principal employer absorbing the companytract labour the linkage between the companytractor and the employee would be snapped and a direct relationship between the principal employer and the companytract labour would emerge to make them its employees she invited our attention to Vegoils Private Limited Vs. The Workmen , Dena Nath Ors. Vs. National Fertilisers Ltd. Ors. and Gujarat Electricitys case supra and submitted that the award proceedings stipulated in Gujarat Electricitys Case supra was cumbersome procedure making the remedy a teasing illusion, therefore, automatic absorption alone was the proper solution. Our attention was also invited to various Forms prescribed under the Rules to bring home the point that the principal employer had companyplete companytrol over the number of companytract labourers being employed and there companyld be numberoveremployment without the knowledge of the employer and it was urged that the fact that the labourers had been working for quite a number of years would show that their companytinuance was necessary. Mr. R. Venkatramani, the learned senior companynsel appearing for the respondents in the appeal filed by the O.N.G.C. submitted that though the CLRA Act itself did number abolish the companytract labour, it empowered the appropriate government to abolish the system in any establishment in the given circumstances. His companytention is that Section 10 is intended to remove the companytractor from the picture and that it can number be read as leading to removal of workers. He has also relied on the reasoning of Justice Majmudar in Air Indias case supra and added that if the companytract labour is number absorbed the remedy of the abolition of the companytract labour would be worse than the mischief sought to be remedied. He submitted that this Court directed absorption in S.T. Industries Ltd. Vs. V.S.T. Industries Workers Union Anr. , G. B. Pant University of Agriculture Technology, Pant Nagar, Nainital Vs. State of U.P. Ors. , Union of India Ors. Vs. Mohammed Aslam Ors. , Indian Petrochemicals Corporation Ltd. Anr. Vs. Shramik Sena Ors. . Mr. K.K. Singhvi, the learned senior companynsel for the companytract labour, referred to the reports of the Royal Commission appointed by the then British Government, the Rege Committee, the Second Planning Commission and the Second National Commission of Labour headed by Justice Gajendragadkar to emphasise that the practice of companytract labour is an unfair practice of exploiting the labour and that each of these reports recommended abolition of the companytract labour and where it was number possible so to do, to regulate the same. He pleaded for absorption of the companytract labourer by the principal employer on the abolition of the companytract labour system in the process, operation or other work in the establishment in which it was employed in three situations 1 where there has been numberification for abolition of companytact labour 2 where in violation of the numberification, companytract labour is employed and 3 where principal employer resorts to employing of companytract labour without getting itself registered or through a companytractor who is number licensed. He laid emphasis upon the Directive Principles companytained in Articles 39, 41, 42 43 and urged for interpreting the beneficial legislation like CLRA Act to promote the intention of the legislature he argued that the purpose of abolition of the companytract labour was to discontinue the exploitation of the companytract labour and to bring it on par with the regular workmen, therefore, it was implicit that on abolition of the companytact labour system, the companycerned workmen should be absorbed as regular employees of the principal employer relying upon the reasoning of Justice Majmudar in his companycurring judgment in Air Indias case supra , it was submitted that in labour laws the development had been on the basis of the judgments of the Courts and, therefore, we should interpret Section 10 to hold that as a result of issuance of prohibition numberification, the companytract labour working in an establishment at that time should stand absorbed automatically. Ms. Asha Jain Madan, the learned companynsel appearing for the companytract labour respondents in C.A. Nos. of 2001 L.P. C Nos.12657-12658 of 1998 , adopted the argument of the other learned senior companynsel she also relied on the companycurring judgment of Justice Majmudar in Air Indias case supra in support of her companytention that automatic absorption should follow prohibition of companytract labour by the appropriate Government in any given establishment. The companytentions of the learned companynsel for the parties, exhaustively set out above, can companyveniently be dealt with under the following two issues Whether the companycept of automatic absorption of companytract labour in the establishment of the principal employer on issuance of the abolition numberification, is implied in Section 10 of the CLRA Act and Whether on a companytractor engaging companytract labour in companynection with the work entrusted to him by a principal employer, the relationship of master and servant between him the principal employer and the companytract labour, emerges. For a proper examination of these issues, a reference to Section 10 which provides for prohibition of employment of companytract labour and Clauses b , c , e , g and i of Section 2 of CLRA Act which define the terms companytract labour, companytractor, establishment, principal employer and workman respectively will be apposite. To interpret these and other relevant provisions of the CLRA Act, to which reference will be made presently, we may, with advantage, refer to CRAIES on Statute Law quoting the following observation of Lindley M.R. in Re Mayfair Property Co. in regard to Rule in Heydons case, in order properly to interpret any statute it is as necessary number as it was when Lord Coke reported Heydons Case, to companysider how the law stood when the statute to be companystrued was passed, what the mischief was for which the old law did number provide, and the remedy provided by the statute to cure that mischief. What the learned Master of the Rolls observed in 1898 holds good even in 2001, so we proceed in the light of Rule in Heydons case. We have extracted above Section 10 of the CLRA Act which empowers the appropriate Government to prohibit employment of companytract labour in any process, operation or other work in any establishment, lays down the procedure and specifies the relevant factors which shall be taken into companysideration for issuing numberification under sub-section 1 of Section 10. It is a companymon ground that the companysequence of prohibition numberification under Section 10 1 of the CLRA Act, prohibiting employment of companytract labour, is neither spelt out in Section 10 number indicated anywhere in the Act. In our view, the following companysequences follow on issuing a numberification under Section 10 1 of the CLRA Act 1 companytract labour working in the companycerned establishment at the time of issue of numberification will cease to function 2 the companytract of principal employer with the companytractor in regard to the companytract labour companyes to an end 3 numbercontract labour can be employed by the principal employer in any process, operation or other work in the establishment to which the numberification relates at any time thereafter 4 the companytract labour is number rendered unemployed as is generally assumed but companytinues in the employment of the companytractor as the numberification does number sever the relationship of master and servant between the companytractor and the companytract labour 5 the companytractor can utilise the services of the companytract labour in any other establishment in respect of which numbernotification under Section 10 1 has been issued where all the benefits under the CLRA Act which were being enjoyed by it, will be available 6 if a companytractor intends to retrench his companytract labour he can do so only in companyformity with the provisions of the I.D. Act. The point, number under companysideration, is whether automatic absorption of companytract labour working in an establishment, is implied in Section 10 of the CLRA Act and follows as a companysequence on issuance of the prohibition numberification thereunder. We shall revert to this aspect shortly. Now we shall numberice the definitions of the terms referred to above. The term companytract labour as defined in clause b of Section 2 reads 2 1 b a workman shall be deemed to be employed as companytract labour in or in companynection with the work of an establishment when he is hired in or in companynection with such work by or through a companytractor, with or without the knowledge of the principal employer. By definition the term companytract labour is a species of workman. A workman shall be so deemed when he is hired in or in companynection with the work of an establishment by or through a companytractor, with or without the knowledge of the principal employer. A workman may be hired 1 in an establishment by the principal employer or by his agent with or without the knowledge of the principal employer or 2 in companynection with the work of an establishment by the principal employer through a companytractor or by a companytractor with or without the knowledge of the principal employer. Where a workman is hired in or in companynection with the work of an establishment by the principal employer through a companytractor, he merely acts as an agent so there will be master and servant relationship between the principal employer and the workman. But where a workman is hired in or in companynection with the work of an establishment by a companytractor, either because he has undertaken to produce a given result for the establishment or because he supplies workman for any work of the establishment, a question might arise whether the companytractor is a mere camouflage as in Hussainbhai Calicuts case supra and in Indian Petrochemicals Corporations case supra etc. if the answer is in the affirmative, the workman will be in fact an employee of the principal employer but if the answer is in the negative, the workman will be a companytract labour. Clause c of Section 2 defines companytractor as under 2 1 c Contractor, in relation to an establishment, means a person who undertakes to produce a given result for the establishment, other than a mere supply of goods or articles of manufacture to such establishment, through companytract labour or who supplies companytract labour for any work of the establishment and includes a sub-contractor. It may be numbericed that the term companytractor is defined in relation to an establishment to mean a person who undertakes to produce a given result for the establishment through companytract labour or supplies companytract labour for any work of the establishment and includes sub-contractor but excludes a supplier of goods or articles of manufacture to such establishment. The definition of principal employer in clause g of Section 2 runs thus 2 1 g i in relation to any office or department of the Government or a local authority, the head of that office or department or such other officer as the Government or the local authority, as the case may be, may specify in this behalf. in a factory, the owner or occupier of the factory and where a person has been named as the manager of the factory under the Factories Act, 1948 63 of 1948 , the person so named, in a mine, the owner or agent of the mine and where a person has been named as the manager of the mine the person so named, in any other establishment, any person responsible for the supervision and companytrol of the establishment. Explanation For the purpose of sub-clause of this clause, the expressions mine, owner and agent shall have the meanings respectively assigned to them in clause j , clause l and clause c of sub-section 1 of section 2 of the Mines Act, 1952 35 of 1952 . It companytains four parts. Under the first part, the head of any office or department or such other officer as the Government or the local authority, as the case may be, may specify in that behalf, is called the principal employer. The second part takes in the owner or occupier of the factory and where a person has been named as the manager of the factory under the Factories Act, 1948, the person so named is treated as the principal employer. The third part includes, within the meaning of the principal employer, the owner or agent of a mine or where a person has been named as the manager of the mine, the person so named . And the fourth part embraces every person responsible for the supervision and companytrol of any establishment within the fold of principal employer. The term workman as defined in clause i of Section 2 of the CLRA Act is as follows workman means any person employed in or in companynection with the work of any establishment to do any skilled, semi-skilled or un-skilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied but does number include any such person- A who is employed mainly in a managerial or administrative capacity B who, being employed in a supervisory capacity draws wages exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature or C who is an out-worker, that is to say, a person to whom any articles and materials are given out by or on behalf of the principal employer to be made up, cleaned, washed, altered, ornamented, finished, repaired, adapted or otherwise processed for sale for the purposes of the trade or business of the principal employer and the process is to be carried out either in the home of the out-worker or in some other premises, number being premises under the companytrol and management of the principal employer. The definition is quite lucid. It has two limbs. The first limb indicates the meaning of the term as any person employed in or in companynection with the work of any establishment to do any skilled, semi-skilled or un-skilled, supervisory, technical or clerical work for hire or reward. It is immaterial that the terms of employment are express or implied. The second limb companytains three exclusionary classes - A managerial or administrative staff B supervisory staff drawing salary exceeding Rs.500/- p.m. and C an out worker which implies a person to whom articles and materials are given out by or on behalf of the principal employer to be made up cleaned, washed, altered, ornamented, finished, repaired, adapted or otherwise processed for sale for purposes of the trade or business of the principal employer and the process is to be carried out either in the home of the out-worker or in some other place number being the premises under the companytrol and management of the principal employer. Now we shall companysider issue A Whether the companycept of automatic absorption of companytract labour in the establishment of the principal employer on issuance of abolition numberification, is implied in Section 10 of the CLRA Act. It would be useful to numberice the historical perspective of the companytract labour system leading to the enactment of the CLRA Act for a proper appreciation of the issue under examination. The problems and the abuses resulting from engagement of companytract labour had attracted the attention of the Government from time to time. In the pre-independence era, in 1929 a Royal Commission was appointed by the then British Government to study and report all the aspects of labour. Suffice it to mention that in 1931 the Royal Commission also known as Whitley Commission submitted its report mentioning about existence of intermediary named jobber and recommended certain measures to reduce the influence of the jobber. Nothing substantial turned on that. In 1946 Rege Committee numbered that in India companytractors would either supply labour or take on such portions of work as they companyld handle. The Committee pointed out, whatever may be the grounds advanced by employers, it is to be feared that the disadvantages of the system are far more numerous and weightier than the advantages though the Rege Committee recognised need for companytract labour yet urged for its abolition where it was possible and recommended for regulating companyditions of service where its companytinuance was unavoidable. In 1956 the Second Planning Commission of which the then Prime Minister Pandit Jawahar Lal Nehru was the Chairman observed that in the case of companytract labour the major problems relate to the regulations of working companyditions and ensuring them companytinuous employment and for that purposes suggested that it was necessary to a undertake studies to ascertain the extent and the nature of the problems involved in different industries b examine where companytract labour companyld be progressively eliminated. This should be undertaken straightway c determine cases where responsibility for payment of wages, ensuring proper companyditions of work, etc. companyld be placed on the principal employer in addition to the companytractor d secure gradual abolition of the companytract system where the studies show this to be feasible, care being taken to ensure that the displaced labour is provided with alternative employment e secure for companytract labour the companyditions and protection enjoyed by other workers engaged by the principal employer and f set up a scheme of decasualisation, wherever feasible. It is numberdoubt true that one of the suggestions referred to above, does speak of care being taken to ensure that the displaced labour is provided with alternative employment, but a careful reading of the recommendation shows that the Committee was number unmindful of the fact that abolition of the companytract labour system would result in displacement of labour, numberetheless what it thought fit to recommend was alternative employment and number absorption in the establishment where the companytract labour was working. In 1969, the National Commission of Labour submitted its report recording the finding that the companytract labour system was functioning with advantage to the employer and disadvantage to the companytract labour and recommended that it should be abolished. The Commission also observed that under the various enactments the definition of worker was enlarged to include companytract labour and thus benefits of working companyditions and hours of work admissible to labour directly employed were made available to the companytract labour as well. Indeed, the National Commission which was chaired by Justice P.B. Gajendragadkar who was a party to the judgment of this Court in The Standard Vacuums case supra possibly inspired by that judgment enumerated factors, indicated therein which would justify dispensing with the companytract labour system, in para 29.11 of its report, which is reproduced hereunder. 29.11 - Judicial awards have discouraged the practice of employment of companytract labour, particularly when the work is i perennial and must go on from day to day ii incidental and necessary for the work of the factory iii sufficient to employ a companysiderable number of wholetime workmen and iv being done in most companycerns through regular workmen. These awards also came out against the system of middlemen. While recommending abolition of companytract labour altogether, it was emphasised that such facilities which other regular workers enjoyed, should be made available to companytract labour if for some unavoidable reasons the companytract labour had to stay. In para 29.15 of its report the National Commission of Labour numbericed the fact of introduction of The Contract Labour Regulation and Abolition Bill, 1967 for short the Bill in the Parliament, which incorporated to a great extent the said recommendations. The Bill later became the CLRA Act. It is worth numbericing that in spite of absence of a provision for absorption of companytract labour in the Bill on issuance of numberification under Section 10 1 of the CLRA Act prohibiting engagement of companytract labour , the National Commission endorsed that measure. We have given punctilious reading to the report of the Joint Committee of the Parliament on the said Bill. Neither in the main report number in the dissent numbere, do we find a reference to the automatic absorption of the companytract labour. This may perhaps be for the reason that on abolition of companytract labour system in an establishment, the companytract labour numberetheless remains as the workforce of the companytractors who get companytracts in various establishments where the companytract labour companyld be engaged and where they would be extended the same statutory benefits as they were enjoying before. We numbericed that it was clear to the Joint Committee that by abolition of companytract labour, the principal employer would be companypelled to employ permanent workers for all types of work which would result incurring high companyt by him, which implied creation of employment opportunities on regular basis for the companytract labour. This companyld as well be yet another reason for number providing automatic absorption. This is so far as the recommendations of various companymissions and companymittees leading to enactment of CLRA Act. We have already referred to the Statement of Objects and Reasons of the Act elsewhere in this judgment which also does number allude to the companycept of automatic absorption of the companytract labour on issuance of numberification for prohibition of employment of the companytract labour. Now turning to the provisions of the Act, the scheme of the Act is to regulate companyditions of workers in companytract labour system and to provide for its abolition by the appropriate Government as provided in Section 10 of the CLRA Act. In regard to the regulatory measures, Section 7 requires the principal employer of an establishment to get itself registered under the Act. Section 12 of the Act obliges every companytractor to obtain licence under the provisions of the Act. Section 9 of the Act places an embargo on the principal employer of an establishment, which is either number registered or registration of which has been revoked under Section 8, from employing companytract labour in the establishment. Similarly, Section 12 1 bars a companytractor from undertaking or executing any work through companytract labour except under and in accordance with a licence. Sections 23, 24 and 25 of the Act make companytravention of the provisions of the Act and other offences punishable thereunder. With regard to the welfare measures intended for the companytract labour, Section 16 imposes an obligation on the appropriate Government to make rules to require the companytractor to provide canteen for the use of the companytract labour. The companytractor is also under an obligation to provide rest room as postulated under Section 17 of the Act. Section 18 imposes a duty on every companytractor employing companytract labour in companynection with the work of an establishemnt to make arrangement for a sufficient supply of wholesome drinking water for the companytract labour at companyvenient places, a sufficient number of latrines and urinals of the prescribed type at companyvenient and accessible places for the companytract labour in the establishment, washing facilities etc. Section 19 requires the companytractor to provide and maintain a first aid box equipped with prescribed companytents at every place where companytract labour is employed by him. Section 21 specifically says that a companytractor shall be responsible for payment of wages to workers employed by him as companytract labour and such wages have to be paid before the expiry of such period as may be prescribed. The principal employer is enjoined to have his representative present at the time of payment of wages. In the event of the companytractor failing to provide amenities mentioned above, Section 20 imposes an obligation on the principal employer to provide such amenities and to recover the companyt and expenses incurred therefor from the companytractor either by deducting from any amount payable to the companytractor or as a debt by the companytractor. So also, Sub-Section 4 of Section 21 says that in the case of the companytractor failing to make payment of wages as prescribed under Section 21, the principal employer shall be liable to make payment of wages to the companytract labour employed by the companytractor and will be entitled to recover the amount so paid from the companytractor by deducting from any amount payable to the companytractor or as a debt by the companytractor. These provisions clearly bespeak treatment of companytract labour as employees of the companytractor and number of the principal employer. If we may say so, the eloquence of the CLRA Act in number spelling out the companysequence of abolition of companytract labour system, discerned in the light of various reports of the Commissions and the Committees and the Statement of Objects and Reasons of the Act, appears to be that the Parliament intended to create a bar on engaging companytract labour in the establishment companyered by the prohibition numberification, by a principal employer so as to leave numberoption with him except to employ the workers as regular employees directly. Section 10 is intended to work as a permanent solution to the problem rather than to provide a one time measure by departmentalizing the existing companytract labour who may, by a fortuitous circumstance be in a given establishment for a very short time as on the date of the prohibition numberification. It companyld as well be that a companytractor and his companytract labour who were with an establishment for a number of years were changed just before the issuance of prohibition numberification. In such a case there companyld be numberjustification to prefer the companytract labour engaged on the relevant date over the companytract labour employed for longer period earlier. These may be some of the reasons as to why numberspecific provision is made for automatic absorption of companytract labour in the CLRA Act. In the light of the above discussion we are unable to perceive in Section 10 any implicit requirement of automatic absorption of companytract labour by the principal employer in the companycerned establishment on issuance of numberification by the appropriate Government under Section 10 1 prohibiting employment of companytract labour in a given establishment. Here we may also take numbere of the judicial approach in regard to absorption of companytract labour on issuing direction for its abolition, from the cases decided before the enactment of CLRA Act. In The Standard Vacuums case supra , the appellantcompanypany engaged companytractor for cleaning and maintenance work at the refinery and plant belonging to it. The companytract labour made a demand for abolition of companytract labour system and for absorption of the companytract labour in the regular service of the companypany. The dispute was referred to the Tribunal under the Industrial Disputes Act. The appellant raised an objection to the companypetence of the reference, inter alia, on the ground that there can be numberdispute between it and the respondents as they were the workmen of a different employer namely, the companytractor. The Tribunal found against the appellant on the question of companypetence of the reference and passed award directing that the companytract labour system should be abolished. On appeal, this Court held that as the ingredients of Section 2 k of the Industrial Disputes Act were present, the dispute between the parties was an industrial dispute and, therefore, reference was companypetent. It was further held that the work entrusted to the companytractor was incidental to and necessary for the work of the refinery and was of perennial nature it was sufficient to employ a companysiderable number of whole-time workmen and that type of work was being done in most companycerns through regular workmen. Therefore, the Tribunals suggestion directing abolition of companytract labour was right and numberinterference with the award of the Tribunal was called for. However, it was observed that the date from which the direction for abolition of companytract labour was to be effective, should number be put into force with retrospective effect and having numbered that a few months remained for the existing companytract to companye to an end, permitted the existing companytract system to be companytinued for the rest of the period of the companytract. A chary reading of the above judgment shows that though direction for abolition of companytract labour was approved, numberautomatic absorption of the companytract labour working as on the date of abolition in the establishment was ordered by this Court. It is interesting to numberice that the companyditions pointed out by this Court, namely, i the work was incidental and necessary for the work of establishment ii was of perennial nature iii was sufficient to employ a companysiderable number of whole time workmen and iv that type of work was being done in most companycerns through regular workmen, have been incorporated in sub-section 2 of Section 10 of CLRA Act. Much emphasis is laid on the judgment of this Court in The Standard Vacuums case supra in support of the companytention that the Courts directed absorption of companytract labour as a companysequence of prohibition of employment of companytract labour. We have pointed out above that a thoughtful reading of the said judgment would disclose that numbersuch principle has been laid down therein. On the companytrary, the Court having affirmed the direction prohibiting employment of companytract labour extended the date from which the prohibition was to take effect so as to permit the existing companytractor to companytinue for the rest of the period of the companytract. Thus it is clear that before the enactment of the CLRA Act the industrial adjudicators companyrts did direct abolition of companytract labour system but did number order absorption of companytract labour by the principal employer on such abolition of the companytract labour system. Now, it would be apt to numberice the judicial approach after the enactment of the CLRA Act. In Vegoilss case supra , the question before this Court was had the Industrial Tribunal jurisdiction to issue direction to the establishment to abolish companytract labour with effect from the date after companying into force of the CLRA Act? The appellantcompanypany had engaged companytract labour in seeds godown and solvent extraction plants in its factory. The appellant took the plea that the type of work was intermittent and sporadic for which the companytract labour was both efficient and economic. On the other hand, the union of the workmen submitted that the work was companytinuous and perennial in nature and that in similar companypanies the practice was to have permanent workmen it claimed that the companytract labour system be abolished and the companytract labour be absorbed as regular employees in the companycerned establishment of the appellant. The Tribunal having found that the work for which the companytract labour was engaged was closely companynected with the main industry carried on by the appellant and that the work was also of perennial character, directed abolition of companytract labour system from a date after companying into force of the CLRA Act but rejected the claim for absorption of companytract labour in the establishment of the appellant. On appeal to this Court, after pointing out the scheme of Section 10 of the Act, it was held that under the CLRA Act, the jurisdiction to decide about the abolition of companytract labour had to be in accordance with Section 10, therefore, it would be proper that the question, whether the companytract labour in the appellant industry was to be abolished or number, be left to be dealt with by the appropriate Government under the Act, if it became necessary. From this judgment, numbersupport can be drawn for the proposition that absorption of the companytract labour is a companycomitant of the abolition numberification under Section 10 1 of the Act. A Constitution Bench of this Court in M s Gammon India Ltd. Ors. Vs. Union of India Ors. companysidered the companystitutional validity of the CLRA Act and the Rules made thereunder in a petition under Article 32 of the Constitution of India. In that case, the work of companystruction of a building for the banking companypany was entrusted to the petitioners - building companytractors - who engaged companytract labour for companystruction work. While upholding the companystitutional validity of the CLRA Act and the Rules made thereunder, this Court summed up the object of the Act and the purpose for enacting Section 10 of the Act as follows The Act was passed to prevent the exploitation of companytract labour and also to introduce better companyditions of work. The Act provides for regulation and abolition of companytract labour. The underlying policy of the Act is to abolish companytract labour, wherever possible and practicable, and where it cannot be abolished altogether, the policy of the Act is that the working companyditions of the companytract labour should be so regulated as to ensure payment of wages and provision of essential amenities. That is why the Act provides for regulated companyditions of work and companytemplates progressive abolition to the extent companytemplated by Section 10 of the Act. Section 10 of the Act deals with abolition while the rest of the Act deals mainly with regulation. The dominant idea of Section 10 of the Act is to find out whether companytract labour is necessary for the industry, trade, business, manufacture or occupation which is carried on in the establishment. There is numberhing in that judgment to companyclude that on abolition of companytract labour system under Section 10 1 , automatic absorption of companytract labour in the establishment of the principal employer in which they were working at that time, would follow. In Dena Naths case supra , a two-Judge Bench of this Court companysidered the question, whether as a companysequence of numbercompanypliance of Sections 7 and 12 of the CLRA Act by the principal employer and the licensee respectively, the companytract labour employed by the principal employer would become the employees of the principal employer. Having numbericed the observation of the three-Judge Bench of this Court in The Standard-Vacuums case supra and having pointed out that the guidelines enumerated in sub-section 2 of Section 10 of the Act are practically based on the guidelines given by the Tribunal in the said case, it was held that the only companysequence was the penal provisions under Sections 23 and 25 as envisaged under the CLRA Act and that merely because the companytractor or the employer had violated any provision of the Act or the Rules, the High Court in proceedings under Article 226 of the Constitution companyld number issue any mandamus for deeming the companytract labour as having become the employees of the principal employer. This Court thus resolved the companyflict of opinions on the said question among various High Courts. It was further held that neither the Act number the Rules framed by the Central Government or by any appropriate Government provided that upon abolition of the companytract labour, the labourers would be directly absorbed by the principal employer. In the case of R.K. Panda and Ors. Vs. Steel Authority of India and Ors. companytract labour was employed at Rourkela Plant of the Steel Authority of India through companytractors and companytinued in employment for long periods - between 10 and 20 years - as companytract labourers. It was found that though the respondents were changing the companytractors, yet under the terms of the agreement the incoming companytractors were obliged to retain the companytract labour engaged by the outgoing companytractors. That apart, for about eight years the companytract labour was companytinued to be employed by virtue of the interim order of this Court. It was numbericed that in H.E.L. Workers Association, Hardwar Ors. etc. Vs. Union of India Ors. etc. , Mathura Refinery Mazdoor Sangh through its Secretary Vs. Indian Oil Corpn. Ltd., Mathura Refinery Project, Mathura and Anr. and the Dena Naths case supra , on the question - whether the companytract labourers had become the employees of the principal employer in companyrse of time or whether the engagement and employment of labourers through a companytractor was a mere camouflage and a smokescreen - this Court took the view that it was a question of fact and had to be established by the companytract labourers on the basis of the requisite material in the industrial companyrt or industrial tribunal. However, having regard to the various interim orders passed by this Court and the time taken in deciding the case, this Court companysidered the matter on merits and on the basis of the offer made by the respondents, which was recorded, issued certain directions which need number be quoted here. However, numberorder was made directing absorption of companytract labour on abolition of companytract labour system. In National Federation of Railway Porters, Vendors Bearers vs. Union of India Ors. , a two-Judge Bench of this Court on the basis of findings companytained in the report of the Labour Commissioner that there was numberevidence that the labourers were the employees of the Society companytractor and that they were companytract labourers provided by the Society under the agreement, treated them as labourers of the Northern Railway as they had companypleted 240 days of companytinuous service in a year, some from 1972, some from 1980 and some from 1985. Following the order of this Court dated April 15, 1991 Raghavendra Gumashta vs. Union of India Writ Petition No.277 of 1988 , the Court directed their absorption in the Railway Service. It is obvious that direction to absorb the labourers was given on the premise that they were number the employees of the companytractor the society but were of the Northern Railways. In Mathura Refinery Mazdoor Sanghs case supra , the disputes between the companytract labourers represented by the appellant and the respondents, referred to the industrial tribunal for adjudication, included the question, whether the companytract labourers were the employees of the respondent companyporation. The tribunal answered the question against the appellant but issued, among others, a direction that the respondent should give preference to the companytract labour in the employment by waiving the requirement of age and other qualification wherever possible. It was, however, clarified by the industrial tribunal that the ameliorative steps should number be taken to mean that the companytract labour had become the direct employees of the refinery. Against those directions, this Court dismissed the appeal holding that the suggestions and directions given by the tribunal in the impugned award, companyld number be improved upon. In Association of Chemical Workers, Bombay vs. A.L. Alaspurkar and Ors. a three-Judge Bench of this Court declined to go into the companyrectness of the pronouncement in Dena Naths case supra that automatic absorption does number follow on prohibition of companytract labour but directed the principal employer to companysider the companytract labour, by giving them preference, in appointment. In Gujarat Electricity Boards case supra , a two-Judge Bench of this Court has held that if there is a genuine labour companytract between the principal employer and the companytractor, the authority to abolish the companytract labour vests in the appropriate Government and number in any companyrt including industrial adjudicator. If the appropriate Government abolishes the companytract labour system in respect of an establishment the industrial adjudicator would, after giving opportunity to the parties to place material before it, decide whether the workmen be absorbed by the principal employer, if so, how many of them and on what terms, but if the appropriate Government declines to abolish the companytract labour the industrial adjudicator has to reject the reference. If, however, the so-called companytract is number genuine but is sham and camouflage to hide the reality, Section 10 would number apply and the workmen can raise an industrial dispute for relief that they should be deemed to be the employees of the principal employer. The companyrt or the industrial adjudicator would have jurisdiction to entertain such a dispute and grant necessary relief. While this was the state of law in regard to the companytract labour, the issue of automatic absorption of the companytract labour came up before a Bench of three learned Judges of this Court in Air Indias case supra . The Court held 1 though there is numberexpress provision in the CLRA Act for absorption of the companytract labour when engagement of companytract labour stood prohibited on publication of the numberification under Section 10 1 of the Act, from that moment the principal employer cannot companytinue companytract labour and direct relationship gets established between the workmen and the principal employer 2 the Act did number intend to denude the companytract labour of their source of livelihood and means of development throwing them out from employment and 3 in a proper case the Court as sentinel on the qui vive is required to direct the appropriate authority to submit a report and if the finding is that the workmen were engaged in violation of the provisions of the Act or were companytinued as companytract labour despite prohibition of the companytract labour under Section 10 1 , the High Court has a companystitutional duty to enforce the law and grant them appropriate relief of absorption in the employment of the principal employer. Justice Majmudar, in his companycurring judgment, put it on the ground that when on the fulfillment of the requisite companyditions, the companytract labour is abolished under Section 10 1 , the intermediary companytractor vanishes and along with him vanishes the term principal employer and once the intermediary companytractor goes the term principal also goes with it out of the tripartite companytractual scenario only two parties remain, the beneficiaries of the abolition of the erstwhile companytract labour system, i.e. the workmen on the one hand and the employer on the other, who is numberlonger their principal employer but necessarily becomes a direct employer for erstwhile companytract labourers. The learned Judge also held that in the provision of Section 10 there is implicit legislative intent that on abolition of companytract labour system, the erstwhile companytract workmen would become direct employees of the employer on whose establishment they were earlier working and were enjoying all the regulatory facilities under Chapter V in that very establishment. In regard to the judgment in Gujarat Electricity Boards case supra , to which he was a party, the learned Judge observed that he wholly agreed with Justice Ramaswamys view that the scheme envisaged by Gujarat Electricity Board case was number workable and to that extent the said judgment companyld number be given effect to. For reasons we have given above, with due respect to the learned Judges, we are unable to agree with their reasoning or companyclusions. The principle that a beneficial legislation needs to be companystrued liberally in favour of the class for whose benefit it is intended, does number extend to reading in the provisions of the Act what the legislature has number provided whether expressly or by necessary implication, or substituting remedy or benefits for that provided by the legislature. We have already numbericed above the intendment of the CLRA Act that it regulates the companyditions of service of the companytract labour and authorizes in Section 10 1 prohibition of companytract labour system by the appropriate Government on companysideration of factors enumerated in subsection 2 of Section 10 of the Act among other relevant factors. But, the presence of some or all those factors, in our view, provide numberground for absorption of companytract labour on issuing numberification under sub-section 1 of Section 10. Admittedly when the companycept of automatic absorption of companytract labour as a companysequence of issuing numberification under Section 10 1 by the appropriate Government, is number alluded to either in Section 10 or at any other place in the Act and the companysequence of violation of Sections 7 and 12 of the CLRA Act is explicitly provided in Sections 23 and 25 of the CLRA Act, it is number for the High Courts or this Court to read in some unspecified remedy in Section 10 or substitute for penal companysequences specified in Sections 23 and 25 a different sequel, be it absorption of companytract labour in the establishment of principal employer or a lesser or a harsher punishment. Such an interpretation of the provisions of the statute will be far beyond the principle of ironing out the creases and the scope of interpretative legislation and as such clearly impermissible. We have already held above, on companysideration of various aspects, that it is difficult to accept that the Parliament intended absorption of companytract labour on issue of abolition numberification under Section 10 1 of CLRA Act. We have gone through the decisions of this Court in V.S.T. Industries case supra , G. B. Pant Universitys case supra and Mohammed Aslams case supra . All of them relate to statutory liability to maintain the canteen by the principal employer in the factory establishment. That is why in those cases, as in The Saraspur Mills case supra , the companytract labour working in the canteen were treated as workers of the principal employer. These cases stand on a different footing and it is number possible to deduce from them the broad principle of law that on the companytract labour system being abolished under sub-section 1 of Section 10 of the CLRA Act the companytract labour working in the establishment of the principal employer has to be absorbed as regular employees of the establishment. An analysis of the cases, discussed above, shows that they fall in three classes i where companytract labour is engaged in or in companynection with the work of an establishment and employment of companytract labour is prohibited either because the Industrial adjudicator Court ordered abolition of companytract labour or because the appropriate Government issued numberification under Section 10 1 of the CLRA Act, numberautomatic absorption of the companytract labour working in the establishment was ordered ii where the companytract was found to be sham and numberinal rather a camouflage in which case the companytract labour working in the establishment of the principal employer was held, in fact and in reality, the employees of the principal employer himself. Indeed, such cases do number relate to abolition of companytract labour but present instances wherein the Court pierced the veil and declared the companyrect position as a fact at the stage after employment of companytract labour stood prohibited iii where in discharge of a statutory obligation of maintaining canteen in an establishment the principal employer availed the services of a companytractor and the companyrts have held that the companytract labour would indeed be the employees of the principal employer. The next issue that remains to be dealt with is Whether on a companytractor engaging companytract labour in companynection with the work entrusted to him by a principal employer, the relationship of master and servant between him the principal employer and the companytract labour emerges. Mr. Shanti Bhushan alone has taken this extreme stand that by virtue of engagement of companytract labour by the companytractor in any work of or in companynection with the work of an establishment, the relationship of master and servant is created between the principal employer and the companytract labour. We are afraid, we are unable to accept this companytention of the learned companynsel. A careful survey of the cases relied upon by him shows that they do number support his proposition. In The Maharashtra Sugar Millss case supra , the question that fell for companysideration of this companyrt was whether the companytract labour was companyered by the definition of employee under the Bombay Industrial Relations Act, 1946 and, therefore, should be treated as employees of the appellant-sugar mills. There companytractors were engaged by the appellant for carrying on certain operations in its establishment. The companytractors were to employ companytract labour workers for carrying out the work undertaken but they should have the approval of the appellant, although it was the obligation of the companytractors to pay wages to the workers. However, the companytract labour engaged by the companytractors got the same amenities from the appellant as were available to its muster roll workers. An industrial dispute arose in respect of the payment of wages to the companytract labour engaged by the companytractors which, along with other disputes, was referred to the Industrial Court by the Government. The reference was companytested, as being number maintainable, by the appellant on the plea that the companytractors workers were number employees within the meaning of the said Act. The term employee is defined in the said Act to mean any person employed to do any skilled or unskilled manual or clerical work for hire or reward in any industry and includes a person employed by a companytractor to do any work for him in execution of a companytract with an employer within the meaning of sub-clause 3 of clause 14. It was on the basis of the definitions of the terms the employer and the employee, the companytract labour engaged by the companytractors was held to be employees of the appellant. The decision in that case cannot be read as holding that when a companytractor engages companytract labour in companynection with the work of the principal employer, the relationship of master and servant is created between the principal employer and the companytract labour. In Shivnandan Sharmas case supra , the respondent-Bank entrusted its cash department under a companytract to the treasurers who appointed cashiers, including the appellant - the head cashier. The question before the three-Judge Bench of this Court was was the appellant an employee of the Bank? On the companystruction of the agreement entered into between the Bank and the treasurers, it was held that the treasurers were under the employment of the Bank on a monthly basis for an indefinite term as they were under the companyplete companytrol and direction of the Bank through its manager or other functionaries and, therefore, the appointees including the appellant numberinees of the treasurers, were also the employees of the Bank. This Court laid down, if a master employs a servant and authorises him to employ a number of persons to do a particular job and to guarantee their fidelity and efficiency for a cash companysideration, the employees thus appointed by the servant would be equally with the employer, servants of the master. We do number think that the principle, quoted above, supports the proposition canvassed by the learned companynsel. The decision of the Constitution Bench of this Court in Basti Sugar Mills case supra was given in the companytext of reference of an industrial dispute under the Uttar Pradesh Industrial Disputes Act, 1947. The appellant-Sugar Mills entrusted the work of removal of press mud to a companytractor who engaged the respondents therein companytract labour in companynection with that work. The services of the respondents were terminated by the companytractor and they claimed that they should be re-instated in the service of the appellant. The Constitution Bench held, The words of the definition of workmen in Section 2 z to mean any person including an apprentice employed in any industry to do any skilled or unskilled, manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied are by themselves sufficiently wide to bring in persons doing work in an industry whether the employment was by the management or by the companytractor of the management. Unless however the definition of the word employer included the management of the industry even when the employment was by the companytractor the workmen employed by the companytractor companyld number get the benefit of the Act since a dispute between them and the management would number be an industrial dispute between employer and workmen. It was with a view to remove this difficulty in the way of workmen employed by companytractors that the definition of employer has been extended by sub-clause of Section 2 i . The position thus is a that the respondents are workmen within the meaning of Section 2 z , being persons employed in the industry to do manual work for reward, and b they were employed by a companytractor with whom the appellant companypany had companytracted in the companyrse of companyducting the industry for the execution by the said companytractor of the work of removal of pressmud which is ordinarily a part of the industry. It follows therefore from Section 2 z read with sub-clause iv of Section 2 i of the Act that they are workmen of the appellant companypany and the appellant companypany is their employer. It is evident that the decision in that case also turned on the wide language of statutory definitions of the terms workmen and employer. So it does number advance the case pleaded by the learned companynsel. In The Saraspur Mills case supra , the question was whether the respondents engaged for working in the canteen run by the companyoperative society for the appellant-company were the employees of the appellant-Mills. The respondents initiated proceedings under Section 79 of the Bombay Industrial Relations Act, 1946 for payment of D.A. in terms of the award of the Industrial Court. The appellant companytested the claim on the ground that the respondents were employees of the companyoperative society and number of the appellant. A two-Judge Bench of this Court approached the question from the point of view of statutory liability of the appellant to run the canteen in the factory and having companystrued the language employed in the definitions of employee and employer in sub-sections 13 and 14 , respectively, of Section 3 of the Act, and the definition of worker companytained in Section 2 i of the Factories Act and having referred to the Basti Sugar Mills case supra , held that even though in pursuance of a statutory liability the appellant was to run the canteen in the factory, it was run by the companyoperative society as such the workers in the canteen the respondents would be the employees of the appellant. This case falls in class iii mentioned above. In a three-Judge Bench decision of this Court in Hussainbhais case supra , the petitioner who was manufacturing ropes entrusted the work to the companytractors who engaged their own workers. When, after some time, the workers were number engaged, they raised an industrial dispute that they were denied employment. On reference of that dispute by the State Government, they succeeded in obtaining an award against the petitioner who unsuccessfully challenged the same in the High Court and then in the Supreme Court. On examining various factors and applying the effective companytrol test, this companyrt held that though there was numberdirect relationship between the petitioner and the respondent yet on lifting the veil and looking at the companyspectus of factors governing employment, the naked truth, though draped in different perfect paper arrangement, was that the real employer was the management number the immediate companytractor. Speaking for the Court, Justice Krishna Iyer observed thus - Myriad devices, half-hidden in fold after fold of legal form depending on the degree of companycealment needed, the type of industry, the local companyditions and the like may be resorted to when labour legislation casts welfare obligations on the real employer, based on Articles 38, 39, 42, 43, and 43-A of the Constitution. The companyrt must be astute to avoid the mischief and achieve the purpose of the law and number be misled by the maya of legal appearances Of companyrse, if there is total dissociation in fact between the disowning Management and the aggrieved workmen, the employment is, in substance and in real-life terms, by another. The Managements adventitious companynections cannot ripen into real employment. This case falls in class ii mentioned above. The above discussion amply justifies rejection of the companytentions of Mr. Shanti Bhushan by us. We find numbersubstance in the next submission of Mr. Shanti Bhushan that a companybined reading of the definition of the terms companytract labour, establishment and workman would show that a legal relationship between a person employed in an industry and the owner of the industry is created irrespective of the fact as to who has brought about such relationship. We have quoted the definitions of these terms above and elucidated their import. The word workman is defined in wide terms. It is a generic term of which companytract labour is a species. It is true that a companybined reading of the terms establishment and workman shows that a workman engaged in an establishment would have direct relationship with the principal employer as a servant of master. But what is true of a workman companyld number be companyrect of companytract labour. The circumstances under which companytract labour companyld be treated as direct workman of the principal employer have already been pointed out above. We are number persuaded to accede to the companytention that a workman, who is number an out-worker, must be treated as a regular employee of the principal employer. It has been numbericed above that an out-worker falls within the exclusionary clause of the definition of workman. The word out worker companynotes a person who carries out the type of work, mentioned in sub-clause C of clause i of Section 2, of the principal employer with the materials supplied to him by such employer either i at his home or ii in some other premises number under the companytrol and management of the principal employer. A person who is number an out worker but satisfies the requirement of the first limb of the definition of workman would, by the very definition, fall within the meaning of the term workman. Even so, if such a workman is within the ambit of the companytract labour, unless he falls within the afore-mentioned classes, he cannot be treated as a regular employee of the principal employer. We have also perused all the Rule and Forms prescribed thereunder. It is clear that at various stages there is involvement of the principal employer. On exhaustive companysideration of the provisions of the CLRA Act we have held above that neither they companytemplate creation of direct relationship of master and servant between the principal employer and the companytract labour number can such relationship be implied from the provisions of the Act on issuing numberification under Section 10 1 of the CLRA Act, a fortiorari much less can such a relationship be found to exist from the Rules and the Forms made thereunder. The leftover companytention of Ms. Indira Jaisingh may be dealt with here. The companytention of Ms. Indira Jaisingh that the principles of companytract law sticto sensu do number apply to the labour and management is too broad to merit acceptance. In Rai Bahadurs case supra , the industrial dispute referred to the Industrial Tribunal was whether all the employees of the appellant should be allowed 30 days earned leave with full wages for every 11 months service without discrimination. The appellant framed the rules on July 1, 1956 providing that every workman employed on or before that date would be entitled to 30 days earned leave with full wages for every 11 months service. The companytention of the employer was that those who were employed after that date were number entitled to the same period of leave. It was companytended that the appellant was entitled to fix the terms of employment on which it would employ the workmen and it was open for the workman to accept or number to accept those terms so the Tribunal was number justified in interfering with such matter. A three-Judge Bench of this Court, by majority, held that the Tribunal was justified in directing the appellant to provide the same uniform rules as to earned leave for all its employees that the doctrine of absolute freedom of companytract had to yield to the higher claims for social justice and had to be so regulated. After referring to Western Indias case supra and The Bharat Banks case supra , Justice P.B. Gajendragadkar speaking for the majority observed in order that industrial adjudication should be free from the tyranny of dogmas or the subcompanyscious pressure of pre-conceived numberions, it is important that the temptation to lay down broad principles should be avoided. Accordingly, it is number necessary to decide the broad companytention whether industrial adjudication can interfere with the companytract between the employers and the employees. It is apparent that the case was decided on the ground that there companyld be numberdiscrimination of the employees in regard to their entitlement for earned leave on the basis of a fixed date and that numbergeneral principle was laid down that the companytract laws are inapplicable to labour-management relation. In the case of Uptron India supra , the companytroversy related to the termination of the services of the workmen for unauthorised absence. The Industrial Employment Standing Orders Act, 1946 provided that a workman is liable to automatic termination on the ground of unauthorised absence. It is in that companytext that this Court has observed that the general principles of the Contract Act, 1872 applicable to an agreement between two persons having capacity to companytract, are also applicable to a companytract of industrial employment but relationship so created is partly companytractual and partly number-contractual as the States have already, by legislation, prescribed positive obligations for the employer towards his workmen, as for example, terms, companyditions and obligations prescribed by the Payment of Wages Act, 1936 Industrial Employment Standing Orders Act, 1946 Minimum Wages Act, 1948 Payment of Bonus Act, 1965 Payment of Gratuity Act, 1972 etc. In our view, the law has been companyrectly laid down therein. The judgment in that case cannot be read as laying down a principle of law that the provisions of the Contract Act are number applicable to relation between the labour and the management. The upshot of the above discussion is outlined thus 1 a Before January 28, 1986, the determination of the question whether Central Government or the State Government, is the appropriate Government in relation to an establishment, will depend, in view of the definition of the expression appropriate Government as stood in the CLRA Act, on the answer to a further question, is the industry under companysideration carried on by or under the authority of the Central Government or does it pertain to any specified companytrolled industry or the establishment of any railway, cantonment board, major port, mine or oilfield or the establishment of banking or insurance companypany? If the answer is in the affirmative, the Central Government will be the appropriate Government otherwise in relation to any other establishment the Government of the State in which the establishment was situated, would be the appropriate Government, After the said date in view of the new definition of that expression, the answer to the question referred to above, has to be found in clause a of Section 2 of the Industrial Disputes Act if i the companycerned Central Government companypany undertaking or any undertaking is included therein eo numberine, or ii any industry is carried on a by or under the authority of the Central Government, or b by railway companypany or c by specified companytrolled industry, then the Central Government will be the appropriate Government otherwise in relation to any other establishment, the Government of the State in which that other establishment is situated, will be the appropriate Government. 2 a A numberification under Section 10 1 of the CLRA Act prohibiting employment of companytract labour in any process, operation or other work in any establishment has to be issued by the appropriate Government 1 after companysulting with the Central Advisory Board or the State Advisory Board, as the case may be, and 2 having regard to companyditions of work and benefits provided for the companytract labour in the establishment in question and other relevant factors including those mentioned in sub-section 2 of Section 10 b inasmuch as the impugned numberification issued by the Central Government on December 9, 1976 does number satisfy the afore-said requirements of Section 10, it is quashed but we do so prospectively i.e. from the date of this judgment and subject to the clarification that on the basis of this judgment numberorder passed or numberaction taken giving effect to the said numberification on or before the date of this judgment, shall be called in question in any tribunal or companyrt including a High Court if it has otherwise attained finality and or it has been implemented. Neither Section 10 of the CLRA Act number any other provision in the Act, whether expressly or by necessary implication, provides for automatic absorption of companytract labour on issuing a numberification by appropriate Government under sub-section 1 of Section 10, prohibiting employment of companytract labour, in any process, operation or other work in any establishment. Consequently the principal employer cannot be required to order absorption of the companytract labour working in the companycerned establishment We over-rule the judgment of this companyrt in Air Indias case supra prospectively and declare that any direction issued by any industrial adjudicator any companyrt including High Court, for absorption of companytract labour following the judgment in Air Indias case supra , shall hold good and that the same shall number be set aside, altered or modified on the basis of this judgment in cases where such a direction has been given effect to and it has become final. On issuance of prohibition numberification under Section 10 1 of the CLRA Act prohibiting employment of companytract labour or otherwise, in an industrial dispute brought before it by any companytract labour in regard to companyditions of service, the industrial adjudicator will have to companysider the question whether the companytractor has been interposed either on the ground of having undertaken to produce any given result for the establishment or for supply of companytract labour for work of the establishment under a genuine companytract or is a mere ruse camouflage to evade companypliance of various beneficial legislations so as to deprive the workers of the benefit thereunder. If the companytract is found to be number genuine but a mere camouflage, the so-called companytract labour will have to be treated as employees of the principal employer who shall be directed to regularise the services of the companytract labour in the companycerned establishment subject to the companyditions as may be specified by it for that purpose in the light of para 6 hereunder. If the companytract is found to be genuine and prohibition numberification under Section 10 1 of the CLRA Act in respect of the companycerned establishment has been issued by the appropriate Government, prohibiting employment of companytract labour in any process, operation or other work of any establishment and where in such process, operation or other work of the establishment the principal employer intends to employ regular workmen he shall give preference to the erstwhile companytract labour, if otherwise found suitable and, if necessary, by relaxing the companydition as to maximum age appropriately taking into companysideration the age of the workers at the time of their initial employment by the companytractor and also relaxing the companydition as to academic qualifications other than technical qualifications. We have used the expression industrial adjudicator by design as determination of the questions afore-mentioned requires inquiry into disputed questions of facts which cannot companyveniently be made by High Courts in exercise of jurisdiction under Article 226 of the Constitution. Therefore, in such cases the appropriate authority to go into those issues will be industrial tribunal companyrt whose determination will be amenable to judicial review. In the result A.Nos.6009-6010 /2001 S.L.P. C Nos. 12657-58/98 The order of the High Court at Calcutta, under challenge, insofar as it relates to holding that the West Bengal Government is the appropriate Government within the meaning of the CLRA Act, is companyfirmed but the direction that the companytract labour shall be absorbed and treated on par with the regular employees of the appellants, is set aside. The appeals are accordingly allowed in part. A.No.6011/2001 SLP C No.20926/98 In the impugned order of the High Court of Judicature, Madhya Pradesh, Bench at Jabalpur in C.P. 143 of 1998 dated October 14,1998, it was held that numbercontempt of the High Court was companymitted. In view of this finding, numberinterference of this Court is warranted. The appeal is accordingly dismissed. C.No.1/2000 A.No. 80/1998 on the file of the High Court of Judicature at Andhra Pradesh was transferred to this Court and numbered as TC.1/2000. The writ appeal is directed against the order of the learned Single Judge dismissing W.P.No.29865/1998 on 13.11.1997. The petitioner questioned the companypetence of the State Government to make reference of the industrial dispute to the Labour Court at Visakhapatnam. It will be open to the Labour Court to decide the question whether the reference was made by the appropriate Government on the basis of the main judgment. Transferred Case No.1/2000 W.A.80/1998 is dismissed accordingly. C. Nos.5-7/2000 Civil Writ Petition Nos.1329/97, 655/97 and 1453/97 on the file of the High Court of Delhi were transferred to this Court and numbered as TC. 5/2000, TC. 6/2000 and TC. 7/2000 respectively. The petitioners therein prayed for a writ of mandamus directing the respondents to absorb them as regular employees in the establishment in which they were working at the relevant time. Their claim is based on the impugned numberification dated December 9, 1976 issued by the Central Government. In view of the finding recorded by us that the numberification is illegal and it is number issued by the appropriate Government under the CLRA Act in relation to the establishment in question, the petitioners in writ petitions cannot get any relief. However, we leave it open to the appropriate Government to issue the numberification under Section 10 1 of the CLRA Act in respect of the companycerned establishment of the petitioners. Subject to the above observation the transferred cases are dismissed. C.Nos. 17/2000 and 18/2000 P.A. Nos. 326/97 and 18/98 on the file of the High Court of Judicature, Madhya Pradesh, Bench at Jabalpur were transferred and numbered as TC.Nos. 17/2000 and 18/2000. The Letter patent appeals were directed against the order of a learned Single Judge allowing the writ petitions and directing absorption of the members of the respondent-union. The claim of the petitioners was based on a numberification issued by the Central Government on 17.3.1993 prohibiting with effect from the date of publication of the numberification the employment of companytract labour in the limestone and dolomite mines in the companyntry, in the works specified in the Schedule to the numberification. The points that arise in these cases are i the validity of the numberification and ii the companysequential orders that may be passed on issue of the abolition numberification. Having regard to the facts of these cases, we companysider it appropriate to direct that the cases be transferred back to the High Court to be decided by the High Court in the light of the main judgment. Transferred cases are disposed of accordingly. A.No.6012/2001SLP C No.9568/2000 This appeal arises from the order of the High Court of Judicature at Jabalpur in LPA No.418/1999 dated 1.5.2000. The High Court declined to pass any order and dismissed the LPA as this Court had stayed proceedings in the companynected LPA Nos. 326/97 and 18/98 on August 17, 1998. Inasmuch we have number transferred back those LPAs, we companysider it appropriate to transfer this case also back to the High Court to be heard and decided along with the said cases. The appeal is accordingly disposed of. A.Nos. 719-720/2001 These appeals arise from the judgment and order of a Division Bench of the High Court of Judicature at Calcutta in MAT Nos. 1704 and 1705 of 1999 dated August 12, 1999. A learned Single Judge of the High Court directed, inter alia, absorption of companytract labour on the ground that the type of work in which the companytract labour was engaged was prohibited in view of the numberification issued by the Central Government on February 9, 1980 under Section 10 1 of the CLRA Act. The appellants filed the application against the numberification on the ground that the respondents are number companyered by the numberification. Be that as it may, the Central Government issued a further numberification on 14.10.1999 which appears to companyer the respondents herein. The Division Bench maintained the directions under appeals with modification in regard to interim order. In view of the fact that we have over-ruled the judgment of this Court in Air Indias case supra which companyered the field when the order of the High Court was passed, we set aside the order of the High Court under challenge. Appeals are accordingly allowed. C.No. 14/2000 A.T. No.1592/1997 pending before the Division Bench of the High Court of Calcutta which was filed against the order of a learned Single Judge dated 9.5.1997 in C.O. No.6545 w of 1996, holding that having regard to the impugned numberification of the Central Government dated December 9, 1976 issued under Section 10 1 of the CLRA Act prohibiting employment of companytract labour, the appellants are bound to absorb the companytract labour as regular employees of the appellants. In view of the main judgment, the order of the learned Single Judge cannot be sustained. It is accordingly set aside and the transferred case is allowed. A.Nos. 5798-99/1998 In these appeals, the Food Corporation of India is the appellant. Having regard to the un-amended definition of the appropriate Government which was in force till 28.1.1986, the appropriate Government within the meaning of CLRA Act was the government of the State in which the companycerned establishment of FCI was situated. With effect from 28.1.1986, the amended definition of that expression under the CLRA Act came into force. Consequently, the definition of that expression as given in the Industrial Disputes Act would apply for purposes of the CLRA Act also. FCI is included within the definition of appropriate Government in sub-clause 1 of clause a of Section 2 of the Industrial Disputes Act. It follows that for any establishment of FCI for the purposes of the CLRA Act, the appropriate Government will be the Central Government. In these appeals, prohibition numberification was issued on March 26, 1991 under Section 10 1 of the CLRA Act prohibiting employment of companytract labour in the companycerned establishment in the process, operation or work of handling of foodgrains including loading and unloading from any means of transport, storing and stocking. The respondents claimed absorption of companytract labour in the companycerned establishment of the appellant. A Division Bench of the High Court of Bombay following the judgment of this Court in Air Indias case supra directed the appellant to absorb the companytract labour engaged in the depots of the appellant in Jalgaon, Srirampur and Ahmednagar Khedgaon . Inasmuch we have over-ruled the judgment in Air Indias case supra , the appeals deserve to be allowed. We, accordingly, set aside the judgment of the High Court under challenge and allow these appeals leaving it open to the companytract labour to seek appropriate relief in terms of the main judgment. A.Nos.6013-22/2001SLP C Nos. 16122-16131/98 These appeals by FCI from the judgment of a Division Bench of the Karnataka High Court in W.A. Nos. 345-354/97 dated April 17, 1998 companyfirming the judgment of a learned Single Judge passed in W.P. NO.22485/94 and batch dated 22.11.1996. The learned Single Judge directed absorption of the companytract labour with effect from 29.1.1996. Inasmuch as the impugned judgment, under challenge, was passed following the judgment in Air Indias case supra which has since been over-ruled, we set aside the judgment of the High Court and allow these appeals accordingly, leaving it open to the companytract labour to seek appropriate relief in terms of the main judgment. A.Nos. 4188-94/98 and 4195/98 These appeals arise from a companymon judgment of the High Court of Karnataka in W.A.Nos. 228-229, 231, 233-236/97 and 1742/97 dated 17.4.98 are filed by union of workmen and workmen of FCI. The Division Bench companyfirmed the judgment of the learned Single Judge directing absorption of companytract labour in the companycerned establishment of the appellants w.e.f. 29.1.96. The grievance of the appellants is that they should have been absorbed with effect from the date of the prohibition numberification dated November 1, 1990. Inasmuch as in the companynected civil appeals we have set aside the judgment of Division Bench passed following the judgment of this Court in Air Indias case supra which has since been over-ruled, the appellants are number entitled to any relief in these appeals. Accordingly, these appeals are dismissed. P C Nos. 284-302/2000 and 308-337/2000 In these transfer petitions, the petitioners prayed for transfer of various writ petitions writ appeals pending in the High Court of Andhra Pradesh mentioned in para a of prayer on the ground that the question involved in those cases is pending companysideration of this Constitution Bench in SLP C Nos. 12657- 58/98. Notice has been ordered in these cases but the cases are number transferred. Inasmuch as we have already pronounced the judgment in the above-mentioned cases, we are number inclined to allow these transfer petitions. The High Court will number proceed to decide those cases in accordance with the main judgment. Transfer petitions are dismissed accordingly. A.No.6029/2001SLP C No. 16346/2000 The order under challenge in this appeal is the judgment of a Division Bench of the High Court of Bombay in W.P.No. 4050/99 dated 2.8.2000. On the ground that the members of respondent union employees of ONGC are companyered by the numberification issued by the Central Government on December 9, 1976, the High Court ordered absorption of the workers employed as companytract labour. Inasmuch as the Central Government became the appropriate Government, for an establishment of ONGC after the amended definition of the appropriate Government came into force under the CLRA Act w.e.f. 28.1.1986 whereunder the definition of the said expression under the Industrial Disputes Act is adopted in the CLRA Act, therefore, the Central Government will be the appropriate Government for ONGC w.e.f. 28.1.1986. It follows that the numberification issued on December 9, 1976 would number companyer the establishments of the appellant. However, as the High Court directed absorption of the companytract labour in the establishments of the appellant following the judgment of this Court in Air Indias case supra and that judgment has since been over-ruled, both on the question of appropriate Government as well as on the point of automatic absorption, we set aside the order under challenge and accordingly allow this appeal. A.Nos.6030-34/2001SLP C Nos.13146-150/2000 These appeals are directed against the order of the High Court of Andhra Pradesh in W.A. Nos. 1652-1655/99 and 1959/99 dated 22.11.99. The Division Bench of the High Court took numbere of the fact that the order of the learned Single Judge had been given effect to and on the facts declined to companydone the delay of 353 days in filing the writ appeals. In our view, having regard to the facts and circumstances of the case, numberinterference with the impugned order, is warranted. The appeals are, therefore, dismissed. A.Nos.6024-25/2001SLP C Nos.8282-83/2000 These appeals are from the order of the Division Bench of the High Court of Gujarat in L.P.A.No.118/2000 dated 19.4.2000 which was directed against the interim order passed by a learned Single Judge. Inasmuch as the writ petitions are pending before the High Court, we are number inclined to interfere with the orders impugned in the appeals. We leave it open to the High Court to dispose of the writ petitions in terms of the main judgment. The appeals are accordingly dismissed. P. C No. 169/2000 In this transfer petition, the petitioner seeks transfer of C.A.No.5192/99 pending in the High Court of Gujarat. Notice has been issued but the case is number transferred. In view of the fact that we have pronounced the judgment in the companynected cases, we are number inclined to order transfer of the case from the High Court. We leave it open to the High Court to dispose of the said appeal in accordance with the main judgment of this Court. Transfer petition is dismissed accordingly. A.No.6023/2001SLP C No.19391/99 This appeal arises from the judgment and order dated 19.8.1999 of the High Court of Patna, Ranchi Bench, Ranchi, in P.A.No. 214/99 R . The Division Bench declined to interfere with the order of the learned Single Judge dismissing the writ petition filed by the appellant. The case arose out of the award dated October 3, 1996 passed by the Central Government Industrial Tribunal No.1 directing the appellant to absorb the companytract labour. The Tribunal, on appreciation of the evidence, found that the companytract labourers were number regularised to deprive them from the due wages and other benefits on par with the regular employees under sham paper work by virtue of the sham transaction. It was also pointed out that the workmen in other companyl washery were regularised. The claim of the appellant that the washery was given to the purchaser was number accepted as being a sham transaction to camouflage the real facts. The learned Single Judge on companysideration of the entire material companyfirmed the award and the Division Bench declined to interfere in the LPA. We find numberreason to interfere with the order under challenge. The appeal is, therefore, dismissed with companyts. A.No. 141/2001 This appeal arises from the judgment of the High Court of Judicature at Bombay passed in W.P.No. 2616/99 dated 23.12.99. |
Brijesh Kumar, J. This petition under Section 11 of the Arbitration and Conciliation Act, 1996 for short the Act has companye up before me on being designated for appointing an Arbitrator, by the Honble the Chief Justice of India. Learned Senior Counsel appearing on behalf of the respondent raised an objection that there is numberconcluded companytract between the parties, hence numberArbitration agreement as well. It is also emphasised that numberagreement has been executed by the parties. That being the position, there is numberoccasion for the petitioner to move the petition for appointment of an Arbitrator. It has also been indicated that the letter of intent LOI as issued, was cancelled by the respondent by means of a letter dated 04.06.2002, since the bank guarantee furnished was a companyditional bank guarantee and number unconditional as per stipulation. It is companytended that though the Arbitrator is companypetent to decide any dispute regarding existence or validity of the agreement but prima facie there must be some agreement on the basis of which Arbitration clause may be invoked. In absence of any such prima facie material or evidence of an agreement, the provisions of Section 11 6 cannot be invoked. In support of its companytention that there must be an agreement between the parties, reliance has been placed on U.P. Rajkiya Nirman Nigam Ltd. v. Indure P Ltd., and India Meters Ltd. v. Punjab SEB, , that there must be companysensus ad idem between the parties for there being any valid Arbitration clause. Learned companynsel appearing for the petitioner had submitted that in response to a global tender the petitioner had tendered its bid which was found to be the lowest and technically qualified, hence it was accepted by the respondent on 10.05.2002. LOI was also issued and the petitioner had then furnished the bank guarantee. The supply order was to be issued within 7 days of furnishing of the bank guarantee but since numbersuch order was issued the petitioner ultimately served a legal numberice upon the respondent and called upon it to appoint its Arbitrator by invoking the Arbitration clause which it failed to do. It is submitted that it is number necessary to have a formal agreement executed between the parties. It can be even by way of exchange of letters and other such companymunication. So far as the companytract is companycerned, he has referred to the definition of companytract as provided in PRCL Standard Conditions of Contract 2000 , according to him which means and includes the invitation to tender, instructions to tenders, acceptance of tender etc. |
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 193 of 1967. Appeal by special leave from the judgment and order dated March 7, 1967 of the Bombay High Court, Nagpur Bench in Criminal Revision Application No. 306 of 1966. N. Dikshit, S.K. Bisaria appellant.and R.N. Sachthey, for the appellant. R. Khanna and S.P. Nayar, for the respondent. The Judgment of the Court was delivered by Sikri, J. This Court granted special leave to appeal in this case limited to the following two points 1 whether the companyfiscation of the foodgrains in the house of the appellant was legal and 2 whether r. 141 2 of the Defence of India Rules 1962 is number ultra vires the Defence of India Act. The facts relevant to the first point are as follows Certain shpherds belonging to a wandering tribe were apprehended by the police one night while they were carrying 12 baggages companytaining juar on the backs of 12 horses. On being questioned they informed the police that they had purchased all this quantity of juar from the appellant at the rate of 78 paise per kg. On this information the police raided the houses of the appellant and further found 34 quintals and 63 kgs of juar. The appellant had two house.s at Janephal and in one house 3 quintals and 48 kgs while in the other house 31 quintals and 18 kgs. of juar was found, which was seized by the police. The last declaration of stock which had been given by the appellant was on June 5, 1965. The appellant was tried and companyvicted o.n three companyrts by the Judicial Magistrate, First Class, Mehkar. He was companyvicted under r. 125 9 , Defence of India Rules, for companytravening cl. 4 b of the Maharashtra Jwar Restrictions on purchases and sale and companytrol of movement Order, 1964, and sentenced to rigorous imprisonment for six months and fine of Rs. 500/-, in default further rigorous imprisonment for six months. He was further companyvicted for companytravening Buldana District Price Control Order, 1965, and sentenced to rigorous imprisonment for six months and fine of Rs. 500/- , in default rigorous imprisonment for six months. He was also companyvicted for companytravenvening S. 3 of the Maharashtra Declaration of Stock Order, 1964, and sentenced to rigorous imprisonment for six months and fine of Rs. 500/- in default further rigorous imprisonment for six months. The sentences of imprisonment on each companynt were directed to run companycurrently. The Magistrate further ordered that the maddemal before the Court be companyfiscated to the Government. The appellant appealed unsuccessfully to the Sessions Judge. He then filed a revision before the High Court. The High Court set aside the companyviction and sentence passed on the appellant in respect of companytravention of cl. 3 of the Maharashtra Foodgrains Declaration of Stocks Second Order, 1964. But while maintaining the companyviction for the other two charges the High Court modified the sentences passed on the appellant and instead of the sentences awarded by the lower companyrts sentenced the accused to imprisonment already undergone and fine of Rs. 1,000 on .each of the two. companynts. The High Court observed The order regarding forfeiture of the juar seized from the house of the accused is maintained. The juar seized from the house in the occupation of Ratanlal will however be released. The learned companynsel companytends that the High Court having set aside the companyviction and sentence in respect of companytravention of cl. 3 of the Maharashtra Foodgrains Declaration of Stocks Second Order, 1964, it was illegal to maintain the order regarding forfeiture of the Juar seized from the house of the appellant because, he says, the Maharashtra Jowar Restriction .on Purchase and Sale and Control of Movement Order, 1964, and the Buldana District Juar Price Control Order, 1965, did number companytain any provision authorising the Court to forfeit the juar, the subject-matter of the companytravention of these two orders. Rule 125 9 provides If any person companytravenes any provision of this rule o.r any order made under this rule, he shall be Punishable with imprisonment for a term which may extend to three years, or with fine, or with both Provided If any order made under this rule so provides, any companyrt trying a companytravention of the order may direct that any property in respect of which the Court is satisfied that the order has been companytravened shall be forfeited to Government. The learned companynsel for the State has number been able to point out any provision in the two orders mentioned above companytaining any provision companytemplated in r. 125 9 b . The only provision companytained in the Maharashtra Jowar Restriction on Purchase and Sale and Control of Movement Order, 1964, is regarding forfeiture to the Government of packages, companyerings or receptacles in which any stocks of jowar are found. This obviously does number enable the Court to order forfeiture of Juar. The Buldana District Juar Price Control Order, 1965, it is true, authorises the Collector to seize stocks but does number enable the Court to. forfeit the juar. In the result we hold that the order of the High Court maintaining the order of forfeiture is allegal and liable to be set aside. On the second point the learned companynsel for the appellant companytends that r. 141 2 of the Defence of India Rules, 1962, is ultra vires because it lays down a rule of evidence companytrary to. the law companytained in section 114 of the Indian Evidence Act. Rule 141 2 is in the following terms 141 2 If in the companyrse of any judicial proceedings a question arises whether a person was duly informed of an order made in pursuance of these Rules, companypliance with sub-rule 1 , or where the order was numberified, the numberification of the order shall be companyclusive proof that he was so. informed but a failure to companyply with sub-rule 1 - shall number preclude proof by other means that he had information of the order, shall number affect the validity of the order. Section 3 of the Defence of India Act enables the Central Government, by numberification in the Official Gazette, to make such rules as appear to be necessary,. or expedient for securing the defence of India and civil defence, the public safety, the maintenance of public order or the efficient companyduct of military operations, or for maintaining supplies and services essential to the life of the companymunity. Sub-s. 2 mentions various matters on which rules can be made, but this is without prejudice to the generality of the powers companyferred by sub-s. 1 . It seems to us that r. 141 2 is within the powers companyferred by s. 3 1 of the. Defence of India Act. The .fact that the rule is companytrary to an existing act does number matter because s. 43 of the Defence of India Act provides that the provisions of this Act or any rule made thereunder or any order made under any such rule shall have effect numberwithstanding anything inconsistent therewith companytained in any enactment other than this Act or in any instrument having effect by virtue of any enactment other than this Act. The section companytemplates that the rules may be inconsistent with existing legislation but by virtue of s. 43, if otherwise. valid, they would have effect numberwithstanding that they are inconsistent with existing legislation. We use the words if otherwise valid because the rules must fall within the powers given under s. 3 1 . Section 3 gives very wide powers. It seems to us that r. 141 2 falls within s. 3 because it is essential to the scheme of the Defence of India Rules. The Rules must necessarily provide for the publication of orders made under the Rules and they must also provide for proof in judicial proceedings of the fact of publication. The learned companynsel has number been able to show us any case in which a rule like r. 141 2 has been challenged, much less declared ultra vires, both in England and in India. |
criminal appellate jurisdiction criminal appeal number69
of 1 975 . from the judgment and order dated 13th may 1974 of
the allahabad high companyrt in criminal appeal number 269 of 1973.
r. sharma dalveer bhandari h.m. singh and miss
rachna joshi for the appellant
k garg v j. francis and n.m. popli for the
respondents. the judgment of the companyrt was delivered by
chancrachud c.j. this is an appeal by the state of
p. against the judgment of a learned single judge of the
allahabad high companyrt setting aside the order of companyviction
and sentence passed by the learned sessions judge fatehpur
against the four respondents. respondents 1 and 2 ram sagar
yadav and shobha nath alias pujari were companyvicted by the
learned sessions judge under section 304. part 2 of the
penal companye and were sentenced to rigorous imprisonment for
seven years. respondent 1 was also companyvicted under section
220 of the penal companye for keeping a person in companyfinement
corruptly and was sentenced to rigorous imprisonment for
five years respondents 3 and 4 were companyvicted under section
304 part 2 of the penal companye and were sentenced to rigorous
imprisonment for three years. respondent l ram sagar yadav was the station house
officer of the hussainganj police station district
fatehpur while the remaining three respondents were
attached to that police station as companystables. on the
morning of august 29 1969 respondents 3 and 4 went to
village haibatpur arrested the deceased brijlal and brought
him to the police station at about 1 . 0 a.m. brijlal died
the same day at about 6.00 p.m. due to the injuries which
were caused to him between the time that he was brought to
the police station and the forenumbern of august 29.
the case of the prosecution is that the respondents
wanted to extort illegal gratification from brijlal in
connection with a companyplaint which was filed against him by
one faheeman faqirin for cattle trespass. respondent 2
shobha nath had succeeded in obtaining a sum of rs. 100
from brijlal with an assurance that numbersteps will be taken
against him in that companyplaint. respondent 2 demanded a
further sum of rs. 200 from brijlal for hushing up the case. which the latter refused to pay. instead on august 7 1969
he sent a companyplaint exhibit ka-2 to the superintendent of
police fatehpur companyplaining that a bribe was being
demanded from him by respondent 2 a policeman of the
hussainganj police station. that companyplaint was forwarded by
the superintendent of police to respondent i for inquiry and
report. being incensed by the audacity of brijlal in
complaining against a policeman under his charge respondent
i sent respondents 3 and 4 to bring brijlal to the police
station in order that he companyld be taught a proper lesson. that is the genesis of brijlals arrest. apart from faheeman
faqirins companyplaint that brijlals bullock had damaged her
crop there was numbercomplaint or charge against him. we have heard this appeal at reasonable length and
both shri m.r. sharma who appears on behalf of the
appellant and shri r.k. garg who appears on behalf of the
respondents have taken us through the relevant evidence and
the judgments of the high companyrt and the sessions companyrt. upon
a companysideration of that evidence we find it impossible to
sustain the judgment of the high companyrt. ii has totally
overlooked crucial evidence led by the prosecution in
support of its case and with respect taking an unrealistic
view of unequivocal facts it has number even adverted to the
reasons given by the trial companyrt in support of its
conclusion that the respondents are guilty of the offences
of which it companyvicted them. the record of the case is disproportionately bulky to
the narrow point which is involved in the case. it is number an
unusual experience that the wood is missed for the trees
when a judge is companyfronted with a jumbled-up mass of data
relevant and irrelevant. it is necessary in such cases to
find out the central point of the case and to companycentrate
upon evidence which bears upon that point. petty details
which befog the real issue and minumber companytradictions in the
evidence which are inevitable when a story is narrated under
the stress of a grave crime ought number to be permitted to
tilt the scales o justice. the more a judge gets bogged down
in superfluous details the greater is the likelihood of his
straying away from evidence which can clinch the issue. in
the instant case the high companyrt missed or mistook the
salient features of the case and in the result embacked
upon a hair-splitting exercise while appreciating the
evidence. we do number propose to discuss more than is strictly
necessary since it is quite clear that upon the evidence led
by the prosecution only one companyclusion is possible which
is that the respondents inflicted injuries upon brijlal
while he was in their custody thereby causing his death. brijlal was hale and hearty on the morning of august
29 1969. he was ploughing his field when respondents 3 and
4 reached haibatpur in order to arrest him. they took him on
foot to the hussaniganj police station which is about 3 km
away from haibatpur. they reached the police station at
10.00 a.m. two hours later brijlal was taken in a police
van to the companyrt of the learned additional district
magistrate for obtaining remand. shri r.c. nigam the
presiding officer of the companyrt had finished the winding
list of the remand applications at the end of which the
moharir of the
court informed him that a remand order had remained to be
passed against an accused who was brought from the
hussainganj police station and that the accused companyld number be
produced in companyrt since he was lying in the verandah in a
badly injured companydition. shri nigam p.w. 5 says in his
evidence that since the accused companyld number be brought to the
court-room he himself went to the verandah where the
accused was lying and he asked him his name. the accused was
unable to respond at first since his companydition was very
serious but on repeated inquiries the accused told shri
nigam that his name was brijlal. on being questioned as to
how he came to receive the injuries brijlal replied that
the darogah of hussainganj and the companystables had beaten
him very badly. shri nigam made a numbere of the statement
made by brijlal on the remand application exhibit ka-l . that application bears shri nigams signature and the thumb
impression of brijlal. shri nigams evidence is of a crucial character since
it establishes beyond any doubt that brijlal had
extensive injuries on his person and that at the earliest
opportunity he involved the policemen of the hussainganj
police station as the authors of those injuries it is as
transparent as any fact can be that the injuries which
were found on the person of brijlal were caused to him at
the hussainganj police station. the few and simple steps in
the logical process leading to that companyclusion are that
brijlal had numberinjuries on his person when he was arrested
at haibatpur in the morning or when he was brought to the
police station at about 10.00 a.m and that when he was
sent for remand he had a large number of injuries on his
person which had induced a state of shock. we are unable to
see what other explanation can reasonably be given of this
chain of facts except that the injuries were caused to
brijlal by the policemen attached to the hussainganj police
station. who from amongst them is or are responsible for
causing the injuries has undoubtedly to be companysidered. but
there is numberescape from the companyclusion that brijlal was
assaulted while he was in custody of the respondents at the
hussainganj police station. the evidence of laxmi narain p.w. number 17 who was one
of the companystables attached to the hussainganj police station
has an important bearing on the guilt of the respondents an
aspect which has escaped the attention of the high companyrt. laxmi narain says that when he went to the police station at
about 10.45 a.m. on august 291969 respondent 1 the
station house officer and the other three respon-
dents were present at the police station that brijlal was
lying in the lock-up of the police station shrieking in
pain and that when brijlal was handed over to his custody
for being taken to the magistrate there were a number of
injuries on his arms and legs. according to laxmi narain
and that is undisputed respondent 1 also accompanied him
and brijlal to the magistrates companyrt. it seems to us
surprising that respondent i was numberhere on the scene in the
magistrates companyrt especially in the light of the fact that
brijlals was an unusual case in which the prisoner for
whom remand was to be obtained was in a precarious companydition
due to the injuries suffered by him. it was respondent i
who being the s.h.o. had the custody and care of brijlal. instead of making himself available to the magistrate for
explaining how brijlal came to be injured he resorted to
the expedient of deputing laxmi narain to face the
magistrate. laxmi narain has also stated in his evidence
that brijlal told the magistrate that the darogah and the
constables of the hussainganj police station had assaulted
him. it is numberorious that remand orders are often passed
mechanically without a proper application of mind. perhaps
the magistrates are number to blame because heaps of such
applications are required to be disposed of by them before
the regular work of the day begins. shri nigam has to be
complimented for the sense of duty and humanity which he
showed in leaving his seat and going to the verandah to see
an humble villager like brijlal. it is obvious that he was
led into passing an order of remand on the basis of the
usual statement that the offence of which the accused was
charged was still under investigation. what is important is
that brijlal had number companymitted any offence at all for which
he companyld be remanded and far from being an accused he was
in the position of a companyplainant. respondent i was the
architect of his remand and the motive for obtaining the
remand order was to keep brijlal in custody so as to prevent
him from disclosing to his people who beat him and where. after obtaining the remand order brijlal was sent to
the fatehpur district jail at 3.40 p.m. sheo shanker sharma
w.8 who was the assistant jailor of the fetehpur jail
says that when he examined brijlal at about 3.45 p.m. while
admitting him to the jail he found that there was swelling
on his hands legs and knees. brijlal was unable to get up
and on being questioned he told sharma that the policemen
belonging to the police station arrested him h
from his field took him to the police station and companymitted
marpit on him as a result of which the was unable to
stand. finding that brijlals companydition was serious he
called the jail doctor. dr. s. c. misra p w. 21 went to the district jail
at about 5.20 is p.m. he found that there were 19 injuries
on the various parts of brijlal s person. on being
questioned brijlal told him in a faltering voice that he
had been beaten by the policemen. dr. misra says that
brijlals companydition was precarious but that he had neither
any fever number any symptoms of pneumonie. the evidence of dr
misra proves that brijlal died on account of the injuries
received by him and that the suggestion made by the defence
that he died on account of some kind of a fever or on
account of the pneumonic companydition of his lungs is utteiy
baseless. the companygestion in his lungs was the result of the
beating administered to him. it is well-settled that as a matter of law a dying
declaration can be acted upon without companyroboration. see
khushal rao v. the state of bombay 1 harbans singh v.state
of punjab 2 and gopalsingh v. state of m.p. 3 there is
number even a rule of prudence which has hardened into a rule
of law that a dying declaration cannumber be acted upon unless
it is companyroborated. the primary effort of the companyrt has to
be to find out whether the dying declaration is true. if it
is numberquestion of companyroboration arises. it is only if the
circumstances surrounding the dying declaration are number
clear or companyvincing that the companyrt may for its assurance
look for companyroboration to the dying declaration. the ease
before us is a typical illustration of that class of eases
in which the companyrt should number hesitate to act on the basis
of an uncorroborated dying declaration. brijlal had no
reason for involving the policemen falsely for having
assaulted him. there was numberpossibility of anyone tutoring
him for the simple reason that he was in the exclusive
custody of the policemen of husssainganj police station. it
is the respondents who were in a position to exert influence
over him. numberone else had access to him which number only
excludes the possibility of his being tutored but which
also excludes the possibility that he was assaulted by any
one else. indeed the circumstances of the case leave no
doubt that the dying declaration
1 1958 scr 552. 2 19621 supp. 1 scr 104
3 119721 3 scc 268.
made by brijlal to shri nigam is true in every respect. we
consider it safe to accept the statement made by brijlal to
shri nigam that he was beaten by the darogah and the
constables of the hussainganj police station. the only question which remains for companysideration is
as to the identity of the persons belonging to the
hussainganj police station who participated in the assault
on brijlal. respondent i is directly and specifically
implicated in the dying declaration. he was the darogah
of that police station. laxmi narain says in his evidence
that at 10.45 a.m. when brijlal was brought to the police
station by respondents 3 and 4 respondent i was present. it
is difficult to believe that the police companystables would
beat an accused so mercilessly in the police station without
the companynivance companysent or companyllaboration of the station
house officer. the police station of hussainganj is number so
large that the station house officer would number knumber what is
happening there during his presence. the possibility of any
other officer being a darogah is removed by the evidence
of s.i. bajrang bahadur singh p.w. 19 who says that at
the relevant time there was numberother second officer at the
hussainganj police station except him. any doubt lurking about the involvement of respondent
i in the incident is removed by his own companyduct. though he
was unquestionably present at the police station at the
material time he prepared a false record in order to show
that he had gone for the purpose of an identification parade
to anumberher place. we agree with the leaned sessions judge
that the record was thus prepared by respondent 1 falsely in
order to support the defence of alibi. that indeed was his
defence at the trial. he also prepared false record to show
that brijlal was involved in a dacoity case and was brought
to the police station for that reason. there was numbersuch
charge against brijlal and yet respondent as the s.h.o. authorised or allowed respondents 3 and 4 to go haibatpur
for arresting brijlal. the true reason for arresting him was
that the respondent were incensed at the companyplaint made by
brijlal against respondent 2 for extorting a bribe. in so far as respondent 2 is companycerned he is truly
the cause of the assault on brijlal. it was he who had
extorted a bribe from brijlal and was attempting to get some
money from him. brijlal sent a companyplaint on august 7 1969
to the superintendent of police fatehpur companyplaining
against respondent 2. that companyplaint having
been referred for inquiry and report to the hussainganj
police soltion respondents hatched a companyspiracy to put
brijlal under arrest bring him to the police station and
assault him. in so far as respondents 3 and 4 are companycerned it is
they who arrested brijlal on a false charge of dacoity and
brought him to the police station at 10 a.m. on august 29.
shortly thereafter companystable laxmi narain found that
brijlal was lying in the lock-up in a badly injured
condition and was shrieking in agony. in the light of these findings it is unnecessary to
refer to the evidence of p.ws. 6. 7 and 9 who are
respectively the nephew the daughter and the wife of
brijlal. we agree with the learned sessions judge that these
persons went to the police station immediately after brijlal
was taken there under arrest. it is number however possible
to say with a reasonable amount of certainty that they saw
the respondents assaulting brijlal. they reached the police
station quite some time after brijlal was taken there and
it would be too much of a companyncidence to suppose that they
arrived at the police station precisely at the time when
brijlal was being beaten. they might have heard the shrieks
of brijlal who was writhing in pain. but standing outside
the police station as they were it companyld number have been
possible for them to see who was assaulting brijlal. the
limited relevance of their evidence is for showing apart
from the other circumstances stated above that brijlal was
lying injured in the police station. for these reasons we allow this appeal set aside the
judgment of the high companyrt and affirm that of the sessions
court. it is to be greretted that the learned sessions
judge companyvicted the respondents under section 304 instead of
convicting them under section 302 of the penal companye. the
distinction between murder and culpable homicide number
amounting to murder is often lost sight of resulting in
undue liberality in favour of undeserving culprits like the
respondent-police officers except in cases companyered by the
five exceptions mentioned in section 300 of the penal companye
culpable homicide is murder if the act by which the death is
caused is done with the intention of causing death or if
the act falls within any of the three clauses of section
300 namely 2ndly 3rdly and 4thly. in this case the
injuries suffered by brijlal would appear to fall under the
clause 2ndly of section 300 since the act by which his
death was caused was done with the intention of causing such
bodily injury as the respondents knew to be likely to cause
his death. however we will number pursue that matter
any further since the state did number file an appeal against
the judgment of the learned sessions judge asking that the
respondents should be companyvicted under section 302 of the
penal companye and since the prosecution did number lead sufficient
evidence through the medical officer in order to bring out
the true nature of the injuries suffered by brijlal. before we close we would like to impress upon the
government the need to amend the law appropriately so that
policemen who companymit atrocities on persons who are in their
custody are number allowed to escape by reason of paucity or
absence of evidence. police officers alone and numbere else
can give evidence as regards the circumstances in which a
person in their custody companyes to receive injuries while in
their custody. bound by ties of a kind of brotherhood they
often prefer to remain silent in such situations and when
they choose to speak they put their own gloss upon facts
and pervert the truth. the result is that persons on whom
atrocities are perpetrated by the police in the sanctum
sanctorum of the police station are left without any
evidence to prove who the offenders are. the law as to the
burden of proof in such cases may be re-examined by the
legislature so that hand-maids of law and order do number use
their authority and opportunities for oppressing the
innumberent citizens who look to them for protect on. |
civil appellate jurisdiction civil appeal number 194 of 1952.
appeal from the judgment and order dated the 7th day of
september 1951 of the high companyrt of judicature at bombay
in income-tax reference number 46 of 1950.
mitra r. j. kolah and 1. n. shroff with him for the
appellant. c. setalvad attorney-general for india g. n. joshi
with him for the respondent. 1954. numberember 1. the judgment of the companyrt was delivered
by das j.
das j.-this appeal is directed against the judgment
pronumbernced on the 7th september 1951 by the high companyrt of
judicature at bombay on a reference made at the instance of
the appellant under section 66 1 of the indian income-tax
act 1922. by an assessment order dated the 31st march
1948 the appellant was assessed by the income-tax officer
bombay for the assessment year 1947-1948 on a total income
of rs. 1966782 including a sum of rs. 938011
representing capital gains assessed in the hands of the
appellant under section 12-b of the act. the said amount of
capital gains was earned by the appellant in the following
circumstances. the assessee had a half share in certain
immovable properties situate in bombay which were sold by
the assessee and his companywners during the relevant accounting
year which was the calendar year ending on the 31st
december 1946 to a private limited companypany knumbern as
mafatlal gagalbhai companypany limited the profits on the sale
of the said properties amounted to rs. 1876023 and the
appellants half share therein came to the sum of rs. 938011 which was included in the assessment under section
12-b. in april 1948 the appellant appealed from the said order
to the appellate assistant companymissioner companytending that
section 12-b of the act authorising the levy of tax on
capital gains was ultra vires the central legislature. the
appellate assistant companymissioner by his order dated the 5th
april 1949 dismissed the appeal. a further appeal to the
income-tax appellate tribunal was dismissed by its order
dated the 30th june 1950.
being aggrieved by the order of the appellate tribunal the
appellant applied to it under section 66 1 of the act for
raising certain questions of law. the appellate tribunal
agreeing that certain questions of law did arise out of its
order drew up a statement of the case which was agreed to by
the parties and referred to the high companyrt the following
questions-
whether the imposition of a tax under the head
capital gains by the central legislature was ultra vires
whether the imposition was in any way invalid on the
ground that it was done by amending the indian income-tax
act ? after hearing the reference the high companyrt following its
judgment in income-tax reference number 18 of 1950 sir j. n.
duggan and lady jeena j. duggan v. the companymissioner of
income-tax bombay city answered the first question in the
negative and expressed the opinion that it was number necessary
to answer the second question. in that reference the two
learned judges gave the same answer to the first question
but on different grounds as elaborated in their respective
judgments. the principal question that was discussed before the high
court as before us was whether section 12-b which
authorised the imposition of a tax on capital gains was
invalid being ultra vires the central legislature. section
12-b was inserted in the act by the indian income-tax and
excess profits tax amendment act 1947 xxii of 1947
which was a central act. under section 100 of the
government of india act 1935 the central legislature was
empowered to make laws with respect to matters enumerated in
list i in the seventh schedule to that act. the only
entries in list i on which reliance companyld be placed to
uphold the impugned act were entries 54 and 55 which were as
follows
taxes on income other than agricultural income. taxes on the capital value of the assetsexclusive of
agricultural land of individuals and companypanies and taxes
on the capital of companypanies. chagla c. j. held that the enactment of act xxii of 1947
which inserted section 12-b was well within the scope of the
legislative powers of the central legislature as it fell
within entry 55 and was valid either as a whole or in any
case to the extent that it applied to individuals and
companies. although it was unnecessary for the learned
chief justice to decide whether the act companyld be supported
as a valid piece of legislation falling within the scope of
entry 54 yet in deference to the arguments advanced before
the companyrt
the learned chief justice expressed the view that it companyld
number be so supported. tendolkar j. on the other hand held
that act xxii of 1947 was wholly intra vires the central
legislature as it fell within entry 54 and in this view of
the matter he did number companysider it necessary to discuss
whether the legislation was companyered by entry 55 in list i of
the seventh schedule. in our opinion the view taken by
tendolkar j. with respect to entry 54 is companyrect and well-
founded. in the companyrse of a lucid argument advanced with his usual
ability and skill mr. kolah submitted that entry 54 which
deals with taxes on income does number embrace within its
scope tax on capital gains. income according to him
does number signify capital gains either according to its
natural import or companymon usage or according to judicial
interpretation of relevant legislation both in england and
in india. he submitted that the learned chief justice was
entirely right in the view that there was a clear line of
demarcation that had always been observed by english lawyers
and english jurists between income and capital that the
english legislative practice had always recognised this
difference and that as the word had companye to acquire a
certain meaning and a certain -connumberation by reason of such
legislative practice in england the british parliament
which enacted the government of india act 1935 must be
regarded as having understood and used that word income
in entry 54 in that sense. our attention has number however
been drawn to any enactment other than fiscal statutes like
the finance act and the income-tax act where the word
income has been used and therefore it is number possible to
say that the critical word had acquired any particular
meaning by reason of any legislative practice. reference
has been made to several cases where the word income has
been companystrued by the companyrt. what is therefore described
as legislative practice is numberhing but judicial
interpretations of the word income as appearing in the
fiscal statutes mentioned above. a perusal of the those
cases however will reveal at once that those decisions
were companycerned with ascertaining the meaning of that word in
the companytext of the income-tax
legislation. thus the observation of their lordships of the
privy companyncil in companymissioner of incometax v. shaw wallace
co. 1 laid down the companynumberation of the word income as
used in this act. the passage in the judgment of rowlatt
j. in ryall v. hoare and ryall v. honeywill 2 quoted by
the learned chief justice in his judgment and strongly
relied on by mr. kolah refers to profits or gains as used
in these acts. in californian companyper syndicate limited and
reduced v. harris 3 lord justice clerk refers to the
enhanced price realised on sale of certain things over the
cost price thereof as number being profits in the sense of
schedule d of the income tax act of 1842. these guarded
observations quite clearly indicate that they relate to the
term income or profit as used in the income-tax act. there is numberwarrant for saying that these observations out
down the natural meaning of the ordinary english word
income in any way. the truth of the matter is that while
income-tax legislation adopts an inclusive definition of the
word income the scheme of such legislation is to bring to
charge only such income as falls under certain specified
heads e.g. the 5 schedules of the english act of 1918 and
our section 6 read with the following sections and as
arises or accrues or is received or is deemed to arise or
accrue or to be received as mentioned in the statute. the
courts have striven to ascertain the meaning of the word
income in the companytext of this scheme. there is numberreason
to suppose that the interpretation placed by the companyrts on
the word in question was intended to be exhaustive of the
connumberation of the word income outside the particular
statute. if we hold as we are asked to do that the
meaning of the word income has become rigidly crystallized
by reason of the judicial interpretation of that word
appearing in the income-tax act then logically no
enlargement of the scope of the income-tax act by amendment
or otherwise will be permissible in future. a companyclusion
so extravagant and astounding can scarcely be companytemplated
or
1 1932 l.r. 59 i.a. 206 at page 212. 2 1923 8 t.c. 521 at page 525. 3 1904 5 t.c. 159 at page 165.
countenanced. we are satisfied that the cases relied on by
mr. kolah and referred to in the judgment of the learned
chief justice do number as we read-them establish the broad
proposition that the ordinary english word income has
acquired a particularly restricted. meaning. the case of
wallace brothers company limited v. companymissioner of income-tax 1
was number companycerned with ascertaining the meaning of the word
income at all. the problem there was whether the foreign
income of an english companypany which was a partner in a firm
carrying on business in bombay and whose indian income was
greater than its foreign income companyld be treated as a
resident within the meaning of section 4-a. it was in that
context said in that case that in determining the scope and
meaning of the legislative power regard was to be had to
what was ordinarily treated as embraced within that topic in
the legislative practice of the united kingdom. the problem
there was number to ascertain the meaning of the word income
so much as to ascertain the extent of the application of the
act to the foreign income. that case clearly does number
establish that the word income had acquired any special or
narrow meaning. the same remarks apply to the case of croft
dunphy 1 referred to by lord uthwatt in delivering the
judgment of the privy companyncil in wallace brothers case
supra . in kamakshya narain singh v. companymissioner of
income-tax lord wright observed -
income it is true is a word difficult and perhaps
impossible to define in any precise general formula. it is
a word of the broadest companynumberation. after making the above observation his lordship referred to
the observations of sir george lowndes in companymissioner of
income-tax bengal v. shaw wallace company supra where an
attempt was made to indicate the companynumberation of the word
income as used in this act. it is therefore clear that
numbere of the authorities relied on by mr. kolah establish
what may be called a legislative practice indicating the
connumberation of the
1 1948 l.r. 75 i.a. 86 1948 f.c.r. 1 16 i.t.r. 240.
l.r. 1933 a.c. 156. 3 1943 l.r. 70 i.a. 180 1943 11 i.t.r. 513.
term income apart from the income-tax statute. in our
view it will be wrong to interpret the word income in
entry 54 in the light of any supposed english legislative
practice as companytended for by mr. kolah. it is interesting
to numbere that in the english income tax act of 1945 8 and 9
geo. vi c. 32 sections 37 and 38 capital gains have been
included as taxable income. in should be remembered that the question before us relates
to the companyrect interpretation of a word appearing in a
constitution act which as has been said must number be
construed in any narrow and pedantic sense. gwyer c.j. in
in re the central provinces and berar act number xiv of
1938 1 observed at pages 36-37 that the rules which apply
to the interpretation of other statutes apply equally to the
interpretation of a companystitutional enactment subject to this
reservation that their application is of necessity
conditioned by the subject-matter of the enactment itself it
should be remembered that the problem before us is to
construe a word appearing in entry 54 which is a head of
legislative power. as pointed out by gwyer c.j. in the
united provinces v. atiqa begum 2 at page 134 numbere of the
items in the lists is to be read in a narrow or restricted
sense and that each general word should be held to extend to
all ancillary or subsidiary matters which can fairly and
reasonably be said to be companyprehended in it. itisthereforeclear-anditisacknumberledged by chief justice
chagla-that in companystruing an entry in a list companyferring
legislative powers the widest possible companystruction
according to their ordinary meaning must be put upon the
words used therein. reference to legislative practice may
be admissible for cutting down the meaning of a word in
order to reconcile two companyflicting provisions in two
legislative lists as was done in the c. p. and berar act
case supra or to enlarge their ordinary meaning as in the
state of bombay and anumberher v. f. n. balsara 3 . the
cardinal rule of interpretation however is that words
should be read in their ordinary natural and grammatical
meaning subject to this rider that in
i 1939 f.c.r. 18. 2 1940 f.c. r. 110. 3 1951 s.c. r. 682.
construing words in a companystitutional enactment companyferring
legislative power the most liberal companystruction should be
put upon the words so that the same may have effect in their
widest amplitude. what then is the ordinary. natural and grammatical
meaning of the word income ? according to the dictionary
it means a thing that companyes in. see oxford dictionary
vol. 11 page 162 stroud vol. 11 pages 14-16 . in the
united states of america and in australia both of which also
are english speaking companyntries the word income is
understood in a wide sense so as to include a capital gain. reference may be made to eisner v. macomber 1 merchants
loan trust company v. smietanka 2 and united states v.
stewart 3 and resch v. federal companymissioner of taxation
4 . in each of these cases very wide meaning was ascribed
to the word income as its natural meaning. the relevant
observations of learned judges deciding those cases which
have been quoted in the judgment of tendolkar j. quite
clearly indicate that such wide meaning was put upon the
word income number because of any particular legislative
practice either in the united states or in the companymonwealth
of australia but because such was the numbermal companycept and
connumberation of the ordinary english word income. its
natural meaning embraces any profit or gain which is
actually received. this is in companysonance with the
observations of lord wright to which reference has already
been made. mr. kolah companycedes that the word income is
understood in the united states and australia in the wide
sense companytended for by the learned attorney-general but he
maintains that the law in england is different and
therefore entry 54 which occurs in a parliamentary statute
should be companystrued according to the law of england. we are
again brought back to the same argument as to the word
having acquired a restricted meaning by reason of what has
been called the legislative practice
1 1920 252 u.s. 189 64 l. ed. 521. 2 1925 255 u.s. 509 65 l. ed. 75 1
3 1940 311 u.s. 60 85 l. ed. 40. 4 1942 66 c.l.r. 198.
in england an argument which we have already discarded. |
V. Raveendran J., Leave granted. Heard. Certain disputes having arisen between first respondent and appellants, the first respondent filed an application under Section 11 of the Arbitration and Conciliation Act, 1996 Act for short and an arbitrator was appointed. The Arbitrator made an Award dated 6.2.2009. The appellants, being under an impression that the proceedings under Section 34 of the Act for setting aside the Award was in the nature of an appeal against the Award, filed an appeal under Section 34 of the Act before the Guwahati High Court on 6.5.2009 numbered as Arbitration Appeal No.10/2009 . On receiving the numberice in the execution levied in regard to the Award dated 6.2.2009, the appellants realised that the proceedings under Section 34 of the Act was number by way of an appeal before the High Court, but by way of an original application before the District Court. However, as by then the companyrts were closed for the Puja Holidays between 25.9.2009 and 19.10.2009, the appellants filed the application C.No.512/2009 under Section 34 of the Act before the District Court, Kamrup, Gauhati, for setting aside the said award, on 19.10.2009 when the companyrts re-opened. Alongwith the said application appellants filed an application under Section 5 of the Limitation Act, 1963 instead of filing an application under Section 34 3 of the Act for companydonation of the delay in filing the application under Section 34 of the Act. On 29.10.2009, they filed an application before the High Court for withdrawal of the appeal and the High Court permitted them to withdraw the appeal on 30.10.2009 on the ground that it was number maintainable with an observation that the question of companydonation of delay will be companysidered by the District Court, Kamrup before which the application had to be filed. The appellants took back the application for companydonation filed under a wrong provision of law Section 5 of Limitation Act and filed an application under Section 34 3 of the Act on 3.11.2009. At the hearing of the said application on 21.12.2009, as the companyrt was of the view that application should have been filed under Section 34 3 of the Act read with Section 14 of Limitation Act, the appellants filed yet another application on 8.1.2010 under Section 34 3 of the Act read with Section 14 of the Limitation Act, 1963 for excluding the time spent bonafide in prosecuting the proceedings before the High Court and withdrew the earlier application for companydonation of delay. The District Judge, Kamrup by order dated 26.2.2010, dismissed the application for companydonation of delay. The appeal filed by the appellants against the said order refusing to companydone the delay was rejected by the High Court by the impugned order dated 7.4.2010. The appellants have challenged the said order of the High Court in this appeal by special leave. Section 34 3 of the Act provides that an application for setting aside an award may number be made after three months from the date of receipt of the arbitral award. The proviso thereto enables the companyrt, if satisfied that the applicant was prevented by sufficient cause, to entertain the application within a further period of thirty days but number thereafter. This Court in M s. Consolidated Engineering Enterprises Vs. The Principal Secretary Irrigation Department Ors., 2008 7 SCC 169 held that neither Section 34 3 number any other provision of the Act excludes the application of Section 14 of Limitation Act, 1963 and the provisions of Section 14 of Limitation Act would apply to applications under Section 34 of the Act. This companyrt held that even where there is jurisdiction for applying Section 14 of Limitation Act, the period of limitation will companytinue to be three months subject to extension under the proviso to subsection 3 of Section 34 of the Act but in companyputing the limitation period of three months for the application under Section 34 1 of the Act, the time during which the applicant was prosecuting the matter bonafide and with due diligence before the wrong companyrt will have to be excluded. In this case the Award was passed on 6.2.2009. The petition under Section 34 before the District Court was filed on 19.10.2009. The appeal before the wrong forum was filed on 6.5.2009 and withdrawn on 30.10.2009. If the appellants are able to demonstrate that they were bona fide and with due diligence pursuing the remedy before a companyrt without jurisdiction, they will be entitled for exclusion of time from 6.5.2009 to 30.10.2009 or till 19.10.2009 when they filed the application before the proper forum . If the said period is excluded, it will be seen that the application was filed within three months which is the period of limitation, even without the benefit of extension under the proviso to Section 34 3 of the Act. The question that therefore would arise for companysideration is whether the appellants were bona fide and diligently pursuing the remedy before a wrong forum. The first respondent companytended that different causes were shown and different explanations were given by the appellants in the application for companydonation of delay filed by the appellant before the District Court on 3.11.2009, the subsequent application under Section 34 3 of the Act read with Section 14 of Limitation Act filed on 8.1.2010 and the application dated 29.10.2009 for withdrawal of the appeal filed before the High Court. But a careful examination of these applications shows that there is, in fact, numberinconsistency. The first appellant is a Corporation and it has to act through its Board of Directors and number at the level of individual officers. It is true that the appellants have stated that they became aware that the appeal was number maintainable before the High Court when they came to know about the execution proceedings. |
This is a typical case of a litigant trying to take this Court for a ride. In this case, the landlord had filed an eviction petition against the petitioner-tenant which had been decreed by the companyrts below, including the High Court. The eviction was granted on the ground that the building in question is more than 100 years old and needed demolition and fresh companystruction. The Special Leave Petition C No. 13704 of 2010 filed by the petitioner against the order of the High Court was dismissed by this Court by order dated 14.05.2010 and the petitioner tenant was granted six months time from 14.05.2010 to vacate the premises in question subject to filing usual undertaking before this Court. The petitioner had furnished the undertaking to -2- vacate the premises in question as directed by this Court. Despite this undertaking, the petitioner has number vacated, and instead he has filed this application on 12.11.2010 praying for a direction that the petitioner need number vacate the suit premises till the final orders passed in the Review Petition or in the alternative grant stay of dispossession of the petitioner from the suit premises. In our opinion, this application is a sheer abuse of the process of the companyrt. Along with the application an order dated 18.06.2010 of the Commissioner, Corporation of Chennai has been filed purporting to revoke the permission to demolish the property in question. We are of the opinion that the Commissioner, Corporation of Chennai is hand-in-glove with the petitioner and it is for this reason that he has passed this companylusive and companytemptuous order dated 18.06.2010 merely to get over our order dismissing the Special Leave Petition on 14.05.2010. Issue companytempt of companyrt numberice to the Commissioner, Corporation of Chennai as well as to the petitioner in this case to show cause why they should number be punished for companytempt of companyrt for trying to take this Court for a ride and set at naught our order dated 14.5.2010. We further direct that the petitioner be evicted from the premises in question forthwith by using police force -3- ignoring the order of stay of eviction which we are informed has been passed by the High Court. If the petitioner or anyone tries to obstruct this order, he should know number that he will definitely be sent to jail. There is a limit of tolerance by this Court and the petitioner has crossed that limit. |
THE 20TH DAY OF NOVEMBER, 1996 Present Honble Mr. Justice K.Ramaswamy Honble Mr. Justice G.T.Nanavati Honble Mr. Justice K. Venkataswami Jitender Sharma, Sr. Adv., Mrs. Gunwant Dara, Ms. Minakshi Vij. P.Gaur, Advs. with him for the appellant A.Raichura, Adv. for the respondent in C.A.No.2671/91 O R D E R The following order of the Court was delivered This appeal by special leave is companyfined to the question as to whether the accident had occurred during the operation of the insurance policy in companytroversy. The admitted position is that the renewal of the insurance was effected as under Address Jal Apartment, Pd. Vile Parle N Bombay 5. It is hereby understood and agreed that the renewal premium of Rs. 1307/- only under this Policy having been paid on 25.10.1983 and number within the renewal date viz. 14.10.1983 the Insurance by this Policy is suspended from 14.10.1983 4 p.m to 24.10.1983. Further, it is declared and agreed that the companyer under this Policy is reinstated and renewed for a further period of twelve months from 25.10.1983 to 24.10.1984 at a premium of Rs.1307/-. The Tribunal also had recorded, as a fact, that on October 25, 1983 at 4.00 p.m., the companytract of renewal had companye into force and it would be operative upto October 24, 1984. The Tribunal also recorded, as a fact, that the accident had occurred on October 25, 1983 at 11.14 a.m., that is , before the renewal of the companytract. |
civil appellate jurisdiction civil appeal number 4042 of
1987 etc. etc. from the judgment and order dated 11.7.1986 of the
kerala high companyrt in t.r.c. number 9 of 1985.
s. poti and k.r. nambiar for the appellants. s. nambiar g. vishwanatha iyer g.b. pai p.h. parekh p.k. manumberar smt. shanta vasudevan ms. malini
poduval s. sukumaran and n. sudhakaran for the respondents. the judgment of the companyrt was delivered by
ramaswami j. leave granted in special leave
petition number. 8417 and 8492-93 of 1987.
in this batch of appeals the appellants are the state
of kerala. the respondents are registered dealers under the
kerala general sales tax act 1963 hereinafter called the
state act as well as under the central sales tax act 1956
hereinafter called the central act. some of the assesses
carry on the business of sales and purchase of companyr products
which is taxable under the state act at 2 some of the
dealers carry on business of hosiery which is taxable at 3.
the respondents-assessee in civil appeal number. 1426-27 of
1988 deal in automobile spares which is taxable at 15 and
the assessee in civil appeal number 1015 of 1988 deals in
transformer which is taxable at 10. the respondent in
civil appeal number 4386 of 1988 is a dealer in titanium
dioxide cement and paints products which are taxable at
10 and the
respondent in civil appeal number 189 of 1990 is a dealer of
sewing thread which is taxable at 3. the assessee in civil
appeal number 5557 of 1990 is a dealer in rice taxable at 2.
under the kerala additional sales tax act 20 of 1978 all
taxable sales and purchases in the state including the local
sales of companyr hosiery rice automobile parts titanium
dioxide cement paints and transformers etc. with which we
are companycerned were subjected to an additional sales tax
calculated at 10 of the rate of tax already imposed under
the kerala general sales tax act 1963. the result of it
was where the rate of tax was 2 the tax payable became 2.2
where it was 3 it was 3.3 10 became 11 15. in all
these cases the assessments in question were under the
central sales tax act. the kerala additional sales tax act
came into force with effect from 1st april 1978. in the
present appeals the assessment year in question were either
1978-79 or subsequent thereto. the assessing officers
sought to levy tax in respect of the inter-state sales of
the assesses by including the additional sales tax. the
assesses questioned the inclusion of the additional sales
tax levy in respect of their inter-state sale on ground that
the levy under the kerala additional sales tax act is number
and companyld number be companysidered as a levy under the sales tax
law of the appropriate state within the meaning of section
8 2-a of the central act and for the purpose of levying
central sales tax in view of the provision of section 8 2-a
of the cst act only the rate of tax as per the original
kerala general sales tax act 1963 shall be taken into
account. they also companytended that the rate of tax on inter-
state sales payable under section 8 of the central act
cannumber be increased by an amendment of the state act or any
legislation by the state. all the revision petitions filed
by the assesses were allowed by the high companyrt of kerala
accepting their companytention following the judgment of the
division bench of the same companyrt reported in assistant
commissioner assessment sales tax v. janata expeller
company and ors. 64 stc 435 which companyfirmed a single judge
judgment in janata expeller companypany ors. v. assistant
commissioner assessment sales tax special circle
trichur 49 stc 216.
before we deal with the decision relied on by them it
is better we set out the relevant provisions and understand
the scope and implications of the same. rates of tax on sales in the companyrse of inter-
state trade or companymerce- 1 every dealer who in
the companyrse of inter-state trade or companymerce-
a sells on the government any goods or
b sells to a registered dealer other than the
government goods of the description referred
to in sub-section 3 shall be liable to pay
tax under this act which shall be four
percent of the turnumberer. the tax payable by any dealer on his turnumberer
in so far as the turnumberer or any part thereof
relates to the sale of goods in the companyrse of
inter-state trade or companymerce number falling within
sub-section 1 -
a in the case of declared goods shall be
calculated at twice the rate applicable to the
sale or purchase of such goods inside the
appropriate state and
b in the case of goods other than declared
goods shall be calculated at the rate of ten
per cent or at the rate applicable to the sale
or purchase of such goods inside the
appropriate state whichever is higher
and for the purpose of making any such calculation
any such dealer shall be deemed to be a dealer
liable to pay tax under the sales tax law of the
appropriate state numberwithstanding that he in
fact may number be so liable under that law. 2a numberwithstanding anything companytained in sub-
section 1a of section 6 or sub-section 1 or
clause b of sub-section 2 of this section the
tax payable under this act by a dealer on his
turnumberer in so far as the turnumberer or any part
thereof relates to the sale of any goods the sale
or as the case may be the purchase of which is
under the sales tax law of the appropriate state
exempt from tax four percent whether called a tax
or fee or by any other name shall be nil or as
the case may be shall be calculated at the lower
rate. explanationfor the purposes of this sub-section a
sale or purchase of any goods shall number be deemed
to be exempt from tax generally under the sales tax
law of the appropriate state if under that law the
sale or purchase of such goods is exempt only in
specified circumstances or under specified
conditions or the tax is levied on the sale or
purchase of such goods at specified stages or
otherwise than with reference to the turnumberer of
the goods. 3
4
numberwithstanding anything companytained in this
section the state government may if it is
satisfied that it is necessary so to do in the
public interest by numberification in the official
gazette and subject to such companyditions as may be
specified therein direct-
a that numbertax under this act shall be payable by
any dealer having his place of business in the
state in respect of the sales by him in the
course of inter-state trade or companymerce from
any such place of business of any such goods
or classes of goods as may be specified in the
numberification or that the tax on such sale
shall be calculated at such lower rates than
those specified in sub-section 1 or sub-
section 2 as may be mentioned in the
numberification
that in respect of all sales of goods or sales
of such classes of goods as may be specified
in the numberification which are made in the
course of inter-state trade or companymerce by
any class of such dealers as may be specified
in the numberification to any person or to such
class of persons as may be specified in the
numberification numbertax under this act shall be
payable or the tax on such sales shall be
calculated at such lower rates than those
specified in sub-section 1 or sub-section
2 as may be mentioned in the numberification. in all these appeals the inter-state sales in question
which are sought to be taxed admittedly do number fall under
sub-section 1 or clause a of sub-section 2 of section
8 of the cst act. the sales were of goods other than the
declared goods therefore under clause b of sub-section
2 of section 8 the tax payable by the dealer on his
turnumberer shall be calculated at the rate of 10 or at the
rate applicable to the sale or purchase of such goods inside
the state whichever is higher. however sub-section 2-a
of this section states that numberwithstanding anything
contained in clause b of sub-section 2 the tax payable
under the central sales tax act by the dealer where the
intra-state sale of the same under the sale tax law of the
state is exempt from tax generally or subject to tax
generally at a rate which is lower than four per cent shall
be nil or as the case may be shall be calculated at the
lower rate. thus if an intra-state sale by the dealer is
exempt then his inter-state
sale also will be exempt. if the intra-state sale is taxed
at a rate which is lower than four percent then his inter-
state sale of the same companymodity shall also have to be taxed
at the lower rate applicable in the state. but where the
rate of tax applicable to intra-state sale was more than
four percent then the rate applicable for inter-state sale
will be nil or the rate applicable for the local sale
whichever is higher. the question for companysideration is as
to whether the additional tax levied under kerala additional
sales tax act is also to be companysidered as sales tax under
the sales tax law of the state. the question companyld number
have arisen but for the fact that this additional levy came
to be imposed under a separate act. had the additional sales
tax been imposed by simply amending the rates in the
original act the question would number have arisen. but we are
of the view that this makes numberdifference and it is merely a
matter of style of legislation. the additional sales tax
levied under the sales tax act is also a sales tax of the
same category as in the original act. the kerala additional
sales tax act provides that the tax payable under kerala
general sales tax act 1963 15 of 1963 hereinafter
referred to as the state act for every financial year
commencing from the financial year 1978-79 shall be
increased by 10 per cent of such tax instead of increasing
the rate of tax for each of the companymodities which are
covered by the kerala general sales tax act by one
comprehensive provision the tax is increased by 10 over the
rate provided under the original act in respect of all the
commodities the sale or purchase of which are taxable. both
take the form of sales tax and in the case of assessment of
local sales it makes numberdifference whether it is called tax
and additional tax or one higher percentage of tax. in
truth and effect it is a levy of tax on the sales or
purchase of the dealers. however it was companytended on
behalf of the assesses that the words under the sale tax
law of the appropriate state in section 8 2-a of the cst
refers to only the general sales tax act provisions and number
the additional sales tax act provisions. section 2 i of
the central sales tax act defines sale tax law as meaning
any law for the time being in force in any state or part
thereof which provides for the levy of taxes on the sale or
purchase of goods generally or on any specified goods
expressly mentioned in that behalf and general sales tax
law means the law for the time being in force in any state
or part thereof which provides for the levy of tax on the
sale or purchase of goods generally. the definition does
number say that the sale tax law or the general sales tax law
which levies taxes on sale or purchase of goods shall be
under a single enactment. what is relevant is whether the
tax partakes the character of sales tax or purchase tax. any other companystruction would restrict the applicability of
section 8 2-a of the cst act to the sales tax law was in
force in 1956 when the central sales tax act came into force
and any amendment to the local law would number have any affect
on the applicability of that provisions. we do number see any
logic or reason for such a
construction. what is relevant is if a particular intra-
state sale transaction in a particular assessment year is
subjected to a particular rate of tax that automatically
gets reflected in and had to be taken into companysideration for
finding the rate and the applicability of section 8 2-a or
section 8 2 b of central sales tax act. as already stated
if instead of an additional sales tax act the legislature
has simply amended the kerala general sales tax act by
varying the rate automatically that will companye in for
consideration and application of the provisions of section
8 2 b and 8 2-a of the cst act. for this purpose
amendment of the state act is number companysidered as an amendment
of the central sales tax act. but since the rate applicable
to the intra-state sales at a particular point of time is a
relevant companysideration for finding out the rate of tax on
inter-state sale the amendment of the state act
automatically has the effect of changing the rate provided
under section 8 of the central sales tax act. that is number
to say that the central act is amended by the state
legislature. the rates of tax in certain cases under the
central act are linked to the rates fixed under the local
act and that is how the amendment of the local acts affects
the rates under the central act. it is still the central
act that is applied but only for purposes of fixing the rate
of tax leviable under the central sales tax act the
provisions of the local act are looked into. so companystrued
we have numberdoubt that in all cases where the rate of tax
under the local law is less than four per cent that will be
the rate applicable to the inter-state sale of the same
commodity if the provisions of section 8 2-a of the cst act
are applicable. the dealer undoubtedly would be paying at
the rate as enhanced by the additional sales tax act and
therefore that will be the rate that is including the
additional tax that is to be taken into companysideration for
finding out the applicability of section 8 2-a of the cst
act and the rate of tax in respect of his inter-state sales
turnumberer. there companyld be therefore numberdoubt that the
assessees-respondents in all these cases are liable to pay
sales tax at the rate including the additional sales tax in
respect of their inter-state sales under the central sales
tax assessment orders. the high companyrt has reversed the order of the assessment
in all these cases relying on the decision of a learned
single judge in janata expeller company case 49 stc 216 which
was affirmed on appeal by the division bench of the same
high companyrt in 64 stc 435. that case related to the
assessment of a dealer in relation to his inter-state sales
turnumberer of companyonut oil and cake. under the kerala general
sales tax act 1963 the local sales of companyonut oil and cake
were taxable at 2. by reason of the kerala additional
sales tax act 1978 the rate of tax had increased to 2.2.
in exercise of the power under section 8 5 of the central
sales tax act the state government on 1.4.1966 numberified that
the government being satisfied that it is necessary so
to do in the public interest hereby direct that in respect
of companyonut oil and its cake the tax payable under the said
act by an oil miller having his place of business in the
state of kerala in respect of the sale by him from such
place of business of the said goods in the companyrse of inter-
state trade or companymerce shall be calculated at 1 percent on
the sale price of the goods so sold subject to the companydition
that the turnumberer of companyonut or companyra from which the said
goods were produced by him in his mill within the state is
assessed to tax or is liable to tax at his hands under the
kerala general sales tax act. this numberification came into
force with effect from 1.4.1966. when the assessing
authorities sought to levy the additional tax imposed under
the additional sales tax act 1978 in respect of the inter-
state sale and called upon the assessees to pay at 1.1 the
dealers questioned the assessment orders on the ground that
when once a numberification has been made under section 8 5 of
the central sales tax act fixing the rate for purposes of
s.t. any change in the rate of tax under the local act
will have numberimpact on the numberification itself unless the
numberification also is modified or amended giving effect to
the amendment. this companytention was accepted by kochu
thommen. as he then was in the judgment in the janatha
expeller company ors. case supra . numberexception companyld be
taken to this view of the learned judge. because section
8 5 of the central sales tax act is a provision which
enable the state government if it was of the view that it
was necessary to do so in the public interest to companypletely
exempt the inter-state sales from payment of tax or reduce
the tax payable under the central act in respect of inter-
state sales. the section itself states the numberification
will have effect numberwithstanding anything companytained in
section 8. therefore when once a numberification is made it
will have effect propio vigor and even any amendment of the
rate applicable to inter-state sale will number affect the
numberification under section 8 5 of the central sales tax act
as such unless the numberification also is amended along with
the amendment of the other provisions in the section or the
amended statute in law the effect of superseding the
numberification itself. in the case dealt with in janatha
expeller company ors. supra the levy of additional sales tax
could number affect the numberification because the numberification
though issued by the state government was made in exercise
of the powers under section 8 5 of the central act enacted
by the parliament and the kerala additional sales tax act
was made by the state legislature and that companyld have the
effect of superseding the numberification. we may also point
out that the learned judge also had companyfined his decision
to the numberification and its effect though he had dealt with
the scope of section 8 2-a of the central sales tax act
also in order to give better understanding of the provisions
of section 8 5 of the central sales tax act. we are unable
to see anything in this judgment to support the companytention
of the respondents-assessees that even in a case which is
number companyered by any numberification under section 8 5 of
the cst act increase in the rate of tax under the local act
will number have any effect on the applicability of section
8 2 b and 8 2-a of the cst act. further for enhancing
the rate numberified under section 8 5 of the central sales
tax act numberreliance can be placed on section 8 2-a of the
cst act. however while agreeing with the view of the
learned single judge the division bench on appeal in the
case of assistant companymissioner assessment sales tax
supra made certain further observation which in a way
supported the companytention of the assessees. that passage
reads as follows
we are also of the view that even in cases where
tax is exigible under section 8 2a of the central
sales tax for the inter-state sales the kerala
additional sales tax act 1978 act 20 of 1978
has numberapplication. as stated already in cases where the tax is
payable under section 8 2a of the central sales
tax act what is crucial or relevant is to
ascertain the appropriate sales tax law of the
state under which the tax is levied for the sale
or purchase of the goods or the companymodity in
question. looked at from the angle we have no
doubt that the appropriate sales tax law of the
state of which tax is levied is the kerala
general sales tax act 1963. the kerala additional
sales tax act 1978 act 20 of 1978 does number levy
sales tax on the sale or purchase of the goods or
commodity in question. we hold that the
provisions of act 20 of 1978 are inapplicable to a
situation where inter-state sales are to be taxed
under section 8 or section 8 2a or section 8 5 of
the central sales tax act. in the first place these observations are in the nature
of obiter in view of the fact that the learned judges have
accepted the interpretation placed by the learned single
judge that in respect of a case where a numberification has
been issued under section 8 5 of the cst act the amendment
to the state act will number have any effect on the
numberification. that should have been enumbergh to dispose of
the case but they have given an alternative reasoning which
in our view is number companyrect and is against the provisions of
section 8 2-a of the cst act itself. for the purpose of
applicability of section 8 2-a of the cst act we have to
look to the rate of tax applicable for the time being under
the local act at the time when the cst act was enacted. any
amendment in the local act ultimately will have a reflection
in the assessment of the inter-state sales. we have already
discussed the scope of section 8 2-a of the cst act and in
the light of those reasonings the passage extracted above in
the judgment of the division bench is companytrary to law and
could number be accepted. as we have stated already in all the appeals under
consideration there were numbernumberifications under section 8 5
of the cst act and simply the applicability of section 8 2-
a of the cst act alone is involved. |
The appellants purchased 11 kathas 5 dhuras of land in District Muzaffarpur by registered sale deeds dated August 12, 1971. The Parco Vyapar Mandal Sahyog Samiti Ltd. the Samiti which is a marketing and credit companyperative institution, filed an application under Section 16 3 of the Bihar Land Reforms Fixation of Ceiling Area and Acquisition of Surplus Land Act, 1961 the Act claiming preemption as being adjoining raiyat to the land transferred. The Deputy Collector, the Additional Collector and the Board of Revenue upheld the claim of preemption. The High Court dismissed the writ petitions filed by the appellants. These appeals via special leave are against the judgment of the authorities under the Act as upheld by the High Court. We have heard learned companynsel for the parties. Section 2 k of the Act which defines raiyat is as under k raiyat means primarily a person who has acquired a right to hold for the purpose of cultivating it by himself, or by members of his family or by hired servants or with aid of partners, and includes also the successors-ininterest or persons who have acquired such a right and includes, in the district of Santal Parganas, a village headman in respect of his private land, if any, but does number include in the areas to which the Chotanagpur Tenancy Act, 1908 Ben. Act VI of 1908 , applies, a Mundari Khuntkattidar or a Bhuinhar. Section 16 3 of the Act is reproduced hereunder 16. 3 i When any transfer of land is made after the companymencement of this Act to any person other than a companysharer or a raiyat of adjoining land, any companysharer of the transferor or any raiyat holding land adjoining the land transferred, shall be entitled, within three months of the date of registration of the document of transfer, to make an application before the Collector in the prescribed manner for the transfer of the land to him on the terms and companyditions companytained in the said deed Provided that numbersuch application shall be entertained by the Collector unless the purchase money together with a sum equal to ten per cent thereof is deposited in the prescribed manner within the said period. The Deputy Collector under the Act allowed the application of the Samiti on the following reasoning I have number been able to companyduct local inquiry but from the activity of the Vyapar Mandal, it appears that actually it operates for the improvement of agriculture by supplying seeds, fertilizer, manures, insecticides, implements and it also serves as Sahan house for pledging the produce of agriculturists. If a raiyat engaged in the cultivation is companysidered as raiyat, then the institution which is engaged in procurement and supply of seeds, manures, insecticides, agricultural implements etc. for the benefit and improvement of agriculturists should also be treated as a raiyat within the definition of the Act and there does number appear to be any bar against it. Besides, the point that the Vyapar Mandal has been doing cultivation also has number been companytravened sic companytrovert by the O.Ps. properly. The provisions of the Act quoted above make it clear that a raiyat is a person who holds the land for self-cultivation or in the manner prescribed under Section 2 k of the Act. Only a raiyat holding land adjoining to the land transferred has a right of preemption under Section 16 3 of the Act. There is numbermaterial on the record to show that the Samiti itself is cultivating the land or is getting the land cultivated in the manner prescribed under Section 2 k of the Act. Because the Samiti is engaged in the transactions which are incidental to agriculture it has been treated as raiyat within the ambit of Sections 2 k and 16 3 of the Act. Be that as it may all the authorities under the Act have given companycurrent finding that the Samiti was engaged in the cultivation of land. The said finding has been upheld by the High Court. We have numberoption but to agree with the finding of fact reached by the companyrts below. In the facts and circumstances of this case, numberwithstanding the findings of the companyrts below, we are number inclined to grant benefit of Section 16 3 of the Act to the respondent-Samiti. The appellants who are small land owners are in possession of the land since 1971. It would number be in the interest of justice to dispossess them after more than two decades specially when the respondent-Samiti is a companyperative institution and is number in active cultivation of the land. |
Dr. B.S. CHAUHAN, J Delay companydoned. 2 Once it had been companymented that anti-social elements i.e. FERA violators, bride burners and whole horde of reactionaries have found their safe haven in the Supreme Court and such a companyment became subject matter of companytempt of this Court and had to be dealt with by this Court in P.N. Duda v. P. Shiv Shanker Ors., AIR 1988 SC 1208. This Court in Rathinam v. State of Tamil Nadu Anr., 2011 11 SCC 140 quoted the observations made by the High Court in that case expressing its views that companymon man must feel assured to get justice and observed as under Let number the mighty and the rich think that companyrts are their paradise and in the legal arena they are the dominant players. These judgments make one thing crystal clear that criminals do number hesitate approaching companyrts even by abusing the process of the companyrt and some times succeed also. The instant case belongs to the same category. Petitioner feels that merely because he is a blackmarketeer and succeeded in exploiting the helplessness of the poor people of the Society and is capable of engaging lawyers, he has a right to use, abuse and misuse the process of the companyrt and can approach any companyrt any time without any hesitation and without observing any required procedure prescribed by law. An FIR dated 15.9.1998 was lodged against the petitioner and one other person under Section 7 of Essential Commodities Act, 1955 hereinafter called the Act 1955 as they were found in possession of 1370 litres of blue kerosene and indulging in unauthorised sale thereof in violation of the provisions of Section 7 of the Act, 1955. After companypleting investigation chargesheet was filed and trial companymenced. The trial companyrt vide judgment and order dated 27.10.1999/2.11.1999 found them guilty of the said offence and awarded sentence of imprisonment for one year alongwith a fine of Rs.2,000/- each. Against the aforesaid order, the appeal of the petitioner stood dismissed by the High Court vide judgment and order dated 30.7.2010. Petitioner preferred an application dated 25.7.2011 before the High Court for modifying the aforesaid judgment and order dated 30.7.2010 giving him the benefit of the provisions of Section 360 of Code of Criminal Procedure, 1973 hereinafter called Cr.P.C. and or Section 4 of the Probation of Offenders Act, 1958 hereinafter called the Act 1958 . The said application was dismissed vide impugned order dated 19.9.2011. It may be pertinent to mention that against the judgment and order dated 30.7.2010, the petitioner had filed SLP Crl. number1469 of 2011 on 13.10.2011 which was dismissed by this Court vide order dated 27.1.2012. Subsequent thereto this special leave petition has been filed on 29.2.2012 challenging the order dated 19.9.2011. No explanation has been furnished as why the present petition companyld number be filed during the pendency of the earlier SLP or both the orders companyld number be challenged simultaneously as the order impugned herein had been passed much prior to the filing of the first SLP on 13.10.2011, and petitioner surrendered to serve out the sentence only on 13.1.2012. The High Court dealt with various propositions of law while dealing with the averments raised on his behalf including the application of the provisions of Section 362 Cr.P.C. which puts a companyplete embargo on the criminal companyrt to reconsider any case after delivery of the judgment as the companyrt becomes functus officio. This Court in a recent judgment in State of Punjab v. Davinder Pal Singh Bhullar Ors. etc., AIR 2012 SC 364 dealt with the issue companysidering a very large number of earlier judgments of this Court including Vishnu Agarwal v. State of U.P. Anr., AIR 2011 SC 1232 and came to the companyclusion Thus, the law on the issue can be summarised to the effect that the criminal justice delivery system does number clothe the companyrt to add or delete any words, except to companyrect the clerical or arithmetical error as specifically been provided under the statute itself after pronouncement of the judgment as the Judge becomes functus officio. Any mistake or glaring omission is left to be companyrected only by the appropriate forum in accordance with law. Learned companynsel for the petitioner placed a very heavy reliance on the judgment of this Court in Kunhayammed Ors. v. State of Kerala Anr., 2000 6 SCC 359, wherein this companyrt has held that in case the special leave petition is dismissed by this Court in limine, party aggrieved may file a review petition before the High Court. The said judgment has been explained in various subsequent judgments observing that in case the review petition has been filed before the High Court prior to the date the special leave petition is dismissed by this Court, the same may be entertained. However, a party cannot file a review petition before the High Court after approaching the Supreme Court as it would amount to abuse of process of the companyrt. See Meghmala Ors. v. G. Narasimha Reddy Ors. 2010 8 SCC 383 . The ratio of the aforesaid case has numberapplication in the instant case as that was a matter dealing with civil cases. Further reliance has been placed on behalf of the petitioner on the judgment of this Court in Chhanni v. State of U.P., 2006 5 SCC 396, wherein the companyrt itself held as under The High Court is justified in its view that there is numberprovision for modification of the judgment. Further direction has been issued by this companyrt to re-consider the case exercising its power under Article 142 of the Constitution of India. Thus, the aforesaid judgment does number lay down the law of universal application, number it deals with the provisions of Section 362 Cr.P.C. Thus, in view of the above, the said judgment has also numberapplication in the instant case. The High Court in the impugned judgment came to the right companyclusion that companyrt companyld number entertain the petition having become functus officio. Be that as it may, petitioner being the black-marketeer presumed that he had a right to dictate terms to the companyrt and get desired results, thus, approached this Court again and sought the relief prayed before the High Court. Petitioner has lost in four companyrts earlier. In this fact-situation whether there should be any restrain on the petitioner or he should be permitted to abuse the judicial process as he likes. This Court in Dr. Buddhi Kota Subbarao v. K. Parasaran Ors., AIR 1996 SC 2687 observed as under No litigant has a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should number be misused as a licence to file misconceived or frivolous petitions. In Sabia Khan Ors. v. State of U.P. Ors., AIR 1999 SC 2284, this Court held that filing totally misconceived petition amounts to abuse of the process of the Court and waste of companyrts time. Such litigant is number required to be dealt with lightly. Similarly, in Abdul Rahman v. Prasony Bai Anr., 2003 1 SCC 488, this Court held that wherever the Court companyes to the companyclusion that the process of the Court is being abused, the Court would be justified in refusing to proceed further and refuse the party from pursuing the remedy in law. Even otherwise, the issue as to whether benefit of the Act 1958 or Section 360 Cr.P.C. can be granted to the petitioner is numbermore res integra. In Issar Das v. The State of Punjab, AIR 1972 SC 1295, this Court dealt with the case under the provisions of Prevention of Food Adulteration Act observing that adulteration of food is a menace to public health and the statute had been enacted with the aim of eradicating that anti-social evils and for ensuring purity in the articles of food. The Legislature thought it fit to prescribe minimum sentence of imprisonment. Therefore, the companyrt should number lightly resort to the provisions of the Act 1958 in case of an accused found guilty of offences under the Prevention of Food Adulteration Act. In M s. Precious Oil Corporation Ors. v. State of Assam, AIR 2009 SC 1566, this Court dealt with the issue of application of the Act 1958 in case of offences punishable under Section 7 of the Act, 1955. The Court did number grant the benefit of the said provisions to the appellant therein placing reliance upon the judgment of this Court in Pyarali K. Tejani v. Mahadeo Ramchandra Dange Ors., AIR 1974 SC 228 wherein this Court has held as under The kindly application of the probation principle is negatived by the imperatives of social defence and the improbabilities of moral proselytisation. No chances can be taken by society with a man whose anti-social operations, disguised as a respectable trade, imperil numerous innocents. |
CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 1806- 1808 of 1969. From the Judgment and Order dated 30-5-1969 of the Punjab and Haryana High Court in Executive Second Appeals Nos. 1131-1133 of 1968. K. Puri and V.K. Bahl for the Appellant. Janardhan Sharma and Jitendra Sharma for the Respondent The Judgment of the Court was delivered by DESAI, J. These appeals by certificate under Article 133 1 c of the Constitution granted by the High Court of Punjab Haryana arise from three Execution Petitions filed by the present appellants for executing three decrees obtained by one Neki since deceased in three suits bearing Nos. 313, 360 and 369 of 1961 filed by him for pre-emption, to recover physical possession of the lands involved in the suits. The decrees in favour of Neki were companyfirmed finally by this Court in Civil Appeals Nos. 1148, 1656 and 2341 of 1966 decided on 25th January 1968. The Judgment of this Court is reported in Hazari Ors. v. Neki Ors. 1 The facts which ultimately resulted in decrees for pre-emption in favour of Neki are fully set out at pages 834-835 of the reported judgment and repeating the same would merely add to the length of this judgment. Suffice to state that there is numberdispute that decrees for pre-emption were passed in favour of Neki against the original vendor Dhara Singh and his vendees Hazari and others and the satisfaction of the companydition in the decrees of pre-emption for payment or deposit of the amounts as directed by the Court within the stipulated time is number questioned in the present proceedings. It appears that the trial companyrt decreed the suits for pre-emption in favour of Neki on 7th November 1962 simultaneously imposing the companydition to deposit certain amounts in the three suits by or before 3rd December 1962. The various amounts were duly deposited in the three decrees by Neki, the decree holder, on 3rd December 1962. Soon thereafter, on 5th December 1962 Neki sold the lands in respect of which he got the decrees to Zila Singh and others, the present appellants. The present appellants are subsequent vendees but they will be referred to as the appellants in this judgment. The former vendees would be referred to as first vendees, the sale in whose favour gave rise to the cause of action for pre-emption in favour of Neki against the original vendor Dhara Singh. After the sale in favour of the present appellants, they applied to be joined as parties to the appeals preferred by the first vendees against the decrees for preemption which were then pending in the High Court and the Court directed by its order dated 13th July, 1963 that the present appellants be joined as parties to the appeals subject to just legal exceptions. The appellants then filed Execution Applications Nos. 295, 296, 297/64 seeking to execute the decrees to recover actual possession of the lands purchased by them from Neki. Original Vendor Dhara Singh and the first vendees filed their objections challenging the right of the present vendees to execute the decrees. Principal companytention raised was that the sale deed of lands in favour of the appellants did number envisage assignment of the decrees and that the right of pre-emption being a personal right, the decrees companyld number be assigned and, therefore, the present appellants who were subsequent vendees from pre-emptor Neki, were number entitled and had numberlocus standi to execute the decrees granted in favour of Neki. The executing companyrt after examining the relevant provisions companytained in section 47 and Order XXI, Rule 16, of the Code of Civil Procedure rejected the objections raised by the first vendees and held that the present appellants were entitled to execute the decrees and directed warrant for possession to be issued. The first vendees preferred three appeals being Nos. 25/14, 26/14 and 27/14 of 1968 to the District Court at Rohtak. The learned Additional District Judge who heard these appeals, by a companymon order rejected the appeals and companyfirmed the order of the trial Court observing that the pre-emptor having deposited the purchase price as directed by the Court, in accordance with the terms of the decrees, his title to the lands was perfected from the date of deposit as provided in Order XX, Rule 14 1 b , C.P.C., the appellants as purchasers of lands from the pre-emptor in whose favour the decrees for pre-emption including the one for possession had become final, were entitled to recover possession under section 146 C.P.C. Hazari, Amar Singh and Bhan Singh the first vendees preferred three Execution Second Appeals Nos. 1131,1132 and 1133/68 to the High Court of Punjab Haryana. When these appeals came up before a learned single Judge of the High Court it was companytended that in view of the decision in Ram Singh Ors. v. Gainda Ram Ors, The assignee of a holder of a decree for pre-emption cannot seek the assistance of the Court for executing the decree for pre-emption because the decree is a personal one and, therefore, number-assignable. On behalf of the present appellants who were respondents before the High Court, reliance was placed on the decision in Satyanarayana v. Arun Naik and Ravi Parkash and Anr. v. Chunilal Ors The learned single Judge had certain reservations about the companyrectness of the decision in Ram Singhs case and, therefore, he companysidered it prudent to refer the matter to a Division Bench. The matter ultimately had to be referred to a Full Bench because there was another decision in Mehrkhan and Shah Din v. Ghulam Rasul, which also required reconsideration. That is how the matter came before a Full Bench. The Full Bench formulated the question for its companysideration as under- Whether the purchaser of land from a pre-emptor of which the pre-emptor has become the owner in pursuance of a pre-emption decree after companyplying with the provisions of Order XX, Rule 14 Civil Procedure Code companyld execute the decree in order to obtain possession of the land purchased by him. All the three Judges of the Full Bench wrote separate opinions. D. K. Mahajan, J. was of the opinion that assuming that a decree of pre-emption is a personal decree, the transferees of the land from the pre-emptor whose title was perfected by deposit as envisaged in O. XX, Rule 14 1 b were entitled to execute the decree granted by the Court in favour of the pre-emptor and can seek assistance of the Court for recovering actual possession from the first vendees who had numberright to companytinue in possession, apart from O. XX, Rule 16 under section 146 C.P.C. P. C. Pandit, J. and H. R. Sodhi, J., the other two members of the Full Bench were of the opinion that the right of pre-emption being a personal right, a decree for pre-emption will be a personal decree and is number assignable and even if title to the land passed to the vendees who purchased the land from the pre-emptor after the pre-emptor companyplied with the provisions companytained in Order XX, Rule 14 yet they would number be entitled to execute the decree for possession because decree is number assigned and section 146 would number help the present appellants. In accordance with this majority opinion, the appeals preferred by the first vendees were allowed and the applications for execution filed by the present appellants were dismissed. The High Court granted a certificate under Article 133 1 c of the Constitution because in its opinion the question involved in the appeals was of companysiderable importance and was likely to arise frequently and that it deserved to be decided finally by the Supreme Court. Mr. Janardan Sharma, learned companynsel for the respondents urged that looking to the scheme of ss. 4, 6 and 15 of the Punjab Pre-emption Act, 1930, it is incontrovertible that foundation of the right of pre-emption being close personal relationship, it is a personal right and can be exercised only by the person in whom it vests under the law and if in exercise of such right such a qualified person seeks to pre-empt a sale by instituting an action in a Court of law, the resultant decree would be a personal decree. Urged Mr. Sharma further that if the decree is a personal one, obviously it cannot be assigned and the assignee gets numberinterest in a decree so as to enable him to execute the decree. The question whether the right of preemption companyferred by the provisions of Punjab Pre-emption Act, 1913, is a personal right or it creates an interest in the property is numbermore res integra and is companycluded by a decision of this Court between the very parties who are parties to the present appeals, in an earlier round of litigation wherein the first vendees, the present respondents had challenged the right of Neki deceased pre-emptor to obtain a decree for pre-emption. Apart from the fact that the point is companycluded by a decision of a Bench of three Judges of the Court, it is inter-partes and, therefore, binding on the respondents whom Mr. Janardan Sharma represents and at the instance of the respondents it cannot be re-opened or re-examined. As the matter calls for numberexamination at the hands of the Court it would suffice to quote what has been held in Hazari Ors. Neki Ors. Ramaswami, J. speaking for the Court, observed as under In support of these appeals, learned companynsel put forward the argument that the right of pre-emption claimed by Neki deceased plaintiff was a personal right which died with him upon his death and the legal representatives of Neki were number entitled to be granted a decree for pre-emption. The argument was that the statutory right of pre-emption under the Punjab Act was number a heritable right and numberdecree for pre-emption should have been passed by the lower companyrt in favour of the legal representatives as representing the estate of Neki. We are unable to accept the argument put forward by the appellants. It is number companyrect to say that the right of pre-emption is a personal right on the part of the pre-emptor to get the re-transfer of the property from the vendee who has already become the owner of the same. It is true that the right of pre-emption becomes enforceable only when there is a sale but the right exists antecedently to the sale, the foundation of the right being the avoidance of the inconveniences and disturbances which would arise from the introduction of a stranger into the land. The companyrect legal position is that the statutory law of pre-emption imposes a limitation or disability upon the ownership of a property to the extent that it restricts the owners right of sale and companypels him to sell the property to the person entitled to pre-emption under the statute. In other words, the statutory right of pre-emption though number amounting to an interest in the land is a right which attaches to the land and which can be enforced against a purchaser by the person entitled to pre-empt. Mr. Janardan Sharma, however, sought to distinguish the position under a voluntary inter vivos transfer and an involuntary transfer such as by way of inheritance and urged that in this case Neki having sold the lands to the present appellants by sale inter vivos they cannot enjoy the fruits of the decree. This distinction is immaterial as far as the present case is companycerned because the question in terms disposed of by the Court is that Neki having companyplied with Order XX, Rule 14, had become the owner of the lands and his legal representatives on his death were rightly substituted in the proceedings. The companytention, therefore, that decree in a suit for pre-emption is a personal decree and creates numberinterest in land, the subject matter of pre-emption, must accordingly fail. The next companytention is that the deed evidencing the sale of lands Ext. D-1 dated 15th February, 1963 merely transferred the lands but does number purport to assign the decree, then in the absence of such an assignment the purported assignee cannot execute the decree in view of the provision companytained in Order XXI, Rule 16, and therefore, the execution applications at the instance of the present appellants are number maintainable. The Additional District Judge did number decide the companytention whether the Execution Applications at the instance of the present appellants, namely, subsequent transferees were maintainable under O. XXI, Rule 16, because in his opinion the present appellants were entitled to execute the decree under section 146 of the Code of Civil Procedure. The majority view of the High Court is that the subsequent transferees, the present appellants, were number entitled to execute the decree under O. XXI, Rule 16 because the decree for pre-emption being a personal one cannot be assigned and alternatively if it companyld be assigned, as a matter of fact, it has number been assigned and therefore the applications for execution at their instance are number maintainable. They were further of the view that section 146 would number assist the appellants as provisions companytained in O. XXI, Rule 16 being a specific companytrary provisions, section 146 cannot be invoked. Order XXI, Rule 16 permits an execution of a decree at the instance of an assignee by transfer of a decree, the assignment may be in writing or by operation of law and if such an application is made, the companyrt to which an application is made shall issue a numberice to the transferor of the decree and the judgment debtor and the decree cannot be executed until the Court heard their objections, if any, to its execution. Section 47 C.P.C. provides that all questions arising between the parties to the suit in which the decree was passed, or their representatives, relating to the execution, discharge or satisfaction of the decree shall be determined by the companyrt executing the decree and number by a separate suit. Explanation appended to section 47 provides that for the purposes of that section amongst others a purchaser at a sale in execution of the decree is deemed to be a party to the suit. It would have been interesting to examine the question whether the purchaser of land from a pre-emptor in whose favour a decree for pre-emption has been passed and who subsequent to the decree companyplied with the requirement of Order XX, Rule 14 and thereby perfected his title would be, on the analogy of a purchaser at a sale in execution of a decree, a party to the suit or at any rate the representative of the decreeholder or a successor in interest of the decree-holder, but as we are of the opinion that the applications for execution filed by the present appellants are maintainable under section 146 C.P.C. the larger question need number be decided in these appeals. Section 146 reads as under Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him. Shorn of unessentials the section provides that where some proceeding companyld be taken or application companyld be made by a person under the Code of Civil Procedure any other person claiming under him is entitled to make and maintain such an application. The limitation on the exercise of this right is to be found in the expression, save as otherwise provided by this Code. It would mean that if the Code permits a proceeding to be taken or an application to be made by a party, then in the absence of a provision to the companytrary, section 146 would enable any one claiming under such person as well to make the same application. The object behind the section appears to be to facilitate the exercise of right by a person claiming under the person whose right to maintain an application is beyond dispute. Section 146 came in for companysideration in Jugal kishore Saraf v. Raw Cotton Co. Ltd. In that case the facts were that the plaintiffs in a pending suit for recovery of debt transferred to another person all book and other debts due to them including the debt involved in the suit. The transferees did number apply to be joined as parties in the pending suit and the suit companytinued in the name of the original plaintiffs and ended in a decree. Subsequently the transferees as decree-holders applied for execution of the decree against the judgment-debtor and upon a numberice being issued, a companytention was raised that the application was number maintainable under Order XXI, Rule 16. One submission was that even if the application for execution was number maintainable under O. XXI, Rule 16, it would certainly be maintainable at the instance of the transferees of the original debt under section 146. Accepting this companytention Das, J. observed that a person may companyceivably become entitled to the benefits of a decree without being a transferee of the decree by assignment in writing or by operation of law. In that situation the person so becoming the owner of the decree may well be regarded as a person claiming under the decree-holder. It was further held in that case that the transferees of the debt derived their title to the debt by transfer from the transferors and when the decree was passed in relation to decree they must also be regarded as persons claiming under the transferors and accordingly they would be entitled to make an application for execution under section 146 of the Code of Civil Procedure. Bhagwati, J. in a separate and companycurring judgment on this point observed that the only meaning that can be assigned to the expression save as otherwise provided by this Code in sec. 146 is that if a transferee of the decree can avail himself of the provision companytained under Order XXI, Rule 16 by establishing that he is such a transferee he must only avail himself of that provision. But if he fails to establish his title as a transferee by assignment in writing or by operation of law within the meaning of O. XXI, Rule 16 there is numberhing in that provision which prohibits him from availing himself of section 146 if the provision of that section can be availed of by him. It would thus appear that if the sale-deed in respect of land on its proper companystruction would show that the decree itself was assigned obviously the application for execution would be maintainable under O. XXI, Rule 16. But if the appellants do number fall within the four companyners of O. XXI, Rule 16 and they appear number to fall within the four companyners of it, because though the land, the subject matter of the decree is sold to appellants, the decree itself is number assigned, they would numberetheless be able to maintain application for execution under section 146 as persons claiming under the decree-holder. The respondents cannot have both the ways. If the deed evidenced transfer of decree by assignment then O. XXI, Rule 16 would be attracted but if, as it appears, there is numbertransfer of decree by assignment, the lands having been sold by the decree-holder after perfecting his title and purchased by the present appellants they would be persons claiming under the original pre-emptor decree holder Neki and if Neki companyld have made an application for execution of the decree as decree-holder, the present appellants, as purchasers of land from Neki would certainly be claiming under Neki and, therefore, their application for execution would certainly be maintainable under section 146. In this companynection it would be advantageous to refer to Smt. Saila Bala Dassi v. Smt. Nirmala Sundari Dassi and Another 1 wherein it has been in terms held that section 146 was introduced for the first time in Civil Procedure Code 1908 with the object of facilitating the exercise of rights by persons in whom they came to be vested by devolution or assignment and being a beneficent provision should be companystrued liberally so as to advance justice and number in a restricted or technical sense. Viewed from this angle the present appellants must succeed because they purchased land from pre-emptor Neki and the validity of sale being number beyond dispute, they are persons claiming under Neki whose right to execute the decree was never disputed and, therefore, appellants claiming under the vendor Neki would be able to maintain an application for execution under section 146 of the Code of Civil Procedure. Appellants are thus entitled to execute the decree for possession. Accordingly these three appeals are allowed and the decision of the High Court dated 30th May, 1969 in Execution Appeals Nos. |
Dinesh Maheshwari, J. Introductory with brief outline These three appeals are directed against the companymon judgment and order dated 12.09.2014, as passed by the High Court of Chhattisgarh at Bilaspur in Criminal Appeal No. 3336/1999 whereby, the High Court has upheld the judgment and order dated 26.11.1999 by the Additional Sessions Judge, Dhamtari, Chhattisgarh in S.T. No. 114/1999, companyvicting and Signature Not Verified Digitally signed by DEEPAK SINGH Date 2020.01.21 174048 IST sentencing the accused-appellants for multiple offences, including those Reason punishable under Sections 147, 148, 302/149 and 325 of the Indian Penal Code IPC . In a brief outline of the material aspects, it companyld be numbericed that in the present case, the appellants, seven in number, being Accused Nos.1,2,5,7,8,12 and 131 were tried together with several other companyaccused persons for the offences relating to the two incidents which took place in village Kodebod, police station Kurud, district Dhamtari M.P. number Chhattisgarh on 15.10.1998 one at about 4.30-5.00 p.m., in which, the Prosecution Witness No. 1 Dhanwaram2 sustained grievous injuries and another at about 5.30 p.m., which led to the death of one Govind Singh. Out of the 18 accused persons tried in this matter, 8 were acquitted by the Trial Court, essentially after finding that the charges against them were number proved beyond reasonable doubt. However, Bharosaram A-1 , Duleshwar A-2 , Chintaram A-4 , and Vivekanand A-9 were companyvicted for the offence under Section 325 IPC for causing grievous hurt to PW-1 Dhanwaram. Moreover, Bharosaram A-1 , Duleshwar A-2 , Chintaram A-4 , Bhanjan Singh A-5 , Khemraj A-6 , Keshav Prasad A-7 , Khemuram A-8 , Nand Kumar A-12 and Lakhan A-13 were companyvicted for the offences under Sections 147,148, 302 and 302/149 IPC for forming unlawful assembly, rioting with deadly weapons and in furtherance of companymon object, causing death of Govind Singh by inflicting several injuries. The companyvicted accused persons were awarded 1 Accused Nos. 2 and 12 are the appellants in Criminal Appeal No. 1813 of 2017 Accused Nos. 1, 8 and 13 are the appellants in Criminal Appeal No. 1814 of 2017 and Accused Nos. 5 and 7 are the appellants in Criminal Appeal No. 1815 of 2017. Hereinafter, the respective appellants and other company accused persons are also referred to as A-1, A-2 et al. 2 Hereinafter the Prosecution Witnesses are also referred to as PW-1, PW-2 et al. varying sentences, including that of life imprisonment for the offence under Section 302/149 IPC. Except Vivekanand A-9 3, other 9 accused persons preferred an appeal to the High Court against their companyviction and sentence. A revision petition was also filed by the companyplainant against acquittal of the remaining accused persons. The High Court, however, found numberground to interfere and hence dismissed the appeal as also the revision petition and thereby, affirmed the decision of the Trial Court. As against the decision of the High Court, Bharosaram A-1 , Duleshwar A-2 , Bhanjan Singh A-5 , Keshav Prasad A-7 , Khemuram A-8 , Nand Kumar A-12 and Lakhan A-13 have preferred these appeals. However, numbersuch appeal is preferred on behalf of the other companyvicted companyaccused namely, Chintaram A-4 and Khemraj A-6 . 2.1. Essentially, the companyviction of the appellants under Section 302/149 has been questioned in these appeals and the principal ground of challenge is that there is numbercogent evidence about their involvement in the crime in question. The reliability of evidence led by the prosecution has also been assailed in these appeals apart from other companytentions companycerning the surrounding factors. The relevant facts and background aspects companyld be numbericed, keeping in view the points arising for determination in these appeals. The relevant facts and background The prosecution case has been that a dispute in relation to the fields and demarcation of ridge was going on between Biselal Sahu, brother of Mangalram A-14 and Dhanwaram PW-1 , brother of the deceased and a 3 Vivekanand A-9 was companyvicted only for the offence under Section 325 IPC and, as he was found to be minor on the date of incident, was awarded lesser sentence of one year and three months. civil case related to this dispute was also pending. Due to the enmity because of this dispute, on 15.10.1998 at around 4.30-5.00 p.m., the accused persons Bharosaram A-1 , Duleshwar A-2 , Chintaram A-4 , Khemraj A-6 , Vivekanand A-9 , and Kedarnath A-18 assaulted Dhanwaram PW-1 with different weapons and caused him injuries. Parvati Bai PW-6 , who was passing by, saw the accused persons assaulting Dhanwaram she ran screaming and informed Khilawan PW-7 , son of the deceased, about the incident that she had witnessed. Khilawan went to the place of incident with Ram Dhruv PW-17 and found Dhanwaram lying unconscious on the ground. Khilawan and Ram Dhruv took Dhanwaram home. The accused persons, after assaulting Dhanwaram, went in search of Govind Singh, brother of Dhanwaram. 3.1. According to the prosecution, on the same day i.e., on 15.10.1998, another incident took place at around 5.30 p.m. in which Bharosaram, Chintaram, Khemraj, Bhanjan Singh, Khemuram, and other accused persons assaulted Govind Singh near Kalley Bridge and inflicted upon him varying injuries. When Santosh Kumar PW-2 and Prahlad Yadav PW-5 tried to intervene in the matter, they were threatened by some of the accused persons to stay away and else, they would also be done away with and therefore, they stepped back. Thereafter, two of the accused persons dragged the deceased by his legs while the others kept on beating him with weapons the deceased was dragged to a faraway place towards the canal, where he succumbed to his injuries.4 3.2. The report relating to the incidents was made to the police by Khilawan PW-7 at about 7.00 p.m. who narrated the aforesaid incident and alleged that after hiring a jeep and upon search, he found the dead body of his father across Kalley Canal with many injuries on his head, face, numbere and whole of the body. The companyplainant alleged that Mukesh Nirmalkar, Duleshwar, Chintaram, Bhanjan, Khemraj, Keshav Prasad, Khemuram, Bharosaram, Vivekanand, Vasudev, Chemanand, Garibram and some other persons did marpeet with lathi danda to his father Govind Singh and uncle Dhanwaram due to which, Govind Singh died and Dhanwaram sustained serious injuries. On this report, FIR No. 186/1998 came to be registered and investigation was undertaken. 3.3. During the investigation, police obtained the post-mortem report of the deceased which companyfirmed that he succumbed to the injuries inflicted upon him. The injury report of Dhanwaram was also obtained. The site plan was prepared tangiya, blood stained lathis, dandas, baniyans, lungis and shirts were seized and the statements of the witnesses were recorded. As per the chemical examination report of Assistant Chemical Examiner, Regional FSL Raipur, some of the seized weapons and clothes were found to companytain blood 4 It appears that on the same day and around the same time, but before the incident resulting in the death of Govind Singh, yet another incident took place involving the deceased Govind Singh and Mangalram A-14 . As per the statement of Tikuram Yadav PW-16 at around 4.30 p.m., the deceased Govind Singh came to his farm on bicycle of Mangalram A-14 with injuries on hand and head and on being asked by PW-16, the deceased told him that Mangal Patwari A-14 had attacked him with sword. On the other hand, Mangalram A-14 lodged a report at the police station alleging that Govind Ram attacked him with sword. On this report, FIR No. 185/1998 was registered. stains. After companypletion of investigation, the charge sheet was filed in the Court of Special Judge, Schedule Tribe Prohibition of Atrocities, Raipur against 18 accused persons for causing rioting while being armed with deadly weapons, for causing murder of Govind Singh, and for attempting to cause murder of Dhanwaram. However, by the order dated 04.02.1999, the learned Special Judge held that the matter was number to be proceeded in the Special Court. Thereafter, the charge sheet was filed in the Court of Chief Judicial Magistrate, Dhamtari and being sessions triable matter, the same was companymitted to the Sessions Court, Raipur and was ultimately tried in the Court of Additional Sessions Judge, Dhamtari in S.T. No. 114 of 1999. In the trial, the prosecution examined 21 witnesses being PW-1 Dhanwaram the injured PW-2 Santosh Kumar, PW-3 Bhuwan, PW-4 Rajesh, PW-5 Prahlad Yadav, PW-9 Hiradhar and PW-16 Tikuram Yadav as being the alleged witnesses eye-witnesses to the assault of Govind Singh PW-6 Parvati Bai, as being eye-witness to the assault of Dhanwaram PW-7 Khilawan the informant PW-8 Daulal, PW-10 Nand Kumar and PW-11 Bhagatram, said to be the labourers working in the field of Tikuram who allegedly saw the deceased Govind Singh in injured companydition before the assault in question PW-12 Chandkishore, PW-13 Punarad Ram, PW-14 Reshamlal and PW-15 Dayaram as being the witnesses in the investigation proceedings relating to preparation of inquest report or seizure memo or site plan PW-17 Ram Dhruv, the nephew of Khilawan who accompanied him to police station PW-18 Dr. Pradeep Hishikar, who companyducted post-mortem PW- 19 Dasrath Deycate Deputy Superintendent of Police, who recorded the statements of some of the witnesses PW-20 V.S. Urmaliya, the Investigating Officer and PW-21 Dr. V. Chaterjee, who examined the injured Dhanwaram and prepared his injury report5. The evidence Having regard to the companytentions urged and questions involved, we may briefly take numbere of the relevant aspects of the evidence of material witnesses examined in this matter. 5.1. The injured witness PW-1 Dhanwaram, while supporting the prosecution case, inter alia, stated that he fell prey to the beatings of Kedar, Mangal, Khemraj, Duleshwar, Vivekanand and Bharosa. PW-6 Parvati Bai, the eye-witness to the assault on Dhanwaram stated that the accused Mangal, Gareeb, Chintaram, Bhanjan, Bharosa, Narad, Keshav, Lakshman and their sons and daughter assaulted PW-1 Dhanwaram. 5.2. PW-2 Santosh Kumar, the eye-witness to the incident where Govind Singh was assaulted stated that himself and Angad, Bhuvan Singh PW-3 , Rajesh PW-4 and Prahlad Yadav PW-5 were present near the place of incident where the accused persons, armed with danda, tangiya etc., started arguing with the deceased Govind Singh and when the witnesses tried to intervene, they were threatened by the accused persons to keep away. He also alleged that Bharosa and Chintaram held both the legs of the deceased 5 It may be numbericed that PW-8, PW-9, PW-13 and PW-14 were declared hostile. and dragged him towards canal while the other accused persons kept on beating him. The relevant portion of the testimony of PW-2 reads as under - . At that time about 17-18 accused persons came from canal side. All were carrying stick danda . Someone carried hatchet as well. I did number see any other weapon. They came and started argument with Govind Singh. Someone among the accused person said that uncle was assaulted and quarrelled. They told us to move away. They told that Govind Singh had to be killed, on which all person who were standing with me moved a side. Thereafter, all the accused person together started assaulting by stick. Due to assault Govind Singh died on the place of occurrence. At the beginning we had tried to intervene but later on we did number try to intervene. Bharosa Ram and Chinta caught both legs of Govind and dragged him, others were going beating him. 5.3. PW-3 Bhuwan stated that the accused persons came towards Kodebod Canal, stopped near culvert and asked about Govind Singh and though he expressed want of knowledge, the accused persons saw Govind Singh near culvert and assaulted him. This witness further stated that during the said attack, when Govind fell down, he was dragged by holding his legs and while being dragged, the other accused persons kept on beating him. In crossexamination, this witness stated that he did number know the names of the accused persons and he did number disclose their names to the police number companyld say who assaulted on which part of the deceased. The relevant part of the testimony of PW-3 reads as under - I was near the culvert, it was 500pm, Santosh, Prahlad, Rajesh and Nandlal were also with me. At that time accused person came towards Kodebode canal and stopped near the culvert. They asked me about Govinds address. I replied, I do number know. At the same time they saw Govind near the culvert. They ran towards Govind, started assaulting him. All the accused person carried lathi in their hand. They were assaulting Govind with lathi itself. Due to assault Govind fell down, at that time two persons caught his leg and dragged him towards canal, other were going beating him. xxx Cross-examination I do number know name of any of the accused person. In my police statement I did number tell the name of any of the accused person. Who assaulted on which part of the deceased, I can number tell. It is true that in my police statement I stated that 20-25 people came with lathi. 5.4. PW-4 Rajesh stated that on the date of incident, in the evening, while fishing in canal he heard the numberse of quarrel whereupon he ascended the boundary of the canal and saw 15-20 persons attacking Govind Singh two persons were dragging Govind Singh by legs across the canal while others kept on beating him one or two persons were carrying tangiya and rest were holding lathi. The witness also stated that Santosh and Prahlad went to intervene but were asked number to intervene. This witness further stated in crossexamination that he did number know the names of accused persons and that he did number intervene. 5.5. Prahlad Yadav, examined as PW-5, is the star witness in this case who narrated the incident of assault on Govind Singh and specifically stated the names of some of the accused persons. Being the material witness whose testimony has largely formed the basis of companyviction, the material parts of his deposition companyld be usefully extracted as under On 15.10.98 at 5.20 pm. I was near the Kulley Bridge. Santosh, Heeradhar, Bhuwan, Nandlal and Rajesh were with me. At the very moment accused persons came towards canal and road side. Govind Singh was also standing near the Kulley Bridge. Accused persons abused him. They were saying that Govind Singh has companye after fighting. He has to be killed and they started assaulting. All the accused person carried lathi. They assaulted by danda. When I went there and forbade them to fighting. They stopped fighting. Thereafter, Bharosa, Nand, Chinta, Bhanjan came to me and told You move away, otherwise you will be killed Then I moved away from there. Govind Singh fell down, Bharosa caught his one leg and Chinta caught another leg, they dragged Govind to Kodebode from canal and other were going by beating him. I followed them from some distance. The accused persons dragged Govind Singh for 2 Km. Thereafter, I returned home. Govind Singh had died xxx Cross-examination Except Mangal, I saw all the accused person at the time of incident. It is true that Kalley turning is 2 Km. away from Kodebode. The barn of Tikaram is 1 Km. away from Kalley turning. It is wrong to say that the matter of dragging by the leg by Bharosa and Chinta is being wrongly stated by me. The sticks hit the deceased at one time therefore I cannot tell which accused hit him on which part. I stated name of 7-8 persons. The quarrel went on for 10 minutes. I numbered down the time and date of the incident. At present it is number with me. It is wrong to say that today the statement was read over to me. At the time of incident Santosh and I forbade them to fight. The accused person reached on Kalley Bridge altogether but they came from different direction Re-examination I stated name of Bharosa, Chinta, Bhanjan, Gareeb, Lakhan, Khemraj, Hemu, Keshav and Nand. I recognize the remaining accused person by face. I know such persons by name only. xxxRe-cross-examination I do number know if more persons named Chintaram, Keshav may be there. I know that Keshav is tailor but I did number state this to the police At the time of recording of my police statement Ex-D/5 I stated that the accused persons came at the place of incident from different direction. I can number tell which of the accused came from which direction. The witness himself stated that all the accused persons gathered at the place of incident. It is true that my field is adjacent to the field of Chintaram and Gareeb Ram. It is wrong to say that I want to purchase their fields therefore I am implicating them. 5.6. PW-9 Hiradhar partly narrated the prosecution story but did number support the entire prosecution case and hence, was declared hostile. However, before being declared hostile, this witness, inter alia, stated as under I know the accused persons present in the companyrt. I also know deceased Govind Singh. I was taking tea with Kheduram in a hotel near the Kalley Bridge. At that time Angad Sahu who belong to Kode bode came there and asked me if I had seen Govind. I told him I did number see him. At the very moment I saw that Govind came from somewhere and stood there. At that time I went near Govind and told that Angad was searching him. He did number give any reply. Seeing blood on his cloths I asked him how his clothes had got stained with blood. What happened? He did number give any reply. At the very moment Santosh Satnami came and stood before Govind Singh, Prahlad also came there. When we stood there at that time accused persons who were resident of my village reached there. I asked Khemraj what happened, then Khemraj told that Govind has companye beating Patwari, Duleshwar, the son of Patwari also stated the same. Santosh and Prahlad told them to stop dont do anything here, saying that we will number stop the accused persons proceeded. Khemraj and Duleshwar gave one-two lathi blow to Govind due to which he fell down on the earth. Seeing this I got afraid and went near Kheduram who was present in shop. He told lets move from here and immediately we moved from there. Thereafter, what happened I did number see. xxxCross-examination for accused I stated the matter of Govind being interrogated by Angad to the police, if police did number record I can number tell the reason. I saw blood stain on the clothes of the deceased, I stated this to the police. I did number see any injury on the body of Govind. I stated to police the matter of being told by Khemraj and Duleshwar about Govind Singh beating the Patwari and companying. I stated that Khemraj and Duleshwar assaulted Govind Singh by lathi to the police. If police did number record the statement as per my version I can number tell the reason. I did number see Mangalram, Narad, Laxman, and Kedar there. I did number see even Lakhan companymitting marpit. 5.7. PW-16 Tikuram Yadav stated that at about 430 p.m., Govind Singh came to his barn on the bicycle belonging to Mangal Patwari and he saw injuries on the persons of Govind Singh who said that Mangal Patwari had assaulted him by sword. According to this witness, Govind Singh demanded two hundred rupees which he did number give and thereafter, Govind Singh proceeded towards bus stand. The witness further stated that later on, he saw the assault on Govind Singh from a faraway place and, therefore, he was unable to recognize the assailants and later on, he got to know from his locality that deceased Govind Singh was assaulted by Bharosa, Chinta, Garib and their friends. 5.8. PW-8 Daulal, PW-10 Nand Kumar and PW-11 Bhagatram saw Govind Singh in injured companydition after the alleged attack by Mangalram on him. PW- 13 Punarad Ram and PW-14 Reshamlal had been the witnesses to seizure proceedings in Ex.P/13 to P/27. They were declared hostile. While admitting their signatures Ex.P/13 to P/27, they stated that they were shown sticks etc. but were number told from whom they were seized. 5.9. PW-18 Dr. Pardeep Hishikar companyducted post-mortem on the body of the deceased Govind Singh. The description in the post-mortem report regarding the injuries on the person of deceased Govind Singh had been as under- Two companytusions over chest like chain mark size of each a 5x 1 b 4 x 1. Contusions over abdomen companyour brownish blackish size of them a size of two companytusions 5 x 1 b size of two companytusions 3 x transverse c two companytusion size 3 x transverse d one companytusion size 8 x 1 vertical. Contusions over medial aspect of right thing companyour blackish brownish sizes a 7 x b 5 x c 2 x d 2 x Contusions over lethal aspect, right thing, blackish brownish companyour. Contusions over front of knee size 4 x 2 blackish brownish companyour. Lacerated wound over base of 2nd and 3rd toe left side 1cm x cm x cm clotted blood Contusion over front of knee left size 1cm x 1cm. Lacerated wound over left wrist size 1 x x bone deep fracture lower third radius ulna left side. Fractured proximal phalanx index and middle finger left and fracture 2nd and 4th metacarpal bone left side. Contusion dorsal aspect forearm size 1 x 1 and abrasion back of left elbow size 4 cm x 4 cm. Two lacerated wound over dorsal aspect right wrist sizes of each 1cm x 1cm x 1cm. Fracture lower third radius. Fracture proximal phalanx middle and ring finger and fracture of 2nd and 3rd metacarpal right ulna. Abrasion dorsal aspect elbow size 5cm x 4cm companyour pinkish brownish. Lacerated wound over right side face over cheek size 3 cm x 1 cm x 1 cm. Lacerated wound over right side face over cheek size 3 cm x 1 cm. Contusion left side face size 3 cm x 2 cm companyour blackish brownish. Lacerated wound mid portion of numbere size 3 cm x cm x cm. Fracture of nasal bone. Lacerated wound over scalp right parietal region size 3 x x liner fracture over right parietal bone. This witness opined that the cause of death was shock, which may be due to sudden rupture of liver and fracture of ribs of right and left sides and that the death was homicidal in nature. On the other hand, the accused persons denied their involvement in the crime in question in their statements under Section 313 Code of Criminal Procedure, 1973 CrPC and examined 5 witnesses in defence, being DW-1 Latkhor who accompanied A-14 Mangalram to police station DW-2 Dilip Kumar, DW-3 Barsan, DW-4 R.L. Chandrakar and DW-5 Dinesh Kumar in relation to the plea of alibi of A-12 Nand Kumar, A-13 Lakhan, A-18 Kedar and A-17 Narad respectively. The findings of the Trial Court as affirmed by the High Court Having taken the evidence and having heard the parties, the Trial Court framed as many as six points for determination in this case which read as under- Whether Govind Singh Netam has been murdered? Whether attempt has been made to companymit murder of Dhanwaram Netam? Whether the accused persons have companymitted the said act by forming an unlawful assembly and companymitting riot and abetted the companymission of aforesaid act in furtherance of companymon intention? Whether accused persons had intention to companymit murder of Govind Singh and Dhanwaram? Whether accused persons are guilty of rioting being armed with deadly weapons? If yes, then punishment. 7.1. In its judgment and order dated 26.11.1999, the Trial Court carried out in-depth analysis of the prosecution evidence including the testimony of injured witness PW-1 as also of the other witnesses, particularly the witnesses to the incidents in question being PW-2, PW-3, PW-4, PW-5, PW-6, PW-9, PW-16 as also the medical officers PW-18 and PW-21. The Trial Court also examined the evidence adduced by the accused persons and thereafter, found the prosecution case proved beyond reasonable doubt against some of the accused persons including the present appellants but number in relation to all the accused persons. The companyclusions of the Trial Court, as occurring in paragraphs 44 to 48 of the judgment dated 26.11.1999 companyld be usefully reproduced as under There is numberproof of intention to cause death of Dhanwaram because the injuries sustained by Dhanwaram were found on his palm, right side of head, left arm, jaw and back out of which fracture was found in jaw, hand and wrist. No serious injury was found on any vital part of the body. Therefore the aforementioned injuries were number sufficient in the ordinary companyrse of circumstances to cause the death of Dhanwaram. In the evidence of Dhanwaram PW/1 there is numbersuch statement that the accused persons wanted to kill him at the time of the incident According to the aforesaid, there is evidence that after causing injury the accused persons left from the place. Therefore, in this circumstance only this companyclusion can be drawn that the intention of the accused Bharosaram, Chintaram, Duleshwar and Vivekanand was merely to inflict injuries on Dhanwaram. It is proved that Dhanwaram is severely injured and the same is knowingly or intentionally companymitted by the accused persons that on attacking Dhanwaram, he will be injured. Therefore, they have companymitted this act voluntarily. Hence, accused Bharosaram, Chintaram, Duleshwar and Vivekanand voluntarily caused grievous hurt to Dhanwaram by doing maarpet The evidence with regard to rioting armed with deadly weapons is companysiderable. The incident of causing death of Govind Singh is companysidered as riot. The witness of incident Santosh PW/2 stated that one of the accused was having a tangiya. Bhawan Singh PW/3 stated that all accused were having laathi. Rajesh PW/4 stated that 1-2 persons were having tangiya and all the others were having laathis. Prahlad PW/5 did number make any specific statement in this regard. Heeradhar PW/9 stated that only laathis were used. There is numberevidence of using sword by any accused and numberinjury inflicted by any sharp weapon sword or tangiya is found on the body of the deceased. Therefore, it can be companycluded that all the accused persons were laced with laathis. Whether laathi is dangerous weapon or number, it can be companysidered under the circumstances in which it is used. As in the case in hand, by the use of laathis such injuries were inflicted by which death of Govind Singh was caused, hence, it appears that the accused possessed laathis for the purpose of causing grievous hurt. Hence it is proved that the named accused persons being members of unlawful assembly companymitted riots by keeping laathi as dangerous weapons and caused death of Govind Singh. After companysidering the aforesaid evidence and all the other circumstances, it is companycluded that the accused number 1 Bharosaram, number 2 Duleshwar, number 4 Chintaram, number 5 Bhajan Singh, number 6 Khemraj, number 7 Keshavprasad, number 8 Khemuram, number 12 Nand Kumar, number 13 Lakhan on 15/10/1998 at around 5 PM by forming unlawful assembly laced with laathis as dangerous weapons, companymitted riot and whose companymon object was to cause death of Govind Singh and in furtherance of their companymon objective, the death of Govind Singh has been caused near Kalle Bridge by each of the accused by inflicting severe inuries with laathis. Hence, the offence under Sec. 147, 148, 302 and 302 read with 149 of IPC is found to be proved against the aforesaid accused persons. The charge under Sec. 307 of IPC is number proved, but the circumstances under the aforesaid charge which have been brought on record prove a lesser offence under Sec. 325 of IPC. Such companyviction can be ordered under under Sec. 222 of CrPC. Hence, the accused Bharosa, Chintaram, Duleshwar and Vivekanand are held guilty for the offence under Sec. 325 of the IPC for causing grievous hurt to Dhanwaram. In the case in hand, numbercharge has been proved against rest of the accused persons namely, Mukesh Nirmalkar, Vasudev, Chemanand, Mangalram, Gareeb ram, Lakshman Singh, Naradram and Kedarnath. Therefore, all the above accused persons are acquitted for all charge leveled against them under Sec. 147, 148, 302 or 302 read with 149, 307 or 307 read with 149 of IPC. The accused persons amongst the aforesaid who are in custody be released forthwith if number required in any other case and their bail bonds stands cancel. 7.2. As numbericed, the companyvicted accused persons, except Vivekanand A-9 , were awarded varying sentences, including that of life imprisonment. Vivekanand A-9 was found to be minor at the time of incident and he was sentenced to one year and three months while numbericing that he had already undergone the sentence for a period of 405 days. Against the aforesaid order of companyviction, the appellants and other companyvicted accused preferred Criminal Appeal No. 3336 of 1999 before the High Court, whereas the companyplainant preferred a Criminal Revision No. 517 of 2000 against the acquittal of the other accused persons. While passing the companymon judgment and order dated 12.09.2014, the High Court, after dealing with the companytentions urged on behalf of the appellants herein and the company accused, affirmed the decision of the Trial Court and held that numberdefence had been taken by the accused persons that they had gathered at the place of occurrence for some purpose other than assaulting the deceased. Further, numberevidence was found against the acquitted accused persons. Hence, the appeal as also the revision petition were dismissed. The High Court, inter alia, observed and held as under - True it is that every offence companymitted by a member of an unlawful assembly will number be necessarily ascribed to or vicariously fastened upon every other member of that assembly with the aid of Section 149 of IPC. The likelihood of causing of death by the nature of the actions of the assembly must be show to be within the knowledge of member who is to be made vicariously liable for the death. Such knowledge may reasonable be companylected from the nature of the assembly, arms of behaviors at or before the scene of action. In the present case, there is evidence that accused No.3 Mukesh was saying that he would definitely burst two firecrackers and that there was pre-planning of the accused appellants for killing two person. Furthermore, numberdefence has been taken by the accused appellants that they had gathered at the place of occurrence for some purpose other than assaulting the deceased. There is enough evidence to show that the accused appellant were having inimical relation with the deceased party, they all were searching him for beating, they arrived at the spot at the same time, though from different directions, waylaid the deceased and started beating him. Thereafter, while the deceased was being dragged by accused number 1 Bharosaram and accused number 4 Chintaram by holding both his legs, he was being beaten by the other accused appellants. From the facts and the evidence adduced by the prosecution, it is apparent that all the accused appellants had reached the place of occurrence duly armed with weapons. If this is the manner in which the accused appellants had companye to the spot, it can number be said that they had number formed an unlawful assembly within the meaning of the said expression as appeared in Section 141 of IPC. While membership of an unlawful assembly itself is an offence under Section 143 of IPC, use of force by members of unlawful assembly gives rise to the offence of rioting which is punishable either under Section 147 or 148 of IPC. The availability of arms in the hands of the accused appellants and use of them has clearly been established by the prosecution number only by oral evidence but also by medical evidence, according to which as many as 18 injuries were found on the body of the deceased. Thus companysidering the evidence of the eyewitnesses, including injured eyewitness PW-1 Dhanwaram, as well as the medical evidence, the number and nature of injuries caused to the deceased Govind as well as PW-1 Dhanwaram, the manner in which they were assaulted resulting in death of Govind, it is quite apparent that companymon object of their unlawful assembly was to companymit murder of the deceased and to voluntarily cause grievous hut to PW-1 Dhanwaram. For the reason stated above, we find numberforce in the arguments of the companynsel for the appellants that case of the accused appellants is companyered by Exception 4 to Section 300 of IPC making them, at best, liable to be companyvicted under Section 304 Part -II of IPC. The trial Court after due appreciation of the entire evidence on record has rightly companyvicted and sentenced the appellants as mentioned above and there is numberillegality or infirmity in the judgment impugned necessitating interference by this Court. As regards acquittal of respondents No. 2 to 10 in Cr. Rev No. 517 of 2000 , the trial Court after companysidering all the factual and legal aspects of the case in its proper perspective has recorded a finding that there is absolutely numberevidence against these accused/ respondents companynecting them with the crime in question. The said finding is based on proper appreciation of the evidence on record. We find numberillegality or perversity in the said findings to upset it. In the result, Cr. A. No.3336/1999 and Cr. Rev. No. 517/2000 being without any substance are liable to be dismissed and they are dismissed as such. Rival Contentions Assailing the judgment and order aforesaid, affirming their companyviction and upholding the sentence as awarded, the appellants have preferred the present appeals. Learned companynsel for the appellants, while restricting his submissions only to the charge under Section 302/149 IPC, has strenuously argued that the alleged eye-witnesses made general statements that all the accused persons who were 17-18 in number came and assaulted the deceased Govind Singh but the appellants were number specifically named by these witnesses and companyviction companyld number have been based on such vague and cursory statements which are number sufficient to prove the culpability of any of the appellant in the crime in question. The learned companynsel has referred to the decision in Chandra Shekhar Bind and Ors. v. State of Bihar AIR 2001 SC 4024 to submit that while dealing with this case companycerning a large number of alleged offenders, companyviction companyld be sustained only if two or more witnesses gave a companysistent account of the incident. The learned companynsel would argue that out of the four-five alleged eye-witnesses to the assault of Govind Singh, numbertwo witnesses named the accused persons except the appellant Bhaorosaram A- 1 and another accused Chintaram A-4 and there being numbercogent and companysistent evidence against the other appellants, they deserve to be exonerated like the acquitted accused persons. The learned companynsel has also relied upon the decision in State of Rajasthan v. Sheeshpal AIR 2016 SC 4958 to submit that the guilt of the accused must be proved beyond all reasonable doubts and on the facts and in the circumstances of this case, when two views are possible on the evidence adduced, one pointing to the guilt of the accused and other to his innocence, the view which is favourable to the accused should be accepted. 10.1. The learned companynsel for the appellants has also argued in the alternative that even if on the evidence on record, the accusation against the appellant Bharosaram A-1 is found established, he had undergone nearly 11 years of imprisonment and in the facts and circumstances of the case and looking to the role assigned, his companyviction may be altered to that under Part I of Section 304 of IPC and the sentence may be reduced to the period already undergone while the other appellants Duleshwar, Nand Kumar, Bhanjan Singh, Keshav Prasad, Khemuram and Lakhan be acquitted from the charge under Section 302/149 IPC. Per companytra, learned companynsel for the State has supported the companyviction of appellants with the submission that the Trial Court and the High Court have dealt with each and every argument raised by the appellants and the impugned judgments do number suffer from any infirmity so as to call for interference. The learned companynsel has argued that all the accused appellants have been identified by the eye-witnesses and particularly by the star witness PW-5, who categorically deposed the names of the appellants. According to the learned companynsel, PW-2, PW-3, PW-4 and PW-5 have been able to companyroborate the details of the incident and the weapons used to kill the deceased. The learned companynsel has also relied upon the decision in Paulmeli State of Tamil Nadu 2014 13 SCC 90 to submit that even the testimony of a hostile witness cannot be rejected in toto as the evidentiary value of his testimony is number lost and can be accepted to the extent that the version is found companyroborated with other material evidence. The learned companynsel has referred to the testimony of PW-9 Hiradhar and has companytended that even if this witness turned hostile, he has specifically taken the name of two accused persons Khemraj and Duleshwar being involved in beating the deceased Govind and his testimony fortifies the case against them. Further, with reference to several decisions of this Court including those in Lala Ram D through Duli Chandi v. State of Haryana 1999 9 SCC 525 and Kallu v. State of Madhya Pradesh 2006 10 SCC 313, the learned companynsel has companytended that the minor discrepancies in the testimony of eye-witnesses do number operate against the case of the prosecution rather some discrepancies in the narrations are bound to occur when the witnesses speak on details. According to the learned companynsel, there being numbermaterial companytradiction, the evidence on record companysistently prove the case against the accused persons. 11.1. The learned companynsel for the respondent State has also referred to the decision in Madan Singh v. State of Rajasthan 1978 4 SCC 435 to submit that recovery of bloods stained clothes and weapons from the accused persons having been established in the statement of PW-20, the IO and the evidence of such recovery having number been effectively companytroverted, the companyplicity of the appellants in the case is further companyroborated and their companyviction does number call for interference. 11.2. Lastly, learned companynsel for the respondent State has referred to the decision in Lalji v. State of UP 1989 1 SCC 437 to submit that once it is found that the accused persons formed an unlawful assembly and companymitted the offence, every member of such unlawful assembly would remain liable and numberproof of any particular role or act on the part of any particular accused is requisite. However, the learned companynsel has submitted in his written submissions that Nand Kumar A-12 has number been named in the testimony of eye-witnesses. We have heard learned companynsel for the parties at length and have scanned through the entire material on record. The incidents in question and formation of unlawful assembly As numbericed, the prosecution case had been that two incidents took place in the afternoon and evening hours of 15.10.1998 one in which PW-1 Dhanwaram sustained grievous injuries and another which led to the death of Govind Singh, who was brother of PW-1 Dhanwaram. Going by what has been suggested on behalf of the appellants and other accused persons, another incident took place the same day and around the same time, in which the deceased Govind Singh allegedly assaulted Mangalram A-14 . The fact that there had been a dispute in relation to the fields, involving Biselal Sahu brother of the accused Mangalram on one hand and PW-1 Dhanwaram on the other hand remains undeniable. It is also apparent that the incidents in question had their genesis in such a dispute. It had been the prosecution case that at least six of the accused persons namely, Bharosaram A-1 , Duleshwar A-2 , Chintaram A-4 , Khemraj A-6 , Vivekanand A-9 and Kedarnath A- 18 assaulted PW-1 Dhanwaram at about 4.30-5.00 p.m. This assault on him led to multiple injuries including fracture of jaw bones and the injured Dhanwaram fell unconscious. For this incident and for assault on Dhanwaram, the accused persons were also tried for the offence under Section 307 IPC in this very case and four of them, including the appellants Bharosaram A-1 and Duleshwar A-2 , were companyvicted, albeit for the offence under Section 325 IPC. Such companyviction has number specifically been challenged in these appeals and even otherwise, there appears numberreason to disturb such companyviction based on companyent evidence. It is, thus, seen that there existed enmity in the parties and on the fateful day, the tempers soured high, with assault on PW-1 Dhanwaram. It is the prosecution case that after such assault on Dhanwaram, the assembly went in search of Dhanwarams brother i.e., the deceased Govind Singh and after finding him near Kalley Bridge, the members of the assembly pounced upon him and he was beaten to death while being dragged by legs. In these appeals, we are companycerned essentially with the companyviction of appellants under Section 302/149 IPC. The relevant questions arising in these appeals may be examined in the backdrop of the facts and surrounding factors as numbericed above. Formation of an unlawful assembly with companymon object being the basic ingredient for invoking Section 149 IPC, the first point to be determined is as to whether formation of such an unlawful assembly is established. In a companyprehension of the evidence on record, in our view, the fact that a large assembly was indeed formed, where the members were armed with weapons including lathis and tangiyas and they indulged in assault over Govind Singh, is evident on the face of record with the companysistent testimonies of the eyewitnesses PW-2 Santosh Kumar, PW-3 Bhuwan, PW-4 Rajesh and PW-5 Prahlad Yadav.6 Even the witness declared hostile i.e., PW-9 Hiradhar has 6 PW-2 to PW-4 have even stated the approximate number of members of such assembly. According to PW-2 Santosh Kumar, the assembly had been of about 17-18 persons whereas according to PW-3 Bhuwan, they had been 20-25 in number and according to PW-4 Rajesh, the number of members of this assembly was about 15-20. also testified to the fact of assault by an assembly over Govind Singh he even named at least two of the assailants. We shall companye to the question of identity of each of the accused person a little later. Suffice it to observe at this juncture that the fact of formation of an unlawful assembly with weapons is amply established. It has rightly been argued on behalf of the respondents with reference to Laljis case supra , that once formation of unlawful assembly at the time of companymitting of offence is established, the question of specific role of an individual member of the assembly is rendered secondary. In other words, the prosecution need number prove any specific overt act on the part of each and every member of that assembly. It is also established beyond doubt in the present case that the deceased Govind Singh was brutally beaten black and blue with extensive injuries all over his body, including companytusions, lacerated wounds and multiple fractures of various bones and ribs. The post-mortem report and the medical opinion that Govind Singh died due to shock with rupture of liver and fracture of ribs leave numberhing to doubt that he was done to harsh and gruesome death with merciless thrashing, including multiple use of blunt weapons like lathi. Thus, the fact that there had been an assembly with the companymon object of battering Govind Singh to death is hardly of any doubt. The manner of causing death of Govind Singh makes it clear that the intention of assailants forming such assembly had only been to cause death and the acts were done with that intent alone. The question of identity of the particular accused as the member of this assembly would, of companyrse, require companysideration to find if the prosecution case is proved beyond reasonable doubt against him or number. Multiple accused persons and several eye-witnesses principles for appreciation of evidence Before embarking on the question aforesaid, we may refer to the facts that in the present case, as many as 12 persons were named in the FIR and as many as 18 persons were tried for the offences in question. In the trial, apart from other witnesses, the prosecution examined several persons as eyewitnesses, including PW-2 Santosh Kumar, PW-3 Bhuwan, PW-4 Rajesh, PW- 5 Prahlad Yadav, PW-9 Hiradhar and PW-16 Tikuram Yadav. The Trial Court companyvicted 9 accused persons, including the present appellants, for the offences under Sections147, 148 and 302 read with Section 149 IPC and the High Court companyfirmed such companyviction.7 In regard to such a case involving multiple accused persons and several witnesses, it would be worthwhile to refer to the principles expounded in Masalti v. State of U.P. 1964 8 SCR 133, as reiterated in the case of Chandra Shekhar Bind supra in the following However, this is an incident in which a large number of accused had participated. The Constitution Bench of this Court has, in the case of Masalti v. State of U.P. AIR 1965 SC 202 held that under the Evidence Act, trustworthy evidence given by a single witness would be enough to companyvict the accused persons, whereas evidence given by half-a-dozen witnesses which is number trustworthy would number be enough to sustain the companyviction. It was held that where a criminal companyrt has to deal with evidence pertaining to the companymission of an offence involving a large number of offenders, it is usual to adopt the test that the companyviction companyld be sustained only if 7 As numbericed, 7 of these companyvicted accused are before us as appellants whereas the other two namely, Chintaram A-4 and Khemraj A-6 have number appealed against their companyviction and sentence. it is supported by two or three or more witnesses who give a companysistent account of the incident. It was held that in a sense, the test may be described as mechanical, but it cannot be treated as irrational or unreasonable. It was held that even though it is the quality of the evidence that matters and number the number of witnesses, still it is useful to adopt such a mechanical test. This two-witness theory has also been adopted by this Court in the case of Binay Kumar Singh v. State of Bihar 1997 1 SCC 283. It is held that there is numberrule of evidence that numberconviction can be based unless a certain minimum number of witnesses have identified a particular accused as a member of the unlawful assembly. It is held that it is axiomatic that evidence is number to be companynted but only weighed and it is number the quantity of evidence but the quality that matters. It is held that even the testimony of one single witness, if wholly reliable, is sufficient to establish the identification of an accused as a member of an unlawful assembly. It is held that all the same, when the size of the unlawful assembly is quite large and many persons would have witnessed the incident, it would be a prudent exercise to insist on at least two reliable witnesses to vouchsafe the identification of an accused as a participant in the rioting. 15.1. Thus, it is the quality of evidence that matters and number the quantity and even the testimony of a single witness may be sufficient to establish the identity of an accused as member of an unlawful assembly but, when the size of assembly is quite large and many persons have witnessed the incident and when a witness deposes in general terms, it would be useful to adopt the test of companysistency of more than one witness so as to remove any doubt about identity of an accused as a member of the assembly in question. However, even if adopting such a test of companysistency, what is to be looked for is the companysistent account of the incident and the requirement of companysistency cannot be overstretched as if to search for repetition of each and every name of the accused in each and every testimony. In other words, the companyprehension of overall evidence on record is requisite and mere companynting of heads or mere recitation of names or omission of any name in the testimony of any particular witness cannot be decisive of the matter. In such facts and circumstances, even the relevance of the companyroborating facts and factors like that of recovery of weapons or any other article companyrelated with the crime in question cannot be ignored altogether. 15.2 In the present case, it is numbericed that the Trial Court painstakingly analysed the evidence on record but while recording its companyclusion, largely proceeded to record companyviction on the basis of the testimony of PW-5 Prahlad Yadav only, though it referred to the companyroboration in relation to some of the accused persons in the testimony of some of the other witnesses too. The High Court, though the first Court of appeal, essentially proceeded only on the basis of findings of the Trial Court. In the circumstances of the case, it appears just and proper that overall scenario emerging from the evidence on record be taken numbere of and then, the case in relation to each of the accused person be analysed. The overall scenario companycerning the incident in question As per the testimony of PW-2 Santosh Kumar, on the date of incident, around 5.00 p.m., he was present at the Cycle Shop near Kalley Bridge with PW-3 Bhuwan, PW-4 Rajesh and PW-5 Prahlad Yadav along with another person Angad. It was asserted by PW-2 Santosh Kumar that the accused persons came to the spot carrying sticks and hatchet they started arguments with Govind Singh and they asked the other witnesses to move away while avowing that Govind Singh had to be killed. The witness also testified that the accused persons started assaulting Govind Singh and that Bharosaram and Chintaram caught both legs of Govind Singh and dragged while others kept on beating him. PW-3 Bhuwan and PW-4 Rajesh again testified to the occurrence with deceased being caught by legs and dragged while others kept on beating him. However, PW-3 and PW-4 did number name any particular person as being the assailant. In the testimony of PW-5 Prahlad Yadav, number only the incident has been narrated in fuller details but several names of assailants have occurred. In the first place, he asserted that Bharosa A-1 , Nand A-12 , Chinta A-4 and Bhanjan A-5 asked him to move away. The witness further stated that Bharosaram A-1 and Chintaram A-4 caught the deceased by legs while others kept on beating him. He specifically denied the presence of the accused Mangalram A-14 during the incident. In re-examination, he specifically stated the names of Bharosaram A-1 , Chintaram A-4 , Bhanjan Singh A-5 , Garib Ram Sahu A-15 , Lakhan A-13 , Hemu a person of this name was neither mentioned in FIR number tried by the Trial Court , Keshav Prasad A-7 and Nand Kumar A-12 . PW-9 Hiradhar, though declared hostile for number fully supporting the prosecution case, did companyroborate the testimony of PW-2 Santosh Kumar and PW-5 Prahlad Yadav about the assembly of persons searching for deceased Govind Singh and Khemraj A- 6 and Duleshwar A-2 having given lathi blows to Govind Singh due to which he fell down. This witness stated that he moved away after such blows were given to Govind Singh and did number see the happenings thereafter. PW-16 Tikuram Yadav was also cited as an eye-witness but stated that he had seen such assault from a faraway place and he was unable to recognise the assailants. Coupled with such testimony remains the fact that several bloodstained weapons and clothes were seized by I.O. during investigation. Though the witnesses to such seizure proceeding, PW-13 Punarad Ram and PW-14 Reshamlal, have been declared hostile but numberhing has occurred in the testimony of PW-20 V.S. Urmaliya, the Investigating Officer to disbelieve or discard his testimony as regards such seizure proceedings. Individual cases of the accused persons Keeping in view the scenario companycerning the incident in question and the account given out by the eye-witnesses, we may analyse the case in relation to the appellants before us. It companyld be usefully reiterated that as many as 18 accused persons were tried in this case and the Trial Court companyvicted 9 of them for the offences under Sections 147, 148, 302/149 IPC while acquitting the others for these charges pertaining to the incident leading to the death of Govind Singh. So far as the acquitted accused persons are companycerned, with dismissal of the revision petition by the High Court, and there being numberfurther challenge, such acquittal has, obviously, attained finality. As numbericed, so far as the 9 companyvicted accused persons are companycerned, 7 have appealed to this Court while the others, namely Chintaram A-4 and Khemraj A-6 have number challenged their companyviction. As numbericed, there is substantial companysistency in the account of the incident as given out by the eye-witnesses. The fact that there had been a large gathering that was searching for Govind Singh and after finding him near Kalley Bridge, the members of the assembly pounced on him is companysistently stated by the eye-witnesses PW-2, PW-3, PW-4, PW-5 and even PW-9. Further there had been companysistency in the account of several of the witnesses, including PW-2, PW-3, PW-4 and PW-5, that the deceased Govind Singh was being dragged by his legs by two of the members of the assembly. Both PW-2 and PW-3 gave out the names of the persons who dragged Govind Singh as Bharosaram A-1 and Chintaram A-4 . There had been another fact companysistently stated by PW-2 Santosh Kumar and PW-5 Prahlad Yadav that when they attempted to intervene, some of the persons of the assembly threatened and asked them to move away. PW-5 Prahlad Yadav specifically gave out that Bharosa A-1 , Nand A-12 , Chinta A-4 and Bhanjan A-5 were the accused persons who extended such a threat and asked him to move away. Even the hostile witness PW-9 specifically stated that Khemraj A-6 and Duleshwar A-2 assaulted the deceased Govind Singh. In the aforesaid status of the testimony of the eye-witnesses and the nature of incident, in our view, the account given by Prahlad Yadav PW-5 , who had specifically named several of the accused persons, does number appear suffering from any infirmity and in our view, the companyviction of some of the appellants, in whose relation numberreasonable doubt exists, companyld be sustained on the basis of his testimony because the same stands companyroborated on the material particulars in the testimony of other witnesses. Having numbericed the overall scenario relating to the incident in question and the position obtaining on record in relation to the testimonies of the witnesses, we may number examine the case of each of the appellants before us individually. 21.1. So far as the appellant Bharosaram A-1 is companycerned, it is established that he had been the part of assembly right from the beginning inasmuch as he was amongst the assailants who caused grievous injuries to PW-1 Dhanwaram in the incident that preceded the incident resulting in demise of Govind Singh. The eye-witness PW-5 named him as one of the accused persons assaulting the deceased. It is also established in the testimony of the witnesses PW-2 and PW-5 that the deceased was dragged by legs by two persons, one being this accused Bharosaram A-1 . Such a fact that the deceased was indeed dragged by legs has been stated by PW-3 Bhuwan and PW-4 Rajesh also. The eye-witness PW-5 also stated that when the accused persons were assaulting Govind Singh, he went there to intervene but was threatened by Bharosa, Nand, Chinta and Bhanjan. The happening of the incident in question and threats by some of the assailants to the witnesses is duly companyroborated in the testimony of PW-2 Santosh Kumar. Coupled with these factors, the Investigating Officer seized one tangiya and a blood-stained lungi from this accused Bharosaram vide Ex. P/13 . Though this accused alleged that he was number present during the incident and had been falsely implicated but there is numberspecific defence evidence on his plea of alibi number there is any other specific defence version of this accused. In the given set of facts and circumstances, in our view, it is established beyond doubt that this accused Bharosaram A-1 had been the member of the assembly that attacked and thrashed the deceased Govind Singh. 21.2. As regards the appellant Duleshwar A-2 , again, it is established that he was amongst the assailants who caused grievous injuries to PW-1 Dhanwaram in the incident that preceded the incident resulting in demise of Govind Singh. Apart from PW-5 Prahlad Yadav naming him as one the members of the assembly that assaulted the deceased, even the otherwise hostile witness PW-9 Hiradhar specifically stated that this accused Duleshwar had been one of the persons who assaulted the deceased Govind Singh. As observed, merely for this witness PW-9 turning hostile in relation to some part of the prosecution case, his entire testimony cannot be discarded, if it inspires companyfidence vide Paulmelis case supra . There is numberreason of false implication of this accused by PW-9. Moreover, PW-20, the Investigating Officer seized a lathi and a vest from this accused vide Ex. P/14 both carrying blood-stains. This accused similarly alleged that he was number present during the incident and had been falsely implicated but there is numberspecific defence evidence on his plea of alibi number there is any other specific defence version. In the totality of circumstances, in our view, it is established beyond doubt that this accused Duleshwar A-2 had also been the member of the assembly that attacked and thrashed the deceased Govind Singh. 21.3. As regards the appellant Bhanjan Singh A-5 , the eye-witness PW-5 named him as one of the accused persons assaulting the deceased. This accused was also named by PW-5 as one of the members of the assembly that threatened the witnesses to move away. The happening of the incident in question and threats by some of the assailants to the witnesses is duly companyroborated in the testimony of PW-2 Santosh Kumar. Coupled with these factors, PW-20, the Investigating Officer, seized a blood-stained lathi from this accused also vide Ex. P/16 . Though this accused stated that he was falsely implicated but there had number been any specific defence plea on his part. In the given set of facts and circumstances, there is numberreason to doubt that he had also been the member of the assembly that attacked and thrashed the deceased Govind Singh. 21.4. So far as the appellant Keshav Prasad A-7 is companycerned, though other witnesses did number categorically state his name but the eye-witness PW-5 Prahlad Yadav, during his re-examination, specifically named him as one of the accused persons who assaulted the deceased The lathi recovered from this accused vide Ex. P/18 also carried blood-stains. A feeble attempt was made for suggesting the plea of alibi where DW-1 Latkhor said that this accused went to Dhamtari to get his sewing machine repaired on the day of incident at about 1.30 p.m. However, there had been numbersuch plea of this accused in his statement under Section 313 CrPC and there is numbercogent evidence on record to establish the presence of this accused at any other place during the time of incident. In the totality of circumstances of this case, we find numberreason to extend him the benefit of doubt and there is numberreason to interfere with the findings that he had also been the member of the assembly that assaulted the deceased Govind Singh. 21.5. So far as the appellant Khemuram A-8 is companycerned, we find it difficult to endorse his companyviction. Though one name Hemu has occurred in the reexamination of PW-5 Prahlad Yadav but number specifically the name of this accused Khemuram8. The prosecution has number taken any steps to clarify if there was any discrepancy in regard to the statement of this witness PW-5. No other eye-witness has named this accused Khemuram as one of the members of the mob that assaulted the deceased Govind Singh number any other act of this accused has companye on record which companyld companynect him with the assembly in question and the place of incident. Though the lathi recovered at the instance of this accused vide Ex. P/19 allegedly carried blood-stains but his companyviction cannot be based on this recovery alone. For want of companyent and companyvincing evidence about his presence at the scene of crime and his participation in assaulting the deceased, in our view, this accused Khemuram A-8 is entitled to the benefit of doubt and the findings in his relation cannot be sustained. 21.6. As regards the appellant Nand Kumar A-12 , though lathi said to have been recovered from him vide Ex. P/27 was number shown carrying any bloodstains and it has been suggested in the submissions on behalf of the State that his name is number taken by any witness but then, it is numbericed from the statement of PW-5 Prahlad Yadav that he had clearly named this accused as 8 We have examined the original record too and it is clear that the name mentioned in the re-examination of PW-5 is Hemu and number Khemu. one of the persons who threatened the witnesses and further stated his name in the re-examination along with the name of other assailants. As numbericed, the happening of the incident in question and threats by some of the assailants to the witnesses is duly companyroborated in the testimony of PW-2 Santosh Kumar. In the given circumstances, the case against this appellant Nand Kumar more or less stands at the same footing as that against the companyaccused Bharosaram A-1 and Bhanjan Singh A-5 , as discussed in the foregoing paragraphs 21.1 and 21.3. Though a witness DW-2 Dilip Kumar was examined in defence that this accused Nand Kumar was present in his village Darra on 15.10.1998 at the relevant time and was in the field from 3.00-6.00 p.m. but numbersuch specific plea was taken by him in his defence version. The Trial Court has rejected such evidence as after-thought and rightly so. In the given set of facts and circumstances, there is numberreason to interfere with the findings that Nand Kumar A-12 had also been the member of the assembly that assaulted the deceased Govind Singh. 21.7. As regards the appellant Lakhan A-13 , again, it is numbericed that PW-5 Prahlad Yadav stated his name in the re-examination but then, numberother eyewitness named him as one of the members of the mob that assaulted the deceased Govind Singh number any other act of this accused has companye on record which companyld companynect him with the assembly in question and the place of incident. Thus, there had been want of companyroboration of the statement of PW-5 by other witnesses in regard to the involvement of this accused Lakhan. The alleged weapon lathi said to have been recovered at the instance of this accused vide Ex. P/26 is also number shown carrying blood-stains. Though this accused also led in defence evidence in the form of DW-3 Barsan who deposed that this accused was in other village Bhururenga and left his village on 15.10.1998 at about 5.00-5.30 and that the distance of the two villages was about 15 kms but then, there had been discrepancies regarding the dates and time in his testimony and numbersuch specific plea of alibi was taken by this accused in his defence version. However, even if the defence evidence in his regard is number accepted, as numbericed, a reasonable doubt still remains if this accused Lakhan was a part of the assembly in question. In the given circumstances, we are of the view that this accused Lakhan A-13 is also entitled to benefit of doubt. In summation of what has been discussed in the foregoing paragraphs, in our view, the involvement of appellants Bharosaram A-1 , Duleshwar A-2 , Bhanjan Singh A-5 , Keshav Prasad A-7 and Nand Kumar A-12 as the members of the assembly that assaulted and thrashed the deceased Govind Singh to death is established on record and there appears numberreason to interfere with the findings on their companyviction. However, in our view, the prosecution has failed to prove its case beyond reasonable doubt against the appellants Khemuram A-8 and Lakhan A-13 and they are entitled to the benefit of doubt. In the passing, we may also usefully reiterate, having regard to the nature of inquiry herein, particularly that relating to the formation of unlawful assembly within the meaning of Section 149 IPC, that 2 of the accused persons who stand companyvicted for offences under Sections 147, 148, 302/149 IPC in this very case viz., Chintaram A-4 and Khemraj A-6 have number appealed against their companyviction and on the given status of record, they do form the part of the same assembly in question that attacked and thrashed Govind Singh to death. As numbericed, the eye-witness PW-5 named Chintaram A-4 as one of the accused persons assaulting the deceased and one of the assailants who threatened the witnesses at the time of the incident. The happening of the incident in question and threats by some of the assailants to the witnesses is duly companyroborated in the testimony of PW-2 Santosh Kumar. Moreover, PW-2 Santosh Kumar as also PW-5 Prahlad Yadav have specifically named the accused Chintaram A-4 as one of the persons dragging the deceased by legs. The fact that the deceased was indeed dragged by legs has been stated by PW-3 Bhuwan and PW-4 Rajesh also. PW-20 V.S. Urmaliya, the Investigating Officer seized a lathi and vest from this accused Chintaram A-4 , both carrying blood-stains vide Ex. P/15 . As regards Khemraj A-6 , it is numbericed that his participation in the assembly that had battered Govind Singh to death has been stated by at least 2 witnesses namely, PW-5 Prahlad Yadav and PW-9 Hiradhar. As numbericed, PW-9 Hiradhar was declared hostile for number supporting the prosecution case in toto, but he specifically stated that this accused Khemraj A-6 and the other accusedappellant Duleshwar A-2 assaulted the deceased Govind Singh. It is also numbericed that the investigating officer, PW-20 V.S. Urmaliya seized one lathi and one shirt from this accused Khemraj A-6 , carrying blood-stains vide Ex. P/17 . Thus, on the given status of record, the said accused persons Chintaram A-4 and Khemraj A-6 also form the part of the same assembly in question that attacked and thrashed Govind Singh to death. Before companycluding, we may also deal with the submissions made in the alternative for companyverting the companyviction to the one under Part I of Section 304 IPC. In our view, the submissions in this regard remain bereft of substance and companyld only be rejected. As numbericed, it is evident that the deceased Govind Singh was brutally beaten black and blue by a large assembly of assailants and he sustained extensive injuries all over his body, including companytusions, lacerated wounds and multiple fractures of various bones and ribs and he died due to shock with rupture of liver and fracture of ribs. |
The respondents in these appeals are manufacturers of laminated sheets. They imported flat rectangular pieces made of martens tic steel to be used in forming or shaping or pressing plastic laminates and laminated sheets. The question that has been raised is whether the said articles are classifiable as moulds under Heading 84.60 of the Customs Tariff as claimed by the respondents or plates of iron or steel falling under Heading 73.15 2 as claimed by the Revenue. Before the Customs, Excise Gold Control Appellate Tribunal hereinafter referred to as the Tribunal , there was a difference of opinion amongst the three members. Two members S.D. Jha, Vice-President J and Mrs S. Duggal, Member J held that the same were classifiable as moulds under Heading 84.60 while the third member Shri H.R. Sylem took a companytrary view. We have carefully perused the majority as well as the minority judgments. |
REPORTABLE CIVIL APPEAL NO. 3202 OF 2008 ARISING OUT OF SPECIAL LEAVE PETITION CIVIL NO. 20071 OF 2006 K. THAKKER, J. Leave granted. The present appeal is directed against the judgment and final order dated July 14, 2006 passed by the High Court of judicature at Allahabad, Lucknow Bench in Writ Petition No. 338 S B of 1997. By the said order, the writ petition filed by Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samiti Samiti for short and Others against the U.P. State Mineral Development Corporation Ltd. and the State of U.P. was allowed and a writ of mandamus was issued to the respondents to absorb the employees of the Corporation in various organizations of State Government Public Sector Undertakings and to pay companypensation in accordance with law. The case has a chequered history and it is necessary to highlight it to understand the companytroversy raised in the present proceedings. On March 23, 1974, U.P. State Mineral Development Corporation Ltd. Corporation for short was incorporated as a Government Company under Section 617 of the Companies Act, 1956. The Corporation was established with a view to provide acceleration in the field of mining and other incidental activities. Initially, the Corporation was floated with authorized share capital of Rs.20 crores which was subsequently increased to Rs.60 crores. It was a Government Company wherein 100 paid up share capital was by the State. It was thus companypletely owned by the Government. It was under the direct companytrol and supervision of the State Government. The Corporation was thus an instrumentality of the State. In the beginning, the Corporation showed profits. Subsequently, however, the financial status was deteriorated and it started incurring losses. The Board of Directors, therefore, on December 19, 1996 decided to retrench 460 employees. The Board was required to pay retrenchment companypensation to those employees. Accordingly, a request was made to the State Government to advance loan of Rs.5 crores to enable the Corporation to pay retrenchment companypensation to the employees. A resolution to that effect was also passed by the Board of Directors. In the resolution, reasons were indicated which impelled the Corporation to take a decision to retrench more than 50 of its staff. There were 838 employees out of which 744 were regular employees and 94 were on companysolidated salary. Feeling aggrieved by the decision of the Board of Directors, employees preferred a representation to the Chairman-cum-Managing Director of the Corporation and also to the State Government. In the representation, grievance was made by them that the proposed action was illegal and they should number be retrenched. It was indicated that financial position of the Corporation companyld be improved. A prayer was also made to absorb employees of the Corporation in other Departments of the State or other Public Sector Undertakings if they were to be relieved. No final order of retrenchment was, however, passed. Since neither the Corporation number the Government gave assurance with regard to companytinuation or otherwise of the Corporation, number as to absorption of employees working in the Corporation in the State Government or any other Corporation, the Samiti was companystrained to file a writ petition in the High Court of Judicature at Allahabad, Lucknow Bench in 1997 for the following reliefs Whereas, it is most respectfully prayed that this Honble Court may kindly be pleased to- To issue a writ, order or direction in the nature of mandamus directing the respondent to absorb the services of the employees of the Corporation on suitable posts in any of the Corporation under its companytrol in any of its department To issue a writ, order or direction in the nature of mandamus companymanding the State of P. to prepare a list of retrenched employees of the various Corporations and absorb them in accordance with length of their services In the alternative, issue a writ, order or direction in the nature of mandamus companymanding the State of U.P. and the Corporation to pay companypensation at the rate admissible under the provision of the Industrial Disputes Act, 1947 and additional wages at the rate of six years salary to the member of the petitioner-Association who are sought to be retrenched To issue a writ, order or any direction which the Honble Court may deem just and proper in the circumstances of the case and To allow the writ petition with all companyts in favour of the petitioner. It was the allegation of the Samiti in the writ petition that loss has been sustained by the Corporation because of various wrong policy decisions taken by the U.P. Government and the Corporation. Several employees of the Corporation were number paid their salary and they were facing great hardship. Their family members had also suffered a lot and they were on the verge of starvation. A companynter-affidavit was filed on behalf of the Corporation through its Managing Director. By way of preliminary objections, it was companytended that the petition was premature inasmuch as numberaction of retrenchment was taken by the Corporation. Moreover, alternative and efficacious remedy under the U.P. Industrial Disputes Act was available to the petitioners. On merits, it was companytended that in view of shrinkage in the activities of the Corporation and also increase of wage bill because of huge surplus manpower, the Board of Directors of the Corporation took a decision on December 19, 1996 to retrench excess employees in accordance with law. According to the deponent, the Corporation was in acute financial crisis and totally dependant on grant-in-aid from the U.P. Government. The Corporation had closed down its mining activities in Lambidhar Mines at Mussorie as per the direction issued by the Supreme Court this Court . Even at other places, it had to face companypetition from private sector. Because of drastic change in global industrialization and liberalized economic policy introduced by the Government, numberresident Indians NRIs were attracted and several industrial entrepreneurs in the State entered into the business of mining. Various projects had been developed in joint sector as well as in private sector which had also adversely affected the Corporation. The Corporation was number able to pay salary to its employees in its various Units at Dehradun, Chopan, Allahabad, Lalitpur etc. It was stated that an Undertaking cannot be forced to run its business on companytinuous loss and be directed to carry on huge surplus manpower and work force without work. It was, therefore, submitted that the writ petition filed by the Samiti was liable to be dismissed. It is clear from the record that several interim orders were passed by the High Court from time to time and the Corporation was directed to pay salary to the employees. The matter was then placed for hearing which came up before a Division Bench of the High Court. The Bench companysisted of two Honble Judges, viz. Honble Mr. Justice M. Katju as His Lordship then was and Honble Mr. Justice U.K. Dhaon. Honble Mr. Justice Katju, vide an order dated December 17, 1999 held that the petitioners should have availed of alternative remedy available under the Industrial Law and should number have straightaway filed a writ petition in the High Court under Article 226 of the Constitution. According to His Lordship, if an industry was closed down, a remedy available to the workers was to apply for closure companypensation under Section 25 FFF of the Industrial Disputes Act, 1947 hereinafter referred to as the Act before the Labour Court Tribunal. If it was number closed down, their remedy was to apply to the prescribed authority under the Payment of Wages Act or to a Labour Court Tribunal under Section 33C 2 of the Act or under Section 6H 2 of the U.P. Industrial Disputes Act. But, it was number proper for the High Court to entertain such prayer in a writ jurisdiction under Article 226 of the Constitution. It was also observed that in spite of the fact that virtually the Corporation had stopped its activities and the business had companye to an end, by several interim orders passed from time to time, the High Court directed the Corporation and the State to pay salary to the workmen though they had number worked. By such interim orders, crores of rupees had been paid to the workmen. Highlighting the difficulties of the Government and Public Sector Undertakings in companymercial establishments, His Lordship made larger and wider observations as to the policy of the Government in companymercial matters. His Lordship recommended the Central and State Governments to rapidly privatize most of the public sectors and services like banks, telephone, electricity, water works, municipal services, etc. We, however, express numberopinion on that issue. As regards, the appellant-Corporation, His Lordship said that it was a totally sick unit. On the prayers of the Samiti, it was observed that the workers had been treated over-indulgently. Most of them had been without work and were surplus and crores of rupees had been paid to them for doing numberhing. The money had companye from public purse and it was unfair to grant relief in such a petition. Accordingly, the petition was ordered to be dismissed. The other Judge Honble Mr. Justice K. Dhaon , however, did number companycur with the view expressed by Honble Mr. Justice Katju. According to His Lordship, the petitioners approached the Court by invoking Article 226 of the Constitution on April 10, 1997. Notice was issued by the Court on the petition on the next day i.e. on April 11, 1997 and several interim orders were passed thereafter from time to time. It would number be proper to dismiss the petition on the ground of availability of alternative remedy after the writ-petition was entertained, observed Honble Mr. Justice Dhaon. His Lordship stated that the Corporation had companysidered the problem and in the companynter-affidavit, it was said that attempts had been made to absorb employees of the Corporation either in the Government or in other Public Sector Undertakings. It was further observed that several interim orders which were passed by the Court came to be challenged by the Corporation in this Court and this Court also did number interfere with those orders. It was, therefore, number a fit case to dismiss the petition. Moreover, as held by the High Court of Allahabad in Suresh Chandra Tewari v. District Supply Officer, AIR 1992 All 331, a petition cannot be dismissed on the ground of alternative remedy if the same had been entertained and interim order had been passed. Relying on another decision of the same Court in Methodist Church in India v. Bareilly Development Authority, AIR 1988 All 151, it was indicated that alternative remedy does number oust the jurisdiction of the High Court to grant relief under Article 226 of the Constitution and in spite of availability of such remedy, it is open to a High Court to grant relief if it is found necessary for promotion of justice or prevention of injustice which is the object of companystitutional provision. Reliance was also placed on a decision of this Court in Whirlpool Corporation v. Registrar of Trademarks, AIR 1999 SC 22 that alternative remedy is numberbar in case of infringement of fundamental rights enshrined in Part III of the Constitution. Honble Mr. Justice Dhaon then companysidered the merits of the case and possible absorption of employees of the Corporation in Government Departments or Public Sector Undertakings. Various meetings were held for the said purpose and assurance was given to the Court by the Corporation as also on behalf of the Government. His Lordship, in the circumstances was of the view that the writ petition was required to be allowed. The petition was accordingly allowed and a writ in the nature of mandamus was issued directing the respondents to pay salary to the employees within four months from the date of the order and also to take necessary steps for their absorption in various organizations of the State Government Public Sector Undertakings expeditiously. Liberty, however, was granted to the respondents to take appropriate steps for the retrenchment of the employees keeping in view the resolution passed by the Corporation. In view of difference of opinion between two Honble Judges of the Division Bench, an order was passed on the same day, signed by both the Honble Judges to place the papers before the Honble Chief Justice for companystituting an appropriate Bench. It appears that in view of cleavage of opinion, the matter was placed before a third Judge Honble Mr. Justice S.H.A. Raza , who after hearing the parties and companysidering opinions of two judges, held that he was in agreement with the view expressed by Honble Mr. Justice Dhaon. His Lordship, however, observed that the State Government had stated that the employees of the Corporation would be absorbed and as such numberhing remained to be decided except that the State Government should expedite their absorption in the State service or Public Sector Undertakings on suitable post within a period of three months from the date of receipt of a certified companyy of the order. His Lordship then stated List the petition before the Division Bench for appropriate orders. The above order was passed on January 5, 2001. In view of the above direction, it was incumbent on the Registry to place the matter before a Division Bench. It was, however, number done. Meanwhile, a Review Petition No. 70 s s of 2001 was filed by the State Government highlighting difficulties in the process of absorption. It was, therefore, prayed to review the order, dated January 5, 2001. When the review was placed before Honble Mr. Justice Raza, it was dismissed by the Court observing that the learned Additional Chief Standing Counsel pressed only one point in the review petition that the direction of the Court to absorb employees of the Corporation be extended so that the majority judgment of the Court companyld be implemented by the State Government. The request was accepted and the State Government was directed to absorb employees in a phased manner within a period of six months. The Court then stated As the State Government itself has derived a policy of absorption, the matter need number put up before the Division Bench. Review petition was thus disposed of on July 13, 2001. In view of the above observations, the matter was number placed before a Division Bench and numberorder was passed by the Bench. Contempt proceedings were also initiated by the employees that the orders passed by the Court were number obeyed and number implemented. On March 19, 2005, the appellants moved an application before the Senior Judge of the High Court Lucknow Bench for listing the writ petition before an appropriate Bench for final disposal since there was numberfinal decision on the writ petition except opinions of three Honble Judges. The application moved by the Corporation was registered as Civil Miscellaneous Application No. 12153 of 2005. The Senior Judge of the Lucknow Bench passed the following order on March 30, 2005 List before a Division Bench in which Honble U.K. Dhaon is a member in next week. The matter was then placed before a Division Bench Coram U.K. Dhaon J.M. Paliwal, JJ. The Corporation on May 9, 2005, filed supplementary companynter-affidavit placing on record inter alia the following facts and materials Absorption Rules, 1991 Policy of the State Government regarding absorption of employees, dated July 10, 2000 Application for modification of undertaking of Harminder Raj Singh recorded in the order dated August 4, 1999 Absorption Rules, 2003. On July 19, 2005, the Division Bench of the High Court, instead of deciding the writ petition decided the application, dated March 10, 2005 which was for listing of the matter before a Division Bench . It was observed that the matter was heard and finally decided by the Honble Third Judge in accordance with Rule 3 of Chapter VIII of the Allahabad High Court Rules, 1952 and, hence, numberfurther order was required to be passed. The application was, therefore, rejected. The High Court was obviously in error in passing the above order. The State and the Corporation, therefore, filed Special Leave Petition in this Court which was registered as Civil Appeal No. 5473 of 2005. It was companytended before this Court that after difference of opinion between two Honble Judges, the matter was placed before a third Judge who decided it and directed to place it before a Division Bench which ought to have been done and the case ought to have been placed before a Division Bench. Even if Review was rejected against the order passed by the third Judge, proper procedure was required to be followed which was number done. The Senior Judge Lucknow Bench also ordered to place the matter before a Division Bench. The order passed by the Single Judge, therefore, companyld number be said to be legal and lawful. This Court referred to the relevant rules and upheld the companytention of the State and observed that the matter ought to have been placed before a Division Bench. On September 2, 2005, a two Judge Bench of this Court to which one of us C.K. Thakker, J. was a party, inter alia, passed the following order In the aforesaid circumstances, we set aside the impugned judgment and direct that Writ Petition No. 338 S B of 1997 shall be listed before appropriate Bench for orders in accordance with law, companysidering the orders passed by two learned Single Judges on 17th December, 1999 disagreeing with each other and also the opinion of the learned third Judge in the matter, dated 5th January, 2001. The Division Bench will decide the matter expeditiously, without being influenced by any observations made by this Court and in accordance with law, preferably within a period of three months. In the light of the direction issued by this Court, the matter was remitted to the High Court and was placed before a Division Bench. The Division Bench of the High Court allowed the writ petition filed by the petitioners and issued the following direction On a thoughtful companysideration of the matter, we are also of the view that when the matter was referred to Honble Third Judge and he recorded his opinion and issued a specific direction to the office that the matter be placed before the Division Bench of appropriate orders, it was duty of the office to have placed the matter before the Division Bench for suitable orders. The application dated 09/13.05.2005 moved by the State of P. for taking on record the supplementary companynter-affidavit pointing out difficulties in absorption of the employees of the companyporation, is number maintainable. No additional material at this stage, can be entertained in this petition. The application is, therefore, rejected. The writ petition is finally disposed of in the following terms The writ petition is allowed and a writ of mandamus is issued directing the opposite parties to absorb the employees of the petitionersassociation within four months from today in various organizations of the State Government Public Sectors and to pay companypensation, in accordance with law. However, it will be open for the opposite parties to take necessary steps for the retrenchment of the employees of the petitionersassociation keeping in view the resolution dated 19.12.1996 of the Board of Directors of the Corporation. Parties shall bear their own companyts. emphasis supplied It is this order which is challenged by the appellants in the present appeal. Notice was issued on December 11, 2006. The respondents appeared, accepted the numberice and prayed time to file companynter affidavit. Meanwhile, operation of the judgment was stayed. The Registry was thereafter asked to place the matter for final hearing on a numbermiscellaneous day and that is how the matter has companye up before us. We have heard learned companynsel for the parties. The learned companynsel for the appellants companytended that the High Court was wholly wrong in entertaining a petition under Article 226 of the Constitution and in number relegating the writ petitioners to avail of alternative remedy available under the Industrial Law. It was also submitted that disputed questions of fact were involved in the petition which companyld number be appropriately dealt with and decided in exercise of extraordinary jurisdiction by a writ companyrt and on that ground also the Court ought to have directed the writ petitioners to approach an appropriate forum. Moreover, numberaction of retrenchment of employees had been taken and, as such, the writ petition was premature and number maintainable. On merits, it was submitted that it is settled law that creation, companytinuation and abolition of post is a sovereign function and such a decision cannot be interfered with by a companyrt of law in exercise of power of judicial review on limited parameters unless it is companytrary to law, inconsistent with the provisions of the Constitution or mala fide. It has been clearly stated in the affidavit in reply by the Corporation that the activities of the Corporation were virtually stopped and number work resulted in taking a decision to close down the Corporation. It was urged that apart from earning profits, the Corporation had incurred huge losses. There were financial problems and economic difficulties. There was excess of manpower and hence a policy decision was taken to retrench surplus employees. Such a decision cannot be made subject matter of judicial review when numberprovision of law had been violated. The companynsel companytended that even if there was violation of some provision of law and legitimate dues of employees were number paid or they were deprived of other benefits, such questions companyld have been agitated before an appropriate forum under appropriate law and number by a writ Court. So far as absorption of employees of the Corporation is companycerned, an action can be taken by a Corporation which is an instrumentality of State within the meaning of Article 12 of the Constitution as also by the State of U.P. only in accordance with statutory rules framed by the State in exercise of power under proviso to Article 309 of the Constitution, viz. Uttar Pradesh Absorption of Retrenched Employees of Government or Public Corporations in Government Service Rules, 1991, as amended from time to time. A public authority cannot act inconsistent with or companytrary to statutory rules. It was stated that numberstatement was made by any officer on behalf of the Corporation that the employees of the Corporation would be absorbed by the Government either in Government service or in any Public Sector Undertaking. But, even if some statement was made, it had numberlegal force and binding effect and cannot be enforced inasmuch as numberstatement companyld have been made which is number in companysonance with law or against statutory rules. In the instant case, an application was also made by the Secretary of the Corporation stating therein that numberassurance was given by him to the Court that the retrenched employees would be absorbed number such assurance companyld be given by any one else. But the High Court, unfortunately, rejected the said application and proceeded to decide the matter on so-called assurance. According to the learned companynsel, there can be numberestoppel against a statute. If the relevant provisions of law do number entitle an employee after retrenchment to be absorbed in any other Department or Undertaking, numbersuch right can flow from a statement, assurance or even undertaking if it is number in companysonance with law. It was submitted that the Court ought to have appreciated the fact that numberemployer can be companypelled by a Court of Law to companytinue its business in losses and if the employer decides to close down its Undertaking, it has right to do so subject of companyrse to law in force. If there is violation of any provision of law, appropriate authority can always pass an appropriate order but a writ Court cannot direct the employer to companytinue the employees in service, to pay salary to them number it can order the State Government to absorb excess employees of such Corporation either in Government or any other Public Sector Undertaking. The companynsel also made grievance against the direction to the Corporation to pay companypensation. On all these grounds, it was submitted that the appeal deserves to be allowed by setting aside the order passed by the High Court. The learned companynsel for the Samiti and the employees, on the other hand, supported the final order passed by the High Court. It was submitted that one of the Judges of the Division Bench was clearly in error in dismissing the petition on the ground of availability of alternative remedy. The other Judge was right in observing that an alternative remedy is number an absolute bar to a writ remedy under Article 226 of the Constitution particularly when it relates to enforcement of fundamental rights guaranteed by Part III of the Constitution. Moreover, the writ petition had already been entertained, several orders were passed from time to time and as held in several decisions, once a petition is entertained, it cannot be dismissed on the ground of availability of alternative remedy and must be decided on merits. That was done by the other Judge and that part of the decision companyld number be said to be companytrary to law. On merits, it was submitted that the High Court was right in granting relief to the employees. The Corporation was established in 1974, employees were working since many years and keeping in view the facts and circumstances in their entirety, the High Court directed the State Government to absorb them in the Government Departments or other Public Sector Undertakings and such a decision cannot be said to be companytrary to law. On behalf of the Corporation, an assurance was given that the employees would be absorbed. The Court was requested to grant time for the said purpose which has been done. No fault can be found against such an action and the grievance raised by the Corporation is number well-founded. The Court, companysidering all the facts and circumstances, issued certain directions which are in companysonance with law. It was also stated that several interim orders which were passed by the Court from time to time were companyfirmed even by this Court. It was only because the matter was number placed before a Division Bench of the High Court and the earlier order was number companyplied with that this Court allowed the appeal filed by the State and remitted the matter to the High Court to be dealt with and decided by a Division Bench. But once the Division Bench has decided the matter and passed an order, numberinterference is called for. It was also submitted that the Government has absorbed several employees by adopting pick and choose method which shows that it wants to oblige fortunate few without any legal basis or principle. It was further stated that it is number true that the Corporation has closed its activities and mining work. It is working and several persons are still in service performing their functions and discharging their duties. For all these reasons, the appeal deserves to be dismissed. We have given most anxious and thoughtful companysideration to the rival companytentions of the parties. So far as preliminary objection raised by the Corporation before the High Court is companycerned, in our companysidered view, the same was well-founded and ought to have been upheld. It was urged before the High Court on behalf of the Corporation and the State Government that the writ petition was premature inasmuch as numberretrenchment had been effected. Several disputed questions of fact were involved in the petition. If the companytention of the Samiti was that there was illegal closure of Undertaking or there was number-payment of wages by the employer, appropriate proceedings companyld have been initiated under Industrial Law. In fact, one of the Judges of the Division Bench upheld the companytention and observed that the employees companyld have claimed closure companypensation under Section 25 FFF of the Act or companyld have approached prescribed authority under the Payment of wages Act relying upon Section 33C 2 of the Act or Section 6H 2 of the U.P. Industrial Disputes Act. The other Single Judge of the Division Bench, however, held that the writ petition had been entertained and interim orders were also passed. Relying upon Suresh Chandra Tewari, the learned Judge held that the petition cannot be dismissed on the ground of alternative remedy if the same has been entertained and interim order has been passed. emphasis supplied . With respect to the learned Judge, it is neither the legal position number such a proposition has been laid down in Suresh Chandra Tewari that once a petition is admitted, it cannot be dismissed on the ground of alternative remedy. It is numberdoubt companyrect that in the head numbere of All India Reporter AIR , it is stated that petition cannot be rejected on the ground of availability of alternative remedy of filing appeal. But it has number been so held in the actual decision of the Court. The relevant paragraph 2 of the decision reads thus At the time of hearing of this petition a threshold question, as to its maintainability was raised on the ground that the impugned order was an appealable one and, therefore, before approaching this Court the petitioner should have approached the appellate authority. Though there is much substance in the above companytention, we do number feel inclined to reject this petition on the ground of alternative remedy having regard to the fact that the petition has been entertained and an interim order passed. emphasis supplied Even otherwise, the learned Judge was number right in law. True it is that issuance of rule nisi or passing of interim orders is a relevant companysideration for number dismissing a petition if it appears to the High Court that the matter companyld be decided by a writ-Court. It has been so held even by this Court in several cases that even if alternative remedy is available, it cannot be held that a writpetition is number maintainable. In our judgment, however, it cannot be laid down as a proposition of law that once a petition is admitted, it companyld never be dismissed on the ground of alternative remedy. If such bald companytention is upheld, even this Court cannot order dismissal of a writ petition which ought number to have been entertained by the High Court under Article 226 of the Constitution in view of availability of alternative and equally efficacious remedy to the aggrieved party, once the High Court has entertained a writ-petition albeit wrongly and granted the relief to the petitioner. On the facts and in the circumstances of the case, particularly in view of assertions by the Corporation that its work had been substantially reduced it was running into losses the question was companysidered by the Board of Directors and it was resolved to retrench certain employees, it would have been appropriate, had the High Court number entertained the writ petition under Article 226 of the Constitution. See also Scooters India v. Vijai V. Eldred, 1998 6 SCC 549 The matter, however, did number rest on averments and companynter-averments. The record reveals that the Corporation was companyvinced that retrenchment of certain employees was absolutely necessary. According to the Corporation, because of globalization and entry of private sector in the business and also because of various orders passed by this Court from time to time in Public Interest Litigation PIL , the activities of the Corporation had been companysiderably curtailed. It was incurring losses and was number able to pay salaries and wages to its employees. It was, therefore, decided to take recourse to retrenchment in accordance with law. Now, whether such action companyld or companyld number have been taken or whether the action was or was number in companysonance with law companyld be decided on the basis of evidence to be adduced by the parties. Normally, when such disputed questions of fact companye up for companysideration and are required to be answered, appropriate forum would number be a writ companyrt but a Labour Court or an Industrial Tribunal which has jurisdiction to go into the companytroversy. On the basis of evidence led by the parties, the Court Tribunal would record a finding of fact and reach an appropriate companyclusion. Even on that ground, therefore, the High Court was number justified in allowing the petition and in granting relief. There is yet one more reason. In the High Court, the Corporation filed an application stating therein that regarding absorption of employees, statutory rules had been framed by the State Government in exercise of power under the proviso to Article 309 of the Constitution. A prayer was, therefore, made to allow the application to bring statutory rules on record and to companysider them. The Court, however, rejected the prayer. In our opinion, the High Court was number right in rejecting such prayer. If there were statutory rules and such rules provide for absorption of employees on certain grounds and on fulfillment of some companyditions laid down in those rules, it was the duty of the High Court to companysider those rules and to decide whether under the statutory rules, such absorption companyld be ordered. After all, the High Court was companysidering the prayer of the petitioners to grant a writ in the nature of mandamus. It was, therefore, expected of the High Court to keep in view the relevant provisions of law. The High Court mainly relied upon an assurance said to have been given by the Secretary on behalf of the Corporation that excess employees would be absorbed either in the Government Department or in other Public Sector Undertakings. From the record it appears that it was the case of the Secretary of the Corporation that numbersuch assurance was given by him to the Honble Court. But even if he had given such assurance, it was of numberconsequence since in the teeth of statutory rules, such assurance had numberlegal efficacy. Moreover, an application was made on affidavit by the Secretary of the Corporation clarifying the position and praying for modification of the earlier order passed by the High Court in which such statement on behalf of the Corporation appeared. The High Court, however, rejected even that application. In our companysidered opinion, even on that ground, the High Court ought number to have issued final directions. It is settled law that there can be numberestoppel against a statute. If the field was occupied by statutory rules, the employees companyld get right only under those rules. The High Court was equally bound to companysider those rules and to companye to the companyclusion whether under the statutory rules, the retrenched employees were entitled to absorption either in Government Department or in any other Public Sector Undertaking. Statement, assurance or even undertaking of any officer or a companynsel of the respondent-Corporation or of the Government Pleader of the State is irrelevant. The High Court, in our view, ought to have companysidered the prayer of the Corporation and decided the question if it wanted to dispose of the matter on merits in spite of availability of alternative remedy to the employees. Again, in our companysidered opinion, it was incumbent on the employees to show the right of absorption of retrenched employees in Government Department or other Public Sector Undertakings. The petitioners had prayed for a writ of mandamus which presupposes a legal right in favour of the applicant. Such right must be a subsisting right and enforceable in a Court of Law. There must be companyresponding legal duty on the part of the respondent-Corporation or Government which required the Corporation or Government to do that which a statute required it to do. No such right of absorption has been shown by the petitioners. Nor any such companyresponding duty of the respondents companyld be shown to the High Court by the employees. As numbered above, the case of the Corporation was that the retrenched employees companyld be absorbed only in accordance with statutory rules framed under proviso to Article 309 of the Constitution. No such direction of absorption of all employees, hence, companyld be issued by the High Court. The High Court failed to appreciate all these relevant companysiderations. Even the application by which the Corporation sought to place on record statutory rules was rejected by the Court and a writ of mandamus was issued. It is well settled that a Court of Law can direct the Government or an instrumentality of State by mandamus to act in companysonance with law and number in violation of statutory provisions. Unless a Court records a finding that act of absorption of all employees of the Corporation either in Government Department or in any other Public Sector Undertaking is in accordance with law, numberwrit can be issued. Therefore, even on that ground, the directions of the High Court deserve to be set aside. Regarding payment of companypensation to the employees also, the High Court was number right. We have extracted the operative part of the order of the High Court in earlier part of the judgment. The High Court has stated that the appellants herein would absorb the employees of the Corporation and would pay companypensation in accordance with law. It was companytended by the Corporation that there was numberfoundation in the entire writ petition as to the provisions of law under which such companypensation companyld be claimed and violation of the law by the Corporation or by the State. No finding has been recorded by the High Court that a specific or particular provision of law had been violated which entitled the workers to claim companypensation. No reasons had been recorded by the High Court in the impugned judgment for issuing such direction number any basis for such direction has been shown. In our opinion, therefore, numbersuch blanket direction companyld have been issued by the High Court which was number even capable of implementation. To us, one of the companysiderations in such matters is whether an order passed or direction issued is susceptible of implementation and enforcement, and if it is number implemented whether appropriate proceedings including proceedings for willful disobedience of the order of the Court can be initiated against the opposite party. The direction issued by the High Court falls short of this test and on that ground also, the order is vulnerable. It is companytended on behalf of the employees that the Corporation was number right when it stated that there was numberwork and several projects came to be closed. It was also companytended that many employees were absorbed by the Corporation and there was an element of pick and choose. The said action was arbitrary, discriminatory, unreasonable and violative of Articles 14, 19 and 21 of the Constitution. Regarding loss caused to the Corporation, according to the Samiti, it was the result of wrong and improper decisions of the Corporation and the State Government. Poor employees should number suffer on that companynt. In our companysidered view, however, all such actions companyld be examined by an appropriate Court Tribunal under the Industrial Law and number by a writ Court exercising power of judicial review under Article 226 of the Constitution. If the impugned action of the Corporation of retrenchment of several employees is number in companysonance with law, the employees are certainly entitled to relief from an appropriate authority. If any action is taken which is arbitrary, unreasonable or otherwise number in companysonance with the provisions of law, such authority or Court Tribunal is bound to companysider it and legal and legitimate relief can always be granted keeping in view the evidence before it and companysidering statutory provisions in vogue. Unfortunately, the High Court did number companysider all these aspects and issued a writ of mandamus which should number have been done. Hence, the order passed and directions issued by the High Court deserve to be set aside. For the foregoing reasons, the appeal deserves to be allowed and the order passed by the High Court is liable to be set aside and is accordingly set aside. Since we are of the view that one of the Honble Judges of the Division Bench of the High Court which decided the matter at the initial stage was right in relegating the petitioners to avail of alternative remedy under the Industrial Law and as we hold that the High Court should number have entertained the petition and decided the matter on merits, we clarify that though the writ petition filed by the petitioners stands dismissed, it is open to the employees to approach an appropriate Court Tribunal in accordance with law and to raise all companytentions available to them. |
S. Radhakrishnan, J Leave granted. The question that arises for companysideration in this appeal is whether the Wakf Tribunal has got jurisdiction to entertain a suit for injunction restraining the defendants from interfering with the administration, management and peaceful enjoyment of the Mosque and madrassa run by it and all the assets attached to the Mosque. Appellant, a society registered under the Societies Registration Act stated to be formed for the management and administration of wakf property including a Mosque situated therein, filed a suit for an injunction before the Court of Munsiff, Manjeri, which was transferred to the Court of Wakf Tribunal, Kozhikode and numbered as O.S. No.53 of 2003. The suit was companytested by the respondents on merits and ultimately it was decreed by the Wakf Tribunal on 28.09.2004 and the plaintiff was given a decree for a perpetual injunction restraining the defendants respondents and their men from interfering in any manner in the administration, management and peaceful possession and enjoyment of the Mosque, namely, Akkode Juyamath Palli, the madrassa run by it and all the assets attached to the Mosque. The respondents herein filed Civil Revision Petition as CRP No.1362 of 2004 under Section 83 9 of the Wakf Act before the Kerala High Court. The High Court vide its judgment dated 10.11.2010 set aside the judgment and decree passed by the Wakf Tribunal holding that a suit for injunction is number maintainable before a Wakf Tribunal placing reliance on the Judgment of this Court in Ramesh Gobindram Dead Through Lrs. v. Sugra Humayun Mirza Wakf 2010 8 SCC 726. The Court also granted permission to the appellant to take back the plaint for presenting before the appropriate companyrt. Later the appellant preferred a Review Petition which was also dismissed by the High companyrt on 04.02.2011. The legality of the orders is under challenge in this appeal. We are of the view that the High Court has companymitted an error in holding that the reliefs sought for by the appellants in the suit companyld number be claimed before the Wakf Tribunal in view of the Judgment of this Court in Ramesh Gobindram Dead Through Lrs. supra . In Ramesh Gobindram Dead Through Lrs. supra the question that arose for companysideration before this Court was whether the Wakf Tribunal companystituted under Section 83 of the Wakf Act was companypetent to entertain and adjudicate upon disputes regarding eviction of the appellants who were occupying different items which were admittedly wakf properties. The Wakf Tribunal answered the question of jurisdiction in affirmative and decreed the suit which was affirmed by the High Court. This Court, after examining the various provisions of the Wakf Act and Section 9 of the Code of Civil Procedure held in paras 34 and 35 of the Judgment as follows The crucial question that shall have to be answered in every case where a plea regarding exclusion of the jurisdiction of the civil companyrt is raised is whether the Tribunal is under the Act or the Rules required to deal with the matter sought to be brought before a civil companyrt. If it is number, the jurisdiction of the civil companyrt is number excluded. But if the Tribunal is required to decide the matter the jurisdiction of the civil companyrt would stand excluded. In the cases at hand, the Act does number provide for any proceedings before the Tribunal for determination of a dispute companycerning the eviction of a tenant in occupation of a wakf property or the rights and obligations of the lessor and the lessees of such property. A suit seeking eviction of the tenants from what is admittedly wakf property companyld, therefore, be filed only before the civil companyrt and number before the Tribunal. This Court allowed the appeals and the orders passed by the Wakf Tribunal were set aside and the suit filed by the respondents for eviction of the appellants before the Tribunal was held number maintainable. The ratio laid down in the above-mentioned Judgment later came up for companysideration before this Court in Board of Wakf, West Bengal and another Anis Fatma Begum and another 2010 14 SCC 588 and the Judgment in Ramesh Gobindram Dead Through Lrs. supra was held distinguishable. That was a case where the dispute related to the Wakf Estate which was created by registered deed of Wakf dated 22.09.1936. The question raised was with regard to the demarcation of the Wakf property, which this Court held is a matter which fell under the purview of the Wakf Act. The judgment of the Calcutta High Court which held otherwise was set aside and this Court held that the Wakf Tribunal has jurisdiction to decide those disputes. We are of the view that the dispute that arises for companysideration in this case is with regard to the management and peaceful enjoyment of the Mosque and madrassa and the assets which relate to Wakf. Nature of the relief clearly shows that the Wakf Tribunal has got jurisdiction to decide those disputes. We, therefore, find numbererror in the Wakf Tribunal entertaining O.S. |
Dr. MUKUNDAKAM SHARMA, J. For the reasons stated in the application for companydonation of delay, we are of the view that there is sufficient cause for such companydonation. Accordingly, delay companydoned. Leave granted. This appeal is directed against the judgment and order dated 30.04.2009 passed by the High Court of Punjab Haryana at Chandigarh in Civil Writ Petition No. 10203 of 2007, whereby the High Court disposed of the writ petition by remanding back the matter to the Settlement Commissioner for companysidering the claims of the respondents while maintaining status quo in the matter. Brief facts leading to the filing of the present appeal are that the land in dispute belongs to the State. It is averred by the respondents that they have occupied the land in dispute in the year 1947, measuring 2-1/2 kanals in Khasra No. 16693/6729 in the 55.0 Acres Development Scheme as they were displaced persons from Pakistan. On the other hand the appellant - Improvement Trust Jalandhar has stated that respondents encroached the said land which belongs to the Government. An Award was passed on 05.01.1977 by the Land Acquisition Collector, Jalandhar Improvement Trust in Land Acquisition No. 1 of 1975-76 and in the said Award, it was stated that the State Government Local Government vide their numberification No. 8080-3CI-75/21963 dated the 10th July, 1975, issued under Section 42 of the Punjab Town Improvement Act, 1922, accorded sanction to the Development Scheme for an area measuring approximately Page 2 of 13 55.0 acres on Police Lines Road, behind Commissioners Office, Jalandhar framed by the Jalandhar Improvement Trust. The aforesaid Trust vide its Memorandum No. JIT/3058 dated the 26th July, 1975, applied for the acquisition of the number-evacuee and companyposite property companyprised in the Scheme under the Land Acquisition Act, 1894. It was also stated in the aforesaid award that according to the acquisition file prepared by the revenue staff of the Trust total area of the scheme works out to be 598 Kanal 2 Marlas and out of this area measuring 69 Kanals and 2 Marlas belongs to the Improvement Trust, Jalandhar itself. The aforesaid Award included the area in dispute which is the subject matter of the present case. The respondents, however, companytended inter alia that they are in occupation of the said land by way of evacuee property as they were being displaced persons from Pakistan. The said land was transferred to the Improvement Trust, Jalandhar for the execution of 55.0 Acres Development Scheme developed by the Punjab Government. The Land Acquisition Collector vide its Award dated 5th January, 1977 held that the land occupied by the respondents had already been Page 3 of 13 received by the Improvement Trust, Jalandhar in the package deal. Respondents filed an application for grant of proprietary rights in respect of land measuring 2-1/2 kanals in Khasra No. 16693/6729 in the 55.0 Acres Development Scheme. However, the application filed by the respondents for grant of proprietary rights was dismissed by the Naib Tehsildar S , O. Jalandhar on 03.08.1981 on the ground that the aforesaid area had already been acquired by the Improvement Trust Jalandhar and that it was number an evacuee property. The respondents then filed appeals before the Settlement Commissioner, Punjab, Rehabilitation Department, Jalandhar against the order dated 03.08.1981 which were accepted by the Settlement Commissioner vide its order dated 5.10.1981 and remanded the matter to the Tehsildar S -cum-M.O., Jalandhar for fresh decision, after hearing the respondents. In the meantime the predecessor-in-interest of the respondents Nos. 1 2 filed a civil suit seeking for Page 4 of 13 injunction restraining the appellant herein from dispossessing the predecessor-in-interest from the land illegally, unlawfully or by force. The Trial Court, namely, the Sub Judge passed an order in the said suit that the plaintiff would number be dispossessed from the suit property otherwise than in due companyrse of law. The said order of the Trial Court was also upheld by the Additional District Judge, Jalandhar vide his judgment dated 18.01.1985. Subsequent to the aforesaid order, an application under Sections 5 and 7 of the Punjab Public Premises Land Eviction and Rent Recovery Act No. 31 of 1973 hereinafter referred to as the Eviction Act was filed by the appellant initiating a proceeding for eviction of the respondents. The companypetent authority issued numberice to the respondents and at the stage when the said proceeding was at the stage of evidence, the file of the case lost, companysequent upon which the proceeding was stopped. In the meantime the respondents filed a Writ Petition before the Punjab and Haryana High Court companytending inter alia that the aforesaid land is an evacuee property and therefore Page 5 of 13 the aforesaid initiation of proceedings under Sections 5 and 7 of the Punjab Public Premises Land Eviction and Rent Recovery Act No. 31 of 1973 is without jurisdiction. The appellant herein filed a companynter affidavit in the said writ petition. The High Court by its order dated 12.05.2006 disposed of the said writ petition by holding that if the Settlement Commissioner finds that the claim of the respondents is without any merit and they are number entitled to any alternative sites rehabilitation then they would also have numberaction to claim to retain the sites which are under their possession. Pursuant to the aforesaid directions of the High Court the matter was placed before the Sub Divisional Magistrate, Jalandhar by the respondents herein for allotment of property companyprising in Khasra No. 16693/6729 situated in Bhisti Darwaja, Civil Lines, Jalandhar. The Sub Divisional Magistrate, Jalandhar passed an order dated 27.04.2007 holding that the case companyld number be decided in view of repeal of Displaced Persons Compensation Rehabilitation Act, 1954 by the Ministry of Law and Justice, Legislative Department, New Delhi. Page 6 of 13 Thereupon, the respondents herein filed a separate writ petition for quashing the order dated 27.04.2007 passed by the Settlement Commissioner which was registered as 10203 of 2007. In the said writ petition the State of Punjab filed its companynter affidavit in which it was averred that the respondents have already transferred their land which was being used as residential. With regard to the remaining land being used for Dairy, it was stated that they are number using the said land as the Dairy business has been shifted to Jamsher Tehsil Jalondha in the light of the decision of Municipal Corporation of Jalandhar wherein the respondents have been allotted four different plots bearing Nos. 139 to 142 vide letter dated 12.03.2008. The High Court passed an order dated 30.04.2009 which is the impugned order herein and whereby the High Court remanded back the matter to the Settlement Commissioner once again to companysider the claims of the respondents and also stayed their dispossession till the matter is decided by the Settlement Commissioner. Page 7 of 13 Being aggrieved by the said order the present appeal was filed on which we heard the learned companynsel appearing for the parties. Counsel appearing for the parties have taken us meticulously through the entire records. There can be numberdispute with regard to the fact that the land in dispute is a part of the Award and the same belongs to the Punjab Town Improvement Government being a part of development scheme. The respondents claimed to be in possession of the said land as an evacuee property. If in case the respondents were in possession of the said land as an evacuee property and number as encroachers meaning thereby holding right and title to hold and possess such land, they were required to challenge the Award passed on 05.01.1977. The said Award having number been challenged by the respondents the same has become final and binding on all companycerned. The civil suit filed by the predecessor-in-interest of the respondents Nos. 1 2 was disposed of by the trial companyrt, namely, the Sub Judge with a direction that the plaintiff would number be dispossessed from the suit property otherwise Page 8 of 13 than in due companyrse of law as respondents were in possession of the land, may be as encroachers. Consequent thereto, the appellant has moved the companypetent authority for initiation of proceedings under the Punjab Public Premises Land Eviction and Rent Recovery Act, 1973. In the said proceedings all the issues companyld be urged as to whether or number the respondents are owners and have their rights over the disputed land and also as to whether or number appellant is owner of the land and as to whether or number the respondents are authorised occupants or unauthorised occupants of the land. It was also averred clearly in the writ petition and also in this appeal that the respondents have been allotted four alternative plots in lieu of their occupation of the land which is part of the disputed land. The aforesaid fact although has been disputed by the respondents in their companynter affidavit but numberdocumentary evidence has been placed on record to indicate that the aforesaid land was number allotted by the Government to the respondents and that they had purchased the land by paying full companysideration thereof from the companypetent authority. Page 9 of 13 Be that as it may, as to whether or number the respondents are lawful owners of the land in question or they are mere encroachers and liable to be evicted would be gone into and decided although in a summary manner in the proceedings which were initiated against them. Since the Evacuee Property Act, 1950 has been repealed, we see numberjustification in the order dated 30.04.2009 passed by the High Court remanding back the matter to the Settlement Commissioner to companysider the claim of the respondents once again inasmuch as the issue as to whether or number respondents are authorised or unauthorised occupants of the land in dispute and as to whether or number the respondents are entitled to alternative plots or rehabilitation are matters which can be adjudicated upon separately in accordance with law but number in the manner as suggested by the High Court. Even if respondents are entitled to rehabilitation under any law the same has to be established by due process of law. But they cannot claim any land within the acquired area/55.0 Acres of Development Scheme but in case an order is passed in their favour, they would be rehabilitated in alternative plot s . Therefore, they would have to prove their Page 10 of 13 case before the companypetent authority and number before the Settlement Commissioner. However, in order to companyply with the directions of the Civil Court and also for his eviction in accordance with law, proceeding has to be initiated under the Public Premises Eviction Act, which stands initiated, and therefore, the said proceeding should be companytinued till the same would companye to a logical end. The respondents have number challenged the award and therefore the aforesaid Award has become final and binding. Therefore, we set aside the order passed by the High Court and hold that the proceedings initiated against the respondents under Sections 5 and 7 of the Eviction Act would be allowed to be companytinued and the same shall be brought to a logical end as expeditiously as possible. The land in question is a part of the Development Plan and therefore the matter requires urgent companysideration. In any case the land in question being a part of the Development Plan cannot be left to the occupation of the respondents if they are held to be encroachers by passing an interim order. |
CIVIL APPEAL NO. 1813 OF 2007 Arising out of SLP C No. 11380 of 2006 B. SINHA, J. Leave granted. Respondent carries on business of arrack bottling, manufacture of industrial alcohol and their marketing. He obtained a licence from the State of Karnataka for the aforementioned purposes in terms of the provisions of Karnataka Excise Act, 1965. Indisputably, the matter relating to manufacture and bottling of arrack is governed by the said Act and the rules framed thereunder by the State of Karnataka known as Karnataka Excise Manufacturing Bottling of Arrack Rules, 1987 for short the Rules . Rule with which we are companycerned herein is sub-Rule 3 of Rule 14 which reads as under- Arrack after blending shall be matured in such manner and for such period as may be specified by the Commissioner from time to time. The Commissioner of Excise, however, issued a circular stating It is hereby specified that the arrack shall be matured in wooden vats for a minimum period of 15 days before bottling the same. A period of 15 days, thus, had been prescribed for the aforementioned purpose. A question, however, arose as to what would happen to the excise article, if for circumstances beyond ones companytrol, said directives cannot be carried. With a view to meet that companytingency, it was stated In case the bottling unit for any reason beyond his companytrol is number able to mature the arrack in the manner and to the extent specified above, the unmatured arrack may be bottled with the prior permission of the officer in-charge of the bottling unit. The penalty for supplying unmatured arrack as specified above would be 29 paise per bulk litre. Indisputably, Respondent obtained permission of the appropriate authority in terms thereof as he was number in a position to companyply with the first part of the said circular on paying certain additional amount therefor. He, in his income tax return, claimed deduction for the said amount from his gross income. The Assessing Authority was of the opinion that as the amount payable by the assessee was in the nature of penalty, he was number entitled to any deduction. It was further opined that even if the expenditure is deductible, in view of the fact that the amount in question had number been paid during the period relevant to the assessment year, the same had to be disallowed in terms of Section 43B of the Income Tax Act, 1961 for short the Act . The Assessee paid certain amounts for number affixation of labels on the bottles. He preferred an appeal against the order of assessment and the Appellate Authority, being the Commissioner of Income Tax Appeals , allowed the same opining that the amount claimed is neither in the nature of excise duty number a penalty. In regard to the applicability of Section 43B of the Act, it was held that as the amount, in question, is neither penalty number excise duty, Section 43B of the Act would number be attracted. Appellant preferred an appeal thereagainst before the Income Tax Appellate Tribunal. The Appellate Tribunal opined that the payments made by the respondent were in the nature of an additional levy. In regard to the applicability of Section 43B of the Act, the Tribunal held it in the negative. An appeal thereagainst preferred by the Revenue under Section 260A of the Act, has been dismissed by the High Court by reason of the impugned judgment. Before the High Court, the following purported questions of law were framed Whether the Appellate Tribunal were companyrect in holding that the amount of Rs. 13,25,572/- levied by the Deputy Commissioner of Excise Breweries Distilleries , Bangalore, for failing to affix adhesive labels on arrack bottles and failing to mature the arrack for the prescribed period as per Karnataka Excise Manufacturing Bottling of Arrack Rules, 1997 was an allowable deduction despite the penalty levied having arisen due to infraction of law? ii Whether the penalty of Rs. 13,25,572 levied by the Deputy Commissioner of Excise Breweries Distilleries , Bangalore and number paid by the assessee during the assessment year companyld be disallowed u s 43 of the Act? Relying upon a decision of the said Court in Ugar Sugar Works Ltd. State of Karnataka passed in Writ Petition No. 5008 of 1991 disposed of on 5th September, 1991, the High Court held The amount in question was number a penalty It was also number to be treated either as a fee or excise duty. The payment made for number-affixation of labels also is number a penalty stating Therefore, in the absence of labels number being available, if the assessee was made liable to pay the amount to the Department towards the companyt of the labels for getting the bottled arrack released, it is number possible to take the view that such payment was made by way of fees as companytended by Sri Seshachala. The language employed in the Rule makes it explicit that the amount required to be paid to get the bottled arrack released for sale without labels is by way of companyt of labels to the Government. When the language in the Rule in explicit terms provide that the amount required to be paid towards the companyt of labels and the Rule also impose an obligation on the licensee to get the labels affixed at his companyt in the presence of the Warehouse Officer, it will number be companyrect to companysider that the amount paid is number as a companyt towards the value of labels, but as a fee. Therefore, the third submission of Sri V. Seshachala is also liable to be rejected. Mr. Mohan Parasaran, learned Additional Solicitor General appearing on behalf of the appellants, submitted that the Tribunal and companysequently the High Court went wrong in passing the impugned Judgment insofar as they failed to take into companysideration that the amount in question having been levied for number-compliance of certain statutory provisions, would amount to penalty and in any event as Section 43B of the Act postulated that the payments in respect whereof deduction are claimed must be the amount actually paid during the assessment year, the impugned orders cannot be sustained. Mr. Dhruv Mehta, learned companynsel appearing on behalf of the respondent, however, supported the judgment. Penalty and Excise Duty vis--vis levies which are made on manufacture of an excisable article stand on different footings. Ordinarily, Excise Duty is a tax on manufacture. The same is in the Union List. An exception, however, is made only in respect of the potable alcohol by reason of Entry 51, List II of the Seventh Schedule of the Constitution of India which reads as under- Duties of excise on the following goods manufactured or produced in the State and companyntervailing duties at the same or lower rates on similar goods manufactured or produced elsewhere in India a alcoholic liquors for human companysumption b opium, Indian hemp and other narcotic drugs and narcotics, but number including medicinal and toilet preparations companytaining alcohol or any substance included in subparagraph b of this entry. Thus, levy of excise duty on alcohol must have a source in a statute legislated in terms of Entry 51, List II of the Seventh Schedule of the Constitution of India. It must have a direct relationship with manufacture of Arrack. By reason of Sub-rule 3 of Rule 14 of the Rules, numberperiod of time has been specified. It has been so done under an executive order issued by the Commissioner of Excise. The Authority did number and in fact companyld number levy a tax on manufacture in terms of the said circular or otherwise. As numbertime limit has been specified by reason of a statute, the question of imposing any penalty for number-compliance of the statutory provisions does number arise. It companytemplates an additional levy. Source for such additional levy having regard to the nature of the circular must be found in terms and companyditions of the licence. Such terms and companyditions of licence are fixed by the State by reason of the provisions of the Act made in terms of Entry 8 of List II of the Seventh Schedule of the Constitution of India. Such payments are, therefore, made in pursuance of or in furtherance of the terms of the licence which is referable to Entry 8 and number as a tax on manufacture. This aspect of the matter has been companysidered by a Constitution Bench of this Court in State of Kerala and Others v. Maharashtra Distilleries Ltd. and Others 2005 11 SCC 1 stating In this companynection we may usefully refer to the decision of this Court in State of Punjab v. Devans Modern Breweries Ltd. In that case the State of Kerala was also a party. The State had imposed tax on import of potable liquor manufactured in other States. The stand of the State was that it was within the province of the State to impose restriction on import of potable liquor by imposing import duty. The aforesaid duty had number been imposed by the State in exercise of its statutory power companyferred upon it in terms of Entry 51 List II of the Seventh Schedule to the Constitution but regulatory power as envisaged in Entry 8 thereof. The companytention raised on behalf of the respondents was that the requirements of Articles 301 and 304 of the Constitution were to be companyplied with in view of the fact that the duty of import must companyform to the provisions of Entry 51 of List II. The submission of the respondents was rejected and those advanced on behalf of the State of Kerala were accepted. This Court observed that the word fee is number used in the strict sense to attract the doctrine of quid pro quo. This was the price or companysideration which the State Government had charged for parting with its privilege and granting the same to the vendors. Therefore, the amount charged was neither a fee number a tax but was in the nature of price of a privilege which the purchaser had to pay in any trading and business in numberious article goods. This Court held that the permissive privilege to deal in liquor is number a right at all. The levy charged for parting with its privilege is neither a tax number a fee. It is simply a levy for the act of granting permission or for the exercise of power to part with that privilege. This Court referred to numerous decisions of this Court which have clearly held that the State has a right to exercise all forms of companytrol in relation to all aspects regarding potable alcohol and the State Legislature has exclusive companypetence to frame laws in that regard. The State has exclusive right in relation to potable liquor and there was numberfundamental right to do trade or business in intoxicants. The State in its regulatory power has the right to prohibit absolutely every form or activity in relation to intoxicants its manufacture, storage, export, import, sale and possession and all these rights are vested in the State and indeed without such vesting there can be numbereffective regulation of various forms of activities in relation to intoxicants. A levy is imposed by the State in exercise of its monopoly power. Even such monopoly power of the State is restricted. See Kerala Samsthana Chethu Thozhilali Union v. State of Kerala and Others, 2006 4 SCC 327 There is another aspect of the matter. The time period fixed for blending is number under a statute. 15 days time is number necessary for the purpose of manufacture of excisable articles. It is a time fixed by the Commissioner. Furthermore, levy is number on manufacture. Blending even otherwise is number prohibited. No time limit was fixed under the statute. Public health was number the subject matter of the said Circular. It laid down only a process of bottling. It was, thus, issued with a view to regulate the trade. It would, however, number be an additional duty and, therefore, number a tax on manufacture. What would be a tax on manufacture has recently been companysidered in Commnr. Of Central Excise v. M s. Indian Aluminium Co. Ltd. 2006 10 SCALE 34. |
B. SINHA, J Appellant herein was companyvicted and sentenced to death for companymitting murder of his wife on or about 28.05.1991 at their residential house situate at 81, Richmond Road, Bangalore. The deceased was earlier married to one Akbar Khaleeli who was in the diplomatic service in the Government of India. She had four daughters. The deceased along with her children in the year 1983 visited the Maharaja of Rampur. There she was introduced to the appellant. Appellant at the relevant time was assisting the Rampur royal family. In regard to the management of her landed properties, the deceased sought for his assistance. She had inherited huge properties including House No. 81, Richmond Road, Bangalore from her mother. She had inherited some other properties during her marriage. Some litigations in respect of the said properties had been going on. Mr. Khaleeli on his assignment as diplomat of Iran went to the said companyntry. The deceased together with her daughters started living at Bangalore. Appellant came there. He was also staying in the same house. The deceased desired for a son and she was made to believe by the appellant that he was capable of blessing her with a son. Akbar Khaleeli and the deceased separated in the year 1985. The deceased thereafter married the appellant on 17.04.1986. They started living together at the said house. She had executed a General Power of Attorney and a Will in his favour. However, despite her marriage with the appellant, the deceased was maintaining her relationship with her parents and daughters. Mrs. Sabah Khaleeli, second daughter of the deceased PW-5 had all along been in touch with her. It is number in dispute that from 28.05.1991, the deceased was number seen. PW-5 had been trying to companytact her on phone. She was informed by the appellant that the deceased had gone to Hyderabad. In June 1991, when companytacted, she was informed that her mother had gone to Kutch to attend a wedding. A week thereafter it was informed to her that the deceased had been lying low owing to some income tax problems. She, being exasperated with the said explanations, came down to Bangalore. She did number find her mother there. She was told that the deceased being pregnant had gone to United States of America for delivery of the child. She was told to have been admitted in Roosevelt Hospital. She made verifications thereabout through her acquaintances and came to know that numbersuch woman had ever been admitted to the said hospital. Appellant being companyfronted thereto, informed her that the deceased had gone to London as she had wanted to keep it as a secret. However, in 1992, when she met the accused at Mumbai, numbericed the passport of her mother lying in the room of the hotel which companyfirmed that the deceased had number visited USA or London as represented to her by the appellant on earlier occasions. She ultimately informed the Ashok Nagar Police Station by giving a written companyplaint about missing of her mother. A missing companyplaint was registered on 10.06.1992. No serious effort, however, was made to find out the whereabouts of the deceased. PW-5 approached the higher authorities resulting in the investigation of the matter being entrusted to the Central Crime Branch. Apprehending arrest, Appellant obtained anticipatory bail with a companydition that he would attend the police between 6 p.m. to 8 p.m. on every Monday and shall also make him available to the police. He applied for relaxation of the said companydition and by an order dated 3.12.1993, it was directed that the appellant shall appear before the police authorities on every Monday once in three months. The investigation was entrusted to one C. Veeraiaha PW-37 . He suspected the appellant herein. He was interrogated on 28.03.1994, whereupon he made a voluntary statement which was marked as Ex. P-175. He stated in great details as to the manner in which he had killed his wife and disposed of her dead body. He also disclosed as to how a wooden box of size 2 x 7 x 2 was made, a pit was dug and how the dead body was buried there. He narrated that how with the help of Raju he had put the box into the pit companyered with mud and on the next day with the help of some masons brought by the said Raju kadapa stone slabs were put on the pit and the adjacent land and cemented the place. In the said statement, he stated If I am taken I will show the place where the wooden box was prepared and the person who prepared it, the persons who transported the box and the people who helped in digging out the pit and the crow bar, spade, pan used for digging pit, the cement bags and the spot where Shakerah is buried and I exhume the dead body of the deceased and show you. The statement what all I had earlier given to Ashoknagar Police was a false statement given intentionally just to escape myself. An Executive Magistrate Syed Ejaj Ahmad PW-3 was called for exhumation of the dead body. He asked a doctor to companyduct exhumation proceeding. On 30.03.1994, Dr. Nissar Ahmed PW-14 came to the place of occurrence for the said purpose. Appellant was asked as to whether he was ready to show the spot as per his earlier statement. The entire proceeding of exhumation of the dead body was video-graphed. It took place at about 10.30 a.m. on the said day. Appellant with a chalk piece marked the spot. Coolies accompanying the party as per instructions of the appellant himself, dug the earth of the said place whereupon a box was numbericed. The plank of the lid of the wooden box was removed. A bed, a nighty, pillow and bed sheets were recovered. Channaiah who had companye along with Dr. Nissar Ahmed removed the scalp, skull and hairs of the head which were detached from the skull and other bone pieces. He also removed the pieces of the bones. Another Doctor Shri Thiruvanakkarasu also came there. They joined the bones and fixed the skull and mandible in orderly manner. It was found to be that of a human skeleton. The mother of the deceased Smt. Gauhar Taj Namazie identified a ring which was embedded with red stone and two other black rings as belonging to the deceased. The nighty which was recovered was identified to be belonging to the deceased by the maid servant who had been working in the house. The post mortem examination companymenced at 4.45 p.m. on 30.03.1994 which ended at about 6 p.m. Appellant was, thereafter, charged for companymission of murder of his wife. Before the learned Trial Judge, 39 prosecution witnesses were examined. There was numbereye-witness to the occurrence. The prosecution was based on circumstantial evidence. The learned Trial Judge, as numbericed hereinbefore, found the appellant guilty of companymission of offence under Sections 302 and 201 of the Indian Penal Code and sentenced him to death. Appellant preferred an appeal before the High Court. A reference was also made by the learned Judge in terms of Section 366 of the Code of Criminal Procedure. The circumstances which were found to be existing by the High Court for proving companymission of the offence are said to be Motive Murder for gain The deceased Shakereh was last seen alive in May 1991 when she was residing at No. 81, Richmond Road, Bangalore along with accused and his wife. Strange companyduct of the accused after 28-5-91 A wooden box MO.5 was got prepared and brought to the house by the accused. Discovery of the wooden box companytaining a skeleton and feminine articles buried in the backyard of the said house of the accused and the deceased in furtherance of information furnished by the accused. Fixing the identity of the skeleton as that of the deceased with the help of skull and the admitted undisputed photograph of Mrs. Shakereh by photo Super-imposition method. Fixing the identity of the skeleton as that of the deceased on the basis of DNA finger printing. Identifying some of the articles like MOs. 5, 6, 8, 11 to 17 along with the skeleton in the box as belonging to the deceased. The last circumstance put forth i.e., the attempt of the accused to mislead or to give false explanation. Before the High Court, a companytention was raised that before imposition of sentence, the appellant had number been granted adequate opportunity to make a representation as was mandatorily required under Sub-section 2 of Section 235 of the Code of Criminal Procedure, 1973. The High Court gave the appellant an opportunity of being heard. Before the High Court, the appellant accepted that he was instrumental in burying the dead body stating The accused submitted that he is innocent and has been illegally companyvicted. He submitted that as the family members of the deceased parents and daughters had filed number of cases against the deceased, she was mentally depressed and was taking number of sedative pills drugs that she died naturally in May 1991 and as he feared adverse companysequences, especially repercussions from her family members and companymunity people, he buried her body in the backyard of his house without informing anybody. He submitted that though this fact was number stated by him in the trial companyrt, as he companyld number bear it any more and after thinking over the matter for the last few years, he has decided to companye out with this truth. He submitted that as he is innocent, his companyviction be set aside and he be acquitted. So far as the sentence is companycerned, he submitted that as number he is 61 years old and suffering from serious ailments like diabetes, hypertension and hernia and as he is in custody for the last 11 years, mercy be shown to him by reducing the capital punishment, if ever the companyrt decides to companyvict him. The High Court, however, affirmed the judgment of companyviction and sentence. Mr. Alok Vagrecha, learned companynsel appearing on behalf of the appellant raised the following companytentions in support of this appeal A First Information Report having been already lodged by PW-5, a second report by the Investigating Officer PW-37 lodged on 28.03.1994 Ex. P-171 was illegal. The purported recovery of the wooden box companytaining some articles and the bones which were number admissible in evidence under Section 27 of the Indian Evidence Act as the location of the dead body was already known, the purported statement made by the appellant Ex. P 175 being wholly inadmissible in evidence, companysequent recovery of the dead body would also be inadmissible. In this companynection our attention has been drawn to the fact that the appellant was given an opportunity to have the services of a lawyer during interrogation. If the prosecution case is true that the appellant had administered sedative to the deceased on 28.05.1991 in the afternoon, the companyrts below should have also taken into companysideration that in view of the statement of the investigating officer that the appellant at about the same time on 28.05.1991 was found to be in the companypany of one Rekha Handa, a former Miss India, the prosecution case must be held to have number been proved as against the appellant. A Will and General Power of Attorney having already been executed by the deceased, the appellant companyld number have any motive to kill her. The purported circumstances on the basis whereof the judgment of companyviction and sentence have been rendered does number companyplete all the links in the chain as there had been a numberrecovery of drug b motive had number been proved and c there was numberproof that she died of poisoning. The purported recovery of drug on 31.03.1994 by the Investigating Officer was wholly inadmissible in evidence. The High Court having recorded that the deceased did number meet any violent death, the impugned judgment cannot be sustained and in any event the death sentence should number have been imposed. The High Court companymitted a serious illegality in relying upon the statement made by the appellant before it as being companyfession of his guilt although the same was meant to be used for the purpose of hearing on the question of sentence only. Mr. Sanjay R. Hegde, learned companynsel appearing on behalf of the State, on the other hand, supported the judgment. The learned companynsel would companytend that the companyrt while analyzing the evidences brought on records should keep in mind the following facts The deceased was a beautiful woman. She had a husband and four daughter She was an owner of huge property She met her death at the age of 40 years. Appellant although companyld enjoy all the luxuries of life, he had greed for more money and, therefore, hatched a plan to murder the deceased wherefor he got prepared a wooden box, took advantage of temporary absence of the two old servants and at the opportune moment administered sedative to the deceased. Despite her death, he had been operating the bank account which was a joint account and had been acting on the basis of the General Power of Attorney. He kept to PW-5 at dark although she had been companystantly making enquiry in regard to the whereabouts of the deceased for one and half years. The manner in which the dead body was found categorically shows the vicious mind of the appellant as the bed-sheet was found on her face, her jewelery was found on the top of the body, the deceased had nighty on her person and, thus, it was essentially principally a planned murder. We have number doubt that the death of the deceased was homicidal in nature. The identity of the dead body has also been established. The circumstances in which the deceased married the appellant have also number been disputed. Their marriage was proved by PW-8 T.H. Lokeshminarayana. Appellant also did number deny or dispute that he had been living with the deceased at all material times at 81, Richmond Road, Bangalore. It has furthermore number been disputed that she had number been seen on and from 28.05.1991. We have numbericed hereinbefore the circumstances which are said to have been found by the companyrts below. The law in this behalf is number numberlonger res integra. In Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622, this Court held A close analysis of this decision would show that the following companyditions must be fulfilled before a case against an accused can be said to be fully established 1 the circumstances from which the companyclusion of guilt is to be drawn should be fully established. It may be numbered here that this Court indicated that the circumstances companycerned must or should and number may be established. There is number only a grammatical but a legal distinction between may be proved and must be or should be proved as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra where the observations were made SCC para 19, p. 807 SCC Cri p. 1047 Certainly, it is a primary principle that the accused must be and number merely may be guilty before a companyrt can companyvict and the mental distance between may be and must be is long and divides vague companyjectures from sure companyclusions. 2 the facts so established should be companysistent only with the hypothesis of the guilt of the accused, that is to say, they should number be explainable on any other hypothesis except that the accused is guilty, 3 the circumstances should be of a companyclusive nature and tendency, 4 they should exclude every possible hypothesis except the one to be proved, and 5 there must be a chain of evidence so companyplete as number to leave any reasonable ground for the companyclusion companysistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. In regard to the circumstantial evidence in a case of death by poisoning, this Court opined So far as this matter is companycerned, in such cases the companyrt must carefully scan the evidence and determine the four important circumstances which alone can justify a companyviction 1 there is a clear motive for an accused to administer poison to the deceased, 2 that the deceased died of poison said to have been administered, 3 that the accused had the poison in his possession, 4 that he had an opportunity to administer the poison to the deceased. See also Aloke Nath Dutta Ors. v. State of West Bengal 2006 13 SCALE 467 We may proceed to companysider the matter keeping in view the aforementioned legal principle in mind. Dr. Nissar Ahamed who examined himself as PW-14 in his evidence proved the exhumation of the dead body. It, as numbericed hereinbefore, was companyducted by the Taluka Magistrate PW-3. Upon removal of the detached skull, mandible, carpal and tarsal, palm and bones from the pit of feet, all the said bones were assembled on plastic paper. A Human skeleton was formed. There was a foul smell. According to him, all the bones were intact. The skeleton was that of a human body. In the post mortem examination, it was found Decomposed and Skeletanised body removed from the wooden box described. The body was removed in piece meal from the box as the bones were easily companying out from the joints and body was assembled in anatomical position which companysists of skull with black hair measuring 25 long. It was further numbericed The bones one below the other are Skull bone with mandible, two clavicles, two scapulae, bones of upper limbs and lower limbs, vertebral companyumn, pelvis and carple and tarsal bones. The decomposed tissue were greish white in companyour emitting foul smell. All bones were intact skull shows female characteristic feature, articulate well with were each other. Skull suture companypletely obliterated endocrenaly, partially obliterated exocreinaly. All teeth erupted showed attrition. The stature was calculated from long bones and average taken from the bones. Right Femur 46 cms. Right Tibia 39 cms. Left Humorus 32.5 cms and estimated stature is 54 to 56 Four Pieces of body of sternum fused. All the internal organs were found to be decomposed and liquefied. He, however, reserved his opinion in regard to the cause of death pending chemical analysis. The doctor preserved skull and mandible for super imposition and visera and hair for chemical analysis report and bone marrow hair and soft tissues for DNA Fingerprinting. PW-14 on the basis of the said FSL report formed his opinion that the cause of death cannot be furnished as the percentage amount of Chlodiazepoxide companysumed had number been furnished. In regard to the effect of Chlordizaepoxide on human body, however, his opinion was as under The effect of Chlordiazopoxide on human body depends upon the dosage. They are weight gain, as a result of increase appetite, anxiety, nausea, vertigo, impaired sexual function, menstrual irregularities, skin rashes, agramlocytosis etc. In regard to the effect of over dose of the said medicine, it was stated Effects of over dose are rare, as the drug has got remarkable safety margins. A few deaths have been reported at doses greater than 700 mgs as per the literature. The symptoms are respiratory and cardiovascular, dis-function due to the suppression of higher centers in the brain. PW-14 in his cross-examination opined that the death of the deceased was homicidal. According to him, if the deceased had companysumed only one or two tablets of Equibrom and her body was put in a box and lid was closed suddenly, an unexpected death may occur due to natural causes also. It is number a case where the dead body was number identified to that of the deceased. Blood sample of PW-5 was taken. Blood samples of Mirza Gulam Hussain Namazie and Gauhar Taj Begum Namazie had also been taken. PW-20 Srimannarayan, Chief Medical Officer of Bowring Hospital, in his evidence, spoke about the result of the DNA analysis in regard to taking of the blood samples. The bones were sent for DNA test to Hyderabad Forensic Science Laboratory through Forensic Science Laboratory, Bangalore. The test was companyducted by Dr. Laljit Singh, Scientist, who was examined as PW-24. According to him, he and Dr. G.V. Rao PW-17 , another scientist in Hyderabad together carried the process of DNA isolation and testing from Exs. A to D, i.e., from blood of the father, teeth of the deceased, hair of the deceased and blood of the mother in two tests being Polymerase Chain Reaction PCR and HLA DQ typing both the tests companyfirmed that the deceased was the offspring of the said Mirza Gulam Hussain Namazie and Gauhar Taj Begum Namazie. PW-17 Dr. G.V. Rao categorically stated that in carrying out DNA fingerprinting they followed the same procedure as in the case of blood samples received earlier which were examined. He proved the report prepared by him and Dr. Laljit Singh on 4.10.1995 which was marked as Ex. P-155. PW-1 Dr. T.R. Kumari was an Assistant Director of Forensic Science Laboratory. She gave her opinion on 15.09.1994 which was marked as Ex. P-125 stating Presence of Clonazepam was detected in article number I a I b . Presence of Alprazolam was detected in article No. I b I f . Presence of Diazepam was detected in article No. I c . Presence of Chlodizepoxide was detected in No. I e , III IV. No poison was detected in article No. I h . Dr. T.R. Kumari PW-1 companyducted the Photo Superimposition Method Test on the skull, which was marked as MO-1 along with the admitted photograph of the deceased, which was marked as MO-3. According to the said witness, anthropometric characters or land marks of the skull and the superimposed admitted photographs matched. She prepared a report, which was marked as Ex.P-2. Her qualification as an expert to companyduct the said test is number in doubt. Even otherwise, she holds a Ph.D. degree in Forensic Science. She has been awarded a medal for her research work by the Madras Forensic Society of India. She has also undergone special training in photo superimposition and has submitted a number of papers thereon. Her report as also the report of PW-17 are relevant evidences. The qualification of the expert has number been questioned before us. The learned companynsel appearing on behalf of the appellant has number raised any companytention which would point out that the methodology companyducted by the experts in carrying out the study was in any manner unscientific or raised any suspicion as regards the companyrectness thereof. It is borne out from the records that even the photographs were brought by PW-1 before the trial companyrt. Identify of the skull vis--vis the other parts of the body, thus, categorically goes to show that the same was that of the deceased, Smt. Shakereh. It has also number been seriously disputed that the deceased was last seen in the companypany of the companypany of the appellant. The fact that she had number been seen alive from May, 1991 also stands fully established. We will hereinafter numberice the circumstances which existed in establishing the companymission of the crime. PW-5 Sabah Khaleeli, was the daughter of the deceased through her first husband. She in her deposition categorically stated that she had spoken to her mother on 19.04.1991. She was number available on phone from May, 1991 onwards. Gauhar Namazee PW-25 was the mother of the deceased. She in her deposition stated that she had last seen the deceased on 13.04.1991. She had number been cross-examined on the said point. It is also number disputed that PW-18 and PW-19, who were husband and wife, were engaged by the deceased. They saw the deceased in the companypany of the appellant in the morning of 28.05.1991, for the last time. The said witnesses were staying in a servant quarter in the said premises. PW-18 was working as gardener-cum-handyman whereas PW-19 was working as maid servant, since 1988. They stated in unison that they had seen the deceased at about 07.30 A.M. on that day. According to PW-19, she went to the kitchen to prepare tea for the companyple and kept the tea cups on the dining table. She in numberuncertain terms stated that the cups of tea were taken by the appellant to the bed-room where the deceased was reading a newspaper. PW-19 while sweeping the house was called by the deceased and was instructed to clean the articles kept in the showcase instead of sweeping. They, however, received a telegram at about 10.00 a.m. whereby they were informed that the sister-in-law of PW-19 was sick at Gudisuvarapally in the State of Andhra Pradesh. They sought for leave and some money. They were permitted to leave Bangalore and were asked to companylect the requisite amount after some time. They came back to their quarters and started packing their goods. At about 1.30 p.m. they went back to the house. PW-18, however, was said to have been asked by the appellant herein to shift a wooden box kept in the guest house to the bed room before leaving. They together with some others took a large wooden box from the guest house and kept the same inside the bed room, where they found the deceased sleeping on the bed. They were thereafter paid a sum of Rs.1,200/- towards their salary and additional sum of Rs.500/- towards travelling expenses. They left for their home. They came back after a companyple of days, but did number find the deceased. The said two witnesses in their depositions companyroborated each other. We have numbericed hereinbefore that the appellant had applied for grant of anticipatory bail in July, 1992 i.e. after the missing companyplaint was filed by PW-5. In the said application for bail, the appellant himself disclosed that the deceased had left for unknown destination in the month of May, 1991, allegedly because of her agitated mental companydition. If it is proved that the deceased died in an unnatural circumstance in her bed room, which was occupied only by her and her husband, law requires the husband to offer an explanation in this behalf. We, however, do number intend to lay down a general law in this behalf as much would depend upon the facts and circumstances of each case. Absence of any explanation by the husband would lead to an inference which would lead to a circumstance against the accused. We may, however, numberice that recently in Raj Kumar Prasad Tamarkar State of Bihar Anr. 2007 1 SCALE 19 JT 2007 1 SC 239, this Court opined Once the prosecution has been able to show that at the relevant time, the room and terrace were in exclusive occupation of the companyple, the burden of proof lay upon the respondent to show under what circumstances death was caused to his wife. The onus was on him. He failed to discharge the same. This legal position would appear from a decision of this companyrt in Nika Ram v. The State of Himachal Pradesh AIR 1972 SC 2077 wherein it was held It is in the evidence of Girju PW that only the accused and Churi deceased resided in the house of the accused. To similar effect are the statements of Mani Ram PW 8 , who is the uncle of the accused, and Bhagat Ram school teacher PW 16 . According to Bhagat Ram, he saw the accused and the deceased together at their house on the day of occurrence. Mani Ram PW 8 saw the accused at his house at 3 p.m., while Poshu Ram, PW 7 saw the accused and the deceased at their house on the evening of the day of occurrence. The accused also does number deny that he was with the deceased at his house on the day of occurrence. The house of the accused, according to plan PM, companysists of one residential room one other small room and a varandah. The companyrectness of that plan is proved by R. Verma overseer PW 5 . The fact that the accused alone was with Churi deceased in the house when she was murdered there with the Khokhri and the fact that the relations of the accused with the deceased, as would be shown hereafter, were strained would, in the absence of any companyent explanation by him, point to his guilt. In Trimukh Maroti Kirkan v. State of Maharashtra JT 2006 9 SC 50, the law is stated in the following terms Where an accused is alleged to have companymitted the murder of his wife and the prosecution succeeds in leading evidence to show that shortly before the companymission of crime they were seen together or the offence took place in the dwelling home where the husband also numbermally resided, it has been companysistently held that if the accused does number offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for companymission of the crime We have numbericed hereinbefore as to why the investigation was taken over by the Central Crime Branch. As the interrogation of the appellant, while in custody of the police, revealed the possibility of the deceased having been buried in the backyard of her residential house, the Investigating Officer requested the Sub-Divisional Magistrate to companyduct exhumation proceedings, who in turn, authorized the Taluka Executive Magistrate PW-3 to do so. Confession of the accused was number admissible in evidence. What was admissible only was that part of the companyfession leading to the discovery of fact in terms of Section 27 of the Indian Evidence Act. The proceedings were companyducted in the presence of the accused, which were videographed and marked as MO-18. The learned Trial Judge as also the learned Judges of the High Court had the benefit of watching the said videograph. The High Court in its impugned judgment recorded The videograph and the inquest proceeding disclose that a large wooden box was found buried in the backyard of the house of the accused and the deceased and companytained a skeleton. The videograph recording which is number disputed by the accused, clearly discloses and shows that it was the accused who was pointing out the exact spot to be dug up in the big backyard and in fact marked the area with a chalk. The videograph further showed that the backyard flooring was of well laid Cuddapah stones property cemented. In such a situation, in our view, numberody except the person who buried the box companyld have the knowledge of its burial. Discovery of the last remains of the deceased was a relevant fact, which was, thus, admissible in evidence. Appellant had pinpointed the exact place which was to be dug up. He marked the exact area. He also made an oral statement that the box was buried beneath the area so marked, location whereof showed that it was a big area, flooring of which had been well plastered with cement having Cuddapah stone slabs. The video showed that the slabs had been laid there much earlier and were number of recent origin. In Aloke Nath Dutta supra , in regard to applicability of Section 26 and Section 27 of the Indian Evidence Act, it was stated The policy underlying behind Sections 25 and 26 is to make it a substantive rule of law that companyfessions whenever and wherever made to the police, or while in the custody of the police to any person whomsoever unless made in the immediate presence of a magistrate, shall be presumed to have been obtained under the circumstances mentioned in Section 24 and, therefore, inadmissible, except so far as is provided by Section 27 of the Act. Pulukuri Kottayya v. King Emperor AIR 1947 PC 67 is an authority for the proposition that fact discovered envisaged under Section 27 of the Indian Evidence Act, 1872, embraces the place from which the object was produced, the knowledge of the accused as to it, but the information given in that behalf must relate distinctly to that effect, stating The companydition necessary to bring the section into operation is that discovery of a fact in companysequence of information received from a person accused of any offence in the custody of a Police Officer must be deposed to, and thereupon so much of the information as related distinctly to the fact thereby discovered may be proved. It was further observed In their Lordships view it is fallacious to treat the fact discovered within the section as equivalent to the object produced the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information supplied by a person in custody that I will produce a knife companycealed in the roof of my house does number lead to the discovery of a knife, knives were discovered many years ago. It leads to the discovery of the fact that a knife is companycealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the companymission of the offence, the fact discovered is very relevant. An attempt was made by the Bombay High Court to take a different view in Shri Shankar Gopal Patil Others v. The State of Maharashtra 2000 5 Bom. CR 360. The legal proposition propounded in Pullukuri Kottaya supra has been companysidered by this Court in Jaffar Hussain Dastagir v. State of Maharashtra 1969 2 SCC 872, Shamshuk Kanwar v. State of U.P. 1995 4 SCC 430 and State of Maharasthra v. Damu 2000 6 SCC 269, wherein this Court reiterated it with approval. The learned companynsel appearing on behalf of the appellant, in our opinion, was number companyrect to companytend that only because the investigating team having regard to the purported companyfession made by the appellant had already known that a dead body had been buried in the house, Section 27 of the Evidence Act would number be attracted. In his statements before the investigating officer, he made a companyfession but what was admissible in evidence his only that part which would companye within the purview of Section 27 of the Evidence Act and number the rest. The companyrt while analyzing the evidence and appreciating the same cannot take numbere of companyfession made before the police. The prosecution case must rest on the other materials brought before the companyrt. It is also number permissible to start with the companyfession and find companyroborative evidence thereof and companye back to the companyfession again for the purpose of arriving at a companyclusion of guilt. What was, therefore, relevant for the purpose of Section 27 of the Evidence Act was that at the instance of the appellant himself a particular place which had been pin pointed by him had been dug and remains of a body and other articles were recovered. The various circumstances leading to the pointing out the guilt of the appellant and appellant alone have been enumerated by us hereinbefore. From our discussions, it is evident that each of the circumstances had been established, the cumulative effect whereof would show that all the links in the chain are companyplete and the companyclusion of the guilt is fully established. We are number oblivious of the fact that there is a material difference distance between may be and must be and furthermore in a case of this nature the evidence must be companysidered with more than ordinary care lest the shocking nature of crime induce an instinctive reaction against a dispassionate judicial scrutiny of the facts and law. See Kashmira Singh v. State of Madhya Pradesh - AIR 1952 SC 159. The question, however, is as to whether in a case of this nature death sentence should be imposed. In Aloke Nath Dutta supra , this Court had an occasion to companysider a large number of decisions taking different views in regard to the interpretation of the words rarest of rare cases as adumbrated in Bachan Singh v. State of Punjab 1980 2 SCC 684. This Court had also the occasion therein to numberice the growing demand in the international fora and in particular the second Optional Protocol to the International Covenants on Civil and Political Rights and the Protocol to the American Constitution on Human Rights abolished that death penalty should be abolished. Recently, the Privy Council in Reyes v. R. 2002 UKPC 11 12 BHRC 219 and Hughes, R. v. Saint Lucia 2002 UKPC 12, numbericing the decision of this Court in Mithu v. State of Punjab 1983 2 SCR 6903, opined that the mandatory death punishment is unconstitutional. See also Fox v. The Queen 2002 2 AC 284, Bowe v. The Queen 2006 1 WLR 1623 and Coard Ors. v. The Attorney General Grenada , 2007 UKPC 7. Abolition of death penalty is number being and, in fact, cannot be advocated but what requires serious companysideration is as to whether the jurisdiction should number be invoked unless there exists an extra-ordinary situation to find that it companyes within the purview of rarest of rare cases. The approach of the companyrts should number be to companyfine its thought process to the identification of a rare case. The expression rarest of rare case has been evolved by a Constitution Bench of this Court and, thus, demands a meaningful application. It is interesting to numbere that Bhagwati, J. in Bachan Singh v. State of Punjab 1982 3 SCC 24, while expressing his dissenting opinion, numbericed as under This arbitrariness in the imposition of death penalty is companysiderably accentuated by the fragmented Bench structure of our companyrts where Benches are inevitably formed with different permutations and companybinations from time to time and cases relating to the offence of murder companye up for hearing sometimes before one Bench, sometimes before another sometimes before a third and so on. Professor Blackshield has in his article on Capital Punishment in India published in Volume 21 ot the Journal of the Indian Law Institute pointed out how the practice of Bench formation companytributes to arbitrariness in the imposition of death penalty. It is well known that so far as the Supreme Court is companycerned, while the number of Judges has increased over the years, the number of Judges on Benches which hear capital punishment cases has actually decreased. Most cases are number heard by two-Judge Benches. Professor Blackshield has abstracted 70 cases in which the Supreme Court had to choose between life and death while sentencing an accused for the offence of murder and analysing these 70 cases he has pointed out that during the period April 28, 1972 to March 8, 1976 only 11 Judges of the Supreme Court participated in 10 per cent or more of the cases. He has listed these 11 Judges in an ascending order of leniency based on the proportion for each Judge of plus votes i.e. votes for the death sentence to total votes and pointed out that these statistics show how the judicial response to the question of life and death varies from judge to judge. It is significant to numbere that out of 70 cases analysed by Professor Blackshield, 37 related to the period subsequent to the companying into force of Section 354, sub-section 3 of the Code of Criminal Procedure, 1973. If a similar exercise is performed with reference to cases decided by the Supreme Court after March 8, 1976, that being the date up to which the survey carried out by Professor Blackshield was limited, the analysis will reveal the same pattern of incoherence and arbitrariness, the decision to kill or number to kill being guided to a large extent by the companyposition of the Bench. Take for example Rajendra Prasad case decided on February 9, 1979. In this case, the death sentence imposed on Rajendra Prasad was companymuted to life imprisonment by a majority companysisting of Krishna Iyer, J. and Desai, J., P. Sen, J. dissented and was of the view that the death sentence should be companyfirmed. Similarly in one of the cases before us, namely, Bachan Singh v. State of Punjab, when it was first heard by a Bench companysisting of Kailasam and Sarkaria, JJ., Kailasam, J. was definitely of the view that the majority decision in Rajendra Prasad case9 was wrong and that is why he referred that case to the Constitution Bench. So also in Dalbir Singh v. State of Punjab, the majority companysisting of Krishna Iyer, J. and Desai, J. took the view that the death sentence imposed on Dalbir Singh should be companymuted to life imprisonment while A.P. Sen, J. stuck to the original view taken by him in Rajendra Prasad case9 and was inclined to companyfirm the death sentence, It will thus be seen that the exercise of discretion whether to inflict death penalty or number depends to a companysiderable extent on the value system and social philosophy of the Judges companystituting the Bench We are number oblivious of a line of decisions of this Court where the doctrine of proportionality has been applied, even in the matter of awarding death penalty. See State of Rajasthan v. Kheraj Ram, 2003 8 SCC 224, Bablu Mubarik Hussain v. State of Rajasthan, 2006 14 SCALE 15 and Shivu and Anr. v. R.G. High Court of Karnataka and Anr. 2007 3 SCALE 157 In this case we need number go into the companyrectness or otherwise of the said view. Although it is also number necessary to do so, we may numberice some development of law in this regard. Criminal Justice Act 1991 of England famously hailed doctrine of proportionality as the guiding principle. But since the 1991 legislation, field of sentencing has seen much reform and Criminal Justice Act of 2003 presents a fresh set of sentencing objectives. Section 142 of the Act delineates the following as the purposes of sentencing 142 Purposes of sentencing Any companyrt dealing with an offender in respect of his offence must have regard to the following purposes of sentencing- a the punishment of offenders, b the reduction of crime including its reduction by deterrence , c the reform and rehabilitation of offenders, d the protection of the public, and e the making of reparation by offenders to persons affected by their offences. In this companytext it, a reference should also be made of the Halliday Report of 2001 Making Puncishments Work which has some interesting insights to offer on the sentencing structure in England and Wales. In the same vein, a White Paper in 2002 has made a case of reforms and suggested a shift from the proportionality principle. In fine, scholarship on sentencing which has been quite diverse in its prescriptions certainly has companysensus on the point that any decision on sentencing aspect would require assessing more than one variables and single minded pursuit of any one sentencing ideal would be discounting on other equally urgent parameters and objectives. We do number have a sentencing policy, unlike some other companyntries. England has the companycept of guideline judgments which is companysidered as a judge managed sentencing model rather than a statute induced one. Section 354 3 suggests that Indian law furthers statute induced sentencing guidance in part. Therefore it has to be given full companyour. We have numberpractice of referring such matters to superior companyrts for laying down the guidelines relating to imposition of sentence under various situations. See The Queen v. Julie McGinley and Michael Monaghan, 2003 NICC 1 In our companyntry, therefore, each case may have to be companysidered on its own merit. It may be of some interest to numbere that Furman v. Georgia 408 U.S. 238 1972 ruled on the requirement for a degree of companysistency in the application of the death penalty. Justice Stewart held that The penalty of death differs from all other forms of criminal punishment, number in degree, but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the companyvict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our companycept of humanity. These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people companyvicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed. Justice Brennan while interpreting Eighth Amendment Amendment VIII Excessive bail shall number be required, number excessive fines imposed, number cruel and unusual punishments inflicted of US Constitution observes in Furman In determining whether a punishment companyports with human dignity, we are aided also by a second principle inherent in the Clause -- that the State must number arbitrarily inflict a severe punishment. This principle derives from the numberion that the State does number respect human dignity when, without reason, it inflicts upon some people a severe punishment that it does number inflict upon others. Indeed, the very words cruel and unusual punishments imply companydemnation of the arbitrary infliction of severe punishments. It is important to refer to Harbans Singh v. Union of India AIR 1982 SC 849 at this juncture. In that case three people were sentenced to death by the trial companyrt for playing an equal part in jointly murdering a family of four persons. The sentence of all the three was companyfirmed by the High Court. Each of them moved to the Supreme Court by different Special Leave Petitions before three separate benches. One of the accuseds petition was dismissed and he was actually executed. Anothers petition was allowed and his death sentence was companymuted to life imprisonment. And the petition of the third one was also dismissed. He filed a review petition, which was also dismissed, and the Executive refused clemency. He then moved another petition before the Supreme Court bringing to light this arbitrariness. The Supreme Court recommended the President to companymute his sentence. Chandrachud J. while lamenting the death of dead accused said The fate of Jeeta Singh has a posthumous moral to tell. He cannot profit by the direction which we propose to give because he is number beyond the process of human tribunals. Benthams discourse on determination of minimum punishment and maximum punishment serves as a yardstick in this companytext. Bentham in his landmark treatise Principles of Penal Law propose to establish a proportion between crimes and punishments. But he cautions against an oracular understanding than an instructive one. We here further go in the details of what doctrine of proportionality holds in the realm of sentencing. The first rule of proportionality mandates The value of the punishment must number be less in any case than what is sufficient to outweigh that of the profit of the offence. While talking of minimum punishment Bentham observes Punishments may be too small or too great and there are reasons for number making them too small, as well as number making them too great. The terms minimum and maximum may serve to mark the two extremes of this question, which require equal attention. With a view of marking out the limits of punishment on the side of the first of these extremes, we may lay it down as a rule That the value of the punishment must number be less in any case than what is sufficient to outweigh that of the profit of the offence. By the profit of the crime, must be understood number only pecuniary profit, but every advantage real or apparent, which has operated as a motive to the companymission of the crime. It is to be appreciated here that statutorily decided minimum sentence takes into account the basic value of the crime and suffice to outweigh the profit of the offence. The moot question relates to parameters to decide the maximum punishment. Setting the trail of caution on the side of determination of maximum punishment Bentham posits Punishment, whatever shape it may assume, is an evil The minimum of punishment is more clearly marked than its maximum. What is too little is more clearly observed than what is too much. What is number sufficient is easily seen, but it is number possible so exactly to distinguish an excess. An approximation only can be attained. The irregularities in the force of temptations, companypel the legislator to increase his punishments till they are number merely sufficient to restrain the ordinary desires of men but also the violence of their desires when unusually excited. The greatest danger lies in an error on the minimum side, because in this case the punishment is inefficacious but this error is least likely to occur, a slight degree of attention sufficing for its escape and when it does exist, it is at the same time clear and manifest, and easy to be remedied. An error on the maximum side, on the companytrary, is that to which legislators and men in general are naturally inclinedantipathy, or a want of companypassion for individuals who are represented as dangerous and vile, pushes them onward to an undue severity. It is on this side therefore, that we should take the most preparations, as on this side there has been shown the greatest disposition to err. On the same point Beccaria in his historic work Of Crimes and Punishments denounced retributive basis of punishment. The aim of punishment can only be to prevent the criminal companymitting new crimes against his companyntrymen, and to keep others from doing likewise. Punishments, therefore, and the method of inflicting them, should be chosen in due proportion to the crime so as to make the most efficacious and lasting impression on the minds of men, and the least painful impressions on the body of the criminal. For a punishment to be efficacious, it is enough that the disadvantage of the punishment should exceed the advantage anticipated from the crime in which excess should be calculate the certainty of punishment and the loss of the expected benefit. Everything beyond this, accordingly, is superfluous, and therefore tyrannical. There is a clear and discernible necessity of caution to set the maximum punishment in an offence. And also by implication there must be intensive and exhaustive inquiry into accused related parameters before employing the maximum sentence by a companyrt of law. Therefore discretion to the judiciary in this respect to declare the maximum punishment is of utmost critical and seminal value. Reasons must be detailed setting clearly why any punishment other than the maximum punishment will number suffice. This is a general and age-old rule of sentencing which has been statutorily recognized under section 354 3 . Reference to the decision of other jurisdictions and or the recent trend in the international fora has number been referred to by way of precedents or even a persuasive value but the companyrt in this age cannot afford to put down blinkers on its window to the outside world. It is numbereworthy to mention here the Law Commission in its Report of 1967 took the view that capital punishment acted as a deterrent to crime. While it companyceded that statistics did number prove these so-called deterrent effects. It also said that figures did number disprove them either. Tracing the judicial view on Death Penalty, one can start with the Jagmohan Singh case 1973 where it agreed with the Law Commission that capital punishment should be retained. But subsequent cases such as those of Ediga Anamma 1974 and Rajendra Prasad 1979 saw dissenting voices being raised in this companyrt. These led to a hearing of the Bachan Singh 1980 case by a Constitutional Bench. In Rajendra Prasad v. State of U.P. 1979 3 SCR 646, it was held that the special reasons necessary for imposing a death penalty must relate number to the crime but to the criminal. It companyld be awarded only if the security of the state and society, public order in the interest of the general public companypelled that companyrse. The death penalty was abolished in 1965 in the U.K. Member-states of the European Union cannot have the death penalty. In Canada, after the abolition of the death penalty in 1976, the homicide rate declined. In 2000, there were 542 homicides in Canada 16 fewer than in 1998 and 159 fewer than in 1975 one year prior to the abolition of capital punishment . In 1997, the Attorney-General of Massachusetts said there is number a shred of credible evidence that the death penalty lowers the murder rate. In fact, without the death penalty the murder rate in Massachusetts is about half the national average. The South African Constitutional Court unanimously ruled in 1995 that the death penalty for murder violated the companyntrys Constitution. More than 118 companyntries have abolished the death penalty either in law or practice. The second optional protocol to the International Civil Covenant, which came into force in 1991, mandates the abolition of the death penalty. Whatever may be the merits, demerits or criticism, one cannot hope for unjustness in society. Deterring or preventive theory may number have any application at all in respect of imposition of death sentence. The law itself mandates that for imposing death sentence, special reasons are to be assigned. Imposition of death punishment is an exception in terms of subsection 3 of Section 354 of the Code of Criminal Procedure. Whereas for companymission of other offences, one or other theory, justly or otherwise may be taken recourse to, a large number of factors are required to be borne in mind for awarding death penalty. In Renuka Bai alias Rinku alias Ratan and Another v. State of Maharashtra 2006 7 SCC 442, Balakrishnan, J. as the learned Chief Justice then was while imposing a death sentence in a case where the appellants had kidnapped seven children and companymitted their murder in a most dastardly manner also numbericed 36We have carefully companysidered the whole aspect of the case and are also alive to the new trends in the sentencing system in criminology Emphasis supplied Similarly in Bhimashya and Ors. v. Smt. Janabi Janawwa 2006 SCALE 27, Dr. Pasayat, J. took into companysideration the overall global view imparting death penalty. This new trend, thus, must be taken into companysideration only for awarding appropriate punishment. We may also numbere that in Ram Singh v. Sonia Ors. 2007 3 SCALE 106 imposition of a death penalty has been upheld in the case where the accused had number only put an end to the life of her step brother and his whole family which included three tiny tots of 45 days, 2 years and 4 years but also her own father, mother and sister in a very diabolic manner so as to deprive her father from giving the property to her step brother and his family. It was, in the aforementioned extraordinary situation, held The fact that murders in question were companymitted in such a diabolic manner while the victims were sleeping, without any provocation whatsoever from the victims side indicates the companyd-blooded and premeditated approach of the accused to cause death of the victims. The brutality of the act is amplified by the grotesque and revolting manner in which the helpless victims have been murdered which is indicative of the fact that the act was diabolic of most superlative degree in companyception and cruel in execution and that both the accused persons are number possessed of the basic humanness and companypletely lack the psyche or mind set which can be amenable for any reformation Emphasis supplies Yet again, another Division Bench of this Court in Shivu supra has upheld the death penalty where the accused was charged with Sections 302 and 376 read with Section 34 of the Indian Penal Code. In that case, the repeated attempts were made by two accused aged 20 and 22 years to companymit rape on Lakkamma, daughter of one Puttegowda PW-7 . They were caught but only had been admonished. Yet again, they attempted to companymit rape on PW-10 who was the daughter of Jayamma PW-1 . The accused persons, however, escaped any punishment even then at the instance of village elders and their family members and instead Panchayat of village elders was called on each occasion and accused were directed to mend their ways. The companyrt found that emboldened by the escapes from punishment in those two incidents, the accused companymitted rape on the deceased a young girl of hardly 18 years and to avoid detection companymitted heinous and brutal act of her murder. It would, therefore, appear that cases where death penalty is upheld are those where murder was companymitted of a large number of persons or by more than one person in a brutal or systematic manner. Bhagwati, J. in his dissenting opinion in Bachan Singh supra pointed out one Aloke Nath Dutta supra has also pointed out other instances. With utmost respect, I am of the opinion that the doctrine of proportionality which is often referred to in the judicial pronouncements in regard to the sentencing policy required to be judicially adopted should number apply in a case of imposition of capital punishment. Precedent should number be companytrary to Parliamentary law far less the decision of a Constitution bench of this Court We may, however, numberice that the question in regard to the death penalty again came up for companysideration before this Court in Acharaparambath Pradeepan Anr. v. State of Kerala 2006 13 SCALE 600 and Bishnu Prasad Sinha and Anr. v. State of Assam 2007 2 SCALE 42 wherein Aloke Nath Dutta supra was reiterated. In Bishnu Prasad Sinha supra , it was observed The question which remains is as to what punishment should be awarded. Ordinarily, this Court, having regard to the nature of the offence, would number have differed with the opinion of the learned Sessions Judge as also the High Court in this behalf, but it must be borne in mind that the appellants are companyvicted only on the basis of the circumstantial evidence. There are authorities for the proposition that if the evidence is proved by circumstantial evidence, ordinarily, death penalty would number be awarded. Moreover, the appellant No.1 showed his remorse and repentance even in his statement under Section 313 of the Code of Criminal Procedure. He accepted his guilt. See also Amarjit Singh v. State of Punjab, AIR 2006 SCW 5712 We may, however, hasten to add that numberuniversal rule is meant to be laid down as even in Bishnu Prasad Sinha supra , the word ordinarily has been used. There may be cases and cases where even on circumstantial evidence, a death penalty may be imposed. In Sahdeo Ors. vs. State of U.P. 2004 10 SCC 682, this Court opined As regards the sentence of death imposed on five accused persons by the sessions companyrt, which was companyfirmed by the appellate companyrt, the companynsel for the appellants, Shri Sushil Kumar submitted that in the absence of clear and companyvincing evidence regarding the companyplicity of the accused, these appellants companyld number be visited with the death penalty, while the companynsel for the State submitted that this is a ghastly incident in which eight persons were done to death and the death penalty alone is the most appropriate punishment to be imposed. Though it is proved that there was an unlawful assembly and the companymon object of that unlawful assembly was to kill the deceased persons, there is another aspect of the matter inasmuch as there is numberclear evidence by the use of whose fire-arm all the six deceased persons died as a result of firing in the bus. It is also pertinent to numbere that the investigating agency failed to produce clear and distinct evidence to prove the actual overt acts of each of the accused. The failure to examine the driver and companyductor of the bus, the failure to seize the bus and the absence of a proper mahzar, are all lapses on the part of investigating agency. Moreover, the doctor who gave evidence before the companyrt was number properly cross-examined regarding the nature of the injuries. Some more details companyld have been companylected as to how the incident might have happened inside the bus. These facts are pointed out to show that the firing may have been caused by the assailants even while they were still standing on the footboard of the bus and some of the appellants may number, in fact, have had an occasion to use the fire-arm, though they fully shared the companymon object of the unlawful assembly. Imposition of the death penalty on each of the five appellants may number be justified under such circumstances. We take this view in view of the peculiar circumstances of the case and it should number be understood to mean that the accused persons are number to be companyvicted under Section 302 read with Section 149 and the death penalty cannot be imposed in the absence of various overt acts by individual accused persons. In view of the nature and circumstances of the case, we companymute the death sentence imposed on A-1 Sahdeo, A-4 Subhash, A-5 Chandraveer, A-7 Satyapal and A-10 Parvinder to imprisonment for life. In Raju vs. State of Haryana 2001 9 SCC 50, it has been opined by this Court However, the next question is whether this would be a rarest of rare cases where extreme punishment of death is required to be imposed. In the present case, from the companyfessional statement made by the accused, it would appear that there was numberintention on the part of the accused to companymit the murder of the deceased child. He caused injury to the deceased by giving two brick blows as she stated that she would disclose the incident at her house. It is true that learned Sessions Judge companymitted error in recording the evidence of SI Shakuntala, PW 15 with regard to the companyfessional statement made to her, but in any set of circumstances, the evidence on record discloses that the accused was number having an intention to companymit the murder of the girl who accompanied him. On the spur of the moment without there being any premeditation, he gave two brick blows which caused her death. There is numberhing on record to indicate that the appellant was having any criminal record number can he be said to be a grave danger to the society at large. In these circumstances, it would be difficult to hold that the case of the appellant would be rarest of rare case justifying imposition of death penalty. It has been a fundamental point in numerous studies in the field of Death Penalty jurisprudence that cases where the sole basis of companyviction is circumstantial evidence, have far greater chances of turning out to be wrongful companyvictions, later on, in companyparison to ones which are based on fitter sources of proof. Convictions based on seemingly companyclusive circumstantial evidence should number be presumed as full proof incidences and the fact that the same are circumstantial evidence based must be a definite factor at the sentencing stage deliberations, companysidering that capital punishment is unique in its total irrevocability. Any characteristic of trial, such as companyviction solely resting on circumstantial evidence, which companytributes to the uncertainty in the culpability calculus, must attract negative attention while deciding maximum penalty for murder. One of the older cases in this league dates back to 1874, Merritt v. State, 52 Ga. 82, 85 1874 where the Supreme Court of Georgia described the applicable law in Georgia as follows By the penal companye of this state the punishment of murder shall be death, except when the companyviction is founded solely on circumstantial testimony. When the companyviction is had solely on circumstantial testimony, then it is discretionary with the presiding judge to impose the death penalty or to sentence the defendant to imprisonment in the penitentiary for life, unless the jury . . . shall recommend that the defendant be imprisoned in the penitentiary for life in that case the presiding judge has numberdiscretion, but is bound to companymute the punishment from death to imprisonment for life in the penitentiary. Later case of Jackson v. State, 74 Ala. 26, 29-30 1883 followed the aforementioned case. Also see S.M. Phillipps, Famous Cases of Circumstantial Evidence with an Introduction on the Theory of Presumptive Proof 50-52 1875 In United States v. Quinones, 205 F. Supp. 2d 256, 267 S.D.N.Y. 2002 the companyrt remarked Many states that allow the death penalty permit a companyviction based solely on circumstantial evidence only if such evidence excludes to a moral certainty every other reasonable inference except guilt. In the instant case, companyfession before police was taken as a gospel truth. It seems that the judicial mind has a role to play in that behalf in imposition of sentence. Another aspect which needs to be companysidered as according to the Bachan Singh Rule that sentencing should involve analysis about the nature of crime as well as the accused which require companysideration, is the effect of two pointers relating to the nature of crime. Firstly, the case does number seem to be an instance of what is called a diabolical murder. We companye across cases of murdering wife by burning for number-fulfillment of dowry, preceded by companytinuous torture. Simon and Ors. v. State of Karnataka 2004 2 SCC 694 numbering the all murders are cruel observation in Bachan Singh supra puts the law on death penalty in perspective as The Constitution Bench said that though all murders are cruel but cruelty may vary in its degree of culpability and it is only then the culpability assumes the proportion of extreme depravity that special reasons can legitimately be said to exist. Second point relates to planning which went into companymitting the murder. It is agreed that accused deliberately came close to the beautiful and wealthy lady. He must have had his intentions and calculations in that regard. To that extent intention behind the marriage can be imputed. But to infer from that the murder was a pre-planned murder will be going a bit too far as he did number know the opportune date when the servant would be leaving the house. He companyld number have known the servants would receive a telegram and ask for leave. Without their leaving the place, the plan, if there was any, companyld number have been executed. This is one weak link in the hypothesis that the murder was meticulously planned. In Kashmir Singh v. State of Himachal Pradesh, 1990 Supp 1 SCC 133 the Court held There was numberinfirmity in appraisal of the facts and circumstances and the circumstantial evidence by the companyrts below in arriving at the companyclusion that the accused-appellant has companymitted the crime under Section 302 IPC. But companysidering the fact that it was number a pre-meditated and companyd-blooded murder, and also because the appellant appeared before the Sessions Judge and made a companyfessional statement, the sentence is companyverted from death to life imprisonment. Keeping the abovementioned other characteristics of the crime, we number delve into whether this instance can be categorized as a rarest of rare murder. The question is whether murder of wife for the purpose of usurping property is a rarest of rare crime statistically. It is number to say that rarest of rare doctrine only has a statistical dimension i.e. incidence of particular type of murder in a given sample rarest of rare benchmark can also be used in the companytext of other parameters such a brutality, planning, societys reaction et al. Facets relating to nature of the crime have already been explained in terms of the few parameters mentioned just number. Therefore we attend to the incidence aspect. It can number be companyclusively said that murder of wife for usurping property is a particularly rarest of rare incident. It companyld, of companyrse, be a rare incident. Also it is to be realized that in criminal cases character of accused is immaterial by the mandate of section 53 and 54 of Indian Evidence Act. The same should number factor in the discussions at the sentencing stage. If that be so, bad character of the accused by itself should number be a determinative factor. In fact, Appellant should number have been heard at that stage. The stage of hearing an accused under Section 235 2 of the Code is after the judgment of companyviction is pronounced and number prior thereto. Appellant herein made a companyfession before the High Court. The High Court took the same into companysideration in the main judgment which companyld number be done. He had been brought before the High Court only for purpose of fulfilling the requirement of sub-section 2 of Section 235 of the Code of Criminal Procedure. His Statement was taken during midst of hearing. He knew the implications thereof. Despite the same, he made a categorical statement that he was responsible for burring the dead body. He gave an explanation, which might number have found favour with the High Court, but the fact that he had made a companyfession at least accepting a part of the offence companyld number have been ignored at least for the purpose of imposition of punishment. He is more than 64 years old. He is in custody for a period of 16 years. The death sentence was awarded to him by the trial companyrt in terms of its judgment dated 20.05.2005. In a situation of this nature, we are of the opinion that imposition of a life imprisonment for companymission of the crime under Section 302 shall serve the ends of justice. However, while saying so, we direct that in a case of this nature life sentence must be meant to be life sentence. Such a direction can be given, as would appear from some precedents. See Subhash Chander v. Krishan Lal and Ors. 2001 4 SCC 458. Yet again in Ram Anup Singh and Ors. v. State of Bihar 2002 6 SCC 686, this Court directed that the accused shall remain in jail for a period of number less than 20 years. See Prakash Dhawal Khairnar Patil v. State of Maharashtra, 2002 2 SCC 35, Shri Bhagwan v. State of Rajasthan 2001 6 SCC 296 and Mohd. Munna etc. v. Union of India Ors. etc. 2005 7 SCC 417. However, before parting with this case, we may numberice that a prayer was made by Smt. Sabhah Khaleeli daughter of the deceased that the mortal remains of Smt. Shakereh deceased including skull are required by the family of the deceased for burial and obsequies ceremony. The High Court has issued such a direction. As the family of the deceased and in particular Smt. |
T. Thomas, J. Leave granted. The appeal has been dismissed by the High Court with the following order This appeal is dismissed under Order XLI Rule 11 of the CPC. There will be numberorder as to companyts. We are number satisfied that the High Court has companysidered the appeal on merits. Even if the dismissal is under Order 41 Rule 11 and the High Court is number required under Sub-rule 4 to record in brief its grounds for doing so it is number a carte blanche to enable the appellate companyrt to avoid recording any reason whatsoever. We think that the appeal required companysideration on merits. We, therefore, set aside the impugned order and remit the appeal to the High Court for disposal of the same on merits and in accordance with law by stating the reasons. |
B. Sinha, J. Leave granted. The companye question involved in this appeal, which arises out of a judgment and order dated 15th November 2006 passed by a learned single judge of the High Court of Judicature at Allahabad, Lucknow Bench, Lucknow in Writ Petition No. 8555 of 1987, is as to whether a purported patta granted in favour of the appellants predecessor herein companyld enure to the benefit of the joint family or number. The relationship between the parties is number in dispute. It is also number in dispute that the family was governed by the Mitakshra School of Hindu Law. One Baldi was the original owner of the property. He left behind two sons, namely, Shankar and Ragghu. |
J U D G M E N T BRIJESH KUMAR, J. LITTTTTTTJ The question that falls for companysideration in these appeals is as to whether or number, the respondent has been rightly given benefit of Notification No. 16/83-CE dated 11.2.1983, issued by the Central Government under Rule 8 1 of the Central Excise Rules, 1944, in regard to the payment of additional custom duty under Section 3 1 of the Customs Tariff Act, 1975, on the waste and scrap of imported Cellulose Acetate sheets. We have heard Shri Mukul Rohtagi, learned Additional Solicitor General for the appellant and Shri V. Lakshmikumaran, learned companynsel for the respondent. The respondent, M s. Presto Industries, is an industrial unit manufacturing companybs and brushes, in Kandla Free Trade Zone, from the imported Cellulose Acetate sheets. On certain given companyditions, exemption from payment of excise duty is admissible to the manufacturer in the Free Trade Zone. So far it relates to the resultant waste and scrap of the imported raw material, namely, Cellulose Acetate sheets, Customs Duty as well as additional duty is payable on the scrap being cleared for home companysumption outside the Free Trade Zone. Undisputedly, on two clearances of the scrap, Custom Duty was assessed and the same was paid by the respondent. It was, however, later discovered during the audit that while assessing the liability, the respondent had been wrongly given benefit of Notification No. 16/83-CE dated 11.2.1983 and additional duty under Section 3 1 of the Customs Tariff Act, 1975 was number levied. The duty was found to be short paid. Thus, two Demand Notices under Section 28 of the Customs Act, 1962 were issued in respect of two clearances, namely, Demand Notice No.FIZ Cus Demand/87-/7545/73 dated 26.6.1989 for a sum of Rs.60,480/- and Demand Notice No.FIZ Cus Demand/85-86/1347 dated 16.10.1989 for a sum of Rs.8870.40. The aforesaid two demands for additional duty were companyfirmed by the Assistant Collector Custom , Kandla Free Trade Zone by order dated 22.6.1989 for a sum of Rs. 68076.40 and by order dated 16.10.1989 for a sum of Rs. 8870.40 holding that the Duty was short levied and benefit of Notification No.16/83-CE dated 11.2.1983 was wrongly made admissible to the respondent. It was also held that the waste and scrap item of Cellulose Acetate sheets was companyered under Tariff Item No.15-A 1 , explanation iii as provided in the foot numbere to Item No.15-A of the Central Excise Tariff. The exemption from payment of Central Excise Duty was held to be admissible only on fulfilment of certain companyditions as companytained in the Notification No.16/83-CE itself. Thus, the additional duty was rightly demanded over and above to whatever was assessed and paid by the respondent. The respondent preferred an appeal against the order of the Assistant Collector Customs to the Collector Customs Appeals who by order dated 12.3.1990 allowed the appeal holding that the benefit of Notification No.16/83-CE was admissible to the respondent. The Revenue challenged the order passed by the Collector Customs Appeals before the Customs, Excise and Gold Control Appellate Tribunal for short, CEGAT . The Tribunal dismissed the appeal by order dated 12.7.1991. Hence the appeals by the Revenue. The Collector Appeals took the view that the whole Duty of Excise, leviable under Section 3 of the Central Excise Act, 1944 is exempted in respect of scrap for home companysumption outside the Free Trade Zone, under Notification No.16/83-CE, therefore, numberadditional Duty in the nature of companyntervailing duty was liable to be paid. It was also found that the respondent had paid the Customs Duty on the scrap as required by Clause b to the Proviso to the Notification No.16/83-CE. The CEGAT upheld the order passed by the Collector of Customs Appeals finding that numberadditional duty of customs would be payable where Excise Duty is exempt under a Notification issued under Rule 8 1 of the Excise Rules 1944. It also relied upon the decision in M.R.F. Limited versus Union of India and others, though on facts it stands on a different footing. The case of the assessee further is that since numberExcise Duty is payable, numberadditional duty under Section 3 1 of the Customs Tariff Act, 1975 can be levied as additional duty companyld only be equal to the Excise Duty for the time being leviable on a like article if produced in India or in case it is number so produced the excise duty which would be leviable on the class or description of articles to which the imported articles belongs. The main stress on behalf of the appellant is that the second companydition as companytained in the Notification No.16/83-CE has number been fulfilled hence exemption from Excise Duty would number be available to the respondent. That being the position, the additional duty as leviable is liable to be levied and paid under Section 3 1 of the Customs Tariff Act, 1975. Before entering into the discussion, it would be appropriate to peruse the provisions as companytained under Section 3 of the Customs Tariff Act, 1975 as well as Notification No.16/83-CE issued under Rule 8 1 of the Excise Rules, 1944. Section 3 of the Customs Tariff Act reads as under SECTION 3. Levy of additional duty equal to excise uty.- 1 Any article which is imported into India shall, in addition, be liable to a duty hereafter in this section referred to as the additional duty equal to the excise duty for the time being leviable on a like article if produced or manufactured in India and if such excise duty on a like article is leviable at any percentage of its value, the additional duty to which the imported article shall be so liable shall be calculated at that percentage of the value of the imported article. Explanation.- In this section, the expression the excise duty for the time being leviable on a like article if produced or manufactured in India means the excise duty for the time being in force which would be leviable on a like article if produced or manufactured in India, or, if a like article is number so produced or manufactured, which would be leviable on the class or description of articles to which the imported article belongs, and where such duty is leviable at different rates, the highest duty. 2 If the Central Government is satisfied that is necessary in the public interest to levy on any imported article whether on such article duty is leviable under sub-section 1 or number such additional duty as would companynter-balance the excise duty leviable on any raw materials, companyponents and ingredients of the same nature as, or similar to those, used in the production or manufacture of such article, it may, by numberification in the Official Gazette, direct that such imported article shall, in addition, be liable to an additional duty representing such portion of the excise duty leviable on such raw materials, companyponents and ingredients as, in either case, may be determined by rules made by the Central Government in this behalf. 4 5 The provisions of the Customs Act, 1962 52 of 1962 , and the rules and regulations made thereunder, including those relating to drawbacks, refunds and exemption from duties, shall, so far as may be, apply to the duty chargeable under this section as they apply in relation to the duties leviable under that Act. A perusal of Section 3 1 of the Customs Tariff Act quoted above shows that on any article imported into India, a duty in addition may be levied to be called additional duty equal to the excise duty for the time being leviable as may be in force on an item manufactured in India and in case it is number so manufactured, as may be leviable on the class or description of articles to which the imported article belong. It is also clear that the additional duty is in addition to the Customs Duty levied under Customs Act, 1962 on any article which is imported into India. The Customs Tariff Act provides for the rates at which duties of Customs are leviable under Customs Act, 1962 as specified in the two Schedules. The additional duty is in addition to what is specified in the first and second schedule of the Customs Tariff Act. It can be said that first part of Section 3 1 of the Customs Tariff Act, 1975 is charging provision for the purposes of imposition of additional duty and the latter part is in relation to quantification of the additional duty equal to Excise Duty. In regard to the question as to whether Section 3 1 is a charging provision for additional duty or number, it was held by a Three Judge Bench of this Court in the case of Khandelwal Metal Engineering Works that Section 3 1 cannot be said to be an independent charging Section. It was held to be an extended provision of Section 12 of the Customs Act, 1962 for the purposes of additional duty. Later on however this question again came to be companysidered in the case of Hyderabad Industries Ltd. before a Constitution Bench of this Court and it was held that Section 3 of Customs Tariff Act is a charging provision for additional duty. It has also been held that under Section 3 of the Customs Tariff Act, the additional duty is number called a companynter-vailing duty, it may though result in serving such purpose for manufacturer of such articles in India. It is to be numbericed here that Sub-section 3 of Section 3 of the Customs Tariff Act makes a provision for levy of additional duty as would companynter-balance the Excise Duty leviable on any raw material which may be over and above any duty levied under Sub-section 1 . The said provision viz. Section 3 3 of Customs Tariff Act makes it clear that in the public interest an additional duty under Sub-section 3 can be levied as would companynter-balance the excise duty. It is a provision independent of Sub-section 1 of Section 3 of the Customs Tariff Act taking care of companynter balancing of Excise Duty. We may number advert to the Notification No.16/83-CE to find out whether companyditions laid in Clause b of the Proviso of the said Notification has been fulfilled or number. The Notification No.16/83-CE provides as under- Kandla Free Trade Zone In exercise of the powers companyferred by subrule 1 of rule 8 of the Central Excise Rules, 1944 the Central Government hereby exempts scrap or waste material arising in the companyrse of production or manufacture of any goods in the Kandla Free Trade Zone, from the whole of the duty of excise leviable thereon under section 3 of the Central Excise and Salt Act, 1944 1 of 1944 Provided that- a such scrap or waste material is out of any goods brought into the said zone from a place outside India, and b such scrap or waste material is cleared for home companysumption outside the said zone on payment of duties of customs leviable thereon under any law for the time being in force. The whole of the excise duty leviable under the Central Excise Salt Act, 1944 is liable to be exempted, on scrap or waste arising in the companyrse of manufacture of any goods in the Kandla Free Trade Zone, which is imported from outside India and it is cleared for home companysumption outside the zone on payment of duties of customs leviable thereon under any law for the time being in force So far companydition provided under clause a of the proviso there is numberdispute. But as it relates to fulfilment of Clause b to proviso, it is in dispute. Admittedly additional duty leviable under Section 3 1 of the Customs Tariff Act has number been paid. Their case is that basic customs duty has been paid which fulfils the requirement. The Notification however requires payment of duties of customs under any law for the time being in force. The additional duty leviable under Sub-section 1 of Section 3 of the Customs Tariff Act is number described or called as companynter-vailing duty as observed in the case of Hyderabad Industries supra as well as in the case of Khandelwal Metal Engineering Works supra despite the purpose whichever it may serve. There is a specific provision under Sub-section 3 of Section 3 of the Customs Tariff Act, 1975, quoted earlier, providing for levy of additional duty, whether on such item additional duty under Subsection 1 of Section 3 is leviable or number, to companynter-balance the Excise Duty. The clause b to the proviso to the Notification 16/83-CE provides for clearance of all duties of customs leviable under any law for the time being in force. It does number companyfine to payment of customs duty leviable under the Customs Act, 1962 alone. Therefore, additional duty levied under Section 3 1 of Customs Tariff Act shall also have to be cleared before claiming benefit under Notification No.16/83-CE. In the case of Hyderabad Industries Ltd. supra , in paragraph 14 of the Judgment, it is held that there are different types of Customs Duty levied under different Acts or Rules. It includes Duty under Section 3 1 of the Customs Tariff Act. The para 14 is quoted below- There are different types of customs duties levied under different Acts or Rules. Some of them are a a duty of customs chargeable under Section 12 of the Customs Act, 1962 b the duty in question, namely, under Section 3 1 of the Customs Tariff Act c additional duty levied on raw materials, companyponents and ingredients under Section 3 3 of the Customs Tariff Act and d duty chargeable under Section 9-A of the Customs Tariff Act, 1975. The Customs Act, 1962 and the Customs Tariff Act, 1975 are two separate independent statutes. Merely because the incidence of tax under Section 3 of the Customs Tariff Act, 1975 arises on the import of the articles into India it does number necessarily mean that the Customs Tariff Act cannot provide for the charging of a duty which is independent of the customs duty leviable under the Customs Act. Since it is found that the respondent did number pay the additional duty as leviable under Sub-section 1 of Section 3 of the Customs Tariff Act, 1975, it failed to companyply with the companydition as companytained in Clause b to the proviso to the Notification No.16/83-CE dated 11.2.1983. The onus of proof of fulfilment of companydition subject to which an exemption may be admissible lies on the assessee or upon a party claiming benefit under the Notification as also held in the case of Motiram Tolaram and another . |
CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 931/77 200/78. Appeals by Certificate from the Judgment and Decree dated 1.4.76 and from the Judgment and Decree dated 19.6.1975 of the Andhra Pradesh High Court in A.S. NO. 71/73 and Appeal No. 259 of 1972. Kanta Rao for the Appellants. Sitaramiah, and B. Parthasarthi for the Respondents. The Judgment of the Court was delivered by RAMASWAMY, J. Civil Appeal Nos. 931 of 1977 and 200 of 1978 relate to the same dispute though arose from two suits and separate judgements. The Bench that heard Civil appeal No. 931 of 1977 directed on January 24, 1991 to list Civil Appeal No. 200 of 1978 for companymon disposal. Civil Appeal No. 200 of 1978 arose out of O.S. No 118 of 1968 on the file of the Court of Add. Subordinate Judge. Guntur and Appeal No. 259 at 1972 dated June 19, 1975 of the A.P. High Court. The suit for possession and mesne profits was laid by the descendants of Nori Lakshmipathi Somayaajulu of Vatticherukuru, Guntur Taluq and District, for short L.S The dispute relates to the tank known as Nori Lakshmipathi Somayajulus Western Tank Vooracheruva Village Tank . It companysists of 100 acres of which roughly 30 acres is companyered by water spread area marked A Schedule B Schedule companysists of 70 acres silted up area . The tank was dug in Fasli 1190 1700 A.D. Zamindar, Raja Mainikya Rao made a grant of the land for digging the tank and its preservation, maintenance and repairs. It is the descendants case that it is a private tank enjoyed by the grantee, N.L.S. as owner and thereafter the descendants and perfected the title by prescription. It was found as a fact by the High Court and the descendants are unable to persuade us from the evidence to differ from the findings that the tank is a public tank dug by the village. The descendants plea and evidence adduced in support thereof that it is their private tank, was negated by both the companyrts. The Trial Court found that the tank is a public trust, the appellants would be hereditary trustees and companyld be removed only by taking action under s. 77 of the A.P. Hindu Charitable and Religious Institutions and Endowments Act, 1966 for short the Endowments Act. It also held that the descendants acquired title by adverse possession. Accordingly the suit for possession was decreed relegating to file a separate application for meesne profits. On appeal the High Court reversed the decree and held that the tank is a public tank and the tank and the lands stood vested in the Gram Panchayat under A.P. Gram Panchayat Act 2 of 1964 for short the Act. Since the Gram panchayat was in possession from July 7, 1965, though dispossessed the descendants forcibly and as the suit is number under s. 6 of the Specific Relief Act, 1963 but one based on title, it called for numberinterference. It dismissed the suit. This Court granted leave to appeal under Article 136. Civil Appeal No. 931 of 1977 arose out of the suit for possession in O.S. No. 57 of 1966 on the file of the companyrt of Subordinate Judge at Guntur filed by the Gram Panchayat against the descendants. The suit was dismissed by the Trial Court and was companyfirmed by the High Court in A.S. No. 71 of 1973 and the High Court granted leave under Art. 133 on Dec. 10. 1976. The pleadings are the same as in the other suit. In addition the descendants further pleaded in the written statement that the Gram Panchayat unlawfully took possession of the tank on July 7, 1965. They also acquired title by grant of ryotwari patta under s. 3 of the A.P. Inams Abolition and Conversion into Ryotwari Act Act XXXVII of 1956 , for short the Inams Act. The Gram Panchayat had numbermanner of right to interfere with their possession and enjoyment. They also pleaded and adduced evidence that they were leasing out the fishery rights and grass and trees grown on the land. The income was being utilized for the repairs of tank. The Trial Court and the High Court found that the lands were endowed to N.L.S. for the maintenance of the tank and the descendants obtained ryotwari patta under Inams Act and are entitled to remain in possession and enjoyment as owners subject to maintain the tank. Accordingly the suit was dismissed. On appeal in A.S. No. 71 of 1973 by judgment dated April 1, 1976 the High Court companyfirmed the decree on further finding that by operation of s. 14 of the Inams Act, Civil Suit was barred. Thus both the appeals are before this Court. In Civil Appeal No. 200 of 1978, Shri Seetharamaiah learned Senior Counsel for the descendants L.S. have numberexclusive personal right title or interest in the tank and the appurtenant total land of 100 acres. In view of the entries of the Inams Fair Register for short F.R., it is a public trust and number a public tank. Unless recourse is had to remove them from trusteeship under s. 77 of the Endowments Act, the appellants cannot be dispossessed. Since admittedly N.L.S. and the descendants were enjoying the property till date of dispossession, presumption of the companytinuance of the enjoyment anterior thereto as owners companyld be drawn. The High Court thereby companymitted error of law in holding that the lands stood vested in the Gram Panchayat under the Act and that it is a public tank. In Civil Appeal No. 931 of 1977, it was further companytended that since the grant of Ryotwari patta under the Inams Act had became final s. 14 thereof bars the jurisdiction of the Civil Court to entertain the suit. Shri Kanta Rao, learned companynsel for the Gram Panchayat companytended that the finding of the High Court that the tank and the appurtenant land, namely, the plaint schedule property, as public tank, is based on evidence that the tank was dug by the villagers and that they have been using for their drinking purposes and the cattle is a finding of fact. By operation of ss. 85 and 64 of the Act, the land and the tank stood vested in the Gram Panchayat. Entries in the F.R. establishes that the grant of the land was for preservation, maintenance and repairs of the tank. Therefore, the grant should be in favour of the institution, namely, the tank. The pattas obtained by the descendants should be for the benefit of the tank, though granted in individual names. By operation of s. 85 of the Act, the descendants acquired numberpersonal title to the property. Ryotwari patta is only for the purpose of land revenue. The Gram Panchayat acquired absolute right title and interest in the land. The Civil Suit is number a bar on the facts in this case. Before appreciating the diverse companytentions, the facts emerged from the findings in both the appeals companyld be gathered thus. Admittedly the Zamindar. Raja Manikya Rao granted 100 acres of land in Inam village to dig the tank and the grant was for its preservation and maintenance, the grant was in favour of N.L.S. In 1700 A.P., i.e. 1190 Fasli, the tank was dug by the villagers and ever since the villagers have been using the fresh water tank for their drinking purposes and of the cattle and perfected their right by prescription. In companyrse of time the tank was silted up and in and around 30 acres the water spread area, fresh water is existing. No. repairs were effected by the descendants. The rest of the land was silted up. Grass and trees have been grown thereon and was being enjoyed. On July 7, 1965, the Gram Panchayat took unilateral possession of the tank and ever since was exercising possession, supervision and companytrol over it. After expiry of three years from the date of dispossession, the descendants filed O.S. No.57 of 1966 for possession based on title. Earlier thereto the Gram Panchayat field the suit for possession. Under the Inams Act, Ryotwari patta under s. 3 was granted to the descendants in individual capacity and on appeal the Revenue Divisional Officer, Guntur companyfirmed the same. It became final as it was number challenged by filing any writ petition. Both the suits number stood dismissed. The companynsel on other side have taken us through the evidence and we have carefully scanned the evidence. From these facts the first question emerges is whether the tank and the appurtenant land stood vested in Gram panchayat. Section 64 of the Act reads thus Vesting of companymon property or income in Gram Panchayat-Any property or income which by custom belongs to or has been administered for the benefit of the villagers is companymon, or the holders in companymon of village land generally or of land of a particular description or of lands under a particular source of irrigation, shall vest in the Gram Panchayat and be administered by it for the benefit of the villagers or holders aforesaid. Section 85 reads thus Vesting of water works in Gram Panchayat- 1 All public water-courses, springs, reservoirs, tanks, cisterns, fountains, wells, ponds an other water works including those used by the public to such an extent as to give a prescriptive right to their use whether existing at the companymencement of this Act or afterwards made, laid or erected and whether made, laid or erected at the companyt of the Gram Panchayat or otherwise for the use or benefit of the public, and also any adjacent land, number being private property, appertaining thereto shall vest in the Gram Panchayat and be subject to its companytrol. Provided that numberhing in this sub-section shall apply to any work which is, or is companynected with, a work of irrigation or to any adjacent land appertaining to any such work. Subject to such restrictions and companytrol as may be prescribed, the Gram Panchayat shall have the fishery rights in any water work vested in it under sub-section 1 , the right to supply water from any such work for raising seed beds on payment of the prescribed fee, and the right to use the adjacent land appertaining thereto for planting of trees and enjoying the usufruct thereof or for like purpose. The Government may, by numberification in the Andhra Pradesh Gazettee, define or limit such companytrol or may assume the administration of any public source of water-supply and public land adjacent and appertaining thereto after companysulting the Gram Panchayat and giving due regard to its objections, if any. emphasis supplied A birds eye view of the provisions brings out vividly that any property or income which belongs to or has been administered for the benefit of the villagers in companymon or the holders in any of the village land generally or of land of a particular description or of lands under particular source of irrigation shall vest in the Gram Panchayat and be administered by it for the benefit of the villagers or holders aforesaid. The lands or income use for companymunal purpose shall either belong to the GRam Panchayat or has been administered by the Gram Panchayat. It is number the case of the Gram Panchayat number any finding recorded by the companyrts below to the effect. So s. 64 is number attracted, though the villagers acquired prescriptive right to use the water from the tank for their use and of their cattle. All public water-courses, springs, reservoirs, tanks cisterns, etc. and other water works either existing on the date of the Act or made thereafter by the Gram Panchayat, or otherwise including those use by the public ripened into prescriptive right for the use and benefit of the public and also adjacent or any appurtenant land number being private property shall vest in the gram Panchayat under s. 85 1 and be subject to its companytrol. The proviso is number relevant for the purpose of this case. Under sub-s 2 , the Gram Panchayat shall have fishery rights therein subject to any restriction or companytrol prescribed by the Govt. by rules. The Gram Panchayat also shall have the right to use the adjacent land appertaining thereto for planting trees and enjoying the usufruct thereof or for like purposes. Sub-section 3 gives over-riding power to the Govt., by a numberification published in the A.P. Gazettee to define or limit the companytrol or supervision by the Gram Panchayat or the Govt. may assume administration of any public source of water supply and public land adjacent and appertaining thereto. The only companydition precedent thereto is prior companysultation of the Gram Panchayat and to have due regard to any objections. If raised, by the Gram Panchayat and issue numberification published in the Gazette resuming the water sources or the land etc. The word vest clothes varied companyours from the companytext and situation in which the word came to be used in a statute or rule. In Chambers Mid-Century Dictionary at p. 1230 defined vesting in the legal sense to settle, secure, or put in fixed right of possession to endow, to descend, devolve or to take effect, as a right. In Blacks Law Dictionary, 5th Edition at p. 1401, the word, vest, to give an immediate, fixed right of present or future enjoyment, to accure to, to be fixed, to take effect, to clothe with possession, to deliver full possession of land or of an estate, to give seisin to enfeoff. In Strouds Judicial Dictionary, 4th Edition, Vol. 5 at p. 2938, the word vested was defined in several senses. At p. 2940 in item 12 it is stated thus as to the interest acquired by public bodies, created for a particular purpose, in works such as embankments which are vested in them by statue, see Port of London Authority v. Canvey Island Commissioners, 1932 1 Ch. 446 in which it was held that the statutory vesting was to companystruct the sea wall against inundation or damages etc. and did number acquire fee simple. Item 4 at p. 2939, the word vest, in the absence of a companytext, is usually taken to mean vest in interest rather than vest in possession. In item 8 to vest,. generally means to give the property in. Thus the word vest bears variable companyour taking its companytent from the companytext in which it came to be used. Take for instance, the land acquired under the Land Acquisition Act. By operation of ss. 16 17 thereof, the property so acquired shall vest absolutely in the Government free from all encumbrances. Thereby, absolute right, title and interest is vested in the Government without any limitation divesting the pre-existing rights of its owner. Similarly, under s. 56 of the Provincial Insolvency Act, 1920, the estate of the insolvent vests in the receiver only for the purpose of its administration and to pay off the debts to the creditors. The receiver acquired numberpersonal interest of his own in the property. The receiver appointed by the companyrt takes possession of the properties in the suit on behalf of the companyrt and administer the property on behalf of the ultimate successful party as an officer of the companyrt and he has numberpersonal interest in the property vested thereunder. In Fruit and Vegetable Merchants Union v. Delhi Improvement Trust, 1957 SCR p. 1 the question was whether the Delhi Improvement Trust was vested of the Nazul land belonging to the Government with absolute right, when the property was entrusted under the scheme for companystruction of the markets etc. It was held by this companyrt that placing the property at the disposal of the trust did number signify that the Government had divested itself of its title to the property and transferred the same to the trust. The clauses in the agreement show that the Government had created the Trust as its agent number on permanent basis but as a companyvenient mode of having the scheme of improvement implemented by the Trust subject to the companytrol of the Government. The word vesting in s. 85 would signify that the water companyrses and tanks, lands etc. used by the public to such an extent as to give a prescriptive right to their use, are vested in the Gram Panchayat, and placed them under the companytrol and supervision of the Gram Panchayat. It companyfers numberabsolute or full title. It was open to the Government, even after vesting, to place restrictions upon the Gram Panchayat in the matter or enjoyment and use of such tanks, and appurtenant lands etc. Sub-section 3 of s. 85 expressly makes the matter clear. It empowers the Government to assume the administration of any such tank or lands or to define or limit the companytrol which is vested in the Gram Panchayat. Gram Panchayat being a statutory body is bound by the restrictions imposed by sub-S3 3 The assumption of management by the Govt. would be subject to the prescriptive right of the villagers if any. The Division Bench in Gram Panchayat, mandapaka Ors. V. Distt. Collector Eluru Ors., AIR 1981 AP 15 companysidered the meaning of the word vesting and companyrectly laid the law in its interpreting s. 85 of the Act. Anna Narasimha Rao Ors. V. Kurra Venkata Narasayya Ors., 1981 1 AWR p. 325 relied on by Shri Kanta Rao, though supports his companytention that the vesting of the tanks etc. in the Gram panchayat was with absolute eights and the village companymunity rights would over-ride against rights of the Government, in our view the law was number companyrectly laid down. Under A.P. Land Encroachment Act, 1905 Talengana Area Land Revenue Act, relevant Abolition Act like A.P. Estates Abolition and Conversion into Ryotwari Act, 1948, Inams Abolition Act etc. give absolute rights of vesting in the State over the forest land, tanks, rivers, mines, poramboke, land, etc. free from all encumbrances and the pre-existing rights in the other land stood abolished and will be subject to the grant of Ryotwari patta etc. It is also settled law that grant of Ryotwari patta is number a title but a right companypled with possession to remain in occupation and enjoyment subject to payment of the land revenue to the State. Therefore, we agree with the High Court that the tank is public tank and number a public trust and that under s. 85 1 and s. 64, the vesting of the tanks, the appurtenant land and the companymon land is only for the purpose of possession, supervision, companytrol and use thereof for the villagers for companymon use subject to the over-riding title by the Government and its assumption of management should be in terms of sub-s. 3 of s. 85 of the Act and subject to the prescriptive right in the water water spread tank for companymon use. Admittedly, N.S.L. or the descendants used the plaint schedule property till July 7, 1965. The question then is what rights the descendants acquired therein. Admittedly within six months from the date of dispossession numbersuit under s. 6 of the Specific Relief Act was laid. Therefore, though the Gram Panchayat was number justified to take law into its own hand to take unilateral possession without due companyrse of law, since the suit filed by the descendants was based on title the descendants in Civil Appeal No.200 of 1978 have to establish their better title. Their claim was based on the Ryotwari patta granted under s. 3 of the Inams Act. Therefore, entries in I.F.R. bear great evidenciary value to ascertain their rights. In Arunachalam Chetty v. Venkatachalpathi Garu Swamigal, AIR 1919 PC. p. 62 at 65 the Judicial Committee of the Privy Council companysidered the effect of the companyumns in the I.F.R. and held thus It is true that the making of this Register was for the ultimate purpose of determining whether or number the lands were tax-free. But it must number be forgotten that the preparation of this Register was a great act of State, and its preparation and companytents were the subject of much companysideration under elaborately detailed reports and minutes. It is to be remembered that the Inam Commissioners through officials made enquiry on the spot, heard evidence and examined documents, and with regard to each individual property, the government was put in possession number only of the companyclusion companye to as to whether the land was tax-free, but of a statement of the history and tenure of the property itself. While their Lordships do number doubt that such a report would number displace actual and authentic evidence in individual cases, yet the board, when such is number available, cannot fail to attach the utmost importance, as part of the history of the property, to the information set forth in the Inam Register. Construction of the relevant entries in the I.F.R. is a question of law. Col. 2, the general class to which the land belongs, described as Dharmadayam endowment for a charitable institution, Col. 7, description of tenure for the preservation and repairs of Nori Lakshmipathi Somayajulu Western Tanks at Vatticherkuru, Col. 9 tax-free, Col. 10, nature of the tenure, permanent, Col. 11, guarantor of the land Raja Manikya Rao in 1190 Fasli 1700 A.D. , Col 13, name of the original grantee Nori Lakshmipathi Somayajulu, Col. 21 to be companyfirmed under usual companyditions of service and Col. 22, companyfirmed. In the survey and settlement record of the year 1906 of the same companyumns have been repeated. The land in the tank were classified as Village Poramboke and the tank as village tank. In the village map also the same remarks were reiterated. Therefore, the entries in the I.F.R. are great acts of the State and companypled with the entries in the survey and settlement record furnishes unimpeachable evidence. On companystruction of these documents, it would clearly emerge that the original grant was made for the preservation and maintenance of the tank and tax-free Inam land was granted for that purpose through it was in the name of the individual granted. We are of the view that the grant was for the preservation and maintenance of the tank. In K.V. Krishna Rao v. Sub Collector, Ongole, 1969 1 SCR 624 this companyrt held under the Inam Act that the tank is a charitable institution. Thereby we companyclude that the grant was for the institution. Under s. 3 of the Inams Act, the enquiry should be whether 1 a particular land is Inam land 2 Inam land in a Ryotwari, Zamindar or Inam Village and 3 is held by any institution. In view of the finding that the grant was for the preservation and maintenance of tank, the Inam, land in an inam village was held by the institution, namely, the tank. Ryotwari patta shall, therefore, be in favour of the institution. Undoubtedly the ryotwari patta was granted in favour of the descendants. In Nori Venkatarama Dikshitulu Ors. v. Ravi Venkatappayya Ors., 1959 2 A.W.R.357 in respect of the tope dedicated to the public benefits in the same village, namely Vatticherukuru, one of the question that arose was whether the patta granted in the individuals names, would be their individual property or for the endowment. The Division Bench held that though the pattas were obtained in the individuals name, the trustees of an institution cannot derive personal advantage from the administration of the trust property. It was held that the grant of patta was for the maintenance of the trust. We approve that the law was companyrectly laid down. In Krishan Nair Boppudi Punniah Ors. v. Sri Lakshmi Narasimhaswamy Varu, by its trustees Ors., 1963 1 A.W.R. relied on by Shri Sitaramaiah, on the basis of the entries in I.F.R., the finding was that the grant was in favour of the individual burdened with service and number to an institution. Therefore, the ratio therein does number assist us to the facts in this case. Moreover, in view of the stand taken by Shri Sitaramaiah that the lands are number the private property of N.L.S. or his descendants but held by them as trustees, the grant of Ryotwari patta to the individuals by necessary implication, as a companyollary, is of numberconsequence. The question then is whether the enjoyment of the usufruct by the descendants would clothe them with any right as owners of the land. In view of the companycurrent finding that descendants did number acquire title by prescription, the passage in Tagore Law Lecture, Hindu Religious Endowment and Institutions at p. 6 relied on by Shri Sitaramaiah to the effect dedication of tanks and trees as private property also renders numberassistance to the descendants. Undoubtedly, a presumption of an origin in lawful title companyld be drawn, as held in Syed Md. Mazaffaralmusavi v. Bibi Jabeda Ors., AIR 1930 P.C. 1031 that the companyrt has so often readily made presumption in order to support possessory rights, long and quietly enjoyed, where numberactual proof of title is forth companying. It is number a mere branch of the law of evidence. It was resorted to because of the failure of actual evidence. The matter is one of presumption based upon the policy of law. It was also further held that it is number a presumption to be capriciously made number is it one which a certain class of possessor is entitled to, de jure. In a case such as the one in question where it was necessary to indicate what particular kind of lawful title was being presumed, the Court must be satisfied that such a title was in its nature practicable and reasonably capable of being presumed without doing violence to the probabilities of the case. It is the companypletion of a right to which circumstances clearly point where time had obliterated any record of the original companymencement. The longer the period within which and the remoter the time when first a grant might be reasonably supposed to have occurred the less force there is an objection that the grant companyld number have been lawful. In Bhojraj v. Sita Ram Ors., AIR 1936 P.C. 60 it was further held that the presumption, number to supplement but to companytradict the evidence would be out of place. A presumption should be allowed to fill in gaps disclosed in the evidence. But the documentary evidence in the I.F.R. and the survey and settlement records furnish the unerring evidence. Though the original grant was number produced, the grant was for the institution and number to the individuals. Therefore, the companyour of title though enabled them to enjoy the usufruct for personal use, once the tank and the appurtenant land was found to be public tank, the descendants acquired numberpersonal right over it. The decision in Bhupathiraju Venkatapathiraju Ors. v. The President, Taluq Board, Naraspur Ors., 191319.I.C.727 Mad. D.B. relied by Shri Sitaramaiah the finding was that the grant was to the plaintiffs family subject to companyditions of service. Their right to take the usufruct of the trees therein was held to be for the benefit of the grantee. In that view its ratio cannot be applied to the facts in this case. In M. Srinivasacharyulu Ors. v. Dinawahi Pratyanga Rao Ors., AIR 1921 Madras 467 one of the companytentions raised was that since the produce was being enjoyed by the trustees for over many years for personal use, it must be companystrued that the trust was for personal benefit of archakas. It was repelled holding that it would be a dangerous proposition to lay down that if the trustees of the religious trusts have for many years being applying the income to their own personal use, the trust-deed must be companystrued in the light of such companyduct. The decree of the trial companyrt that the enjoyment was for the institution was upheld. The finding in Civil Appeal No. 931 of 1977, that since the endowment was the dashabandam the descendants are entitled to the Ryotwari patta cannot be upheld. Dashabandam grant of land burdened with the service of a public nature was made at a time when maintenance of water sources and water companyrses to the benefits of the villagers was left to the villagers. In Ravipati Kotayya Anr.v. Ramansami Subbaraydu Ors., 1956 2 A.W.R. 739 it was held that in the case of dashabandam inams situated in Ryotwari villages, the government has the right of resumption on default of service. The lands burdened with dashabandam service which is service of public nature, are inclinable as being against public policy. We, therefore, hold that the descendants, though enjoyed the income from the properties, did number effect the repairs and neglected the maintenance and upkeep of the tank. They rendered the tank disused and abandoned. By operation of s.85 of the Act the lands and tank stood vested in the Gram Panchayat for companytrol, management and supervision. Undoubtedly, a hereditary trustee is entitled to be the Chairman of a Board of Trustees, if any, companystituted under the Endowment Act or else be in exclusive possession and management of the public trust registered thereunder until he is removed as per the procedure provided therein. Since the tank always remained a public tank and number being a public trust, the Endowment Act does number apply. therefore, the question of initiating action under s. 77 of the Endowment Act for removal of the descendants as trustees does number arise. In the suit of the descendants the High Court did number companysider the effect of grant of ryotwari patta under Inams Act and in the suit of the Gram Village Panchayat the effect of vesting under s.85 of the Act on the grant of ryotwari patta was number companysidered. Only s. 14 i.e. the bar of civil suit was focussed. Consequently both the suits were dismissed by different division benches. The question is whether the suit is maintainable. All companymunal lands, porambokes, tanks, etc., in inam villages shall vest in the government under s.2A of Inams Act free from all encumbrances. Section 3 determines the inam lands whether held by the individual or the institution, provides procedure for determination and s.3 4 gives right of appeal. Section 4 companyverts those lands into ryotwari lands and accords entitlement to grant of ryotwari patta. Section 5 gives power to restitute the lands to the tenants in occupation though were ejected between specified dates. Section 7 gives power to grant ryotwari patta to the tenants to the extent of two thirds share in the land and one third to the land-holder. If it was held by the institution, two third share would be to the institution and one third to the tenants. Section 3 grants right of permanent occupancy to the tenants in inam lands held by institutions. Section 9 prescribes procedure for eviction of the tenants having right of permanent occupancy. Section 10- A provides right to ryotwari patta to tenants in Ryotwari or Zamindari village with the right of permanent occupancy, even in the lands, held under customary right etc. Section 12 fastens liability on the ryotwari pattadars to pay land assessment. Section 13 gives exclusive power of jurisdiction to Tehsildar, the Revenue companyrt and the companylector to try the suit as per the procedure as of a Civil Court under the Code of Civil Procedure. Section 14 of the Inams Act reads thus Bar of jurisdiction of Civil Courts No suit or other proceedings shall be instituted in any Civil Court to set aside or modify any decision of the Tahsildar, the Revenue Court, or the Collector under this Act, except where such decision is obtained by misrepresentation, fraud or companylusion of parties Section 14-A and Section 15 provides that 14-A Revision 1 Notwithstanding anything companytained in this Act, the Board of Revenue may, at any time either suo moto or on application made to it, call for and examine the records relating to any proceedings taken by the Tahsildar, the Revenue Court or the Collector under this act for the purpose of satisfying itself as to the regularity of such proceeding or the companyrectness, legality or propriety of any decision made or order passed therein and if, in any case, it appears to the Board of revenue that any such decision or order should be modified, annulled, reserved or remitted for companysideration, it may pass order accordingly. No order prejudicial to any person shall be passed under sub-section 1 unless such person has been given an opportunity of making his representation. Act to override other laws Unless otherwise expressly provided in this Act the provision of this act and of any orders and Rules made thereunder shall have effect numberwithstanding anything inconsistent therewith companytained in any other law for the time being in force or any instrument having effect by virtue of any such law. The Constitution intends to herald an egalitarian social order by implementing the goals of socioeconomic justice set down in the Preamble of the Constitution. In that regard the Constitution created positive duties on the State in Part IV towards individuals. The Parliament and the State legislatures made diverse laws to restructure the social order created rights in favour of the citizens companyferred power and jurisdiction on the hierarchy of Tribunals or the authorities companystituted thereunder and given finality to their orders or decisions and divested the jurisdiction of the established civil companyrts expressly or by necessary implication. The Inam Act is a step in that direction as part of Estate Abolition Act. Therefore, departure in the allocation of the judicial functions would number be viewed with disfavour for creating the new forums and entrusting the duties under the statutes to implement socio-economic and fiscal laws. We have to companysider, when questioned, why the legislature made this departure. The reason is obvious. The tradition bound civil Courts gripped with rules of pleading and strict rules of evidence and tardy trial, four tier appeals, endless revisions and reviews under C.P.C are number suited to the needed expeditious dispensation. The adjudicatory system provided in the new forums is cheap and rapid. The procedure before the Tribunal is simple and number hide bound by the intricate procedure of pleadings, trial, admissibility of the evidence and proof of facts according to law. Therefore, there is abundant flexibility in the discharge of the functions with greater expedition and inexpensiveness. In order to find out the purpose in creating the Tribunals under the statutes and the meaning of particular provision in social legislation, the Court would adopt the purposive approach to ascertain the social ends envisaged in the Act, to companysider scheme of the Act as an integrated whole and practical means by which it was sought to be effectuated to achieve them. Meticulous lexographic analysis of words and phrases and sentences should be subordinate to this purposive approach. The dynamics of the interpretative functioning of the Court is to reflect the companytemporary needs and the prevailing values companysistent with the companystitutional and legislative declaration of the policy envisaged in the statute under companysideration. In Denna v. Union of India, 1984 1 SCR 1 this Court held that the Law is a dynamic science, the social utility of which companysists in its ability to keep abreast of emerging trends in social and scientific advance and its willingness to readjust its postulates in order to accommodate those trends. Law is number static. The purpose of Law is to serve the needs of life. The law should, therefore, respond to the clarion call of social imperatives evolve in that process functional approach as means to subserve social promises set out in the Preamble, directive principles and the fundamental Rights of the Constitution. It is seen that the Inams Act is an integral part of the scheme of the Andhra Pradesh Estates Aboilition and Conservation into Ryotwari Act, 26 of 1984 for short Estate Abolition Act to companyer the left over minor Inams. It determined the pre-existing rights of the Inamdars and the religious institutions envisages grant of ryotwari patta afresh to the companycerned and seeks to companyfer permanent occupancy rights on the tenants. It also regulates the relationship between institutions and its tenants. It created appellate and revisional and forums and declared finality to the orders passed by the tribunals and expressly excluded the jurisdiction of the Civil Court, numberwithstanding anything companytained in any other law or inconsistent therewith the Inams Act shall prevail. The exception engrafted was that a suit would lie to challenge the decision obtained by fraud, misrepresentation and companylusion by parties. Section 9 of the Civil Procedure Code, 1908 provides that whenever a question arises before the Civil Court whether its jurisdiction is excluded expressly or by necessary implication, the Court naturally feels inclined to companysider whether remedy afforded by an alternative provision prescribed by special statute is sufficient or adequate. In cases where exclusion of the Civil Courts jurisdiction is expressly provided for, the companysideration as to the scheme of the statute in question and the adequacy or sufficiency of the remedy provided for by it may be relevant, but cannot be decisive. Where exclusion is pleaded as a matter of necessary implication such companysideration would be very important and in companyceivable circumstances might become even decisive. The jurisdiction of a Tribunal created under statute may depend upon the fulfilment of some companydition precedent or upon existence of some particular fact. Such a fact is companylateral to the actual matter which the Tribunal has to try and the determination whether it existed or number is logically temporary prior to the determination of the actual question which the tribunal has to companysider. At the inception of an enquiry by a Tribunal of limited jurisdiction, when a challenge is made to its jurisdiction, the Tribunal has to companysider as the companylateral fact whether it would act or number and for that purpose to arrive at some decision as to whether it has jurisdiction or number. There may be Tribunal which by virtue of the law companystituting it has the power to determine finally, even the preliminary facts on which the further exercise of its jurisdiction depends but subject to that, the Tribunal cannot by a wrong decision with regard to companylateral fact, give itself a jurisdiction which it would number otherwise had. Except such tribunals of limited jurisdiction when the statute number only empowers to enquire into jurisdictional facts but also the rights and companytroversy finally it is entitled to enter on the enquiry and reach a decision rightly or wrongly. If it has jurisdiction to do right, it has jurisdiction to do wrong. It may be irregular or illegal which companyld be companyrected in appeal or revision subject to that the order would become final. The questions to be asked, therefore, are whether the Tribunal has jurisdiction under Inam Act to decide for itself finally whether the institution or the Inamdar or the tenant is entitled to ryotwari patta under ss. 3,4 and 7 and whether the Tribunal is of a limited jurisdiction and its decision on the issue of patta is a companylateral fact. The companysideration as to exclusion of the jurisdiction of Civil Court is numberlonger res integra. This Court in bead-roll of decisions companysidered this question in diverse situations. In Kamala Mills Ltd. v. State of Bombay, 1966 1 SCR 64 the questions arose were whether an assessment made in violation of the Bombay Sales Tax Act companyld claim the status of an assessment made under that Act, and whether the nature of the transactions was a decision of companylateral fact. A Bench of seven Judges of this Court held that if it appears that a statute creates a special right or liability and provides for the determination of the right or liability to be dealt with by tribunals specially companystituted in that behalf would be companysidered whether all questions of said right and liability shall be determined by the tribunals so companystituted and it becomes pertinent to enquire whether remedies numbermally associated with actions in Civil Courts are prescribed by the said statute or number. It was held that the Court was satisfied that the Act provided all the remedies associated with actions in Civil Courts and the remedy for refund of the tax illegally companylected was provided and it was number companylateral. Section 20 prohibits such a claim being made before an ordinary Civil Court and held that the civil suit was number maintainable. The leading decision of the Privy Council in Secretary of State v. Mask C0., 1940 L.R. 67I.A.222 Raleigh Investment Co. Ltd. v. Governor-General in Council, L.R. 74 I.A. 50 and the ratio in Firm and Illuri Subbayya Cheety Sons State of Andhra Pradesh, 1964 1 SCR 752 were approved. In Desika Charyulu v. State of A.P, AIR 1964 SC 807 a Constitution Bench was to companysider whether the jurisdiction of the Settlement Officer and the Tribunal created under the Estates Abolition Act to determine whether Shotrium Village was an inam estate was exclusive and the Civil Courts jurisdiction to try the dispute was barred. Despite the fact that numberexpress exclusion of the Civil Courts jurisdiction was made under the Act it was held that very provision setting up an hierarchy of judicial tribunals for the determination of the questions on which the applicability of the Act depends was sufficient in most cases to infer that the jurisdiction of the Civil Courts to try the same was barred. Accordingly it was held that the jurisdiction of the Settlement Officer and the Tribunal by necessary implication was exclusive and that the Civil Courts are barred from trying or retrying the question once over. The decisions of the Settlement Officer and of the Tribunal were held final and companyclusive. In Dhulabhai Ors. v. State of M.p. Anr. 1968 3 SCR 662 another Constitution Bench reviewed the entire case law on the question of maintainability of civil suit and laid down seven propositions. Propositions 1 and 2 are relevant, which read thus Where the statute gives a finality to the orders of the special tribunals the Civil Courts jurisdiction must he held to be excluded if there is adequate remedy to do what the Civil Courts numbermally do in a suit. Such provision, however, does number exclude those cases where the provisions of the particular Act have number been companyplied with or the statutory tribunal has number acted in companyformity with the fundamental principles of judicial procedure. Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is number decisive to sustain the jurisdiction of the civil companyrt. Where there is numberexpress exclusion the examination of the remedies and the scheme of the particular act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so companystituted, and whether remedies numbermally associated with actions in Civil Courts are prescribed by the said statute or number. It was held therein that the civil suit was number maintainable to call in question of assessment made under the Madhya Bharat Sales Tax Act. In hatti v. Sunder Singh, 19712 SCR 163 the tenant had a declaratory relief before the authorities under Delhi land Reforms Act that he was Bhoomidar. When it was challenged in the civil suit as number being binding, this Court held that the civil suit was number maintainable. In Muddada Chayana v. Karam Narayana and Anr. etc., 1979 3 SCR 201 under s. 56 1 c of the Estates Abolition Act, the dispute whether who the lawful ryot in respect of any holding is, shall be decided by the Settlement Officer. Whether it is liable to be questioned in the Civil Court. Chinnappa Reddy, J., who had intimate knowledge as an Advocate and the Judge on the subject reviewed the law and held that the Act is a self-contained companye in which provision was also made for the adjudication of various types of disputes arising, after an estate was numberified, by specially companystituted tribunals. On the general principles it was held that the special tribunals companystituted by the Act must necessarily be held to have exclusive jurisdiction to decide dispute entrusted by the statute to them for their adjudication. Dealing with the object of the Act it was held at p. 207 C-D that the Act intended to protect ryots and number to leave them in wilderness. When the Act provides machinery in s. 56 1 c to discover who the lawful ryot of a holding was, it was number for the Court to denude the Act of all meaning and by companyfining the provision to the bounds of ss. 55 and 56 1 a and b on the ground of companytextual interpretation. Interpretation of a statute, companytextual or otherwise must further and number frustrate the object of the statute. It was held that the civil suit was number maintainable and approved the Full Bench judgment of 5 judges of the High Court of Andhra Pradesh in T. Munuswami Naidu v. R. Venkata Reddy., AIR 1978 P. 200. The same view was reiterated in O. Chenchulakshmamma Anr. v.D. Subramanya Reddy, 1980 1 SCR 1006 and held that the order of the Addl. Settlement Officer was final in so far as the dispute between the rival claimants to the ryotwari patta was companycerned and number liable to be questioned in any companyrt of law. In A. Bodayya Anr. L. Ramaswamy dead by Lrs. 1984 Suppl . SCC 391 while reiterating the ratio in both the judgments, Desai, J. Speaking for a Bench of 3 Judges held that under Estate Abolition Act, who the lawful ryot was decided. Self-same question directly and substantially raised in the suit cannot be decided by the Civil Court as it had numberjurisdiction to decide and deal with the same but Settlement Officer had the exclusive jurisdiction to decide and deal with it. In Doe v. Bridges, 1831 1 B Ad. 347 at p. 859 the oft quoted dictum of Lord Tenerden, C.J. reads that where an act creates an obligation and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be enforced in any other manner. In Premier Automobiles Ltd. v. Kamlakur Shantaram Wadke and Ors., 1976 1 SCR 427 a Bench of three Judges after reviewing the case law held that if a dispute was number industrial dispute, number does it relate to enforcement of any right under the Industrial Dispute Act, the remedy lies only in the civil companyrt. If the dispute arises out of the right or liability under the general companymon law and number under the Act, the jurisdiction of the civil companyrt is always alternative, leaving it to the election of the suitor to choose his remedy for the relief which is companypetent to be granted in a particular remedy. If the dispute relates to the enforcement of a right or obligation of the Act,the only remedy available to the suitor is to get an application adjudicated under the Act. In that view, it was held that the civil suit was number maintainable. In State of Tamil Nadu v. Ramalinga Samigal Madam, 1985 4 SCC 10 strongly relied on by Shri Kanta Rao, the question therein was whether the jurisdiction of the civil companyrt was ousted to redetermine the nature of the land rendered by the settlement officer under s. II of the Estate Abolition Act, Tulzapurkar, J. speaking for the Division Bench proceeded on three fundamental postulates namely that the decision of the Settlement authorities under s. 11 of the Act was for I revenue purposes, that is to say for fastening the liability on him to pay the assessment and other dues and to facilitate the recovery of such revenue from him by the Government and therefore, any decision impliedly rendered on the aspect of nature and character of the land on that occasion will have to be regarded as incidental to and merely for the purpose of passing the order of granting or refusing to grant the patta and for numberother purpose. II only revision against the order and number an appeal and III that by Madras Amendment, s. 64-c was deleted. It was unfortunate that it was number brought to the numberice of the companyrt that the purpose of Estate Abolition Act was number solely for the purpose of companylecting the revenue to the State. The Act had its birth from a long drawn struggle carried on by the ryots in Madras Presidency for permanent ryotwari settlement of tenures and grant of permanent occupancy rights and the Indian National Congress espoused their rights and passed resolution at Arvadi Session to make a legislation in that regard. The recovery of revenue was only secondary. In Syamala Rao v.Sri Radhakanthaswami Varu 1984 1 A.P.L.J. 113 a division Bench of the Andhra Pradesh High Court to which one of us K.R.S.,J was a member companysidered the historical background, the purpose of the Act and the scheme envisaged therein in extenso and held that the preamble of the Estate Abolition Act was to repeal the permanent settlements, the acquisition of the rights of the land-holders in the Estates and introduction of the ryotwari settlement therein under s. 1 4 by issuance of the numberification the prexisting rights shall cease and determined shall vest in the State free from all encumbrances and declared that all rights and interests created in particular over the State shall cease and determine as against the Government protected only dispossession of a person in possession of the ryoti land who was companysidered prima facie entitled to a ryotwari patta. Section 11 envisaged to enquire into the nature of the land and whether ryotwari land immediately before the numberified dates to be properly included or ought to have been properly included in the holding of the ryot. The enquiry under the Act was entrusted to the Revenue Authorities who have intimate knowledge of the nature of the lands and the entries in the revenue records of the holders, etc. Act created hierarchy of the tribunals, namely Asstt. Settlement Officer Settlement Officer Director of Settlements and Board of Revenue provided revisional powers to those authorities and ultimately the order is subject to the decision of the High Court under Art. 226. In that view it was held that by necessary implication the jurisdiction of the civil companyrt was ousted, the decision of settlement authorities under s. 11 was made final and numbercivil suit was maintainable. The legislature having made the Act to render economic justice to the ryots and excluded the dispute between land-holders and the ryots companyered under ss. 12 to 15 and the ryots inter se under s. 56 1 c , from the jurisdiction of the Civil Court, it would number be the legislative intention to expose the ryots to companytly unequal civil litigation with the state of the dispute under s. 11. It is number necessary in this case to broach further but suffice to state that unfortunately this historical perspective and the real purpose and proper scope and operation of Estate Abolition Act was number focussed to the numberice of this companyrt. In Jyotish Thakur Ors. v. Tarakant. Jha Ors.,1963 Suppl. 1 SCR 13 s. 27 of regulation III of 1872 provides that in respect of transfer of ryoti interest in companytravention of the regulation revenue companyrts shall number take companynizance of such a transfer. It was companytended that by necessary implication the civil suit was number maintainable. In that companytext this Court held that provisions therein were number intended to be exhaustive to bar the relief in Civil Court. In Sri Athmanathawami Devasthanam K. Gopalaswami Aiyangar, 1964 3 SCR 763 the question was whether the civil suit to recover damages and for ejectment of the ryoti lands belonging to the temple was barred. The findings were that the lands were ryoti lands and that the tenant acquired the occupancy rights, but the lease was granted in excess of 5 years. It was companytended that it was a transfer without permission of the Endowment department. While upholding that the lands were ryoti lands and the tenant acquired occupancy rights, this Court disagreeing with the High Court, held that there was numbertransfer and that the tenant is liable to pay the arrears of rent and the suit was maintainable. In Sri Vedagiri Lakshmi Narasimha Swami Temple v. Induru Pattabhirami Reddy, 1967 1 SCR 280 the companytention raised was that s. 93 of the Madras Hindu Religious and Charitable Endowments Act, 1951 was a bar to maintain suit for rendition of accounts and recovery thereof against the ex-trustees. This Court repelled the companytention and held that the suit for rendition of accounts was number expressly or by necessary implication barred the jurisdiction of the civil companyrt under s. 93. In Shree Raja Kandregula Srinivasa Jagannadha Rao Panthulu Bahadur Garu v. State of Andhra Pradesh, 1970 2 SCR 714 it was companyceded that the question whether Kalipathnam village is an Inam estate was to be adjudicated before the tribunals appointed under the Rent Reduction Act. It was companytended that the tribunals have numberjurisdiction to decide the validity of the numberification reducing the rent by operation of s. 8 1 thereof. It was held that there was numberstatutory prohibition to determine the nature of the land companytemplated by the Rent Reduction Act. Accordingly the suit was held to be maintainable. In Dr. Rajendra Prakash Sharma v. Gyan Chandra Ors.,1980 3 SCR 207 it was found that under s, 7 of the Administration of Evacuee Property Act, 1950, numberproceedings were taken to declare the suit house as on evacuee property. No numberification under sub-s. 3 of 7 was published in the gazette. Under those circumstances it was held that s. 46 did number bar the civil suit. In Anne Besant National Girls High School v. Dy. Director of Public Instruction Ors. 1983 1 SCC 200 this Court held that the Civil Court has jurisdiction to examine whether action or decision of an administrative authority was ultra vires the relevant rules of Grant-in-Aid Code and Rule 9 vii was held to be ultra vires. Accordingly the suit was held to be maintainable. In Raja Ram Kumar Bhargava dead by Lrs. v. Union of India, 1988 2 SCR 352 two questions were raised, firstly the validity of the assessment and secondly recovery of the tax paid under Excess Profit Tax Act, 1940. On the first question it was held that the suit was number maintainable. On the second question, without going into the technicalities of the maintainability of the suit, this Court granted the relief. In Pabbojan Tea Co., etc. v. The dy. Commissioner Lakhimpur, etc.1968 1 SCR 260 the questions were whether the workmen were ordinary unskilled labour or skilled labour whether the jurisdiction of the authorities under s. 20 of the Minimum Wages Act, 1948 is exclusive and whether the jurisdiction of the Civil Court was barred. This companyrt held that the authorities did number hold any inquiry number received any evidence for determining that issue. No proper hearing was given to the parties to tender evidence. Section 20 is number a companyplete Code as there was numberprovision for appeal or revision against the orders passed under s.20 3 . There was numberfurther scrutiny by any higher authority against the imposition of penalty. The Act in terms does number bar the employers from instituting a suit. In those circumstances, it was held that the legislature did number intend to exclude the jurisdiction of the civil companyrt. The ratio in K. Chintamani Dora Ors. v. G. Annamnaidu ors. 1974 2 SCR 655 also does number assist Gram Panchayat for the reason that the decree therein originally granted became final. Subsequently it was sought to be reopened in a later suit. Under those circumstances the civil suit was held to be maintainable numberwithstanding the provisions companytained under the Estate Abolition Act. Thus we have numberhesitation to hold that the ratio in all these case are clearly distinguishable and render little assistance to the Gram Panchayat. The scope, ambit and operation of the Inams Act was companysidered by P. Jaganmohan Reddy,J. as he than was in D.V. Raju v. B.G. Rao Anr. 1961 2 A.W.R. 368 and held that the paramount object of the legislature was to protect the tenant in occupation and is sought to be achieved by making effective orders of eviction made by the Civil Court either in execution or otherwise. It further prohibits the institution of any suit or proceeding in a Civil Court under s. 14 to set aside or modify any decision of the Tehsildar, Collector or Revenue Court except where such decision has been obtained by misrepresentation, fraud or companylusion. Section 15 enjoins that the provisions of the Act and orders made thereunder shall have effect numberwithstanding anything inconsistent therewith companytained in any other law for the time being in force or any instrument having effect by virtue of absolute jurisdiction on the Tehsilder, Revenue Court or the Collector, as the case may be, numberwithstanding any provision of law or any suit or decree of a Civil Court or for that matter even where evictions have taken place in pursuance of such decrees, the evicted tenants can be restored to occupation provided the requirements for the protection of the possession of the tenants are satisfied. In that case the occupant in possession laid proceeding before the Tehsildar for injunction restraining the writ petitioner from ejecting him from the lands. The Tehsildar in exercise of the power under Rule 16 of the Rules granted injuction pending companysideration of his right to Ryotwari patta. The order of injunction was challenged firstly on the ground of ultra vires of Rule 16 and secondly on the ground of jurisdiction. While upholding the order on both the grounds the learned Judge held that Tehsildar, Revenue Court and the Collector have exclusive jurisdiction and the civil suit is barred. We respectfully approve it as companyrect law. The Inams Act did number intend to leave the decisions of the revenue companyrts under s. 3 read with s. 7 to retry the issue once over in the Civil Court. Undoubtedly the decision of the division Bench in P. Pedagovindayy v. Subba Rao, 1969 2 A.L.T. 336 is in favour of the companytention that the civil suit is maintainable. It is number good law. Thus the glimpse of the object of the Inames Act, scheme, scope and operation thereof clearly manifest that Inames Act is a self companytained companye, expressly provided rights and liabilities, prescribed procedure remedies of appeal and revision, excluded the jurisdiction of the civil companyrt, numberwithstanding anything companytained in any law, given primacy of Inams Act though inconsistent with any law or instrument having force of law. The jurisdictional findings are an integral scheme to grant or refuse ryotwari patta under s. 3, read with s.7 and number companylateral findings. It was subject to appeal and revision and certiorari under Art. The decision of the Revenue Tribunal, are final and companyclusive between the parties or persons claiming right, title or interest through them. The trick of pleadings and the camouflage of the reliefs are number decisive but the substance or the effect on the order of the tribunal under the Inams Act are decisive. The civil suit except on grounds of fraud, misrepresentation or companylusion of the parties is number maintainable. The necessary companyclusion would be that the civil suit is number maintainable when the decree directly nullifies the ryotwari patta granted under s. 3 of the Inams Act. Under the Gram Panchayat Act the statutory interposition of vesting the tank and the appurtenant land in the Gram Panchayat made it to retain possession, companytrol and supervision over it, though the Gram Panchayat unlawfully took possession. The need to grant decree for possession in favour of the Gram Panchayat is thus redundant. The suit of the descendants numbermally to be decreed on the finding that ryotwari patta under s. 3 of the Inams Act was granted in their favour and that they were unlawfully dispossessed. Since the grant of ryotwari patta, though in the name of individuals, was to maintain the public tank which stood vested under s. 85 of the Act in the Gram Panchayat, the descendants are divested of the right and interest acquired therein. Thus the suit of the descendants also is liable to be dismissed. Accordingly, the decrees of dismissal of both the suits are upheld and the appeals dismissed. But in the circumstances, parties are directed to bear their own companyts. |
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 177 of 1964. Appeal by special leave from the judgment and order dated March 30, 1964 of the Punjab High Court in Criminal Appeal No. 85 of 1963. K. Bannerjee AND N. N. Keswani, for the appellant. K. Khanna AND R. N. Sachthey, for the respondent. The Judgment of the Court was delivered by Bhargava, J. The appellant, Lachhi Ram, has companye up to this Court in this appeal by special leave against the judgment of the High Court, of Punjab upholding the companyviction and sentence of imprisonment for life awarded to him under section 302 read with sections 109 and II 5 of the Indian Penal Code by the Additional Sessions Judge of Gurgaon. Both the companyrts below have, on the companysideration of evidence, held that the appellant had enmity with the companyplainant, Devi Ram, even though they were companylaterals in the third or fourth degree and their wives were sisters. There was a dispute between them about payment of companypensation of some land, and on July 28, 1958, the appellant had sent a post-card to Devi Ram inquiring why he was delaying the payment of companypensation, asking him to act intelligently and sensibly, and telling him that it was number good to forcibly usurp the share of ,others. Then, about six months before the occurrence, which was the subject-matter of the charge, the appellant and his brother Chet Ram visited Devi Ram in his village Tigaon and made a demand in respect of the property, adding a threat that otherwise he would have to pay heavily for the same. On January 27, 1962, when Devi Ram came back to his house in the evening, his wife told him that a friend of his from Rewari had sent some laddoos, peras and bananas through a person who had given his name as Partap Singh. She further told him that Partap Singh had informed her that the letter which he was asked to give with the sweets had been lost on the way. Devi Rams wife described that youngster, Partap Singh. Thereafter, Devi Ram, his wife, his two sons and an infant daughter took their meals, and all of them ate the peras, the laddoos, and the bananas, while some of these, which were left over, were placed aside. At night, the infant daughter started vomiting and passing loose motions, and this was followed by vomiting and passing of loose motions by all the other members of the family. Devi Ram sent for the village Vaid, Mohinder Singh, who came at about 4 a.m. and gave some medicine with tea but the companydition of all the members of the family did number improve. The local doctor, Rajinder Singh, was then sent for, but by the time he arrived, the infant daughter, Padam Wati, died. The doctor removed all the persons to his dispensary and from there sent them to a hospital in Faridabad in an ambulance. Devi Rams wife was removed from Faridabad to Irwin Hospital, Delhi, but she also died on the 29th January, 1962. Devi Ram himself, however, recovered. The matter was brought to the numberice of the Police and on investigation, one Himmat Singh, who turned the approver, was arrested. Himmat Singh then related the story on the basis of which the appellant has been companyvicted. According to Himmat Singh, after he passed his Matriculation Examination in 1955, he remained in the employment of some wine ,contractors in Ludhiana and later he took to motor driving for which he obtained a licence in 1958. Then, he was looking for a job when he came to Gurgaon, where he used to take his meals in the hotel of One Arjan Singh. He got acquainted with the appellant in that hotel as the appellant had his shop opposite to it. The appellant was nice to him and arranged to get a house for him at a monthly rental of Rs. 9/-. The appellant also started paying his rent and expenses for the meals. Thereafter, the appellant took him in his companyfidence, told him that he wanted to get Devi Ram murdered, and offered money if the approver helped him in accomplishing his purpose.- The approver agreed. In pursuance of this agreement, the approver once tried to kill Devi Ram by shooting him with a pistol which he had obtained in an illicit manner, but failed, After this failure, the appellant worked out this plan of buying sweetmeats in which arsenic was to be mixed. On the 25th January, 1962, the appellant told the approver that he had made all arrangements and promised to pay him Rs. 800/- if the approver did the job assigned to him. On the morning of the 27th January, 1962, the appellant, accompanied by the approver, went and purchased one seer of Laddoos and half a seer of Khoa from the shop of Dal Chand, and sugar was purchased from the shop of one Jodha Ram. One dozen of bananas were also purchased from a rehriwala. The appellant had already procured white arsenic and he mixed it in the khoa and the sugar which he had purchased, and prepared peras with it. Thereafter, the appellant gave to the approver two bags companytaining the peras and the luddoos, and separately gave the bananas. He paid Rs. 150/- in cash and promised to pay the balance on companyclusion of the errand. The approver then took a bus for Tigaon and delivered the sweets and the bananas to Devi Ram wife. Subsequently, when the approver asked for the balance of the money, it was number paid to him, because Devi Ram survived and the appellant went back on the companytract on the ground that success had number been achieved in his objective which was to companymit the murder of Devi Ram. On these facts disclosed by the approver and the prosecution evidence available, the appellant was prosecuted and has number been companyvicted and sentenced as mentioned above. The only point urged in this appeal before us by learned companynsel for the appellant was that the Sessions Judge as well as the High Court did number apply the companyrect principles of law applicable to appreciation of evidence of an approver. We find numberforce in this submission, as the judgment of the High Court makes it quite clear that there was full justification in this case for upholding the companyviction of the appellant on the basis of the approvers evidence as companyroborated by other prosecution evidence. The High Court has held that the approvers statement with regard to the poisoning of Devi Ram and his family is reliable and does number suffer from any improbabilities at all. It is true that Court did number accept the version of the approver in respect of earlier attempt by him to companymit the murder of Devi Ram by shooting him with a pistol. Dealing with this part of the case, the High Court held that it was number very much impressed with this story, and it was apparent that the only witness, Sri Ramdutt, Advocate, who appeared in respect of this incident, companyld number be expected to support the version of the approver that the appellant had caught hold of four cartridges from him and given them to the approver. It was also numbericed that Advocate was acting as companynsel for the appellant in some criminal case which was pending agonist him for having caused miscarriage. In these circumstances, the Court came to the finding that the manner in which the pistol story had been related by the approver did number carry much companyviction and, therefore, it would number be safe to rely on the evidence relating to this episode which should be left out of companysideration. The High Court thus did number choose to act on this evidence given by the approver mainly on the ground that there was numbercorroboration and partly for the reason that it appeared to the Court that the story was number very companyvincing. The Court did number, however, companye to any finding that the story put forward by the approver was incorrect or false. What the Court did was to act on the principle of valuing the evidence of an approver with caution and of number accepting it unless it is companyroborated at least in some material particulars. The fact that the Court thus did number accept the evidence of the approver for this part of the story does number mean that the Court held that the approver was an unreliable or untruthful witness. On the other hand, the view of that Court on appreciation of the approvers own evidence is that he has given his statement with regard to the entire manner in which the plot for poisoning was carried out in such a manner that it is reliable and companyvincing. Further, the Court found that his evidence was companyroborated on very material particulars. First, there was companyroboration provided by the entries in the register of the dealer from whom the appellant purchased arsenic. The entries in the register were proved by prosecution witness, Udey Bhan, and his evidence also showed that the register bore the signature of the appellant in token of having received the arsenic sold to him. The appellant initially denied that the signatures on the register were his, but, when later examined under s. 342, Criminal Procedure Code, he admitted that his signatures had been obtained on a register and that register was this very register produced by the prosecution. He, of companyrse, added that when his signature was taken, the register was blank and numberentries about sale of poison had been made. When he originally denied his signature, the question arose of providing companyroboration of the evidence of Udey Bhan to strengthen the value of the entries in the register by obtaining evidence to prove that the signature on the register against the entry was really made by the appellant. But, after the admission of the appellant that the signature on that register had been obtained from him, it became unnecessary to bring further proof of the signature on the register. In these circumstances, it cannot be held that the High Court companymitted any error in holding that this register provided good evidence to prove that arsenic poison was purchased by the appellant from the dealer Uday Bhan. The High Court found that two witnesses, Dal Chand and Jodha Ram companyroborated the sale of laddoos and khoa to the appellant. Thereafter, Sher Singh witness companyroborated the statement of the approver that he boarded the bus and that Devi Rams house at the end of the bus journey was pointed out to him by Sher Singh himself. Karnail Singh and Giasi Ram, prosecution witnesses, also companyroborated the approvers version of his journey by bus. All of them identified the approver. They happened to remember the approvers traveling by bus because the approver was a Sikh and yet he started smoking and had to be told by the driver Kamail Singh to throw away the cigarette. Thus, on very material points of the version given by the approver there was companyroboration by prosecution witnesses who were all found by the High Court to be reliable. It is true that there were some portions of the story of the approver for which numbercorroborative evidence was available. Learned companynsel for the appellant pointed out that there was numbercorroboration of the fact that it was the appellant who mixed arsenic poison in the khoa, number was there any companyroboration of the approvers statement that he himself handed over the sweets to Devi Rams wife. This submission ignores the natural sequence of events. When the poison was mixed with the khoa, it companyld number be expected that the appellant would ensure presence of other persons to see him mixing the poison. Naturally, the poison was mixed at a time when there was numberone else present, except the appellant himself and the approver who was his accomplice and whom the appellant had hired for the purpose of carrying out his scheme. At the later stage, when the approver gave the sweets to Devi Rams wife, numbercorroborative evidence companyld be available, because Devi Rams wife died of the poisoning and again, there is numberhing to show that any other person was present when the sweets were delivered by the approver. It was held by this Court in Sarwan Singh v. The State of Punjab 1 that an approvers evidence to be accepted must satisfy two tests. The first test to be applied is that his evidence must show that he is a reliable witness, and that is a test which is companymon, to all witnesses. The test obviously means that the Court should find that there is numberhing inherent or improbable in the evidence given by the approver, and that there is numberfinding that the approver has given false evidence. The second test which thereafter still 1 1957 S.C.R. 953. remains to be applied in the case of an approver, and which is number always necessary when judging the evidence of other witnesses, is that his evidence must receive sufficient companyroboration. In the present case, as we have pointed out above, the High Court has held that the evidence of the approver was reliable and was companyroborated on material particulars by good prosecution witnesses who have been believed by the Court. We are, therefore, unable to find any error in the judgment of the High Court in upholding the companyviction of the appellant. |
ARIJIT PASAYAT, J. Challenge in this Appeal is to judgment of a Division Bench of Madras High Court holding that customary bonus was number payable by the State Bank of India in short the Bank after Banking Laws Amendment Act, 1984 Central Act No. 64 of 1984 in short the Amendment Act was enacted. Appellant has questioned companystitutional validity of the said amendment before the Madras High Court by filing a writ petition which was dismissed. Factual position which is almost undisputed is as follows- By the Amendment Act, State Bank of India Act, 1955 in short the State Bank Act and State Bank of India Subsidiary Banks Act, 1959 in short the Subsidiary Act and Banking Companies Acquisition and Transfer of Undertakings Acts, 1970 and the Banking Companies Acquisition and Transfer of Undertakings Act, 1980 in short the Undertakings Acts were amended. By that amending Act, a new Section 43-A companyprising of three sub sections 1 , 2 and 3 and marginal heading Bonus was introduced in the State Bank Act. The said Section reads as under- No Officer, Adviser or other Employee other than an employee within the meaning of Clause 13 of Section 2 of the Payment of Bonus Act, 1965 21 of 1965 of the State Bank shall be entitled to be paid any bonus. No employee of the State Bank, being an employee within the meaning of Clause 13 of Section 2 of the Payment of Bonus Act, 1965 21 of 1965 , shall be entitled to be paid any bonus except in accordance with the provisions of that Act. The provisions of this Section shall have effect numberwithstanding any judgment, decree or order of any Court, Tribunal or other authority and numberwithstanding anything companytained in any other provision of this Act or in the Industrial Disputes Act, 1947 14 of 1947 , or any other law for the time being in force or any practice usage or custom or any companytract, agreement, settlement, award or other instrument. In the Subsidiary Act, a new Section 50A was introduced in identical language. Similar provisions numbered as Section 12-A were introduced in the Banking Undertakings Acts. The Statement of Objects and Reasons, which accompanied the Bill which later became the Amending Act, reads thus In an award numberified as 14.1.1984, the Central Government Industrial Tribunal, Madras held that the employees of the State Bank of India companyered by the award should be paid bonus at the rate of one months substantive pay every half year on the ground that this has also along been the custom and practice. A writ petition filed against this award is pending in the Madras High Court. All public Sector banks including the State Bank of India companye under the purview of the Payment of Bonus Act, 1965, and the intention is that numberbonus other than what is required to be paid under the Payment of Bonus Act, 1965, shall be paid to the employee of the State Bank of India or of any other pubic sector bank. It is proposed to make express provisions in this behalf in the State Bank of India Act, 1955 and the enactment relating to the other public sector banks. The Bill seeks to achieve the above objects. That award of the Central Government Industrial Tribunal was challenged by the Management in a writ petition filed in the Madras High Court being Writ Petition No.1273 of 1984. It was during the pendency of that petition in the High Court, that the State Bank Act came to be amended by introducing Section 43-A in that Act. On 24.11.1986, the Writ Petition filed by the Bank was dismissed. The matter was number further agitated, and the award attained finality. Appellants primary stand before the High Court was that the Amendment Act was unconstitutional as it merely intended to nullify a judicial decision which Parliament had numbercompetence to do. Other companytentions were to the effect that an award passed under the Industrial Disputes Act, 1947 in short the Industrial Act is entitled to greater recognition as in the case of companyflict between the provisions of General Law i.e. State Bank Act and the Industrial Act the latter Act must prevail. The bonus which was directed to be paid was in the nature of deferred wages and the impugned legislation had the effect of freezing wages. Parliament is number vested with the power to reduce the wages and therefore the legislation is ultra vires. Effect of an award under the Industrial Act cannot be wiped out except in the manner provided under the Industrial Act and since in the instant case that has number been done, the award was binding on the parties companycerned. The bonus being a customary bonus was peculiar to the employees of the Bank and mere fact that other public sector banks were number being paid such bonus is of really numberconsequence. Stand that financial implications were enormous is also of numberconsequence. The Union of India and the Bank took the stand that the Amendment Act was a valid piece of legislation. It was number merely intended to invalidate an award by acting as an Appellate Authority, and it is number a case of any judicial power being usurped by the legislation. The High Court negatived the companytentions of the appellants and dismissed the Writ Petition. The points urged before the High Court was reiterated by learned companynsel for the appellant. Reference was made to a decision of this Court in Vegetable Products Ltd. v. Their Workmen AIR 1965 SCC 1499 to highlight the basic features of customary bonus. It was submitted in the case of officers of the Bank that the quantum representing bonus merged with the basic pay and companysequential increase in Dearness Allowance and superannuation benefits were granted. That being so, bonus is numberhing but deferred wage. Continued payment of bonus made it a companydition of service and the same companyld number have been altered without following the provisions of Section 9A of the Act. Customary bonus is one which is paid dehors the bonus paid under the Payment of Bonus Act, 1965 in short the Bonus Act . Customary bonus is untouched by the Bonus Act. The Industrial Act is a special Act qua the State Bank Act. Issues relating to companytinuance of service and disputes relating thereof are companyered by the Industrial Act. While some of the aspects can be taken to be companyered by the State Bank Act, number companypliance with the special Act i.e. Industrial Act rendered the Amendment Act invalid. The intention of the Amendment Act was to invalidate the award as is evident from the Statement of Objects and Reasons of the Amendment Act. Customary bonus is number profit linked. Amendment even if accepted to be valid can only have prospective effect. In response, learned companynsel for the Bank and the Union of India submitted that the payment of customary bonus was creating different yardsticks for different public sector banks. The award was challenged by the Bank in a Writ Petition. During the pendency of the writ petition, the amendment was enacted. Unfortunately the High Court did number take numbere of the Amendment Act and Custom even if it acquires a force of law, can be changed as there is numberfundamental right involved in any custom. Bonus cannot be called deferred wages and even if it is companyceded for the sake of argument that the payment of customary bonus was a companydition of service, after insertion of Section 43A by the Amendment Act the same has numberoperation. The provision brings about uniformity. The payments were related to profits and they were number uniform, so in that sense it was number really be a companydition of service or a deferred wage. The High Court has also dealt with the Special Act and the deferred wages companycept. The Amendment Act really brought in a curative provision, and numberretrospective effect has been given to the Amendment Act. Section 9A of the Industrial Act has numberapplication as the Parliament has the power to legislate on that aspect. A bare look at the impugned provision makes it clear that it is number a case of legislature by mere declaration or without anything more, overriding a judicial decision. On the other hand it is a case of rendering a judicial decision ineffective by enacting a valid law within legislative field of the legislature. Merely because a reference has been made to the award in the Statement of Objects and Reasons, that cannot in any way affect the plain intention in enacting the law under challenge and it is number companyrect to say that the intention was to declare the decision of Tribunal as invalid and as such judicial power has been usurped by legislation. Following four circumstances have to be fulfilled in order to be entitled to payment of customary or traditional bonus, as was numbered in M s. Grahams Trading Co. v. Their Workmen AIR 1959 SC 1151 and in Vegetable Products case supra that the payment has been made over an unbroken series of years that it has been for a sufficiently long period, the period has to be longer than in the case of an implied term of employment that it has been paid even in years of loss and did number depend on the earning of profits and that the payment has been made at a uniform rate throughout to justify an inference that the payment at such and such rate had become customary and traditional in the particular companycern. Learned companynsel for the appellant submitted that companysidering the nature of customary bonus, the Amendment Act was really taking away a right companyferred. This Court in Upendra Chandra Chakraborty and Anr. v. United Bank of India AIR 1985 SC 1010 observed as follows- There is one other aspect of the claim number put forward, which cannot be lost sight of, which affords an additional reason to reject the companytention of the appellants. The respondent is a nationalized bank. Roughly in all there are 25 nationalised banks. The companycept of any customary bonus is unknown to nationalized banks. All the nationalized banks are wholly owned Undertakings of the Government of India. In the matter of bonus, the employees of all the nationalized banks must be dealt with on a companymon denominator. If therefore the companytention of the appellants were to prevail, the employees of the respondent, which is only one amongst many nationalized banks, would enjoy an undeserved advantage companypared to their companynterparts in other nationalized banks and even in the other branches of the respondent bank and may become a cause of disharmony and inequality. Therefore, in larger public interest also, the demand for customary bonus otherwise found to be untenable, must be negatived. Underlined for emphasis It is a cardinal rule of interpretation that Objects and Reasons of a Statute is to be looked into as an extrinsic aid to find out legislative intent only when the meaning of the statute by its ordinary language is obscure or ambiguous. But if the words used in a statute are clear and unambiguous then the statute itself declares the intention of the legislature and in such a case, it would number be permissible for a companyrt to interpret the Statute by examining the Objects and Reasons for the Statute in question. See S.S. Bola vs. B.D. Sardana AIR 1997 SC 3127 . The smooth balance built with delicacy must always be maintained, and in the anxiety to safeguard judicial power, it is unnecessary to be over-zealous and companyjure up incursion into the judicial preserve to invalidate the valid law companypetently made. see Indian Aluminium Co. vs. State of Kerala 1996 7 SCC 637 . In Jalan Trading Co. vs. Mill Mazdoor Sabha AIR 1967 SC 691 it was observed as follows It is true that by the impugned legislation, certain principles declared by this Court e.g. in Express Newspapers Private Ltd. vs. Union of India, 1959 SCR 12 AIR 1958 SC 578 in respect of grant of bonus were modified, but on that account it cannot be said that the legislation operates as fraud on the Constitution or is a companyourable exercise of legislative power. Parliament has numbermally power within the frame-work of the Constitution to enact legislation which modified principles enunciated by this Court as applicable to the determination of any dispute, and by exercising that power, the Parliament does number perpetrate fraud on the Constitution. An enactment may be charged as companyourable, and on that account valid, only if it be found that the legislature has by enacting it trespassed upon a field outside its companypetence. In the Indian Aluminium case supra in paragraph 56 certain principles have been set out. Those principles inter alia include the principles that the Court in its anxiety to safeguard judicial power must number be overzealous and companyjure up incursion into the judicial preserve invalidating the valid law companypetently made the Court should scan the law to find out a whether the vice pointed out by the companyrt and invalidity suffered by previous law is cured after companyplying with the legal and companystitutional requirements b whether the Legislature has companypetence to validate the law c whether such validation is companysistent with the rights guaranteed in Part III of the Constitution. So far as the legislature is companycerned, it cannot by mere declaration, without anything more, overrule, revise, or override a judicial decision. It may, however, render judicial decision ineffective by enacting valid law on the topic within its legislative field fundamentally altering or changing its character retrospectively. The changed or altered companyditions should be such that the previous decision would number have been rendered by the Court, if those altered or changed companyditions had existed at the time of declaring the law as invalid. At this juncture, we may also take numbere of what was stated by Hidaytullah, CJI in the case of Shri Prithvi Cotton Mills Ltd. vs. Broach Borough Municipality 1969 SCC 283 A Courts decision must always bind unless the companyditions on which it is based are so fundamentally altered that the decision companyld number have been given in the altered circumstances. The principle was reiterated in State of Tamil Nadu v. Arooran Sugars Ltd. 1997 1 SCC 326 . As was numbered by the Constitution Bench of this Court in Chairman, Railway Board Ors. v. C.R. Rangadhamaiah Ors. 1997 6 SCC 623 , once a person joins service under the Government, the relationship between him and the Government is in the nature of a status rather than companytractual and the terms of his service while he is in employment, are governed by statute or statutory rules, which may be altered without the companysent of the employees. This effect of a number-obstante clause and validating Act has been examined by this Court from time to time. Reference has already been made to the decision in Shri Prithvi Cotton Mills Ltd. supra . The view expressed by Hidayatullah, C.J.I. has been reiterated in Arooran Sugars case supra . The decision in Madan Mohan Pathak v. Union of India 1978 2 SCC 50 which was one of the major planks of arguments before the High Court and this Court was explained in the last named case. It was rendered in the different factual background. This was categorically pointed out and the decision was explained in the said case. Every sovereign legislature possesses the right to make retrospective legislation. The power to make laws includes power to give it retrospective effect. Craies on Statute Law 7th Edn. at p. 387 defines retrospective statutes in the following words A statute is to be deemed to be retrospective, which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect to transactions or companysiderations already past. Judicial Dictionary 13th Edn. K.J. Aiyar, Butterworth, p. 857, states that the word retrospective when used with reference to an enactment may mean i affecting an existing companytract or ii reopening up of past, closed and companypleted transaction or iii affecting accrued rights and remedies or iv affecting procedure. Words and Phrases, Permanent Edn., Vol. 37-A, pp. 224-25, defines a retrospective or retroactive law as one which takes away or impairs vested or accrued rights acquired under existing laws. A retroactive law takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transaction or companysiderations already past. In Advanced Law Lexicon by P. Ramanath Aiyar 3rd Edition, 2005 the expressions retroactive and retrospective have been defined as follows at page 4124 Vol.4 Retroactive- Acting backward affecting what is past. Of a statute, ruling, etc. extending in scope or effect to matters that have occurred in the past. - Also termed retrospective. Black, 7th Edn. 1999 Retroactivity is a term often used by lawyers but rarely defined. On analysis it soon becomes apparent, moreover, that it is used to companyer at least two distinct companycepts. The first, which may be called true retroactivity, companysists in the application of a new rule of law to an act or transaction which was companypleted before the rule was promulgated. The second companycept, which will be referred to as quasi-retroactivity, occurs when a new rule of law is applied to an act or transaction in the process of companypletionThe foundation of these companycepts is the distinction between companypleted and pending transactions T.C. Hartley, The Foundations of European Community Law 129 1981 . Retrospective- Looking back companytemplating what is past. Having operation from a past time. Retrospective is somewhat ambiguous and that good deal of companyfusion has been caused by the fact that it is used in more senses than one. In general however the Courts regards as retrospective any statute which operates on cases or facts companying into existence before its companymencement in the sense that it affects even if for the future only the character or companysequences of transactions previously entered into or of other past companyduct. Thus, a statute is number retrospective merely because it affects existing rights number is it retrospective merely because a part of the requisite for its action is drawn from a time and antecedents to its passing. Vol.44 Halsburys Laws of England, Fourth Edition, page 570 para 921 . The question of retrospectively affecting the award is factually of academic interest. It was admitted before the High Court that all amount payable under the award for the prior period has been paid. In Harvard Law Review, Vol. 73, p. 692 it was observed that it is necessary that the legislature should be able to cure inadvertent defects in statutes or their administration by making what has been aptly called small repairs. Moreover, the individual who claims that a vested right has arisen from the defect is seeking a windfall since had the legislatures or administrators action had the effect it was intended to and companyld have had, numbersuch right would have arisen. Thus the interest in the retroactive curing of such a defect in the administration of government outweighs the individuals interest in benefiting from the defect. The above passage was quoted with approval by the Constitution Bench of this Court in the case of The Asstt. Commr. of Urban Land Tax v. The Buckingham and Carnatic Co. Ltd. 1969 2 SCC 55 . In companysidering the question as to whether the legislative power to amend a provision with retrospective operation has been reasonably exercised or number, various factors have to be companysidered. It was observed in the case of Stott v. Stott Realty Co. 284 W. 635 - as numbered in Words and Phrases, Permanent Edn., Vol.37-A, p. 2250 that The companystitutional prohibition of the passage of retroactive laws refers only to retroactive laws that injuriously affect some substantial or vested right, and does number refer to those remedies adopted by a legislative body for the purpose of providing a rule to secure for its citizens the enjoyment of some natural right, equitable and just in itself, but which they were number able to enforce on account of defects in the law or its omission to provide the relief necessary to secure such right. Craies on Statute Law 7th Edn. at p. 396 observes that If a statute is passed for the purpose of protecting the public against some evil or abuse, it may be allowed to operate retrospectively, although by such operation it will deprive some person or persons of a vested right. Thus public interest at large is one of the relevant companysiderations in determining the companystitutional validity of a retrospective legislation. The above position was elaborately numbered in Virendra Singh Hooda and Ors. v. State of Haryana Anr. 2004 12 SCC 588 . Curative Statutes are by their very nature intended to operate upon and affect past transactions. Curative and validating statutes operate on companyditions already existing and are therefore wholly retrospective and can have numberretrospective operation. Blackstone J in Nicol v. Verelst 1779 26 E.R. 751 held that declaratory do number prove that law was otherwise before, but rather the reverse. There is numberquarrel and in fact in our opinion rightly that legislature cannot by a mere declaration, without anything more, directly overrule, reverse or override a judicial decision. However, it may, at any time in exercise of the plenary powers companyferred on it by the Constitution render a judicial decision ineffective by enacting a valid law on a topic within its legislative field, fundamentally altering or changing with retrospective, curative or neutralizing effect the companydition on which such decision is based see I.N. Saxena etc. v. State of Madhya Pradesh 1976 4 SCC 750 . As numbered in Indira Nehru Gandhi v. Raj Narain 1975 suppl. SCC 1 rendering ineffective of judgments or orders of companypetent Courts or Tribunals by changing their basis by legislative enactment is a well known pattern of all validating Acts. Such validating legislation which removes the causes for ineffectiveness or invalidity of actions or proceedings is number an encroachment on judicial power. There is a distinction between encroachment on the judicial power and nullification of the effect of a judicial decision by changing the law retrospectively. As numbered by this Court in M s. Tirath Ram Rajindra Nath, Lucknow v. State of U.P. and Anr. 1973 3 SCC 585 the former is outside the companypetence of the legislature but the latter is within its permissible limits. It has to be numbered that the legislature, as a body, cannot be accused of having passed a law for extraneous purpose. If numberreasons are stated as appear from the provisions enacted by it, its reasons for passing a law are those stated in the Objects and Reasons. Even assuming that the Executive, in a given case, has an ulterior motive in moving a legislation, that motive cannot render the passing of the law mala fide. This kind of Transferred malice is unknown in the field of legislation. See K. Nagaraj and Ors. v. State of Andhra Pradesh and Anr. AIR 1985 SC 551 and G.C. Kanungo v. State of Orissa AIR 1995 SC 1655 . Learned companynsel for the appellant submitted that vested rights cannot be taken away by the legislation by way of retrospective legislation. The plea is without substance. Whenever any amendment is brought in force retrospectively or any provision of the Act is deleted retrospectively, in this process rights of some are bound to be effective one way or the other. In every case the exercise by legislature by introducing a new provision or deleting an existing provision with retrospective effect per se does number amount to violation of Article 14 of the Constitution. The legislature can change, as observed by this Court in Cauvery Water Disputes Tribunal, Re 1993 Supp. 1 SCC 96 II , the basis on which a decision is given by the Court and thus change the law in general, which will affect a class of persons and events at large. It cannot, however, set aside an individual decision inter parties and affect their rights and liabilities alone. Such an act on the part of the legislature amounts to exercising the judicial power by the State and to function as an appellate Court or Tribunal, which is against the companycept of separation of powers. The amendment made by the impugned enactments is to the State Bank Act and other statutes relating to some other Banks. The Bank undoubtedly has power in terms of Section 7 1 of the State Bank Act to change the companyditions of service of those of its employees, who had earlier served with Imperial Bank of India. By enforcement of the Act, the undertaking of Imperial Bank of India was transferred to the Bank. Employees of erstwhile Imperial Bank of India cannot take the stand that they have an unalterable right in their terms and companyditions of employment. So far as other employees are companycerned, Section 43 of the Act empowers the Bank to determine terms and companyditions of their service. The Parliament has power to legislate on the topic of bonus and it is number precluded from legislating on that topic, other than the Bonus Act. The mere fact that an award has been made under the Industrial Act cannot have the effect of preventing the Parliament for all times to companye from amending the law on the foundation of which the award was made. This of companyrse is subject to same being number inconsistent with provision of Part III of the Constitution and also being within the legislative companypetence of the Parliament. As numbered above, the impugned Act did number merely declare the Tribunals award inoperative. There is numberhing to show that the Parliament intended to exercise appellate powers over the Tribunal or the High Court by enacting the amending Act. The said Act in clear and unambiguous terms prohibits the grant of bonus to the employees of public Sector Banks, except in accordance with the Bonus Act, and also limits such payment only to those eligible under the Act. The amended provision operates numberwithstanding anything companytained in any other law, including the Industrial Act, and similarly numberwithstanding anything companytained in any judgment, decree or order of any Court or Tribunal. |
CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 702 and 703 of 1967. Appeals from the judgment and order dated September 28, 1960 of the Madhya Pradesh High Court in Misc. First Appeals Nos. 12 and 16 of 1958. C. Chagla, Rameshwar Nath and Swaranjit Ahuja, for the appellant in both the appeals . T. Desai and D. N. Mukherjee, for respondent No. 1 in both the appeals . N. Shroff, for respondents Nos. 2 and 3 in C.A. No. 703 of 1967 and respondent No. 2 in C.A. No. 702 of 1967 . The Judgment of the Court was delivered by Grover, J. These appeals which have been brought by certificates from a companymon judgment of the Madhya Pradesh High Court arise out of certain acquisition proceedings. The facts may be stated. Plots Nos. 670, 671 and 735 situate in Madan Mahal Extension area, Jabalpur were acquired by the State Government under the Land Acquisition Act 1894, hereinafter called the Act, for companystructing the Home Science College. In the present appeals we are companycerned mainly with Plot No. 670. On August 31, 1940, a deed of lease had been executed on behalf of the Municipal Corporation granting a lease free of premium to the Hitkarini Sabha, Jabalpur, which is the appellant before us. The laese was in respect of 10 Acres of land companyprising Plot No. 670 and another strip of land measuring 0.621 Acres as described in the deed and delineated in the plan annexed thereto. The period of the lease was 30 years and the purpose for which the land was to be used was for locating and running the Hitkarini City College. Amongst other terms and companyditions the, appellant was to pay a yearly rent of Rs. .5 , for 1 0 acres and Re. 1 for the other strip of land besides, paying, and discharging all rates and taxes-etc. The appellant, on the expiry of the lease, was entitled to have the same renewed on-, such terms and companyditions as might be agreed between the parties. The appellant had built a, companylege hostel on the aforesaid land and had also used the attached ground as playground for students. The Collector of Jabalpur, by his award dated July 18, 1955 dealt with the claims filed by the appellant and the Municipal Corporation and after disposing of certain preliminary objections he assessed the companypensation for the lands in all the three plots at As.0/8/-per sq. ft. According to the Collector the appellant was number merely a lessee or tenant-at-will as companytended by the Corporation but was a lessee for the term mentioned in the lease-deed dated August 31, 1940, the lease having been made for a specific purpose, i.e. for locating and running a City College. As regards Plot No. 670 the apportionment was made between the appellant The appellant and the Corporation were dissatisfied with the award of the Collector. Applications for reference were made under s. 18 1 of the Act. The Additional District Judge held that the price should be 10 As. per sq. ft. and that the appellant and the Municipal Corporation were entitled to equal companypensation for plot No. 670. The Corporation and the appellant filed appeals to the High Court. The decision of the Additional District Judge, fixing the price of the land at As. 0/8/- per sq. ft. was affirmed. As regards the dispute regarding apportionment the High Court held, following a decision of a Division Bench of the same companyrt in Dagdulal v. Municipal Committee, Burhar 1 , that the lease deed having been executed by the Administrator during the time when the Corporation stood superseded was ineffective to companyvey the lease hold interest to the appellant. However, the appellant had been paving refit at the stipulated rate which had been accepted for a long time by the Corporation. It amounted, therefore, to the creation of a tenancy by necessary implication and the relationship of landlord and tenant came into existence. On the character of tenancy, whether it should be deemed to be from year to year or whether it should be on terms companytained in the lease deed, the High Court held that the tenancy companytinued on the terms companytained in the lease deed. The High Court then proceeded to say - The lease deed in this case was executed on 31- 8 1940 and was for a period of thirty years. It was, therefore to remain in force for 15 years more after the date of acquisition. There is a renewal clause which has been already quoted above. The lessee is entitled for renewal on such terms and companyditions as, may be agreed to between the parties. It appears to. us that the clause 1 1960 M. P. L. J. 627 is uncertain and vague and does number form a valid companytract for renewal of the lease. Normally in a companyenant for renewal there is an express agreement that the lease would be companytinued on the same terms and companyditions subject to a reservation that the rent way be enhanced under certain circumstances. In the instant, case, ill the terms and companyditions have been left to the agreement of patties which may number take place at all. Although a renewal is companytemplated numberterms on which it can be granted have been fixed between the parties. Under section 29 of the Indian Contract Act such a companytract cannot be enforced., It has been held in Ramaswami v. Rjajagopala I.L.R. I I Mad. 260 that a lease whereby a tenant agreed to pay whatever rent the Landlord might fix was void for uncertainty. The apportionment was made on acturial basis between the appellant and the Corporation in the ratio of 1038 962. Before us two matters have been sought to be raised. One one relates to the quantum of companypensation awarded by the learned Additional District Judge and the other to the apportionment between the appellant and the Corporation. We shall first deal with apportionment. It has been argued that since the High Court had held that the tenancy companytinued on the terms companytained in the lease deed benefit should have been given of the renewal clause also. The High Court had taken the view that that clause was uncertain and vague and did number form a valid companytract for the renewal of the lease. Our attention has been invited to a judgment of the Mysore High Court in H. V. Rajan v. C. N.Gopal Others. 1 There the relevant portion of the renewal clause was lessee shall have the option of five years but subject only to such terms and companyditions as may be mutually agreed upon. It was observed that ordinarily the renewal clause in a lease deed was an important term of the agreement and the companyrts would be reluctant to ignore that clause on the ground that it was vague unless on a reasonable companystruction numbermeaning companyld be attached to it. An agreement to renew the lease, without more, must be deemed to be an agreement to renew as per the original terms. Even if the renewal provided was dependent on the agreement between the parties the clause merely provided for an agreement on reasonable terms. If the parties companyld number agree as to those terms the companyrts companyld step in. In our judgment it is altogether unnecessary to decide the true scope and effect of the renewal clause companytained in the deed executed on August 31, 1940. At the time the lease was executed A.I.R. 1961 Mys. 29. there used to be a Municipal Committee in Jabalpur Aparently it became a Corporation later. The Committee was superseded in-Charge of the Committee Jabalpur as also Secretary of the Municipal Committee had signed the lease on behalf of that Committee. In the decision of the Madhya Pradesh High Court in Dagdulals 1 case the view had been expressed that so long as Municipal Committee was number reconstituted the ownership of the property stood transferred by operation of law to the State Government and therefore the Administrator had numberpower whatsoever to sell the property which had vested in the Government. The Additional District Judge had observed that the lease deed had been executed in pursuance of a resolution which had already been passed by the Municipal Committee. The High Court, however, found on the evidence produced before the Additional District Judge that the final resolution passed by the Municipal Committee was only for the grunt of a license and number a lease to the appellant. The deed of lease, therefore, was, held to be ineffective for companyveying any lease-hold interest to it. But still the High Court held that the tenancy was to last for a period of thirty years. We are wholly unable to companyprehend how any lease companyld be spelt out of the deed dated August 31, 1940 for a period of 30 years companytaining the renewal clause which has already been mentioned. If the officer who executed the lease deed had numberpower to lease out the property in question the grant of the lease was wholly null and void. It is true that by acceptance of the rent from the appellant the relationship of landlord and tenant came into existence between the parties but Mr. Chagla for the appellant has number been able to show how a lease for a period of 30 years together with a renewal clause companyld be held to have been created or to have companye into existence. It may be mentioned that we are number companycerned with the period of 30 years which has already been taken into companysideration by the High Court because numberappeal has beep filed on that point by the Corporation. The only matter which requires determination is whether the High Court, while deciding the question of apportionment, should have given due affect to the renewal clause. In our opinion the High Court companyld riot have done so. If the so called deed of lease dated August 31, 1940 was wholly ineffective and void for the purpose of demising the land for a period of 30 years one companyld only look at the provisions of the Transfer of Property Act for determining the term for which the tenancy came into existence. Under s. 106 of that Act the ,tenancy, in the present case, companyld be only from month to month because the immovable property had number been leased out 1 1960 MP.L.J. 627. for agricultural or manufacturing purpose in which case the lease would have been from year to year. We are therefore unable to accede to the companytention that the renewal clause in the lease deed dated August 31, 1940 was effective and should have been taken into companysideration while making the apportionment between the appellant and the Corporation. The next question relating to quantum can be disposed of shortly. The sole criticism of Mr. Chagla is that the potential value of the plot in question was number taken into companysideration. It is true, as pointed out in Raja Vyrigherla Marayana Gajapatiraju v. The Revenue Divisional Officer Vizagapatam 1 that where the land to be valued possesses some unusual or unique features as regards its position or its potentialities the companyrt determining the market value will have to ascertain as best as it can from the materials before it what a willing vendor might reasonably expect to obtain from a willing purchaser for the land in that particular position and with those particular potentialities. It has been urged that Plot No. 670 had a special situation or position in view of its size, locality, nearness to business centre and the Madan Mahal Station. But the value which was fixed by the Additional District Judge and the High Court was fixed by reference to sales of plots of companyparable nature. The following portion of the judgment of the High Court shows how the matter was dealt with We may observe that the two witnesses relied upon by the appellants purchased small plots at the rate of Re. 1/- per sq. ft. As the map of the Wright Town Madan Mahal Extension area produced by the Corporation before us shows, these plots are in a fully developed lay out having roads and drains round about. We had asked the Corporation to calculate how much area out of the acquired sites would be required to be left open for roads and drains and they have calculated that about 70,000 sq. ft. would have to be left open for this purpose. Obviously, therefore, it is only the remaining plot which would have value as building sites. Besides leaving so much area open, companyts will have to be incurred in developing the roads, and drains for which the Corporation has estimated the companyt to be Rs. 8,500/-. Considering all these factors and also calculating the built up area in the lay outs surroundings the acquired land, we find that it is only eighty per cent of the land which can be sold as building site. On these calculations if the average price of the plots sold in the locality is taken to be /12/- per sq. ft. the 1 66 I.A. 104. overall price of the acquired land without roads and drains would work out to a little less than 9/ per sq. ft. To put the matter, in a different way, the value of 10/ per sq. ft. found by the Additional Judge would work out to a little over /12/- per sq. ft., if only the area which companyld be built upon is companysidered saleable as building site. We,therefore, find that the price at-/10/per sq. ft. allowed by the Additional District judge, is number unreasonable if anything it errs on the generous side. We have numbermanner of doubt that the High Court had taken all the factors into companysideration while assessing the value. |
Abhay Manohar Sapre, J. Leave granted. This appeal is directed against the final judgment and order dated 02.01.2018 passed by the High Court of Rajasthan Bench at Jaipur in S.B. Civil Signature Not Verified Digitally signed by ANITA MALHOTRA Date 2018.10.29 Writ Petition No. 5403/2015 whereby the High Court 164401 IST Reason has allowed the writ petition filed by the respondent herein. The issue involved in the appeal is short, as also the facts of the case lie in a narrow companypass, which would be clear from the narration infra. The appellant is the applicant, whereas the respondent is the numberapplicant in the eviction petition filed by the appellant against the respondent before the Rent Control Tribunal, Rajasthan out of which this appeal arises. The appellant a landlady of the suit premises filed the eviction petition against the respondent tenant of the suit premises under Section 9 of the Rajasthan Rent Control Act for short called The Act before the Rent Tribunal Kota R84/2005 praying therein for respondents eviction from the tenanted suit premises. The appellant claimed respondents eviction from the suit premises on the ground of her personal bona fide need for raising companystruction in the existing suit premises to be used for her children and for stay of appellants guest in the suit premises. The respondent denied the appellants need and, inter alia, companytended that the appellant is in possession of an alternative accommodation in the city and hence her alleged need set up in the eviction petition can be accomplished by using the alternative accommodation available in the city. By order dated 8.2.2011, the Rent Tribunal dismissed the appellants eviction petition holding that appellants need can be accomplished with an alternative space available with her in the city. The appellant landlady felt aggrieved and filed an appeal 144/2014 before the Appellate Tribunal. The Appellate Tribunal by order dated 12.2.2015 allowed the appeal, set aside the order of the Rent Tribunal, decreed the appellants eviction petition and passed the eviction decree against the respondent, in relation to the suit premises. The respondent tenant felt aggrieved and filed writ petition before the High Court of Rajasthan Jaipur . By impugned order, the learned Single Judge allowed the respondents writ petition and set aside the order of the Appellate Tribunal and restored the order of the Rent Tribunal which gives rise to filing of the special leave to appeal in this Court by the landlady. So the short question, which arises for companysideration in this appeal, is whether the High Court was justified in allowing the respondents tenants writ petition thereby justified in setting aside the appellate order of the Rent Appellate Tribunal and restoring that of the Rent Tribunal. Heard Dr. Manish Singhvi, learned companynsel for the appellant and Mr. Purvish Jitendra Malkan, learned companynsel for the respondent. Having heard the learned companynsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal, modify the impugned order and remand the case to the Rent Appellate Tribunal for deciding the appeal 144/2014 afresh on merits. In our opinion, the need to remand the case to the Rent Appellant Tribunal has occasioned because the High Court, while allowing the respondents writ petition, came to a companyclusion and accordingly held that the Rent Appellate Tribunal allowed the appellants landladys appeal with a casual approach and failed to record any categorical finding on the plea of bona fide need. The operative part of the High Court order reads as under Taking into companysideration the fact aforesaid, I do number find any reason for Rent Appellate Tribunal for setting aside the order of the Rent Tribunal. |
CIVIL APPELLATE JURISDICTION Civil Appeal No. 2720 of 1972. From the Judgment and order dated 29/30-8-72 of the Gujarat High Court in Special Civil Appeal No. 315 of 1971. U. Mehta and M.N. Goswami for the Appellant. Vimal Dave, M.N. Shroff and KMM Khan for the Respondents. The Judgment of the Court was delivered by KANIA, J. This is an Appeal against the judgment of a Division Bench of the Gujarat High Court dismissing a writ petition filed by the Appellant herein. The Appeal has been filed on a certificate of fitness granted by the Gujarat High Court under Article 133 1 c of the Constitution. The main challenge in the writ petition was to the vires of sections 4 and 6 respectively of the Land Acquisition Act, 1894. That challenge numberlonger survives in view of the validity of the sections having been upheld by this Court in Manubhai Jehtalal Patel and Anr. v. State of Gujarat and others, 1983 4 S.C.C. 553. The lands in question are situated at village Bhairav, Taluka Kamrege, District Surat, Gujarat. The said lands are situated on the bank of the river Tapti which is known for its frequent floods and the lands are companyered in Survey No. 2. The said lands admeasure 1 acre and 39 gunthas. We propose to refer to the said lands in the aggregate as the said land. The said land is also known as the Maksheshwar Mahadev Land. The Appellant claims to be the occupant and owner of the entire land companyprising in Survey No. 2 which includes the said land. It may be mentioned that the claim of the Appellant to be the owner and Occupier of the said land is based on his being the senior member of his family but we are number companycerned with that question as we propose to proceed on the footing that he is in actual occupation of the said land. The preliminary numberification declaring the intention to acquire the said land was issued under section 4 of the Land Acquisition Act, 1894 and published in the Government Gazette of the State of Gujarat on April 30, 1970. It was numberified that the proposed acquisition was for a public purpose, namely, for extension of the village site of the village Bhairav. It is companymon ground that the extension of the village site was required for the purpose of housing 12 families who had been rendered homeless because of floods in Tapti river. An individual numberice under section 4 of the Land Acquisition Act was served on the Appellant on May 2, 1970. The Appellant filed his objections against the proposed acquisition on May 12, 1970 and filed additional objections on June 20, 1970 and July 6, 1970 respectively. After companysideration and rejection of the said objections, the numberification for acquisition of the lands under section 6 of the Land Acquisition Act was issued on December 8, 1970. Notices under section 9 of the Land Acquisition Act were issued on January 8, 1971. The said acquisition was challenged by the Appellant in the writ petition on various grounds. The main ground on which the said acquisition was challenged in the writ petition was that the provisions of sections 4 and 6 respectively of the Land Acquisition Act were ultra vires the Constitution of India. That challenge, as we have already pointed out, has been finally negatived by this Court. In view of this, Mr. Mehta fairly companyceded that the vires of sections 4 and 6 of the Land Acquisition Act companyld numberlonger be called in question before us. It was, however, pointed out by him that the said numberification was also challenged on some other grounds. It was companytended by Mr. Mehta that under the provisions of the Bombay Land Revenue Code, 1879, it must be established that the lands in the existing village site are insufficient for the extension of the village site before any acquisition can be resorted to. It was submitted by Mr. Mehta that before the said land companyld be acquired for the afforested public purpose, the revenue authorities should have satisfied themselves that there were numberunoccupied lands in the village which were suitable, appropriate and available for the extension of the village site or abadi and since that has number been done, the acquisition companyld number said to be for a public purpose. Mr. Mehta sought support for these submissions from the decision of a Division Bench of the Nagpur Bench of the Bombay High Court in Chandrabhagabai Undhaorao and others v. Commissioner, Nagpur Division, Nagpur Ors.,1962 Nagpur Law Journal, Vol. XLV at p. 466. It was held in that case that the provisions of section 226 of the Madhya Pradesh Land Revenue Code require that the Deputy Commissioner of the District or any other person authorised under law by him must record a finding that the village abadi is insufficient and that there is numberother unoccupied land suitable for the purpose of extension of the village abadi before land companyld be companypulsorily acquired for that purpose. The decision as to the sufficiency or otherwise of the land in the abadi must be taken by the Deputy Commissioner. The Land Acquisition officer cannot substitute his opinion for that of the Deputy Commissioner in purporting to companyply with the provisions of section 226. Reliance was also placed by Mr. Mehta on the decision of a Division Bench Nagpur of the Bombay High Court, in Sitaram Maroti v. State of Maharashtra, 1963 65 Bombay Law Reporter, 241 which is to the same effect as the aforesaid decision and, in fact, follows it. It was submitted by Mr. Mehta that the provisions of section 226 of the Madhya Pradesh Land Revenue Code were substantially similar to the provisions of section 126 of the Bombay Land Revenue Code which is really the provision applicable to the lands in question before us. We are totally unable to accept the submission of Mr Mehta that the provisions referred to above are in pari materia. Section 226 of the Madhya Pradesh Land Revenue Code provides as follows 226. 1 Where the area reserved for abadi is in the opinion of the Deputy Commissioner insufficient, he may reserve such further area from the unoccupied land in the village as he may think fit. Where unoccupied land for purposes of abadi is number available, the State Government may acquire any land for the extension of abadi and the Deputy Commissioner shall dispose of such land on such terms and companyditions as may be prescribed. The provisions of the Land Acquisition Act, 1894 shall apply to such acquisition and companypensation shall be payable for the acquisition of such land in accordance with the provisions in that Act. A perusal of the said section shows that before the State Government acquires any land for extension of abadi, the Deputy Commissioner has to give his opinion that the area reserved for abadi in the village in question in insufficient. A reading of sub-section 2 of the said section shows that it is only where unoccupied land for the purpose of abadi is number available, that the State can acquire any land for extension of abadi. Sub-section 3 merely makes the provisions of the Land Acquisition Act applicable to the procedure for acquisition and for determining the companypensation. The provisions of section 126 of the Bombay Land Revenue Code, 1879 read altogether differently. The said section runs as follows Limits of sites of villages, towns and cities how to be fixed. It shall be lawful for the Collector or for a survey officer, acting under the general or special orders of the State Government, to determine what lands are included within the site of any village, town, or city, and to fix, and from time to time to vary the limits of the same, respect being had to all subsisting rights of landholders. A perusal of section 126 of the Bombay Land Revenue Code shows that unlike section 226 of the Madhya Pradesh Land Revenue Code, there is numberhing in section 126 which indicates that the Collector or a Survey officer acting under his orders has to first decide to enlarge or vary the site of any village, town or city before acquisition is resorted to for enlarging or varying such site under the Act. Section 126 merely deals with the limits of the site of any village, town or city and prescribes the procedure for fixing the limits of such sites. There is numberhing in the Bombay Land Revenue Code or the Land Acquisition Act which would suggest that before acquisition can be resorted to for enlarging a village site, the Collector or a Survey officer or Revenue Authority must decide upon such enlargement. Great emphasis was laid by Mr. Mehta on the last part of section 126 which shows that the enlargement of the site has to be made, keeping in mind the rights of the landholders. However, in our opinion, this factor is of numberrelevance in the present case as there is numberhing on record to establish that such rights have number been taken into account. The next submission of Mr. Mehta was that the land acquisition authorities have failed to companysider what were the other lands available which companyld have been more companyveniently acquired for the public purpose referred to earlier. It was pointed out by him that in the writ petition, the Appellant petitioner has alleged that he companyld have pointed out certain other lands and open spaces where the twelve families rendered homeless by the floods of Tapti river companyld have been housed. With reference to these allegations, the Respondents in their companynter-affidavit filed before the Gujarat High Court have rightly pointed out that the Appellant had number given any details regarding other more suitable lands available for acquisition and hence it was number open to him to make a grievance on that score. Moreover, in paragraph 29 of the companynter-affidavit, the Respondents have pointed out that the lands referred to by the Appellant in his petition were number suitable for housing the victims of the floods because they were lowlying lands lands and number suitable for residential purposes. The assessment of suitability of the land proposed to be acquired for the companycerned public purpose is primarily for the Land Acquisition officer companysider and numbergood reason has been shown to us which companyld warrant interference with his decision. Moreover, we are satisfied that the Appellant had number even given proper particulars of the other lands which, according to him, were available for acquisition and were more suitable for acquisition and hence he can make numbergrievance on the score of proper companysideration number having been given to the question of acquiring such lands. It was lastly submitted by Mr. Mehta that since several years had passed from the date of the Notification under section 4, the victims of the floods must have been housed and rehabilitated elsewhere and hence the public purpose for which the lands were sought to be acquired does number survive. We are a little surprised at this argument. The delay has taken place on account of the legal proceedings adopted by the Appellant himself and by reason of the interim orders obtained by him. He cannot take advantage of this delay and claim that the public purpose numberlonger survives. Moreover, the public purpose stated in the Notification is the extension of a village site or goathan of the village Bhairav and there is numberhing to show that this public purpose has exhausted itself. In fact, we presume, on account of the increasing population, it will be more necessary today that the village site should be extended even then it was the time when the numberification was issued. This submission must also fail. The other companytroversies sought to be raised by the Appellant are factual in nature and we do number companysider it necessary to go into the same. |
SYED SHAH MOHAMMED QUADRI, J. The State of Kerala and the Divisional Forest Officers of two divisions are in appeal, by special leave, against the judgment and order of the High Court of Kerala at Ernakulam in O.P.No.1156 of 1981 dated January 31, 1984. The High Court held that the Kerala Grants and Leases Modification of Rights Act, 1980 for short the 1980 Act was number applicable to the lands held by the respondents under lease and quashed the impugned demand numberices issued by the appellants demanding seigniorage rates from the lessees for all the produce cut and removed from the demised lands, as per sanction given, including produce companysumed inside the companycession area by them. The dispute centres round the validity of demand of seigniorage rates raised by the appellants in respect of cutting and removing eucalyptus trees grown and used by the respondents on the land held by them as lessee. To make the companytroversy intelligible, it will be necessary to numbere the relevant facts. The first respondent is the successor-in-interest of the lessee of Poonjar companycession land. It carries on the business of plantation and manufacturing tea. On July 11, 1877, Poonjar Chief granted companycession by way of lease of large extent of land in the erstwhile Travancore State, in favour of one John Daniel Munro for companysideration of Rs.5000/- and yearly rent of Rs.3,000/-. The grant was ratified by Maharajah of Travancore under a deed executed on November 28, 1878. On a request made by the said Munro, a further companycession was granted in respect of the same land with some extended rights on July 26, 1879. That land which companyprises of Kannan Devan Hills was later transferred by him in favour of North Travancore Land Planting and Agricultural Society Ltd. on December 8, 1879. With regard to reduction of the tax liability under the said deed an agreement was entered into between the society and the Poonjar Chief on August 2, 1886. By a Royal Proclamation dated September 24, 1899 made by the Maharaja the territory of Poonjar Chief including the lands in question was made part of the State of Travancore reserving the right of Poonjar Chief to receive the annual rent of Rs.3000/- under the aforementioned companycession. The first respondent also holds as lessee Malki Marai Estate which was leased out by the Maharaja of the erstwhile Government of Cochin in favour of its predecessor-in-interest. The land in dispute encompasses both Kannan Devan Hills area as well as Malki Marai Estate. The second respondent is the Regional Officer of the first respondent hereinafter they will be referred to as the respondent . After States re-organization the State of Travancore and Cochin became part of the State of Kerala. In 1971, the State of Kerala passed the Kannan Devan Hills Resumption of Lands Act, 1971 for short the 1971 Act which came into force on January 21, 1971. By Section 3 1 of the 1971 Act the possession of the entire extent of the land situated in the Kannan Devan Hills village in the Devicolam taluk stood transferred to and vested in the Government of Kerala free from all encumbrances Clause a of sub-section 2 of Section 3 provides that sub-section 1 shall number apply to plantations other than plantations belonging to tresspassers. Under Section 4 of the said Act possession of the land which had vested in the State under Section 3 1 , was restored on the application of the respondent on the same terms and companyditions on which it was holding before the appointed day. Thereafter, the State of Kerala passed the aforementioned 1980 Act. Section 3 of the 1980 Act specifies the grants and leases of lands to which that Act applies. Section 4 which is in the nature of charging section imposes an obligation on the grantees and lessees to pay seigniorage rates in force for the time being for the timber cut and removed from any land held by him under the grant or lease. It is under that section that the appellants raised demand against the respondents. In O.P.No.1156-H of 1981, filed in the High Court of Kerala at Ernakulam, the respondent challenged the companystitutional validity of the Act, the legality of the demand and sought a writ prohibiting the appellants from interfering with felling of eucalyptus and other trees for the use of the respondent and from levying seigniorage on such trees and firewood under the Act. The High Court by judgment dated January 31, 1984, under challenge, declared that the provisions of the 1980 Act did number apply to the lands in question, quashed the demand raised under various letters and issued a writ prohibiting the appellants from interfering with the cutting of eucalyptus and other trees for the respondents own requirement and from levying seigniorage on such trees and firewood under the Act. Having regard to the nature of real companytroversy which arises in this appeal, we companysider it unnecessary to refer to the various companytentions urged by Mr.P.Krishnamurthi, the learned senior companynsel appearing for the appellants and Mr.Ashok H.Desai, the learned companynsel appearing for the respondents. The respondent is primarily aggrieved by levy of seigniorage rates under Section 4 of the 1980 Act on the eucalyptus and other trees which were cut and utilised in the factories which are situated within the boundaries of the lands in question. This issue can be resolved with reference to the provisions of Section 4 of the 1980 Act which reads as under Grantees and lessees to pay current seigniorage rates - 1 Notwithstanding anything companytained in any law for the time being in force, or in any grant, lease deed, companytract or agreement, or in any judgment, decree or order of any companyrt, with effect on and from the companymencement of this Act, every grantee and every lessee shall be bound to pay to the Government the seigniorage rates in force for the time being for the timber cut and removed from any land held by him under the grant or lease. The section, quoted above, companymences with a number-obstante clause and gives an overriding effect to the provisions of that section over anything companytained in any law for the time being in force, or in any grant, lease deed, companytract or agreement, or in any judgment, decree or order of any companyrt, with effect on and from the companymencement of that Act June 25, 1980 . The impost -- seigniorage rates in force for the time being -- is payable by every grantee and lessee to the Government for the timber cut and removed from any land held by him under the grant or lease. Thus, it is clear that every grantee and every lessee is made liable to pay the Government seigniorage at the rates in force for the time being in force for the timber cut and removed from any land held by him under the grant or lease. Since the liability to pay seigniorage is cast on the grantee and the lessee, it may be necessary to numberice the meanings of the terms grant, grantee, lease and lessee defined in clauses b , c d and e respectively of Section 2. They are as follows b grant means any grant to which this Act applies. c grantee means the person in whose favour a grant has been made and includes his heirs, successors and assigns d lease means any lease to which this Act applies e lessee means the person in whose favour a lease deed has been executed and includes his heirs, successors and assigns. A perusal of the definition of terms grant and lease indicates that the liability under Section 4 extends to only those grants and leases which satisfy the requirements of Section 3 of the 1980 Act. The High Court, as numbered above, held that the 1980 Act would number apply to subject leases. In our view, as alluded, without touching upon that aspect, the appeal can be decided on the terms of Section 4 of the 1980 Act, referred to above. Now, reverting to Section 4 of the 1980 Act, Mr.Ashok Desai would companytend that a claim for seigniorage implied ownership of a share in the property in respect of which it would be payable that word is equivalent of Malyalam term kuzhi kanam which means owner or shareholder and as the eucalyptus trees were grown by the respondent and the appellants had numbershare in them, the impugned demand was unsustainable and was rightly so held by the High Court. The first point that is required to be examined is the import of the expression seigniorage. It is number defined in the Act. It is number a term of art. It has to be understood in the meaning it bears in English. The relevant meaning of that expression seigniorage given in the New Shorter Oxford English Dictionary is Profit made by a government by issuing currency the difference or margin between the face value of companyns and their production companyts the Crowns right to charge a percentage on bullion brought to a mint for companyning the amount charged, something claimed by a monarch or feudal lord as a prerogative. From the above meaning, it may be seen that the expression seigniorage has two distinct meanings i profit made by a Government by issuing currency, the Crowns right to charge a percentage on bullion brought to a mint for companyning and ii something claimed by a monarch or feudal lord as a prerogative. We are unable to accept that seigniorage is used in Section 4 synonymous with kuzhi kanam because the legislature has used the said expression in clause d of Section 3 in the sense of companyferment of right of ownership by the State on payment of royalty, kuzhi kanam. The distinction between kuttikanom and seigniorage is explained by a Kerala High Court in Leslie vs. State of Kerala AIR 1970 Kerala 21 in the following words We do number think that kuttikanom is either a fee or tax. A tax or fee is levied in the exercise of sovereign power. We think that in the companytext kuttikanom means the Governments share of the value of the reserved trees. And it has been approved by this Court in State of Kerala vs. Kanan Devan Hills Produce Co. 1991 2 SCC 272 in paragraph 20 which reads as under It was further held by Mathew, J. that kuttikanom being the Governments share of the value of the trees owned by the Government it has the power to fix the value of the trees. We agree with the reasoning and companyclusions reached by Mathew, J. Since the ownership over the tree growth and timber in Concession Area vests with the Government it has a right to impose kuttikanom on the removal of the trees from within the Concession Area. In Section 4 1 , the expression seigniorage is employed to enforce a prerogative of the State de hors the right of ownership in the property. Therefore, the companytention of Mr.Desai cannot be accepted. The second point for companysideration is whether eucalyptus trees fall within the meaning of timber. This term is also number defined in the Act. Its ordinary meaning in English may be gathered from The Concise Oxford Dictionary, Eight Edition, 1990 at p.1277 Timber wood prepared for building, carpentry etc. a piece of wood or beam, esp. as the rib of a vessel large standing trees suitable for timber woods or forest a warning cry that a tree is about to fall Halsburys Laws of England, Fourth Edn. Vol.19 at p.21 Timber At companymon law oak, ash and elm are timber if over twenty years old, but number so old as to have numberusable wood in them. Other trees may be timber by the custom of the companyntry. Thus beech is timber by the custom of Buckinghamshire and parts of Gloucestershire. Aspen and horse-chestnut are timber in some companyntries. Trees less than six inches in diameter have been said number to be timber. Agricultural usages between landlord and tenant also frequently define the species of trees which are regarded as timber in the localities where the usages subsist. In a companytract for the sale of standing timber, timber may be synonymous with trees and so include lops and tops as well as trunks. By statute, timber includes all forest products. In New Websters Dictionary, the meaning of the word timber is Building material, timber wood suitable for building or for use in carpentry the wood of growing trees suitable for structural uses growing trees themselves a single beam or peace of wood forming or capable of forming part of a structure Corpus Juris Secundum, Vol.54 at p.1 The word timber has an enlarged or restricted sense, according to the companynection in which it is employed, and may refer to standing trees or wood suitable for the manufacture of lumber to be used for building and allied purposes. Thus, it is seen that the word timber may be used in a restricted as well as enlarged sense. In the restricted sense it means specified trees like oak, ash, elm, teak, blackwood, abony, karumthali etc. and in the enlarged sense it means woods suitable for building, furniture and carpentry etc. and includes standing trees. Its true meaning has to be determined from the companytext in which it is employed. In this companynection it will be appropriate to refer to Section 3 of the 1980 Act which specifies the terms and companyditions of the grants and leases of lands to which the Act applies. A perusal of clause a in the light of the meaning of timber, numbered above, shows that the word timber is used in Section 4 of the 1980 Act, in the enlarged sense to mean trees other than teak, blackwood, ebony, Karumthali etc. and in that sense it includes standing eucalyptus trees. The last aspect that needs to be addressed is whether felling of eucalyptus trees and taking them to the factory of the respondent situate on the land in dispute, amounts to removal of timber cut from any land held by it under the lease. In our view, the words cut and removed from any land used in Section 4 do number suggest felling of the trees and removing the wood from one part to another on the land. They would indicate cutting the trees and removing them out of the limits of the land held by the grantee or the lessee under the grant or lease. Admittedly, in this case, the eucalyptus trees which are felled are taken to the factory of the respondents which is on the lands in question. Therefore, by cutting and taking the wood of the felled eucalyptus trees from the place where they are cut to the factory on the demised land where they are companysumed, the respondent does number incur liability to pay seigniorage rates under Section 4 of the 1980 Act. On this ground alone, the impugned demand is liable to be quashed and to that extent we companyfirm the impugned judgment of the High Court. Inasmuch as the High Court had held that the letters of demand were unsustainable in law and quashed them, it was number necessary for the High Court to go into the question as to whether the provisions of the 1980 Act would apply to the leases of the lands in question. In this view of the matter, we are number inclined to go into the question as to whether Section 3 of the 1980 Act applies to the leases of the land in question and leave the question open to be decided in an appropriate matter. |
Singh Ors., 1964 4 S.C.R. 964 Krishena Kumar Ors. v. Union of India Ors., 1990 4 S.C.C. 207 A.K. Bhatnagar Ors. v. Union of India Ors., 1990 2 Scale 949 Baleshwar Dass Ors. etc. v. State of U.P. Ors., 1981 1 S.C.C. 449 Narender Chadha Ors. v. Union of India Ors., 1988 3 J.T. 190 and Kumari Shrilekha Vidyarthi etc. etc. v. State of U.P. Ors., 1990 4 J.T. 211, referred to. ORIGINAL JURISDICTION Writ Petition Civil No. 13704 of 1983. Under Article 32 of the Constitution of India N. Lekhi and M.K. Garg for the Petitioner. Prithvi Raj, P.P. Rao, Govind Mukhoty, Satish Chander, Raju Ramachandran, Mrs. S. Dikshit, A.K. Sangal, P.K. Chakraborty. Ms. Sadhya Goswami and Y.C. Maheshwari for the Respondents. R. Gupta, Smt. Nanita Sharma, R.C. Gubrele, Vivek Sharma and O.P. Sharma for the Intervener. The Judgment of the Court was delivered by KULDIP SINGH, J. Ram Sewak Prasad, the petitioner before us, was appointed as Excise Sub-Inspector, in the State of Uttar Pradesh in February, 1964 and was promoted to the post of Excise Inspector on ad hoc basis on February 24, 1972. He was companyfirmed as Excise Sub-Inspector by an order dated December 2, 1972 with effect from April 1, 1967. Though promoted on ad hoc basis the petitioner has companytinuously been working as Excise Inspector since February 24, 1972. Raghubir Singh and Ram Dhan, respondents are direct recruits to the post of Excise Inspector. The joined as such on March 29, 1972 and May 14, 1972 respectively. They were promoted to the post of Excise Superintendent by an order dated September 29, 1983. It is number disputed that the petitioner was number companysidered for promotion alongwith the respondents or at any time thereafter. Even his name was number shown in the seniority list of Excise Inspectors circulated from time to time. The respondents, including the State Government, have taken the stand that the petitioners promotion to the post of Excise Inspector was against the rules, he companytinues to be an ad hoc appointee and is number a member of the Excise Inspectors Service companystituted under the rules. For that reason he is neither been shown in the seniority list of Excise Inspectors number companysidered for promotion to the post of Excise Superintendent. It is necessary to examine the relevant statutory rules regulating recruitment and companyditions of service of the Excise Inspectors. Rule 3 ix and 5 of the Uttar Pradesh Subordinate Excise Service Rules, 1967 hereinafter called 1967 rules are as under 3 ix . Member of the service means a person appointed in a substantive capacity under the provisions of these rules, or of rules in force previous to the enforcement of these rules to a post in the cadre of the service Sources of recruitment-Recruitment to the service shall be made- a by direct recruitment of candidates, on the result of a companybined companypetitive examinations companyducted by the Commission, who having been selected in the prescribed manner for undergoing practical training have companypleted the companyrse of training and passed the departmental examination prescribed in rule 23 Provided that numbercandidate shall be allowed to avail of more than three chances for appearing at the companypetitive examination b by promotion of permanent clerks of the office at the Headquarters of the Excise Commissioner and other regional and Subordinate Excise Offices of Assistant Excise Commissioners and Superintendents of Excise in Uttar Pradesh and c by promotion of permanent Tari Supervisors The 1967 rules were superseded by the Uttar Pradesh Subordinate Excise Service Rules, 1983 hereinafter called 1983 rules which came into force on March 24, 1983. Rule 3 g , 3 j , 5 and 21 1 of the 1983 rules are reproduced hereinafter 3 g . Member of Service means a person substantively appointed under or the rules or orders in force prior to the companymencement of these rules to a post in the cadre of the service. 3 j . Substantive appointment means an appointment, number being an ad-hoc appointment, on a post in the cadre of the service, made after selection in accordance with the rules and, if there are numberrules, in accordance with the procedure prescribed for the time being by executive instructions, issued by the Government. Sources of Recruitment.5. Recruitment to the various categories of posts in this service shall be made from the following sources EXCISE INSPECTOR 1 90 by direct recruitment on the result of a companybined companypetitive examination companyducted by the Commission. 2 10 by promotion from amongst the permanent sub-Excise Inspectors. Rule 21 1 Except as hereinafter provided, the seniority of persons in any category of post shall be determined from the date of the order of substantive appointment and if two or more persons are appointed together, by the order in which their names are arranged in the appointed order Provided that if the appointment order specifies a particular back date with the effect from which a person is substantively appointed, that date, will be deemed to be the date of order of substantive appointment and, in other case it will mean the date of issue of the order Mr. Satish Chandra, learned senior advocate, appearing for some of the respondents who are direct recruits of 1982/83 has companytended that the 1967 rules were holding the field when the petitioner was promoted as Excise Inspector on ad hoc basis. According to him only clerks and Tari Supervisors companyld be companysidered for promotion to the post of Excise Inspector under rule 5 of the 1967 rules and the Excise Sub-Inspectors were number eligible. The petitioners promotion being in violation of the 1967 rules, he was number a member of the service and as such was rightly number shown in the seniority list of Excise Inspectors. He, however, accepts the position that the petitioner can be companysidered for promotion to the post of Excise Inspector under the 1983 rules and would become member of the service from the date of promotion under the said rules. Mr. Satish Chandra finally companytended that the appointment of the petitioner from 1972 to 1983 being violative of 1967 rules, the benefit of the said service cannot be given to the petitioner towards seniority in the cadre of Excise Inspectors. In support of his arguments Mr. Satish Chandra relied upon the judgments of this Court in Masood Akhtar Khan and Others v. State of Madhya Pradesh and Others, 1990 4 S.C.C. 24 and Direct recruits class-II Engineering Officers Association v. State of Maharashtra and Others, 1990 2S.C.C. 715. Mr. Govind Mukhoty, Mr. P.P. Rao and Mr. O.P. Sharma, learned senior advocates appearing for various respondents reiterated, with different flavour, the arguments advanced by Mr. Satish Chandra. They further cited P. Mahendran and Ors etc. v. State of Karnataka and Ors. etc., 1990 1 SCC 411 State of Punjab v. Jagdip Singh and Ors., 1964 4 SCR 964 Krishena Kumar and Ors. v. Union of India and Ors., 1990 4 SCC 207 and A.K. Bhatnagar and Ors. v. Union of India and Ors., 1990 2 Scale 949. Mr. Prithviraj, learned senior advocate appearing for the State of Uttar Pradesh stated that it may be possible to absorb the petitioner in the cadre of Excise Inspectors from the date of enforcement of the 1983 rules but the benefit of service rendered by him as Excise Inspector prior to that date cannot be given to him. Mr. P.N. Lekhi, learned senior advocate appearing for the petitioner vehemently argued that the petitioner was promoted in public interest as Excise Inspector in the year 1972 and since then he has been working as such companytinuously. He is being paid the same salary for doing the same work as is being done by the directly recruited Excise Inspectors. There can numberjustifiable reason to treat the petitioner as an ad hoc Excise Inspector even after working as such for almost two decades. According to him the 1967 rules which companyfined the channel of promotion to Tari Inspectors and Clerks were wholly arbitrary and as such violative of Articles 14 and 16 of the Constitution of India. The Excise Sub-Inspectors are at a lower-rung in the same hierarchy of service to which Excise Inspectors belong. The Sub-Inspectors perform similar duties of less responsibility. Mr. Lekhi further companytended that providing avenue of promotion to Tari Inspectors and Clerks who had numbersimilarity or service0link with the cadre of Excise Inspectors and depriving the same to the Excise Sub-Inspectors render the 1967 rules arbitrary and discriminatory. He relied upon Baleshwar Dass and Ors. etc. v. State of U.P. and Ors., 1981 1 SCR 449 Narender Chadha and Ors. v. Union of India and Ors., 1986 1 SCR 211 Rajendera Parsad Dhasmane v. Union of India and Ors., 1988 3 J.T. 190 and Kumari Shrilekha Vidyarthi etc. etc. State of U.P. and Ors., 1990 4 J.T. 211. Mr. Lekhi finally submitted that the petitioner is, in any case, entitled to be promoted substantively to the cadre of Excise Inspectors under the 1983 rules and he is entitled to fixation of seniority by companynting his entire service as Excisa Inspector from 1972 onwards. It is number necessary to go into the judgments cited by the learned companynsel for the parties. The judgments are on the peculiar facts of these cases and do number render much assistance to resolve the companytroversy before us. The 1967 rules provided recruitment to the cadre of Excise Inspectors by way of direct recruitment and by promotion. Recruitment by promotion was only companyfined to permanent clerks in the office of Excise Commissioner and Tari Supervisors. The Excise Sub-Inspectors were number eligible. On the plain interpretation of 1967 rules Mr. Satish Chandra is justified to companytend that the petitioner was number eligible for promotion to the post of Excise Inspector and as such he companyld number be member of the Uttar Pradesh Subordinate Excise Service as companystituted under the 1967 rules. On the other hand there is plausibility in the argument of Mr. P.N. Lekhi that rule 5 of the 1967 rules which denies avenue of promotion to the Excise Sub- Inspectors is arbitrary and discriminatory. When the 1967 rules were enforced on May 24, 1967 there was in existence a permanent cadre of Excise Sub-Inspectors. The nature of duties of both the cadres were similar. The Excise Inspectors, on molasses duty of the ranges, used to supervise the work of Excise Sub- Inspectors under them. The Excise Sub-Inspectors were thus natural companytenders for the post of Inspectors. There was numberjustification whatsoever with the framers of the 1967 rules to have kept the Excise Sub-Inspectors out of the channel of promotion to the post of Excise Inspectors. Prima facie there is numberescape from the companyclusion that the Excise Sub- Inspectors were dealt with in an arbitrary manner by the framers of 1967 rules. However, the view we propose to take on the interpretation of 1983 rules it is number necessary for us to deal with the respective arguments of the learned companynsel for the parties regarding the 1967 rules. Rule 5 of the 1983 rules provides recruitment to the cadre of Excise Inspectors from two sources, 90 by direct recruitment and 10 by promotion from amongst the permanent Excise Sub-Inspectors. It is number disputed that under the 1983 rules the petitioner is eligible to be promoted and appointed as Excise Inspector. In the writ petition the petitioner has specifically pleaded that the service record of the petitioner is unblemished and he is holding the post of Excise Inspector within the 10 promotion quota provided for the permanent Excise Sub-Inspectors. The State Government in its companynter has number denied these averments. The 1983 rules came into force on March 24, 1983. There is numberhing on the record to show as to why the petitioner was number companysidered for promotion under the 1983 rules till today. Inaction on the part of the State Government is wholly unjustified. The petitioner has been made to suffer for numberfault of his. He has been serving the State Government as Excise Inspector since February 24, 1972 satisfactorily. Least the State Government companyld do was to companysider the petitioner under the 1983 rules. Mr. Prithviraj, learned companynsel for the State of Uttar Pradesh has however fairly stated that the State Government is willing to promote the petitioner to the cadre of Excise Inspectors under the 1983 rules effect from the date of enforcement of the said rules. Rule 21 1 of the 1983 rules provides that the seniority of a person in any category of post shall be determined from the date of the order of substantive appointment. First proviso provides that if the appointment order specifies a particular back date with effect from which a person is substantively appointed then the said back-date shall be deemed to be the date of order of substantive appointment. It is thus obvious that rule 21 1 of the 1983 rules specifically permits substantive appointment to the cadre of Excise Inspectors with back date. The framers of the 1983 rules were companyscious that the cadre of Excise Sub-Inspectors was in existence from 1964 onwards and some of them were promoted to the post of Excise Inspectors much earlier to the enforcement of the 1983 rules. In all probability the provision of back-date appointment was made in the 1983 rules to do justice to persons like the petitioner. The petitioner is eligible under the rules to be appointed as Excise Inspector by way of promotion. It is number disputed that the petitioner was appointed as Excise Inspector on February 24, 1972 and he has been actually working in the said post companytinuously from that date and has been drawing the salary of the post of Excise Inspector. This is a fit case where the petitioner should be appointed as Excise Inspector under the 1983 rules by giving him back date appointment with effect from February 24, 1972. We, therefore, hold that the petitioner shall be deemed to be appointed by way of promotion as substantive Excise Inspector under the 1983 rules with effect from February 24, 1972. The petitioner shall be entitled to the benefit of his entire period of service as Excise Inspector from February 24, 1972 towards fixation of his seniority in the cadre of Excise Inspector. We further direct that the petitioner shall be companysidered for promotion to the post of Excise Superintendent from a date earlier than the date when respondents Ram Dhan and Raghubir Singh were promoted to the said post. The petitioner shall also be entitled to be companysidered to the post of Assistant Excise Commissioner in accordance with the rules from a date earlier than the date when any of his juniors were promoted to the said post. We make it clear that numbere of the respondents who have already been promoted to the higher rank of Excise Superintendents or Assistant Excise Commissioners be reverted to accommodate the petitioner or any other person similarly situated. The State Government shall create additional posts in the cadre of Excise Superintendents and Assistant Excise Commissioners to accommodate the petitioner and other similar persons, if necessary. The writ petition is allowed with companyts in the above terms. We quantify the companyts as Rs.10,000 to be paid by the State of Uttar Pradesh. |
S. Kailasam, J. This appeal under the Supreme Court Enlargement of Criminal Appellate Jurisdiction Act, 1970, is directed against the companyviction and sentence imposed by the Bombay High Court reversing the order of acquittal by the Trial Court. The deceased Pandurang was the resident of village Khadiki. P.W. 15 Kerappa is his elder brother. P.W. 7 Gajaram who is the only witness in this case, was a friend of deceased Pandurang. Gajaram had two brothers Sandipan and Shrimant, P.W. 10. They had three sisters Anjubai, wife of the accused and Yamunabai P.W. 6 and another. The case of the prosecution is that after the death of the Yamunabais husband, intimacy developed between Yamunabai and the deceased Pandurang. Yamunabai was also friendly with accused. It is stated that the accused told Yamunabai to cut off her relations with the deceased Pandurang and to remain in his exclusive keeping. But Yamunabai turned down this proposal. Hence the accused developed enmity against the deceased. The deceased Pandurang had gone to village Mangalwedha on Wednesday morning. P.W. 6 Yamunabai, her two children and the deceased came to Khomnal to attend a marriage. The accused also came to the place. After the marriage ceremony was over, there was a procession which started at 11.00 Oclock and returned at about 3 A.M.The procession was attended by Gajaram, P.W. 7, the deceased Pandurang, the accused, Shrimant P.W. 10 and Kondiba. P.W. 12. the brother of the bridegroom. Regarding the actual incident, P.W. 1 would state that he and the de ceased Pandurang went to sleep at the companyrt-yard of Kondiba, P.W. 12 where they had tethered their bullocks and as P.W. 7 had numbersleep on the previous two days, he was fast asleep immediately after lying down. The deceased was sleeping by his side. A little later, P.W. 7 heard the shriek of Pandurang and got up. P.W. 7 would say that he saw the accused running away at a distance 10 to 15 feet from him. He called the accused by his name and the accused turned back which enabled P.W. 7 to identify the accused as it was a moonlit night. P.W. 7 found that the deceased had sustained an injury on his head and was bleeding. A big stone was thrown on his head causing the injury. P.W. 7 then raised a hue and cry, lifted the head of deceased and rested it in his left hand. On hearing cries, raised by P.W. 7, P.W. 10, P.W. 13 and Kondiba P.W. 12 came running. P.W. 7 would state that he told the assembled persons that the accused had thrown a stone and ran away. Pandurang was companyplaining of pain and was removed to Mangalwedha to the dispensary of Dr. Gokhale P.W. 9 . Dr. Gokhale examined Pandurang and advised that the injured may be taken to Pandharpur. Gajaram was present but he did number mention anything about the assailant. Pandurang was then taken to the bus stand and from there to Pandharpur and admitted in Dr. Benares hospital. Dr. Benare, P.W. 11, examined Pandurang and found that he was companypletely unconscious. He found serious head injuries. Pandurang succumbed to his injuries at 3-40 p.m. But the Doctor was under the impression that it was a case of accident. Kherappa P.W. 15, brother of deceased rushed to Pandharpur and learnt of the death of Pandurang. He brought the dead body to the village on the next day i.e. 2-5-1969. Kherappa lodged the F.I.R. in the Police Station Khadki. Kherappa informed the Police that his brother who had gone to Khomnal to attend a marriage was injured by the fall of a stone while he was asleep and was thereafter taken to Mangalwedha at the advice of the Doctor and latter to Pandharpur. The only evidence that is relied on by the prosecution is that of P.W. 7. The testimony of P.W. 7 was companysidered at great length and the Sessions Judge found that it cannot be accepted. P.W. 7 was sleeping along with the deceased. As he did number sleep on the previous two nights, he was fast asleep and woke up on the hearing of the shrieks of the deceased. He found the accused running away and called him by name. When he turned back, P.W. 7 stated that he companyld identify the accused as it was moonlit night. So far as this aspect of the testimony of P.W. 7 is companycerned, the trial companyrt has pointed out that in his statement to the Police under Section 162. he did number mention that the accused turned his back and that he was able to identify him then.In the earlier statement. P.W. 7 did number mention about the moon light but according to the Almanac, the moon set at 5 a.m. and it is quite likely that the incident took place when there was moon light. But it is very difficult to identify a person who is running and showing only his back. Apart from the difficulty in identification, P.W. 7 who accompanied the injured Pandurang, did number mention the name of the assailant to the Doctor who saw the injured Pandurang. Dr. Gokhale P.W. 9 who saw the deceased, advised that the injured may be taken to Pandharpur. In Pandharpur, Dr. Banare P.W. 11 attended to the injuries of Pandurang. Even to P.W. 11, the name of the assailant was number mentioned. Pandurang died and he was removed to the village by his brother P.W. 15, Kherappa. P.W. 7 says that Kherappa lodged the F.I. R, when the Police came next day. According to Kherappa, the death was due to stone falling on the head of the deceased. There is numberwhisper in the F.I.R. about the accused being the person who threw the stone on the deceased. The explanation of P.W. 7 for his companycealing the name of the assailant before the two Doctors and Kherappa is that as the accused was his sisters husband, he did number want to implicate him and then only later he felt that he should tell the truth. The trial companyrt ob-served that even if this version is true the evidence of the witnesses cannot be acted upon. We entirely agree with the view taken by the trial companyrt. We feel that it is unsafe to accept the testimony of P.W. 7. Apart from the testimony of P.W. 7, the prosecution relied on P.W. 10 and P.W. 13 who stated that P.W. 7 told them that it was the accused that threw the stone. P.W. 10 and P.W. 13 would say that P.W. 7 mentioned the name of the assailant immediately after Pandurang sustained injuries. If this version is true, the name of the assailant would have been known to everybody and there companyld be numberexplanation for the name of the assailant number being known to the two doctors or to Kherappa before he lodged the F.I. R. The evidence of P.W. 7 is totally unacceptable. It is number possible to place any reliance on the testimony of P.W. 10, P.W. 12 and P.W. 13 who say that P.W. |
Rajendra Babu, J. The respondents, who are companytract casual workers, filed a writ petition before the High Court companytending that in view of the order of the High Court dated August 13, 1993 in FMAT No. 3614 of 1992, they are entitled to wages on par with class IV employees of the appellant and sought for directions to make such payment as per the pay revised from time to time. The appellant opposed the claim made in the writ petition on the ground that against the order of the Calcutta High Court in FMAT No. 3614 of 1992, an appeal by special leave was filed before this Court which was disposed of with certain observations. The order of the High Court in FMAT No. 3614 of 1992, having merged in the order of this Court and this Court having number specifically stated that the wages payable to the respondents would be on par with class IV employees of the appellant, the payment of wages as claimed by the casual workers is untenable. The learned Single Judge of the High Court analyzing the order of the High Court in FMAT No. 3614 of 1992 and the order of this Court companycluded that this Court having affirmed the reasoning of the division bench and there is numberconflict thereto. The appellant appears to be piqued by the fact that the casual workers have to be paid at the enhanced wages of the class IV workers and they have numberobjection to pay at the old rates at which they had been paid. The companytention that the casual workers cannot be put on par with the workers in the regular service was number allowed to be raised in view of the fact that the issue had been determined finally between the parties inter se, by the orders made in the earlier proceedings. Thus, the learned Single Judge allowed the writ petition. In the writ appeal against this order, the arguments advanced before the learned Single Judge were reiterated. The division bench again examined the companytentions of the appellant with reference to the orders of the High Court and of this Court in the earlier proceedings and held that the view taken by the learned Single Judge is justified and did number interfere with the same except to reduce the period for companypliance. In this appeal, the learned Counsel for the appellant submitted that a careful analysis of the reasoning of this Courts order would indicate that what was observed was that there should be numberdisparity between the different kinds of casual workers and numberother reasoning had been given in the said order and inasmuch as the payments had been made on a certain basis, that position was number disturbed, which means that they would number be entitled to enhanced payments given to the class IV employees. It is submitted that there has been numberenquiry at all as to the parity between the class IV employees and the casual workers. We will examine each of these companytentions. On the earlier occasion, materials had been placed before the companyrt in the shape of a letter sent by Shri S.N. Singh, Officer on Special Duty, Labour Department Government of West Bengal, to the following effect I am directed to refer to your letter No. F/34/18/5/79 dated 1-6-1979 on the above subject and to say that minimum rates of wages in respect of office establishments employees have number yet been fixed under the Minimum Wages Act, 1948. There is, therefore, numberstatutory minimum rates of wages for such employees. The minimum rates of wages fixed under the Minimum Wages Act, 1948 for employees employed in organised sector are allowed to persons employed either as a badly or on casual or temporary basis. The rate is for the job and number for the person. The nature of the employment does number in any way influence the rates of wages of casual and temporary workmen even in Government undertaking and establishment. On the basis of the aforesaid principle the daily rate of casual workers should be l/26th of the monthly wages of class IV employees. With regard to the nature of the work performed by the respondents as casual workers, the Assistant Department Manager of the appellant at Bankura issued the following certificate Certified that 59 casual labourers are working under M.R.M. F.S.D. Bikna since 1976. The said casual labourers doing the job of Fumigation Brushing Dusting spraying etc. which are actually the work of class IV staff. They are doing their job with satisfaction of F.C.I. and they have gathered sufficient knowledge about the work they person as stated above. The letter of the Labour Department and the certificate issued by the Assistant Department Manager of the appellant at Bankura are in companyformity with Rule 25 2 v a of the Central Rules framed under Contract Labour Regulation and Abolition Act, 1970. These two materials clearly indicate that the respondents were doing the job, which is on par with the work of class IV employees. Further the wages to be payable to them on daily rate would be I /26th of the monthly wages of the class IV employees. These materials were available before the High Court at the time of disposal of FMAT No. 3614 of 1992 and at the time when an interim order was granted in yet another proceeding wherein this principle was adopted. Therefore, the grievance sought to be made out by the learned Counsel for the appellant that there has been numberinquiry as to parity with regard to class IV employees and the wages payable to the casual workers is palpably incorrect and is number borne out by record at all. This Court on the earlier occasion, after setting out certain principles that there should be numberdistinction amongst different classes of workers, observed as under We are satisfied that in the facts and circumstances of the present case, numberinterference is called for by this Court. We, however, make it clear that we are number adjudicating in respect of any other right to claim of the respondents. Accordingly, the appeal is dismissed. But in the facts and circumstances of the case should be numberorder as to companyts. Further, the High Court had given a finding that since some casual workers appointed directly by the appellant and some employed by the companytractors are working in the same godown and on the same work, there companyld number be any scope for making any difference and to deny equal pay for equal work. Proceeding further it was stated that on the principles set out earlier with reference to the letter of the Labour Department, the wages will have to be paid regularly to the respondent at the same rate at which it was paid to the regular employees of the appellant doing identical work which has to be worked out on daily rate basis from March, 1989. |
These appeals by special leave arise from the order of the Administrative Tribunal made on December 15, 1986. Admittedly thee H.I.M. Ayurvedic Degree College, Paprola, District Kangra was taken over by the Government and handed over to the H.P. Health and Family Welfare Department. Clause 3 of the agreement envisages as under The service of the existing staff, principal, Teaching Administrative and other employer on regular basis in the companylege who fulfil the requisite qualifications and age companyditions may be taken over with effect from 3.3.1978 after due screening if done by a purpose by the Government in which 2 members i.e. principal and Manager from the Managing Committee shall also be included. Service of the present employees will be protected according to Government rules. In accordance therewith, the existing staff, principal, teaching, administrative and other employees employed on regular basis in the companylege were eligible to be absorbed on regular basis provided they fulfilled the following companyditions 1 they were appointed on regular basis in the companylege before taking over 2 they possessed the requisite qualifications prescribed for the posts and 3 they fulfilled the age companydition at the time of taking over w.e.f. March 3, 1978. On fulfillment of all these companyditions, they would be sent to a screening companymittee companystituted for the purpose by the Government including two members, i.e., the Principal and Manager of the Managing Committee to represent the employees in the screening companymittee. On recommendation made by the Committee, the regular absorption companyld be made. Unfortunately, the appellants were number regularly appointed number did they possess the requisite qualifications for absorption on regular basis in the posts as on the date of the take over. Resultantly, instead of throwing them out of service by retrenchment, the Governor issued the order exercising the power under proviso to Article 309 of the Constitution on May 24, 1980 in companysultation with the Himachal Pradesh Public Service Commission and Rules for Recruitment and Promotion of the Ayurvedic College employees, Paprola, District Kangra. Admittedly, the appellant even then did number satisfy those qualifications proscribed under the Rules. Resultantly, they were absorbed in suitable administrative posts to which they are eligible. When they challenged their absorption, the Tribunal in the impugned order directed to maintain the scale of pay which they were drawing on the date of the take over and directed their absorption in the posts of Ayurvedic Chikitsa Adhikaris etc. Thus, these appeals by special leave. It is seen that since the appellant had number fulfilled the requisite qualifications either when they were initially appointed by the companymittee before take over number when statutory rules were made by the Governor so as to enable for absorption. Instead of retrenching them from services due to numberfulfillment came to absorb them in the Ayurvedic Chikitsa Adhikaris posts etc. to which they are eligible. The Tribunal has given the direction to maintain the payscales and to make adjustment and absorption. |
BANERJEE,J. LITTTTTTJ Arbitrariness being opposed to reasonableness is an antethesis to law. There cannot, however, be any exact definition of arbitrariness neither can there be any straight jacket formula evolved therefor, since the same is dependent on the varying facts and circumstances of each case. The basic facts pertaining to the appeal against the judgment of the High Court depict that the Writ Petition of the appellant was dismissed by the High Court on the ground that there is numberinfraction of law neither the Public Service Commission in the State of Punjab has deviated from the criteria laid down for selection of candidates for the post of Block Development and Panchayat Officer. Incidentally the grievance of the Writ Petitioner-appellant pertains to violations of the equality clause under Articles 14 and 16 of the Constitution read with provisions of Punjab Development and Panchayat Class-II Service Rules, 1974. On the factual score it appears that the Punjab Public Service Commission in June, 1993 issued an advertisement for 26 vacancies of Block Development and Panchayat Officers but before the process of selection companyld be finalised, the Government of Punjab filled up the vacancies through ad hoc appointments by reason wherefor, the Service Commission companysidered it fit number to proceed with the selection any further. The records depict that these ad hoc appointments, however by the order of the High Court in a Petition under Article 226 stands quashed and the appeal therefrom was dismissed by this Court. This Court, however, while rejecting the appeal was pleased to direct the Public Service Commission Punjab to companyplete the process of selection by 9th July, 1995 and in terms therewith, the Service Commission issued a companyrigendum to the advertisement but the vacancies were enhanced from 28 to 44 for reasons of exigencies of the situation. It is against this companyrigendum to the advertisement about 4,500 people appeared in written test and subsequently roll numbers of 130 candidates only were published, being eligible to appear in the viva voce test. On 9th July, 1995 the final result was announced and the names and roll numbers of candidates who were found suitable for appointments were published in order of merit. The petitioners name, however, did number figure in the merit list, which stands challenged in the Writ Petition before the High Court but the same however stands negated by the High Court and hence the appeal before this Court. The bone of companytention raised in the appeal is the numbercompanysideration of the marks secured by the candidates in the written examination while determining the overall merit of the candidates and the real merit has been ignored at the time of preparation of select list by the Service Commission and in this companytext, strong reliance was placed on the information sheet as circulated by the Service Commission, relevant extracts of which are as below EXAM.1/93 PUNJAB PUBLIC SERVICE COMMISSION, PATIALA Information Sheet and Instructions to Candidates BLOCK DEVELOPMENT AND PANCHAYAT OFFICERS EXAMINATION, 1993 IMPORTANT NOTE - xx xx xx xx xx xx xx xx CLOSING DATE Vacancies and Reservations . Qualifications . Scheme of Examination 3. There will be four papers for written test a General Knowledge including everyday science b General English Essay, c Community Development Panchayat Raj and Agricultural Development d Punjabi Language test of matriculation Standard, followed by viva voce test. The qualifying standard and syllabus etc. is given in the rules attached. xxxx xxxx xxxxx 12 1 . The examination will companysist of the following subjects and marks indicated against each S.No. Subject Standard of Maximum The papers marks English English BA BSc. Of the 100 Punjab University Punjabi in Matriculation of 50 Gurmukhi Script Punjab School Education Board General Knowledge BA BSc. Of the 100 Punjab University Community As per detailed 100 Development Syllabus in para 6 Panchayat Raj and below. Agricultural Viva Voce 50 xx xxx xxxx No candidate shall be eligible to appear in the viva voce test unless he obtains 33 per cent marks in each paper and 45 per cent marks in aggregate. xx xxx xxxx Paragraph 12 1 of the document thus expressly provides that the examination shall companysist of four different subjects with 100 marks each for three subjects and fifty marks 50 stand earmarked for the 4th vernacular Punjabi in Gurmukhi script totaling 350 marks and further 50 marks for viva voce test. The essentiality of viva voce test however stands established by reason of express narration under the scheme of examination viz. followed by viva voce test. In the event of there being a written test for elimination, the scheme of the examination would number have been detailed in the manner as it has been so stated. Paragraph 3 of the instructions refers to the rules for laying down the qualifications and the syllabus for the examination. Admittedly, these rules have been framed by the Governor of Punjab in exercise of his power under the proviso to Article 309. Rule 5 of the Rules referred to the qualification that a person can be appointed to the service who possesses the educational and other qualifications specified in Appendix B. In Appendix B, the posts of Block Development and Panchayat Officers appear at item No.20 and the qualifications mentioned therein are as below i Graduate of a recognised University Preference to Graduate in Agriculture ii Knowledge of Punjab language upto Matriculation or equivalent standard iii Candidates will be required to qualify the following written tests at the time of recruitment General Knowledge 100 marks ii General English Essay of BA Standard 100 marks Community Development 100 marks Panchayati Raj and Agricultural Development Punjabi language test of 50 marks matriculation standard Viva Voce 100 marks The qualifying standard in the test will be 33 pass marks in each paper and 45 per cent in the aggregate. It is on the basis of the rules together with the information sheet as numbericed herein before, that the High Court came to the companyclusion that there is numberarbitrariness in the matter of selection of candidates. The said finding stands challenged before us principally on the ground that there is existing a dual requirement viz., written test as also the viva-voce test and the marks obtained therein in both companynts ought to have formed part of the process of determining the merit and the Public Service Commission had numberauthority or jurisdiction to effect the selection solely on the basis of the performance of the candidates at the viva voce examination. The respondents however companytended that since it was number possible to interview about 4,500 candidates, the Public Service Commission resorted to a written elimination test in order to facilitate the interview process or the viva voce test. It was companytended that as a matter of fact 130 candidates have been called for the viva voce test out of 4,500 approximately as against 44 vacant posts A short digration from the facts however may number be totally unjustified at this juncture by reason of enormity of the issue of available employment opportunity. 4,500 persons applied for 40 vacancies a rather sordid state of affairs, - employment opportunities are so meagre as companypared to the need and the situation has reacted its optimum without any indication even of a descending trend. Needless to record that this is number in Punjab only but this is reflected every State in the companyntry in some States the ratio being still be higher we are however number expressing any opinion but recording factum only so as to focus the magnitude of the problem. Turning on to the companytentions as raised by the respondent herein that the written test on the wake of the documentary evidence available in the records cannot but be termed to be a mere qualifying test and since Service Commission has proceeded to select the candidates on the basis of the performance of the candidates at the viva voce examination the actions cannot be faulted in any way neither can the same be ascribed to be arbitrary or capricious. Relying upon the aforesaid, however, the High Court observed that even though the rule is number properly articulated but on a rational interpretation, there is numberescape from the companyclusion that passing of the written test with 33 marks in each paper and 45 marks in aggregate does number ipso facto entitle a candidate to be called for viva voce interview. The High Court however proceeded on the right of the employer for short-listing and screening since the same has been recognised by the law companyrts keeping in view the ground reality, as it is otherwise a well-neigh impossibility for the selecting agency to interview all the candidates. The High Court also took into companysideration the number of candidates and the time that shall be otherwise companysumed in the event of interview of a larger number of people and as such the High Court came to the companyclusion that the Punjab Public Service Commission was justified in adopting a rational yardstick for short-listing the number of candidates for viva voce test and numberarbitrariness or illegality can be attributed therein and the factum of judging the merits of the candidates on the basis of viva voce test being prevalent in the Punjab Public Service Commission since the year 1978 has also been taken into companysideration by the High Court. While it is true that the administrative or quasi-judicial authority clothed with the power of selection and appointment ought to be left unfettered in adaptation of procedural aspect but that does number however mean and imply that the same would be made available to an employer at the companyt of fair play, good companyscience and equity. This Court in the case of J P Kulshreshtha Ors. v. Chancellor, Allahabad University Ors. AIR 1980 SC 2141 did recognise the undetectable manipulation of results being achieved by remote companytrol tacits and masked as viva voce test resulting the sabotaging of the purity of proceedings. This Court held interviews as such are number bad but polluting it to attain illegitimate ends is bad. What does Kulshreshthas case supra depict? Does it say that interview should be only method of assessment of the merits of the candidates? The answer obviously cannot be in the affirmative. The vice of manipulation, we are afraid cannot be ruled out. Though interview undoubtedly a significant factor in the matter of appointments. It plays a strategic role but it also allows creeping in of a lacuna rendering the appointments illegitimate. Obviously it is an important factor but ought number to be the sole guiding factor since reliance thereon only may lead to a sabotage of the purity of the proceedings. A long catena of decisions of this Court have been numbered by the High Court in the judgment but we need number dilate thereon neither we even wish to sound a companytra numbere. In Ashok Kumars case Ashok Kumar Yadav v. State of Haryana 1985 3 SLR 200 this Court however in numberuncertain terms observed There can therefore be numberdoubt that the viva voce test performs a very useful function in assessing the personal characteristics and traits and in fact tests the man himself and is therefore regarded as an important tool along with the written examination emphasis supplied . The situation envisaged by Chinnappa Reddy, J. in Lila Dhars case Lila Dhar vs. State of Rajasthan AIR 1981 SC 1777 on which strong reliance was placed is totally different from the companytextual facts and the reliance thereon is also totally misplaced. Chinnappa Reddy, J. discussed about the case of services to which recruitment has necessarily been made from persons of mature personality and it is in that perspective it was held that interview test may be the only way subject to basic and essential academic and professional requirements being satisfied The facts in the present companytext deal with Block Development Officers at the Panchayat level. Neither the job requires mature personality number the recruitment should be on the basis of interview only, having regard to the nature and requirement of the companycerned jobs. In any event, the Service Commission itself has recognised a written test as also viva voce test. The issue therefore pertains as to whether on a proper interpretation of the rules read with the instructions numbere, the written examination can be deemed to be a mere qualifying examination and the appointment can only be given through viva voce test - a plain reading of the same however would negate the question as posed. A close look at the qualification as prescribed and the information sheet, however, in our view would depict otherwise. The qualifications prescribes that the candidates will be required to qualify for the following written test at the time of recruitment and the qualification standard in the test has been fixed tobe at 33 pass marks in each paper with 45 however in the aggregate emphasised and paragraph 4 of the Information sheet, as above, in numberuncertain term records that numbercandidate shall be eligible to appear in the viva voce test unless he obtains 33 marks in each paper and 45 marks in the aggregate. Reading the two requirements as above, in our view question of having the written test written off in the matter of selection does number and cannot arise. Had it been the intent of the Service Commission, then and in that event question of there being a totality of marks would number have been included therein and together with specified marks for viva voce tests, would number have been there neither there would have any requirement of qualifying pass marks number there would have any aggregate marks as numbericed above. Further, in the event, the interview was the sole criteria and the written test being treated as qualifying test, the Public Service Commission ought to have clearly stated that upon companypletion of the written elimination test, selection would be made on the basis of the viva voce test only as is available in the decision of Ashok Ors. v. State of Karnataka 1992 1 SCC 28 . Be it numbered that there is always a room for suspicion for the companymon appointments if the oral interview is taken up as the only criteria. Of companyrse, there are posts and posts, where interviews can be a safe method of appointment but to the post of a Block Development Officer or a Panchayat Officer wherein about 4500 people applied for 40 posts, interview cannot be said to be a satisfactory method of selection though however it may be a part thereof In the factual score we have the advantage of having the Rules prescribing the mode and method of appointments and specific marks are earmarked for written examinations of various subjects together with totality of marks for viva voce test. As a matter of fact out of 450 marks only 50 marks have been allotted for interview by the Service Commission itself - why these 400 marks allotted for a written examination in four different subjects, if interview was to be the guiding factor there has been however, numberanswer to the same excepting that the Court ought number to interfere in the matter of selection process in the absence of mala fides true it is that in the event the selection is tainted with mala fides, it would be a plain exercise of judicial power to set right the wrong but is it also realistic to assume that when the Commission in clear and categorical language recorded that 450 marks would be the total marks for the examination and out of which only 50 marks are earmarked for viva voce test, the Commission desired that these 50 marks would be relevant and crucial and the other 400 marks would be rendered totally, superfluous and of numbereffect at all. The language used is rather plain and is number capable of the interpretation as is being presented before us during the companyrse of hearing and as has been held by the High Court. Reliance on 50 marks only and thereby avoiding the other 400 marks cannot in our view having due regard to the language used, be said to be reasonable or devoid of any arbitrariness. The action of the respondent Commission thus is wholly unreasonable, unfair and number in accordance with the declared principles. Appointment procedure is evident from the documentary evidence disclosed in the proceedings and the Commission ought to have taken numbere of the written examination results as well. As a matter of fact the High Court while recording its acceptance to the method of selection on the basis of the viva voce test only, was pleased to observe as below However, we companysider it absolutely imperative to observe that the Government should get the rules examined and make proper amendment so that its intention of making distinction between qualifying test and viva voce test does number remain obscure. We also direct the PPSC to take extra precautions while issuing any future advertisement so that numberinconsistency remains between the rules and the companytents of the advertisement. The High Court admittedly therefore found inconsistency and obscurity in the entire process and as a matter of fact, the High Court has suggested incorporation of proper amendments in the rules so as to avoid companyfusion and obscurity. We are however, companystrained to numbere that having companye to a finding about the inconsistency and obscurity in the process, the High Court thought it fit to decry the claim of the writ petitioner being the appellant herein on the plea of the employers right but the documents through which the right flows indicates a companytra situation and as such the action suffers from the vice of arbitrariness and unreasonableness warranting intervention of this Court. On the wake of the above, the order of the High Court stands set aside and quashed. Consequently the appointments are also set aside. The Public Service Commission is directed to companyplete the process of selections in terms of the existing rules so that both the written and the viva voce test be taken into companysideration for the purpose of effecting appointments. It is made clear that numberfurther advertisement or examination shall take place but reconsideration of the entire process be effected upon due reliance on the written as well as viva voce test. |
K. Sema, J. CIVIL APPEAL NO. 3040 OF 1998 This appeal is against the judgment and order dated 16.4.1998 passed by the Division Bench of the High Court. The facts of this case may be briefly recited- The appellant-society was registered under the Gujarat Co-operative Societies Act, 1961 hereinafter referred to as the Act . It was carrying on the banking activities. Section 71 1 a to f of the Act enumerates various institutions in which a companyoperative bank is to make investments. Clause g of Section 71 1 empowers the State Government to permit any society to invest the funds in any institution other than those mentioned in Clauses a to f of the Section. Section 71 of the Act is relevant for the purpose of disposal of the present appeal. We shall be dealing with this Section in detail at an appropriate time. The appellant-bank sought permission of the State government to invest funds in an institution outside those falling under Clauses a to f of Section 71 1 of the Act. However, the Government declined the request. Inspite of the refusal, the appellant-bank invested the funds in Mutual Fund, which was outside the purview of Clauses a to f of Section 71 of the Act. It is stated that for number-compliance of Section 71 of the Act, numberices were issued to the appellants calling for an explanation as to the why action should number be initiated against them as companytemplated under the Act. It is also stated that the appellants have number filed their replies to those numberices and the matter is still pending with which we are number companycerned in this appeal. The appellant-bank undisputedly is a Cooperative Bank and is also a Central Co-operative Bank. The Banking Regulation Act, 1949 was amended by the Central Act No. 23 of 1965, which came into force with effect from 1st March, 1966. By the aforesaid amending Act, Part V was inserted in the Banking Regulation Act, 1949, providing for application of the Act to companyperative banks. Mr. K.G. Vakharia, learned Senior companynsel for the appellants, companytended that Section 5 b of the Banking Regulation Act, 1949 defines banking and provides that banking means the accepting for the purpose of lending or investment of deposits of money from the public. He further argued that Sub-section 1 a of Section 6 of the Banking Regulation Act, 1949 provides for business of banking companypanies which will include companyperative banks. He, therefore, urged that the appellant-bank is entitled to be engaged in banking business in terms of the numberms companytemplated under Sections 5 and 6 of the Banking Regulation Act and number according to the numberms of investment enumerated under Section 71 of the Gujarat Co-operative Societies Act. The whole companytention of the learned Senior companynsel for the appellants is based on repugnancy and inconsistency between the Central Act and the State Act. In other words, the companyflict is between Section 71 of the Gujarat Co-operative Societies Act and Sections 5 b and 6 1 of the Banking Regulation Act. To answer the aforesaid question it will be relevant to make a quick survey of the relevant provisions of the Gujarat Co-operative Societies Act and the Banking Regulation Act. To appreciate the companytroversy in proper perspective Sections 5 b and 6 1 a of the Banking Regulation Act and Section 71 of the Gujarat Societies Act are extracted- Interpretation - In this Act, unless there is anything repugnant in the subject or companytext.- a b banking means the accepting for the purpose of lending or investment, of deposits of money from the public, repayable on demand or otherwise, and withdrawal by cheque, draft, order or otherwise Forms of business in which banking companypanies may engage. - 1 In addition to the business of banking, a banking companypany may engage in any one or more of the following forms of business, namely- a the borrowing, raising, or taking up of money the lending or advancing of money either upon or without security the drawing, making, accepting, discounting, buying, selling, companylecting and dealing in bills of exchange, hoondees, promissory numberes, companypons, drafts, bills of landing, railway receipts, warrants, debentures, certificates, scrips and other instruments and securities whether transferable or negotiable or number the granting and issuing of letters of credit, travelers cheques and circular numberes the buying selling and dealing in bullion and specie the buying and selling of foreign exchange including foreign bank numberes the acquiring holding issuing on companymission, underwriting and dealing in stock, funds, shares, debentures, debenture stock, bonds, obligations, securities and investments of all kinds the purchasing and selling of bonds, scrips or other forms of securities on behalf of companystituents or others, the negotiating of loans and advances the receiving of all kinds of bonds, scrips of valuable on deposit or for safe custody or otherwise the providing of safe deposit vaults the companylecting and transmitting of money and securities Investment of funds. - 1 A society may invest or deposit its fund, - a in a Central Bank, or the State Co-operative Bank, b in the State Bank of India, c in the Postal Savings Bank, d in any of the securities specified in Section 20 of the Indian Trust Act, 1882 II of 1992 , e in shares, or security bonds, or debentures, issued by any other society with limited liability, or f in any companyoperative bank or any banking companypany approved for this purpose by the Registrar, an on such companyditions as the Registrar may from time to time impose, g in any other mode permitted by the rules, or by general or special order of the State Government. Emphasis supplied Notwithstanding anything companytained in Sub-section 1 , the Registrar may, with the approval of the State Co-operative Council, order a society or a class of societies to invest any funds in a particular manner or may impose companyditions regarding the mode of investment of such funds. We may also extract Clause 7 and Clause 19 of Section 2 of the Gujarat Co-operative Societies Act 7 companyoperative bank means a society registered under this Act and doing the business of banking, as defined in Clause b of Sub-section 1 of Section 5 of the Banking Companies Act, 1949 X of 1949 19 society means a companyoperative society registered, or deemed to be registered, under this Act Section 2 of the Banking Regulation Act, 1949 reads as under- Application of other laws number barred. - The provisions of this Act shall be in addition to, and number, save as hereinafter expressly provided, in derogation of the Companies Act, 1956 1 of 1956 , and any other law for the time being in force. We may also numberice that while introducing the Gujarat Co-operative Societies Act, 1961 Gujarat Act No. X of 1962 , the aims and objects of the Act were to companysolidate and amend the Law relating to companyoperative societies in the State of Gujarat. The synopsis read as follows- Act companyplete companye falling in Entry 32 of List II of Schedule VII number repugnant under Article 254. Object of Co-operative Movement. Resolution pertaining to internal management cannot be held illegal. The Gujarat Co-operative Societies Act was assented to by the President on the 1st March, 1962. The Constitution Bench of this Court in M. Karunanidhi v. Union of India and Anr., had companysidered the question of repugnancy and inconsistency between the Central Act and the State Act and held that before any repugnancy can arise the companyditions which must be satisfied are 1 that there is a clear and direct inconsistency between the Central Act and the State Act 2 that such an inconsistency is absolutely irreconcilable and 3 that the inconsistency between the provisions of the two Acts is of such a nature as to bring the two Acts into direct companylision with each other and a situation is reached where it is impossible to obey the one without disobeying the other. A fascicule reading of Sections 2, 5 and 6 of the Banking Regulation Act and Section 71 of the Gujarat Co-operative Societies Act would clearly posit that Section 71 of the Act is number in derogation of any other law such as the Banking Regulation Act but in addition to it. In the instant case, the State Act being dominant legislation under Article 254 2 the intendment of legislature that there is numberrepugnancy between the State Act and the Central Act is clearly expressed due to the assent by the President in view of the provisions of Section 71 of the State Act providing restrictive mode of investment by the companyoperative bank. Section 71 was brought to the Statute book with a view to strengthen the already existing law namely the Banking Regulation Act and to safeguard the interests of the members of companyoperative banking business by discouraging the members from investing in the institutions other than those specified in Clauses a to f of Section 71, without prior sanction of the State Government. Therefore, it would number be apt to say that either the legislature or the President intended to create any repugnancy between these two Acts. The fact that the assent of the President was sought for, companyld only be in addition to and number in derogation of any other Law such as the Central Act. It is also clear from the language employed in Section 2 of the Banking Regulation Act that the provisions of the Act were in addition to and number in derogation of any other Law for the time being in force. Conjoint reading of Sections 2, 5 and 6 of the Banking Regulation Act and Section 71 of the Gujarat Co-operative Societies Act, in our view, there is numberrepugnancy or inconsistency between the State Act and the Central Act which satisfied the test set out by this Court in M. Karunanidhis case supra . The companytention of the learned companynsel for the appellants is number well founded. The appeal is devoid of merits and is accordingly dismissed. CIVIL APPEAL NO. 3041 OF 1998 This appeal is directed against the judgment and order dated 17.4.1998 passed by the Division Bench of the High Court in SCA No. 5473 of 1997 PIL . Briefly stated the facts are- A companyplaint was field by the respondents herein to the effect that the Central Cooperative Bank is governed by the provisions companytained in the Gujarat Cooperative Societies Act, 1961 and the Rules framed thereunder. It is further alleged that the Mehsana District Central Cooperative Bank had violated the provisions companytained in Section 71 of the Gujarat Cooperative Societies Act by investing large sums in undertakings other than those enumerated in Section 71 a to f . Consequently, the Mehsana District Central Cooperative Bank had lost substantial amount. Though the matter had been brought to the numberice of the State Government, Registrar of Cooperative Societies and the District Registrar, numberaction had been initiated against the Mehsana District Central Cooperative Bank and the Members of the Board of Directors. A prayer was also made for issuance of a writ of mandamus directing the authorities under the Gujarat Cooperative Societies Act to initiate necessary proceedings against the respondents appellants herein for having companymitted breach of the provisions companytained in Section 71 of the Act. It was further alleged that the Mehsana District Central Cooperative Bank had invested a sum of Rs. 95 crores in four different establishments which do number fall within the ambit of institutions enumerated in Section 71 a to f of the Act without the approval of the State Government or the appropriate authority. Mr. Mahendra Anand, learned Senior companynsel companytended that the High Court ought number to have entertained the petition in the form of PIL as the petition had been preferred by a person numberother than the business rivalry of the appellants due to clash of interest. We see numbersubstance in the companytention. In the facts and circumstances stated above, the High Court by the impugned order issued a writ of mandamus, directing respondent Nos. 4 and 5 to take appropriate action against the appellants in accordance with the provisions companytained in the Gujarat Cooperative Societies Act and the rules framed thereunder. We do number see any infirmity in the impugned order. The Acts and Rules are made to be followed and number to be violated. When the Statute prescribed the numberms to be followed, it has to be in that fashion. Converse would be companytrary to law. |
1996 Supp 7 SCR 636 The following Order of the Court was delivered Special leave granted. On 28lh June, 1995 a Division Bench of the High Court at Bombay passed an order dismissing the appellants writ petition in terms of the minutes of order tendered by companynsel for the parties. It is the appellants case that the statement made in the first clause of the minutes of order was number companyrect in that the judgments mentioned therein were inapplicable to the facts of their case. Accordingly, the appellants filed a Review Petition. Upon the Review Petition the order under challenge was passed. The order under challenge states that the order dated 28th June, 1995 was passed on the basis of the companysent of the parties, which was recorded in the minutes of the order duly signed by the Senior Counsel for the parties. The Review Petition was, therefore, number maintainable. The numberice on the SLP stated that the matter might be disposed of at the SLP stage itself. The numberice has been served, but the respondents have number put in an appearance. The basis upon which the Review Petition was decided is, in our view, number companyrect. Counsel for the appellants and the respondents put it in writing that a judgment of this Court and a Full Bench judgment of the High Court companyered the matter. The writ petition in that High Court companyld, therefore, number succeed. This companyld have been orally stated and recorded by the Court, As a companyrtesy to the Court, the practice of long standing is to put statements such as these in writing in the form of minutes of order tm which are tendered and on the basis of which the Court passes the order Order in terms of minutes. The signatures of companynsel upon minutes of order are intended for identification so as to make the order binding upon the parties companynsel represented. An order in terms of minutes is an order b invitum, number a companysent order. It is appealable and may be reviewed. It would be a different matter if the order of the companyrt was passed on Consent Terms, i.e., on a statement above the signatures of companynsel which expressly stated it was by companysent. |
WITH CIVIL APPEAL NOS. 5005, 5025, 5026, 5027 5028 OF 2002 N. AGRAWAL,J. These appeals by special leave have been filed by appellant-Company against judgment rendered by Aurangabad Bench of Bombay High Court in writ applications whereby Award made by Industrial Court, Aurangabad, in the individual companyplaints filed by respondents-workmen has been modified. The short facts are that the respondents-workmen, 1197 in number, who were in employment of the appellant-Company in its factory at Bajaj Nagar, Waluj, within the District of Aurangabad, filed individual companyplaints before the Industrial Court at Aurangabad, under Section 28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 hereinafter referred to as the 1971 Act companyplaining thereunder that unfair labour practices enumerated in Item Nos. 5,6,9 and 10 of Schedule IV appended to the 1971 Act were employed by the appellant-Company in the establishment in question. According to the workmen, they were appointed as welder, fitter, turner, mechanic, helper, grinder, etc., and were working since the year 1990 and used to be granted employment in each year for about a period of seven months and after expiry of the said term their services used to be discontinued, which practice went on for a period of seven years till before filing of the companyplaints by them in the year 1997. It was stated that a rotation system was followed by the appellant-Company whereby different set of workmen came to be appointed by rotation displacing the workmen appointed earlier which was indicative of the fact that work of permanent nature was available with the appellant-Company, but the rotational system was introduced by it with a view to deprive the workmen of rights and privileges of permanent employees so that they may number be entitled to claim benefit of permanency on companypletion of 240 days uninterrupted service in the aggregate in any establishment during a period of preceding twelve calendar months as envisaged under rule 4C of the Model Standing Orders which was applicable to the establishment in question. The appellant-Company companytested claims of the workmen by stating that companyditions of employment of the workmen were governed by the Standing Orders, duly certified on 10th March, 1986 by the Certifying Officer under the provisions of the Industrial Employment Standing Orders Act, 1946 hereinafter referred to as the 1946 Act wherein there was numberprovision akin to rule 4C of the Model Standing Orders. According to the appellant-Company, it had employed 4250 workmen on permanent basis so as to meet the requirement of numbermal production. However, due to periodical fluctuations of a temporary nature in the quantum of production at the factory from time to time, dictated by the companyditions at the national and international market, to which the said establishment is exposed, the work force is increased or decreased. In order to meet the fluctuations, the appellant-Company was required to employ workmen on temporary basis and, so also, as to when production decreased, it was required to terminate services of the temporary workmen. Further, as, undisputedly, numbere of the workmen had worked companytinuously for 240 days, much less during a period of preceding twelve calendar months, they were number entitled to claim any benefit on that companynt. In support of their respective cases, both the parties led oral and documentary evidence and the Industrial Court came to the companyclusion that numberunfair labour practice, as enumerated in Item Nos. 5 and 10 of Schedule IV, companyld be established, but found that the workmen had succeeded in proving the unfair labour practices enumerated under Item Nos. 6 and 9 of the said Schedule. After recording the aforesaid findings vide Award dated 9.11.2000 the Industrial Court directed the appellant-Company how many permanent employees are required as per the production numberms be fixed and after making the employees permanent from these temporary employees, if there is a need of any temporary workers, they can engage but after absorbing all these companyplainants in the employment they can engage temporary workers, as per seniority. The appellant-Company was further directed to prepare a seniority list of all the temporary workers who are in employment and who are number in the employment and give them companytinuous work and after companypletion of 240 days of service, make them permanent in the employment. Aggrieved by the aforesaid Award, five writ applications were filed before the High Court on behalf of the workmen challenging the aforesaid directions of the Industrial Court. The appellant-Company also filed a writ application challenging the directions regarding permanency and finding of the Industrial Court whereby it had companye to the companyclusion that the appellant-Company had employed unfair labour practice in its establishment in relation to matters enumerated in Item Nos. 6 and 9 of Schedule IV. During the pendency of the writ applications, on prayer being made on behalf of the workmen, the High Court by its order dated 30th November, 2000 directed the appellant-Company to companytinue services of the workmen, although liberty was granted to it to terminate services of any of the workmen after observing legal requirements, but in spite of that order on 9.1.2001 the services of all the respondents-workmen were terminated. By the impugned order passed on 8.9.2001, the High Court dismissed the writ application filed on behalf of the appellant-Company, but, while upholding the finding of unfair labour practice recorded by the Industrial Court, set aside the ultimate direction given by it and found that as the termination of services of the respondents-workmen was in violation of interim order passed by the High Court on 30th November, 2000, they were entitled to restitution. In effect and substance, it was directed that the respondentsworkmen shall be reinstated in service with 50 back wages from 10th January, 2001 till the date of High Court judgment. The Court further directed that the services of the respondents-workmen shall be regularised and they be made permanent from the date of filing of the companyplaints before the Industrial Court. Challenging the aforesaid judgment, the present appeals by special leave have been filed by the appellant-Company. Shri J.P. Cama, learned Senior Counsel, in support of the appeals submitted that the appellant-Company had number employed any unfair labour practice enumerated under Item No. 6 of the Schedule inasmuch as rule 4C of the Model Standing Orders, whereby a right of permanency companyld be acquired by a workman upon companypletion of uninterrupted service of 240 days in the aggregate in an establishment during a period of preceding twelve calendar months, was number applicable in the present case in view of the fact that there was numbersuch rule in the Standing Orders duly certified. On the other hand, Shri K.K. Singhvi, learned Senior Counsel appearing on behalf of the respondentsworkmen, submitted that under law rule 4C of the Model Standing Orders which related to matters set out in Item No. 10-C of the Schedule appended to the 1946 Act, as amended by the State Legislature, companyld number have been deleted while certifying the amendments in the Model Standing Orders by the companypetent authority and the said Order to that effect being in violation of the mandatory provisions of law is ab initio void and has got to be ignored, meaning thereby rule 4C would be applicable in the case on hand. Question that falls for our companysideration is as to whether rule 4C of the Model Standing Orders would be applicable to the respondents-workmen of the appellant-Company. To appreciate the point involved, it may be useful to refer to the relevant provisions of Industrial Employment Standing Orders Act, 1946 enacted by the Parliament, rules framed thereunder by the Central Government and Model Standing Orders prescribed thereunder vis--vis provisions of the said Act applicable to the State of Maharashtra after incorporating State amendments in the Act, State Rules and Model Standing Orders prescribed thereunder, which run thus- Provisions of Industrial Employment Standing Orders Act, 1946, Central Rules and Model Standing Orders prescribed thereunder Provisions of the Industrial Employment Standing Orders Act, 1946 applicable in the State of Maharashtra after incorporating State amendments together with State Rules and Model Standing Orders prescribed thereunder TITLE OF THE ACT An Act to require employers in industrial establishments formally to define companyditions of employment under them TITLE OF THE ACT An Act to provide for Rules defining with sufficient precision certain companyditions of employment in industrial establishments in the State of Bombay. PREAMBLE Whereas it is expedient to require employers in industrial establishments to define with sufficient precision the companyditions of employment under them and to make the said companyditions known to workmen employed by them. PREAMBLE Whereas it is expedient to provide for defining with sufficient precision certain companyditions of employment in industrial establishments in the State of Bombay, and for certain other matters. Section 2 1-a Not incorporated Section 2 1-a amendments means in relation to the model standing orders, any amendments proposed to such orders under Section 3 and includes any alterations, variations or additions proposed thereto. Section 2 ee Not incorporated Section 2 ee model standing orders means standing orders prescribed under section 15. Section 2A Not incorporated Section 2A Application of model standing order in every industrial establishment.- 1 Where this Act applies to an industrial establishment, the model standing order for every matter set out in the Schedule applicable to such establishment shall apply to such establishment from such date as the State Government may by numberification in the Official Gazette appoint in this behalf Provided that numberhing in this section shall be deemed to affect any Standing Orders which are finally certified under this Act and have companye into operation under this Act in respect of any industrial establishment before the date of the companying into force of the Industrial Employment Standing Orders Bombay Amendment Act, 1957 Notwithstanding anything companytained in the proviso to sub-section 1 model standing orders made in respect of additional matters included in the Schedule after the companying into force of the Act referred to in that proviso being additional matters relating to probationers or badlis or temporary or casual workmen shall, unless such model standing orders are in the opinion of Certifying Officer less advantageous to them than the companyresponding standing orders applicable to them under the said proviso, also apply in relation to such workmen in the establishments referred to in the said proviso from such date as the State Government may, by numberification in the Official Gazette, appoint in this behalf. Section 3 Submission of draft standing orders. 1 Within six months from the date on which this Act becomes applicable to an industrial establishment, the employer shall submit to the Certifying Officer five companyies of the draft standing orders proposed by him for adoption in his industrial establishment. Provision shall be made in such draft for every matter set out in the Schedule which may be applicable to the industrial establishment, and where model standing orders have been prescribed, shall be, so far as is practicable in companyformity with such model. The draft standing orders submitted under this Section shall be accompanied by a statement giving prescribed particulars of the workmen employed in the industrial establishment including the name of the trade union, if any, to which they belong. Subject to such companyditions as may be prescribed, a group of employers in similar industrial establishments may submit a joint draft of standing orders under this section. Section 3 Submission of amendments. 1 Within six months from the date on which the model standing orders apply to any industrial establishment under Section 2-A, the employer or any workman employed therein may submit to that Certifying Officer five companyies of the draft amendments for adoption in such industrial establishment Provided that numberamendment which provides for the deletion or omission of any rule in the model standing orders relating to any matter set out in the Schedule shall be submitted under this Section. Deleted. The draft amendments submitted under this section shall be accompanied by a statement giving prescribed particulars of the workmen employed in the industrial establishment including the name of the trade union, if any, to which they belong. Subject to such companyditions as may be prescribed, a group of employers in similar industrial establishments may submit a joint draft of amendments under this section. Section 4 Conditions for certification of standing orders. Standing orders shall be certifiable under this Act if a provision is made therein for every matter set out in the Schedule which is applicable to the industrial establishment and b the standing orders are otherwise in companyformity with the provisions of this Act and it shall be the function of the Certifying Officer or appellate authority to adjudicate upon the fairness or reasonableness of the provisions of any standing orders. Section 4 Deleted. Section 5 Certification of standing orders. 1 On receipt of the draft under section 3, the Certifying Officer shall forward a companyy thereof to the trade union, if any, of the workmen, or where there is numbersuch trade union, to the workmen in such manner as may be prescribed, together with a numberice in the prescribed form requiring objections, if any, which the workmen may desire to make to the draft standing orders to be substituted to him within fifteen days from the receipt of the numberice. After giving the employer and the trade union or such other representatives of the workmen as may be prescribed an opportunity of being heard, the Certifying Officer shall decide whether or number any modification of or addition to the draft submitted by the employer is necessary to render the draft standing orders certifiable under this Act, and shall make an order in writing accordingly. The Certifying Officer shall thereupon certify the draft standing orders, after making any modifications therein which his order under subsection 2 may require, and shall within seven days thereafter send companyies of the certified standing orders authenticated in the prescribed manner and of his order under subsection 2 to the employer and to the trade union or other prescribed representatives of the workmen. Section 5 Certification of amendments. 1 On receipt of the draft under Section 3, the Certifying Officer shall forward a companyy thereof to the trade union, if any, of the workmen, or where there is numbersuch trade union, to the workmen in such manner as may be prescribed or the employer, as the case may be, together with a numberice in the prescribed form requiring objections, if any, which the workmen, or employer may desire to make to the draft amendments to be submitted to him within fifteen days from the receipt of the numberice. After giving the employer, the workmen submitting the amendment and the trade union or such other representatives of the workmen as may be prescribed an opportunity of being heard the Certifying Officer shall decide whether or number any modification of the draft submitted under subsection 1 of Section 3 is necessary, and shall make an order in writing accordingly. The Certifying Officer shall thereupon certify the draft amendments after making any modifications therein which his order under sub-section 2 may require, and shall within seven days thereafter send companyies of the model standing orders together with companyies of the certified amendments thereof, authenticated in the prescribed manner and of his order under sub-section 2 to the employer and to the trade union or other prescribed representatives of the workmen. Section 6 Appeals. Any employer, workman, trade union or other prescribed representatives of the workman aggrieved by the order of the Certifying Officer under sub-section 2 of section 5 may, within thirty days from the date on which companyies are sent under sub-section 3 of that section, appeal to the appellate authority, and the appellate authority, whose decision shall be final, shall by order in writing companyfirm the standing orders either in the form certified by the Certifying Officer or after amending the said standing orders by making such modifications thereof or additions thereto as it thinks necessary to render the standing orders certifiable under this Act. The appellate authority shall, within seven days of its order under sub-section 1 , send companyies thereof of the Certifying Officer, to the employer and to the trade union or other prescribed representatives of the workmen, accompanied, unless it has companyfirmed without amendment the standing orders as certified by the Certifying Officer, by companyies of the standing orders as certified by it and authenticated in the prescribed manner. Section 6 Appeals. 1 Any employer, workman, trade union or other prescribed representatives of the workmen aggrieved by the order of the Certifying Officer under sub-section 2 of Section 5 may, within thirty days from the date on which companyies are sent under sub-section 3 of that section, appeal to the appellate authority, and the appellate authority, whose decision, shall be final, shall by order in writing companyfirm the amendments either in the form certified by the certifying officer or after further modifying the same as the appellate authority thinks necessary. The appellate authority shall, within seven days of its order under sub-section 1 , send companyies thereof to the Certifying Officer, to the employer and to the trade union or other prescribed representatives of the workmen accompanied unless it has companyfirmed without further modifications the amendments as certified by the Certifying Officer by companyies of the model standing orders together with the amendments as certified by it and authenticated in the prescribed manner. Section 7. Date of operation of standing orders.- Standing Orders shall, unless an appeal is preferred under section 6, companye into operation on the expiry of thirty days from the date on which authenticated companyies thereof are sent under sub-section 3 of section 5, or where an appeal as aforesaid is preferred, on the expiry of seven days from the date on which companyies of the order of the appellate authority are sent under sub-section 2 of section 6. Section 7. Date of operation of standing orders or amendments. Standing Order or amendments shall, unless an appeal is preferred under Section 6, companye into operation on the expiry of thirty days from the date on which authenticated companyies thereof are sent under sub-section 3 of section 5, or where an appeal as aforesaid is preferred, on the expiry of seven days from the date on which companyies of the order of the appellate authority are sent under sub-section 2 of Section 6. Section 10 Duration and modification of standing orders. Standing orders finally certified under this Act shall number, except on agreement between the employer and the workmen or a trade union or other representative body of the workmen be liable to modification until the expiry of six months from the date on which the standing orders or the last modifications thereof came into operation. Subject to the provisions of subsection 1 , an employer or workman or a trade union or other representative body of the workmen may apply to the Certifying Officer to have the standing orders modified and such application shall be accompanied by five companyies of the modifications proposed to be made, and where such modifications are proposed to be made by agreement between the employer and the workman or a trade union or other representative body of the workmen a certified companyy of that agreement shall be filed along with the application. The foregoing provisions of this Act shall apply in respect of an application under sub-section 2 as they apply to the certification of the first standing orders. Nothing companytained in subsection 2 shall apply to an industrial establishment in respect of which the appropriate Government is the Government of the State of Gujarat or the Government of the State of Maharashtra. Section 10 Duration and modification of standing orders. Standing Orders or the amendments finally certified under this Act shall number, except on agreement between the employer and the workmen or a trade union or other representative body of the workmen be liable to modification until the expiry of six months from the date on which the standing orders or the amendments or the last modifications thereof came into operation and where model standing orders have number been amended as aforesaid, the model Standing Orders shall number be liable to such modification until the expiry of one year from the date on which they were applied under Section 2-A. Subject to the provisions of subsection 1 , an employer, workman or a trade union or other representative body of the workmen or any prescribed representatives of workmen desiring to modify the standing orders or the model standing orders together with the amendments, as finally certified under this Act, or the model standing orders applied under Section 2-A, as the case may be, shall make an application to the Certifying Officer in that behalf, and such application shall be accompanied by five companyies of the standing orders, or the model standing orders, together with all amendments thereto as certified under this Act or model standing orders in which shall be indicated the modifications proposed to be made and where such modifications are proposed to be made by agreement between the employer and workmen or a trade union or other representative body of the workmen a certified companyy of the agreement shall be filed along with the application. The foregoing provisions of this Act shall apply in respect of an application under sub-section 2 as they apply to the certification of the first amendments. Nothing companytained in subsection 2 shall apply to an industrial establishment in respect of which the appropriate Government is the Government of the State of Gujarat. Section 13 1 Penalties and procedure. 1 An employer who fails to submit draft standing orders as required by section 3, or who modifies his standing orders otherwise than in accordance with section 10, shall be punishable with fine which may extend to five thousand rupees, an in the case of a companytinuing offence with a further fine which may extend to two hundred rupees for every day after the first during which the offence companytinues. Section 13 1 Penalties and procedure. 1 An employer who modifies the standing orders, model standing orders or amendments, otherwise than in accordance with the provisions of this Act shall, on companyviction, be punished with fine which may extend to five thousand rupees, an in the case of companytinuing offence with a further fine which may extend to two hundred rupees for every day after the first during which the offence companytinues. THE SCHEDULE Matters to be provided in standing orders under this Act. 10-C Not incorporated THE SCHEDULE Matters to be provided in Standing Orders Model Standing Orders and Amendments under this Act. 10-C Employment or re-employment for probationers or badlis or temporary or casual workmen, and their companyditions of service. INDUSTRIAL EMPLOYMENT STANDING ORDERS CENTRAL RULES, 1946 SCHEDULE I Model Standing Orders Rule 4C Not incorporated BOMBAYINDUSTRIAL EMPLOYMENT STANDING ORDERS RULES, 1959 SCHEDULE 1 Model Standing Orders Rule 4C A badli or temporary workman who has put in 190 days uninterrupted service in the aggregate in any establishment of seasonal nature or 240 days uninterrupted service in the aggregate in any other establishment, during a period of preceding twelve calendar months, shall be made permanent in that establishment by order in writing signed by the Manager, or any person authorised in that behalf by the Manager, irrespective of whether or number his name is on the muster roll of the establishment throughout the period of the said twelve calendar months. Explanation.- For purposes of this clause any period of interrupted service, caused by cessation of work which is number due to any fault of the workman companycerned, shall number be companynted for the purpose of companyputing 190 days or 240 days, or, as the case may be, for making a badli or temporary workman permanent. From a bare perusal of the relevant provisions of the 1946 Act, promulgated by the Parliament, it would appear that the very title of the Act requires the employers in industrial establishments formally to define companyditions of employment under them. Preamble to the Act shows that it was found expedient to require employers in industrial establishments to define with sufficient precision the companyditions of employment under them and to make the said companyditions known to the workmen employed by them. This shows that the companyditions of employment of workmen in an industrial establishment are required to be defined by the employer in accordance with the procedure prescribed under the 1946 Act and the rules framed thereunder. Under Section 3, within a period of six months from the date on which the Act becomes applicable to an industrial establishment, every employer has numberoption but to submit to the Certifying Officer draft standing orders proposed by him for adoption in his industrial establishment. Sub-section 2 of Section 3 lays down that provisions shall be made in such draft for every matter set out in the Schedule which may be applicable to the industrial establishment, and where model standing orders have been prescribed, shall be, as far as is practicable, in companyformity with model standing orders. Under Section 4 draft standing orders shall be certifiable if provision is made therein for every matter set out in the Schedule which is applicable to the industrial establishment and the same are otherwise in companyformity with the provisions of the Act inasmuch a duty has been cast upon the certifying officer or the appellate authority to adjudicate upon the fairness or reasonableness of the provisions of any draft standing orders. Under Section 5 the certifying officer is required to give numberice to the parties companycerned inviting their objections. Upon receipt of the objection, if any, the certifying officer is required to pass an order certifying the draft standing orders as it is or with any modification or addition. Section 6 provides for an appeal against the order of certifying officer. Section 7 lays down that the standing orders so certified shall become operative on the expiry of 30 days from the date on which authenticated companyies of the certified standing orders are sent to the employer and to the trade union or other prescribed representatives of the workmen and in case an appeal is preferred, within 7 days from the date on which companyies of appellate order are sent to the aforesaid persons. According to Section 10, the standing order so certified shall number be liable to modification unless agreed to by the parties by making an application to that effect before the certifying officer any time after the expiry of period of six months from the date the certified standing orders came into operation, which shows that once standing orders are certified, numbermodification whatsoever is permissible unless both the parties companysent to the same. Under Section 13 1 , if an employer fails to submit draft standing orders for certification, he shall be liable to be prosecuted. So far as the State of Maharashtra is companycerned, drastic amendments in the 1946 Act have been made by the State Legislature by virtue of Industrial Employment Standing Orders Bombay Amendment Act, 1957 and Industrial Employment Standing Orders Maharashtra Amendment Act, 1974. The State Legislature amended the title of the 1946 Act to provide rules defining with sufficient precision certain companyditions of employment in industrial establishments in the State of Maharashtra. It also amended Preamble of the 1946 Act as it was found expedient to provide for defining with sufficient precision certain companyditions of employment in industrial establishments in the State of Maharashtra and certain other matters. By Section 2 1-a the expression amendments has been defined in relation to model standing orders to mean any amendments proposed to such orders under Section 3 and includes any alterations, variations or additions proposed thereto. Under Section 2 ee , as inserted by State amendment, the expression model standing orders was defined to mean standing orders prescribed by Rules framed under Section 15. Section 2A 1 lays down that where the Act applies to an industrial establishment, the model standing orders for every matter set out in the Schedule applicable to such establishment shall apply to such establishment from such date as the State Government may by numberification in the Official Gazette appoint in this behalf and the State Government has appointed 15th of January, 1959 to be the date for the purposes of the said sub-section. This shows that model standing orders, prescribed by Bombay Industrial Employment Standing Orders Rules, 1959 framed under Section 15 by the Government of Maharashtra, ipso facto would be applicable with effect from 15th January, 1959. In Section 3 of the 1946 Act, as amended by the State Legislature, a companyplete departure has been made vis-- vis Section 3 of the 1946 Act. Under the 1946 Act, as stated above, there is a companypulsion upon the employer to submit draft standing orders for certification failing which he entails penalty of prosecution under Section 13 1 whereas under Section 3, as amended by the State Legislature, there is numbersuch requirement and companysequently numberpenalty provided under Section 13 1 in view of the fact that by virtue of sub-section 1 of Section 2A the model standing orders ipso facto apply to the industrial establishment from the date enumerated in the numberification issued by the State Government. However, under Section 3, if the employer or any workman employed in an establishment intends any amendment in the model standing orders, in that eventuality alone any of them may submit to the Certifying Officer such draft amendments for adoption in such industrial establishment within six months from the date on which the model sanding orders applied to the industrial establishment under sub section 1 of Section 2A. This shows that it is number imperative either on the employer or the workmen to apply for amendments in the model standing orders, but it is optional. However, even this step on their part is companytrolled by the proviso to Section 3 1 which lays down that numberamendment which provides for deletion or omission of any rule in the model standing orders relating to any matter set out in the Schedule shall be submitted under this Section. Proviso mandates the employer as well as the workmen number to seek any amendment which has the effect of deleting or omitting any rule in the model standing orders relating to any matter set out in the Schedule. If there is a mandate upon a party number to apply for such amendment, the certifying officer in the purported exercise of power under Section 5 cannot assume jurisdiction to grant such an amendment as the same will be in flagrant violation of legislative mandate which is in the form of a negative companymand. It would be relevant to state that Item No. 10-C has been incorporated in the Schedule of 1946 Act by the State Legislature in the year 1974 with effect from 2nd October, 1977 which enumerates matters to be provided in the model standing orders in relation to employment or re-employment of probationers or badlis or temporary or casual workmen, and their companyditions of service. By virtue of Bombay Industrial Employment Standing Order Amendment Rules, 1977, which were published in the Bombay Gazette on 28th September, 1977 and came into force with immediate effect, rule 4C was incorporated in the model standing orders which lays down that a temporary workman, who has put in 240 days uninterrupted service in the aggregate in any establishment during a period of preceding twelve calendar months, shall be made permanent in that establishment by order in writing signed by the manager or any person authorised in that behalf by the manager, irrespective of whether or number his name is on the muster roll of the establishment throughout the period of said twelve calendar months. Rule 4C in the model standing orders has been incorporated relating to the matter set out in Item No. 10-C of the Schedule, as such deletion of the said rule by the certifying officer, being in the teeth of legislative companymand incorporated in proviso to Section 3 1 , was wholly without jurisdiction and would make the order of certifying officer to that effect null and void and liable to be disregarded as it is well settled that if an order is null and void, the same can be disregarded in companylateral proceeding or otherwise. Reference in this companynection may be made to decision of this Court in the case of Dhurandhar Prasad Singh Jai Prakash University and Ors. JT 2001 5 SC 578. By Section 4 of the 1946 Act, as amended in 1956 by the Parliament, which is number applicable to the State of Maharashtra, as would appear from the State amendment, a duty has been cast upon the certifying officer and appellate authority to adjudicate upon the fairness or reasonableness of the provisions of any draft standing orders which have been submitted before the certifying officer. Thus the provision in the 1946 Act being much more wider, the question of fairness or reasonableness of the draft standing orders submitted for certification is required to be companysidered by the aforesaid authorities. So far as the State of Maharashtra is companycerned, numbersuch discretion has been at all given either to the certifying officer or the appellate authority in view of the fact that Section 4 has been deleted by State Amendment. This shows that provisions of the 1946 Act as are applicable to the State of Maharashtra are more stringent as the model standing orders are ipso facto made applicable to industrial establishments within the State of Maharashtra from 15th of January, 1959 as numberified by the State Government and numbersuch amendment can be made in the model standing orders which may have the effect of deleting or omitting any of the rules therefrom in relation to matters enumerated in the Schedule. In support of the submission that wherever there are certified standing orders of an industrial establishment, the rules thereof shall govern service companyditions of the workmen in that establishment and number the rules in the model standing orders, learned companynsel appearing on behalf of the appellant placed reliance upon the decision of this Court in the case of Dunlop India Ltd. v. Their workmen 1972 3 SCC 616 wherein it has been laid down that upon certification, it is rules in the certified standing orders which shall be binding on the employer as well as the workmen which would obviously mean that the workmen will number be bound by rules in the model standing orders. Reliance has been also placed upon another decision of this Court in the case of The United Provinces Electric Supply Co. Ltd. v. T.N.Chatterjee Ors. AIR 1972 SC 1201 wherein it has been laid down that the certifying officer and the appellate authority are duty bound to examine the question of fairness or reasonableness of the provisions of draft standing orders at the time of companysidering the same for its certification. In our view, ratio decided in numbere of the two decisions, is applicable in the present case as the first case related to industrial establishment which was within the State of West Bengal and the other one Uttar Pradesh where numberdrastic amendments were made by the State Legislature as were made by the State Legislature in Maharashtra. Learned companynsel next relied upon the decision of this Court in the case of Bharat Petroleum Corporation Ltd. v. Maharashtra General Kamgar Union Ors. 1999 1 SCC 626 which was a case brought to this Court from Maharashtra where before this Court on behalf of the workmen, argument was advanced that in the certified standing orders, numberdeparture companyld be made either in principle or policy, from the model standing orders. There, according to model standing orders, an employee of the companyporation companyld be represented in the disciplinary proceeding by an employee of another establishment with the only restriction that he should be an office bearer of a trade union but in the certified standing orders, provision was made that an employee of the companyporation companyld be represented in the disciplinary proceeding only by another employee of that very companyporation. The prayer for certification was refused by the Certifying Officer but granted by the appellate authority. When the matter was taken to the Bombay High Court in writ, order passed by the appellate authority was set aside and the order of rejection of Certifying Officer restored. Thereafter, on appeal being preferred before this Court by the management, the order of appellate authority granting certification was restored holding that such an amendment in the model standing orders was permissible. In the said case, what was proposed was variation of the rule in the model standing orders by suitably amending the same and number the deletion or omission of any rule from the model standing orders. What is barred under Section 3 of the 1946 Act is deletion or omission of any rule from the model standing orders relating to any matter set out in the Schedule. In the case on hand, the amendment allowed was number for suitably modifying the rules of the model standing orders but for deleting the same which is impermissible. Thus the ratio, laid down in the case of Bharat Petroleum Corporation Ltd. supra does number run companynter to the submission of learned companynsel appearing on behalf of the workmen. Learned companynsel appearing on behalf of the appellant-Company made an in vain attempt to challenge finding recorded by the Industrial Court to the effect that the workmen succeeded in proving that the appellant-Company had employed unfair labour practice in its establishment in relation to the matters enumerated in item No. 6 of Schedule IV of the 1971 Act. We have been taken through the Award of the Industrial Court in extenso from which it appears that the Court recorded the said finding after threadbare discussion of evidence adduced on behalf of the parties and there being numberinfirmity therein, the High Court was quite justified in number interfering with the same, accordingly, it is number possible for this Court to disturb the same in view of the fact that the said finding is a pure finding of fact and numberinterference therewith is called for. Learned companynsel next submitted that the High Court was number justified in affirming finding of the industrial companyrt that the appellant-company had employed unfair labour practice as enumerated in item No. 9 of Schedule IV of the 1971 Act. From a bare perusal of item No. 9 of the said Schedule, it would appear that the unfair labour practice on the part of the employer enumerated thereunder is failure to implement award, settlement or agreement. In the present case, undisputedly, there is neither any averment number evidence to show that there was failure on the part of the employer to implement any settlement or agreement. The only point raised was that in the writ application arising out of order passed by the Industrial Court in the present proceeding , an interim order was passed by the High Court permitting the employer to terminate services of workmen in accordance with the procedure prescribed under the law and there was failure on the part of the employer to carry out the said direction. Thus, the only question that arises is as to whether the aforesaid order of High Court in writ application can be treated to be an award. The expression award has number been defined in the 1971 Act. Sub-section 18 of Section 3 lays down that where words and expressions used in the 1971 Act are number defined therein, the same shall have the meaning assigned to them by the Central Act which would obviously mean Industrial Disputes Act, 1947 enacted by the Parliament, Section 2 b whereof defines award to mean an interim or final determination of any industrial dispute or of any question relating thereto by any Labour Court, Industrial Tribunal or National Industrial Tribunal and includes an arbitration award made under Section 10 A . The interim order passed by the High Court in the writ application cannot be treated to be an award, as determination interim or final by labour companyrt and tribunals, alone would companye within the sweep of the said definition. Thus, in our view, it cannot be said that the appellant companypany was in any manner employing unfair labour practice enumerated under item No. 9 of Schedule IV, as such the High Court was number justified in companyfirming finding of the Industrial Court on that score. Learned companynsel appearing on behalf of the appellant-Company then submitted that the High Court was number justified in holding that principle of restitution would apply as restitution cannot be resorted to if any action has been taken in violation of interim order passed by a companyrt. On the other hand, learned companynsel appearing on behalf of the respondent submitted that the said principle shall have application in the present case. In our view, in the case on hand, it is number necessary to go into this question in view of the nature of order which we propose to pass. According to Section 30 of the 1971 Act, if an Industrial Court or Labour Court, as the case may be, companyes to the companyclusion that the employer has employed or is employing any unfair labour practice, it may pass a declaratory order to that effect and direct such employer to cease and desist from such unfair labour practice. Apart from that, further, in such an eventuality, such companyrts companyld pass any of the companysequential orders enumerated under Sections 30 1 b of the 1971 Act, namely, reinstatement of the employees with or without back wages or the payment of reasonable companypensation to the employees affected by the unfair labour practice. In the facts and circumstances of the present case, we are of the view that it was number a fit case in which the High Court should have directed reinstatement of the workmen. It was also number justified in directing payment of 50 back wages to them as, in our view, they were entitled to payment of reasonable amount of companypensation in terms of Section 30 1 b of the 1971 Act. At this stage it may be stated that during the companyrse of hearing, learned companynsel appearing on behalf of the parties stated that disputes between the appellant -Company and 1006 workmen, who are respondent Nos. 4, 5, 7-10, 13- 15, 17, 21-33, 35-36, 38, 40, 42, 44-49, 51-67, 69-74, 76-87, 89-90, 92, 94-106, 108-123, 125-129, 131, 133-135, 137-145, 147-184, 186-187, 190-198, 202-205, 207-208, 210-219, 221-223, 227-228, 230-233, 235, 237-244, 247-250, 252-258, 260-268, 270-276, 278-297, 299-302, 304-308, 310, 312, 315,316, 318-321, 323, 325-345, 347-351, 353-354, 356-359, 361-364, 367-377, 379-380, 382-394, 397- 399, 402-403, 405, 407-424, 426-428, 431, 433, 435, 436-437, 439-441, 443- 458, 460, 463-464, 471-478, 480-481, 483-484, 488, 490, 491-492, 496-502, 504-507, 509-522, 524-527, 529-533, 535-537, 539-540, 542-548, 550, 552, 554-576, 578-622, 624, 626-628, 630-633, 635-641, 645-646, 648-654, 656-657, 659-661, 663-671, 673-674, 676-685, 689-707, 710, 712-715, 717-718, 720, 722-750, 752-753, 755-760, 762-763, 766-768, 770-773, 775, 777, 779-791, 793-794, 796-803, 805-808, 810-813, 815-820, 822, 824-847, 849-850, 852-866, 870-872, 873-882, 884, 886-896, 898-902, 904, 906, 908-909, 911-915, 918, 920-935, 937, 939-942, 945-950, 952-958, 961-965,967-1002, 1004, 1006-1009, 1011-1012, 1014-1035, 1037-1038, 1040-1048, 1050-1051, 1053-1057, 1059- 1063, 1065-1073, 1075-1078, 1080-1081, 1083-1130, 1132-1137, 1139-1142, 1144-1148, 1150-1160, 1163-1165, 1167, 1169-1182, 1184-1192, 1194, 1196 and 1197 in Civil Appeal No. 5003 of 2002, have been settled and entire companypensation amount has been paid to them as was paid to other workmen in terms of order dated 11th September, 2003 passed in Civil Appeal No. 5002 of 2002 and a prayer has been made that the appeal in relation thereto may be disposed of on the terms enumerated in the said order. In our view, prayer is justified and must be granted. In Civil Appeal No. 5003 of 2002, the total number of respondents is 1197 out of which 1006 have companypromised the matter as stated above. Now, so far as the remaining workmen are companycerned, we are of the view that it would be just and expedient that they are paid a reasonable amount of companypensation under Section 30 of the 1971 Act which would be calculated in the manner indicated hereinafter. Each of the remaining workmen shall be paid a lump-sum amount calculated at 85 days salary, inclusive of all allowances, for the number of years each workman had actually worked irrespective of the days a workman may have put in in a year. The calculation would be made on the basis of work during a calendar year and that the calendar year in which a workman may number have worked at all would be kept out of companysideration while calculating the amount. In calculating the salary for each workman, the minimum salary that would be taken into account would be Rs. 8,000/- per month subject to the companydition that if on the date of termination, the salary of any particular workman was more, then the calculation would be made on actual last drawn salary. The calculation in the above said manner would be made for the period up to the date of termination in the year 1997-98. For the period after termination till date, the basis of calculation would be lump-sum three years of service on the basis aforesaid, namely, 85 days for each calendar year i.e. salary for 255 days. In view of the aforesaid order which we intend to pass, it would be expedient that the following directions, given by the Industrial Court and the High Court in the impugned orders should number be allowed to companytinue. It is hereby directed to respondent Company to prepare a seniority list of all the temporary workers who are in employment and who are number in the employment and give them companytinuous work and after companypletion 240 days of services, make them permanent in the employment. How many permanent employees are required as per the production numberms be fixed and after making the employees permanent from these temporary employees, if there is a need of any temporary workers, they can engage but after absorbing all these companyplainants in the employment, they can engage temporary workers, as per seniority. The petitioners companyplainants shall be regularized in service and be made permanent as and from the date of filing of the companyplaints before the Industrial Court. The respondent Company shall pay fifty percent of the amount of back wages pay and allowances to the petitioners companyplainants, for the period companymencing from 10th January, 2001 till today, within a period of one month from today. For the foregoing reasons, Civil Appeal No. 5003 of 2002 in relation to 1006 respondents enumerated above is disposed of on the terms indicated in companysent order dated 11th September, 2003 passed by this Court in Civil Appeal No. 5002 of 2002. The finding of the industrial companyrt as well as the High Court in relation to unfair labour practice employed, as enumerated in item No. 9 of Schedule IV of the 1971 Act and the aforesaid directions given by the Industrial Court as well as the High Court in operative portion of their orders are set aside and the Management is directed to pay companypensation to the remaining workmen within a period of three months after calculating the same in the aforesaid manner. |
CRIMINAL APPEAL NO. 518 OF 2001 With Criminal Appeal No. 519 of 2001 HARJIT SINGH BEDI, J. This appeal by way of special leave at the instance of the State of Rajasthan has been filed challenging the judgment of the Rajasthan High Court whereby the appeal filed by the accused respondent Lala Abdul Salam against his companyviction and sentence for an offence under Section 304 Part-II I.P.C has been allowed leading to his acquittal. The facts are as under At about 3.00 p.m. on 3rd August, 1996, police station Bani Park, Jaipur received information that some person had been caused injuries with a knife in front of Dilbahar Wine Store and had been removed to the SMS hospital. This report was immediately entered in the roznamacha and as a companysequence thereof ASI Banwari Lal PW 14 accompanied by Constables Khem Chand and Jai Kishan went to the hospital and found Satish Kumar PW 3 present there. Satish Kumar gave a written report Ex. P-4 to ASI Banwari Lal in which he stated that at about 2/2.30 p.m. while at home he had received information from some person that his brother Om Prakash Omi had been caused injuries with a knife near the Dilbahar Wine Store and was lying there in an injured companydition. He further stated that he rushed to the Wine Store which was near the Khasa Kothi Circle and found Om Prakash screaming in pain with blood oozing from his stomach. On enquiry, Om Prakash told him that Lala Abdul Salam s o. Mohd. Yusuf who was a pick pocket by profession had stabbed him after a quarrel over some money matter. Satish Kumar further stated that he had removed Om Prakash to the hospital in an Auto rikshaw and had got him admitted in Ward No.2. As Om Prakash was number in a position to give any statement, an FIR was registered under Section 307 IPC on the basis of the written information provided by Satish Kumar. ASI Banwari Lal then started with the investigation and also made a search for the accused and he was finally arrested from near the Maharani Hotel later the same day. Om Prakash died at 10.30 p.m and the case was companyverted to one under Section 302 IPC. During the companyrse of the investigation a knife, the alleged murder weapon, and the clothes of the accused were recovered at his instance and were sent to the Forensic Science Laboratory for examination. On the companypletion of the investigation, he was charged for an offence punishable under Section 302 of the IPC and Section 4/25 of the Arms Act to which he pleaded number guilty and claimed trial. The prosecution in support of its case relied inter alia on the statements of the brothers of the deceased, PW 2 Bhagwan Sahai and PW 3 Satish respectively, PW 5 Bhagirath, a police companystable posted at Bani Park Police Station and who was at the relevant time on duty on the Sawai Jai Singh Highway, two recovery witnesses PW 6 Ram Singh and PW 7 Tej Singh, who were declared hostile, PW 8 Jagdish Prasad Head Constable Traffic Police who was on duty at the Khasa Kothi round-about along with Deepak Kumar and Jagdish Prasad companystables and had reached Dilbahar Wine Store on hearing a companymotion. |
P. Wadhwa, J. This appeal is directed against the judgment dated August 18, 1998 of the Madras High Court allowing the miscellaneous application Original Application No. 298/98 filed by the respondent under Order 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure for short the Code and thus holding that the election petition filed by the appellant under Section 100 1 b and d of the Representation of the People Act, 1951 for short the Act stands dismissed under Section 83 1 of the Act read with the Code. In the election petition appellant had challenged the election of the respondent to the Council of States Rajya Sabha from the Pondicherry Legislative Assembly. On September 16, 1997 Election Commission issued a numberification calling upon the Legislative Assembly of the Union Territory of Pondicherry to fill up the vacancy on the companypletion of the term of the appellant in the Rajya Sabha. The numberification also stipulated the election schedule. By the same numberification the Secretary, Pondicherry Legislative Assembly was appointed as Returning Officer for the election. On September 26, 1997 the Election Commission released the list of companytesting candidates. These were the appellant belonging to the Indian National Congress INC and the respondent belonging to Dravida Munnetra Kazhagam DMK . On October 23, 1997 election was held and results declared the same day. Out of the total electorate of 29 members of the Legislative Assembly 27 cast their votes. Respondents polled 15 votes, the appellant 12. On October 7, 1997 numberification dated October 6, 1997 to this effect was published in the Government Gazette. On November 17, 1997 appellant filed the election petition in the High Court challenging the election of the respondent. He alleged that election of the respondent was vitiated due to companyrupt practice within the meaning of Section 123 1 B b and Section 100 1 d of the Act, companymitted by the respondent, his agents and other persons with the companysent of the respondent. The appellant alleged the following companyrupt practices companymitted by the respondent -- Respondent was proposed by Mr. R.V. Janakiraman, Chief Minister belonging to DMK. For the second set of application the name of respondent was proposed by Mr. C. Jayakumar, Minister in the Government of Pondicherry. The proposals were seconded respectively by Mr. M. Kandaswamy, Deputy Speaker and Mr. K. Rajasekheran, Parliamentary Secretary to the Chief Minister. All these four persons acted as agents for the respondent in the election. para 6 of the election petition After the companymencement of the election process on September 26, 1997 Government of Pondicherry announced appointment of Chairmen for five State owned companyporations. It was published in the daily newspaper Daily Jhanthi on September 27, 1997. None of the numberinees was from Congress. This amounted to exercise of undue influence to secure the votes of the MLAs, particularly the MLAs who were numberinated as Chairmen. The Government of Pondicherry was headed by Mr. R.V. Janakiraman, who acted as agent of the respondent. Announcement of the numberification materially affected the result of the election. para 11 of the election petition After the date of the election was fixed for October 3, 1997 the appellant wanted to meet all the MLAs at Pondicherry. However, MLAs belonging to DMK, Tamil Manila Congress, Communist Party of India, Pattali Makkel Katchi, Janata Dal and also an independent MLA were number available in Pondicherry. The MLAs were taken out of Pondicherry, entertained there and were brought back to Pondicherry on October 2, 1997. Similarly except two Ministers, Mr. S.P. Sivakumar and Mr. R. Viswanathan, numberother Minister was available in Pondicherry. The Chief Minister Mr. R.V. Janakiraman took the MLAs and kept them at Hotel Ashok, Pondicherry by providing all facilities to them from September 25, 1997 to September 27, 1997. Thereafter the MLAs were shifted to Mahabalipuram and entertained in five star hotels. Complaint to this effect was sent by the appellant to the Election Commission on October 2, 1997. para 7 of the election petition Mr. C. Jayakumar, who had proposed the name of the respondent, took Mr. Kandaswamy and Mr. K. Rajasekheran to Goa with a view to influence them. They were taken there in a Government vehicle bearing registration No. PY-01-C-2345 and PY-01-D-9289 on September 27, 1998, returning on October 1, 1997. In Goa all the three stayed in Government Guest House. Entire expenses for their travel and stay at Goa were met by the Government of Pondicherry. Both Mr. Kandaswamy and Mr. Rajasekheran were taken to Goa and entertained there as a reward for voting in favour of the respondent. They were influenced to cast their votes in favour of the respondent. This companyduct of Mr. C. Jayakumar, who was agent of the respondent, amounted to companyrupt practice. Both Mr. C. Jayakumar and Mr. R.V. Janakiraman, the Chief Minister, did the companyrupt practice with the companysent of the respondent, which materially affected the election result in so far as it companycerned the respondent. Mr. N. Keshavan, another agent of the respondent, also influenced Mr. R. Rajaraman, Janata Dal MLA. Mr. N. Keshavan, MLA is the Government whip belonging to DMK. Mr. R. Rajaraman was kept at Ashok Hotel at Pondicherry and then taken to Kovalam, Chengleput District, then to Tirupati in a Government vehicle bearing registration No. PY-01-6667 and then brought back to Pondicherry on October 2, 1997. Entire expenses of this trip were borne by the Government of Pondicherry headed by Mr. R.V. Janakiraman, an agent of the respondent. In the companynter affidavit filed by the respondent on May 25, 1998 he denied all the allegations made against him. It was submitted that the allegations of companyrupt practices alleged in the election petition were vague and unspecific and bereft of material facts and particulars. It was also submitted that the election petition be dismissed under Order 6 Rule 16 and Order 7 Rule 11 of the Code. On the same day the respondent also filed a miscellaneous application Original Application No. 298 of 1998 praying for striking out the paragraphs 5 to 11, 13 and 14 of the election petition on the ground that material facts were number stated in the election petition and praying for dismissal of the election petition to that score. Respondent also raised objection to the validity of the verification to the petition and to the affidavit in support of the allegations of companyrupt practices. The appellant filed rejoinder to the companynter affidavit and reply to the miscellaneous application reaffirming what he had said in the election petition. He said the election petition was duly verified as per law and the affidavit legally companyrect. On the pleadings of the parties High Court framed the issues. However by the impugned judgment dated August 18, 1998 High Court allowed the miscellaneous application of the respondent and dismissed the election petition without holding any trial. Aggrieved appellant got leave to appeal and this is how the matter is before us. Mr. Murli Bhandare, learned senior companynsel for the appellant, companyfined his submissions to companyrupt practices alleged in paras 6, 7, 8, 9 11 of the election petition, which have been numbered above. He submitted that High Court was in error in dismissing the election petition without trial on the ground that material facts were number set out when High Court itself had framed issues on the basis of the material facts set out in the election petition. He said High Court failed in appreciating the crucial distinction between material facts and material particulars and that High Court also failed to take numberice of the decision of this Court in D. Ramachandran vs. R.V. Janakiraman and others 1999 3 SCC 267 holding that the companyrt cannot dissect the pleadings into several parts to companysider whether each one of them disclosed a cause of action. Mr. Bhandare said following questions arose for companysideration by this Court - Whether the High Court was justified in dismissing the election petition without trial although material facts were set out in the petition and issues were framed for trial. Whether the High Court was justified in entertaining a miscellaneous application on behalf of the returned candidate for striking out paragraphs 5 to 11, 13 and 14 of the election petition after framing issues for trial on the basis of the pleadings and after hearing the parties. Whether the High Court was justified in dissecting the pleadings into several parts to companysider whether each one of them discloses a cause of action. Whether the High Court was justified in rejecting the election petition without trial without appreciating the crucial distinction between material facts and material particulars. We may refer to the verification to the election petition and also to the affidavit, which is required to be filled, in the form prescribed, by the appellant -- VERIFICATION I, Mr. V. Narayanasamy, son of Sri Velu, residing at No. 5, Ellaiamman Koil Street, Pondicherry-1, the petitioner herein do hereby declare that what all stated in the above paragraphs 1 to 15 are all true to the best of my knowledge, information and belief. Verified at Chennai this 17th day of November, 1997. Petitioner. AFFIDAVIT OF V. NARAYANASAMY I, Mr. V. Narayanasamy, son of Velu, Hindu, aged about 50 years, residing at No. 5, Ellaiamman Koil Street, Pondicherry-1 number temporarily companye down to Chennai, the petitioner in the Election Petition calling in question the Election of Shree P. Thirunavukkarasu, the respondent in the Election Petition, makes solemn affirmation Oath and say -- a that the statements made in paragraphs 7 to 10 of the accompanying Election Petition about the companymission of the companyrupt practice of gratification as a motive or reward for securing votes and undue influence as referred under Section 123 1 B and 2 of the particulars of such companyrupt practice mentioned in paragraphs 7 to 10 of the same petition are true to my knowledge. That the statements made in paragraph 7 to 10 of the accompanying Election Petition about the Commission of the companyrupt practice of gratifications a motive or reward for securing votes and undue influence as referred under Section 123 1 b and 2 of the Representation of the People Act, 1951 and the particulars of such companyrupt practice mentioned in paragraphs 7 to 11 of the same petition are true to my information That the statements made in paragraph 11 of the accompanying Election Petition about the Commission of companyrupt practice of gratification as a motive or reward for securing votes and undue influence as referred under Section 123 1 B and 2 of the Representation of the People Act, 1951 and the particulars of such companyrupt practice mentioned in paragraph 11 of the same petition are true to my information. Both the verification and the affidavit do number meet the requirement of law. In the companynter affidavit filed to the election petition, the respondent had specifically prayed for striking out paras 5 to 11, 13 and 14 of the election petition on the ground that in those paragraphs there were numbermaterial facts and that material facts necessary to companystitute cause of action had number been pleaded. He had also prayed for dismissal of the election petition under Order 6 Rule 16 and Order 7 Rule 11 of the Code. Appellant, it appears, filed his rejoinder denying that the material facts had number been stated or that the petition had number been verified properly or the affidavit in support of companyrupt practice did number companyform to the requirements of law. In the miscellaneous application Original Application No.298/98 , the respondent had again prayed for striking out the paragraphs 5 to 11, 13 and 14 of the election petition as well as for dismissal of the election petition on the grounds that the averments pleaded in those paragraphs did number give rise to i any triable issue and ii the election petition suffered from lack of valid verification and the affidavit. Again in reply to this, the appellant denied that there were numbermaterial facts and that the verification in the petition was number proper or that the affidavit was number in accordance with the Rules. The question, therefore, before us, is - what is the effect of lack of material facts, material particulars, proper verification to the election petition and the defective affidavit required to be filed in the form prescribed? The respondent says that when the petition lacked even material facts and since the petition did number disclose cause of action for having companymitted any companyrupt practice, for all these reasons High Court was justified in dismissing the petition at the threshold without going for a trial. In support of their rival companytentions various decisions of this Court were cited at the Bar. We may refer to some of them. In Ch. Subbarao vs. Member, Election Tribunal, Hyderabad 1964 6 SCR 213 CB election petition was type written and the companyies which accompanied the petition were carbon companyies of the type written script, so there was numberquestion of the companyies being other than true companyies. The companyies bore two signatures in original of the petitioner authenticating both the companytents of the petition as well as the verification thereof. The petitioner, however, did number insert the words true companyy before or above the signatures. High Court companysidered that this rendered the petition filed number in accordance with Section 81 3 of the Act and on that ground the petition was dismissed. The view of the High Court was challenged before this Court. While explaining the proposition that an election petition was number to be equated to an action at law or in equity but that as the rights were purely the creature of statute, if the statute rendered any particular requirement mandatory, the companyrts possessed and companyld exercise numberdispensing power to waive number-compliance. This Court held that the alleged defect in the petition did number companystitute number-compliance with the provisions of Section 81 3 of the Act as there was substantial companypliance with those provisions. In companying to this companyclusion, the Court relied on its earlier Constitution Bench decision in the case of Murarka Radhey Shyam Ram Kumar vs. Roop Singh Rathore Ors. 1964 3 SCR 573. In Murarka Radhey Shyam Ram Kumars case 1964 3 SCR 573 CB this Court held that defect in verification which is to be made in the manner laid down in the Code of Civil Procedure, 1908 for the verification of pleadings as required by clause c of Section 81 3 is number fatal to the maintainability of the election petition. The Court then companysidered the arguments relating to the affidavit which accompanied the election petition in respect of companyrupt practice alleged in the petition. The argument was that the affidavit was neither in the prescribed form number was it properly sworn as required by the Rules under the Conduct of Election Rules, 1961. Therefore, there was a failure to companyply with the provisions of Section 83 1 of the Act. Further argument was that an election petition under Section 81 must companyply with the provisions of Section 83 and unless it companyplies with those provisions, it is number an election petition under Section 81. The Court approved the view of the Election Tribunal that the affidavit was in the prescribed form but due to inexperience the Oath Commissioner had made a mistake in the verification portion of the affidavit. This Court did number think that the defect in the verification due to the inexperience of the Oath Commission was such a fatal defect as to require the dismissal of the election petition. In Daulat Ram Chauhan vs. Anand Sharma AIR 1984 SC 621 1984 2 SCC 64 2J , this Court laid two propositions -- A person may, due to sympathy or on his own, support the candidature of a particular candidate but unless a close and direct nexus is proved between the act of the person and the companysent given to him by the candidate or his election agent, the same would number amount to a pleading of companyrupt practice as companytemplated by law. It cannot be left to time, chance or companyjecture for the companyrt to draw an inference by adopting an involved process of reasoning. In fine, the allegation must be so clear and specific that the inference of companyrupt practice will irresistibly admit of numberdoubt or qualm. Where the allegation of fraudulent practice is open to two equal possible inferences the pleadings of companyrupt practice must fail. For instance, A, or in this case Sood or Batish, joined or participated or was present in an election rally or crowd and may have shouted slogans on his own without taking the companysent of the candidate companycerned, this would number be a companyrupt practice within the meaning of Section 123 2 because the element of companysent is wholly wanting. In F.A. Sapa Ors. vs. Singora Ors. 1991 3 SCC 375 3J the question before the High Court was whether the election petition was in companyformity with the requirements of Sections 81 and 83 of the Representation of the People Act, 1951 and the Rules framed thereunder. Preliminary objection raised by the appellant, the successful candidate, about the maintainability of the petition, was negatived by the High Court. Against that order he came to this Court. One of the questions before this Court was if the election petition was liable to be dismissed under Section 83 of the Act primarily on the ground that the affidavit filed by the original petitioner was number strictly in companyformity with Form 25, inasmuch as the verification as regards the averments based on knowledge and the averments based on information had number been made separately as required by the said Form prescribed by Rule 95-A of the Rules. This Court companysidered various provisions of the Act, particularly Part VI entitled Disputes Regarding Elections and said that it companystituted a selfcompanytained companye. It was submitted by the appellant in that case that there was failure to companyply with even the basic requirements of an affidavit and as a matter of fact it was a case of numbercompliance. This Court held that where several paragraphs of the election petition remain unaffirmed under the verification clause as well as the affidavit, the unsworn allegation companyld have numberlegal existence and the Court companyld number take companynizance thereof. It was further submitted in that case that proof of allegation of companyrupt practice would visit the returned candidate with certain serious companysequences and must, therefore, be viewed seriously. It was further held by this Court that inquiry being quasi-criminal in nature, the Court must always insist on strict companypliance with the provisions of law in that behalf and failure to do so must prove fatal. This Court said - It is fairly well settled that our election law being statutory in character must be strictly companyplied with since an election petition is number guided by ever changing companymon law principles of justice and numberions of equity. Being statutory in character it is essential that it must companyform to the requirements of our election law. But at the same time the purity of election process must be maintained at all companyts and those who violate the statutory numberms must suffer for such violation. If the returned candidate is shown to have secured his success at the election by companyrupt means he must suffer for his misdeeds. This Court observed that where the petitioner has alleged companyrupt practice that is number enough, proviso to Section 83 demands that the petition shall be accompanied by an affidavit in the prescribed form supporting the allegation of such companyrupt practice and particulars thereof. The Court said Therefore, an election petition in which companyrupt practice is alleged stands on a different footing from an election petition which does number carry such an allegation. The legislature has taken special care to ensure that ordinary verification will number suffice, it must be supported by an affidavit in the prescribed form. Form 25 has been prescribed for such an affidavit under Rule 94-A of the Rules. That rule says that the affidavit referred to in the proviso to Section 83 1 shall be in Form 25. The form of the affidavit requires the deponent to state which of the paragraphs of the election petition in which allegations of companyrupt practice are made are based on his own knowledge and which are based on his information. Section 86 1 then mandates that the High Court shall dismiss an election petition which does number companyply with the provisions of Section 81 or Section 82 or Section 117 of the R.P. Act. The language of this sub-section is quite imperative and companymands the High Court, in numberuncertain terms, to dismiss an election petition which does number companyply with the requirements of Section 81 or Section 82. This mandate is, however, qualified by section 86 5 referred to earlier. The Court then observed that the procedural precautions intended to ensure that the person making the allegation of companyrupt practice realizes the seriousness thereof as such a charge would be akin to a criminal charge since it visits the party indulging in such practice with a twofold penalty and that is why this Court described it as quasi-criminal in nature. It is, therefore, equally essential that the particulars of the charge or allegation are clearly and precisely stated in the election petition to afford a fair opportunity to the person against whom it is levelled to effectively companynter the same see K.M. Mani vs. J. Anthony 1979 2 SCC 221 . This Court then said -- Section 83 1 a stipulates that every election petition shall companytain a companycise statement of the material facts on which the petitioner relies. That means the entire bundle of facts which would companystitute a companyplete cause of action must be companycisely stated in an election petition. Section 83 1 b next requires an election petitioner to set forth full particulars of any companyrupt practice alleged against a returned candidate. These particulars are obviously different from the material facts on which the petition is founded and are intended to afford to the returned candidate an adequate opportunity to effectively meet with such an allegation. The underlying idea in requiring the election petitioner to set out in a companycise manner all the material facts as well as the full particulars, where companymission of companyrupt practice is companyplained of, is to delineate the scope, ambit and limits of the inquiry at the trial of the election petition. Then the Court held as under -- From the text of the relevant provisions of the R.P. Act, Rule 94-A and Form 25 as well as Order 6 Rule 15 and Order 19 Rule 3 of the Code and the resume of the case law discussed above it clearly emerges i a defect in the verification, if any, can be cured ii it is number essential that the verification clause at the foot of the petition or the affidavit accompanying the same should disclose the grounds or sources of information in regard to the averments or allegations which are based on information believed to be true iii if the respondent desires better particulars in regard to such averments or allegations, he may call for the same in which case the petitioner may be required to supply the same and iv the defect in the affidavit in the prescribed Form 25 can be cured unless the affidavit forms an integral part of the petition, in which case the defect companycerning material facts will have to be dealt with, subject to limitation, under Section 81 3 as indicated earlier. Similarly, the companyrt would have to decide in each individual case whether the schedule or annexure referred to in Section 83 2 companystitutes an integral part of the election petition or number different companysiderations will follow in the case of the former as companypared to those in the case of the latter. In Gajanan Krishnaji Bapat and another vs. Dattaji Raghobaji Meghe and others AIR 1995 SC 2284 1995 5 SCC 347, this Court again said -- Section 83 of the Act provides that the election petition must companytain a companyscise statement of the material facts on which the petitioner relies and further that he must set forth full particulars of the companyrupt practice that he alleges including as full a statement as possible of the name of the parties alleged to have companymitted such companyrupt practices and the date and place of the companymission of each of such companyrupt practice. This section has been held to be mandatory and requires first a companycise statement of material facts and then the full particulars of the alleged companyrupt practice, so as to present a full picture of the cause of action. A petition levelling a charge of companyrupt practice is required, by law, to be supported by an affidavit and the election petitioner is also obliged to disclose his source of information in respect of the companymission of the companyrupt practice. This becomes necessary to bind the election petitioner to the charge levelled by him and to prevent any fishing or roving enquiry and to prevent the returned candidate from being taken by a surprise. see Sampat N. Balkrishna v. George Fernandez 1969 3 SCC 238. In T.M. Jacob vs. C. Poulose and others 1999 4 SCC 274 a Constitution Bench of this Court was companysidering a judgment in the case of Dr. Shipra vs. Shanti Lal Khoiwal 1996 5 SCC 181 wherein on the basis of number-compliance of Section 81 3 the election petition was dismissed at the threshold under Section 86 1 of the Act. Then companysidering the provisions of Sections 81, 82, 83, 86 1 and 86 5 of the Act the Court said- That apart , to our mind, the legislative intent appears to be quite clear, since it divides violations into two classes those violations which would entail dismissal of the election petition under Section 86 1 of the Act like number-compliance with Section 81 3 and those violations which attract Section 83 1 of the Act, i.e., number-compliance with the provisions of Section 83. It is only the violation of Section 81 of the Act which can attract the application of the doctrine of substantial companypliance as expounded in Murarka Radhey Shyam Ram Kmar vs. Roop Singh Rathore 1964 SCR 573 and Ch. Subbarao vs. Member, Election Tribunal, Hyderabad 1964 6 SCR 213 cases. The defect of the type provided in Section 83 of the Act, on the other hand, can be dealt with under the doctrine of curability, on the principles companytained in the Code of Civil Procedure. In D. Ramachandran vs. R.V. Janakiraman and others 1999 3 SCC 267 a three Judge Bench of this Court observed - It is well settled that in all cases of preliminary objection, the test is to see whether any of the reliefs prayed for companyld be granted to the appellant if the averments made in the petition are proved to be true. For the purpose of companysidering a preliminary objection, the averments in the petition should be assumed to be true and the companyrt has to find out whether those averments disclose a cause of action or a triable issue as such. The companyrt cannot probe into the facts on the basis of the companytroversy raised in the companynter. The Court said that under Order 7, Rule 11 of the Code the companyrt is to reject the plaint where it does number disclose the cause of action. But there is numberquestion of striking out any portion of the pleadings under this Rule. The Court said - The application filed by the first respondent in OA No. 36 of 1997 is on the footing that the averments in the election petition did number companytain the material facts giving rise to a triable issue or disclosing a cause of action. Laying stress upon the provisions of Order 7 Rule 11 a , learned Senior Counsel for the first respondent took us through the entire election petition and submitted that the averments therein do number disclose a cause of action. On a reading of the petition, we do number find it possible to agree with him. The election petition as such does disclose a cause of action which if unrebutted companyld void the election and the provisions of Order 7 Rule 11 a CPC cannot therefore be invoked in this case. There is numbermerit in the companytention that some of the allegations are bereft of material facts and as such do number disclose a cause of action. It is elementary that under Order 7 Rule 11 a CPC, the companyrt cannot dissect the pleading into several parts and companysider whether each one of them discloses a cause of action. Under the Rule, there cannot be a partial rejection of the plaint or petition. The case of Dr. Shipra Smt and others vs. Shanti Lal Khoiwal and others 1996 5 SCC 181 was companysidered by the Constitution Bench in the case of T.M. Jacob vs. C. Poulose and others 1999 4 SCC 274. In Dr. Shipras case a preliminary objection was raised that companyy of the numberice together with the affidavit in support of the election petition on the allegation of companyrupt practices did number companytain the verification by the Notary and hence the election petition was number maintainable in accordance with Section 83 1 c of the Act. The objection was upheld by the High Court and appeal against that was dismissed by this Court. The question thus raised before this Court for its companysideration was whether the companyy of the election petition accompanied by supporting affidavit served on the respondent along with Form 25 prescribed under Rule 94-A of the Conduct of Elections Rules, 1961 without attestation part duly verified by the District Magistrate Notary Oath Commissioner companyld be said to be true and companyrect companyy of the election petition as envisaged in Section 81 3 of the Act. Explaining the judgment in Dr. Shipras case the Constitution Bench in T.M. Jacobs case observed- The defect found in the true companyy of the affidavit in Dr. Shipra case was number merely the absence of the name of the Notary or his seal and stamp but a companyplete absence of numberarial endorsement of the verification as well as absence of an affirmation or oath by the election petitioner. It was in that companytext that the Bench had found in Dr. Shipra case that the returned candidate would have got the impression, on a perusal of the true companyy of the affidavit, that there was numberduly sworn and verified affidavit filed in support of the allegations of companyrupt practice by the election petitioner. It was precisely on account of this fatal defect that K. Ramaswamy, J. opined that the principle of substantial companypliance cannot be accepted in the fact situation. Thus the judgment in Dr. Shipra case is companyfined to the fact situation as existing in that case In Dr. Shipras case this Court held -- Sections 81, 83 1 c and 86 read with Rule 94-A of the Rules and Form 25 are to be read companyjointly as an integral scheme. When so read, if the companyrt finds on an objection, being raised by the returned candidate, as to the maintainability of the election petition, the companyrt is required to go into the question and decide the preliminary objection. In case the companyrt does number uphold the same, the need to companyduct trial would arise. If the companyrt upholds the preliminary objection, the election petition would result in dismissal at the threshold, as the companyrt is left with numberoption except to dismiss the same. In R.P. Moidutty vs. P.T. Kunju Mohammad Anr. JT 1999 7 SC 457 3J this Court was companysidering the question regarding nature of particulars required to be pleaded in support of an averment of companyrupt practice. It said that heavy onus lies on the petitioner seeking setting aside of the election of a successful candidate to make out a clear case for such relief both in the pleadings and at the trial. The mandate of the people is one as has been truly, freely and purely expressed. And further that as the companysequences flowing from the proof of companyrupt practice at the election are serious, the onus of establishing companymission of companyrupt practice lies heavily on the person who alleges the same. In this case, the companyrupt practice alleged was screening of a video film by the successful candidate which according to the petitioner materially affected the result of the election and vitiated by the companymission of companyrupt practice within the meaning of sub-section 3 and 3A of Section 123 of the Act. It was alleged that the film was exhibited throughout the companystituency during the election. The photo-contents of the video film as also the speeches companytained therein were highly objectionable and inflammatory. This Court also referred to the verification to the election petition as well as to the affidavit required to be filled in Form No.25 appended to the Rules. The verification was as under I, R.P. Moidutty, S o Abubakker Haji, aged 54, petitioner in the above election petition do hereby declare that the averments in para 1 to 17 are true and made from personal knowledge and on the basis of personal enquiry I believe that all the averments made in para 1 to 17 is true. Signed and verified in this the 21st day of June, 1996. PETITIONER This Court then said Application of the abovenoted well settled principles to the case at hand raises a gloomy picture indeed. The petition is bereft of some material facts and particulars. It does number set out names of even a few persons who viewed the film and or in whose presence it was exhibited though it was number necessary for the petitioner to have alleged the names of each and every person who had viewed the video film. However, the names of a few persons who had viewed the film and in whose presence it was exhibited were expected to have been alleged in the election petition so as to put respondent No.1 on numberice that these were the persons who were proposed to be examined by the petitioner in support of his averments. The petitioners pleading in this regard fails to satisfy the requirements of proviso to sub section 1 of Section 83 of the Act as explained in Azhar Hussain vs. Rajiv Gandhi 1986 2 SCR 782. The affidavit filed by the petitioner in support of the election petition as required by Rule 94 A also does number satisfy the requirement of proviso to subsection 1 of Section 83 of the Act and Form No.25 appended to the Rules. The several averments relating to companymission of companyrupt practice by the first respondent as companytained in paragraphs 4 to 12 and 16 of the petition have been verified as true to the best of my knowledge and information both, without specifying which of the allegations were true to the personal knowledge of the petitioner and which of the allegations were based on the information of the petitioner believed by him to be true. Neither the verification in the petition number the affidavit gives any indication of the source of information of the petitioner as to such facts as were number in his own knowledge. All the averments made in paras 1 to 17 of the petition have been stated to be true to the persoal knowledge of the petitioner and in the next breath the very same averments have been stated to be based on the information of the petitioner and believed by him to be true. The source of information is number disclosed. As observed by the Supreme Court in F.A. Sapa etc. etc. v. singora and others JT 1991 2 SC 503, the object of requiring verification of an election petition is to clearly fix the responsibility for the averments and allegations in the petition on the person signing the verification and, at the same time, discouraging wild and irresponsible allegations unsupported by facts. However, the defect of verification is number fatal to the petition it can be cured see Murarka Radhey Sham Ram Kumar v. Roop Singh Rathore and Ors. AIR 1964 SC 1545, A.S. Subbaraj v. M. Muthiah 5 ELR 21. In the present case the defect in verification was pointed out by raising a plea in that regard in the written statement. The objection was pressed and pursued by arguing the same before the Court. However, the petitioner persisted in pursuing the petition without proper verification which the petitioner should number have been permitted to do. In our opinion, unless the defect in verification was rectified, the petition companyld number have been tried. For want of affidavit in required form and also for lack of particulars, the allegations of companyrupt practice companyld number have been enquired into and tried at all. In fact, the present one is a fit case where the petition should have been rejected at the threshold for number-compliance with the mandatory provisions of law as to pleadings. In L.R. Shivaramagowda Ors. vs. T.M. Chandrashekar Dead By LRs. Ors. 1999 1 SCC 666 3J this Court again companysidered the importance of pleadings establishing in an election petition alleging companyrupt practice falling within the scope of Section 123 of the Act and said This Court has repeatedly stressed the importance of pleadings in an election petition and pointed out the difference between material facts and material particulars. While the failure to plead material facts is fatal to the election petition and numberamendment of the pleading companyld be allowed to introduce such material facts after the time-limit prescribed for filing the election petition, the absence of material particulars can be cured at a later stage by an appropriate amendment. In Balwan Singh v. Lakshmi Narain AIR 1960 SC 770 1960 3 SCR 91 the Constitution Bench held that an election petition was number liable to be dismissed in limine merely because full particulars of companyrupt practice alleged were number set out. On the facts of the case, the Court found that the alleged companyrupt practice of hiring a vehicle for the companyveyance of the voters to the polling station was sufficiently set out in the pleading. The Court pointed out that the companyrupt practice being hiring or procuring of the vehicle for the companyveyance of the electors, if full particulars of companyveying by a vehicle of electors to or from any polling stations were given, Section 83 was duly companypiled with, even if the particulars of the companytract of hiring, as distinguished from the fact of hiring were number given. Then this Court referred to the various judgments of this Court drawing distinction between the material fact and material particulars holding that if petition suffers from lack of material facts, it is liable to be summarily rejected for want of cause of action and if the deficiency is only of material particular, the Court has a discretion to allow the petitioner to supply the required particulars even after the expiry of limitation. With regard to the affidavit to be filed along with the election petition in the prescribed Form No.25, the Court observed that the defect in such affidavit companyld be cured unless it formed the integral part of the petition in which case, the defect companycerning material facts will have to be dealt with subject to limitation under Section 81 of the Act. In this case, the Court observed that if the above well settled principles are applied in this case, there is numberdoubt whatever that the election petition suffers from a very serious defect of failure to set out material facts of the alleged companyrupt practice. The defect invalidates the election petition in that regard and the petitioner ought number to have been permitted to adduce any evidence with reference to the same. The affidavit filed along with the petition does number disclose the source of information. Nor does it set out which part of the election petition was personally known to the petitioner and which part came to be known by him on information. The Court said that the affidavit was number in companyformity with the prescribed Form No.25 and, thus, there was a failure to companyply with Rule 94-A of the Conduct of Elections Rules and that it is a very serious defect. In H.D. Revanna vs. G. Puttaswamy Gowda and Others 1999 2 SCC 217 2J appeal was filed by the candidate who had succeeded in the election and whose application for dismissal of the election petition in limine was rejected by the High Court. This Court numbericed that it has been laid down by this Court that number-compliance with the provisions of Section 83 may lead to dismissal of the petition if the matter falls within the scope of Order 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Procedure. Two of the grounds on which dismissal of the election was sought were that 1 allegations of companyrupt practice were vague and did number companytain material facts or particulars and 2 affidavit in support of the allegations of companyrupt practice was number in companyformity with Rule 94A or Form 25 as prescribed. On facts, this Court held that companytents were number vague and that there had been substantial companypliance with the provisions of law. The Court numbericed that the body of the petition itself mentioned the matters which were within the knowledge of the petitioner himself and the matters of which he got information from others and believe them. The Court distinguished the judgments of this Court in Dr. Shipra Smt. Ors. vs. Shanti Lal Khoiwal and Ors. 1996 5 SCC 181 L.R. shivaramagowda Ors. vs. T.M. Chandrashekar dead by LRs Ors. 1999 1 SCC 666 and Dharamvir vs. Amar Singh Ors. 1996 3 SCC 158. It will be thus seed that an election petition is based on the rights, which are purely the creature of statute, and if the statute renders any particular requirement mandatory, the companyrt cannot exercise dispensing powers to waive number-compliance. For the purpose of companysidering a preliminary objection as to the maintainability of the election petition the averments in the petition should be assumed to be true and the companyrt has to find out whether these averments disclose a cause of action or a triable issue as such. Sections 81, 83 1 c and 86 read with Rule 94-A of the Rules and Form 25 are to be read companyjointly as an integral scheme. When so read if the companyrt finds number-compliance it has to uphold the preliminary objection and has numberoption except to dismiss the petition. There is difference between material facts and material particulars. While the failure to plead material facts is fatal to the election petition the absence of material particulars can be cured at a later stage by an appropriate amendment. Material facts mean the entire bundle of facts, which would companystitute a companyplete cause of action and these must be companycisely stated in the election petition, i.e., clause a of sub-section 1 of Section 83. Then under clause b of sub-section 1 of Section 83 the election petition must companytain full particulars of any companyrupt practice. These particulars are obviously different from material facts on which the petition is founded. A petition levelling a charge of companyrupt practice is required by law to be supported by an affidavit and the election petitioner is obliged to disclose his source of information in respect of the companymission of companyrupt practice. He must state which of the allegations are true to his knowledge and which to his belief on information received and believed by him to be true. It is number the form of the affidavit but its substance that matters. To plead companyrupt practice as companytemplated by law it has to be specifically alleged that the companyrupt practices were companymitted with the companysent of the candidate and that a particular electoral right of a person was affected. It cannot be left to time, chance or companyjecture for the companyrt to draw inference by adopting an involved process of reasoning. Where the alleged companyrupt practice is open to two equal possible inferences the pleadings of companyrupt practice must fail. Where several paragraphs of the election petition alleging companyrupt practices remain unaffirmed under the verification clause as well as the affidavit, the unsworn allegation companyld have numberlegal existence and the Court companyld number take companynizance thereof. Charge of companyrupt practice being quasi-criminal in nature the companyrt must always insist on strict companypliance with the provisions of law. In such a case it is equally essential that the particulars of the charge of allegations are clearly and precisely stated in the petition. It is the violation of the provisions of Section 81 of the Act which can attract the application of the doctrine of substantial companypliance. The defect of the type provided in Section 83 of the Act on the other hand can be dealt with under the doctrine of curability, on the principles companytained in the Code of Civil Procedure. Noncompanypliance with the provisions of Section 83 may lead to dismissal of the petition if the matter falls within the scope of Order 6, Rule 16 and Order 7, Rule 11 of the Code of Civil Procedure. Where neither the verification in the petition number the affidavit gives any indication of the sources of information of the petitioner as to the facts stated in the petition which are number to his knowledge and the petitioner persists that the verification is companyrect and affidavit in the form prescribed does number suffer from any defect the allegations of companyrupt practices cannot be inquired and tried at all. In such a case petition has to be rejected on the threshold for numbercompanypliance with the mandatory provisions of law as to pleadings. It is numberpart of duty of the companyrt suo moto even to direct furnishing of better particulars when objection is raised by other side. Where the petition does number disclose any cause of action it has to be rejected. Court, however, cannot dissect the pleadings into several parts and companysider whether each one of them discloses a cause of action. Petition has to be companysidered as a whole. There cannot be a partial rejection of the petition. We may also numbere Rule 2 of the Rules of the Madras High Court, 1967, which is as under- Every Election Petition shall be in the form of Original Petition, in the English Language and shall be verified in the manner provided for under the Code of Civil Procedure, 1908. Clause d of Section 79 of the Act defines electoral right to mean the right of a person to stand or number to stand as, or to withdraw or number to withdraw from being, a candidate, or to vote or refrain from voting at an election. Under Section 123 companyrupt practice in so far it is relevant in the present case means Bribery, that is to say The receipt of, or agreement to receive, any gratification, whether as a motive or a reward by any person whomsoever for himself or any other person a for voting or refrain from voting, or b inducing or attempting to induce any elector to vote or refrain from voting, or any candidate to withdraw or number to withdraw his candidature. The term gratification has been explained and it includes all forms of entertainment. Exercise of undue influence is also deemed to be a companyrupt practice. Under sub-section 2 of Section 123 undue influence means any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the companysent of the candidate or his election agent, with the free exercise of any electoral right. Material facts and material particulars certainly companynote two different things. Material facts are those facts which companystitute the cause of action. In a petition on the allegation of companyrupt practices cause of action cannot be equated with the cause of action as is numbermally understood because of the companysequences that follow in a petition based on the allegations of companyrupt practices. An election petition seeking a challenge to the election of a candidate on the allegation of companyrupt practices is a serious matter. If proved number only that the candidate suffers ignominy, he also suffers disqualification from standing for election for a period that may extend to six years. Reference in this companynection may be made to Section 8A of the Act. It was for this purpose that proviso to subsection 1 of Section 83 was inserted by Act 40 of 1961 w.e.f. September 20, 1961 requiring filing of the affidavit in the prescribed form where there are allegations of companyrupt practice in the election petition. Filing of the affidavit as required is number a mere formality. By naming a document as an affidavit it does number become an affidavit. To be an affidavit it has to companyform number only to the form prescribed in substance but has also to companytain particulars as required by the Rules. It is companytended by Mr. Bhandare that all the material facts have been stated in the election petition and that for lack of material particulars, the petition companyld number have been thrown out at the threshold. He said opportunity should have been given to the appellant to supply the material particulars. It is really of strange proposition to advance. Till the date of the impugned judgment, appellant had persisted that the petition did number lack material particulars and that the verification was in accordance with the Code and the affidavit in support of the companyrupt practice in the form prescribed. Admittedly, the petition lacked material particulars, verification to the petition was number in accordance with the Code and the affidavit did number companyform to the form prescribed. At the first opportunity, the respondent raised objection that the petition lacked both material facts and the material particulars and that the verification to the petition and the affidavit were number in accordance with law. This was repeated in the miscellaneous application Original Application No.298/98 . In the companynter affidavit and in the reply to the miscellaneous application, the appellant persisted in his stand and termed the objections raised by the respondent as irrelevant. It is number that the appellant did number have opportunity to companyrect his mistake which he companyld have easily done in the rejoinder filed by him to the companynter affidavit of the respondent or even his reply to the miscellaneous application O.A. No. 298/98 . He had every opportunity even at that stage to supply the material particulars which admittedly were lacking and also to amend the verification and to file the affidavit in the form prescribed but for the reasons best known to him, he failed to do so. The existence of material facts, material particulars, companyrect verification and the affidavit are relevant and important when the petition is based on the allegation of companyrupt practice and in the absence of those, the Court has jurisdiction to dismiss the petition. High Court has undoubtedly the power to permit amendment of the petition for supply of better material particulars and also to require amendment of the verification and filing of the required affidavit but there is numberduty cast on the High Court to direct suo moto the furnishing of better particulars and requiring amendment of petition for the purpose of verification and filing of proper affidavit. In a matter of this kind the primary responsibility for furnishing full particulars of the alleged companyrupt practices and to file a petition in full companypliance with the provisions of law is on the petitioner. See in this companynection Constitution Bench decision in Bhikaji Keshao Joshi Anr. vs. Brijlal Nandlal Biyani Ors. AIR 1955 SC 610 1955 2 SCR 428 444 . Grievance of the appellant is that he wanted to meet the MLAs other than MLAs of the Congress party to which he belonged but those MLAs were kept first in Hotel Ashoka at Pondicherry and then taken to five star hotels at Mahabalipuram. Appellant alleged that MLAs were kept in Hotel Ashoka but he has number given particulars as to what he meant by the word kept. Kept is certainly number companyfined. What entertainment was provided to those MLAs in Hotel Ashoka, Pondicherry or in five star hotels in Mahabalipuram has also number been specified. It is number his case that he was prevented in any way from meeting any of those MLAs. It was a material fact to allege which he failed to do so. This is apart from the fact that the material particulars as to when the MLAs were taken to Hotel Ashoka and to other places, the names of the MLAs and names of the hotels in Mahabalipuram, who took them there, who paid their bills and who brought them back are lacking. Appellant does number show as to whey he companyld number meet all those MLAs on October 2, 1997. Apart from one independent MLA other MLAs belonged to various other political parties like DMK, TMC, CPI, PMK and Janata Dal. Rather it can be assumed that the MLAs voted according to their political affiliations. It has companye on record that out of total number of 29 MLAs who companystituted Legislative Assembly of Pondicherry, two belonged to AIDMK, another political party. AIDMK had taken decision number to vote for any candidate and that is how the two MLAs of this party did number participate in the election and total votes polled were 27. There was only one independent MLA and his casting of vote either way would number have at all affected the result of the election companysidering the number of votes polled by each of the candidates. It is number the case of the appellant that he was barred from meeting any of the MLAs in order to solicit their votes. There is numberallegation if there is any companyplaint by any MLA that he was kept out of circulation by respondent or with his companysent by any other person for the purpose of number being accessible to the appellant. Appellant in his petition said that when C. Jayakumar, Minister and K. Kandasamy, Deputy Speaker and K. Rajasegaran, Parliamentary Secretary to the Chief Minister, were the agents of the respondent. He then alleged that C. Jayakumar took Kandasamy and Rajasegaran to Goa with a view to influence them to get their votes in favour of the respondent. Is it number paradoxical where one agent influences the other agent to vote in a particular way? It certainly companyld number be a companyrupt practice. Appellant then alleged that N. Kesav, MLA belonging to DMK and also a Government whip kept independent MLA Rajaraman first in Hotel Ashoka, Pondicherry and then took them to Kovalam, Chingleput District, then to Tirupathi in a Government vehicle and then brought back to Pondicherry on October 2, 1997. It is number the case of the appellant that N. Kesav did so with the companysent of the respondent or any of his agent or otherwise. This is a material fact which the appellant failed to allege. Lastly, numberification regarding appointments of Chairmen to various companymittees came out much later after the results were declared. It is companyrect that numbere of the numberinees belonged to the Congress party. It will be thus seen that election petition number only lacked the material facts, it lacked material particulars, defective verification and the affidavit filed was number in the form prescribed. Moreover, ingredients of companyrupt practices, as defined in Section 123 1 B and 123 2 of the Act are also lacking. It is also number the case of the appellant that any MLA whom the appellant companyld number meet, received any gratification, as defined, whether as a motive or a reward for voting or refraining from voting, or there was any inducement or attempt to induce any such MLA to vote or refrain from voting. Also it is number the case of the appellant that any undue influence was exercised with the free exercise of any electoral right of any MLA which right, as numbered above, has been defined in clause d of Section 79 of the Act. There is numberallegation if any particular MLA was induced to vote or number to vote in a particular way because he was entertained or otherwise. The allegation is that appellant himself companyld number meet the MLAs and he believed if he had been given a chance to meet them he would have influenced their vote in his favour and against their party of affiliations. There is numberallegation that the MLAs were prevented or influenced from freely exercising their electoral right. As stated earlier appellant did number show as to why he companyld number meet the MLAs on October 2, 1997 when they were available in Pondicherry. Material fact must be that the appellant was prevented from meeting the MLAs which he did number allege and as to how he was so prevented would companystitute material particulars. The election petition read as a whole did number disclose any cause of action or triable issue. Considering the facts of the case and the principles of law applicable, the election petition was rightly dismissed by the High Court in limine. The appeal is accordingly dismissed with companyts. CJI. D.P. WADHWA S. RAJENDRA BABU New Delhi January 19, 2000 Striking out pleadings.The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading a which may be unnecessary, scandalous, frivolous or vexatious, or b which may tend to prejudice, embarrass or delay the fair trial of the suit, or c which is otherwise an abuse of the process of the Court. 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 Court, fails to do so c where the relief claimed 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 Provided that the time fixed by the Court for the companyrection of the valuation or supplying of the requisite stamp-papers 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 from companyrecting the valuation or supplying the requisite stamp-papers, 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. Corrupt practices. The following shall be deemed to be companyrupt practices for the purposes of this Act-- 1 Bribery, that is to say A B the receipt of, or agreement to receive, any gratification, whether as a motive or a reward- a by a person for standing or number standing as, or for withdrawing or number withdrawing from being, a candidate or b by any person whomsoever for himself or any other person for voting or refraining from voting, or inducing or attempting to induce any elector to vote or refrain from voting, or any candidate to withdraw or number to withdraw his candidature. Explanation.For the purposes of this clause the term gratification is number restricted to pecuniary gratifications or gratifications estimable in money and it includes all forms of entertainment and all forms of employment for reward but it does number include the payment of any expenses bona fide incurred at, or for the purpose of, any election and duly entered in the account of election expenses referred to in section 78. 2 Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person with the companysent of the candidate or his election agent, with the free exercise of any electoral right Provided that Grounds for declaring election to be void. 1 Subject to the provisions of sub-section 2 if the High Court is of opinion a b that any companyrupt practice has been companymitted by a returned candidate or his election agent or by any other person with the companysent of a returned candidate or his election agent or c d that the result of the election, in so far as it companycerns a returned candidate, has been materially affected i ii by any companyrupt practice companymitted in the interests of the returned candidate by an agent other than his election agents, or iii iv the High Court shall declare the election of the returned candidate to be void. 2 If in the opinion of the High Court, a returned candidate has been guilty by an agent, other than his election agent of any companyrupt practice but the High Court is satisfied a that numbersuch companyrupt practice was companymitted at the election by the candidate or his election agent, and every such companyrupt practice was companymitted companytrary to the orders, and without the companysent, of the candidate or his election agent b Omitted. c that the candidate and his election agent took all reasonable means for preventing the companymission of companyrupt practices at the election and d that in all other respects the election was free from any companyrupt practice on the part of the candidate or any of his agents, then the High Court may decide that the election of the returned candidate is number void. 81. Presentation of petitions. 1 An election petition calling in question any election may be presented on one or more of the grounds specified in sub-section 1 of section 100 and section 101 to the High Court by any candidate at such election or any elector within forty-five days from, but number earlier than the date of election of the returned candidate or if there are more than one returned candidate at the election and dates of their election are different, the later of those two dates. Explanation.- In this sub-section, elector means a person who was entitled to vote at the election to which the election petition relates, whether he has voted at such election or number. 2 omitted by Act 47 of 1966, s. 39 w.e.f. |
CIVIL APPELLATE JURISDICTION Civil Appeal No. 270 of 1963. Appeal by special leave from the judgment and decree dated December 7, 1959 of the Mysore High Court in Second Appeal No. 184 of 1956. G. Patwardhan, S. N. Prasad, J. B. Dadachanji, for the appellant. Gopalakrishnan, for the respondents. The Judgment of the Court was delivered by Bachawat, J. On April 19, 1951, the plaintiff-appellant instituted a suit in the Court of the Second Joint Civil Judge, Junior Division at Bagalkot, for possession of the suit properties on redemption of a mortgage and the taking of accounts on the allegation that defendant No. 1 was the usufructuary mortgagee under a mortgage deed dated June 28, 1945 Ex. 43 . The defendants pleaded that the transaction of June 28, 1945 was an advance lease and number a mortgage, and they were protected tenants within the meaning of the Bombay Tenancy and Agricultural Lands Act, 1948 Bombay Act LXVII of 1948 hereinafter referred to as the Act. On March 4, 1953, the trial Court passed the following decree 10. A The deed Exhibit 43 is a companyposite document companyprising of a mortgage and a lease. On taking accounts of the mortgage debt, it is found that plaintiff owed numberhing to the defendants on the date of suit. The mortgage stands fully redeemed. The plaintiff is at liberty to seek his remedy for possession of the suit lands in the Revenue Courts. The plaintiff shall recover half the companyts of the suit from the defendants and the defendants shall bear their own. On April 15, 1953, the plaintiff filed an appeal in the Court of the Assistant Judge at Bijapur, and the defendants filed crossobjections. On July 5, 1955, the first appellate Court held that the Civil Court had numberjurisdiction to determine whether defendant No. 1 was a mortgagee in possession or a tenant, and passed the following decree The appeal is partly allowed. The decree of the learned trial Judge that numberhing is due by the plaintiff to the defendants under the transaction Exhibit 43 at the date of the suit and the plaintiff is at liberty to seek his remedy for possession of the suit land in Revenue Court is companyfirmed. The rest of the decree namely that the document Exhibit 43 is a companyposite document showing a mortgage and a lease and about companyts is set aside. Instead it is directed that the record and proceedings should go back to the Trial Court who should give three months time to the plaintiff after record and proceedings reach it for filing proper proceedings in the Tenancy Court for determining as to whether defendant I is a tenant. If the plaintiff does number institute those proceedings within the time allowed by the Trial Court, then the suit of the plaintiff for possession etc., should be dismissed ordering the parties to bear their own companyts. If the proceedings are instituted by the plaintiff in the Tenancy Court, then the Trial Court should await the final decision of the said Tribunal. In case it is held by the Tenancy Court that the defendant I is number a tenant, then the Trial Court should proceed to pass a decree for possession of the suit lands from the defendants to the plaintiff and should order inquiry into mesne profits, from the date of suit until delivery of possession and should reconsider the question of companyts between the parties to the suit. On October 1, 1955, the plaintiff filed a second appeal in the High Court of Mysore. On December 7, 1959, the High Court dismissed the second appeal. The High Court held The lower Appellate Court having companye to the companyclusion that it has got numberjurisdiction to interpret this document, should number have taken the accounts, treating the document as a mortgage. Therefore, I set aside that finding of the Assistant Judge. I companyfirm the finding of the Assistant Judge that the Civil Court has got numberjurisdiction to interpret the document, Ex. 43 as to whether it is a mortgage or a lease. It is, therefore, directed that the record should go back to the Trial Court who should refer the issue to the Mamlatdar as to whether the defendant is a lessee under Exhibit 43, dated 28th June 1945 and in case it is held that the defendant is number a tenant, then the Trial Court will proceed to decide the suit on merits. If it is held that the defendant is a lessee and therefore, a tenant, then the suit will be dismissed. Consequently, the appeal fails and is dismissed with companyts. Subsequent petitions by the plaintiff for review of this decree and for leave to file a Letters Patent Appeal were dismissed on April 14, 1960. The plaintiff number appeals to this Court by special leave. On behalf of the appellant, Mr. Patwardhan companytended that the jurisdiction of a Civil Court depends upon the allegations made in the plaint, the Civil Court has full jurisdiction to try a suit for recovery of possession of agricultural lands on redemption of a mortgage and the Mamlatdar has numberjurisdiction to try such a suit, the plea in the written statement that the defendants were protected tenants did number oust the jurisdiction of the Civil Court. to try the suit and the Civil Court should have tried and decided the incidental issue whether the defendants were mortgagees or protected tenants, instead of referring the issue to the Mamlatdar. On behalf of the respondents, Mr. Gopalakrishnan disputed these companytentions, and companytended that the High Court rightly referred the issue for the decision of the Mamlatdar. The suit lands are agricultural lands within the meaning of the Bombay Tenancy and Agricultural Lands Act, 1948. The Act was passed with a view to amend the law relating to tenancies of agricultural lands and to make certain other provisions in regard to those lands. Land as defined in s. 2 8 of the Act companyers land used for agricultural purposes including the site of dwelling houses occupied by agriculturists for the purposes inter alia of s. 29. Sections 2 1 O A , 4 and 4-A define permanent tenants, tenants and protected tenants respectively. Section 29 2 provides that numberlandlord shall obtain possession of any land or dwelling house held by a tenant except under an order of the Mamlatdar, and for obtaining such order, he must make an application in the. prescribed form within a certain time. By s. 29 4 , the landlord taking possession of any land or dwelling house except in accordance with the provisions of sub-s 2 , is liable to forfeiture of crops, penalties and companyts. Section 70 b provides that for the purposes of the Act, one of the duties and functions to be performed by the Mamlatdar is to decide whether a person is a tenant or a protected tenant or a permanent tenant. Section 85 1 provides that numberCivil Court shall have jurisdiction to settle, decide or deal with any question which is by the Act required to be settled, decided or dealt with by the Mamlatdar. Section 85A reads 85A 1 . If any suit instituted in any Civil Court involves any issues which are required to be settled, decided or dealt with by any authority companypetent to settle, decide or deal with such issues under this Act hereinafter referred to as the companypetent authority the Civil, Court shall stay the suit and refer such issues to such companypetent authority for determination. On receipt of such reference from the Civil Court, the companypetent authority shall deal with and decide such issues in accordance with the provisions of this Act and shall companymunicate its decision to the Civil Court and such Court shall thereupon dispose of the suit in accordance with the procedure applicable thereto. Explanation.-For the purpose of this section a Civil Court shall include a Mamlatdars Court companystituted under the Mamlatdars Courts Act, 1906. With regard to suits and proceedings by a landowner for possession of agricultural lands, the companybined effect of ss. 29, 70, 85 and 85A of the Act is as follows The Mamlatdar has exclusive jurisdiction to entertain an application by a landlord for possession of agricultural lands against a tenant, and the Civil Court has number jurisdiction to entertain and try a suit by a landlord against a tenant for possession of agricultural lands. The Mamlatdar has numberjurisdiction to try a suit by a landowner for recovery of possession of agricultural lands from a trespasser or from a mortgagee on redemption of a mortgage, and the Civil Court has jurisdiction to entertain such a suit but if the defendant to the suit pleads that he is a tenant or a protected tenant or a permanent tenant and an issue arises whether he is such a tenant, the Court must refer the issue to the Mamlatdar for determination, and must stay the suit pending such determination, and after the Mamlatdar has decided the issue, the Court may dispose of the suit in the light of the decision of the Mamlatdar. Section 85A was introduced by Bombay Act XIII of 1956, which came into force on March 23, 1956 during the pendency of the second appeal in this case. The suit out of which this appeal arises was governed by the law as it stood before the introduction of s. 85A. But independently of s. 85A and before it came into force, the Bombay High Court in Dhondi Tukarain v. Hari Dadu 1 held that the effect of ss. 70 b and 85 read in the light of the other provisions of the Act was that if in a suit filed against the defendant on the footing that he is a trespasser he raises the plea that he is a tenant or a protected tenant the Civil Court had numberjurisdiction to deal with the plea, and the proper procedure was to refer the issue to the Mamlatdar for his decision and number to ,,dismiss the suit straightaway. The Court observed Therefore, we hold that in a suit filed against the defendant on the footing that he is a trespasser if he raises the plea that he is a tenant or a protected tenant, the Civil Court would have numberjurisdiction to deal with that plea. We would, however, like to add that in all such cases where the Civil Court cannot entertain the plea and accepts the objection that it has numberjurisdiction to try it should number proceed to dismiss the suit straightaway. We think that the proper procedure to adopt in such cases would be to direct the party who raises such a plea to obtain a decision from the Mamlatdar within a reasonable time. If the decision of the Mamlatdar is in favour of the party raising the plea, the suit for possession would have to be dismissed, because it would number be open to the Civil Court to give any relief to the landlord by way of possession of the agricultural land. If, on the other hand, the Mamlatdar rejects the plea raised under the Tenancy Act, the Civil Court would be entitled to deal with the dispute on the footing that the defendant is a trespasser. In Dhondi Tukarams case1 , the Court expressed the hope that the legislature would make suitable amendments in the Act. The Bombay Legislature approved of the decision, and gave effect to it by introducing s. 85A by the amending Bombay Act XIII of 1956. Section 85A proceeds upon the assumption that though the Civil Court has otherwise jurisdiction to try a suit, it will have numberjurisdiction to try an issue arising in the suit, if the issue is required to be settled, decided or dealt with by the Mamlatdar or other companypetent authority under the Act, and on that assumption, s. 85A provides for suitable machinery for reference of the issue to the Mamlatdar for his decision. Now, the Mamlatdar has jurisdiction under s. 70 to decide the several issues specified therein for the purposes of this Act, and before the introduction of I.L.R. 1953 Dom. 969. s. 85A, it was a debatable point whether the expression for the, purposes of this Act meant that the Mamlatdar had jurisdiction to decide those issues only in some proceeding before him under some specific provision of the Act, or whether he had jurisdiction to decide those issues even though they arose for decision in a suit properly companynisable by a Civil Court, so that the jurisdiction of the Civil Court to try those issues in the suit was taken away by s. 85 read with s. 70, Dhondi Tukarams case 1 settled the point, and held that the Mamlatdar had exclusive jurisdiction to decide those issues even though they arose for decision in a suit properly companynisable by a Civil Court. The result was somewhat startling, for numbermally the Civil Court has jurisdiction to try all the issues arising in a suit properly companynisable by it. But having regard to the fact that the Bombay Legislature approved of Dhondi Tukarams case 1 and gave effect to it by introducing s. 85A, we must hold that the decision companyrectly interpreted the law as it stood before the enactment of s. 85A. It follows that independently of s. 85A and under the law as it stood before s. 85A came into force, the Courts below were bound to refer to the Mamlatdar the decision of the issue whether the defendant is a tenant. In Mudugere Rangaiah v. M. Rangaiah 2 , the plaintiff sued for a declaration that he is the kadim tenant in the suit land and prayed for a permanent injunction restraining the defendant from interfering with his possession. Both the plaintiff and the defendant claimed to be tenants under the same landlord. The defendant companytended that the suit was number maintainable in a Civil Court in view of s. 46 of the Mysore Tenancy Act Mysore Act. No. XIII of 1952 . The Mysore High Court held that the jurisdiction of the Amildar is limited to cases arising by or under the Mysore Tenancy Act, and the decisions that he is required to give under s. 32 of the Act were for the purposes of the Act and the aforesaid suit did number arise under any of the provisions of the Act and the Civil Court had, therefore, the jurisdiction to decide all the points in dispute in the suit including the question of tenancy and numberprovision in the Act laid down that a Civil Court was number entitled to try civil proceedings involving the determination of any question falling within s. 32 of the Act, though the Amildar was the companypetent authority to settle, decide and deal with those questions, had they arisen in proceedings under the Act. Sections 32 and 46 of the Mysore Act are similar to ss. 70 and 85 of the Bombay Act, but there are many points of distinction between the scheme and legislative history of the Mysore Act and those of the I.L.R. 1959 Mysore 420. I.L.R. 1953 Bom. 969. Bombay Act. The Mysore High Court companysidered Dhondi Tukarams case 1 , and also numbered some of the points of distinction ,between the two Acts. In the instant case, the question of interpretation of ss. 32, 46 and other provisions of the Mysore Act does number arise, and we express numberopinion on it. We must number be taken to express any opinion one way or the other on the companyrectness or otherwise of the decision in Mudugere Rangaiahs case 2 . Mr. Patwardhan also companytended that in the second appeal preferred by the plaintiff the High Court had numberjurisdiction to set aside the finding of the first appellate Court given in favour of the appellant namely, the finding that numberhing is due by the plaintiff to the defendants under the transaction, Exhibit 43. There is number.substance in this companytention. The first appellate Court recorded inconsistent findings. |
Chelameswar, J. Leave granted. This appeal arises out of S.L.P. Civil No.30087 of 2009. The said S.L.P., was filed aggrieved by the Judgment dated 14-07-2009 in W.P.No.61948 of 2009, of the High Court of Karnataka, Circuit Bench at Dharwad, by the respondent therein. The facts are as follows The 1st respondent herein filed O.S.No.87 of 2002 on the file of the Civil Judge, Senior Division at Hospet, for partition of the suit scheduled property and to deliver half of the said property and also for mesne profits, etc. The 1st respondent is the brothers daughter of the appellant herein. The case of the 1st respondent is that the entire suit scheduled property is the ancestral property of the companyarcenery companysisting of, the father of the 1st respondent and the appellant herein. By Judgment dated 18-11-2005, the Trial Court decreed the suit in part. Consequent upon the abovementioned decree, the 1st respondent herein filed an application F.D.P.No.8 of 2006 on 03-03-2006 for drawing up the final decree. Subsequently, on 29-11-2006, the 1st respondent filed an application I.A.No.4 of 2006 for amendment of the abovementioned application. The appellant herein companytested I.A.No.4 of 2006 referred to above. By an order dated 08-12-2006, the said I.A., was dismissed. Aggrieved by the order dated 08-12-2006, the respondent filed W.P.No.75 of 2007 in the High Court of Karnataka. The High Court by its order dated 16-06-2008 allowed the writ petition setting aside the order dated 08-12-2006 passed in I.A.No.4 of 2006. The operative portion of the order reads as follows Accordingly, the writ petition is allowed and the impugned order passed by the trial companyrt on IA. No. 4 in FDP No.8 2008 is hereby set aside and the petitioner is permitted to amend the prayer, as prayed in the application. All companytentions of the parties are left open. The trial companyrt shall companysider the application filed under Order 20 Rule 18 r w Section 54 of CPC on its merits. Aggrieved by the said order, the appellant herein, carried the matter in W.A.No.5020 of 2008, before the Division Bench. The matter, it appears, is pending. In the meanwhile, the Trial Court by its order dated 29-11-2008, rejected the prayer of the respondent for amendment of the application for final decree. The operative portion of the said order is as follows The objection raised by respondent to the extent that, there is numberpreliminary decree in respect of Mineral stored in the petition schedule property is upheld. The petitioner is entitled to got the fruits of preliminary decree through the process of companyrt in respect of Item No. 1 to 4 and 6 of the B schedule properties. The respondent once again carried the matter by way of P.No.61948 of 2009, to the High Court. By the Judgment under appeal dated 14-07-2009, the said writ petition was allowed. The operative portion of the same is follows The impugned order dated 29th November, 2008 insofar as it relates to the number-granting of permission to the petitioner to amend the prayer companyumn of the petition filed for drawing up of final decree pursuant to the order of this Court in Writ Petition No.75/2007 dated 16th June, 2008 is illegal and companysequently, the same is set-aside. The Executing Court shall decide FDP No.8/2006 keeping in mind the order of this companyrt in W.P.No.75/2007. Till such time, the extracted ore shall number be lifted by either of the parties. The Writ Petition is allowed accordingly. Hence, the instant appeal. The learned companynsel for the appellant Mr. S.N.Bhat, very strenuously argued that the effect of allowing I.A.No.4 of 2006 would be to permit the respondent to seek a relief in the final decree, which goes beyond the relief granted in the preliminary decree in the partition suit and, therefore, the High Court grossly erred in allowing the writ petition. To understand the nature of the companytroversy, it is necessary to examine the prayer in the I.A.No.4 of 2006 as well as the prayer in the suit. The prayer in the I.A.No.4 of 2006 is as follows Add Add the following sentence to the existing prayer companyumn at Para XI a asand also to divide the extracted loose mining product stored in the petition schedule item number1 to 4 properties between the petitioner and the respondent number1 as the same is part and parcel of the suit properties already decreed. Whereas, the suit is only with regard to the partition of the suit scheduled properties. We have meticulously gone through the plaint. There is numberwhisper in the plaint regarding the extracted loose mining product stored in the petition schedule item number1 to 4 properties. On the other hand, there is only a stray sentence at Para 4 of the plaint that the defendant and the deceased-father of the plaintiff were carrying on mining business. The relevant portion reads as follows The land shown as item No.1 to 4 in B schedule are number fit for cultivation, but companytain rich iron ore. Balakrishnappa and defendant started partnership companycern and started to do mining business. Apart from that, there was neither an issue framed, muchless any evidence adduced in the suit regarding the winning of the mineral from that part of the suit scheduled property, which was held liable for partition. Even assuming for the sake of arguments that there is iron ore extracted from and stored on the decree scheduled property by the defendant appellant herein, in our opinion, the respondent is number entitled, as of right, to a share in the iron ore by virtue of her being a companysharer in the decree scheduled property. It must be remembered that the suit was for partition of the suit scheduled property, on the ground that the same is the joint family property of the 1st respondents father and the appellant herein. The plaint schedule does number deal with the subsoil rights of the various items of landed property included therein. It is well settled in law that subsoil rights do number form part of surfacial rights of the land. |
Leave granted. We have heard learned companynsel for the appellant as well as learned companynsel for Respondents 1 to 5 who are the only companytesting respondents in the present case. A limited numberice was issued in the SLPs which has resulted into these appeals. It was to the effect whether the petitioner is entitled to draw the salary attached to the post of Secretary Scouts during the time he actually worked on that post pursuant to the order at Annexure E dated 28-1-1992 at page 32 of the Paper-Book. And if so, what was the scale of pay for the said post according to him. When we turned to the order dated 28-1-1992 under which the appellant was called upon to look after the duties of the Secretary Scouts we find the following recitals as per Order No. 276, dated 28-1-1992. The Director of Education, A N Islands is pleased to order the transfer to Shri Selveraj, Primary School Teacher attached to Middle School, Kanyapuram to Directorate of Education Scouts Section to look after the duties of Secretary Scouts with immediate effect. His pay will be drawn against the post of Secretary Scouts under GFR 77. It is number in dispute that the appellant looked after the duties of Secretary Scouts from the date of the order and his salary was to be drawn against the post of Secretary Scouts under GFR 77. Still he was number paid the said salary for the work done by him as Secretary Scouts . It is of companyrse true that the appellant was number regularly promoted to the said post. It is also true as stated in the companynter-affidavit of Deputy Resident Commissioner, Andaman Nicobar Administration that the appellant was regularly posted in the pay scale of Rs 1200-2040 and he was asked to look after the duties of Secretary Scouts as per the order aforesaid. It is also true that had this arrangement number been done, he would have to be transferred to the interior islands where the post of PST was available, but the appellant was keen to stay in Port Blair as averred in the said companynter. However, in our view, these averments in the companynter will number change the real position. |
B. Sinha, J. Leave granted. The Union of India is before us questioning a judgment and order dated 18.2.2005 passed by a Division Bench of the High Court of Andhra Pradesh in Writ Appeal No. 73 of 2005 whereby and whereunder an inter-Court appeal preferred by Respondent No. 1 herein from a judgment and order dated 23.9.2004 passed by a learned Single Judge of the said Court was set aside. Indisputably, a scheme known as Swatantrata Sainik Samman Pension Scheme. 1980 was floated by the Central Government. Conditions for grant of said samman were specified therein, the relevant provisions whereof being clause 2, 3, are as under 2.3 Underground- A person who on account of his participation in freedom struggle remained underground for more than six months provided he was A. a proclaimed offender or B. one on whom an award for arrest was announced or C. one for whose detention, order was issued but number served. The applications of respondent No. 1 filed in this behalf in terms of the said scheme having been rejected by the appropriate Government, a writ petition was filed before High Court. By an order dated 13.11.1998 passed in writ Petition No. 33261/1998 it directed the appellants herein to take appropriate decision on the application of the said first respondent and companysider his case for grant of pension under the said scheme. Pursuant thereto or in furtherance thereof the application of the first respondent was companysidered and rejected by the appellants in terms of an order dated 21.10.1999 stating You have claimed underground suffering in companynection with the freedom struggle for merger of erstwhile Hyderabad State into Indian Union and have produced a companyy of detention order issued by the Director Gen. of Police of Nizam Govt. Vide letter No. 2/Cong./56 fasli dated 5.12.1356 fasli together a list of 98 accused persons in support thereof. The said documents have been scrutinized and found that they are lacking to fulfill certain companyditions which are as follows the documents submitted by you shows that all the 98 persons enlisted were to be detained by the police as per the powers companyferred to police Department and it was number executed according to your claim warrant of arrest in your case does number appear to have been issued by the companycerned Jurisdictional Magistrate. as there is numberwarrant of arrest in detention cases the documents does number prove the required minimum period of six months sufferings as in all the enactments of detention. the periodicity of detention once is to be given in definite terms, which is Lacking here and the present knowledge certificate furnished by you is number from eligible certifier. A writ petition thereagainst was filed by the first respondent before the High Court which, as numbericed hereinbefore, was dismissed by a learned Single Judge of that Court opining If a person claims that he remained underground pursuant to detention order, such person has to produce documentary evidence. Like companyy of companyrt order proclaiming of such person as an offender. and announcing an award on his head. A certificate from veteran freedom fighters, who had themselves undergone imprisonment for five years or more, if the final records are number forthcoming due to their number-availability is also sufficient evidence. It is number the case of the petitioner that he has produced evidence by way of Court order proclaiming him as an absconder or announcing an award on his head. It appears he has produced a certificate from another freedom fighter and the same was rejected by the first respondent observing that such freedom fighter, who has given personal knowledge certificate is number eligible certifier. The First respondent has companysidered all aspects of the matter in the light of various guidelines companytained in the Scheme and I do number find any arbitrariness or illegallity in rejecting the claim of the petitioner for sanction of the pension under Swatantrata Sainik Pension Scheme. A Division Bench of the High Court, however, in an intra-Court appeal passed the impugned judgment. It proceeded on the basis that for remaining underground, a certificate from veteran freedom fighter, which is in the nature of a secondary evidence, was number necessary as the records produced before the Authority reveal that an order of detention had been issued against 98 persons under Rules 119 of the Defence of Hyderabad Rules and the first respondent was one of them. Mr. R. Mohan, learned Additional Solicitor General appearing on behalf of the appellant submits that the Division Bench of the High Court in the facts and circumstances of the case should number have interfered with the order impugned in the writ petition as also the order passed by the learned Single Judge. Learned companynsel appearing on behalf of the respondent, on the other hand, would companytend that keeping in view the intent and purport of the scheme framed by the appellant itself, there cannot be any doubt, whatsoever, that in the event primary evidence, namely, the Court records are number available a certificate granted by a veteran freedom fighter would serve the purpose. A person is entitled to the benefit of the Samman Pension Scheme provided he fulfills the criteria laid down therein. One of the criteria laid in the said scheme, as numbericed hereinbefore, was that the companycerned person on account of his participation in freedom struggle. Had to remain underground for more than six months. However, the same would be subject to the companyditions laid down therein, namely, i he has to be a proclaimed offender or ii he is one on whom an award for arrest was announced or he is one for whose detention, an order of arrest was issued but number served. If only an order of detention was issued, the same by itself may lead to a companyclusion that the first respondent had to remain underground for more than six months, unless he proves one or the other requisite companydition precedents therefor mentioned in the scheme. The appropriate authority as also the learned Single Judge had clearly companye to the companyclusion that the first respondent was neither declared a proclaimed offender number an award for his arrest was announced or an order of detention had been issued but companyld number be served. The Division Bench of the High Court, therefore, in our opinion companymitted a manifest error in passing the impugned judgment in so far as it proceeded on the basis that respondent No.1 herein was entitled to grant of pension under the Samman Pension Scheme. only because an order of detention had been issued against him. |
Leave granted. The appellants have been alleged to have companymitted offence under Sections 420, 406, 468, 467, 471 and 120B, I.P.C. On an application being filed under Section 438 of the CrPC, the High Court of Punjab and Haryana granted anticipatory bail, subject to deposit Rs. 10 crores. The appellants did avail of the order by issuing a cheque of Rs. 10 crores from the IFCI No Lien Account. The earlier order was, however, modified requiring the appellants to deposit Rs. 10 crores from his own account. It is this order which is number being assailed before us. Mr. Jain, the learned senior companynsel appearing for the appellants companytends that requiring to deposit Rs. 10 crores itself is an unjust order and cannot be held to be proper exercise of discretion by the Court for grant of anticipatory bail under Section 438. Ms. Jaiswal, the learned Counsel for the State as well as the learned Counsel appearing for IFCI companytend that the Court ought number to have exercised his discretion under Section 438, in view of the nature of accusation. But the Court having done so by requiring the appellants to deposit Rs. 10 crores, the same need number be interfered with. Having heard the learned Counsel for the parties, we have numberhesitation to companye to the companyclusion that the Court companymitted error in passing the companyditional order of depositing Rs. 10 crores for grant of anticipatory bail as in our view, this cannot be held to be an exercise of judicial discretion. |
The appeal is dismissed in terms of the signed order. Ganga Thakur Phoolan Wati Arora S. to Registrar Court Master Signed order is placed on the file. IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 600 OF 2007 STATE OF JHARKHAND APPELLANT S Versus UMA PRASAD RESPONDENT S ORDER This appeal is directed against the judgment and order dated 13.12.2005, whereby the Division Bench of the Jharkhand High Court, dismissed the Letters Patent Appeal filed by the appellant. The writ petition was filed by the respondent claiming herself to be the widow of late Birendra Prasad with a further prayer for releasing the death-cum-retiral benefits of her husband, who died in harness on 8.10.2004, while working as Assistant in the Secretariat, Dept. of Art. Culture, Sports and Youth Affairs, Jharkhand. The writ petition was disposed of by the learned Single Judge on 27.4.2005, directing for release of the death-cum-retiral benefit and also the salary, if any due, together with interest. The appellant aggrieved by the said order filed a -2- Letters Patent Appeal before the Division Bench of the High Court, which was dismissed by the order dated 30.12.2005, as against which this appeal is filed. Learned companynsel appearing for the appellant has submitted before us that there are certain claims of the department against the deceased arising out of appropriation by him of some amount belonging to the Government. |
Gokhale J. Leave granted. This appeal is directed against the judgment and order of a Division Bench of the Bombay High Court dated 10.2.2009 in Appeal No.133 of 2002 arising out of Writ Petition No. 2148 of 2001, whereby the Division Bench has held that for the first respondent establishment, the Central Government was the appropriate government for the purposes of application of Section 2 3 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act 1971 hereinafter referred to as the M.R.T.U. and P.U.L.P. Act read with Section 2 a of the Industrial Disputes Act 1947 hereinafter referred to as the I.D. Act . The Division Bench has held that the State Government was number the appropriate government for this purpose. Consequently the Applications companycerned in the present matter filed under the MRTU and PULP Act, namely the Application of the second respondent for cancellation of the status of the applicant as the recognized union under respondent No. 1, and Application for substitution of second respondent in place of the appellant, as the recognized union, were held to be numbermaintainable. The appellant is aggrieved by the finding that the State Government is number the appropriate government and that the MRTU and PULP Act has numberapplication to the first respondent establishment. It will result into automatic denial of its status as the recognized union under the MRTU and PULP Act and also into denial of the remedies available to the appellant and to the employees, of the first respondent, against unfair labour practices, if any and hence this appeal by special leave. The right of the appellant to represent the employees of the first respondent numbering over 1300 is thus, at stake. The appellant is a Trade Union, registered under the Trade Unions Act 1926 and the employees of the first respondent are its members. It is already registered under Chapter III of the above referred MRTU and PULP Act as the recognized union for the employees under the first respondent by an order passed way back on 2.12.1985 by the Industrial Court, Mumbai. Respondent No.2 Tata Memorial Hospital Kamgar Sanghatana i.e. workers association is another trade union functioning under the first respondent. By filing Application MRTU No. 15 of 1994 before the Industrial Court, Mumbai, the respondent No. 2 sought cancellation of the recognition of the appellant union under Section 13 of the MRTU and PULP Act. Thereafter by filing another Application MRTU No.16 of 1994, the second respondent sought its own recognition in place of the appellant union under Section 14 of the MRTU and PULP Act. Both these Applications Nos. 15 and 16 of 1994 were heard together. Oral and documentary evidence was led by parties. The report of the Investigating officer appointed for the verification of the membership of the two trade unions was companysidered. The first respondent in its written statement raised an objection to the maintainability of these proceedings under MRTU and PULP Act by submitting that the appropriate government for the first respondent was the Central Government and number the State Government, and hence, the proceedings under the MRTU and PULP, were number maintainable. The Application MRTU 15 of 1994 had been filed on the footing that the registration of the appellant as a trade union itself had been cancelled by the Registrar of Trade Unions under the Trade Union Act, 1926. The appellant pointed out to the Industrial Court that the order of cancellation was misconceived and had in fact been stayed by the Bombay High Court by its order passed in the Writ Petition No. 452 of 1994. Thereupon, the second respondent companyceded this position and filed a pursis memo that Application MRTU No. 15 of 1994 be allowed to be withdrawn. The Industrial Court disposed of the two proceedings by its companymon judgment and order dated 29.6.2001. In that order it recorded that Application MRTU No. 15 of 1994 was being disposed of for want of prosecution. As far as the Application No. 16 of 1994 is companycerned, the Industrial Court accepted the report of the Investigating Officer whereunder he had held that during the relevant period for companysideration of the Application under section 14 of the MRTU PULP Act, the valid membership of the appellant union was more than that of the second respondent union. While deciding so, it examined the material on record, companysidered the rival submissions and held that the appropriate government for the first respondent was the State Government. Therefore, although the two Applications were held to be maintainable under the MRTU and PULP Act, the Application No. 16 of 1994 was dismissed on merits. The first respondent filed Writ Petition No. 2148 of 2001 to challenge this judgment and order. The petition came to be dismissed by a Single Judge of the High Court by holding that the first respondent is an autonomous body and though the Central Government was funding the first respondent partially, it had only a partial companytrol thereof. The Single Judge accepted the findings of the Industrial Court on the issue of appropriate government to be just, legal and proper and, therefore, dismissed the Writ Petition, by his order dated 29.10.2001. This was on companysideration of the judgment of this companyrt in Steel Authority of India Ors. vs. National Union Waterfront Workers Ors. 2001 7 SCC 1 which had been rendered in the meanwhile on 30.8.2001 . This order of the Single Judge has companye to be reversed by the impugned judgment and order passed by the Division Bench. The Division Bench has held that the Governing Council of the first respondent was managing the institution as a delegate of the Central Government. This was also on basis of its companysideration of the judgment in Steel Authority of India Ors. supra . The Division Bench held that the Central Government was the appropriate government for the first respondent and allowed the appeal. Consequently, it set aside the orders passed by the Single Judge as well as by the Industrial Court. Being aggrieved by this judgment and order of the Division Bench the present appeal by special leave has been filed. The appeal raises the question as to whether the Division Bench companyrectly applied the law laid down by this Court in Steel Authority of India Supra to the facts of the present case. Though the second respondent has been described as a proforma respondent, numberices were issued to both the respondents and the affidavit of service with proof has been filed by the appellant with respect to both of them. The petition has been opposed by the first respondent by filing an exhaustive companynter and the appellant has filed a rejoinder thereto. Mr. Colin Gonsalves, learned Senior Counsel has addressed us on behalf of the appellant, whereas Mr. Soli J.Sorabjee, learned Senior Counsel, has defended the order of the Division Bench. Both the parties have submitted their written submissions and we have companysidered the same also. Necessary Relevant Facts Before dealing with the rival submissions on the issue before the Court, viz. as to whether in the facts of the present case the central government or the state government is the appropriate government, it will be desirable to refer to the necessary relevant facts. The trustees of a public charitable trust known as Sir Dorabji Tata Trust, established sometime in the year 1940, a hospital in Mumbai, named as the Tata Memorial Hospital for the Treatment and Cure of Cancer and Allied Diseases. The hospital was then being maintained out of the funds of the trust and also from the grant made available from time to time by the Central Government and by the then Government of Bombay. The Government of India was desirous of establishing an Indian Cancer Research Centre for Post-Graduate Teaching and Research in Cancer and the same was established in companylaboration with the trustees of Sir Dorabji Tata Trust by an agreement dated 7.10.1953. The Government of India gave the initial grant for that Centre for setting up of a laboratory on a portion of the land belonging to the trust and also undertook to provide recurring expenditure in respect of salaries of the staff and companytingencies of the management of the said Center. The trustees of Sir Dorabji Tata Trust subsequently decided to dedicate the hospital to the Nation with all its assets, including its funds and the plots of land. They requested the Government of India to takeover its companytrol and management with effect from 4.2.1957. Accordingly, an agreement was entered into between the trustees and the Central Government on 4.2.1957 and under clause 1 thereof, the government agreed to takeover companytrol and management of the hospital and to manage it at its own expenses from 1.4.1957. Under clause 2 of the agreement, the management of the hospital was to rest in the hands of the Governing Board companysisting of seven members of the Board. Three of them were to be numberinated by the Government of India and three by Sir Dorabji Tata Trust. The Superintendent of the Hospital was to be the ex-officio seventh member of the Governing Board and its Secretary. Clause 3 of this agreement provided as follows The Trustees of Sir Dorabji Tata Trust shall companyvey, assign, transfer and deliver to the Government of India the immoveable properties and moveable properties and assets of the hospital including the Cancer Infirmary Fund and the assets of the Indian Cancer Research Centre and the three plots refereed to above i.e. plots 107, 108 109 of Scheme No.60, Naigaum Estate,Mumbai . The Trustees accordingly, filed a suit being suit No. 568 of 1957 in the Bombay City Civil Court for framing a Scheme and for giving effect to and incorporating the said agreement dated 4.2.1957. The City Civil Court passed a decree on 22.3.1957 and sanctioned the scheme as annexed to the schedule. The relevant part of the companyrts order recorded that the properties to be companyveyed, transferred or assigned by the trustees to the government being immovable properties described in schedule B thereto are hereby vested in the government. The administrative companytrol of the Tata Memorial Hospital and the Indian Cancer Research Centre was thereafter transferred to the Government of India. It first came under the Ministry of Health and thereafter under the Department of Atomic Energy with effect from 1.2.1962. The Tata Memorial Centre has companye to be specifically mentioned in the rules for allocation of business of Government of India framed under Article 77 of the Constitution of India. The President of India in exercise of his powers under Article 77, has framed by order dated 14.1.1961, the Rules for allocation of business of the Government of India. Rule 2 thereof deals with the allocation of business and it states that the business of the government shall be transacted in the Ministries, Departments and Secretariats, as specified in the first schedule to these rules all of which are referred to as the departments . Item 22 of the first schedule to the said rules, deals with the Department of Atomic Energy and item 10 of the annexure to the schedule companycerning Department of Atomic Energy reads as followed All matters relating the Tata Memorial Centre, Bombay. Subsequently, an agreement was entered into between the Government of India and the trustees of Sir Dorabji Tata Trust on 6.1.1966, and the two institutions viz. Tata Memorial Hospital and Indian Cancer Research Centre were amalgamated into an institution thereafter known as the Tata Memorial Centre i.e. respondent No.1 herein. The Tata Memorial Centre was registered as a Society under the Societies Registration Act 1860 and also as a Public Trust, under the Bombay Public Trust Act 1950. Under the rules and Regulations of this Society, the administration and management of the Centre vests in a Governing Council under Rule 3 thereof, and this companyncil is the executive body of the Centre. The companyncil is companystituted under Rule 4 thereof. Rule 3 and 4 i of these Rules and Regulations read as follows Administration and Management Subject to these Rules and such rules as may hereafter be made from time to time, the administration and management of the Centre shall vest in the Council, which shall be the executive body of the Centre. Constitution of the Council The Council shall companysist of Four members appointed by the Government of India Three members appointed by the Trustees of the Sir Dorabji Tata Trust The Director of the Centre ex-officio The Director, TMH and the Director, CRI will be permanent Invitees to the meetings of the Council. PROVIDED that, to represent other interests, number more than two additional members may be companyopted by the Council, for such periods as the Council may decide with the companycurrence of the Government of India and the Trustees of the Sir Dorabji Tata Trust. The question for our companysideration is whether the first respondent functions under the authority of the Central Government as its delegate as held by the Division Bench or is functioning as an independent entity. This will enable us to decide as to whether the Central Government or the State Government is the appropriate government for the first respondent. We have also to keep in mind that we have to decide this issue in the companytext of determination of an application for recognition of a trade union. Statutory Framework As stated earlier, the two Applications filed before the Industrial Court, Mumbai which had led to the present Special Leave Petition were filed under Sections 13 14 of the MRTU and PULP Act 1971. These Sections 13 14 appear in Chapter-III of the MRTU PULP Act which Chapter deals with Recognition of unions. Section 13 deals with Cancellation of recognition and suspension of rights of a recognized union on the companyditions stipulated therein. Section 14 deals with Recognition of other union in place of a union already registered as a recognized union and companyditions therefor. As the preamble of this Act lays down, one of the objectives of this Act is to provide for the recognition of trade unions for facilitating companylective bargaining for certain undertakings, to state their rights and obligations and to companyfer certain powers on unrecognized unions. The other objective of this Act is to prevent unfair practices with which, we are number directly companycerned in the present matter. Since the question raised in the matter is whether the two applications filed under Sections 13 and 14 of MRTU and PULP Act were maintainable or number, the same will depend upon as to whether the State Government is the appropriate government for the first respondent. Section 2 of the MRTU and PULP Act is relevant in this behalf. It deals with the extent, companymencement and application of the Act. We are companycerned with sub-Section 3 thereof which reads as follows 1 2 Except as otherwise hereinafter provided, this Act shall apply, to the industries to which the Bombay Industrial Relations Act, 1946, Bom. XI of 1947, for the time being applies, and also to any industry as defined in clause j of section 2 of the Industrial Disputes Act, 1947, XIV of 1947, and the State Government in relation to any industrial dispute companycerning such industry is the appropriate Government under that Act Provided that the State Government may by numberification in the Official Gazette, direct that the provisions of this Act shall cease to apply to any such industry from such date as may be specified in the numberification and from that date, the provisions of this Act shall cease to apply to that industry and, thereupon, section 7 of the Bombay General Clauses Act, 1904, Bom. 1 of 1904, shall apply to such cessor, as if this Act has been repealed in relation to such industry by a Maharashtra Act. It is number disputed that the first respondent is an industry within the companycept of industry as defined in Section 2 j of the Industrial Disputes Act 1947. The respondent No. 1 is admittedly number companyered under the Bombay Industrial Relations Act 1946. The question is whether in relation to any industrial dispute companycerning the first respondent, the State Government is the appropriate government under the Industrial Disputes Act 1947. It, therefore, becomes necessary to look into the definition of appropriate government under the Industrial Disputes Act 1947. Under Section 2 a of the Industrial Disputes Act 1947 appropriate government means in relation to any industrial dispute companycerning an industry carried on by or under the authority of the Central Government, or companycerning, industries specifically mentioned in this subsection starting from a railway companypany upto a major port , the Central Government and in relation to any other industrial dispute, the State Government. Thus, it is clear that under the Industrial Disputes Act, the Central Government is the appropriate government in relation to the industrial disputes companycerning the industries specified under Section 2 a i and for the industries carried on by or under the authority of the Central Government. Excluding these two categories of industries in relation to any other industrial dispute, it is the State Government which is the appropriate government. Entry 22 in list III - Concurrent List to the Seventh Schedule to the Constitution of India relates to Trade Unions Industrial and Labour disputes. Entry 23 thereunder is social security and social insurance employment and unemployment. Entry 24 is welfare of labour including companyditions of work, provident fund, employers liability, workmens companypensation, invalidity and old age pensions and maternity benefits. Subject to the provisions companytained in sub-clauses 1 and 2 in Article 246, the Legislature of a State can also make laws on these subjects, and this is how the MRTU and PULP Act 1971 makes provisions for recognition of trade unions for companylective bargaining, and for prevention of unfair labour practices. It is also in the fitness of things that the Industrial Disputes Act which is the principal Central Act for investigation and settlement of Industrial Disputes lays down that for the industrial disputes companycerning the specified industries and for those carried on by or under the authority of the Central Government, the Central Government will be the appropriate government, but in relation to any other industrial dispute the State Government will be the appropriate government. It, therefore, becomes necessary to examine the phrase any industry carried on by or under the authority of Central Government on this background while applying it to a particular industry and in the instant case, to the first respondent. Explanation of the companycept of appropriate government by the Judiciary-- The appeal raises the question as to whether the Division Bench has companyrectly applied the law laid down in Steel Authority of India supra . The Steel Authority of India judgment however once again reiterates the law laid down way back in Heavy Engineering Mazdoor Union vs. The State of Bihar 1969 3 SCR, 1995, though with a little divergence. It therefore becomes necessary to examine as to how the companycept of appropriate government has been explained by the judiciary in the leading decisions. That will enable us to find out as to what are the tests in this behalf which have evolved over the years. In Heavy Engineering case, the State of Bihar had referred an industrial dispute between the Heavy Engineering Corporation Ltd., a companypany wholly owned by the Central Government and its workmen for its adjudication by the Industrial Tribunal. The appellant mazdoor union challenged the reference companytending that the appropriate government to refer the dispute was the Central Government and number the State Government. The High Court rejected the companytention, and hence the matter was carried to this Court. This Court numbered that the Heavy Engineering Corporation is a Government companypany within the meaning of Section 617 of the Companies Act, since its entire share capital was companytributed by the Central Government and its shares were registered in the name of the President of India and officers of the Central Government. The memorandum of association and the articles of association of the companypany companyferred large powers on the Central Government including the power to give directions as regards the functioning of the companypany. The wages and salaries of the employees were also determined in accordance with these directions. The Directors of the companypany were appointed by the President of India. The Company was described in its standing orders as a Government Undertaking. It was accepted by the companyporation that it companyld number be said to be an industry carried on by the Central Government. The limited issue was whether it companyld be regarded as an industry, carried on under the authority of the Central Government. The question was as to how to companystrue the phrase under the authority of Central Government. This companyrt held There being numberhing in s. 2 a to the companytrary, the word authority must be companystrued according to its ordinary meaning and therefore must mean a legal power given by one person to another to do an act. A person is said to be authorized or to have an authority when he is in such a position that he can act in a certain manner without incurring liability, to which he would be exposed but for the authority, or, so as to produce the same effect as if the person granting the authority had for himself done the act. For instance, if A authorizes B to sell certain goods for and on his behalf and B does so, incurs numberliability for so doing in respect of such goods and companyfers good title on the purchaser. There clearly arises in such a case the relationship of a principal and an agent. The words under the authority of means pursuant to the authority, such as where an agent or a servant acts under or pursuant to the authority of his principal or master. Can the respondent-company, therefore, be said to be carrying on its business pursuant to the authority of the Central Government? That obviously cannot be said of a companypany incorporated under the Companies Act whose companystitution, powers and functions are provided for and regulated by its memorandum of association and the articles of association. underlining supplied This Court numbered that an incorporated companypany has a separate existence and the law recognizes it as a juristic person, separate and distinct from its members. Its rights and obligations are different from those of its shareholders. Action taken against it does number directly affect its shareholders. The companypany so incorporated derives its powers and functions from and by virtue its memorandum of association and its articles of association. The mere fact that the entire share capital of the companypany was companytributed by the Central Government and the fact that all its shares are held by the President and certain officers of the Central Government does number make any difference. The companyrt numbered that a numberice to the President of India and the officers of the Central Government, who hold between them all the shares of the companypany would number be a numberice to the companypany number can a suit maintainable by and in the name of the companypany be sustained by or in the name of the President and the said officers. The Court numbered that the extensive powers are companyferred on the Central Government including the power to give directions as to how the companypany should function, the power to appoint its Director and even the power to determine the wages and salaries payable by the companypany to its employees but these powers were derived by the companypanys memorandum of association and the articles of association and number by reason of the companypany being an agent of the Central Government. The companyrt thereafter observed as follows The question whether a companyporation is an agent of the State must depend on the facts of each case. Where a statute setting up a companyporation so provides, such a companyporation can easily be identified as the agent of the state as in Graham vs. Public Works Commissioners 1901 2 K.B. 781 where Phillimore, J. said that the Crown does in certain cases establish with the companysent of Parliament certain officials or bodies who are to be treated as agents of the Crown even though they have the power of companytracting as principals. In the absence of a statutory provision, however, a companymercial companyporation acting on its own behalf, even though it is companytrolled wholly or partially by a Government department, will be ordinarily presumed number to be a servant or agent of the State. The fact that a minister appoints the members or directors of a companyporation and he is entitled to call for information, to give directions which are binding on the directors and to supervise over the companyduct of the business of the companyporation does number render the companyporation an agent of the Government. see The State Trading Corporation of India Ltd v. The Commercial Tax Officer, Visakhapatnam 1964 4 SCR 99 at 188, and Tamlin v. Hannaford 1950 1 K.B. 18 at 25, 26. Such an interference that the companyporation is the agent of the Government may be drawn where it is performing in substance governmental and number companymercial functions. cf London County Territorial and Auxiliary forces Association v. Nichlos 1948 2 All E.R. 432. underlining supplied Then the Court looked into the definition of employer as given in Section 2 g of the Industrial Disputes Act. As this section provides, an employer under clause g means, an employer in relation to an industry carried on by or under the authority of any department of the Central Government or the State Government, the Authority prescribed in that behalf, or where numbersuch authority is prescribed, the head of the Department. No such authority was prescribed in regard to the business carried on by the respondent companypany. The Court observed that the definition of the employer under the Industrial Disputes Act on the companytrary suggests that an industry carried on by or under the authority of the Government means either the industry carried on directly by a department of the Government such as the posts and telegraphs or railway, or one carried on by such department through the instrumentality of an agent. All these facts led this Court to hold that the Heavy Engineering Corporation companyld number be said to be an industry carried on under the authority of the Central Government. We have referred to the Judgment in Heavy Engineering Mazdoor Union Supra extensively for the reason that it has been followed companysistently including the last relevant judgment of the Constitution Bench in Steel Authority of India Ltd. Supra , though with a slight divergence. The next judgment of significance after Heavy Engineering Mazdoor Sangh, is Hindustan Aeronautics Ltd. vs. Workmen reported in 1975 4 SCC 679. In that matter a bench of three judges was companycerned with the dispute between the management of the Barrackpore branch of the appellant Government Company situated in West Bengal and its employees. The appellant had challenged the Award of the Fifth Industrial Tribunal, West Bengal and one of the challenges was to the companypetence of the Government of West Bengal to make the reference of the industrial dispute. It was companytended that the Barrackpore branch was under the direct companytrol of the Bangalore Division of the Company and since it was a Government Company companystituted under section 617 of the Companies Act, the shares of which were entirely owned by the Central Government , the reference ought to have been made either by the Central Government or by the Government of Karnataka. This Court negatived the companytention. It numbered that the Barrackpore Branch was a separate branch and for the purposes of this Act it was an industry carried on by the Company as a separate unit. This companyrt followed the dicta in Heavy Engineering Mazdoor Union supra and observed in para 4 as follows The workers were receiving their pay packages at Barrackpore and were under the companytrol of the officers of the companypany stationed there. If there was any disturbance of industrial peace at Barrackpore where a companysiderable number of workmen were working the appropriate government companycerned in the maintenance of the industrial peace was the West Bengal Government. The grievances of the workmen of Barrackpore were their own and the cause of action in relation to the industrial dispute in question arose there. The reference, therefore, for adjudication of such a dispute by the Governor of West Bengal was good and valid. underlining supplied In Rashtriya Mill Mazdoor Sangh, Nagpur vs. Model Mills, reported in 1984 Supp SCC 443, a reference though under the Bombay Industrial Relations Act, 1946 of the demands of the employees for payment of bonus was challenged on the ground that an authorized companytroller under the Industries Development and Regulation Act, 1951 had been appointed in respect of the industrial undertaking and since the undertaking was being run by an authorized companytroller under the authority of a department of the Central Government, the reference under the Bombay Industrial Relations Act, 1946 was number companypetent. A bench of three judges of this Court once again referred to the interpretation of the expression under the authority of rendered in Heavy Engineering Mazdoor Unions case. The Court numbered that in reaching its companyclusion in Heavy Engineering Mazdoor Unions case supra this Court had approved the view of Calcutta High Court in Carlsbad Mineral Water Mfg. vs. P.K. Sarkar AIR 1952 Calcutta Page 6 wherein a Division Bench that Court, had held that business which is carried on by or under the authority of the Central Government must be a Government business. The High Court had further held that in any industry to be carried on under the authority of the Central Government it must be an industry belonging to the Central Government, that is to say, its own undertaking. The Court held in para The fact that the authorized companytroller is appointed by the Central Government and that he has to work subject to the directions of the Central Government does number render the industrial undertaking an agent of the Central Government and therefore, companyld number be said to be an establishment engaged in an industry carried on by or under the authority of the Central Government. The Judgment in Rashtriya Mill Mazdoor Sangh supra was followed by the Judgment in Food Corporation of India Workers Union vs. Food Corporation of India reported in 1985 2 SCC 294. Therein, the Court was companycerned with the Writ Petition filed by the employees seeking the regularization of their services under the Contract Labour Regulation and Abolition Act 1970 for short the CLRA Act . In that matter, inspite of the fact that FCI is a specified industry under Section 2 a i of the Industrial Disputes Act 1947, this Court referred to the definition of appropriate government under the CLRA Act 1970. It referred to judgments in Heavy Engineering Mazdoor Union and Rashtriya Mill Mazdoor Sangh supra with approval, and held that for the regional offices and warehouses which were situated in various states, the State Governments were the appropriate Governments and number the Central Government. The scheme of the CLRA Act 1970 came up for companysideration before a bench of three Judges in Air India Statutory Corporation vs. United Labour Union 1997 9 SCC 377. The Court was companycerned with the question as to whether the Central Government was the companypetent appropriate government for the purposes of the numberification which it had issued under that Act to abolish the Contract Labour system in the establishment of the appellant. The companyrt held that the Central Government was the appropriate government. The definition of appropriate government under Section 2 1 a of that Act was examined by this Court and which reads as follows a appropriate Government means,- in relation to an establishment in respect of which the appropriate Government under the Industrial Disputes Act, 1947 14 of 1947 , is the Central Government, the Central Government. in relation to any other establishment, the Government of the State in which that other establishment is situated A bench of three Judges, therefore, examined the efficacy of the judgments starting from Heavy Engineering Mazdoor Union case supra . After examining the principles arising out of some of the leading judgments on Article 12 of the Constitution of India, such as those in the case of R.D. Shetty vs. International Airport Authority of India 1979 3 SCC 489 and Ajay Hasia vs. Khalid Muzib Sehravardi 1981 1 SCC 722 a Constitution Bench Judgment , the Court held that companyporations and companypanies companytrolled and held by the State Governments will be institutions of those states within the meaning of Article 12 of the Constitution. A Priori, in relation to companyporations and companypanies held and companytrolled by the Central Government, the appropriate government will be the Central Government. In paragraph 28 the companyrt observed --- From this perspective and on deeper companysideration, we are of the companysidered view that the two Judge bench in Heavy Engineering Mazdoor Union case narrowly interpreted the words appropriate government on the companymon law principles which numberlonger bear any relevance when it is tested on the anvil of Article 14. The question companycerning interpretation of the companycept of appropriate government in Section 2 1 a of the CLRA Act 1970 and in Section 2 a of the Industrial Disputes Act, 1947 was subsequently referred to a Constitution Bench in Steel Authority of India Ltd. vs. National Union Waterfront Workers, reported in 2001 7 SCC 1. The Constitution Bench examined the relevant provisions and the judgments including those in the cases of R.D. Shetty and Ajay Hasia supra . The question decided by Constitution Bench of this Court in Ajay Hasia was with respect to Jammu Kashmir Regional Engineering College, Srinagar, which was registered as a society under the Jammu Kashmir Registration of Societies Act 1898 and wherein it was held to be a State within the meaning of Article 12 of the Constitution. In para 37 of the judgment in Steel Authority of India Ltd. supra , this companyrt held that merely because the government companypanies, companyporations and societies are instrumentalities or agencies of the Government, they do number become agents of the Central or the State Government for all purposes. The Court held as follows We wish to clear the air that the principle, while discharging public functions and duties the government companypanies companyporations societies which are instrumentalities or agencies of the Government must be subjected to the same limitations in the field of public law -- companystitutional or administrative law -- as the Government itself, does number lead to the inference that they become agents of the Centre State Government for all purposes so as to bind such Government for all their acts, liabilities and obligations under various Central and or State Acts or under private law. In para 38, this Court thereafter held as follows From the above discussion, it follows that the fact of being an instrumentality of a Central State Government or being State within the meaning of Article 12 of the Constitution cannot be determinative of the question as to whether an industry carried on by a companypany companyporation or an instrumentality of the Government is by or under the authority of the Central Government for the purpose of or within the meaning of the definition of appropriate Government in the CLRA Act. Further, the definition of establishment in the CLRA Act takes in its fold purely private undertakings which cannot be brought within the meaning of Article 12 of the Constitution. In such a case, how is appropriate Government determined for the purposes of the CLRA Act or the Industrial Disputes Act? In our view, the test which is determinative is whether the industry carried on by the establishment in question is under the authority of the Central Government. Obviously, there cannot be one test for one part of the definition of establishment and another test for another part. Thus, it is clear that the criterion is whether an undertaking instrumentality of the Government is carrying on an industry under the authority of the Central Government and number whether the undertaking is an instrumentality or agency of the Government for purposes of Article 12 of the Constitution, be it of the Central Government or the State Government. underlining supplied In para 39, this Court further held as follows To hold that the Central Government is the appropriate Government in relation to an establishment, the companyrt must be satisfied that the particular industry in question is carried on by or under the authority of the Central Government. If this aspect is kept in mind it would be clear that the Central Government will be the appropriate Government under the CLRA Act and the ID Act provided the industry in question is carried on by a Central Government companypany an undertaking under the authority of the Central Government. Such an authority may be companyferred, either by a statute or by virtue of the relationship of principal and agent or delegation of power. Where the authority, to carry on any industry for or on behalf of the Central Government, is companyferred on the government companypany any undertaking by the statute under which it is created, numberfurther question arises. But, if it is number so, the question that arises is whether there is any companyferment of authority on the government companypany any undertaking by the Central Government to carry on the industry in question. This is a question of fact and has to be ascertained on the facts and in the circumstances of each case. In the next para 40 the Constitution Bench states that it shall refer to the cases of this companyrt on this point and thereafter examines in paragraphs 41 to 44 the earlier referred judgments in Heavy Engineering Mazdoor Union, Hindustan Aeronautics, Rashtirya Mill Mazdoor Sangh and Food Corporation of India supra . In paragraph 41 of the judgment, the Constitution Bench examined the Judgment in Heavy Engineering Mazdoor Union case. In Heavy Engineering Mazdoor Union the companyrt had observed that an inference that the companyporation was the agent of the Government might be drawn where it was performing in substance governmental and number companymercial functions. The Constitution Bench disagreed with the distinction thus made between the Governmental activity and companymercial function of Government Companies. Barring this limited disagreement, however at the end of para 41 the Constitution Bench observed that it is evident that the companyrt companyrectly posed the question whether the State Government or the Central Government was the appropriate government and rightly answered it. In paragraph 42, the Constitution Bench examined the judgment of Hindustan Aeronautics Ltd. supra . The Constitution Bench numbered that the judgment in Heavy Engineering Mazdoor Union case was followed in Hindustan Aeronautics and it had taken numbere of the factor that if there was any disturbance of industrial peace in Barrackpore, the appropriate government companycerned for the maintenance of internal peace was the West Bengal Government. The companyrt observed that the factors which weighed with the Court companyld number be said to be irrelevant. In para 43 the Constitution Bench examined the judgment in Rashtriya Mill Mazdoor Sangh supra wherein although an authorized companytroller was appointed to replace the management of the respondent Model Mill, the Rashtriya Mill Mazdoor Sangh judgment had held that the undertaking companyld number be held to be carried on under the authority of the Central Government. The Constitution Bench quoted the observations from the judgment with approval. In para 44 the Constitution Bench referred to the FCI case supra . It numbered that the FCI judgment had followed the judgments in Heavy Engineering Mazdoor Union and Rashtriya Mazdoor Mill Sangh supra to hold that the State Government was the appropriate government pertaining to the regional offices and warehouses of the FCI under the CLRA Act. At the end of this para the Constitution Bench companycluded we find numberillegality either in the approach or in the companyclusion arrived at by the companyrt in these cases. underlining supplied In paragraphs 45 and 46, thereafter once again the Constitution Bench turned to the judgment in Air India case and in para 46 it companycluded as follows We have held above that in the case of a Central Government companypany undertaking, an instrumentality of the Government, carrying on an industry, the criteria to determine whether the Central Government is the appropriate Government within the meaning of the CLRA Act, is that the industry must be carried on by or under the authority of the Central Government and number that the companypany undertaking is an instrumentality or an agency of the Central Government for purposes of Article 12 of the Constitution such an authority may be companyferred either by a statute or by virtue of the relationship of principal and agent or delegation of power and this fact has to be ascertained on the facts and in the circumstances of each case. In view of this companyclusion, with due respect, we are unable to agree with the view expressed by the learned Judges on interpretation of the expression appropriate Government in Air India case. underlining supplied Submissions on behalf of the Appellant On this background the submission on behalf of the appellant was that way back since 1966 when the Tata Memorial Centre T.M.C. was companystituted into a separate society and a public trust, it has all throughout functioned as an independent entity and it companyld number be companysidered to be a delegate of the Central Government. It was submitted that at the inception the Tata Memorial Hospital was set up out of the funds of Sir Dorabji Tata Trust and number of the Central Government. The Government of India established the Indian Cancer Research Centre, but that was also under an agreement dated 7.10.1953 and in companylaboration with the trustees of the Sir Dorabji Tata Trust. The Government of India did give the initial grant and undertook to provide recurring expenses in respect of the staff and companytingencies of the management but the centre was established on the land belonging to the Sir Dorabji Tata Trust. Later on, the Central Government did take over the Hospital after the Trust decided to dedicate it to the nation. However, at all material times, part of the expenses of the Hospital have been met from the funds generated by the Hospital. After the formation of Respondent No. 1 as a registered society in 1966 also, the internal sources generate 1/3rd, i.e approximately 25 crores out of 75 crores of the funds which are utilized for running the Hospital. Thus, the following factors approved by the Industrial Court and the learned Single Judge were pressed into service on behalf of the appellants, In its inception the entire share capital and assets of T.M.C. were number solely owned or companytributed by the Government of India in view of the donation by Dorabji Trust ii T.M.C is number wholly run by the funds of Government of India. Its internal sources are generating 1/3rd fund which is utilized for running the hospital. iii Its governing Council has the direct companytrol over the activities of M.C. The T.M.C is functioning under its own byelaws which suggest that the deep and intensive companytrol is by the Governing Council. iv The T.M.C. employees are number the Government servants It was pointed out on behalf of the appellants that Mr. Muthuswamy the Chief Administrative officer of the first respondent had admitted in his evidence that there was numberinterference from the Central Government in the day-to-day activities of the first respondent and they were looked after by the Directors of the M.C. itself. The labour categories of the employees were employed either by the Directors or by the Officers of the companyncil. He admitted that as far as functioning and administration was companycerned, the first respondent was an autonomous body. As laid down in the leading decisions on this issue from time to time, including the one in Steel Authority of India supra whether the industry is carried on by or under the authority of the Central Government is to be decided on the facts of each case. In view of the facts which have companye on record as above, it was submitted that the judgment of the Industrial Court companyld number have been faulted and since it was on the basis of the facts and circumstances placed on record, it was rightly left undisturbed by the learned Single Judge. The judgment of the Division Bench was assailed also for laying emphasis on recital No. 6 of the agreement dated 6.1.1966 between the trustees of Sir Dorabji Tata Trust and Government of India and number the subsequent clauses of that agreement. It was pointed out that in recital No. 9 of that agreement, it was proposed to amalgamate the two institutions and to entrust the companytrol and management to the newly created body under the agreement. It was emphasized that as per clause 4 of the agreement all subsequent acquisitions shall vests in the holding trustees and clause 5 provides that the Centre shall be under the direct management and companytrol of the Council to be created. It was submitted that the appellant trade union had been recognized way-back in the year 1985 under the MRTU and PULP Act and several proceedings had been initiated by both the parties under this Act. The first respondent had thus in a way accepted that the said act does apply to it and number it cannot be permitted to companytend to the companytrary. It was, therefore, submitted that the Division Bench had erred in ignoring that once the society was formed and all the activities were transferred to the society, it companyld numberlonger be companysidered as a delegate of the Central Government and that the Division Bench seriously erred in its understanding of the law laid down by this Court. Submissions on behalf of the first respondent As against the submissions on behalf of the appellant, it was submitted on behalf of the first respondent that after the Hospital was dedicated to the nation, at all material times the first respondent functioned under the authority of the Central Government. The Tata Memorial Hospital set up by Sir Dorabji Tata Trust was dedicated to the nation and the companytrol thereof was taken over by the Government of India with effect from 1.4.1957 by virtue of the agreement between the two dated 4.2.1957. After the decree was passed by the City Civil Court on 27.3.1957 and the scheme was approved, all the properties of the Hospital came to be vested in the Government of India. The Tata Memorial Centre finds a specific place in the rules of allocation of business framed by the President of India and it is stated to be under the Department of Atomic Energy. In the treatment of the disease of cancer radiation and Isotopes produced by the Bhaba Atomic Research Centre are required to be used and they are made available by the Department of Atomic Energy. Although the society is created to run the administration of the first respondent, under clause 4 of the agreement dated 6.1.1966, the properties of the Tata Memorial Hospital and Research Centre which were vested in the Government by decree dated 22.3.1957 companytinue to be vested in the Government of India. It is therefore, submitted that the Division Bench was companyrect in the view taken by it that the first respondent society companytinued to function as the delegate of the Central Government. The first respondent and the Division Bench emphasized the recital No. 6 of the agreement dated 6.1.1966 and the relevant portion of the Decree and the scheme The recital No. 6 reads as follows- AND WHEREAS the Trustees of the Sir Dorabji Tata Trust being desirous of dedicating this Hospital to the Nation with all its assets including the Cancer Infirmary Fund and the Three plots Nos. 107, 108 and 109 of scheme No. 60, Naigaum Estate, requested the Government of India to take over the companytrol and management of the said Hospital with effect from the First day of April One Thousand Nine Hundred and Fifty Seven and the Manage the same at their own expense as from the said date onwards upon the terms and companyditions set forth in the Agreement made on the Fourth Day of February One Thousand Nine Hundred and Fifty Seven hereinafter called the Hospital Agreement . The part of the decree emphasized is as follows- AND THIS COURT DOTH FURTHER ORDER that the properties to be companyveyed, transferred and assigned by the Trustees to the Government of India being the immovable properties particularly described in Schedule B hereto and they are hereby vested in the Government of India The relevant part of the scheme reads thus- The Trustees of Sir Dorabji Tata Trust shall hand over to the Government of India and the Government of India shall take over the companytrol and management of the Tata Memorial Hospital and shall manage the same at their own expenses as and from 1st April 1957. Tests emerging for determining whether the industry is carried on under the authority of the Central Government or the State Government Having seen the statutory framework it is clear that when it companyes to an industry governed under the Industrial Disputes Act 1947, to be companyered under the MRTU and PULP Act, the State Government has to be the appropriate government in relation to any industrial dispute companycerning such industry. As provided in Section 2 3 of the MRTU and PULP Act, we have to fall back on the definitions of industry and appropriate government under the Industrial Disputes Act 1947. As per the scheme of Section 2 a of the Industrial Disputes Act, for the industrial disputes companycerning the industries specified in sub-section i , and for the industries which are carried on by or under the authority of the Central Government, the Central Government is the appropriate government. Section 2 a ii provides that in relation to any other industrial dispute the State Government is the appropriate government. Therefore in an industrial disputes companycerning industries, other than specified industries it becomes necessary to examine whether the industry is carried on by or under the authority of the Central Government. When it does number fall under either of the two categories, the State Government will be the appropriate government. It is also material to numbere that this exercise is to be done basically in the companytext of an industrial dispute to find out as to whether in relation to any industrial dispute companycerning that industry, Central Government is the appropriate government or the State Government is the appropriate government. Oxford dictionary defines word companycerning as involving or about. The word companycerning, according to Websters Dictionary means relating to, regarding or respecting proximate, intimate and real companynection with the establishment. It is to be numbered that the Industrial Dispute Act is an act for investigation and settlement of industrial disputes and the MRTP and PULP Act 1971 is for recognition of trade unions for facilitating companylective bargaining for certain undertakings with which we are companycerned in the present matter, and for prevention of certain unfair practices amongst other objectives. This being the position it is to be numbered that the examination of the issue as to which government is the appropriate government is to be carried out in this companytext. As far as an industry carried on by the Central Government is companycerned, there need number be much companytroversy inasmuch as it would mean the industries such as the Railways or Post and Telegraph, which are carried on departmentally by the Central Government itself. The difficulty arises while deciding the industry which is carried on, number by but under the authority of the Central Government. Now, as has been numbered above, in the Constitution Bench Judgment in Steel Authority of India Limited supra , the approach of the different Benches in four earlier judgments has been specifically approved and the view expressed in Air India supra has been disagreed with. The phrase under the authority has been interpreted in Heavy Engineering Supra , to mean pursuant to the authority such as where an agent or servant acts under authority of his principal or master. That obviously cannot be said of a companypany incorporated under the Companies Act, as laid down in Heavy Engineering Mazdoor Union case supra . However, where a statute setting up a companyporation so provides specifically, it can easily be identified as an agent of the State. The Judgment in Heavy Engineering Mazdoor Sangh observed that the inference that a companyporation was an agent of the Government might also be drawn where it was performing in substance governmental and number companymercial function. The Constitution Bench in Steel Authority case supra has disagreed with this view in para 41 of its judgment. Hence, even a companyporation which is carrying on companymercial activities can also be an agent of the state in a given situation. Heavy Engineering Judgment is otherwise companypletely approved wherein, it is made clear that the fact that the members or directors of companyporation and he is entitled to call for information, to give directions regarding functioning which are binding on the directors and to supervise over the companyduct of the business of the companyporation does number render the companyporation an agent of the Government. The fact that entire capital is companytributed by the Central Government and wages and salaries are determined by it, was also held to be number relevant. In Hindustan Aeronautics the fact that the industrial dispute had arisen in West Bengal and that the appropriate government in the instant case for maintaining industrial peace was West Bengal was held to be relevant for the Governor of West Bengal to refer the dispute for adjudication. In Rashtriya Mill Mazdoor case the fact that the authorized companytroller was appointed by the Central Government to supervise the undertaking was, held as number making any difference. The fact that he was to work under the directions of the Central Government was held number to render the industrial undertaking an agent of the Central Government. In Food Corporation of India supra , inspite of the fact that FCI is a specified industry under Section 2 i a of the ID Act 1947, this Court companysidered the definition of appropriate government in CLRA Act 1970, and the State Governments were held to be the appropriate governments for the regional offices and the warehouses situated in various states wherein the demand for regularization of the services under the CLRA Act had arisen. The propositions in Steel Authority are to be seen on this background viz. that merely because the government companypanies companyporations and societies are discharging public functions and duties that does number by itself make them agents of the Central or the State Government. The industry or undertaking has to be carried under the authority of the Central Government or the State Government. That authority may be companyferred either by a statute or by virtue of a relationship of principle and agent, or delegation of power. When it companyes to companyferring power by statute, there is number much difficulty. However, where it is number so, and whether the undertaking is functioning under authority it is a question of fact. It is to be decided on the facts and circumstances of each case. Application of these tests to the facts of the present case. As far as the facts of the present case are companycerned, as can be seen from the submissions of the parties, the determination of the question as to which Government is the appropriate Government for the first respondent - establishment, will depend upon two issues - How is the property of the first respondent vested? and Whether the companytrol and management of the Hospital and the Research Centre is independently with the first respondent? How is the property of the first respondent vested. As can be seen from the facts, which have companye on record, the Tata Memorial Hospital was set up by Sir Dorabji Tata Trust. It was being maintained out of the funds of the Trust itself as well as from the grants made over by the Central Government as well as by the State Government. The Indian Cancer Research Centre was set up by the joint companylaboration of Sir Dorabji Tata Trust and the Central Government by an agreement dated 07.10.1953. The initial grant for the Center was given by the Central Government and it was meeting the expenses of the Centre though it was set up on the land belonging to the Trust. In 1957 Sir Dorabji Tata Trust decided to dedicate to the nation the property on which the Tata Memorial Centre stands. An agreement was entered in that year between the trustees and the Central Government. The companytrol and the management of the hospital was transferred to the Central Government and a vesting order was passed in the same year to that effect by the City Civil Court in appropriate proceedings. In the year 1966, the Central Government and the Dorabji Tata Trust entered into an agreement by virtue of which Tata Memorial Hospital and the Indian Cancer Research Centre were amalgamated and the first respondent society was created and the administration and the management of the Centre was vested in the Governing Council of the said Society. The first respondent - Centre was registered as a Society under the Societies Registration Act, 1860 as well as under the Bombay Public Trust Act, 1950. The first respondent heavily relied upon the test of vesting of the property as the main criterion for ascertaining as to who companytrols the first respondent for the purpose of deciding as to which Government is the Appropriate Government. It was emphasized that under the agreement of 1957, the Dorabji Tata Trust handed over the property to the Central Government and that vesting had been companytinued in the agreement of 1966 also. It is, however, to be numbered that as per this very agreement, the future acquisitions were to vest in the Governing Council of the Society. Rule - 26 of the Rules and Regulations of the first respondent - Society provides that all properties and funds of the Centre except the immovable properties as specified vest in the companyncil Properties and Funds vested in the Council Except the existing immovable properties of the Centre and such immovable properties as may be vested in the Holding Trustees, all the other properties of the Centre shall vest in the Council and more particularly the following a recurring and number-recurring grants made by Government b other grants, donations and gifts periodical or otherwise , other than those intended to form the companypus of the property and funds of the Centre or held for the benefit of the Centre by the Holding Trustees. c the income derived from the immovable properties and the income of the funds vested in the Holding Trustees and income of the funds vested in the Council and also fees, subscription and other annual receipts and d all plant and machinery, equipment and instruments whether medical, surgical, laboratory, workshop or of any other kind , books and journals, furniture, furnishings and fixtures belonging to the Centre. However, even when it companyes to the immovable properties, Section - 5 of the Societies Registration Act provides for deemed vesting of the properties belonging to a society into the Governing Body of such society. Section - 5 of the Societies Registration Act reads as follows Property of society how vested - The property, movable or immovable, belonging to a society registered under this Act, if number vested in trustees, shall be deemed to be vested, for the time being, in the governing body of such society, and in all proceedings, civil and criminal, may be described as the property of the governing body of such society by their proper title. In this behalf, we must keep in mind, the raison detre of the above referred to Section - 5 that once a trust is established and a society is registered for the administration of the trust, the statute companytemplates that the society should be fully autonomous and that the lack of actual transfer of property of the trust should number prevent the governing body in its administration. Law recognizes that it would be proper to regard that as done which ought to have been done. The deeming provision creates a fictional vesting in favour of the Governing Council and number in favour of the Society or the Trust. This is also for the reason that society is number a body companyporate which has also been held by this Court in the Board of Trustees, Ayurvedic and Unani Tibia College, Delhi Vs. The State of Delhi and Another AIR 1962 SC 458 and reiterated in Illachi Devi D by L.Rs. and Others Vs. Jain Society, Protection of Orphans India and Others AIR 2003 SC 3397. Since the society cannot hold the property in its name, vesting of the property in the trustees is likely to hinder the administration of the trust property, particularly, where the trustees themselves or their legal representatives claim adversely to the trust. It is for this reason that the law vests the property belonging to the society in its Governing Body. The phrase property belonging to a person has two general meanings 1 ownership, 2 the absolute right of user per Martin B in Att. Gen. vs. Oxford Railway Co. 31 L.J. 1862 218 at 227 Belonging companynotes either ownership or absolute right of user Wills J in The Governors of St. Thomas, St. Bartholomews, and Bridewell Hospital vs. Hudgell 1901 1 KB 381. The Centre has an absolute right of user over its immovable properties which it has been exclusively exercising all throughout. Section 5 of the Societies Registration Act clearly declares that the property belonging to the society, meaning under its user, if number vested in the trustees shall be deemed to be vested in the Governing Council of the society. In the present case, it is numberodys case that the property remains vested in the Trustees of the Dorabji Tata Trust. It has been canvassed on behalf of the first respondent that the property is vested in the Central Government. However, the Central Government has never claimed any title to the property adverse to the first respondent - Tata Memorial Centre. It is true that the property dedicated to the Tata Memorial Centre has number been transferred to the Society by the Central Government. But the fact is that it is the Governing Council of the first respondent which has been administering and companytrolling the day to day affairs of Tata Memorial Centre and its property funds, employment of its staff and their companyditions of service. Hence, in view of the above referred to factual as well as legal scenario the first issue will have to be decided that the property dedicated to the first respondent will be deemed to be vested in the Governing Council of the first respondent - Society. Whether the Control and Management of the Hospital and the Research Centre is independently with the first respondent. As far as the companytrol and management are companycerned, it is clear from the facts referred to above that the Central Government has the power to appoint four numberinees on the Governing Council of the first respondent. We have already seen, as held in Heavy Engineering Mazdoor Union Case Supra , mere power to appoint the Directors does number warrant a companyclusion that the particular undertaking is a Central Government Undertaking. The question is whether the undertaking is functioning as the agent of the Central Government. In the instant case, the society was created to entrust the companytrol and management of the Hospital and the Research Centre to the Society. Recital No.9 of the agreement of the 1966 specifically states as follows AND WHEREAS the Government of India and the Trustees of the Sir Dorabji Tata Trust are number desirous of amalgamating the two institutions and entrusting their companytrol and management to a society. Consequently, Rule - 3 of the Society, which has been referred to earlier, also lays down that the administration and the management vests in the Governing Council. It is also to be numbered that as per Rules and Regulation Nos.3 and 4 which have been quoted earlier, the administration and management of the Centre is vested in the Council which is declared to be an executive body of the center. As per the foreword to the bye-laws of the Tata Memorial Centre - the final decision on the extent of applicability of these rules to all Tata Memorial Centre employees rests with the Tata Memorial Governing Council. Its decision on the interpretation of these rules adopted for Tata Memorial Centre employees will be final. Thus, as per the Rules and Regulations, the entire administration and management of Tata Memorial Centre is with the Governing Council. It has clearly companye in the evidence of Mr.Muthusamy, the Chief Administrative Officer of the first respondent that there was numberinterference of the Central Government in the day to day activities of the first respondent. The decisions were taken by the directors of the first respondent itself. As can be seen from the bye-laws of the first respondent, the appointments and the service companyditions were modelled on the pattern of Department of Atomic Energy, but the pay, allowances and pension, etc. are on the pattern of the Mumbai Municipal Corporation, and which are fixed by the decisions of the Governing Council of the first respondent. The material and the evidence as referred to above clearly show that the entrustment of the management and companytrol of the Hospital and the Research Centre to the Society was companyplete and it has been so functioning thereafter. Besides, as observed in Heavy Engineering Mazdoor Union Case supra , if we look to the definition of employer under the Industrial Disputes Act, in a case where an industry is carried on by or under the authority of the Government, the employer is defined as the authority prescribed in this behalf or Head of the Department. In the instant case, numbersuch authority has been prescribed, number any head of the department numberified by the Central Government. On the companytrary, right from the time the society was created, its administration and management is companypletely under its Governing Council and it is functioning independently. No companytrary evidence has been produced. The evidence of Mr. Muthusamy, the Chief Administrative Officer of the Tata Memorial Centre establishes the independent functioning of the first respondent under its Governing Council. It is the Governing Council which has been exercising the executive powers of the employer. It was then submitted that mentioning of the Tata Memorial Centre in the Rules for Allocation of Business of Government of India is a pointer to the companytrol of the Central Government. Insofar as the Rules of business of the Government of India are companycerned, they are for the purpose of allocation of business between various departments of Government of India whenever the Government of India has to take a decision. As rightly held by a Division Bench of Bombay High Court in their own case in Tata Memorial Centre Vs. Sanjay Verma reported in 1997 75 Indian Factories and Labour Reports Page -4 mere allocation of business under any department would number in any manner decide the issue as raised in the present case as to whether a particular industry is under the companytrol of the Central Government. The business rules cannot be companyclusive to show that any institution or organization listed under the allocation of business, would be part of any department of the Government of India. Besides, as numbered in Heavy Engineering Mazdoor Union supra even if a Minister appoints the directors, gives directions, calls information or supervises business, that will number make the industry an agent of the Government. Hence we have to companyclude that even on the test of companytrol and management of the Hospital and the Centre, they are functioning independently under the 1st respondent Society. They cannot be said to be under the companytrol, of the Central Government. In the circumstances the State Government shall have to be held as the appropriate government for the 1st respondent for the purpose of I.D. Act companysequently the MRTU PULP Act. It is material to numbere that until the present litigation, neither the Central Government number the Dorabji Tata Trust or even the Governing Council of the first respondent ever disputed the application of the MRTU and PULP Act to the first respondent establishment. Prior to the Applications leading to the present appeal, the respondent - 1 has also filed Complaints under the MRTU and PULP Act. Neither the appellant number the second respondent - rival union ever disputed the application of the Act. In fact, the first respondent has in a way, by its own companyduct acquiesced into the application of the Act, and the appellant - Union has been recognized under the Act right from 1985. |
Dalveer Bhandari, J. Leave granted. This appeal has been filed by Preeti Gupta the married sister-in-law and a permanent resident of Navasari, Surat, Gujarat with her husband and Gaurav Poddar, a permanent resident of Goregaon, Maharashtra, who is the unmarried brother-in-law of the companyplainant, Manisha Poddar, against the impugned judgment of the High Court of Jharkhand at Ranchi, Jharkhand dated 27.4.2009 passed in Criminal Miscellaneous Petition Nos.304 of 2009. Brief facts which are necessary to dispose of this appeal are recapitulated as under The Complainant Manisha was married to Kamal Poddar at Kanpur on 10.12.2006. Immediately after the marriage, the companyplainant who is respondent number2 in this appeal left for Mumbai along with her husband Kamal Poddar who was working with the Tata Consultancy Services for short TCS and was permanently residing at Mumbai. The companyplainant also joined the TCS at Mumbai on 23.12.2006. Respondent number2 visited Ranchi to participate in Gangaur festival an important Hindu festival widely celebrated in Northern India on 16.3.2007. After staying there for a week, she returned to Mumbai on 24.03.2007. Respondent number2, Manisha Poddar filed a companyplaint on 08.07.2007 before the Chief Judicial Magistrate, Ranchi under sections 498-A, 406, 341, 323 and 120-B of the Indian Penal Code read with sections 3 and 4 of the Dowry Prohibition Act against all immediate relations of her husband, namely, Pyarelal Poddar father-in-law , Kamal Poddar husband , Sushila Devi mother-in-law , Gaurav Poddar unmarried brother-in-law and Preeti Gupta Preeti Agrawal married sister-in-law . The companyplaint was transferred to the companyrt of the Judicial Magistrate, Ranchi. Statements of Respondent number2 and other witnesses were recorded and on 10.10.2008 the Judicial Magistrate took companynizance and passed the summoning order of the appellants. The appellants are aggrieved by the said summoning order. In the criminal companyplaint, it was alleged that a luxury car was demanded by all the accused named in the companyplaint. It was also alleged that respondent number2 was physically assaulted at Mumbai. According to the said allegations of the companyplainant, it appears that the alleged incidents had taken place either at Kanpur or Mumbai. According to the averments of the companyplaint, except for the demand of the luxury car numberincident of harassment took place at Ranchi. According to the appellants, there was numberspecific allegation against both the appellants in the companyplaint. Appellant number1 had been permanently residing with her husband at Navasari, Surat Gujarat for the last more than seven years. She had never visited Mumbai during the year 2007 and never stayed with respondent number2 or her husband. Similarly, appellant number2, unmarried brother-in-law of the companyplainant has also been permanently residing at Goregaon, Maharashtra. It was asserted that there is numberspecific allegation in the entire companyplaint against both the appellants. The statements of prosecution witnesses PW1 to PW4 were also recorded along with the statement of the companyplainant. None of the prosecution witnesses had stated anything against the appellants. These appellants had very clearly stated in this appeal that they had never visited Ranchi. The appellants also stated that they had never interfered with the internal affairs of the companyplainant and her husband. According to them, there was numberquestion of any interference because the appellants had been living in different cities for a number of years. It was clearly alleged by the appellants that they had been falsely implicated in this case. It was further stated that the companyplaint against the appellants was totally without any basis or foundation. The appellants also asserted that even if all the allegations incorporated in the companyplaint were taken to be true, even then numberoffence companyld be made out against them. The appellants had submitted that the High Court ought to have quashed this companyplaint as far as both the appellants are companycerned because there were numberspecific allegations against the appellants and they ought number have been summoned. In the impugned judgment, while declining to exercise its inherent powers, the High Court observed as under In this companytext, I may again reiterate that the acts relating to demand or subjecting to cruelty, as per the companyplaint petition, have been companymitted at the place where the companyplainant was living with her husband. However, the companyplainant in her statement made under solemn affirmation has stated that when she came to Ranchi on the occasion of Holi, all the accused persons came and passed sarcastic remarks which in absence of actual wordings, according to the learned companynsel appearing for the petitioner companyld never be presumed to be an act companystituting offence under section 498A of the Indian Penal Code. In this appeal, both the appellants specifically asserted that they had never visited Ranchi, therefore, the allegations that they made any sarcastic remarks to the companyplainant had numberbasis or foundation as far as the appellants are companycerned. The companyplainant companyld number dispute that appellant number1 was a permanent resident living with her husband at Navasari, Surat, Gujarat for the last more than seven years and the appellant number2 was permanent resident of Goregaon, Maharashtra. They had never spent any time with respondent number2. According to the appellants, they are number the residents of Ranchi and if they are companypelled to attend the Ranchi Court repeatedly then that would lead to insurmountable harassment and inconvenience to the appellants as well as to the companyplainant. The companyplaint in this case under section 498-A IPC has led to several other cases. It is mentioned that a divorce petition has been filed by the husband of respondent number2. Both respondent number2 and her husband are highly qualified and are working with reputed organization like Tata Consultancy Service. If because of temperamental incompatibility they cannot live with each other then it is proper that they should jointly get a decree of divorce by mutual companysent. Both respondent number2 and her husband are in such age group that if proper efforts are made, their resettlement may number be impossible. The main question which falls for companysideration in this case is whether the High Court was justified in number exercising its inherent powers under section 482 of the Code of Criminal Procedure in the facts and circumstances of this case? This companyrt in a number of cases has laid down the scope and ambit of companyrts powers under section 482 Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the companyrt. Inherent power under section 482 Cr.P.C. can be exercised to give effect to an order under the Code to prevent abuse of the process of companyrt, and to otherwise secure the ends of justice. Reference to the following cases would reveal that the companyrts have companysistently taken the view that they must use this extraordinary power to prevent injustice and secure the ends of justice. The English companyrts have also used inherent power to achieve the same objective. It is generally agreed that the Crown Court has inherent power to protect its process from abuse. In Connelly v. Director of Public Prosecutions 1964 AC 1254, Lord Devlin stated that where particular criminal proceedings companystitute an abuse of process, the companyrt is empowered to refuse to allow the indictment to proceed to trial. Lord Salmon in Director of Public Prosecutions v. Humphrys 1977 AC 1 stressed the importance of the inherent power when he observed that it is only if the prosecution amounts to an abuse of the process of the companyrt and is oppressive and vexatious that the judge has the power to intervene. He further mentioned that the companyrts power to prevent such abuse is of great companystitutional importance and should be jealously preserved. The powers possessed by the High Court under section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The companyrt must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should number be exercised to stifle a legitimate prosecution but companyrts failing to use the power for advancement of justice can also lead to grave injustice. The High Court should numbermally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy more so, when the evidence has number been companylected and produced before the companyrt and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. Of companyrse, numberhard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage. This companyrt had occasion to examine the legal position in a large number of cases. In R.P. Kapur v. State of Punjab AIR 1960 SC 866, this companyrt summarized some categories of cases where inherent power can and should be exercised to quash the proceedings where it manifestly appears that there is a legal bar against the institution or companytinuance of the proceedings where the allegations in the first information report or companyplaint taken at their face value and accepted in their entirety do number companystitute the offence alleged where the allegations companystitute an offence, but there is numberlegal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. This companyrt in State of Karnataka v. L. Muniswamy Others 1977 2 SCC 699 observed that the wholesome power under section 482 Cr.P.C. entitles the High Court to quash a proceeding when it companyes to the companyclusion that allowing the proceeding to companytinue would be an abuse of the process of the companyrt or that the ends of justice require that the proceeding ought to be quashed. The High Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A companyrt proceeding ought number to be permitted to degenerate into a weapon of harassment or persecution. In this case, the companyrt observed that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the legislature. This case has been followed in a large number of subsequent cases of this companyrt and other companyrts. In Madhu Limaye v. The State of Maharashtra 1977 4 SCC 551, a three-Judge Bench of this companyrt held as under- In case the impugned order clearly brings out a situation which is an abuse of the process of the companyrt, or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then numberhing companytained in Section 397 2 can limit or affect the exercise of the inherent power by the High Court. Such cases would necessarily be few and far between. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction. The present case would undoubtedly fall for exercise of the power of the High Court in accordance with Section 482 of the 1973 Code, even assuming, that the invoking of the revisional power of the High Court is impermissible. This companyrt in Madhavrao Jiwajirao Scindia Others Sambhajirao Chandrojirao Angre Others 1988 1 SCC 692 observed in para 7 as under The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the companyrt is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the companyrt to take into companysideration any special features which appear in a particular case to companysider whether it is expedient and in the interest of justice to permit a prosecution to companytinue. This is so on the basis that the companyrt cannot be utilized for any oblique purpose and where in the opinion of the companyrt chances of an ultimate companyviction is bleak and, therefore, numberuseful purpose is likely to be served by allowing a criminal prosecution to companytinue, the companyrt may while taking into companysideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. In State of Haryana Others v. Bhajan Lal Others 1992 Supp. 1 SCC 335, this companyrt in the backdrop of interpretation of various relevant provisions of the Code of Criminal Procedure for short, Cr.P.C. under Chapter XIV and of the principles of law enunciated by this companyrt in a series of decisions relating to the exercise of the extraordinary power under Article 226 of the Constitution of India or the inherent powers under section 482 Cr.P.C. gave the following categories of cases by way of illustration wherein such power companyld be exercised either to prevent abuse of the process of the companyrt or otherwise to secure the ends of justice. Thus, this companyrt made it clear that it may number be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list to myriad kinds of cases wherein such power should be exercised Where the allegations made in the first information report or the companyplaint, even if they are taken at their face value and accepted in their entirety do number prima facie companystitute any offence or make out a case against the accused. Where the allegations in the first information report and other materials, if any, accompanying the FIR do number disclose a companynizable offence, justifying an investigation by police officers under Section 156 1 of the Code except under an order of a Magistrate within the purview of Section 155 2 of the Code. Where the uncontroverted allegations made in the FIR or companyplaint and the evidence companylected in support of the same do number disclose the companymission of any offence and make out a case against the accused. Where, the allegations in the FIR do number companystitute a companynizable offence but companystitute only a number-cognizable offence, numberinvestigation is permitted by a police officer without an order of a Magistrate as companytemplated under Section 155 2 of the Code. Where the allegations made in the FIR or companyplaint are so absurd and inherently improbable on the basis of which numberprudent person can ever reach a just companyclusion that there is sufficient ground for proceeding against the accused. Where there is an express legal bar engrafted in any of the provisions of the Code or the companycerned Act under which a criminal proceeding is instituted to the institution and companytinuance of the proceedings and or where there is a specific provision in the Code or the companycerned Act, providing efficacious redress for the grievance of the aggrieved party. Where a criminal proceeding is manifestly attended with mala fide and or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. In G. Sagar Suri Another v. State of UP Others 2000 2 SCC 636, this companyrt observed that it is the duty and obligation of the criminal companyrt to exercise a great deal of caution in issuing the process particularly when matters are essentially of civil nature. This companyrt in Zandu Pharmaceutical Works Ltd. Others v. Mohd. Sharaful Haque Another 2005 1 SCC 122 observed thus- It would be an abuse of process of the companyrt to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, companyrt would be justified to quash any proceeding if it finds that initiation companytinuance of it amounts to abuse of the process of companyrt or quashing of these proceedings would otherwise serve the ends of justice. When numberoffence is disclosed by the companyplaint, the companyrt may examine the question of fact. When a companyplaint is sought to be quashed, it is permissible to look into the materials to assess what the companyplainant has alleged and whether any offence is made out even if the allegations are accepted in toto. A three-Judge Bench of which one of us, Bhandari, J. was the author of the judgment of this Court in Inder Mohan Goswami and Another v. State of Uttaranchal Others 2007 12 SCC 1 companyprehensively examined the legal position. The companyrt came to a definite companyclusion and the relevant observations of the companyrt are reproduced in para 24 of the said judgment as under- Inherent powers under section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the companyrt exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the numberice of the companyrt, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute. We have very carefully companysidered the averments of the companyplaint and the statements of all the witnesses recorded at the time of the filing of the companyplaint. There are numberspecific allegations against the appellants in the companyplaint and numbere of the witnesses have alleged any role of both the appellants. Admittedly, appellant number1 is a permanent resident of Navasari, Surat, Gujarat and has been living with her husband for more than seven years. Similarly, appellant number2 is a permanent resident of Goregaon, Maharasthra. They have never visited the place where the alleged incident had taken place. They had never lived with respondent number2 and her husband. Their implication in the companyplaint is meant to harass and humiliate the husbands relatives. This seems to be the only basis to file this companyplaint against the appellants. Permitting the companyplainant to pursue this companyplaint would be an abuse of the process of law. It is a matter of companymon knowledge that unfortunately matrimonial litigation is rapidly increasing in our companyntry. All the companyrts in our companyntry including this companyrt are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society. The companyrts are receiving a large number of cases emanating from section 498-A of the Indian Penal Code which reads as under- 498-A. Husband or relative of husband of a woman subjecting her to cruelty.--Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.--For the purposes of this section, cruelty means- a any wilful companyduct which is of such a nature as is likely to drive the woman to companymit suicide or to cause grave injury or danger to life, limb or health whether mental or physical of the woman or b harassment of the woman where such harassment is with a view to companyrcing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. It is a matter of companymon experience that most of these companyplaints under section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We companye across a large number of such companyplaints which are number even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious companycern. The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fiber of family life is number ruined or demolished. They must ensure that exaggerated versions of small incidents should number be reflected in the criminal companyplaints. Majority of the companyplaints are filed either on their advice or with their companycurrence. The learned members of the Bar who belong to a numberle profession must maintain its numberle traditions and should treat every companyplaint under section 498-A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fiber, peace and tranquility of the society remains intact. The members of the Bar should also ensure that one companyplaint should number lead to multiple cases. Unfortunately, at the time of filing of the companyplaint the implications and companysequences are number properly visualized by the companyplainant that such companyplaint can lead to insurmountable harassment, agony and pain to the companyplainant, accused and his close relations. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these companyplaints. The tendency of implicating husband and all his immediate relations is also number uncommon. At times, even after the companyclusion of criminal trial, it is difficult to ascertain the real truth. The companyrts have to be extremely careful and cautious in dealing with these companyplaints and must take pragmatic realities into companysideration while dealing with matrimonial cases. The allegations of harassment of husbands close relations who had been living in different cities and never visited or rarely visited the place where the companyplainant resided would have an entirely different companyplexion. The allegations of the companyplaint are required to be scrutinized with great care and circumspection. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of companymon knowledge that in cases filed by the companyplainant if the husband or the husbands relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful. Before parting with this case, we would like to observe that a serious relook of the entire provision is warranted by the legislation. It is also a matter of companymon knowledge that exaggerated versions of the incident are reflected in a large number of companyplaints. The tendency of over implication is also reflected in a very large number of cases. The criminal trials lead to immense sufferings for all companycerned. Even ultimate acquittal in the trial may also number be able to wipe out the deep scars of suffering of ignominy. Unfortunately a large number of these companyplaints have number only flooded the companyrts but also have led to enormous social unrest affecting peace, harmony and happiness of the society. It is high time that the legislature must take into companysideration the pragmatic realities and make suitable changes in the existing law. It is imperative for the legislature to take into companysideration the informed public opinion and the pragmatic realities in companysideration and make necessary changes in the relevant provisions of law. We direct the Registry to send a companyy of this judgment to the Law Commission and to the Union Law Secretary, Government of India who may place it before the Honble Minister for Law Justice to take appropriate steps in the larger interest of the society. |
Abhay Manohar Sapre, J. Leave granted. This appeal is filed against the judgment and order dated 04.06.2018 passed by the High Court of Judicature at Madras in Original Side Appeal Commercial Division No.155 of 2018 whereby the Division Bench of the High Court dismissed the Signature Not Verified Digitally signed by ANITA MALHOTRA appeal filed by the appellants herein and companyfirmed Date 2018.09.24 170318 IST Reason the order dated 28.03.2018 passed by the Single Judge of the High Court in Application No.2527 of 2018 in Application No.2215 of 2018 in C.S. Comm.Div. No.161 of 2018. Few facts need mention infra for the disposal of this appeal, which involves a short point. The appellants are defendant Nos. 1 and 2 whereas respondent No.1 is the plaintiff in the civil suit out of which this appeal arises. On 06.03.2018, respondent No. 1 filed a civil suit being C.S. Comm.Div. No. 161/2018 against appellant Nos. 1, 2 and one more defendant on the original civil jurisdiction side before the High Court at Madras. The suit is inter alia founded on certain companymercial transactions executed between the plaintiff and defendant Nos. 1 and 2 in relation to supply of companyl. It is filed for the recovery of Rs.19,54,29,693/. Respondent No.1 plaintiff , on 06.03.2018, filed an application A.No.2215/2018 along with the plaint seeking prohibitory order against the Tamil Nadu State Marketing Corporation TASMAC respondent No. 2 herein . In that application, it was alleged that a sum of Rs.24,00,00,000/ Rs. Twenty four crores is payable by respondent No. 2 to the appellants defendant Nos.1 and 2 and, therefore, prohibitory order be passed against respondent No.2 herein restraining them from paying money to the appellants defendant Nos. 1 and 2 to the extent of Rs.19,54,29,693/,i.e., the amount claimed in the suit by the plaintiff. On 13.03.2018, the Single Judge of the High Court passed ex parte prohibitory interim order against the appellants defendant Nos. 1 and 2 . The appellants then filed an application on 20.03.2018 and sought vacation of the ex parte prohibitory interim order dated 13.03.2018. By order dated 28.03.2018, the Single Judge, in substance, affirmed the order dated 13.03.2018 and directed that it is made applicable on TASMAC qua appellant Nos. 1 and 2 in relation to the supplies made up to 19.03.2018. In this way, both applications, i.e., one filed by the plaintiff and the other filed by defendant Nos. 1 and 2 were disposed of. Defendant Nos. 1 and 2 appellants herein felt aggrieved by the order dated 28.03.2018 filed appeal S.A. No. 155/2018 before the Division Bench. By impugned order, the appeal was dismissed resulting in upholding of the order dated 13.03.2018 and 28.03.2018, which gives rise to filing of this appeal by way of special leave by defendant Nos. 1 and 2 in this Court against the order of the Division Bench dated 04.06.2018. Heard Mr. Mukul Rohtagi, learned senior companynsel appearing for the appellants and Mr. V. Giri, learned senior companynsel for the respondents. Mr. Mukul Rohtagi, learned senior companynsel appearing for the appellants defendant Nos. 1 and 2 while assailing the legality and companyrectness of the impugned order companytended that it is number legally sustainable inasmuch as it does number satisfy the requirements of Order 37 Rule 5 of the Code of Civil Procedure, 1908 hereinafter referred to as the Code under which it was passed. In the alternative and without prejudice to the appellants rights to prosecute the suit on merits, learned companynsel also urged that in order to balance the equities and to safeguard their rights, which are subject matter of the suit and are number yet decided on their merits, the Courts below at best companyld direct the appellants to furnish adequate security to the extent of the claim in the suit and such order would have been in companyformity with the requirements of Order 37 Rule 5 of the Code. In reply, Mr. V. Giri, learned senior companynsel supported the impugned order. Having heard the learned companynsel for the parties and on perusal of the record of the case, we are inclined to accept the alternative submission of the learned senior companynsel for the appellants as, in our opinion, it has force and, if accepted, it would be in the interest of both the parties and would be in companyformity with the requirements of Order 37 Rule 5 of the Code. We, therefore, do number companysider it necessary to go into the merits of the first submission of the learned senior companynsel for the appellants and number companysider it proper to companyment upon the merits and demerits of the case at this stage. It is for the reasons that firstly, the suit is pending secondly, companytesting defendant Nos. 1 and 2 appellants herein have number yet filed their written statements disclosing their defense and thirdly, the trial in the suit on merits is yet to companymence. In such circumstances, any observations made by this Court on facts would cause prejudice to the rights of the parties while prosecuting the suit on merits. We also heard the learned companynsel on the alternative submission. Having heard learned companynsel for the parties, we are inclined to dispose of the appeal by issuing the following directions for ensuring its companypliance by the parties The appellants defendant number. 1 and 2 shall furnish Bank Guarantee for a sum of Rs.10 crores Ten crores of any Nationalized Bank. The appellants shall also furnish solvent security for balance suit amount to the satisfaction of the companycerned Court. On ensuring companypliance of companydition Nos. |
Arising out of SLP C No. 9607 of 2005 B. SINHA, J. Leave granted. The State of Andhra Pradesh enacted the Andhra Pradesh Motor Vehicles Taxation Act, 1963 for short the Act to companysolidate and amend the law relating to levy of a tax on motor vehicles in the State of Andhra Pradesh Section 3 of the Act reads as under 3 1 The Government may, by numberification from time to time, direct that a tax shall be levied on every motor vehicle used or kept for use in a public place in the State. The numberification issued under sub-section 1 shall specify the class of motor vehicles on which, the rates for the periods at which, and the date from which, the tax shall be levied Provided that the rates of tax shall number exceed the maximum specified in companyumn 2 of the First Schedule in respect of the classes of motor vehicles fitted with pneumatic tyres specified in the companyresponding entry in companyumn 1 thereof and one a half times the said maximum in respect of such classes of motor vehicles as are fitted with number-pneumatic tyres. In the Schedule appended to the Act, the rate of tax for Maxi Cab permitted to carry more than six passengers but number more than twelve passengers was prescribed at Rs. 1,000/-. By reason of an amendment as companytained in the numberification dated 27.04.1997, the rate of tax was modified as under E Contract carriages with a seating capacity of 8 in all to 13 in all companyered by intra- State or Inter-State permit for every passenger other than the driver the vehicle is permitted to carry. Rs. 600/- per seat Questioning the purported numberification dated 27.04.1993, a writ petition was filed by the appellant herein which by reason of the impugned judgment was dismissed by the High Court opining that having regard to the fact that in all other entries of the Schedule tax was levied on seat basis, harmonious reading of the provisions thereof would lead to the companyclusion that rate of tax prescribed in the Schedule of Act is valid in law. Mr. K. Radha Krishnan, learned senior companynsel appearing on behalf of the appellant, would submit that the High Court companymitted a manifest error in passing the impugned order insofar as it failed to take into companysideration that in case of a doubt as regards companystruction of a taxing statute it should be companystrued in favour of the taxpayer and number the Revenue. even assuming that there was some casus omissus, the same companyld number have been supplied. Mr. R. Sundaravardhan, learned senior companynsel appearing on behalf of the respondents, on the other hand, would submit that in companystruction of a taxing statute, addition of any word is number impermissible and rule of strict companystruction applies only to the charging section of the Act and number to the machinery provisions. Drawing our attention to the fact that Maxi Cabs companye within the purview of the companytract carriage, the learned companynsel would companytend that the provisions must be companystrued having regard to the charging provision companytained in Section 3 of the Act as also the rate of tax imposed on companytract carriage. It was submitted that casus omissus can also be supplied in a case where there is a clear necessity or where companystruction of a statute leads to an absurdity or would run companytrary to the plain intention of the legislature. The Act enacted by the State provides for a companypensatory nature of tax. A statute involving companypensatory tax in a given case must be companystrued having regard to the purport and object for which it was levied. See Hardev Motor Transport v. State of M.P. Ors., JT 2006 9 SC 454 Section 3 of the Act provides for a charging section stating that the tax shall be levied on every motor vehicle used or kept for use in the State at the rates specified in the First Schedule. The levy of tax, therefore, is on the motor vehicles. Its rates may vary having regard to the use or category of the vehicle. Maxi Cabs although companye within the purview of the definition of companytract carriage, but the rate of tax therefor has differently been provided for in the statute itself. Proviso appended to Section 3 of the Act provides for a statutory injunction limiting the power of the State to enhance the rate of tax. In Cape Brandy Syndicate v. Inland Revenue Commissioner 1921 1 B. 64, Rowlatt, J. stated In a taxing Act one has to look merely at what is clearly said. There is numberroom for any intendment. There is numberequity about a tax. There is numberpresumption as to a tax. Nothing is to be read in, numberhing is to be implied. One can only look fairly at the language used. In V.V.S. Sugars v. Govt. of A.P. and Others 1999 4 SCC 192, this Court held The said Act is a taxing statute and a taxing statute must be interpreted as it reads, with numberadditions and numbersubtractions, on the ground of legislative intendment or otherwise. When the rate of tax is provided under a statute, companystruction thereof applying the principles of numbercitur a sociis and ejusdem generis would number apply. The rate of tax was fixed at Rs. 1,000/-. That was a tax on the specified motor vehicle. The tax was number to be calculated on passenger basis. It may be that the provisions preceding thereto impose a tax on passenger. But, they were in relation to motor vehicles which are used for different purposes. A Maxi Cab although would companye within the purview of companytract carriage but it cannot carry more than twelve passengers. It is a class within the class of companytract carriage. Once the rate of tax is fixed and the same had been realized, any numberification enhancing the rate thereof cannot be permitted to transgress the statutory limits provided for in the proviso appended to Section 3 of the Act. Section 3 of the Act has to be read in the light of a proviso. It must be given its proper meaning. In Gursahai Saigal v. Commissioner of Income Tax, Punjab 1963 3 SCR 893, the question which fell for companysideration before this Court was companystruction of the machinery provisions vis--vis the charging provisions. Schedule appended to the Motor Vehicles Act is number machinery provision. It is a part of the charging provision. By giving a plain meaning to the Schedule appended to the Act, the machinery provision does number become unworkable. It did number prevent the clear intention of the legislature from being defeated. It can be given an appropriate meaning. In a case of doubt or dispute, it is well-settled, companystruction has to be made in favour of the taxpayer and against the Revenue. See Sneh Enterprises v. Commissioner of Customs, New Delhi, 2006 7 SCC 714 In M s. Ispat Industries Ltd. v. Commissioner of Customs, Mumbai JT 2006 12 SC 379 2006 9 SCALE 652, this Court opined In our opinion if there are two possible interpretations of a rule, one which subserves the object of a provision in the parent statute and the other which does number, we have to adopt the former, because adopting the latter will make the rule ultra vires the Act. It is furthermore well-known that casus omissus cannot be supplied. In Ashok Lanka v. Rishi Dixit 2005 5 SCC 598, this Court opined The question as to whether it can be given effect to or number is, thus, required to be judged on its own without reference to the circular issued by the Commissioner of Excise. Casus omissus, it is well known, cannot be supplied by the companyrt. See P.T. Rajan v. T.P.M. Sahir Gray in The Nature and Sources of the Law 2nd ed. 1921 pp 172- 73 observed thus Interpretation is generally spoken of as if its chief function was to discover what the meaning of the Legislature really was. But when a Legislature has had a real intention, one way or another, on a point, it is number once in a hundred times that any doubt arises as to what its intention was The fact is that the difficulties of so-called interpretation arise when the Legislature has had numbermeaning at all when the question which is raised on the statute never occurred to it In such cases when the judges are professing to declare what the Legislature meant, they are in truth, themselves legislating to fill up casus omissi. Reliance placed by Mr. Sundarvardhan on Champa Kumari Singhi and others v. The Member Board of Revenue, West Bengal and Others AIR 1970 SC 1108 1970 1 SCC 404 is misplaced. In that case, this Court was companysidering a voluntary disclosure scheme vis--vis the time limit specified therefor. The applicant made certain defaults in payment of instalments. Having regard to the purport of the scheme, it was stated The language of clause iv of the proviso was unfortunate in expressing this intent and has number been companyrected in the new Act but the intention was always obvious. Even in the second agreement which replaced the first agreement the same companydition obtained. There was a companycession shown in the matter of penalty and smaller instalments were fixed. But the Central Board of Revenue had stipulated even then that the companycession mentioned above would only be available if the revised scheme of payment was strictly followed. In other words, payment was to be made by instalments and this companycession therefore attracted the provisions of clause iv . The Government companyld always accept any instalment even if paid late without having to worry about the period of limitation of one year from the date of demand, since clause iv of the first proviso gave them an option to wait till the last instalment was payable. The scheme of the instalments took the matter out of the main part of sub-section 7 and brought it within the proviso to clause iv Clause iv of the proviso appended to Sub-section 7 of Section 46 of the Income Tax Act, 1922 came up for companysideration therein which reads as under Save in accordance with the provisions of subsection 1 of Section 42 or to the proviso to Section 45, numberproceedings for the recovery of any sum payable under this Act shall be companymenced after the expiration of one year from the last day of the financial year in which any demand is made under this Act Provided that the period of one year herein referred to shall where the sum payable is allowed to be paid by intalments, from the date on which the last of such instalments was due. Whereas the companytention of the appellants therein was that they companyld have been treated as defaulters in terms of Sub-section 1 of Section 46 only, the Revenue companytended that the matter was companyered by Clause iv of the proviso to Sub-section 7 of Section 46 which allows limitation of one year to be calculated from the date on which the last instalment was due in that case. Herein we are number companycerned with such a provision as the Schedule can be given effect to in the light of the charging provisions companytained in Section 3 of the Act. Reliance has also been placed upon a decision of this Court in Commissioner of Income Tax, Central Calcutta v. National Taj Traders 1980 1 SCC 370 wherein this Court opined that the rule of literal companystruction can be departed from when it would lead to manifestly absurd result number intended by legislature. There cannot be any dispute with regard to the aforementioned proposition of law. However, we may numberice that therein only Tulzapurkar, J. stated the law thus In other words, under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four companyners of the statute itself but at the same time a casus omissus should number be readily inferred and for that purpose all the parts of a statute or section must be companystrued together and every clause of a section should be companystrued with reference to the companytext and other clauses thereof so that the companystruction to be put on a particular provision makes a companysistent enactment of the whole statute. This would be more so if literal companystruction of a particular clause leads to manifestly absurd or anomalous results which companyld number have been intended by the Legislature Given this plain meaning to the provisions referred to hereinbefore, in our opinion, the rate of tax companyld number be increased in derogation to the proviso appended to Section 3 of the Act. The numberification in our opinion as it seeks to change the basis of the mode of taxation is illegal and, thus, cannot be sustained. It is number a case where language is obscure which would give rise to two different meanings one leading to the workability of the Act and another to absurdity. In such a case, a presumption as regard companystitutionality of statute may be raised. It is well settled that companystruing a taxing statute, the companyrt shall make an endeavour to give effect to the golden rule of interpretation, i.e., principle of literal interpretation and would number supply casus omissus. In Hardev Motor Transport supra , Clause g of Entry IV of the First Schedule of the M.P. |
V.RAVEENDRAN, J. Leave granted. Under an agreement dated 4.11.1992, the appellant State of Goa entrusted a companystruction work Farm Development Works in Command Area of Water Course No.3 and 3A of minor M-3 of SIP in Salcette Taluka to the respondent. Clause 25 of the agreement provided for settlement of disputes by arbitration, relevant portions of which are extracted below Except where otherwise provided in the companytract, all questions and disputes relating to the meaning of the specifications, designs, drawings and instructions herein before mentioned and as to the quality of workmanship or materials used on the work or as to any other question, claim right matter or thing whatsoever, in any way arising out of or relating to the companytract, designs, drawings, specifications, estimates, instructions orders or these companyditions or otherwise companycerning the works, or the execution or failure to execute the same whether arising during the progress of the work or after the companypletion or abandonment thereof shall be referred to the sole arbitration of the person appointed by the Chief Engineer, Central Public Works Department in charge of the work at the time of disputeIt is a term of companytract that the party invoking arbitrations shall specify the dispute or disputes to be referred to arbitration under this clause together with the amount or amounts claimed in respect of each such disputes. As per the companytract, the work had to be companymenced on 16.11.1992 and companypleted by 5.5.1994. On the ground that the companytractor did number companyplete the work even by the extended date of companypletion 31.3.1995 , the companytract was terminated by the appellant. Respondent raised certain claims and gave a numberice to the appellant to appoint an arbitrator in terms of the arbitration clause. As the appellant did number do so, the respondent filed an application under section 11 of the Arbitration and Conciliation Act, 1996 Act of new Act for short for appointment of an arbitrator. By order dated 4.12.1998 the said application was allowed and Mr. S.V.Salilkar, retired Adviser, Konkan Railway Corporation was appointed as the sole arbitrator. The arbitrator entered upon the reference on 22.2.1999 and called upon the parties to file their statement. The respondent filed its claim statement before the arbitrator on 15.4.1999. The appellant filed its Reply Statement with companynter claim on 30.6.1999. The arbitrator companysidered the fourteen claims of the companytractor and four companynter claims of the appellant. The Arbitrator made an award dated 10.7.2000. He awarded to the respondent, Rs.1,00,000/- towards claim No.2 with interest at 12 per annum from 26.8.1998 to 19.2.1999 Rs.3,63,416/- towards claim No.3 with interest at 12 per annum from 18.9.1995 to 22.2.1999 and Rs.59,075/- towards claim No. 14 additional claim No. ii with interest at 12 per annum from 18.9.1995 to 22.2.1999. In regard to the companynter claims made by the appellant, the arbitrator awarded to the appellant Rs.2,94,298/- without any interest in regard to companynter claim No.3. The arbitrator rejected the other claims of respondent and appellant. He awarded simple interest at 18 per annum on the award amount from the expiry of one month from the date of the award and directed both parties to bear their respective companyts. Feeling aggrieved the respondent filed an application under section 34 of the Act, challenging the award insofar as i rejection of its other claims and ii award made on companynter claim No.3. The civil companyrt Adhoc Additional District Judge, Fast Track Court No.1, South Goa disposed of the matter upholding the award in regard to the claims of the respondent but accepted the objection raised by the respondent in regard to award made on the companynter claim. The companyrt held that the arbitrator companyld number enlarge the scope of the reference and entertain either fresh claims by the claimants or companynter claims from the respondent. The appellant challenged the said judgment by filing an arbitration appeal before the High Court. The High Court of Bombay dismissed the appeal by judgment dated 31.8.2007. The High Court held that the companynter claims were bad in law as they were never placed before the companyrt by the appellant in the proceedings under section 11 of the Act for appointment of arbitrator and they were number referred by the companyrt to arbitration. The High Court held that in such circumstances arbitrator had numberjurisdiction to entertain a companynter claim. The High Court followed its earlier decision in Charuvil Koshy Verghese v. State of Goa - 1998 2 SCC 21. In that case, an application was made by a companytractor under Section 20 of the Arbitration Act, 1940 old Act for short , for filing the arbitration agreement and referring the disputes to the arbitrator. In its reply statement to the said application, the respondent did number assert its companynter claim. The companyrt allowed the application under section 20 and appointed an arbitrator to decide the disputes raised by the companytractor. However when the matter went before the arbitrator, the respondent therein made a companynter claim, which was allowed by the arbitrator. The Bombay High Court held that the arbitrator had numberjurisdiction to entertain or allow such a companynter claim as the same had neither been placed before the companyrt in the proceedings under section 20 number the companyrt had referred it to the arbitrator. The said judgment of the High Court is challenged in this appeal by special leave. The appellant companytends as a respondent in arbitration proceedings, in the absence of a bar in the arbitration agreement, it was entitled to raise its companynter claims before the arbitrator, even though it had number raised them in its statement of objections to the proceedings under section 11 of the Act. It further companytends that section 11 of the Act does number companytemplate reference of disputes by the Chief Justice or his designate and the High Court companymitted a serious error in holding that in the absence of a reference by the companyrt, the arbitrator had numberjurisdiction to entertain a companynter claim, by following its earlier decision in Charuvil Koshy Verghese supra , rendered with reference to section 20 of the old Act, which is materially different from section 11 of the new Act. The respondent supported the decision of the High Court, companytending that having regard to the provisions of section 21 of the Act, an arbitrator will have jurisdiction to decide only those disputes which were raised and referred to him by the companyrt. Therefore the question that arises for our companysideration is as under Whether the respondent in an arbitration proceedings is precluded from making a companynter-claim, unless a it had served a numberice upon the claimant requesting that the disputes relating to that companynter-claim be referred to arbitration and the claimant had companycurred in referring the companynter claim to the same arbitrator and or b it had set out the said companynter claim in its reply statement to the application under section 11 of the Act and the Chief Justice or his designate refers such companynter claim also to arbitration. What is Reference to arbitration Reference to arbitration describes various acts. Reference to arbitration can be by parties themselves or by an appointing authority named in the arbitration agreement or by a companyrt on an application by a party to the arbitration agreement. We may elaborate. If an arbitration agreement provides that all disputes between the parties relating to the companytract some agreements may refer to some exceptions shall be referred to arbitration and that the decision of the arbitrator shall be final and binding, the reference companytemplated is the act of parties to the arbitration agreement, referring their disputes to an agreed arbitrator to settle the disputes. If an arbitration agreement provides that in the event of any dispute between the parties, an authority named therein shall numberinate the arbitrator and refer the disputes which required to be settled by arbitration, the reference companytemplated is an act of the appointing authority referring the disputes to the arbitrator appointed by him. Where the parties fail to companycur in the appointment of arbitrator s as required by the arbitration agreement, or the authority named in the arbitration agreement failing to numberinate the arbitrator and refer the disputes raised to arbitration as required by the arbitration agreement, on an application by an aggrieved party, the companyrt can appoint the arbitrator and on such appointment, the disputes between the parties stand referred to such arbitrator in terms of the arbitration agreement. Reference to arbitration can be in respect of all disputes between the parties or all disputes regarding a companytract or in respect of specific enumerated disputes. Where all disputes are referred, the arbitrator has the jurisdiction to decide all disputes raised in the pleadings both claims and companynter claims subject to any limitations placed by the arbitration agreement. Where the arbitration agreement provides that all disputes shall be settled by arbitration but excludes certain matters from arbitration, then, the arbitrator will exclude the excepted matter and decide only those disputes which are arbitrable. But where the reference to the arbitrator is to decide specific disputes enumerated by the parties companyrt appointing authority, the arbitrators jurisdiction is circumscribed by the specific reference and the arbitrator can decide only those specific disputes. Though an arbitration agreement generally provides for settlement of future disputes by reference to arbitration, there can be ad-hoc arbitrations relating to existing disputes. In such cases, there is numberprior arbitration agreement to refer future disputes to arbitration. After a dispute arises between the parties, they enter into an arbitration agreement to refer that specific dispute to arbitration. In such an arbitration, the arbitrator cannot enlarge the scope of arbitration by permitting either the claimant to modify or add to the claim or the respondent to make a companynter claim. The arbitrator can only decide the dispute referred to him, unless the parties again agree to refer the additional disputes companynter claims to arbitration and authorize the arbitrator to decide them. Reference to arbitration can be in respect of reference of disputes between the parties to arbitration, or may simply mean referring the parties to arbitration. Section 8 of the Act is an example of referring the parties to arbitration. While section 11 companytemplates appointment of arbitrator vide sub-sections 4 , 5 and 9 or taking necessary measure as per the appointment procedure under the arbitration agreement vide sub-section 6 , section 8 of the Act does number provide for appointment of an arbitrator, number referring of any disputes to arbitration, but merely requires the judicial authority before whom an action is brought in a matter in regard to which there is an arbitration agreement, to refer the parties to arbitration. When the judicial authority finds that the subject matter of the suit is companyered by a valid arbitration agreement between the parties to the suit, it will refer the parties to arbitration, by refusing to decide the action brought before it and leaving it to the parties to have recourse to their remedies by arbitration. When such an order is made, parties may either agree upon an arbitrator and refer their disputes to him, or failing agreement, file an application under section 11 of the Act for appointment of an arbitrator. The judicial authority referring the parties to arbitration under section 8 of the Act, has numberpower to appoint an arbitrator. It may however record the companysent of parties to appoint an agreed arbitrator. Sections 21 and 43 of the Act Section 21 provides that unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute companymences on the date on which a request for that dispute to be referred to arbitration is received by the respondent. Taking a cue from the said section, the respondent submitted that arbitral proceedings can companymence only in regard to a dispute in respect of which numberice has been served by a claimant upon the other party, requesting such dispute to be referred to arbitration and therefore, a companynter claim can be entertained by the arbitrator only if it has been referred to him, after a numberice seeking arbitration in regard to such companynter claim. On a careful companysideration we find numberbasis for such a companytention. The purpose of section 21 is to specify, in the absence of a provision in the arbitration agreement in that behalf, as to when an arbitral proceedings in regard to a dispute companymences. This becomes relevant for the purpose of section 43 of the Act. Sub-section 1 of section 43 provides that the Limitation Act 1963 shall apply to arbitrations as it applies to proceedings in companyrts. Sub-section 2 of section 43 provides that for the purposes of section 43 and the Limitation Act, 1963, an arbitration shall be deemed to have companymenced on the date referred to in section 21 of the Act. Having regard to section 43 of the Act, any claim made beyond the period of limitation prescribed by the Limitation Act, 1963 will be barred by limitation and the arbitral tribunal will have to reject such claims as barred by limitation. Section 3 of the Limitation Act, 1963 provides for bar of limitation and is extracted below Bar of Limitation. 1 Subject to the provisions companytained in sections 4 to 24 inclusive , every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has number been set up as a defence. For the purposes of this Act,- a a suit is instituted,- in an ordinary case, when the plaint is presented to the proper officer in the case of a pauper, when his application for leave to sue as a pauper is made and in the case of a claim against a companypany which is being wound up by the companyrt, when the claimant first sends in his claim to the official liquidator b any claim by way of a set off or a companynter claim, shall be treated as a separate suit and shall be deemed to have been institutedin the case of a set off, on the same date as the suit in which the set off is pleaded in the case of a companynter claim, on the date on which the companynter claim is made in companyrt c an application by numberice of motion in a High Court is made when the application is presented to the proper officer of that companyrt. emphasis supplied In regard to a claim which is sought to be enforced by filing a civil suit, the question whether the suit is within the period of limitation is decided with reference to the date of institution of the suit, that is, the date of presentation of a plaint. As Limitation Act, 1963 is made applicable to arbitrations, there is a need to specify the date on which the arbitration is deemed to be instituted or companymenced as that will decide whether the proceedings are barred by limitation or number. Section 3 of Limitation Act, 1963 specifies the date of institution for suit, but does number specify the date of institution for arbitration proceedings. Section 21 of the Act supplies the omission. But for section 21, there would be companysiderable companyfusion as to what would be the date of institution in regard to the arbitration proceedings. It will be possible for the respondent in an arbitration to argue that the limitation has to be calculated as on the date on which statement of claim was filed, or the date on which the arbitrator entered upon the reference, or the date on which the arbitrator was appointed by the companyrt, or the date on which the application was filed under section 11 of the Act. In view of section 21 of the Act providing that the arbitration proceedings shall be deemed to companymence on the date on which the request for that dispute to be referred to arbitration is received by the respondent the said companyfusion is cleared. Therefore the purpose of section 21 of the Act is to determine the date of companymencement of the arbitration proceedings, relevant mainly for deciding whether the claims of the claimant are barred by limitation or number. There can be claims by a claimant even without a numberice seeking reference. Let us take an example where a numberice is issued by a claimant raising disputes regarding claims A and B and seeking reference thereof to arbitration. On appointment of the arbitrator, the claimant files a claim statement in regard to the said claims A and B. Subsequently if the claimant amends the claim statement by adding claim C which is permitted under section 23 3 of the Act the additional claim C would number be preceded by a numberice seeking arbitration. The date of amendment by which the claim C was introduced, will become the relevant date for determining the limitation in regard to the said claim C, whereas the date on which the numberice seeking arbitration was served on the other party, will be the relevant date for deciding the limitation in regard to Claims A and B. Be that as it may. As far as companynter claims are companycerned, there is numberroom for ambiguity in regard to the relevant date for determining the limitation. Section 3 2 b of Limitation Act, 1963 provides that in regard to a companynter claim in suits, the date on which the companynter claim is made in companyrt shall be deemed to be the date of institution of the companynter claim. As Limitation Act, 1963 is made applicable to arbitrations, in the case of a companynter claim by a respondent in an arbitral proceedings, the date on which the companynter claim is made before the arbitrator will be the date of institution in so far as companynter claim is companycerned. There is, therefore, numberneed to provide a date of companymencement as in the case of claims of a claimant. Section 21 of the Act is therefore number relevant for companynter claims. There is however one exception. Where the respondent against whom a claim is made, had also made a claim against the claimant and sought arbitration by serving a numberice to the claimant but subsequently raises that claim as a companynter claim in the arbitration proceedings initiated by the claimant, instead of filing a separate application under section 11 of the Act, the limitation for such companynter claim should be companyputed, as on the date of service of numberice of such claim on the claimant and number on the date of filing of the companynter claim. Scope of sections 11 and 23 of the Act Section 11 refers to appointment of arbitrators. Sub-sections 4 , 5 , 6 and 9 of section 11 relevant for our purpose are extracted below If the appointment procedure in sub-section 3 applies and- a a party fails to appoint an arbitrator within thirty days from the receipt of a request to do so from the other party or b the two appointed arbitrators fail to agree on the third arbitrator within thirty days from the date of their appointment, the appointment shall be made, upon request of a party, by the Chief Justice or any person or institution Designated by him. Failing any agreement referred to in sub-section 2 , in an arbitration with a sole arbitrator, if the parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the other party to so agree the appointment shall be made, upon request of a party, by the Chief Justice or any person or institution Designated by him. Where, under an appointment procedure agreed upon by the parties,- a a party fails to act as required under that procedure or b the parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure or c a person, including an institution, fails to perform any function entrusted to him or it under that procedure, a party may request the Chief Justice or any person or institution Designated by him to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment. xxx xxx xxx In the case of appointment of sole or third arbitrator in an international companymercial arbitration, the Chief Justice of India or the person or institution designated by him may appoint an arbitrator of a nationality other than the nationalities of the parties where the parties belong to different nationalities. emphasis supplied Section 23 relating to filing of statements of claim and defence reads thus Statements of claim and defence.- 1 Within the period of time agreed upon by the parties or determined by the arbitral tribunal, the claimant shall state the facts supporting his claim, the points at issue and the relief or remedy sought, and the respondent shall state his defence in respect of these particulars, unless the parties have otherwise agreed as to the required elements of those statements. The parties may submit with their statements all documents they companysider to be relevant or may add a reference to the documents or other evidence they will submit. Unless otherwise agreed by the parties, either party may amend or supplement his claim or defence during the companyrse of the arbitral proceedings, unless the arbitral tribunal companysiders it inappropriate to allow the amendment or supplement having regard to the delay in making it. emphasis supplied Section 2 companytains the definitions. Sub-section 9 clarifies that except in sections 25 a and 32 2 a , any reference in the Act to a claim will apply to a companynter-claim. The said sub-section reads thus Where this Part, other than clause a of section 25 or clause a of sub-section 2 of section 32, refers to a claim, it shall also apply to a companynterclaim, and where it refers to a defence, it shall also apply to a defence to that companynterclaim. In companytrast, section 20 of the old Act which provided for applications to file the arbitration agreement in companyrt, read as under Application to file in Court arbitration agreement. 1 Where any persons have entered into an arbitration agreement before the institution of any suit with respect to the subject matter of the agreement or any part of it, and where a difference has arisen to which the agreement applies, they or any of them, instead of proceeding under Chapter II, may apply to a Court having jurisdiction in the matter to which the agreement relates, that the agreement be filed in Court. The application shall be in writing and shall be numbered and registered as a suit between one or more of the parties interested or claiming to be interested as plaintiff or plaintiffs and the remainder as defendant or defendants, if the application has been presented by all the parties, or, if otherwise, between the applicant as plaintiff and the other parties as defendants. On such application being made, the Court shall direct numberice thereof to be given to all parties to the agreement other than the applicants, requiring them to show cause within the time specified in the numberice why the agreement should number be filed. Where numbersufficient cause is shown, the Court shall order the agreement to be filed, and shall make an order of reference to the arbitrator appointed by the parties, whether in the agreement or otherwise, or, where the parties cannot agree upon an arbitrator, to an arbitrator appointed by the Court. Thereafter the arbitration shall proceed in accordance with, and shall be governed by, the other provisions of this Act so far as they can be made applicable. emphasis supplied Section 20 of the old Act required the companyrt while ordering the arbitration agreement to be filed, to make an order of reference to the arbitrator. The scheme of the new Act requires minimal judicial intervention. Section 11 of the new Act, on the other hand, companytemplates the Chief Justice or his designate appointing the arbitrator but does number companytain any provision for the companyrt to refer the disputes to the arbitrator. Sub-sections 4 , 5 and 9 of section 11 of the Act require the Chief Justice or his designate to appoint the arbitrator s. Sub-section 6 requires the Chief Justice or his designate to take the necessary measure when an application is filed by a party companyplaining that the other party has failed to act as required under the appointment procedure. All these sub-sections companytemplate an applicant filing the application under section 11, only after he has raised the disputes and only when the respondent fails to companyoperate companycur in regard to appointment of arbitrator. Section 23 of the Act makes it clear that when the arbitrator is appointed, the claimant is required to file the statement and the respondent has to file his defence statement before the Arbitrator. The claimant is number bound to restrict his statement of claim to the claims already raised by him by numberice, unless the parties have otherwise agreed as to the required elements of such claim statement. It is also made clear that unless otherwise agreed by the parties the claimant can also subsequently amend or supplement the claims in the claim statement. That is, unless the arbitration agreement requires the Arbitrator to decide only the specifically referred disputes, the claimant can while filing the statement of claim or thereafter, amend or add to the claims already made. Similarly section 23 read with section 2 9 makes it clear that a respondent is entitled to raise a companynter claim unless the parties have otherwise agreed and also add to or amend the companynter claim, unless otherwise agreed. In short, unless the arbitration agreement requires the Arbitrator to decide only the specifically referred disputes, the respondent can file companynter claims and amend or add to the same, except where the arbitration agreement restricts the arbitration to only those disputes which are specifically referred to arbitration, both the claimant and respondent are entitled to make any claims or companynter claims and further entitled to add to or amend such claims and companynter claims provided they are arbitrable and within limitation. Section 11 of the Act requires the Chief Justice or his designate only to appoint the arbitrator s. It does number require the Chief Justice or his designate to identify the disputes or refer them to the Arbitral Tribunal for adjudication. Where the appointment procedure in an arbitration agreement requires disputes to be formulated and specifically referred to the arbitrator and companyfers jurisdiction upon the arbitrator to decide only such referred disputes, when an application is filed under section 11 6 of the Act, alleging that such procedure is number followed, the Chief Justice or his designate will take necessary measures under section 11 6 of the Act to ensure companypliance by the parties with such procedure. Where the arbitration agreement requires the disputes to be formulated and referred to arbitration by an appointing authority, and the appointing authority fails to do so, the Chief Justice or his designate will direct the appointing authority to formulate the disputes for reference as required by the arbitration agreement. The assumption by the companyrts below that a reference of specific disputes to the Arbitrator by the Chief Justice or his designate is necessary while making appointment of arbitrator under section 11 of the Act, is without any basis. Equally baseless is the assumption that where one party filed an application under section 11 and gets an arbitrator appointed the arbitrator can decide only the disputes raised by the applicant under section 11 of the Act and number the companynter claims of the respondent. Section 23 of the Act enables the claimant to file a statement of claim stating the facts supporting his claim, the points at issue and the relief or remedy sought by him and enables the respondent to state his defence in respect of those claims. Section 2 9 provides that if any provision other than section 25 a or section 32 2 a , refers to a claim, it shall apply to a companynter claim and where it refers to a defence, it shall also apply to a defence to that companynter claim. This would mean that a respondent can file a companynter claim giving the facts supporting the companynter claim, the points at issue and the relief or remedy sought in that behalf and the claimant who is the respondent in the companynter claim will be entitled to file his defence to such companynter claim. Once the claims and companynter claims are before the arbitrator, the arbitrator will decide whether they fall within the scope of the arbitration agreement and whether he has jurisdiction to adjudicate on those disputes whether they are claims or the companynter claims and if the answer is in the affirmative, proceed to adjudicate upon the same. It is of some relevance to numbere that even where the arbitration proceedings were initiated in pursuance of a reference under section 20 of the old Act, this Court held in Indian Oil Corporation Ltd. vs. Amritsar Gas Service and Ors. - 1991 1 SCC 533 that the respondent was entitled to raise companynter claims directly before the arbitrator, where all disputes between parties are referred to arbitration. This Court observed The appellants grievance regarding number-consideration of its companynterclaim for the reason given in the award does appear to have some merit. In view of the fact that reference to arbitrator was made by this Court in an appeal arising out of refusal to stay the suit under Section 34 of the Arbitration Act and their reference was made of all disputes between the parties in the suit, the occasion to make a companynter-claim in the written statement companyld arise only after the order of reference. The pleadings of the parties were filed before the arbitrator, and the reference companyered all disputes between the parties in the suit. Accordingly, the companynter-claim companyld number be made at any earlier stage. Refusal to companysider the companynterclaim for the only reason given in the award does, therefore, disclose an error of law apparent on the face of the award. emphasis supplied A companynter claim by a respondent pre-supposes the pendency of proceedings relating to the disputes raised by the claimant. The respondent companyld numberdoubt raise a dispute in respect of the subject matter of the companynter claim by issuing a numberice seeking reference to arbitration and follow it by an application under section 11 of the Act for appointment of Arbitrator, instead of raising a companynter claim in the pending arbitration proceedings. The object of providing for companynter claims is to avoid multiplicity of proceedings and to avoid divergent findings. The position of a respondent in an arbitration proceedings being similar to that of a defendant in a suit, he has the choice of raising the dispute by issuing a numberice to the claimant calling upon him to agree for reference of his dispute to arbitration and then resort to an independent arbitration proceedings or raise the dispute by way of a companynter claim, in the pending arbitration proceedings. Respondents companytentions The respondent submitted that this Court in SBP Co. vs. Patel Engineering Ltd. -- 2005 8 SCC 618 and National Insurance Co.Ltd. v Boghara Polyfab Private Ltd. -- 2009 1 SCC 267, has observed that while deciding an application under section 11 of the Act, the Chief Justice or his designate can decide the question whether the claim was a dead one long time barred that was sought to be resurrected. According to appellant the logical inference from this observation is that an application under section 11 should sufficiently enumerate and describe the claims to demonstrate that they are within limitation. Extending the same logic, respondent companytends that any companynter claim by the respondent should also be described in his statement of objections with relevant particulars so that the Chief Justice or his designate companyld companysider and pronounce whether such companynter claim is barred by limitation. The respondent therefore argues that every claim unless specifically mentioned in the application under section 11 of the Act, and every companynter claim unless specifically mentioned in the statement of objections, cannot be the subject matter of arbitration. The aforesaid companytention of the respondent is based on the erroneous premises that whenever an application is filed under section 11 of the Act, it is necessary for the Chief Justice or his Designate to companysider and decide whether the claims or companynter claims are barred by limitation or number. In SBP Co. and Boghara Polyfab, this Court classified the questions that may be raised in an application under section 11 of the Act into three groups i those which the Chief Justice his designate shall have to decide ii those which the Chief Justice his designate may choose to decide or alternatively leave to the decision of the Arbitral Tribunal and iii those which the Chief Justice his designate should leave exclusively for the decision of the Arbitral Tribunal. This Court held that the issue whether a claim is dead claim long barred claim is an issue which the Chief Justice or his designate may choose to decide or leave for the decision of the Arbitral Tribunal. The difference between a dead stale claim and a mere time barred claim was explained by this Court in Indian Oil Corporation Ltd. v. M s SPS Engineering Ltd. 2011 2 SCALE 291 thus - When it is said that the Chief Justice or his designate may choose to decide whether the claim is a dead claim, it is implied that he will do so only when the claim is evidently and patently a long time barred claim and there is numberneed for any detailed companysideration of evidence. We may elucidate by an illustration If the companytractor makes a claim a decade or so after companypletion of the work without referring to any acknowledgement of a liability or other factors that kept the claim alive in law, and the claim is patently long time barred, the Chief Justice or his designate will examine whether the claim is a dead claim that is, a long time barred claim . On the other hand, if the companytractor makes a claim for payment, beyond three years of companypleting of the work but say within five years of companypletion of work, and alleges that the final bill was drawn up and payments were made within three years before the claim, the companyrt will number enter into a disputed question whether the claim was barred by limitation or number. The companyrt will leave the matter to the decision of the Tribunal. If the distinction between apparent and obvious dead claims, and claims involving disputed issues of limitation is number kept in view, the Chief Justice or his designate will end up deciding the question of limitation in all applications under Section 11 of the Act. The issue of limitation is number an issue that has to be decided in an application under section 11 of the Act. SBP Co. and Boghara Polyfab held that the Chief Justice or his designate will number examine issues relating to limitation, but may companysider in appropriate cases, whether the application was in regard to a claim which on the face of it was so hopelessly barred by time, that it is already a dead stale claim which did number deserve to be resurrected and referred to arbitration. The said decisions do number support the respondents companytention that the details of all claims should be set out in the application under section 11 of the Act and that details of all companynter claims should be set out in the statement of objections, and that a claim or a companynter claim which is number referred to or set out in the pleadings in the proceedings under section 11 of the Act, cannot be entertained or decided by the arbitral tribunal. Reliance was next placed on the following passage from the Law and Practice of Commercial Arbitration in England Mustill Boyd - 1989 Second Edn. Page 131 to companytend that the companynter claim ought to have been submitted to the Arbitrator when he is appointed The fourth situation, in which both the claim and the cross-claim are arbitrable, is the one most companymonly encountered in practice. The arbitrator should carefully companysider whether the subject matter of the companynter claim was one of the matters submitted to him at the time of the appointment. If it is, then it is up to him whether to allow the matter to be raised by companynter claim or made the subject of a separate arbitration. In practice, we have never known the second companyrse to be followed. If, on the other hand, the cross-claim was number a dispute which was submitted to him, he should number entertain it unless it raises a pure defence, or unless the parties clearly agree that he is to have jurisdiction over it. emphasis supplied The said observations were made with reference to the Arbitration Law prevailing in United Kingdom in the year 1989, prior to the enactment of English Arbitration Act, 1996. Further the observations obviously related to an arbitration where specific disputes were referred to arbitration and companysequently the arbitrator was bound to restrict himself to the disputes referred. We have already adverted to this aspect earlier. The respondent lastly companytended that the Court is required to ascertain the precise nature of the dispute which has arisen and then decide whether the dispute is one which falls within the terms of the arbitration clause, before appointing an arbitrator and that companyld be done only if the claims are set out in the application under section 11 of the Act and the companynter claims are set out in the statement of objections and companyrt had an opportunity to examine it. It is therefore submitted that a dispute relating to a claim or companynter claim number referred in the pleadings, is number arbitrable. Reliance was placed upon certain observations in the decision of the House of Lords in Heyman v. Darwins Ltd.-- 1942 AC 356. We extract below the paragraph companytaining the relied upon observations The law permits the parties to a companytract to include in it as one of its terms an agreement to refer to arbitration disputes which may arise in companynection with it, and the companyrt of England enforce such a reference by staying legal proceedings in respect of any matter agreed to be referred if satisfied that there is numbersufficient reason why the matter should number be referred in accordance with the submission. Arbitration Act, 1889, sec. 4. Where proceedings at law are instituted by one of the parties to a companytract companytaining an arbitration clause and the other party, founding on the clause, applies for a stay, the first thing to be ascertained is the precise nature of the dispute which has arisen The next question is whether the dispute is one which falls within the terms of the arbitration clause. Then sometimes the question is raised whether the arbitration clause is still effective or whether something has happened to render it numberlonger operative. Finally, the nature of the dispute being ascertained, it having been held to fall within the terms of the arbitration clause, and the clause having been found to be still effective, there remains for the companyrt the question whether there is any sufficient reason why the matter in dispute should number be referred to arbitration. emphasis supplied The said observations were made while examining whether a suit should be stayed at the instance of the defendant on the ground that there was an arbitration agreement between the parties. If a party to an arbitration agreement files a civil suit and the defendant companytends that the suit should be stayed and the parties should be referred to arbitration, necessarily, the companyrt will have to find out what exactly is the subject matter of the suit, whether it would fall within the scope of the arbitration clause, whether the arbitration clause was valid and effective and lastly whether there was sufficient reason as to why the subject matter of the suit should number be referred to arbitration. The observations made in Heymen, in the companytext of an application seeking stay of further proceedings in a suit, are number relevant in respect of an application under section 11 of the Act. This Court has repeatedly held that the questions for companysideration in an application under section 8 by a civil companyrt in a suit are different from the questions for companysideration under section 11 of the Act. The said decision is therefore of numberassistance. Summation The position emerging from above discussion may be summed up as follows Section 11 of the Act requires the Chief Justice or his designate to either appoint the arbitrator s or take necessary measures in accordance with the appointment procedure companytained in the arbitration agreement. The Chief Justice or the designate is number required to draw up the list of disputes and refer them to arbitration. The appointment of Arbitral Tribunal is an implied reference in terms of the arbitration agreement. Where the arbitration agreement provides for referring all disputes between the parties whether without any exceptions or subject to exceptions , the arbitrator will have jurisdiction to entertain any companynter claim, even though it was number raised at a stage earlier to the stage of pleadings before the Arbitrator. Where however the arbitration agreement requires specific disputes to be referred to arbitration and provides that the arbitrator will have the jurisdiction to decide only the disputes so referred, the arbitrators jurisdiction is companytrolled by the specific reference and he cannot travel beyond the reference, number entertain any additional claims or companynter claims which are number part of the disputes specifically referred to arbitration. The position in this case The arbitration clause in this case companytemplates all disputes being referred to arbitration by a sole arbitrator. It refers to an Appointing Authority Chief Engineer, CPWD , whose role is only to appoint the arbitrator. Though the arbitration clause requires the party invoking the arbitration to specify the dispute s to be referred to arbitration, it does number require the appointing authority to specify the disputes or refer any specific disputes to arbitration number requires the Arbitrator to decide only the referred disputes. It does number bar the arbitrator deciding any companynter claims. |
Swatanter Kumar, J. Leave granted in SLP C No. 9734 of 2005. IA Nos.4 and 5 of 2009 in Civil Appeal No.3703 of 2003 are allowed subject to just exceptions and limited to this reference. Legalistic federalism was introduced as a technique of governance with the people of India adopting, enacting and giving unto themselves the Constitution of India on 26th November, 1949. The legislative companypetence of the Central and State Legislatures has been demarcated by the Constitution under Article 246, with the fields for exercise of legislative power enumerated in List I Central List , List II State List and List III Concurrent List of Schedule VII to the Constitution of India. Power to enact laws, thus, is vested in the Parliament as well as in the State Legislative Assemblies within their respective spheres. This is the paramount source for enactment of law, i.e., direct exercise of legislative power by the respective companystituents. On the issue of distribution of powers between the Centre and the State, a Constitution Bench of this Court in Federation of Hotel Restaurant Association of India v. Union of India 1989 3 SCC 634, numbericed that the companystitutionality of a law becomes essentially a question of power which, in a federal companystitution, turns upon the companystruction of the entries in the legislative lists. Interpretative process, as a tool of interpretation, introduced new dimensions to the expansion of law enacted by Legislature, through Judge made law. Amongst others, doctrines of legislation by reference and legislation by incorporation are the creation of judicial pronouncements. One of the earliest instances, where the Privy Council, then responsible for Indian Judicial system, accepted the plea of legislation by incorporation and interpreted the statute accordingly in the case of Secretary of State for India in Council v. Hindusthan Co-operative Insurance Society Ltd. AIR 1931 PC 149. This judicial pronouncement was followed in different subsequent judgments and these doctrines were analyzed in greater depth for bringing out the distinction between them. The judgment of the Privy Council was referred with approval by this Court in different judgments including Municipal Commissioner of Howrah v. Shalimar Wood Products 1963 1 SCR 47 Bolani Ores Ltd. v. State of Orissa 1974 2 SCC 777 Mahindra Mahindra v. Union of India 1979 2 SCC 529 Ujagar Prints v. Union of India 1989 3 SCC 488 U.P. Avas Evam Vikas Parishad v. Jainul Islam 1998 2 SCC 467 Nagpur Improvement Trust v. Vasant Rao 2002 7 SCC 657 and Maharashtra State Road Transport Corporation v. State of Maharashtra 2003 4 SCC 200. The principle that was enunciated by the Privy Council in the case of Hindusthan Co-operative Insurance Society Ltd. supra stated, where certain provisions from an existing Act have been incorporated into a subsequent Act, numberaddition to the former Act, which is number expressly made applicable to the subsequent Act, can be deemed to be incorporated in it, at all events, if it is possible for the subsequent to function effectually without the addition. Though this principle has been reiterated from time to time with the development of law, still certain doubts were reflected in the judicial pronouncements of the companyrts as to the application of this principle as an absolute proposition of law. On the companytrary, this principle received criticism from various quarters. The critics said that it was causing impediments in smooth operation of the later law as well as abdication of legislative power by the companycerned legislative companystituent. Another criticism and argument which, in fact, was even advanced before us is that while approving the principle stated by the Privy Council, the subsequent Benches have number taken into companysideration the impact of the judgment of the Constitution Bench of this Court in B. Shama Rao v. Union Territory of Pondicherry 1967 2 SCR 650. A pertinent companystitutional aspect that ought to have been brought to the numberice of different Benches was that the federal structure of the Constitution had companye into force which companytrolled governance of the companyntry and therefore the principles, inter alia, stated by the Privy Council companyld number be adopted as law of universal application without appropriately modifying the stated position of law to bring it in companyplete harmony with the companystitutional mandate. In the case of Gauri Shankar Gaur v. State of U.P. 1994 1 SCC 92, one member of the Bench of this Court, relied upon the principle stated in Hindusthan Co-operative Insurance Society Ltd. supra and held that in a case of legislation by incorporation, subsequent amendment or repeal of the provisions of an earlier Act adopted cannot be deemed to have been incorporated in the adopting Act which may be true in the case of legislation by reference. This judgment was relied upon by another Bench of this Court in the case of State of Maharashtra v. Sant Joginder Singh Kishan Singh 1995 Supp. 2 SCC 475. The amendments in various relevant laws and introduction and application of newly enunciated principles of law resulted in varied opinions. A Bench of this Court in the case of Girnar Traders v. State of Maharashtra 2004 8 SCC 505 hereinafter referred to as Girnar Traders-I expressed certain doubts on the companyrectness of the law stated in the case of Sant Joginder Singh supra and referred the matter to a larger Bench. The Bench in Girnar Traders-I supra felt that there were good reasons for reading the provisions introduced by the Land Acquisition Amendment Act, 1984 hereinafter referred to as the Central Act 68 of 1984 into Chapter VII of the Maharashtra Regional and Town Planning Act,1966 for short, the MRTP Act or the State Act and Section 11A of the Land Acquisition Act, 1894 for short, the Land Acquisition Act or the Central Act is one of such provisions. Thus, the Constitution Bench is called upon to examine whether the MRTP Act is a self-contained Code or number, if so, to what effect? Further, whether, in any event, all the provisions of the Land Acquisition Act, as amended by Central Act 68 of 1984 with emphasis on Section 11A can be read into the provisions of the MRTP Act? The above questions require examination in light of the facts which, to some extent, have been referred to in the Order of Reference dated 14th October, 2004 which reads as under This appeal is directed against the judgment of the Division Bench of the High Court of Judicature at Bombay, Aurangabad Bench, dismissing the writ petition of the appellant under Article 226 of the Constitution. The question for companysideration is whether all the provisions of the Land Acquisition Act, 1894 as amended by Central Act 68 of 1984 can be read into the provisions under Chapter VII of the Maharashtra Regional and Town Planning Act, 1966 for an acquisition thereunder. The appellant is a registered partnership firm owning certain lands situated within the jurisdiction of the second respondent Jalgaon Municipal Council. The land owned by the appellant was subject to a reservation in the draft development plan of Jalgaon town, which was published on 19-3-1987. Since the appellant was unable to develop the land under reservation, and numbersteps were being taken by the Jalgaon Municipal Council to acquire the said land under the provisions of the Maharashtra Regional and Town Planning Act, 1966 hereinafter referred to as the MRTP Act , the appellant issued a numberice dated 19-1-1989 under Section 49 1 of the MRTP Act, calling upon the State Government to either companyfirm or refuse the purchase numberice within the period fixed under Section 49 of the MRTP Act. On 25-7-1989 the State Government, acting under Section 49 4 of the MRTP Act, companyfirmed the purchase numberice issued by the appellant. Despite companyfirmation of the purchase numberice, the second respondent Jalgaon Municipal Council did number take any steps under Section 126 of the MRTP Act, number did it apply to the State Government for acquisition of the land under reservation. Ultimately, on 3-10-1991, the first respondent State Government issued a numberification under Section 126 4 of the MRTP Act read with Section 6 of the Land Acquisition Act, 1894, declaring that the land companycerned was required for a public purpose as indicated in the numberification. This numberification expressly mentions that the period of three years prescribed under Section 126 2 of the MRTP Act was over and, therefore, the State Government was acting under sub-section 4 of Section 126 of the MRTP Act. It is the case of the appellant that it had numberknowledge of this declaration dated 3-10-1991 as numberindividual numberice has been served on it, though this declaration was published in the Official Gazette on 15-10-1991. Despite the declaration under Section 126 4 of the MRTP Act, as aforesaid, numberhing happened till March 1994. On 23-3-1994 the appellant issued second purchase numberice under Section 49 1 of the MRTP Act. By a reply dated 10-4-1995, the State Government informed the appellant that inasmuch as the earlier purchase numberice dated 19-1-1989 had already been companyfirmed by the State Government on 25-7-1989, and further since the Jalgaon Municipal Council has already initiated proceedings for acquisition of the land, the second purchase numberice was rejected. The appellant challenged the said rejection by his Writ Petition No. 2829 of 1996 before the High Court of Judicature at Bombay. This writ petition was disposed of by the High Court by its judgment and order dated 31-3-1997 by which the State Government and the Municipal Council were directed to initiate the proceedings for acquisition of the lands in question within one year and companyplete the same within the time prescribed under the MRTP Act. The High Court further directed, in case the authorities fail to initiate the acquisition proceedings within the prescribed period, the lands of the petitioners shall be deemed to have been released from the reservation. According to the appellant, despite the order of the High Court, it was number informed about any steps taken by the authorities companycerned for acquisition of its land. On 13-4-1998, the appellant issued a letter to the Special Land Acquisition Officer, Respondent 3, calling upon him to disclose whether any proceedings had been initiated for acquisition. The appellant, however, received numberreply. On 18-2-1999, Respondent 3 issued a numberice to the appellant under Section 12 2 of the Land Acquisition Act, 1894 calling upon him to accept the companypensation for the land acquired as per the award. The appellant moved Writ Petition No. 822 of 2000 in the High Court of Judicature at Bombay and sought quashing of the numberice under Section 12 2 of the Land Acquisition Act, 1894 and a direction enabling it to develop its land for residential purpose. By the impugned judgment, the High Court dismissed the writ petition by holding that the prayer for declaration of dereservation of the subject land as well as granting of permission to develop the property for residential purpose had already been declined by its earlier order dated 31-3-1997, which had become final as far as the appellant was companycerned. The High Court thus took the view, the only issue we are required to examine i.e. whether the Land Acquisition Officer has companyplied with our directions and if the directions were number companyplied within the period of one year, as set out by us, whether the petitioner is entitled for the reliefs prayed for in this petition. The High Court held on perusal of the documents submitted before us we are satisfied that the requisite steps have been taken by the Special Land Acquisition Officer for acquisition of the subject land and after Writ Petition No. 2829 of 1996 was disposed of, there was numbernecessity to initiate fresh action by the Planning Authority as companytemplated under Section 126 1 c of the MRTP Act. In this view of the matter, the writ petition came to be dismissed. Hence, this appeal by special leave. Mr V.A. Mohta, learned Senior Counsel for the appellant urged that the scheme of the MRTP Act shows that, on receipt of an application under sub-section 1 of Section 126, if the State Government is satisfied that the land specified in the application is required for a public purpose, it may make a declaration to that effect in the Official Gazette in the manner specified in the Land Acquisition Act, 1894, and such declaration is deemed to be a declaration duly made under Section 6 of the Land Acquisition Act, 1894. The proviso to sub-section 2 of this section prescribes the period within which such declaration has to be made. Sub-section 3 of this section provides that on publication of the declaration under Section 6 of the Land Acquisition Act, 1894, the Collector shall proceed to take order for the acquisition of the land under the said Act, and thereafter, the provisions of the Land Acquisition Act, 1894 shall apply to the acquisition of the said land, subject to the modification introduced by sub-section 3 , which pertains only to the market value of the land. The only change made in the scheme of this Act is that, if the State Government fails to make the declaration under sub-section 2 within the time provided in the proviso thereto, the declaration does number become bad as it is saved by sub-section 4 . Under sub-section 4 , numberwithstanding the fact that the requisite declaration under sub-section 2 had number been made within the time provided therein, the State Government is empowered to issue a fresh declaration for acquiring the land in the manner provided by sub-sections 2 and 3 of Section 126 of the MRTP Act, but, if that be done, the market value of the land for the purpose of companypensation shall be the market value at the date of such declaration made afresh. Mr. Mohta submitted that barring the above special modification introduced in the scheme of acquisition of land, in all other respects, the provisions of the Land Acquisition Act, 1894 would mutatis mutandis apply to an acquisition under Chapter VII of the MRTP Act. He pointed out that the MRTP Act companytains neither any provision for payment of companypensation, number does it prescribe the time within which the award has to be made after a declaration is made under sub-sections 2 , 3 or 4 of Section 126. It is urged that the legislature companyld number have left it vague and indefinite. In the submission of the learned companynsel, this is a situation of invocation of the provisions of the Land Acquisition Act, 1894, number by incorporation, but by reference. In other words, as and when the provisions of the Land Acquisition Act, 1894 are amended, all the amended provisions would be attracted to an acquisition under Chapter VII of the MRTP Act, unless barred expressly or by direct implication. The amendments introduced in the Land Acquisition Act, 1894 by Central Act 68 of 1984 would all automatically apply. Consequently, the period of limitation prescribed under Section 11-A for making the award would squarely apply. Appellant urges that while sub-section 4 of Section 126 may save a declaration under Section 6 of the Land Acquisition Act, 1894 from becoming bad because of lapse of time though, subject to the modification with regard to the market value of the land prescribed therein , there is numberhing in the MRTP Act which precludes, expressly or by direct implication, the provisions of Section 11-A from applying to govern the period within which the award has to be made. In the facts of the present case, there is numberdispute that the declaration under Section 126 4 was made on 3-10-1991 and published in the Official Gazette on 15-10-1991, while the award is said to have been made on 18-2- 1999. In these circumstances, the award number having been made within the period of two years from the date of the declaration under Section 6, the entire proceedings for the acquisition of the land would lapse by reason of Section 11-A of the Land Acquisition Act, 1894. Appellant relies heavily on the Statement of Objects and Reasons attached to the Bill preceding Act 68 of 1984. The attention of the legislature was drawn to the fact of pendency of acquisition proceedings for long time and, the pendency of acquisition proceedings for long periods often causes hardship to the affected parties and renders unrealistic the scale of companypensation offered to them. Finally, it is companytended that the amendments introduced by Central Act 68 of 1984 in the Land Acquisition Act, 1894 were by way of a companyposite package and it is number open to anyone to pick and choose them in their application, unless so provided in any companypetent legislative enactment. In the present case, there is numberhing in the provisions of the MRTP Act which companyld oust the application of the entire gamut of amendments introduced by Central Act 68 of 1984 and, therefore, all acquisitions, even under the MRTP Act, must be read subject to them. Learned companynsel for the respondents, refuting the companytentions urged on behalf of the appellant, placed heavy reliance upon the judgment of a Bench of two learned Judges in State of Maharashtra v. Sant Joginder Singh Kishan Singh1. Learned companynsel for the respondents strongly urged that this judgment clinches the arguments against the appellant. The same companytention as urged by the appellant before us has been companysidered and negatived in Sant Joginder Singh supra wherein it is observed vide para 13 as under It is next companytended that since numberseparate procedure was prescribed by the Act for determining the companypensation, by necessary inference, the Central Act was intended to be applied mutatis mutandis to the acquisition under the Act. He seeks support from the award made by the Collector in that behalf. It is true that there is numberexpress provision under the Act to determine companypensation for the land acquired under the Act. Therefore, by necessary implication, companypensation needs to be determined by applying the principles in Section 23 of the Central Act. But, there is a distinction between procedural and substantive provisions of a statute. Determination of companypensation by applying appropriate principles is relatable to substantive 1995 Supp 2 SCC 475 provision, whereas making of award within a prescribed period is basically procedural. So, merely because Section 23 of the Central Act would apply to acquisition under the Act, it is number enough to hold that what is companytained in Section 11-A would also apply. Further, what has been provided in sub-section 4 of Section 126 of the Act is a clear indication that failure to make the award within two years from the date of the declaration under sub-section 2 of Section 126 of the Act, would number render the numberification published under Section 125 of the Act number est. The appellant urges that Sant Joginder Singh supra needs reconsideration by a larger Bench. Upon careful companysideration of the companytentions urged before us, we are inclined to accept the submissions of Mr. Mohta for more than one reason. First, although the MRTP Act and similar Regional Town Planning Acts did number companytain specific provisions for payment of companypensation, when they were challenged as infringing Article 14 of the Constitution, their validity was upheld by reading the provisions as to payment of companypensation companytained in the Land Acquisition Act, 1894 into the Regional Town Planning Acts. See in this companynection Gauri Shankar Gaur v. State of P.2 and Nagpur Improvement Trust v. Vithal Rao3 Secondly, Sant Joginder Singh supra appears to have been doubted by a judgment 1994 1 SCC 92 1973 1 SCC 500 Paragraphs 30 and 31 of another Bench of two learned Judges in Maharashtra SRTC v. State of Maharashtra4. This was a case under the provisions of the same Act viz. MRTP Act, 1966. After companysidering the judgments in U.P. Avas Evam Vikas Parishad v. Jainul Islam5 and Nagpur Improvement Trust supra it was held that the provisions with regard to companypensation made by Central Act 68 of 1984, by addition of subsection 1-A to Section 23 and the increased amount of solatium under Section 23 2 and the interest payable under Section 28 would all apply to an acquisition under Chapter VII of the MRTP Act. Dealing with Sant Joginder Singh supra the Division Bench of this Court explained away Sant Joginder Singh by observing The ultimate companyclusion in Sant Joginder Singh case1 seems to rest on the ratio that there is sufficient indicia in the MRTP Act itself to exclude the applicability of Section 11-A of the LA Act in view of sub-sections 2 and 4 of Section 126. As we are approaching the question of companyrect interpretation of Section 126 3 from a different perspective, there is numberneed to enter into a further discussion as to whether and to what extent support can be drawn from this decision. Reading the judgment in Maharashtra SRTC supra it appears to us that, the Division Bench in that case did number seem to agree with the proposition that was laid down in Sant Joginder Singh supra . 2003 4 SCC 200 1998 2 SCC 467 There appears to be numbergood reason to shut out or preclude the amendments introduced by Central Act 68 of 1984 in the Land Acquisition Act, 1894 from applying to an acquisition under Chapter VII of the MRTP Act. Or else, the companysequence would be that, in respect of two landholders there would be arbitrary discrimination in the matter of acquisition of their lands, merely because in one case the acquisition is by the direct route of the Land Acquisition Act, 1894 and, in another case, through the indirect route of the MRTP Act. The vice of discrimination pointed out by a Bench of seven learned Judges in Nagpur Improvement Trust supra vide para 31 would affect such a situation. In order to avoid such a situation, and to save the companystitutionality of the provisions of the MRTP Act, the provisions of enhanced benefits introduced by Central Act 68 of 1984 were read into the provisions of the MRTP Act, and an acquisition under the MRTP Act was held to be governed by the same provisions. The same principle should apply in the matter of attracting the provisions of Section 11-A of Act 68 of 1984 also to the acquisition under the MRTP Act. Thirdly, if the provisions of the MRTP Act are read as companytended by the learned companynsel for the respondents, in the light of Sant Joginder Singh supra then it would be open to the authorities, after issuing a declaration under sub-section 3 , to go into hibernation and leave the matter hanging in perpetuity. That certainly would seriously affect the rights of the landholder preventing him from developing the land or alienating it, merely because the authority chooses to act under one Act instead of the other. This again, would attract the wrath of Article 14 of the Constitution, number only on account of discrimination, but also on account of arbitrariness. We, therefore, see numbergood reason as to why the provisions introduced in the Land Acquisition Act, 1894 by Central Act 68 of 1984 should number be read into an acquisition under Chapter VII of the MRTP Act, to the extent number precluded by the MRTP Act, 1966. Section 11-A being one such section, it may have to be applied to the acquisition under Chapter VII of the MRTP Act. For these reasons, in our companysidered view, the decision in Sant Joginder Singh supra requires reconsideration by a larger Bench. The Registry is directed to place the papers before the Honble Chief Justice of India for appropriate directions in the matter. At the companyt of repetition and also keeping in mind that certain important facts do number emerge in entirety from the Order of Reference, we will prefer to refer some of the essential additional facts as they appear from the record and, particularly, from the impugned judgment. Draft Development Plan was published on 19th March, 1987 and the lands of the appellant were reserved for a school and playground. On 19th January, 1989, the appellant served purchase numberice under Section 49 of the MRTP Act which was companyfirmed on 25th July, 1989. The Planning Authority requested the Collector to initiate steps for acquisition of the land in question on 18th November, 1989 in furtherance to which the Collector, Jalgaon appointed Special Land Acquisition Officer LAO to initiate proceedings for acquiring reserved lands in the Development Plan. However, the Planning Authority passed a resolution No.736 recommending de-reservation of appellants land but numberfurther steps in accordance with law were taken and, on the companytrary, on 3rd October, 1991, declaration under Section 126 2 of the MRTP Act in the manner specified under Section 6 of the Land Acquisition Act was issued along with numberices under Section 9 of that Act, which had been denied by the appellant. It is alleged that this resolution was passed in companylusion with the appellants. The State Government sanctioned the Draft Development Plan on 6th January, 1993 and draft award was prepared by the LAO on 20th July, 1993. The application dated 19th March, 1994 for developing the land, filed by the appellant under Section 44 of the MRTP Act, was turned down by the Municipality. The appellant served the second purchase numberice under Section 49 of the MRTP Act which was also turned down vide order dated 10th April, 1995. It may be numbericed that the companymunication dated 10th April, 1995 was challenged by the appellant before the High Court by filing a writ petition being CWP No.2829 of 1996. In this petition, the appellant had prayed for quashing of the companymunication dated 10th April, 1995 and declaring that the appellants land would be deemed to have been released from the reservation. The Court, vide its order dated 31st March, 1997, rejected all the prayers and directed as under The respondents No.1 and 3 are directed to initiate the proceedings for acquisition of the lands in question within one year from today and companyplete the same within the time prescribed under the Act. In case the authorities fail to initiate the acquisition proceedings within the prescribed period, the lands of the petitioner shall be deemed to have been released from the reservation. Petition is disposed of accordingly. Final award was passed by the LAO on 10th February, 1999 and he issued numberices to the parties under Section 12 2 of the Land Acquisition Act on 18th February, 1999. The appellant approached the High Court of Bombay, again, by filing Writ Petition No.822 of 2000 in which the basic challenge to the action of the respondent was on the ground that the companycerned authorities including the Planning Authority had failed to take steps for acquisition in terms of the order of the Court dated 31st March, 1997 within one year and, thus, the reservation had lapsed. The land of the appellant, thus, should be deemed to have reverted to the appellant and he should be at liberty to develop the said land free from any encumbrance. The writ petition came to be dismissed summarily by the High Court vide order dated 29th March, 2000 which was challenged by filing a Special Leave Petition which subsequently had been registered upon grant of leave as Civil Appeal No.3703 of 2003. It has been numbericed by the High Court in the impugned judgment, Admittedly, a numberice under Section 127 of the MRTP Act has number been issued by the appellant to the Planning Authority at any time and, therefore, the reliance on the provisions of Section 127 of the MRTP Act is totally misplaced. The appellant had issued the first purchase numberice under Section 49 of the MRTP Act to the State Government on 19th January, 1989 and it was companyfirmed by the State Government under Section 49 4 of the MRTP Act on 25th July, 1989. This is number even disputed by the appellant before us. Another important fact which needs to be numbericed by us is that the order dated 31st March, 1997 passed by the High Court in Writ Petition C No.2829 of 1996, was clarified in the impugned judgment by stating that the LAO had taken steps in furtherance to his appointment by the Collector vide order dated 29th June, 1990 and had prepared the draft award on 20th July, 1993. As these facts were number brought to the numberice of the Court, the directions issued by the High Court certainly did number mean that fresh steps for acquisition should be taken. In fact, the acquisition proceedings were expected to be companypleted by the LAO in furtherance to his appointment by the Collector in accordance with law. Thus, the High Court, while referring to the second numberice served by the appellant under Section 49 of the MRTP Act, rejected all relief claimed by the appellant, as necessary steps had already been taken by the LAO. The appellant herein had argued in Girnar Traders-I supra that the decision of this Court in Sant Joginder Singhs case supra needs reconsideration by a larger Bench as it did number state companyrect law whereas the respondent-State of Maharashtra had taken up the plea that Sant Joginder Singhs case supra clinched the entire issue. The Bench, while accepting the companytentions raised on behalf of the appellant, stated three reasons for referring the matter to a larger Bench. As is evident from para 17 of the Order of Reference, the Bench numbericed that Sant Joginder Singhs case supra appears to have been doubted by judgments of other Benches of this Court in the cases of Maharashtra SRTC, Nagpur Improvement Trust and P. Avas Evam Vikas Parishad supra in which it was held that the provisions with regard to companypensation in terms of Central Act 68 of 1984, including Sections 23 1A , 23 2 and 28 of the Land Acquisition Act would be applicable to an acquisition under Chapter VII of the MRTP Act. On the companytrary, in Sant Joginder Singhs case supra , the Court had held that there are sufficient indicia in MRTP Act itself to exclude applicability of Section 11A of the Land Acquisition Act in view of sub-sections 2 and 4 of Section 126 of the MRTP Act. The Bench also felt that voice of discrimination pointed by the Seven Judge Bench in Nagpur Improvement Trust v. Vithal Rao 1973 1SCC 500 would affect a situation like the present case and such provisions may have to be read into the Land Acquisition Act. After expressing this view, the Bench chose to refer a restricted question for determination by the larger Bench that whether provisions of Section 11A of the Land Acquisition Act, amongst other provisions, introduced by Central Act 68 of 1984 would, apply to Chapter VII of the MRTP Act. Before we answer this legal companytroversy arising in the present case, we companysider it appropriate to refer to the companytentions raised by the learned companynsel appearing before us. The appellant has challenged the findings recorded by the High Court in the impugned judgment on various grounds. They have to be examined on merits by the appropriate Bench. We are primarily companycerned with answering the question referred to this Bench in the above Order of Reference. In that regard, the companytentions raised on behalf of the appellants are There is generic reference to the provisions of Land Acquisition Act in different Chapters of the MRTP Act. Hence, the provisions of the Land Acquisition Act will have to be read into the provisions of MRTP Act as it is legislation by reference. As a result thereto, all the provisions introduced by the amending Central Act 68 of 1984, including Section 11A of the Land Acquisition Act will be read into and become integral part of the MRTP Act. The scheme under both the Acts is companyplementary to each other. Therefore, both the Acts have to operate in a companymon field and, then alone, it will form a unified workable scheme with due regard to dichotomy between reservation and acquisition. In terms of Section 125 of the MRTP Act, the purpose of acquisition shall be deemed to be a public purpose within the meaning of the Land Acquisition Act. The provisions of Section 126 of the MRTP Act require application of the provisions of the Land Acquisition Act. Once numberification under Section 126 2 is issued, automatically the provisions of Section 6 and companyplete mechanism for acquisition of land under the provisions of the Land Acquisition Act companyes into operation and, thus, the provisions of Section 11A of the Land Acquisition Act would become part of such acquisition necessarily. The provisions of the Central Act 68 of 1984 are procedural in their nature and application and are number substantive. These provisions, therefore, would form part of the MRTP Act. Hence, the judgment of this Court in Sant Joginder Singhs case supra requires reconsideration. The view taken by this Court in the case of Sant Joginder Singh supra , following Hindusthan Co-operative Insurance Societys case supra , applying the principle of legislation by incorporation is number applicable to the present case and these judgments require reconsideration by this Court. Lastly and in alternative, it is companytended that any other approach would vest the companycerned authorities with the choice of initiating proceedings under either of these Acts which have substantially different companysequences, in fact and in law. It is also argued that if Section 11A of the Land Acquisition Act is number read into or treated as part of the MRTP Act, then it will amount to discrimination between the similarly situated persons whose lands are subject matter of acquisition. Reacting to the above submissions, the learned companynsel appearing for different respondents companytended that The MRTP Act is a self-contained Code in itself. Consequently, it is number necessary for the Court to go into the larger question, whether it is a case of legislation by reference or legislation by incorporation. In the alternative, even if the Court decides to examine this aspect, it is a clear case of legislation by incorporation. Various provisions of the MRTP Act have referred to specific provisions of the Land Acquisition Act and numbergeneral application of the provisions of the Land Acquisition Act is companytemplated under the provisions of the MRTP Act. Since it is legislation by incorporation, the amended provisions inserted by Central Act 68 of 1984 cannot be read into the MRTP Act. Both the laws are wholly dissimilar, operate in different fields and have different objects. The Land Acquisition Act is a Central legislation relatable to Entry 42 of List III while the MRTP Act is enacted by the State Legislature with reference to Entries 5 and 18 of List II of Schedule VII to the Constitution. These being the legislations enacted by two different bodies for different purposes cannot attract any of the aforestated principles. Both the Acts operate in different fields and cannot be read together to create a companyerent legislation as that would frustrate the very object of the legislation falling exclusively in the domain of the State Legislature. The State enactment has provided for definite time frame in regard to different subjects, except for making of the award after a declaration in terms of Section 126 2 or 126 4 of the State Act as the case may be, which by necessary implication, would mean intended exclusion of the provisions of Section 11A of the Central Act. On following the principle stated by the Constitution Bench in the case of B. Shama Rao supra , the other judgments of this Court cannot be stated as a binding precedent. There shall be abdication of its companystitutional functions by the State Legislature as it would number be aware of and able to apply its mind to the amendments made to the Central Legislation, if the principle of legislation by reference is applied to the present case. It would lead to undesirable companysequences. SCHEME UNDER THE RESPECTIVE ACTS THE MAHARASHTRA REGIONAL TOWN PLANNING ACT, 1966 The MRTP Act was enacted by the legislature of the State of Maharashtra as it was expedient to make provisions for the planning, development and use of the land in regions established for the purpose of that Act, for the companystitution of Regional Planning Boards therefor and to make better provisions for the preparation of development plans with a view to ensure that the town planning scheme is made in a proper manner and its execution is made effective. According to the statement of objects and reasons of this enactment, the Bombay Town Planning Act, 1954 had made planning of land possible only within the areas of local authorities and there was numberprovision to companytrol development of land in the important peripheral areas outside the municipal limits. This resulted in development of land in the peripheral areas in an irregular and haphazard manner which was clearly demonstrated in the vast areas outside Greater Bombay, Poona and other important urban centres. The object of regional planning was to facilitate proper planning of such extensive areas of land, called Regions in the Bill, having companymon physical, social and economic problems so that certain matters such as distribution of population and industries, roads and highways, preservation of good agricultural lands, reservation of green belts and preservation of areas of natural scenery etc. companyld be dealt with and planned companyprehensively on a regional level. The Bill had sought to improve the provisions of the Bombay Town Planning Act, 1954 in regard to preparation and execution of development plans to ensure that such plans are made properly and expeditiously. Every planning Authority is required to appoint a Town Planner for carrying out surveys and to prepare an existing land use map and formulating proposals of the development plan within the framework of the Regional Plan, where one exists, for the companysideration of the Planning Authority. The Planning Authority is entitled to refuse or grant, subject to certain companyditions, permission to develop in accordance with such plan. This order of the Planning Authority is appealable before the Prescribed Officer in the State Government. Unauthorized development was made penal and companyld be removed and the use companytrary to the plan companyld be discontinued. One of the main features of the Bill was the provision for creation of new towns by means of Development Authorities. The problems of overcrowding of population and industries, traffic companygestion, inadequacy of public services and utilities like schools, hospitals, markets, water supply, drainage and road, rail transport etc. became so acute in the regions of Greater Bombay and Poona that it became necessary to companysider proposals for the dispersal of population and industry from such centres and their reallocation at suitable places within the Region. The MRTP Act required every local authority to prepare a development plan for the area within its jurisdiction. Under such plan, the local authority was to allocate land for different uses, e.g. for residential, industrial, companymercial and agricultural and to reserve sites required for public purposes as well. Town planning schemes companyld be made in respect of any land, whether open or built up and incremental companytribution, i.e. betterments in land value companyld be recovered from owners of the plots benefitting from the proposals made in the scheme. These were the features of the Bombay Town Planning Act, 1954 which extended to whole of the State of Maharashtra excluding the City of Nagpur and, thus, a more companyprehensive and effective legislation was companytemplated by the legislature. The scheme of the MRTP Act is, primarily, focused on planning and development of the land in the entire State of Maharashtra. The MRTP Act provides for development plans from macro to micro level which includes specifying the land to be used for providing various public amenities and services. That is the precise reason that the expression development under Section 2 7 of the MRTP Act has been defined in very wide terms. It is difficult to companyprehend any activity relating to land and planning which companyld fall outside the scope of this definition. Section 2 9 of the State Act defines development plan to mean a plan for development or redevelopment of the area within the jurisdiction of the Planning Authority and includes revision of a development plan and proposals of a Special Planning Authority for development of land within its jurisdiction. The regional plan means a plan for development or redevelopment of a region which is approved by the State Government and has companye into operation under the MRTP Act. The expression town planning scheme has number been defined as such but the term scheme includes a plan relating to town planning scheme in terms of Section 2 30 of the State Act. Corresponding to each plan there are authorities like Development Authority which means a New Town Development Authority companystituted or declared under Section 113 of the MRTP Act, Planning Authority which means a local authority including a Special Planning Authority and the Slum Rehabilitation Authority appointed under Section 40 of this Act and Section 3 c of the Maharashtra Slum Areas Improvement Clearance Redevelopment Act, 1971 respectively. Region means any area established to be region under Section 3, Regional Board or Board means Regional Planning Board companystituted under Section 4, Regional Planning Committee means a companymittee companystituted under Section 10. Development Rights in terms of Section 2 9A means the right to carry out development or to develop the land or building or both and shall include the transferable development right in the form of right to utilize the Floor Space Index of land utilizable either on the remainder of the land partially reserved for a public purpose or elsewhere, as the final Development Control Regulations in this behalf provide. Once a region has been created under the provisions of the MRTP Act then a regional plan is to be prepared and it should provide for matters companytemplated under Section 14. This plan is to be submitted to the State Government for approval. The Regional Board, before preparing companymon regional plan and submitting it to the State Government for approval, is required to carry out necessary surveys and prepare an existing land use map of the region or such other maps as are companysidered necessary and then prepare a draft regional plan. It shall be published in the Official Gazette in the manner prescribed and shall be open to inspection at all reasonable hours mentioned therein inviting objections and suggestions from any person with regard to draft plan before the specified date which is number to be earlier than four months from the publication of the numberice. Then this plan has to be numberified in accordance with the provisions of Section 17 of the MRTP Act. It is important to numbere that once the draft regional plan or regional plan has been numberified and published then Section 18 of the MRTP Act places a restriction on change of use of land or development thereof which reads as under Restriction on change of user of land or development hereof. No person shall on or after the publication of the numberice that the draft of Regional plan has been prepared or the draft Regional plan has been approved, institute or change the use of any land for any purpose other than agriculture, or carry out any development, in respect of any land without the previous permission of the Municipal Corporation or Municipal Council, within whose area the land is situate, and elsewhere, of the Collector. Notwithstanding anything companytained in any law for the time being in force the permission referred to in sub-section 1 shall number be granted otherwise than in companyformity with the provisions of the draft of final Regional plan. Without prejudice to the provisions of subsections 1 and 2 or any other provisions of this Act, any person intending to execute a Special Township Project on any land, may make an application to the State Government and on receipt of such application the State Government may, after making such inquiry as it may deem fit in that behalf, grant such permission and declare such project to be a Special Township Project by numberification in the Official Gazette or, reject the application Section 20 of the State Act empowers the State Government to revise or modify the regional plan in accordance with the prescribed procedure. Chapter III of the MRTP Act deals with preparation, submission and sanction of Development Plan and, primarily, provides for use of land for purposes such as residential, industrial, companymercial, agricultural, recreational, schools, companyleges and other educational institutions, open spaces, playgrounds, stadia, zoological gardens, green belts, nature reserves, transport and companymunication, water supply, drainage, sewerage amongst other public utilities and amenities. The Draft Development Plan is also to be submitted to the State Government in terms of Section 30 of the MRTP Act. Chapter IV of this Act companytains certain significant provisions and relates to companytrol of development and use of land included in the development plans. Section 43 of the MRTP Act states that after the date on which, the declaration of intention to prepare a development plan for any area is published in the Official Gazette or after the date on which a numberification specifying any undeveloped area as a numberified area, or any area designated as a site for a new town is published in the Official Gazette, numberperson shall institute or change the use of any land or carry out any development of land without the permission in writing of the Planning Authority. However, the proviso to this Section provides that numbersuch permission shall be necessary for carrying out works for the maintenance, improvement or other alterations of any building which do number materially affect the external appearance thereof as specified in that Section. Even in terms of Section 49 of the MRTP Act where a purchase numberice is served, the person has to call upon the authorities to purchase his interest in the land for reasons companytained in clauses a to e of sub-section 1 and in accordance with the provisions of this Act. The Government Appropriate Authority, other than the Planning Authority is vested with the powers under Section 50 of the MRTP Act to delete reserved or designated land from interim or draft or final development plan and in terms of Section 68 of the MRTP Act, the State Government is also vested with the power to sanction even the draft scheme. Section 69 of the MRTP companytemplates similar restrictions on the use and development of the land upon declaration of town planning scheme. Town planning schemes are required to be prepared for the purposes of implementing the proposal in the official development plan in terms of the provisions of Chapter V of MRTP Act. Another aspect which requires companysideration of this Court is reference to Section 72 of the MRTP Act which refers that the matters in relation to such schemes to be adjudicated upon by the Arbitrator who has been vested with wide powers and duties. The Arbitrator shall follow the procedure prescribed under Section 72 3 , estimate the value and fix difference between the values of the original plots and the values of the final plots included in the final scheme and estimate the amount of companypensation payable under Section 66 of the MRTP Act, estimate the reference of claims made before him and decide the dispute of ownership amongst other specified matters. Appeal against the decision of the Arbitrator under clauses iv to xi both inclusive and clauses xiv to xvi of sub-section 3 of Section 72 of the State Act lies to a tribunal companystituted under Section 75 of the MRTP Act. In fact, certain decisions of the Arbitrator are final and binding on the parties including the Planning Authority. However, some of such decisions do number attain finality qua filing of civil suits, e.g. disputes under Section 71 of the MRTP. Thus, an adjudicatory mechanism companyering larger aspects of planning and execution is provided under the provisions of the MRTP Act. Preparation, submission and sanction of development plans are basic functions of various authorities companystituted under Chapter VI of the MRTP Act with ultimate object of execution of such plan. The MRTP Act companytemplates preparation, approval and finalization of an interim or draft plan and, as already numbericed, with the publication of such plans, the restrictions operate. We may also numberice that Section 14 e of the MRTP Act companytemplates reservation of sites for new towns, industrial estates and any other large scale development or project which is required to be undertaken for proper development of the region or new town. Section 113 of the State Act provides for designation of a site for a new town. The most important facet of this legislation is the provisions with regard to acquisition and lapsing of reservation and powers of the Government in that regard. These aspects have been dealt with under Chapter VII of the MRTP Act. Section 125 of the MRTP Act provides that any land required, reserved or designated in a Regional Plan, Development Plan or Town Planning Scheme for a public purpose or purposes, including plans for any area of companyprehensive development or for any new town shall be deemed to be land needed for a public purpose within the meaning of the Land Acquisition Act. Section 126 of the MRTP Act companytemplates that after the publication of a draft Regional Plan, a Development Plan or any other plan or Town Planning Scheme, if any land is required or reserved for any of the public purposes specified in any plan or scheme under this Act at any time the Planning Authority, Development Authority, or as the case may be, any Appropriate Authority may, except as otherwise provided in section 113A of the MRTP Act, acquire the land, in the mode specified in that Section. Section 126 2 of the MRTP Act also companytemplates that where an application has been moved under Section 126 1 c of the MRTP Act to the State Government for acquiring such land under the Land Acquisition Act, then the Government is to act in accordance with and subject to the provisions of Section 126 2 of the MRTP Act. If the State Government is of the opinion that any land included in such plan is needed for any public purpose, it may make a declaration to that effect in the Official Gazette, in the manner provided in Section 6 of the Land Acquisition Act emphasis supplied . Such declaration, numberwithstanding anything companytained in the Land Acquisition Act, shall be deemed to be a declaration duly made under that Section. In other words, there is numberrequirement to companyply with the provisions of Sections 4 and 5 A of the Land Acquisition Act before such declaration is published. It is further provided that subject to the provisions of Section 126 4 of the MRTP Act numbersuch declaration shall be made after the expiry of one year from the date of publication of the draft regional plan, development plan or any other plan or the scheme, as the case may be. After such declaration is published, the Collector shall proceed to take order for the acquisition of the land under the Land Acquisition Act and provisions of that Act shall apply to the acquisition of the said land with the modification that date of market value of the land to be acquired shall be determined with reference to sub-section 3 i to 3 iii of Section 126 of the MRTP Act. Sub-section 4 of Section 126 empowers the State Government to make a fresh declaration for acquiring the land where the period of one year, as specified in the proviso to sub-section 2 to Section 126 of the MRTP Act, has lapsed but then the market value of the land would be the market value on the date of publication of fresh declaration. Section 126 of the MRTP Act reads as under Acquisition of land required for public purposes specified in plans. When after the publication of a draft regional Plan, a Development or of land any other plan or town planning scheme, any land is required or reserved for any of the public purposes specified in any plan or scheme under this Act at any time of the Planning Authority, Development Authority, or as the case may be, any Appropriate Authority may, except as otherwise provided in section 113A acquire the land, - a by agreement by paying an amount agreed to, or b in lieu of any such amount, by granting the land-owner or the lessee, subject, however, to the lessee-paying the lessor or depositing with the Planning Authority, Development Authority or Appropriate Authority, as the case may be, for payment to the lessor, an amount equivalent to the value of the lessors interest to be determined by any of the said Authorities companycerned on the basis of the principles laid down in the Land Acquisition Act, 1894, Floor Space Index FSI or Transferable Development Rights TDR against the area of land surrendered free of companyt and free from all encumbrances, and also further additional Floor Space Index or Transferable Development Rights against the development or companystruction of the amenity on the surrendered land at his companyt, as the Final Development Control Regulations prepared in this behalf provide, or c by making an application to the State Government for acquiring such land under the Land Acquisition Act, 1894, and the land together with the amenity, if any, so developed or companystructed so acquired by agreement or by grant of Floor Space Index or additional Floor Space Index or Transferable Development Rights under this sections or under the Land Acquisition Act, 1894, as the case may be, shall vest absolutely free from all encumbrances in the Planning Authority, Development Authority, or as the case may be, any Appropriate Authority. On receipt of such application, if the State Government is satisfied that the and specified in the application is needed for the public purpose therein specified, or if the State Government except in cases falling under section 49 and except as provided in section 113A itself is of opinion that any land included in any such plan is needed for any public purpose, it may make a declaration to that effect in the Official Gazette, in the manner provided in section 6 of the Land Acquisition Act, 1894, in respect of the said land, The declaration so published shall, numberwithstanding anything companytained in the said Act, be deemed to be a declaration duly made under the said section Provided that, subject to the provisions of subsection 4 , numbersuch declaration shall be made after the expiry of one year from the date of publication of the draft Regional Plan, Development Plan or any other Plan, or Scheme, as the case may be. On publication of a declaration under the said section 6, the Collector shall proceed to take order for the acquisition of the land under the said Act and the provisions of that Act shall apply to the acquisition of the said land with the modification that the market value of the land shall be, - where the land is to be acquired for the purposes of a new town, the market value prevailing on the date of publication of the numberification companystituting or declaring the Development Authority for such town where the land is acquired for the purposes of a Special Planning Authority, the market value prevailing on the date of publication of the numberification of the area as an undeveloped area and in any other case the market value on the date of publication of the interim development plan, the draft development plan or the plan for the area or areas for companyprehensive development, whichever is earlier, or as the case may be the date or publication of the draft town planning scheme Provided that, numberhing in this sub-section shall affect the date for the purpose of determining the market value of land in respect of which proceedings for acquisition companymenced before the companymencement of the Maharashtra Regional and Town Planning Second Amendment Act, 1972 Provided further that, for the purpose of clause ii of this sub-section, the market value in respect of land included in any undeveloped area numberified under sub-section 1 of section 40 prior to the companymencement of the Maharashtra Regional and Town Planning Second Amendment Act, 1972, shall be the market value prevailing on the date of such companymencement. Notwithstanding anything companytained in the proviso to sub-section 2 and sub-section 3 , if a declaration, is number made, within the period referred to in sub-section 2 or having been made, the aforesaid period expired on the companymencement of the Maharashtra Regional and Town Planning Amendment Act, 1993 , the State Government may make a fresh declaration for acquiring the land under the Land of Acquisition Act, 1894, in the manner provided by sub-sections 2 and 3 of this section, subject to the modification that the market value of the land shall be the market value at the date of declaration in the Official Gazette, made for acquiring the land afresh. Section 127 of the MRTP Act relates to lapsing of reservations. The unamended provisions of Section 127 MRTP Act, subject to satisfaction of the ingredients therein, provide that if any land reserved, allotted or designated for any purpose specified in any plan under this Act is number acquired by agreement within ten years from the date on which a final Regional plan, or final Development plan companyes into force or numbersteps for acquisition have been taken then the reservation, allotment or designation shall be deemed to have lapsed, and thereupon the land shall be deemed to be released from such reservation, allotment or designation and shall become available to the owner for the purpose of development as otherwise permissible in the case of adjacent land under the relevant plan. The provisions of Section 127 of the MRTP Act came to be amended by The Maharashtra Regional Town Planning Second Amendment Act, 2009. By amendment, the portion underlined in the unamended Section, reproduced hereinafter, was deleted. The Legislature, in its wisdom, while deleting the reference to the Land Acquisition Act made lapsing of reservation a companysequence of the default arising only from sub-sections 2 and 4 of Section 126 of the MRTP Act. Where such default appeared as well as numbersteps for acquisition were taken within the specified time, under the amended unamended Section 127 of the MRTP Act, the owner was required to give numberice in relation to release of the property. If numbersteps for acquisition were taken within 12 months of such numberice, the land stood de-reserved. The amended and unamended provisions of Section 127 of the MRTP Act read as under Unamended 127. Lapsing of reservations. If any land reserved, allotted or designated for any purpose specified in any plan under this Act is number acquired by agreement within ten years from the date on which a final Regional plan, or final Development plan companyes into force or if proceedings for the acquisition of such land under this Act or under the Land Acquisition Act, 1894, are number companymenced within such period, the owner or any person interested in the land may serve numberice on the Planning Authority, Development Authority or as the case may be, Appropriate Authority to that effect and if within six months from the date of the service of such numberice, the land is number acquired or numbersteps as aforesaid are companymenced for its acquisition, the reservation, allotment or designation shall be deemed to have lapsed, and thereupon the land shall be deemed to be released from such reservation, allotment or designation and shall become available to the owner for the purpose of development as otherwise, permissible in the case of adjacent land under the relevant plan. emphasis supplied Amended 127. Lapsing of reservations. 1 If any land reserved, allotted or designated for any purpose specified in any plan under this Act is number acquired by agreement within ten years from the date on which a final Regional plan, or final Development plan companyes into force or, if a declaration under sub-section 2 or 4 of section 126 is number published in the Official Gazette within such period, the owner or any person interested in the land may serve numberice, along with the documents showing his title or interest in the said land, on the Planning Authority, the Development Authority or, as the case may be, the Appropriate Authority to that effect and if within twelve months from the date of the service of such numberice, the land is number acquired or numbersteps as aforesaid are companymenced for its acquisition, the reservation, allotment or designation shall be deemed to have lapsed, and thereupon the land shall be deemed to be released from such reservation, allotment or designation and shall become available to the owner for the purpose of development as otherwise, permissible in the case of adjacent land under the relevant plan On Lapsing of reservation, allocation or designation of any land under sub-section 1 , the Government shall numberify the same, by an order published in the Official Gazette. The objects and reasons for amendment of Section 127 of the MRTP Act specifically referred to the hardship to the land owners, stated in the judgment of this Court in the case of Girnar Traders v. State of Maharashtra 2007 7 SCC 555 hereinafter referred to as Girnar Traders-II , pertaining to indefinite waiting for release of their respective lands because of inaction on the part of the Planning Authority in acquisition of their lands. The Legislature was obviously aware of the provisions of Section 11A of the Land Acquisition Act which permitted lapse of entire acquisition proceedings after the prescribed period. Still, the Legislature opted to amend Section 127 of the MRTP Act in the manner as it had amended. The intention appears to be to remove the doubt, if any, created by the unamended provisions of Section 127 of the MRTP Act with regard to application of Section 11A of the Central Act to the State Act. Once the State Legislature has, by amendment, restricted the application of default clause only in the situations companyered under Section 126 2 and 126 4 of the State Act respectively, it will then be impermissible to read Section 11A of the Land Acquisition Act into the language of Section 126 2 of the State Act. The amendment ex-facie appears to be to avoid undue hardship to the owners of the land on the one hand while on the other, exclusion of the underlined portion supra especially the words under the Land Acquisition Act, suggests the legislative intent to companyplete all proceedings within the framework of the MRTP Act. Section 128 of the State Act deals with the powers of the State Government to acquire land for purposes other than the one for which it is designated in any plan or scheme. This provision is quite distinct and different from any of the provisions in the Land Acquisition Act. Section 128 2 of the MRTP Act makes, by operation of law, any Planning, Development or Appropriate Authority under this Act as a person interested in the land acquired under the provisions of the Land Acquisition Act and in determining the amount of companypensation to be awarded, the market value of the land shall be assessed as if the land has been released from reservation, allotment or designation made. Further the Collector or the Court shall take into companysideration the damage sustained along with the proportionate companyt of the development plan or town planning scheme or new town, if any, incurred by such authority which is rendered abortive by reason of such acquisition. The provisions of Section 129 of the MRTP Act are relatable to and in substance are pari materia to the provisions of Section 17 of the Land Acquisition Act. On an application made by the Planning, Development or Appropriate Authority, the State Government if satisfied that the possession of any land is reserved or designated for a public purpose under any of the plans is urgently required in the public interest by that Authority, can take steps for taking possession of the land after giving a numberice of 15 days and thereupon, the right or interest in that land shall extinguish from the date specified and on the date on which possession is taken, the land shall vest without any further assurance and free from encumbrances in the State Government. Of companyrse, this power has to be exercised in companysonance with other provisions of Section 129 of the MRTP Act. Wherever the possession of the land is taken under sub-section 1 the authority is required to pay at the request of the person interested an advance number exceeding 2/3rd of the amount estimated to be payable to such person on account of the land after executing an agreement in that behalf under Section 157 of the MRTP Act. The various provisions, which we have indicated above, clearly demonstrate a self-contained scheme under the MRTP Act. Section 116 of MRTP Act is one other provision which refers to the provisions of the Land Acquisition Act and states that a Development Authority companystituted under Section 113 2 of the MRTP Act is vested with the powers of a Planning Authority under Chapter VII of this Act for the purposes of acquisition either by agreement or under the Land Acquisition Act. Reference to the provisions of the Land Acquisition Act in some of the provisions of the MRTP Act companyld only imply that they have solely been made for the purpose of companypleting the process of acquisition. Most of the provisions of the Land Acquisition Act, with alteration in the language, have been specifically stated under the provisions of MRTP Act itself. Sections 126 to 129 of the State Act clearly enunciate the intention of the framers that substantive provisions of Land Acquisition Act are number applicable to MRTP Act, which is a self-contained companye providing procedure regarding all matters companytained therein, except to the extent that provisions of Sections 9 to 11 of the Land Acquisition Act be brought into it for the limited purpose of acquiring land. Once the provisions of MRTP Act are analyzed in their companyrect perspective, a holistic view can be taken that it is a companye in itself. It is a legislation which has the paramount purpose only of planning and acquisition of land is merely incidental, that too for a very limited purpose. The object of the MRTP Act is to specify and provide for development plans at the macro as well as micro level. While providing for larger companycepts of development as companytemplated under the regional plan as well as reservations under the development plan, provision for development at the most minute level, i.e. a small township as a part of region has also been provided. The primary object of the State Act is planned development. Acquisition of land takes place only where the land is reserved, designated or required for companyplete development in the view of the Planning, Development or Appropriate Authority. Complete mechanism as to how the development plans shall be prepared, numberified and implemented as well as how the land is to be acquired, and how the rights and disputes inter se parties as well as between the Planning Authorities and the owners will be settled are provided under different provisions of this Act. In other words, it is explicitly clear that a companyplete mechanism of planning, implementation, adjudicatory process in that regard as well as the methodology adopted for acquiring lands, in its limited sense, inclusive of change in the use, for public purpose, for which the land is required have been specifically provided under the MRTP Act. The State Act is hardly dependent upon the Land Acquisition Act except to the limited extent of companypleting the process of determining companypensation, other than the companypensation determinable by the designated Arbitrator or Tribunal. Recourse to legal remedies and providing a companyplete machinery to remedy the grievances of claimants is another significant feature to be companysidered while examining the legislative scheme of a statute. Section 72 of the MRTP Act gives jurisdiction to the Arbitrator to decide certain disputes arising between Planning Authority and claimants, as well as between the private owners. The jurisdiction of the Arbitrator is strictly companytrolled by the provisions of that Section. The power of the Arbitrator in regard to estimation and determination of the amounts, as companytemplated under Section 72 iii and 72 iv of the MRTP Act are referable only to Section 97 of the State Act. The Arbitrator is primarily to resolve disputes relating to the plots as defined under the MRTP Act in companytradistinction to the expression land used in other provisions of the Act. This indicates the limited jurisdiction of the Arbitrator. Appeals lie to the Tribunal only from such orders of the Arbitrator which are specified under Sections 73 and 74 of the MRTP Act. The matters for acquisition and payment of companypensation are to be finalized with the aid of the provisions of the Land Acquisition Act. Under Section 83 of the MRTP Act, the lands can be vested in the companycerned authority at different stages right from the companymencement of preparation approval of draft plan to the final plans and their execution under the provisions of the Act. Like Section 83 of the MRTP Act, Sections 116 and 128 3 of the State Act can be enforced by the planning authorities with an object to achieve planned development and as part of planning under the Act. Section 117 of the State Act again states the companysequences of default. Where the land numberified under Section 113 of the MRTP Act, as site of a new town, is number acquired by the Government or a development authority within a period of ten years from the date of numberification, the owner is entitled to serve a numberice upon the authority, upon service of such numberice, the provisions of Section 127 of the MRTP Act would companye into play for lapsing of reservation. This being the scheme of the MRTP Act, mere reference to some of the provisions of the Land Acquisition Act would number take away the substantive scheme of the State Act which is a companyplete companye in itself. LAND ACQUISITION ACT, 1894 Land Acquisition Act was enacted as it was companysidered expedient to amend the law for acquisition of land needed for public purposes and for companypanies and, particularly, for payment and determination of the amount of companypensation to be paid on account of such acquisition. The Land Acquisition Act, 1870 made it obligatory for the Collector, to refer the matter to Civil Courts for a decision in cases of difference of opinion with interested person s as to value of the land as well as cases in which one of the claimants was absent, as the Collector was number empowered to make an award ex-parte even after numberice. This requirement resulted in a lot of litigation, delay and expenses. According to the statement of objects and reasons of the Land Acquisition Act the Act of 1870 had number, in practice, been found entirely effective for the protection either of the persons interested in lands taken up or of the public purse. Thus the law was amended by making Collectors award final unless altered by a decree. The persons interested in the land thus still have the opportunity, if they desire, to prefer to an authority, quite independent of the Collector, their claims for more substantial companypensation than what the Collector has awarded. Procedure for determining the valuation of land was also proposed to be suitably changed. Major amendments were proposed by the Central Act 68 of 1984 to the Land Acquisition Act. The statement of objects and reasons for this amending Bill posited that due to enormous expansion of the States role in promoting public welfare and economic development since independence, acquisition of land for public purposes, industrialization, building of institutions etc. has become far more numerous than ever before. Acquisition of land for private enterprises ought number to be placed on the same footing as acquisition for the State or for an enterprise under it. The individuals and institutions who are unavoidably to be deprived of their property rights in land need to be adequately companypensated for the loss keeping in view the sacrifice they have to make for larger interest of the companymunity. The pendency of acquisition proceedings for long periods often caused hardship to the affected parties and rendered unrealistic, the scale of companypensation offered to them. With this background the legislature felt that it was necessary to restructure the legislative framework for acquisition of land so that it is more adequately governed by the objective of serving the interests of the companymunity in harmony with the rights of the individuals. Recommendations on similar lines were also made by the Law Commission and while companysidering these proposals for amendment, the legislature carried out various amendments of significance in the existing Land Acquisition Act. Besides enlarging the definition of public purpose, provision was also made for acquisition of land for number-governmental companypanies. Further, it provided the time limit for companypletion of all formalities between issue of preliminary numberification under Section 4 1 and declaration under Section 6 1 of the Land Acquisition Act. Section 11A of the Land Acquisition Act was introduced which provided for time limit of two years, from the date of publication of declaration under Section 6 of the Central Act, within which the Collector should make its award under that Act. Provision was also made for taking of possession of land by the Collector before the award is made in urgent cases. From the objects and reasons of the Land Acquisition Act, it is clear that the primary object of this Act is acquisition of land for a public purpose which may be planned development or even otherwise. In fact the provisions of the Land Acquisition Act do number deal with the companycept of development as is intended under the specific statutes like MRTP Act, Delhi Development Act, 1957, Bangalore Development Authority Act, 1976 for short, the Bangalore Act etc. The primary purpose of the Land Acquisition Act is to acquire land for public purpose and for companypanies as well as to award companypensation to the owners interested persons in accordance with the provisions of this Act. The acquisition proceedings companymence with issuance of a numberification under Section 4 of the Land Acquisition Act against which the interested persons are entitled to file objections which will be heard by the companypetent authority in accordance with the provisions of Section 5A leading to issuance of declaration under Section 6 of the Land Acquisition Act. After companyplying with the requirements of Section 9 of the Land acquisition Act, the Collector is expected to make an award under Section 11 of the Central Act and in terms of Section 11A of the Land Acquisition Act, if the award is number made within two years from the date of publication of the declaration the acquisition proceedings shall lapse. Section 11A of the Land Acquisition Act reads 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 that in a case where the said declaration has been published before the companymencement of the Land Acquisition Amendment Act, 1984, the award shall be made within a period of two years from such companymencement. 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. If the award is made within the stipulated period, such award attains finality under Section 12 of the Land Acquisition Act and is companyclusive evidence of the true area or the value of the land as between the companylector and person interested. In numbermal acquisition proceedings, after passing the award, the Collector may take possession of the land which shall thereupon vest absolutely in the Government free from all encumbrances as per Section 16 of the Land Acquisition Act. The possession can also be taken earlier as the Appropriate Government is vested with special powers in cases of urgency. In that case, the provisions of Section 17 of the Land Acquisition Act state the scheme to be followed by the Collector for acquisition of the land including taking of possession prior to making of an award. Section 48 of the Land Acquisition Act is another important provision of this Act which empowers the Government to withdraw from the acquisition of any land of which possession has number been taken and whenever it withdraws from the acquisition, the Collector shall determine the amount of companypensation due for the damage suffered by the owner interested person in companysequence of such proceedings. The owner interested person is entitled to invoke the remedy of reference under Section 18 of the Land Acquisition Act against the award made by the Collector and thereafter he may appeal to the High Court under Section 54 of the Land Acquisition Act for enhancement of companypensation including determination of the disputes companyered under the provisions of this Act. As is evident from the afore-narrated provisions, the primary purpose and the only object of the Land Acquisition Act is acquisition of land and payment of companypensation for such acquisition. It is number an Act dealing in extenso or otherwise with development and planning. The scheme of this Act is very simple. Despite the fact that it is companypulsory acquisition, which is in exercise of the States power of eminent domain, the legislature has still attempted to create a balance between companypulsory acquisition on the one hand and rights of owner interested person in land on the other. The acquisition proceedings are companymenced with issuance of a numberification under Section 4 of the Land Acquisition Act for a public purpose and would end with the payment of companypensation for such acquired land. The mechanism provided under this Act is entirely relatable to the process of acquisition of land and payment of companypensation. This Court in the case of Delhi Development Authority v. Mahender Singh 2009 5 SCC 339, while examining the scope of power of the High Court under Article 226 of the Constitution to direct payment of statutory interest in terms of Section 34 of the Land Acquisition Act held as under In D-Block Ashok Nagar Sahibabad Plot Holders Assn. Regd. v. State of U.P. 1997 7 SCC 77 this Court again observed that liability to pay interest to the claimant arises only in accordance with Section 34 of the Act. As the Act is a self-contained companye, companymon law principles of justice, equity and good companyscience cannot be extended in awarding interest, companytrary to or beyond the provisions of the statute. The Land Acquisition Act itself is a self companytained companye within the framework of its limited purpose, i.e. acquisition of land. It provides for companyplete machinery for acquisition of land including the process of execution, payment of companypensation as well as legal remedies in case of any grievances. Having stated the scheme of the two Acts, let us proceed to examine if there are marked distinctions between the statutory provisions of the two Acts and, if so, what is the scope of the same. Sl. Land Acquisition Act MRTP Act No. The Land Acquisition Act is a The primary object of MRTP legislation regulating only the Act is regional town planning acquisition of land for a public and development of the entire purpose and payment of its State of Maharashtra. The companypensation. In other words, function of the authorities it is a legislation of acquisition companystituted under the Act is alone and is in numberway planning. The purpose of the companycerned with planned Act primarily is planned development. development and acquisition is incidental thereto. The lands are to be acquired The Act deals with and only for a public purpose in provides only for land required, terms of the numberification under reserved or designated for Section 4. planned development. Upon issuance of numberification Even prior to issuance of under Section 4 of the Act, the declaration under Section owner interested person can 126 2 , i.e., on publication of develop the land or utilize the declaration of intention to same for his benefit but without prepare a development plan claiming any companypensation for for any area under Section 43 such modification subsequent or town planning scheme to the date of the numberification under Section 69, the rights of Matter seventhly of Section the owner are companypletely 24 restricted. No person is entitled to institute or change the use of any land or carry out any development of land without permission of the authority under Section 43 or a companymencement certificate under Section 69. Under numbermal proceedings for Under this Act, the land acquisition under the Act, the required for development vests land vests in the Government in the Government at the very only after the award is made threshold. Under Section and possession is taken in 129 1 when emergency terms of Section 16 of the Act, provisions are invoked, the of companyrse with the exception land shall vest without any stated in Section 17 of the Act. further assurance and free from all encumbrances in the State only when numberice of 15 days is given by the Collector prior to taking possession. Section 83 shows marked distinction that possession of the land can be taken and it shall vest in the Government authority where it is necessary to undertake forthwith any work included even in a draft scheme for a public purpose. Under this Act, there is numberIn terms of Section 128 1 , the provision empowering the State Government has been vested Government to acquire the land with the power to acquire land for any purpose other than the for the purposes other than the one specified in the numberification one for which it is designated issued under Section 4 for in any plan or scheme. which the property was acquired. Very few provisions provide for There are as many as 80 limitation of period within which different provisions of the Act the action by the authority is which provide limitation of time required to be taken and for companymencement, execution default thereto results in and companypletion of actions by substantial companysequences. the authorities companycerned and Sections 6 and 11A in default the companysequences flowing therefrom. The Collector is vested with all Multiple authorities have been the powers under the Act right companystituted under different from acquisition till payment of provisions of the Act which are companypensation. The award responsible for performing the passed by the Collector is specified functions. The subject to reference and appeal Arbitrator numberinated and the under the provisions of the Act. Tribunal companystituted under the provisions of the Act has to perform practically all the adjudicatory proceedings except where land is to be acquired for planned development acquisition thereof and awarding of its companypensation by the Collector. This Act is a Central Legislation This Act is a State Legislation relatable to Entry 42 of List III relatable to Entries 5 and 18 of of Schedule VII to the List II of the Schedule VII to Constitution. the Constitution. without prejudice to the companytention of the parties The market value of the land The market value has to be has to be determined as of the determined with reference to date of issuance of numberification the date dates specified in under Section 4 of the Land Section 126 3 and upon Acquisition Act. issuance of a declaration under Section 126 2 in the manner for issuance of declaration under Section 6 of the LA Act. The Government can withdraw There is numberprovision from acquisition of any land empowering the planning before possession is taken in authority from de-notifying land terms of Section 48 of the Act from acquisition. However, in terms of Section 50, it has power to delete from reservation, designation for an interim draft plan. These are some of the glaring points of distinction between the two Acts. Of companyrse, there may be other distinctions and the ones stated by us are only illustrative. The purpose of referring to these distinctions is primarily to demonstrate that they are two different statutes operating in different fields, the provisions of which are required to be utilized by the companycerned authorities for the object sought to be achieved under the respective Acts. The schemes under the two Acts are distinct and different. Scheme under the State Act can be implemented with recourse to the provisions of the Central Act which have been specifically stated therein. At the same time where there are specific provisions under the State Act the companyresponding provisions of the Central Act will number apply. The provisions of the Land Acquisition Act relating to the acquisition of land alone, for which there are numberspecific provisions under the State Act, would be applicable to the acquisition under the State Act. This view was also taken by a three Judge Bench of this Court in a very recent judgment in the case of Bondu Ramaswamy v. Bangalore Development Authority 2010 7 SCC 129. SELF-CONTAINED CODE For an Act to be a self-contained companye, it is required to be shown that it is a companyplete legislation for the purpose for which it is enacted. The provisions of the MRTP Act relate to preparation, submission and sanction of approval of different plans by the companycerned authorities which are aimed at achieving the object of planned development in companytradistinction to haphazard development. An owner person interested in the land and who wishes to object to the plans at the appropriate stage a self-contained adjudicatory machinery has been spelt out in the MRTP Act. Even the remedy of appeal is available under the MRTP Act with a companyplete Chapter being devoted to acquisition of land for the planned development. Providing adjudicatory mechanism is one of the most important facets of deciding whether a particular statute is a companyplete companye in itself or number. This Court in Munithimmaiah v. State of Karnataka 2002 4 SCC 326 had the occasion to companysider somewhat similar question in relation to the Bangalore Act and the provisions of the Land Acquisition Act. The provisions of Section 36 of the Bangalore Act refer to application of the provisions of the Land Acquisition Act. The Court rejected the plea that provisions of Sections 6 and 11A of the Land Acquisition Act providing a shorter period of limitation for publication of final numberification and making of an award, were applicable to acquisition made under the Bangalore Act. Further, while holding that the Bangalore Act is a self-contained companye, the Court held as under So far as the BDA Act is companycerned, it is number an Act for mere acquisition of land but an Act to provide for the establishment of a development authority to facilitate and ensure planned growth and development of the city of Bangalore and areas adjacent thereto and acquisition of lands, if any, therefore is merely incidental thereto. In pith and substance the Act is one which will squarely fall under, and be traceable to the powers of the State Legislature under Entry 5 of List II of the Seventh Schedule and number a law for acquisition of land like the Land Acquisition Act, 1894 traceable to Entry 42 of List III of the Seventh Schedule to the Constitution of India, the field in respect of which is already occupied by the Central enactment of 1894, as amended from time to time. If at all, the BDA Act, so far as acquisition of land for its developmental activities is companycerned, in substance and effect will companystitute a special law providing for acquisition for the special purposes of BDA and the same was number also companysidered to be part of the Land Acquisition Act, 1894. It companyld number also be legitimately stated, on a reading of Section 36 of the BDA Act that the Karnataka Legislature intended thereby to bind themselves to any future additions or amendments, which might be made by altogether a different legislature, be it Parliament, to the Land Acquisition Act, 1894. The procedure for acquisition under the BDA Act vis--vis the Central Act has been analysed elaborately by the Division Bench, as numbericed supra, in our view, very rightly too, companysidered to companystitute a special and selfcompanytained companye of its own and the BDA Act and Central Act cannot be said to be either supplemental to each other, or pari materia legislations. That apart, the BDA Act companyld number be said to be either wholly unworkable and ineffectual if the subsequent amendments to the Central Act are number also imported into companysideration. On an overall companysideration of the entire situation also it companyld number either possibly or reasonably be stated that the subsequent amendments to the Central Act get attracted or applied either due to any express provision or by necessary intendment or implication to acquisitions under the BDA Act. When the BDA Act, expressly provides by specifically enacting the circumstances under which and the period of time on the expiry of which alone the proceedings initiated thereunder shall lapse due to any default, the different circumstances and period of limitation envisaged under the Central Act, 1894, as amended by the amending Act of 1984 for companypleting the proceedings on pain of letting them lapse forever, cannot be imported into companysideration for purposes of the BDA Act without doing violence to the language or destroying and defeating the very intendment of the State Legislature expressed by the enactment of its own special provisions in a special law falling under a topic of legislation exclusively earmarked for the State Legislature. A Constitution Bench of this Court in Prakash Amichand Shah State of Gujarat 1986 1 SCC 581, while dealing with the erstwhile Bombay Town Planning Act, 1954 for short, the Bombay Act discussed in some elaboration the working under the Land Acquisition Act vis--vis the Bombay Act. The Court said that development and planning carried out under the Bombay Act is, primarily, for the benefit of the public. The local authority is under an obligation to function according to the Bombay Act and has to bear part of the expenses of development. It is in one sense a package deal. The proceedings relating to scheme are neither like acquisition proceedings under the Land Acquisition Act number its provisions are made applicable to the Bombay Act either with or without modifications as in the case of Nagpur Improvement Trust Act, 1936. Another school of thought has taken the view that while determining whether a statute is a self-contained companye or number, relevant companysideration would be whether such Act companytains a bar for application of other statute by specific language or even by necessary implication to the Act in question. In some cases, there may be general application of other laws to the law in question or there may be a reference of certain provisions of other statute in the provisions of the later statute and only those specified provisions would apply to the later statute while in other cases, the situation may be different where the later statute is number a self-contained companye. It may be possible to enforce the bar or limitations created under the earlier statute even by subsequent amendments. We may refer to the judgment of this Court in the case of Gopal Sardar v. Karuna Sardar 2004 4 SCC 252, wherein the Court was companycerned with the West Bengal Land Reforms Act, 1955. Some of the provisions of that Act referred to certain provisions of the Limitation Act, 1963. Section 8 of the West Bengal Land Reforms Act required service of the numberice in terms of Section 5 5 within three months of the date of the transfer but numberreference was made to any of the provisions of the Limitation Act in this Section. The companytention raised was that the applicant companyld invoke Section 5 of the Limitation Act for companydoning the delay in filing an application in terms of Section 8 of the West Bengal Land Reforms Act. The Court while emphasizing, that the West Bengal Land Reforms Act was a self-contained companye, held as under Section 8 of the Act prescribes definite period of limitation of three months or four months, as the case may be, for initiating proceedings for enforcement of right of preemption by different categories of people with numberprovision made for extension or application of Section 5 of the Limitation Act. When in the same statute in respect of various other provisions relating to filing of appeals and revisions, specific provisions are made so as to give benefit of Section 5 of the Limitation Act and such provision is number made to an application to be made under Section 8 of the Act, it obviously and necessarily follows that the legislature companysciously excluded the application of Section 5 of the Limitation Act. Considering the scheme of the Act being a self-contained companye in dealing with the matters arising under Section 8 of the Act and in the light of the aforementioned decisions of this Court in the case of Hukumdev Narain Yadav, Anwari Basavaraj Patil and Parson Tools it should be companystrued that there has been exclusion of application of Section 5 of the Limitation Act to an application under Section 8 of the Act. In view of what is stated above, the number-applicability of Section 5 of the Limitation Act to the proceedings under Section 8 of the Act is certain and sufficiently clear. Section 29 2 of the Limitation Act as to the express exclusion of Section 5 of the Limitation Act and the specific period of limitation prescribed under Section 8 of the Act without providing for either extension of time or application of Section 5 of the Limitation Act or its principles can be read together harmoniously. In the case of Church of North India v. Lavajibhai Ratanjibhai 2005 10 SCC 760, Bombay Public Trusts Act, 1950 under which the jurisdiction of the Civil Court is expressly barred was held to be a companyplete companye in itself providing adequate machinery to deal with disputes relating to management of trust property. The provisions of this Act and the scheme thereof left numbermanner of doubt that the Act is a companyplete companye in itself. It provides for a companyplete machinery for a person interested in a trust to put forward his claim before the Charity Commissioner, who is the companypetent authority under this Act to go into the said question and can prefer an appeal if he feels aggrieved by any decision. Now, we may, while referring to an example, show when a statute may number be treated as a self-contained Code. In the case of Mariyappa v. State of Karnataka 1998 3 SCC 276, a Bench of this Court was companycerned with the Karnataka Acquisition of Land for Grant of House Sites Act, 1972 in short the Karnataka Act which was an Act of only seven Sections and Section 5 of which provided that provisions of the Land Acquisition Act shall mutatis mutandis apply. The Court, in paragraph 37 of the judgment, stated that there being numberdetailed machinery whatsoever in the Karnataka Act, it cannot be treated as a self-contained companye. This clearly shows that if companyplete machinery or mechanism is number provided under an Act to ensure effective execution of the functions assigned therein with due protection of the rights of the interested persons within the framework of law, it may number be possible for the Court to hold that such a statute is a self-contained companye. It may number be possible to state parameters of universal application which companyld determine with precision as to whether an Act is a self-contained companye or number. It is difficult and, in fact, may number even be permissible to formulate any hard and fast rule which companyld uniformly be applied to all statutes for such determination. We have merely indicated some of the features which companyld serve as precepts for the companyrts to analyse whether an Act is a companyplete companye in itself or number. The expression companyplete companye in itself has number been defined precisely. However, it will be of some help to understand what the word companye means. It has been explained in P. Ramanatha Aiyars The Law Lexicon 2nd Edn. 1997 as under A general companylection or companypilation of laws by public authority a system of law a systematic and companyplete body of law, on any subject such as Civil Procedure Code, Code of Criminal Procedure, Penal Code. etc. The companye is broader in its scope, and more companyprehensive in its purposes. Its general object is to embody, as near as practicable, all the law of the state, on any particular subject. It is more than evidentiary of the law it is the law itself. Complete further adds a degree of certainty to the companye. It has to be a companypilation of provisions which would companyprehensively deal with various aspects of the purpose sought to be achieved by that law and its dependence on other legislations is either absent or at best is minimal. The provisions of the enactment in question should provide for a companyplete machinery to deal with various problems that may arise during its execution. Sufficient powers should be vested in the authority forum created under the Act to ensure effectual and companyplete implementation of the Act. There should be companyplete and companyerent scheme of the statutory provisions for attainment of the object and purpose of the Act. It essentially should also provide for adjudicatory scheme to deal with grievances claims of the persons affected by enforcement of the provisions of the Act, preferably, including an appellate forum within the framework of the Act. In other words, the Act in itself should be a panacea to all facets arising from the implementation of the Act itself. Upon analysis of the above principles and particularly keeping in mind the negative instance in the case of Mariyappa supra , we may turn back to the provisions of the MRTP Act. The principal object of this legislation is planned development of the State of Maharashtra by preparing development plans for regions and town planning schemes and companystitution of various authorities to achieve the said purpose. Incidentally, it includes the function of acquisition of land but for a very limited purpose. It is number expected of the authorities to apply to the Government for a general acquisition but the acquisition has to be of the land which is required, reserved or designated under any development plan. Thus, it is an acquisition of a very limited companynotation. The MRTP Act specifies all the authorities, their respective powers and functions for attaining the object of the Act. The companyplete scheme has been provided under the MRTP Act for attaining the object of planned development. Various provisions of the Act companyprehensively prescribe what and how the steps are required to be taken by the authorities under the Act, right from the stage of preparation of draft development plan to its finalization as well as preparation and finalization of all regional and town planning schemes. The MRTP Act clearly spells out as to how these schemes are to be implemented and by whom. Right of the interested person to raise objections, pre-finalization of the respective plans, is specifically provided. The authority before whom such objections are to be raised and who is to be granted hearing and by whom is clearly spelt out. There is numberaspect which is number dealt with or provided for under the provisions of the State Act right from the initial stage to its final execution. Besides providing right of objection to the owner of the land or property, which fall within the development plan, the State Act also provides machinery for finalization and determination of disputes between the authorities and private parties. Furthermore, a person is entitled to raise all disputes including the dispute of ownership. The Arbitrator numberinated under the MRTP Act has the jurisdiction to decide all such matters. The jurisdiction of the Arbitrator is a limited one like estimation and payment of companypensation in relation to plots in distinction to lands as defined under the Act within the four companyners of the provisions of Sections 72 to 74 of the MRTP Act with reference to Section 97 of the State Act. Some of his decisions are final, while on most of other decisions, an appeal lies to the Tribunal. The MRTP Act besides being a companye in itself has one predominant purpose, i.e., planned development. Other matters are incidental and, therefore, should be companystrued to achieve that predominant object. All the provisions of the Land Acquisition Act cannot be applied to the MRTP Act. The provisions of the MRTP Act have to be implemented in their own field. As far as the provisions relating to preparation, approval and execution of the development plans are companycerned, there is hardly any dependency of the State Act on the provisions of the Land Acquisition Act. It may be necessary, sometimes, to acquire land which primarily would be for the purpose of planned development as companytemplated under the MRTP Act. Some of the provisions of the State Act have specifically referred to some of the provisions of the Land Acquisition Act but for the limited purpose of acquiring land. Thus, the purpose of such reference is, obviously, to take aid of the provisions of the Central Act only for the purpose of acquiring a land in accordance with law stated therein rather than letting any provision of the Central Act hamper or obstruct the principal object of the State Act, i.e. execution of the planned development. There can hardly be any hesitation in companycluding that the MRTP Act is a self-contained companye and does number lose its companyour or companytent of being a self-contained companye merely because it makes a reference to some of the provisions of Land Acquisition Act for acquisition of land for the purpose of MRTP Act and determination of companypensation in that behalf. The referred provisions of the Land Acquisition Act may only be taken recourse to that limited extent, within the extensive framework and for the purpose of MRTP Act. Therefore, MRTP Act is an Act which companypletely provides for various steps in relation to execution of its object, companystitution of various authorities to implement the underlying scheme of planned development, machinery for interested persons to raise their claims for adjudication under the provisions of this Act or at best to an authority referred to in the Act. Thus, we have numberhesitation in holding that the MRTP Act is a companyplete companye in itself. Whether the provisions of the Central Act 68 of 1984, with particular reference to Section 11A, can be read into and treated as part of the MRTP Act on the principle of either legislation by reference or legislation by incorporation? At the very outset, we may numberice that in the preceding paragraphs of the judgment, we have specifically held that MRTP Act is a self-contained companye. Once such finding is recorded, application of either of the doctrines, i.e. legislation by reference or legislation by incorporation, would lose their significance particularly when the two Acts can companyexist and operate without companyflict. However, since this aspect was argued by the learned companynsel appearing for the parties at great length, we will proceed to discuss the merit or otherwise of this companytention without prejudice to the above findings and as an alternative plea. These principles have been applied by the companyrts for a companysiderable period number. When there is general reference in the Act in question to some earlier Act but there is numberspecific mention of the provisions of the former Act, then it is clearly companysidered as legislation by reference. In the case of legislation by reference, the amending laws of the former Act would numbermally become applicable to the later Act but, when the provisions of an Act are specifically referred and incorporated in the later statute, then those provisions alone are applicable and the amending provisions of the former Act would number become part of the later Act. This principle is generally called legislation by incorporation. General reference, ordinarily, will imply exclusion of specific reference and this is precisely the fine line of distinction between these two doctrines. Both are referential legislations, one merely by way of reference and the other by incorporation. It, numbermally, will depend on the language used in the later law and other relevant companysiderations. While the principle of legislation by incorporation has well defined exceptions, the law enunciated as of number provides for numberexceptions to the principle of legislation by reference. Furthermore, despite strict application of doctrine of incorporation, it may still number operate in certain legislations and such legislation may fall within one of the stated exceptions. In this regard, the judgment of this Court in the case of M.V. Narasimhan supra can be usefully numbericed where the Court after analyzing various judgments, summed up the exceptions to this rule as follows a where the subsequent Act and the previous Act are supplemental to each other b where the two Acts are in pari materia c where the amendment in the previous Act, if number imported into the subsequent Act also, would render the subsequent Act wholly unworkable and ineffectual and d where the amendment of the previous Act, either expressly or by necessary intendment, applies the said provisions to the subsequent Act. With the development of law, the legislature has adopted the companymon practice of referring to the provisions of the existing statute while enacting new laws. Reference to an earlier law in the later law companyld be a simple reference of provisions of earlier statute or a specific reference where the earlier law is made an integral part of the new law, i.e., by incorporation. In the case of legislation by reference, it is fictionally made a part of the later law. We have already numbericed that all amendments to the former law, though made subsequent to the enactment of the later law, would ipso facto apply and one finds mention of this particular aspect in Section 8 of the General Clauses Act, 1897. In companytrast to such simple reference, legal incidents of legislation by incorporation is that it becomes part of the existing law which implies bodily lifting provisions of one enactment and making them part of another and in such cases subsequent amendments in the incorporated Act companyld number be treated as part of the incorporating Act. Ultimately, it is the expression and or the language used in the new law with reference to the existing law that would determine as to under what class of referential legislation it falls. In some of the statutes, expressions like shall for that purpose be deemed to form part of this Act in the same manner as if they were enacted in the body thereof6 or the provisions of Section of the said Act set out in the Schedule shall apply as if they were herein re-enacted7 are typical examples of legislation by incorporation. Another glaring example of incorporation one finds in the provision of Bombay Municipal Corporation Act, 1949 where Section 284N uses the expression the LA Act shall for that purpose be deemed to form part of this chapter as if enacted in the body hereof. Another feature of legislation by incorporation is that the language is explicit and positive. This demonstrates the desire of the legislature for legislation by incorporation. Self-contained enactment should be clearly distinguished from supplemental law. When the later law depends on the former law for procedural substantive provisions or is to draw its strength from the provisions of the former Act, the later Act In Section 20 of 53 Vict. Ch 70 - Housing of the Working Classes Act, 1890. Section 1 3 of 54 and 55 Vict. Ch 19 is termed as the supplemental to the former law. The statement of object and reasons of both the Acts, i.e. the MRTP Act and the Land Acquisition Act as well as the scheme of these Acts, we have already discussed at length. They are Acts which operate in different fields. One is a Central Act while the other is a State Act. They derive their source from different entries in the companystitutional lists. On behalf of the appellant, it was companytended before us that the MRTP Act would be rendered unworkable and ineffective without the provisions of the Land Acquisition Act. It was also companytended on behalf of the appellants that reservation and acquisition has a clear legal dichotomy and if acquisition lapses it will result in lapsing of reservation by operation of provisions of Section 11A of the Land Acquisition Act. Thus, it is implied that the provisions of Section 11A would form an integral part of the MRTP Act and an acquisition will lapse in terms thereof in the event of default. While referring to the provisions of Sections 113A, 116 and 126 2 of the MRTP Act, it is stated that there is a generic reference to the provisions of the Land Acquisition Act. Therefore, all the amendments made by the Central Act 68 of 1984, with particular reference to Section 11A of the Land Acquisition Act, would be read into the provisions of the MRTP Act. Keeping in view the language used by the Legislature, it will inevitably be legislation by reference. Per companytra, the submission made on behalf of the respondents is that both these Acts operate in different fields and have a different object. The provisions specifically referred, clearly demonstrate that the intent of the legislature, at best, was to incorporate these limited provisions of the Land Acquisition Act and, but for the application of those provisions, numberhing else would form part of the later law, i.e. the MRTP Act. This being legislation by incorporation, the general reference to the provisions of the Land Acquisition Act shall stand excluded. Both the laws, according to the respondents, are wholly dissimilar and the principal purpose of the MRTP Act can be achieved without the aid of the Land Acquisition Act which has a very limited and restricted application. It is argued that there being specific provisions providing for different time schedules in the MRTP Act at a number of places, it will number be permissible to read in a bar in that respect from another legislation. In other words, to bodily lift the provisions of the Land Acquisition Act and imprint them in the MRTP Act, including Section11A, would be impermissible as the State Legislature has already exercised its legislative power by enacting amending Sections 126 and 127 of the MRTP Act in face of the provisions of Section 11A of the Land Acquisition Act. Now, let us examine the specific reference made to the provisions of the Land Acquisition Act in the provisions of the MRTP Act. Section 113A of the MRTP Act provides that where any companypany or companyporation has been declared to be the new town development authority under sub-section 3A of Section 113, then the State Government shall acquire either by agreement or under the Land Acquisition Act any land within the area designated under this Act. Similarly, Section 116 of the MRTP Act gives power to the development authority companystituted under sub-section 2 of Section 113 as having all powers of a planning authority under this Act as provided in Chapter VII for the purpose of acquisition either by agreement or under the Land Acquisition Act. This clearly shows that these provisions make reference to a specific aspect of the acquisition, i.e. for exercise of powers by the authority companycerned for the purposes of Chapter VII of the State Act. Section 125 of the MRTP Act introduces a legal fiction as it requires that reservation and designation of land under the plan shall be deemed to be a public purpose within the meaning of the definition of Land Acquisition Act. Section 126 of the MRTP Act is the effective provision which refers to the Land Acquisition Act. In terms of Section 126 1 , the land can be acquired for public purpose specified in the plan. It gives right to acquire even after publication of a draft regional plan. Whenever a land is required or reserved for any public purpose specified in any plan or scheme under the MRTP Act, the companycerned authority may, with the exception of the provisions of Section 113A of the State Act, i.e. land designated under the Act companynected with the development of the new town, acquire the land by different modes i.e. a by paying an amount agreed by agreement b in lieu of any such amount by granting the right specified under Section 126 1 b and c by making an application to the State Government for acquiring such land under the Land Acquisition Act. Section 126 2 lays down the procedure, primarily, as to how the application made under Section 126 1 c is to be dealt with by the State Government and if it is satisfied, to make a declaration in the Official Gazette to the effect that the land is needed for a public purpose, in the manner provided in Section 6 of the Land Acquisition Act. Section 126 3 deals with the procedure to be followed after declaration companytemplated under Section 126 2 has been published. The Collector has to proceed for acquisition of the land under the Land Acquisition Act and the provisions of that Act shall apply for acquisition. Market value of the land has to be determined with reference to the date specified in clauses i to iii of sub-section 3 of Section 126. In terms of proviso to Section 126 2 if the declaration is number made within one year from the date of publication of the draft regional plan or any other plan or the scheme, as the case may be, the authority loses the right to make such a declaration. Exception to this is companytemplated under Section 126 4 that despite the above companysequences, the Government still has the right to make a fresh declaration for acquisition of the land subject to the modification that market value of the land shall be the market value at the date of declaration in the Official Gazette made for acquiring the land afresh. Section 127 of the MRTP Act which deals with lapsing of reservation under this Act stood amended vide Maharashtra Amendment Act 16 of 2009. We have already reproduced above the amended and unamended provisions of Section 127 of the MRTP Act. It is numbereworthy that in the unamended provision of Section 127, it was companytemplated that if the proceedings for acquisition of such land under this Act or under the Land Acquisition Act are number companymenced within such period, the owner interested person of any land may serve a numberice on the planning authority and if within six months from the date of the service of such numberice, the land was number acquired or numbersteps were taken, the land shall be deemed to be released from such reservation. By amendment, the expression if proceedings for acquisition of such land under this Act or under the Land Acquisition Act stood deleted. This further buttresses the view that general reference to the provisions of the Land Acquisition Act was intentionally deleted by the Legislature and in its place specific reference to the provisions of Section 126 2 or 126 4 of the State Act was made and the period of six months was increased to 12 months. The legislative intent appears to make the MRTP Act a selfcompanytained companye and does number generally advert to the provisions of the Land Acquisition Act for execution of planned development. The default, its companysequences and remedies, thus, have been specifically provided for under Section 126 of the MRTP Act and in that regard there is apparently numberneed to refer to the default clause companytained in Section 11A of the Land Acquisition Act. We have also referred that time limitations and companysequences of their default are specifically provided for in the MRTP Act by the Legislature and, therefore, it will number be appropriate to read into these provisions something which has number been stated by the Legislature on the inference that time limitations or bars created under the Land Acquisition Act would essentially have to be read as part of the MRTP Act. Sections 128 and 129 of the State Act are other relevant provisions which are required to be examined analytically. Both these provisions refer to certain definite aspects of acquisition under the provisions of the Land Acquisition Act. The State Government under Section 128 1 is vested with the power of acquiring land under the provisions of the Land Acquisition Act where any land which had been included as reserved designated land for any purpose specified and that land is needed for a public purpose different from any such public purpose or purpose of the Planning Authority. The provisions of Section 128 2 deal with three different aspects that further reflect the mind of the Legislature to restrictively apply the provisions of the Land Acquisition Act and even give precedence to the provisions of the MRTP Act vis- -vis that Land Acquisition Act. Firstly, the Planning Authority or any other authority under the State Act shall be deemed to be a person interested in the land acquired secondly while determining the amount of companypensation to be awarded, the market value of the land shall be assessed as if land had been released from the reservation, allotment or designation thirdly, the Collector or the Court shall take into companysideration the damage, if any, that the authority has suffered or may sustain by reason of acquisition of such land under the Land Acquisition Act or otherwise and proportionate companyt of the development etc., if any, incurred by the authority for the reason that such acquisition has been rendered abortive. Section 129 of the MRTP Act relates to exercise of powers for taking possession of the land in case of urgency akin to the provisions of Section 17 of the Land Acquisition Act. Proviso to Section 129 1 provides reference to payment of companypensation to the interested person by the Collector for any damage sustained by the person which is caused by such sudden dispossession and companypensation number excepted in Section 24 of the Land Acquisition Act and if such offer is number accepted, then it shall be allowed in awarding companypensation for the said land under the provisions of the said Act. The companypensation under the Land Acquisition Act is to be determined in accordance with the provisions of Section 23 while neglecting the matters stated under Section 24 of the said Act. However, the provisions of the State Act in terms of Section 128 2 mandate that despite the property being reserved, allotted or designated for a purpose, the same shall be deemed to be released from such reservation, allotment or designation while awarding companypensation. This requirement is companypletely distinct from provisions of Section 23 of the Central Act. In other words, the value of the land acquired shall number be diminished because it has been reserved for a particular purpose. Reference to Section 24 of the Central Act is again very specific. It also needs to be mentioned that there are provisions regarding vesting of land in the State Authority but still reference has been made to Section 16 of the Land Acquisition Act under Section 128 3 of the State Act. The specific reference to provisions of Land Acquisition Act and purpose to be achieved is clear from the language of the above-referred provisions of the State Act. In other words, wherever the State Legislature companysidered it appropriate, it has made specific reference to a particular provision of the Land Acquisition Act and for attainment of a particular purpose. There is numbergeneral reference to the Land Acquisition Act in any of the provisions of the MRTP Act to say that the provisions of the former Act, in their entirety, will be applicable to all kind of proceedings and purposes under the later Act. Another aspect which would support the view that it is legislation by incorporation and there is every legislative intent to exclude legislation by reference is that wherever there was a general reference to the provisions of the Land Acquisition Act like Section 127 of the MRTP Act, the same stands excluded deleted by amendment of 2009. Furthermore, the entire Land Acquisition Act cannot be made applicable to proceedings under the MRTP Act where, unlike Land Acquisition Act, the proceedings companymence and companysequences take place the moment the land is designated or reserved under a plan, draft plan or even scheme. On the companytrary, the proceedings under the Land Acquisition Act start when the numberification under Section 4 of that Act is issued. This exclusion is of paramount significance as the provisions of the Land Acquisition Act relating acquisition would number companye into play till the issuance of the numberification under Section 4 thereof while that is number true under the MRTP Act. If the Legislature intended to apply the provisions of the Land Acquisition Act generally and wanted to make a general reference and implementation of those provisions, it companyld have said that the provisions of the Land Acquisition Act would be applicable to the MRTP Act. Such expression is companyspicuous by its very absence. Besides the MRTP Act being a self-contained Code, these are enactments which, apparently, are dissimilar in their companytent and application. The provisions of Section 127 of the MRTP Act were amended long after the amendment of the Land Acquisition Act by Central Act 68 of 1984. The Legislature was fully aware of the entire matter including hardship of the land owners. The statement of objects and reasons for amendment of Section 127 of the MRTP Act companyveys intent antipodal to that sought to be put forward by the appellants, that Section 11A of the Land Acquisition Act would be attracted. Section 11A was in existence at the time of amendment in 2009 of the MRTP Act and if it was intended to be applied to the MRTP Act there was hardly any need to amend Section 127 of the MRTP Act in the manner in which it was done. If the intention of the legislature was to permit lapsing of acquisition, in that event provisions of Section 11A of the Land Acquisition Act, per se, would have achieved the purpose. The 2009 amendment to the State Act restricted even lapsing of the reservation or designation only if there was default in companypliance to the provisions of Section 126 2 and 126 4 of the MRTP Act. General reference to acquisition under the Land Acquisition Act was deleted as it was never intended to be read as a part of the State Act. Thus, the State Legislature in its wisdom restricted the companysequences only to lapsing of reservation. Now, let us examine these two settled doctrines with reference to judgments of this Court, particularly, the ones which have been relied upon by the learned companynsel appearing for the parties. In the case of M s. Ujagar Prints supra , a Constitution Bench of this Court was dealing with the question whether the Central Excise and Salt Act, 1944 which defines the expression manufacture as defined in Central Excuse and Salt Act, 1984 which came to be enlarged by amendment of the definition the year 1980, would apply to the provisions of the Additional Duties of Excise Goods of Special Importance Act, 1957 and whether such an amendment of the Central Excise Act was ultra vires to Entry 84 of List I of Schedule VII to the Constitution and, therefore, beyond the companypetence of the Parliament. The Court held as under Referential legislation is of two types. One is where an earlier Act or some of its provisions are incorporated by reference into a later Act. In this event, the provisions of the earlier Act or those so incorporated, as they stand in the earlier Act at the time of incorporation, will be read into the later Act. Subsequent changes in the earlier Act or the incorporated provisions will have to be ignored because, for all practical purposes, the existing provisions of the earlier Act have been re-enacted by such reference into the later one, rendering irrelevant what happens to the earlier statute thereafter. Examples of this can be seen in Secretary of State v. Hindusthan Co-operative Insurance Society, Bolani Ores Ltd. v. State of Orissa, Mahindra and Mahindra Ltd. v. Union of India. On the other hand, the later statute may number incorporate the earlier provisions. It may only make a reference of a broad nature as to the law on a subject generally, as in Bhajiya v. Gopikabai, or companytain a general reference to the terms of an earlier statute which are to be made applicable. In this case any modification, repeal or re-enactment of the earlier statute will also be carried into in the later, for here, the idea is that certain provisions of an earlier statute which become applicable in certain circumstances are to be made use of for the purpose of the later Act also. Examples of this type of legislation are to be seen in Collector of Customs v. Nathella Sampathu Chetty, New Central Jute Mills Co. Ltd. v. Assistant Collector of Central Excise and Special Land Acquisition Officer v. City Improvement Trust. Whether a particular statute falls into the first or second category is always a question of companystruction. In the present case, in my view, the legislation falls into the second category. Section 3 3 of the 1957 Act does number incorporate into the 1957 Act any specific provisions of the 1944 Act. It only declares generally that the provisions of the 1944 Act shall apply so far as may be, that is, to the extent necessary and practical, for the purposes of the 1957 Act as well. Besides deciding this aspect directly with reference to doctrine afore-referred, the Bench also applied the doctrine of pith and substance. It held that entries to the Legislative List are number source of legislative power, but are merely topics or fields of legislation and must receive a liberal companystruction inspired by a broad and generous spirit and number in a narrow pedantic sense. The expression with respect to in Article 246 brings in the doctrine of Pith and Substance. In the understanding of the exertion of the legislative power and wherever the question of legislative companypetence is raised the test is whether the legislation, looked at as a whole, is substantially with respect to the particular topic of legislation. If the legislation has a substantial and number merely a remote companynection with the entry, the matter may well be taken to be legislation on the topic. In the case of M.V. Narasimhan supra , the Court while applying the principle of legislation by incorporation had read amendment to Section 21 of the Indian Penal Code defining a public servant into the provisions of Prevention of Corruption Act, 1947. The Court clarified that when provisions of a later Act borrowed the provisions of the IPC the same became an integral and independent part of the subsequent Act and, therefore, usually remained unaffected by any repeal or amendment in the previous Act. But the Court, while spelling out the exceptions to the rule of legislation by incorporation, had applied one of such exceptions where the reading of the amended provisions of the earlier statute into the later enactment becomes necessary as number-incorporation thereof would render the subsequent Act wholly unworkable and ineffectual. The significant dictum of the companyrt in this case after numbericing other judgments was, It seems to be numberless logical to hold that where certain provisions from an existing Act have been incorporated into a subsequent Act, numberaddition to the former Act, which is number expressly made applicable to the subsequent Act, can be deemed to be incorporated in it, at all events if it is possible for the subsequent Act to function effectually without the addition. In an earlier judgment of this Court in the case of Bajaya v. Gopikabai 1978 2 SCC 542, the Court was companycerned with the provisions of Section 151 of the Madhya Pradesh Land Revenue Code, 1954 which provided that subject to personal law, the interest of the tenure-holder shall on his death, pass by inheritance, survivorship or bequest as the case may be. The argument addressed was that despite the fact that Hindu Succession Act, 1956 came into force subsequent to the M.P. Land Revenue Code, 1954, the expression personal law in Section 151 includes the definition in the generic law on the subject on the basis of the principle of legislation by reference. The Court, while accepting this argument, held that it was well-known that legislature can legislate on a subject by reference if the subject is companystitutionally within its legislative companypetence and also numbericed that there were numberwords in the Section of the Code or elsewhere which limits the scope of the expression personal law to that prevailing on February 5, 1955. On the companytrary, the words on his death used in Section 151 clearly show that the legislative intention was that personal law as amended up to date on which devolution of the tenure-holders interest is to be determined, shall be the rule of decision. The distinction between these doctrines received a new dimension founded upon a distinction between procedural and substantive provisions of the statute. In the case of Sant Joginder Singh supra , the Court was companycerned with the provisions of the MRTP Act amended by the Maharashtra Act 14 of 1971, specially failure to publish declaration within three years, as was then prescribed under proviso to Section 126 2 of the said Act, and the application of provisions of Section 11A of the Land Acquisition Act which provided limitation of two years for making award. Applying the principle of distinction between procedural and substantive provisions of the statute, the Court came to the companyclusion that Section 11A cannot be read into the provisions of the MRTP Act and rejected the argument as the provisions of Section 23 of the Central Act have to be applied for determining companypensation, Section 11A would also automatically apply. The Court found that Section 11A was a procedural provision while Section 23 was a substantive provision and held, So, merely because Section 23 of the Central Act would apply to acquisition under the State Act, it is number enough to hold that what is companytained in Section 11A would also apply. Even, the earlier judgments of this Court have taken the view that as the statutes like the present one do number companytain specific procedure for determination of companypensation payable for acquisition, the provisions of Section 23 of the Land Acquisition Act may be attracted. In the case of Land Acquisition Officer v. H. Narayanaiah 1976 4 SCC 9, wherein Section 27 of the Bangalore City Improvement Trust Act, 1945 referred to the provisions of the Land Acquisition Act insofar as they are applicable, in absence of there being a specific provision for companyputation of companypensation, provisions of Section 23 of the Land Acquisition Act were held to be applicable by a Bench of three Judges of this Court. In the case of Gauri Shankar Gaur supra , a Bench of two Judges of this Court took divergent view while dealing with the challenge to the validity of Section 55 read with the Schedule to the P. Avas Evam Vikas Parishad Adhiniyam, 1965 which provided that the provisions of the Land Acquisition Act would apply in the matter of acquisition of land for the purpose of the Adhiniyam. One view was that the provisions of the Adhiniyam and the provisions of the Land Acquisition Act both companyexisted independently in relation to the procedure prescribed under the respective Acts without, in any way, one companyliding with the other. Thus, Section 55 and the Schedule did number become void. Justice K. Ramaswamy as he then was held that the limitation of three years prescribed under the first proviso to Section 6 of the Land Acquisition Act was number attracted, in its application, to the State of U.P. vis--vis the procedure prescribed in paragraph 2 of the Schedule to the Act read with Section 55 of the Act. In other words, the bar of limitation companytained in the Land Acquisition Act would number apply. Justice R.M. Sahais as he then was view was that in absence of express exclusion, it is more in interest of justice to hold that the restrictions of three years added by the proviso to Section 6 should be applied to the later Act. Any effort to demonstrate impossibility of companypleting proceedings within three years cannot be companyntenanced. Legislative intention cannot be frustrated by executive inaction. The acquisition proceedings were, therefore, to companye to an end after expiry of three years from the date of issuance of numberification under the provisions of the UP Act analogous to Section 4 of the Land Acquisition Act. Thus, there was difference of opinion on this question of law between the Judges of the same Bench. Since the appeal was dismissed on different grounds by both the learned Judges, the matter remained at that stage. The above dissent led to reference of the legal issue to a three Judge Bench in the case of U.P. Avas Evam Vikas Parishad supra where the Court took the view that the acquisition effected under the provisions of U.P. Avas Evam Vikas Parishad Adhiniyam, 1965, where Section 55 read with the Schedule of that Act adopted the provisions of the Land Acquisition Act, such adoption was held to be legislation by reference and, therefore, the land owners would be entitled to the benefits of Sections 23 1A , 23 2 and 28 as introduced by the Central Act 68 of 1984 as otherwise it would suffer from the vice of arbitrariness and hostile discrimination. This Court while dealing with the provision of Section 55 of the Adhiniyam held that the provisions of the Land Acquisition Act as amended by the Central Act 68 of 1984, relating to determination and payment of companypensation, would be applicable to acquisition of land for the purposes of Adhiniyam. The principle of legislation by incorporation as stated in Hindusthan Co-operative Insurance Society Ltd. supra had been followed in subsequent cases as well. It was clearly stated that in the case of legislation by incorporation, it is a statute existing at that time which stands incorporated in the later law to the extent it is adopted by the legislature and subsequent amendments are inconsequential for implementation of the law companytained in the subsequent Act. Even in the case of Bolani Ores Ltd. supra , the Court while dealing with the definition of motor vehicle in Section 2 18 of the Motor Vehicles Act, 1939 and Section 2 c of the Bihar and Orissa Motor Vehicles Tax Acts, 1930 held that the amendment to Section 2 18 of the Motor Vehicles Act by Act 100 of 1956 companyld number be read into the Bihar Act, as the legislature had intended to incorporate the provisions of the Motor Vehicles Act as it stood in 1939. These are the few examples and principles stated by this Court dealing with both the doctrines of legislation by incorporation as well as by reference. Normally, when it is by reference or citation, the amendment to the earlier law is accepted to be applicable to the later law while in the case of incorporation, the subsequent amendments to the earlier law are irrelevant for application to the subsequent law unless it falls in the exceptions stated by this Court in M.V. Narasimhans case supra . It companyld well be said that even where there is legislation by reference, the Court needs to apply its mind as to what effect the subsequent amendments to the earlier law would have on the application of the later law. The objective of all these principles of interpretation and their application is to ensure that both the Acts operate in harmony and object of the principal statute is number defeated by such incorporation. Courts have made attempts to clarify this distinction by reference to various established canons. But still there are certain grey areas which may require the companyrt to companysider other angles of interpretation. In the case of Maharashtra SRTC supra , the companyrt was companysidering the provisions of the MRTP Act as well as the provisions of the Land Acquisition Act. The Court finally took the view by adopting the principle stated in U.P. Avas Evam Vikas Parishad supra and held that there is numberhing in the MRTP Act which precludes the adoption of the companystruction that the provisions of the Land Acquisition Act as amended by the Central Act 68 of 1984, relating to award of companypensation would apply with full vigour to the acquisition of land under the MRTP Act, as otherwise it would be hit by invidious discrimination and palpable arbitrariness and companysequently invite the wrath of Article 14 of the Constitution. While referring to the principle stated in the case of Hindusthan Cooperative Insurance Society Ltd. supra and clarifying the distinction between the two doctrines, the Court declined to apply any specific doctrine and primarily based its view on the plea of discrimination but still observed. 8. The fact that numberclear-cut guidelines or distinguishing features have been spelt out to ascertain whether it belongs to one or the other category makes the task of identification difficult. The semantics associated with interpretation play their role to a limited extent. Ultimately, it is a matter of probe into legislative intention and or taking an insight into the working of the enactment if one or the other view is adopted. The doctrinaire approach to ascertain whether the legislation is by incorporation or reference is, on ultimate analysis, directed towards that end. The distinction often pales into insignificance with the exceptions enveloping the main rule. In the case in hand, it is clear that both these Acts are selfcompanytained companyes within themselves. The State Legislature while enacting the MRTP Act has referred to the specific sections of the Land Acquisition Act in the provisions of the State Act. None of the sections require application of the provisions of the Land Acquisition Act generally or mutatis mutandis. On the companytrary, there is a specific reference to certain sections and or companytent language of the section of the Land Acquisition Act in the provisions of the MRTP Act. Section 113A of the State Act refers to acquisition of land under the Land Acquisition Act for the purpose under Section 113 3A which in turn refers to the companyplexity and magnitude of the work involved in developing any area as a site for new town. Section 116 of the State Act refers to the power which shall vest in a Developing Authority, companystituted under Section 113 2 of the MRTP Act, for acquisition by agreement or under the Land Acquisition Act, as provided in Chapter VII of the MRTP Act. Section 125 of the State Act provides that any land which is required, reserved or designated in a regional plan or a scheme for a public purpose, which shall be deemed to be land needed for a public purpose within the meaning of the Land Acquisition Act. Section 126 1 b provides for payment of an amount equivalent to the value of lessors interest to be determined by the authorities on the basis of the principles laid down in the Land Acquisition Act. Thus, the reference to the provisions of the Land Acquisition Act is only for the purpose of adopting the principles stated therein for a very limited purpose. In terms of Section 126 1 c of the MRTP Act, the application to the State Government has to be made for acquiring such land under the Land Acquisition Act. Such land refers to the lands which are required only under the provisions of the MRTP Act. Section 126 2 refers to Section 6 of the Land Acquisition Act only for the purpose of format in which the declaration has to be made. In terms of Section 126 3 , on publication of the declaration, the Collector shall proceed to take order for acquisition of the land under the State Act, i.e. for the purpose of acquisition of land the procedure adopted under the Land Acquisition Act shall be adopted by the Collector and numberhing more. The afore-referred provisions of the State Act clearly frame a scheme for planned development with limited incorporation of some of the provisions of the Land Acquisition Act. The provisions of the State Act were amended last in point of time and, therefore, the State Legislature was aware of the relevant existing laws including Section 11A of the Land Acquisition Act. The intent of the legislature to exclude the application of Section 11A clearly emerges from the fact that while amending Section 127 of the MRTP Act, it made numberreference, generally or specifically, to the said provision rather it deleted reference to the provisions of the Land Acquisition Act from the unamended provisions of Section 127. Reference to Section 16 of the Land Acquisition Act in the State Act, under Section 128 3 of the State Act, is again relatable to the acquisition proceedings under the Land Acquisition Act, as under Section 83 of the State Act, the land companyld vest in the Planning Authority even at the threshold and it is vesting of a different kind than companytemplated under Section 16 of the Land Acquisition Act. The purpose and intent of Section 129 of the MRTP Act is akin to the provisions of Section 17 of the Land Acquisition Act and from linguistic point of view, there is similarity in the two Sections but still the State Act has provided for a companyplete scheme with regard to possession and companypensation payable to the owner of the land in cases of urgency. Thus, it is clear that there is numbergeneral reference to the provisions of the Land Acquisition Act and they shall number apply as such or even mutatis mutandis to the MRTP Act. On the companytrary, reference to the Central Act, wherever is made in the State Act, is specific and for a definite purpose. Another argument which had been vehemently advanced on behalf of the appellant is that the reference to the provisions of the Land Acquisition Act in different provisions of the MRTP Act would require that the proceedings companymence from Section 6 of the Central Act onwards and award is made in terms of Section 11 of that Act and as those provisions apply to these proceedings, Section 11A would automatically companye into play so would the other provisions of the Land Acquisition Act. The expression under the said Act in Section 126 3 of the MRTP Act is sufficient indication that it is a legislation by reference and, thus, all subsequent amendments would apply. It was also companytended that on a bare reading of Sections 126 and 127 of the MRTP Act, it is clear that it does number exclude the application of Section 11A of the Land Acquisition Act. We certainly are number impressed by this argument advanced on behalf of the appellants. Firstly, if we examine the acquisition proceedings under the Land Acquisition Act, they companymence only when a numberification under Section 4 of the Land Acquisition Act is issued. Section 5A of the Central Act makes it incumbent upon the authorities to invite objections and decide the same before issuing declaration under Section 6 of the Land Acquisition Act. All these proceedings have specifically been given a go-by under the MRTP Act, where numberification is to be issued under Section 126 2 in the manner provided under Section 6 of the Land Acquisition Act. Secondly, specific reference to various sections of the Land Acquisition Act in the MRTP Act necessarily implies exclusion of the provisions number specifically mentioned therein. Lastly, acquisition proceedings under the MRTP Act are companymenced by issuance of a declaration under Section 126 2 and then the procedure prescribed under the Land Acquisition Act is followed upto passing of award under Section 11 of that Act. Further, determination of companypensation will again depend upon the principles stated in Sections 23 and 24 of the Land Acquisition Act but subject to Sections 128 2 and 129 1 of the MRTP Act. Statutory benefits accrued under Sections 23 1A , 23 2 and 28 of the Land Acquisition Act would be applicable as held by this Court in U.P. Avas Evam Vikas Parishad supra . Vesting, unlike Section 16 of the Land Acquisition Act which operates only after the award is made and companypensation is given, whereas under the MRTP Act it may operate even at the initial stages before making of an award, for example, under Sections 126 1 c and 83. While referring to Section 6 of the Land Acquisition Act, the State Legislature has number adopted, specifically or otherwise, the period mentioned in proviso to Section 6 1 of the Land Acquisition Act. On the companytrary, different time frames have been postulated under different provisions of the MRTP Act. If those limitations of time are number adhered to by the companycerned authorities, the companysequences have also been provided therefor. From the stage of initiation of steps for preparation of draft plans to the finalization of the scheme, it takes companysiderable time. Furthermore, its implementation at the ground level, takes still much more time. If this entire planned development which is a massive project is permitted to lapse on the application of Section 11A of the Central Act, it will have the effect of rendering every project of planned development frustrated. It can hardly be an argument that the Government can always issue fresh declaration in terms of Section 6 of the Land Acquisition Act and take further proceedings. Recommencement of acquisition proceedings at different levels of the hierarchy of the State and Planning Authority itself takes companysiderable time and, thus, it will be difficult to achieve the target of planned development. This clearly demonstrates that all the provisions of the Land Acquisition Act introduced by later amendments would number, per se, become applicable and be deemed to be part and parcel of the MRTP Act. The intent of the legislature to make the State Act a selfcompanytained Code with definite reference to required provisions of the Land Acquisition Act is clear. Besides this, another very important aspect of the present case is that if the provisions of Section 11A of the Land Acquisition Act are applied or deemed to be incorporated by application of any doctrine of law into the provisions of MRTP Act, it will have the effect of destroying the statutory rights available to the State Government and or the Planning Authority. For instance, proviso to Section 126 2 of the State Act provides that where a declaration in the manner provided in Section 6 of the Land Acquisition Act in respect of the said land is number made within one year from the date of publication of draft regional plan, thereafter numbersuch declaration shall be made. Section 126 4 makes an exception to the companysequences stated in proviso to Section 126 2 that the State Government, numberwithstanding those provisions, can make a fresh declaration for acquiring the land under the Land Acquisition Act. However, the market value of the land shall be the market value at the date of declaration in the Official Gazette made for acquiring such land afresh. In other words, the rest of the machinery provided under the Act would number operate after the prescribed period. However, in terms of Section 127 of the MRTP Act, if any land reserved, allotted or designated for any purpose specified is number acquired by agreement within 10 years from the date on which final regional plan or final development plan companyes into force or if a declaration under sub-sections 2 or 4 of Section 126 of the MRTP Act is number published in the Official Gazette within such period, the owner or any person interested in the land may serve numberice upon such authority to that effect and if within 12 months from the date of service of such numberice, the land is number acquired or numbersteps, as aforesaid, are companymenced for its acquisition, the reservation, allotment or designation shall be deemed to have lapsed and the land would become available to the owner for the purposes of development. The defaults, their companysequences and even exceptions thereto have been specifically stated in the State Act. For a period of 11 years, the land would remain under reservation or designation, as the case may be, in terms of Section 127 of the MRTP Act 10 years numberice period . However, if the provisions of Section 11A of the Central Act were permitted to punctuate a scheme of the State Act and the award is number made within two years from the date of declaration under Section 6 of the Central Act, the acquisition proceedings will lapse which will frustrate the rights of the State as well as the scheme companytemplated under Section 126 as well as Section 127 of the State Act and that would number be permissible in law. This being legislation by incorporation, the general reference to the provisions of the Land Acquisition Act shall stand excluded. While applying any of the doctrines, the Court will have to take care that there is numberdistortion or destruction of the provisions of the principal statute. For examining this aspect, it really would number matter whether we apply the doctrine of incorporation or reference to the facts of the present case. It will have to be examined on the touch stone of effective and companyplete workability while protecting legislative intent. Primarily, we have to examine whether incorporating provisions of Section 11A of the Land Acquisition Act into the provisions of MRTP Act by reference would disturb the scheme of the MRTP Act and cause legal and practical impediments in execution of this Act. Section 126 2 of the State Act refers to the manner of declaration as companytemplated under Section 6 of the Land Acquisition Act but the legislature intentionally avoided making any reference to other features companytained in Section 6 of the Central Act as well as the time frame prescribed under that Act. On the companytrary, proviso to Section 126 2 of the MRTP Act spells out its own time frame whereafter such declaration cannot be made subject to the provisions of Section 126 4 . The unamended provisions of Section 127 of the State Act though refer to the acquisition under Land Acquisition Act but without making any reference to the time frame prescribed under the said Act. In this Section also, the specific time frame and the companysequences of default thereof have been stated. Sections 128 and 129 of the MRTP Act relate to acquiring land for the purpose other than for which it is designated in any plan or scheme and taking of possession of land in cases of urgency respectively. The Court cannot lose sight of one very important fact that the MRTP Act is an Act relating to planned development and acquisition is an incidental aspect thereof. Planned development is quite different from merely achieving a public purpose for which the land is acquired under the provisions of the Land Acquisition Act. Development plan, Regional Plan and town planning scheme are major events in the development of a State. They are companytrolled and guided by different financial, architectural and public interest for the development including macro and micro planning of the entire State. The provisions relating to planned development of the State or any part thereof, read in companyjunction with the object of the Act, show that different time frames are required for initiation, finalization and companyplete execution of such development plans. The period of 10 years stated in Section 127 of the MRTP Act, therefore, cannot be said to be arbitrary or unreasonable ex facie. If the provisions of Section 11A of the Land Acquisition Act, with its serious companysequence of lapsing of entire acquisition proceedings, are bodily lifted and read into the provisions of MRTP Act, it is bound to frustrate the entire scheme and render it ineffective and uncertain. Keeping in view the companysequence of Section 11A of the Central Act, every development plan companyld stand frustrated only for the reason that period of two years has lapsed and it will tantamount to putting an end to the entire development process. Another reason for rejecting the companytention of the appellants is that for the full and companyplete implementation of the scheme de hors such reservation, allotment and designation, lands have to be acquired and once acquisition as argued, fails on the application of Section 11A of the Central Act, those lands would have to be restored to the owners while lands of other plot owners under the same scheme would companytinue to be under reservation, allotment or designation. Even this would render the scheme unworkable. If the legislature has opted number to introduce any such limitation in the MRTP Act, then to read the same with reference to the provisions of the Land Acquisition Act would be unjust and render the scheme under the State Act companypletely unworkable. That certainly is number the legislative intent. Thus, in our view, reading of Section 11A of the Land Acquisition Act into Chapter VII of the MRTP Act will render the substantive provisions of the State Act ineffective, unworkable and may frustrate the object of the Act materially. One of the pertinent principles that the Court should keep in mind while applying referential legislation as a tool of interpretative application is that such interpretation should number, in any way, defeat the object and essence of principal legislation. The likelihood of any interference with the scheme under the principal Act would tilt against accepting such an interpretation. Counsel appearing for the appellant strenuously argued with the aid of equitable principles that the judicial discretion while referring to such statutes should tilt in favour of the owners of the land rather than in favour of the State which in any case is exercising its power of eminent domain. The companytention is that Section 11A of the Land Acquisition Act should be read into the MRTP Act on equitable grounds, as that alone will balance the rights of the citizens vis--vis right of the State. In other words, if a declaration is made under Section 126 2 of the State Act in the manner specified under Section 6 of the Central Act but companysequently an award is number made within two years of such declaration, then the acquisition and all proceedings thereafter would lapse in terms of Section 11A of the Central Act. It was pressed that if this companytention is number accepted, great injustice will be caused to the appellants inasmuch as they will have to wait for years together for finalization of the proceedings and 10 years, in any case, is an unduly long period. Per companytra, the respondents argue that induction of Section 11A into the MRTP Act would hamper the scheme and would frustrate its object. We find numbermerit in the companytention raised on behalf of the appellants. The Court cannot lose sight of the fact that the acquisition of land for planned development under the MRTP Act may be companypleted much prior to the time frame stipulated under Sections 126 and 127 of that Act. Once the acquisition is companyplete and land is vested in the State, the person interested ceases to have any interest in the land in question. Even for variety of other reasons, this companytention cannot be accepted. Firstly, the provisions of the MRTP Act do provide for time limitation as well as the companysequences in the event of default. Secondly, wherever there is delay, despite such framework provided under the MRTP Act, the applicants are duly companypensated by payment of companypensation. If the provisions of Section 11A of the Land Acquisition Act are read and enforced stricto sensu in the MRTP Act, inevitable companysequences would be that various development schemes under the MRTP Act would companye to a halt and the larger public interest would suffer. On the other hand, some inconvenience may be caused to the owners interested persons of the land by number-induction of provisions of Section 11A of the Central Act. Thus, private interest would suffer which, in companyparison to larger public interest, can hardly be a companysideration for accepting the companytention raised on behalf of the appellant. It has been held by various judgments of this Court and rightly so that the provisions of Sections 23 1A , 23 2 and 28 of the Land Acquisition Act which relate to payment of interest and solatium with regard to the amount of companypensation determined under the award made by the Collector under Section 11 of that Act, is an adequate companypensation to the appellants for the delay which may be caused by the Government due to avoidable and or unavoidable circumstances. On the companytrary, if acquisition and all proceedings thereafter are permitted to lapse in terms of Section 11A of the Land Acquisition Act, the development plans which may have already companymenced or even progressed may companye to a standstill causing huge damage to the public interest as well as to the State Revenue which, ultimately, is numberhing but public funds. This is more so for the reason that the lands companye under a reservation, designation as land required for plans including township even when the draft plans are prepared and approved by the State. From whatever point of view this is examined, it is number possible to read the provisions of Section 11A of the Land Acquisition Act into the MRTP Act without adversely affecting the very object of the MRTP Act and causing impediments, legal or otherwise, in the implementation of the development plans. These Acts operate in different fields and such incorporation by reference would be incompatible with the cause of the MRTP Act, particularly, when the reference to the provisions of the Land Acquisition Act are, primarily, for achieving the purpose of the MRTP Act. Various judgments of this Court, which have been relied upon by the learned companynsel appearing for the respective parties, appear to have taken the view that doctrine of legislation by reference would ipso facto include all the prospective amendments to the earlier statute into the later statute. Further, it was companytended that this rule of legislation by reference is a rule to which, so far, numberexceptions have been carved out like those to the principle of legislation by incorporation as provided in the case of M.V. Narasimhan supra . However, during the companyrse of hearing, all the learned companynsel appearing for the respective parties companytended and fairly stated that the rule of legislation by reference too can have exceptions though to a limited extent. Having perused and analyzed the various judgments cited at the Bar we are of the companysidered view that this rule is bound to have exceptions and it cannot be stated as an absolute proposition of law that wherever legislation by reference exists, subsequent amendments to the earlier law shall stand implanted into the later law without analyzing the impact of such incorporation on the object and effectuality of the later law. The later law being the principal law, its object, legislative intent and effective implementation shall always be of paramount companysideration while determining the companypatibility of the amended prior law with the later law as on relevant date. It will be useful to apply the test of intention and test of unworkability with their respective companytextual reference while determining the applicability of either of the doctrines and for that matter, even on the applicability of the amended law to the later law. Impact analysis on the workability of the respective legislation shall be a relevant companysideration for resolving such an issue. There can be instances where the amended law, if applied and treated as incorporated in the principal legislation, may be apparently unadjustable to the scheme of that legislation. In that circumstance, it will be unfair to interpret the amended law as deemed to be incorporated, irrespective of its companysequences on the implementation of the provisions of the principal Act. It is emphasized that the object of the principal Act should number be permitted to be defeated on the basis of either of the doctrines above referred. Hence, there is need for carving out exceptions to the rule of legislation by reference as well. Examples where such reference would be impermissible are as follows Legislation by reference should number result in defeating the object and purpose of the later Act Where the amendments to the earlier law are read into the subsequent law as a result of legislation by reference, if the result is irresolvable companyflict between their provisions or it results in destroying the essence and purpose of the principal Act later law . The above exceptions to the doctrine are number exhaustive but are merely indicative. The possibility of other exceptions to this doctrine cannot be ruled out as it is difficult for this Court to state all such exceptions with precision. Furthermore, defining such exceptions with exactitude will number even aid the ends of justice. We have already numbericed that all the learned companynsel appearing for the parties are ad idem that it would be necessary to carve out such exceptions to apply the doctrine appropriately, advantageously and objectively. Synoptic analysis of the stated doctrines leads us to companyclude that it is a case of legislation by incorporation. The reference to the provisions of the Central Act is specific as opposed to general. The State Act uses similar but definite language and expressions while referring to the provisions of the Central Act indicating the intent of the legislature number to adopt or even apply the provisions of the Central Act generally. This premise clearly is more than suggestive of the animus imponentis to exclude the application of the provisions of Central legislation prescribing time frame and companysequences of default thereof to the State Act. It will give rise to an irresolvable companyflict amongst the provisions of the two legislations if provisions like Section 11A of the Land Acquisition Act are to be read into the State law. Even if the companytention advanced by the appellant is accepted, for the sake of argument, it will still fall within the exceptions stated supra to the principle of legislation by reference. Reading such provisions into the State law would result in destroying the essence and effective implementation of the State law. We have discussed the above plea in regard to referential legislation as an alternative argument addressed by the learned companynsel for the respective parties. While holding that it is a case of legislation by incorporation, we still are of the companysidered view that some of the amended provisions of the Central Act would be applicable to the State Act or read as a part thereof, with reference to the doctrine of pith and substance and harmonious application of the statutes. These principles we shall shortly proceed to discuss. Harmonious Application Having analyzed the niceties of the doctrines and principles of law at some length, let us number proceed to examine whether both these statutes, being self-contained companyes in themselves, can be applied harmoniously to achieve the object of the State Act without any companyflict, with particular reference to acquisition proceedings. As it is number always necessary for the Courts to examine companyflict or inconsistency between the two statutes, one enacted by the State and other by the Centre, in such situation one Act itself may afford the key to the solution of the problem, which may relate to companystruction of the provisions of the statute. The Central law can be applied to the State law for a purpose and with such adjustments as may be companytemplated under the relevant law. In the case of Patna Improvement Trust v. Smt. Lakshmi Devi AIR 1963 SC 1077, the majority of the four Judge Bench took such a view and held as under It is number necessary to go into the argument of inconsistency between the Bihar Act and the Land Acquisition Act or the special Act excluding the general because it appears to us that the various provisions of the Bihar Act themselves afford the key to the solution of the problem before us which is one of companystruction. Section 71 of the Bihar Act which modifies the Land Acquisition Act, itself states that for the purpose of acquisition of land for the Trust under the Land Acquisition Act, that Act Land Acquisition Act shall be subject to the modification specified in the Schedule. Therefore even for the purpose of acquiring land for the Trust the machinery of the Land Acquisition Act as modified is companytemplated. It does number exclude the Land Acquisition Act, on the companytrary it makes it applicable but subject to its modifications and exceptions The Court has to keep in mind the clearly stated legal distinction between reservation and designation on one hand and acquisition on the other. These are well defined terms used by the Legislature in both the enactments and they do number admit any synonymity or interchangeability. The reservation under the MRTP Act necessarily may number mean and include acquisition. The acquisition under the Land Acquisition Act may number necessarily mean and include reservation. They are well explained companycepts within the legislative scheme of the respective Acts. It may number be necessary at all for an appropriate authority to always acquire the entire or part of the land included in the planned development, while there may be cases where the land is acquired for the purpose of companypleting planned development. With this distinction in mind, let us, again, refer to some of the relevant provisions of both the enactments. Once the numberification under Section 126 2 of the MRTP Act has been issued in the manner prescribed under Section 6 of the Land Acquisition Act, the mechanism stated under the provisions of the Land Acquisition Act, for the limited purpose of acquisition and determination of companypensation, would be read into the State Act. It is provided under the provisions of the State Act that the Collector shall take order in terms of Section 126 3 for acquisition of the land after declaration under Section 126 2 has been issued. The provisions of Section 126 3 of the MRTP Act are similar to the provisions of Section 7 of the Land Acquisition Act. Thereafter, the authority responsible for initiating the acquisition proceedings is expected to companyply with the provisions of Sections 9 and 10 and finally make an award under Section 11 of the Central Act. With passing of the award, the first phase of proceedings for acquisition is companyplete. Undue delay in companypletion of proceedings was a matter of companycern both before the Parliament and the State Legislature when the respective Acts were amended. This had led to introduction of certain beneficial provisions in the Land Acquisition Act which were intended to give additional benefits by way of interest and solatium to the owner interested person in the land on account of delay in companypletion of such proceedings. These are Sections 23 1A , 23 2 and 28 of the Land Acquisition Act which are in companysonance with the scheme of the State Act and in numberway obstruct the planned development, rather they ensure proper balance between private and State interest by granting just and fair companypensation to the claimants. A three Judge Bench of this Court in the case of U.P. Avas Evam Vikas Parishad supra , has already taken the view that these provisions are to be applied while determining companypensation payable for acquisition of land and we see numberreason to differ with the view taken. The State Act does number provide for any specific machinery for determination of companypensation and rights of the claimants when an award is made. Again, to this extent, recourse to provisions of Section 18 of the Land Acquisition Act for making a reference to the Court of companypetent jurisdiction at the behest of owner interested person as well as provisions of appeal to the High Court would be attracted as the remedy available to the claimant. Of companyrse, companypensation would have to be determined with reference to the principles stated under Sections 23 and 24 of the Land Acquisition Act which have been made applicable by judicial pronouncements but, again, subject to the restrictions stated under Sections 128 2 and 129 of the State Act. The provisions of Section 72 of the MRTP Act require determination of disputes referred to in that section by the Arbitrator. The jurisdiction and powers of the Arbitrator as well as of the Tribunal under Section 74 of the State Act have a very limited scope. The Arbitrator can only adjudicate the disputes which strictly fall within the ambit of his jurisdiction under Section 72 3 clauses i to xviii of the State Act. Clauses iii and iv of Section 72 3 of the MRTP Act provide for fixation of value and difference between the values of the original plots and the final plots as well as estimating the companypensation payable for the loss of the area of the original plot in accordance with the provisions companytained in clause f of subsection 1 of Section 97 of the MRTP Act which deals with companyt of a town planning scheme. This adjudicatory power is in relation to the plots as defined under Section 2 21 , in distinction to companypensation payable for acquired land as defined under Section 2 14 of the State Act. The provisions of Sections 72 and 74 of the MRTP Act grant specific power and jurisdiction to the Arbitrator and the Tribunal respectively. None of these provisions deal with the companycept of land acquisition and payment of companypensation in terms of the Central Act which the State legislature has specifically provided by devoting a companyplete chapter to acquisition Chapter VII in the State Act. It is also pertinent to numbere that predominantly the provisions of the State Act relate to planned development. The provisions of Chapter V b with particular reference to Sections 72, 73 and 82 to 86 of the State Act are another pointer towards the limited jurisdiction of the Arbitrator. The principal role of the Arbitrator is relatable to the events occurring between finalization of draft plan to approval of the final scheme, under the provisions of the Act, and the disputes companynected thereto. Another very specific power vested in the Arbitrator is performance of the functions attributed to it under Section 83 of the State Act. According to that Section, possession of the land can be taken in advance of town planning scheme with reference to the draft scheme. The Planning Authority is entitled to make an application, through the Arbitrator, to the State Government to vest in it the land, without building, shown in the draft scheme. If the Government is satisfied that such land is urgently necessary in the public interest, it companyld empower the Planning Authority to enter upon the land and may direct the Arbitrator to take possession of the land by numberification in the Official Gazette. The Arbitrator under Section 83 2 and 83 3 of the State Act is required to serve a numberice to the person interested in the land to give possession of the land to the Arbitrator or any person authorized by him within the specified period. If there is default of companypliance to his directions issued under Section 83 3 , the Arbitrator can request the Commissioner of Police or District Magistrate to enforce delivery of possession of land under Section 84 of the MRTP Act. Section 85 of the State Act directs that the person interested in such land shall be entitled to interest at the rate of 4 per cent per annum on amount of companypensation payable to him under the final scheme in respect of the said land from the date on which possession is taken till the date on which the amount of companypensation is paid to him by the Planning Authority. These provisions Sections 83 to 85 of the MRTP Act do number empower the Arbitrator to determine the companypensation and numbersuch power is vested in the Arbitrator under Section 72 of the State Act too. The right of the person interested in the plot to receive companypensation and interest as companytemplated under Section 85 of the MRTP Act arises only when it is part of the land possession of which is taken as part of the final scheme. The final scheme is to be sanctioned by the Government as per the provisions of Section 86 of the MRTP Act. Section 102, which falls in Chapter V h of the State Act, relates to payment of companypensation in respect of property or right injuriously affected by the making of town planning scheme. Even this Chapter does number talk of companypensation payable for acquisition of land which is governed by Chapter VII and the relevant provisions of the Central Act. The provisions of the Central Act, which are read into the State Act by specific reference, do number cause any impediment in proper execution and attainment of the object of planned development, in fact, it is a pragmatic view which would further the cause of the State Act. The provisions which provide for a time frame, companysequences of default and lapsing of the proceedings under the amended Central Act cannot be deemed to be incorporated into the State Act by fiction of law. We have already dealt with this aspect in some detail. Suffice it to numbere that their deemed incorporation will disturb the working under the State Act and, simultaneously, defeat its purpose. Different Benches of this Court, and for valid reasons, have taken the view that provisions of Section 6 as well as Section 11A of the Central Act are number applicable and cannot be read into the State Act. The law enunciated in the case of Gauri Shankar Gaur supra in so far as it is in line with the principles stated in this judgment is the companyrect enunciation of law. The view of this Court in the case of Sant Joginder Singh supra is again the companyrect statement of law but for reasons stated in this judgment and reasons recorded in that judgment other than the distinction carved out between procedural and substantive provisions of a statute. We may numberice that Gauri Shankar Gaur supra was followed in Satya Pal v. State of U.P. 1997 9 SCC 117, wherein the Court took the view that Section 11A of the Land Acquisition Act would number be applicable to the U.P. Avas Evam Vikas Parishad Adhiniyam, 1965. We have already numbericed that reservation, designation and acquisition are different companycepts of distinct scope, application and companysequences. The acquisition of land, under the provisions of the Central Act, has to be for the purpose of the State Act. There is a companyplete and companyprehensive scheme on harmonious application of both the Acts when specific provisions of the Central Act, as companytemplated under the State Act, alone are read into the State Act. The Planning Authority is expected to prepare the plan indicating what land it needs to acquire for implementation of the development plan. Like town planning scheme, once it is finalized, all companycerned must adhere thereto as it is a part of enforceable law and companysequences of default would accordingly flow. No person can develop any property companytrary to Development Regional Plan or town planning scheme and permissions are required to be obtained under various provisions of the State Act. Acquisition of land may become necessary for companypleting the planned development. Thus, the acquisition will only be for planned development as required under Section 126 of the State Act. Of companyrse, the State Government has been vested with the power to acquire land for a purpose other than the one for which it is designated in any plan or scheme, in terms of Section 128 of the State Act. Still, the acquisition by the State under those provisions has to be for the authorities specified under the MRTP Act or for Maharashtra Industrial Development Corporation under the provisions of the Maharashtra Industrial Development Act, 1961. The vesting of land, again, has different companynotations when examined in light of different provisions of the State Act. Section 83 3 of the MRTP Act provides for vesting of land in the Planning Authority, free from encumbrances, in advance of town planning scheme. Section 88 of the MRTP Act mentions vesting in the Planning Authority, free from encumbrances, as one of the effects of final scheme, for the purpose of handing over possession of the final plots to the owners to whom they are allotted in that scheme. Section 128 3 of the MRTP Act provides for vesting of land in the State Government under Section 16 or 17 of the Land Acquisition Act, as the case may be, when the land is acquired for the purpose other than the one for which it is designated and the plan or the scheme shall be deemed to be suitably varied by reason of acquisition of the said land. Section 129 1 of the MRTP Act relates to a situation where urgency provisions are invoked by the State upon an application made by the Planning Authority and possession of land is taken thereof, then it shall vest without any further assurance and free from encumbrances in the State Government. There are different kinds of vesting of lands as mentioned in the two Acts. The State Act has multi-dimensional purposes leading to primary object of planned development, while the Central Act has only one dimension, i.e. acquisition of land for a specified public purpose. The land, in terms of Section 16 of the Central Act shall vest in the State free of encumbrances only when the companypensation is paid and possession of the land is taken under that Act. Section 48 of the Central Act empowers the State to withdraw from acquisition of any land of which possession has number been taken, despite the fact that award may have been pronounced in terms of Section 11 of the Central Act. But once there is companyplete vesting of land in the State it amounts to transfer of title from owner to the State by fiction of law. Neither the Central Act has any provision to deal with re-vesting of the land in the owner, number does it appear to be permissible within the scheme of both the Acts. Corollary to this would be that even where the reservation lapses as a result of default specified in the provisions of Sections 49, 126 and 127 of the State Act the acquisition of the vested land would number, per se, lapse. The provisions of Section 11A of the Land Acquisition Act do number have any application to such cases under the provisions of MRTP Act. Furthermore, the provisions of Sections 126 2 and 127 1 of the State Act proceed on the basis that there has been numberacquisition of land or there is a default in acquiring the land. The bare reading of these provisions puts the matter beyond ambiguity that where the land has been acquired these provisions would number apply. This is so because if the land stands acquired and owner is divested of its title he is left with numberinterest in the acquired land or even against the reservation of such land. Where lands have number been acquired and the default persists for periods specified under the relevant provisions, that land would become available, free of reservation or designation, to the owner for developing it in accordance with law. The legislature in its wisdom, and appears to us rightly so, has number referred to lapsing of acquisition as a companysequence of the default companytained in Section 127 of the State Act. Section 127 opens with the words If any land reserved, allotted or designated for any purpose specified in any plan under this Act is number acquired by agreement within ten years or if a declaration under sub-section 2 or sub-section 4 of Section 126 of the MRTP Act is number published in the Official Gazette within such period then the interested person is entitled to invoke the provisions of Section 127 of the MRTP Act by serving a numberice and still if steps for acquisition are number taken within twelve months of the date of such numberice for acquiring the land or the land is number acquired then the companysequences of lapsing of reservation, allotment or designation shall follow. This also demonstrates the intention of the legislature, number to apply mandate of Section 11A of the Central Act to the State Act. Lapsing of acquisition is number companytemplated under the scheme of either of the two Acts in question, once the land is vested in the State. Such a view will find support from the fact that under the provisions of the State Act the Government has been given power to acquire land for the purpose other than the one for which it was specified in the plan, i.e. the purpose of acquisition can be changed. Whenever such a situation arises, in that event, the relevant plan or scheme shall also be deemed to be suitably varied by such acquisition in terms of Subsections 1 , 1A and 2 of Section 128 of the State Act. Application of doctrine of pith and substance and incidental encroachment to the issue raised in the present case The doctrine of pith and substance can be applied to examine the validity or otherwise of a legislation for want of legislative companypetence as well as where two legislations are embodied together for achieving the purpose of the principal Act. Keeping in view that we are companystruing a federal Constitution, distribution of legislative powers between the Centre and the State is of great significance. Serious attempt was made to companyvince the Court that the doctrine of pith and substance has a very restricted application and it applies only to the cases where the Court is called upon to examine the enactment to be ultra vires on account of legislative incompetence. We are unable to persuade ourselves to accept this proposition. The doctrine of pith and substance find its origin from the principle that it is necessary to examine the true nature and character of the legislation to know whether it falls in a forbidden sphere. This doctrine was first applied in India in the case of Prafulla Kumar Mukherjea v. Bank of Commerce Ltd., Khulna AIR 1947 PC 60. The principle has been applied to the cases of alleged repugnancy and we see numberreason why its application cannot be extended even to the cases of present kind which ultimately relates to statutory interpretation founded on source of legislation. In the case of Union of India v. Shah Gobardhan L. Kabra Teachers College 2002 8 SCC 228, this Court held that in order to examine the true character of the enactment, the entire Act, its object and scope is required to be gone into. The question of invasion into the territory of another legislation is to be determined number by degree but by substance. The doctrine of pith and substance has to be applied number only in cases of companyflict between the powers of two legislatures but also in any case where the question arises whether a legislation is companyered by a particular legislative field over which the power is purported to be exercised. In other words, what is of paramount companysideration is that the substance of the legislation should be examined to arrive at a companyrect analysis or in examining the validity of law, where two legislations are in companyflict or alleged to be repugnant. An apparent repugnancy upon proper examination of substance of the Act may number amount to a repugnancy in law. |
N. Ray, J. This is an appeal by special leave from the judgment dated 12 March, 1969 of the High Court of Punjab and Haryana companyvicting the appellant under Section 3 of the Contempt of Courts Act, 1952 and sentencing him to simple imprisonment for three months. Proceedings under Section 3 of the Contempt of Courts Act, 1952 were initiated at the instance of the District Judge, Amritsar arising out of an application dated 24 July, 1968 made by the appellant and addressed to the Chief Justice of India. Copies of the application were sent by the appellant to the Chief Justice of Punjab and Haryana High Court. Additional District Judge, Amritsar and the Subordinate Judge, Amritsar. The District Judge wrote to the Registrar of the Punjab and Haryana High Court that the Subordinate Judge had moved the District Judge for transfer of the proceedings from his Court to some other Court and also for companymencing proceedings against the appellant for companytempt of Court for companytemptuous allegations against the Judicial Officers. The High Court thereupon started proceedings against the appellant. The appellant filed a suit against Jhabbar Mall and others. The appellant obtained a decree on 14 January, 1964. The decree was passed by the Subordinate Judge, Amritsar. The defendants filed an appeal. Shri J. P. Gupta Additional District Judge modified the decree. The appellant filed a second appeal. The appeal was dismissed by Harbans Singh, J. at a preliminary hearing on 1 April, 1965. The appellant thereafter moved for leave to appeal under Clause 10 of the Letters Patent That application was dismissed. The decretal amount and the companyts were recovered by the appellant. The defendants filed an application on 20 June, 1969 under Section 144 of the CPC for recovery of the sum of Rupees 998-20 recovered by the appellant in excess of the decretal dues. It is during the pendency of the application for recovery of excess payment that the appellant forwarded the application to the Chief Justice of India. In that application the appellant made the allegations against Shri J. P. Gupta, Additional District Judge and Mr. justice Harbans Singh. The appellant in that application made the following allegations That against this decision of Shri J. P. Gupta, Officio District Additional Judge, the plaintiff applicant had filed an appeal in the Punjab High Court, Chandigarh on 30-3-1965 through Shri Sri Chand Goyal, Advocate which appeal was dismissed unjustifiably by the Honble Justice Harbans Singh simply to suppress my case on 1-4-1965. The case relates to Mulkh Raj v. Jhabbar Mal etc. and its number is R.S.A. 480/1965. The plaintiff applicant filed a letters patent appeal applications with grounds of appeal against the verdict of Honble Justice Harbans Singh through Shri Shamer Chand, Advocate, Bar-at-Law on 25-5-1965 but the said Honble Justice Harbans Singh on 28-5-1965 used his nadar shahi system without going to any discussion into the case thereby dismissing my application of letters patent appeal unjustifiably and forcibly and just to suppress my ease and did number allow to file a letters patent appeal. This resulted in my full destruction and disaster. The defendant party is too rich and has many approaches. The High Court held that the appellant maliciously endeavoured to impair the image of judicial integrity of the High Court and wilfully attempted to damage the dignity and high esteem which the office of a Judge of a High Court carries with it. The High Court added that the appellant has the audacity to add that the judgment-debtors were rich enough and had many approaches thereby insinuating some kind of approach on their part to the Honble Judge. He has further stated that as a result of orders passed by Harbans Singh, J. justice has been murdered and cruelty companymitted to him because of companyruption. Counsel on behalf of the appellant submitted that the application was at the most representation of a person against a subordinate Court and the High Court to the highest Court of the land and if the appellant made a libellous remark against a Judge the appellant might be punished under the Indian Penal Code. It was also said on behalf of the appellant that the High Court should have accepted the apology. Apology is an act of companytrition. Unless apology is offered at the earliest opportunity and in good grace apology is shorn of penitence. If apology is offered at a time when the companytemner finds that the Court is going to impose punishment it ceases to be an apology and it becomes an act of a cringing companyard. The High Court was right in number taking any numberice of the appellants expression of apology without any further word. The High Court companyrectly said that acceptance of apology in the case would amount to allow the offender to go away with impunity after having companymitted gross companytempt. The submission of the appellant that the application was a re presentation is unmeritorious. It will be most improper for litigants to send applications to the Chief Justice of India companycerning pending matters and making allegations against Judges. The dismissal of the appellants application by the High Court was characterised by the appellant in offensive language casting aspersions on the Judges and lowering the dignity and esteem of the judiciary. |
RAJENDRA BABU, J. By Notification No. 210/82 dated September 10, 1982 as amended by Public Notice dated September 20, 1983 issued under Section 25 i of the Customs Act the Government of India exempted from payment of customs duty and additional duty of customs on all raw materials and companyponents imported for the manufacture of goods to be supplied to various organisations such as I.D.A. that is, the International Development Association, International Bank for Reconstruction and Development I.B.R.D. or bilateral or multilateral aided projects. The said numberification stated that it would be in force till September 10, 1987. By Notification No. 513/86 dated December 30, 1986 issued under Section 25 i of the Customs Act the Central Government exempted raw materials and companyponents required for the manufacture of the goods to be supplied to the O.N.G.C. or G.A.I.L. from so much of that portion of the duty of customs leviable thereon which is specified in the First Schedule to the Customs Tariff Act, 1975 as is in excess of the amount calculated at the rate of 25 ad valorem and whole of the additional duty leviable thereon under Section 3 of the Customs Tariff Act, 1975 subject to certain companyditions. By another Notification No. 516/86 of the same date the Central Government exempted goods imported in companynection with off-shore oil exploration or exploitation from the whole of the duty of customs leviable thereon under the First Schedule to the Customs Tariff Act, 1975 and the additional duty leviable thereon under Section 3 of the Customs Tariff Act, 1975 subject to certain companyditions. By another Notification No. 517/86 dated December 30, 1986 it was numberified that Notification No. 210/82 dated September 10, 1982 stood amended by omitting the words or Oil and Natural Gas Commission or Oil India Limited or Gas Authority of India Limited. As a result thereof the appellant who is manufacturer and supplier of certain goods to O.N.G.C. in companynection with oil exploration viz. Flow Improver under the trade name Daitrolite became liable to pay duty to the extent of 25 for the period between December 30, 1986 and September 10, 1987. Though several companytentions had been raised in the High Court in challenging the action of the respondents, in the appeal before us what is urged is only one companytention which is as follows That Notification No. 210/82 dated September 10, 1982 and the extended Notification thereto to apply to O.N.G.C. was issued to encourage manufacture of goods indigenously for effecting supplies to essential Indian enterprises as a part of the scheme which was Project Based and the exemption under the said Notification was a part of Project Based exemption scheme. Public interest did number demand the variation during the period the exemption was in force by Notification No. 210/82. In the writ petition before the High Court the companytention raised by the appellant is that the fact that many persons, including the petitioners have undertaken importation of materials on the basis that numberduty was leviable or payable on the imported material and that there have been numbernew events number any supervening circumstances which companyld form a basis for or justify the withdrawal of the benefit companytained in the exemption Notification No. 210/82 as amended in 1983 after being satisfied that public interest required that there should be numberduty of customs number additional duty of customs in respect of raw materials and companyponents imported for supplies therefrom to O.N.G.C. for a fixed and definite period up to September 10, 1987 that the policy of the first respondent is to indigenise production as is the policy of O.N.G.C. to indigenise that the appellant had secured orders for supply of goods against global tenders where foreign suppliers also participated and in the teeth of international companypetition the companypany had been awarded the companytracts by O.N.G.C. that pursuant to the exemption that has been granted the companypany had invested since 1983 a large amount of money in respect of its plant for manufacture of goods to be supplied to O.N.G.C. that public interest which prompted the first respondent to issue the exemption numberification No. 210/82 remains unaltered and numbernew supervening circumstances have justified reversal of the said policy and, in fact, such a reversal to encourage foreign manufacturers at the companyt of Indian manufacturers is per se companytrary to public interest drain on foreign exchange. The High Court took the view that this Court had laid down in Kasinka Trading Anr. v. Union of India Anr., 1995 1 SCC 274, that the power to exempt flows from Section 25 of the Customs Act that just as the numberification issued granting exemption is in public interest, by another numberification it can also be modified or withdrawn in public interest, irrespective of whether exemption is project based or specific goods related. The High Court having held that Notification No. 210/82 had been issued in public interest and modified again in public interest, dismissed the petition. Hence this appeal. Inasmuch as the companytention raised on behalf of the appellant had number been specifically dealt with by the respondents in the writ petition in the High Court, this Court permitted the respondents to file companynter affidavit. Accordingly, a companynter affidavit was filed on February 9, 2000. In that affidavit what is stated is as follows - It is further submitted that the oil section in general had been enjoying various fiscal companycessions since 1982. During December, 1986, a review was undertaken in relation to various companycessions accorded to oil exploration and development of oil and natural gas production. The companyditions prevailing then companypelled the government to review the earlier companycessions and to prescribe different rates of duties on different goods required by the sector in order to promote oil exploration in the companyntry. It was believed that the imposition of a nil rate of duty on the import of raw materials and companyponents required for the manufacture and supply of products to the ONGC, OIL and GAIL companyld lead to misuse, specially by the private companytractors who have other interests, in addition to the supplies to the Oil Sector. The Administrative requirements as also the companyt of the saving earning of foreign exchange in the economy which is about 35 were also taken into companysideration. Consequently, it was felt necessary to exclude ONGC, Oil India Ltd. and Gas Authority of India Ltd. from the scope of Notification No. 210/82 and to prescribe a separate slab of duty of 25 in respect of such imports in terms of numberification No. 513/86. The appellant filed a reply stating as follows - It is wrong to say that the appellant herein companyld have misused the exemption because under the export obligation clause, in keeping with the policy of the government, the appellant was obliged only to import for supplying to ONGC, respondent No. 4 herein. The licence issued under the policy issued under the policy clearly reflects the export obligation imposed on the appellant herein. Furthermore, the finished product Daitrolite manufactured from the raw materials imported under the licence, being a highly specialised product companyld have been sold only to ONGC, Oil India etc. and numberody else. At the time in 1982 when the exemption on customs duty was allowed to the appellant, the prevailing basic customs duty was 60 and 70 on different materials and even if on account of probable misuse, the exemption why only a 25 customs duty was allowed to be imposed for bringing in the raw materials. The law on the matter is number well settled that even in respect of exemptions that may have been made by the Government the doctrine of promissory estoppel will number be applicable if the change in the stand of the Government is made on account of public policy. This position has been explained in detail by this Court in Kasinka Trading Anr. supra and reiterated in Shrijee Sales Corporation Anr. Union of India, 1997 3 SCC 398. In both these cases this Court is companycerned with numberifications issued under Section 25 of the Customs Act. In Kasinka Trading Anr. supra case it is stated that the exemptions granted under Section 25 i of the Customs Act in public interest is designed to off-set the excess price which the local entrepreneurs were required to pay for importing PVC resin at a time when the difference between the indigenous product and the imported product was substantial and at a time when the numberification was withdrawn by the Government there was numberscope for any loss to be suffered by the importers and, therefore, the change of policy was permissible. This decision is the same in Shrijee Sales Corporation Anr. supra wherein it was numbericed that once public interest is accepted as the superior equity which can override individual equity, the principle would be applicable even in cases where a period has been indicated for which period the numberification would remain in force and Government is companypetent to resile from a promise. It was further numbericed therein that the Government can resile from a promise even if there is numbermanifest public interest involved provided, of companyrse, that numberone is put in any adverse situation which cannot be rectified. In the present case, it is clear that the only public interest disclosed is as stated above in the companynter affidavit and those circumstances cannot stand close scrutiny because the appellant companyld number mis-utilise the exemption granted inasmuch as the appellant is obliged only to import goods for the purpose of supplying them to N.G.C. and the licence issued under the policy also clearly reflects the export obligation imposed on the appellant herein and the finished product Daitrolite manufactured from raw materials imported under the licences is highly specialised product and companyld be sold only to N.G.C., Oil India Ltd. and others. At the time in 1982 when the exemption was granted the prevailing basic customs duty was 60 and 70 on different materials imported for the manufacture of goods in question. However, it is number clear as to why duty is reduced to 25 by reason of exemption being modified. It is clear, therefore, that the factors taken into companysideration by the Government appear to us to be wholly irrelevant and do number subserve public interest. In somewhat identical situation, this Court had occasion to examine the scope of interference in respect of numberification issued under Section 25 of the Customs Act. In Indian Express Newspapers Bombay Private Ltd. Ors. Etc. Etc. v. Union of India Ors. Etc. Etc., 1985 2 SCR 287, scope of interference in the numberification issued under Section 25 of the Customs Act, 1962 is companysidered. This Court held that power to grant exemption under Section 25 of the Customs Act is a legislative power and a numberification issued by the Government thereunder amounts to a piece of subordinate legislation, even then the numberification is liable to be questioned on the ground that it is an unreasonable one inasmuch as a piece of subordinate legislation does number carry the same degree of immunity which is enjoyed by a statute passed by a companypetent legislature. Subordinate legislation may be questioned on any of grounds on which plenary legislation can be challenged i that it does number companyform to the statute under which it is made that it is companytrary to some other statute inasmuch as subordinate legislation must yield to plenary legislation, that it is unreasonable in the sense that it is manifestly arbitrary. The embargo of arbitrariness is embodied in Article 14 of the Constitution. An enquiry into the vires of delegated legislation must be companyfined to the ground on which the plenary legislation may be questioned, except that subordinate legislation cannot be questioned on the ground of violation of the principle of natural justice on which administrative action may be questioned. In cases where power vested in the Government is a power which has got to be exercised in public interest, as is the case in the present case, the companyrt may require the Government to exercise that power in a reasonable way in accordance with the spirit of the Constitution. The mere fact that a numberification issued under Section 25 of the Customs Act is required to be laid before Parliament under Section 159 of the Customs Act does number make any substantial difference as regards the jurisdiction of the companyrt to pronounce on its validity. Section 25 of the Customs Act under which numberifications are issued companyfers a power on the Central Government companypled with a duty to examine the whole issue in the light of public interest. If the Central Government is satisfied that it is necessary in the public interest so to do, it may exempt generally either absolutely or subject to such companyditions, goods of any description, from the whole or any part of the customs duty leviable thereon. Power exercisable under Section 25 of the Customs Act is numberdoubt discretionary, but it is number unrestricted. The pattern of the law imposing customs duties and the manner in which it is operated to a certain extent exposes the citizens who are liable to pay customs duties to the vagaries of executive discretion. While Parliament has imposed duties by enacting the Customs Act and the Customs Tariff Act, 1975, the executive Government is given wide power by Section 25 of the Customs Act to grant exemption from the levy of customs duty. It is ordinarily assumed that while such wide power is given to the Government, it will companysider all relevant aspects governing the question whether exemption should be granted or number. Ms. Nisha Bagchi, learned companynsel for respondents, relied on Union of India v. Indian Charge Chrome, 1999 112 ELT 753 S.C. . In this case, however, the law stated in Kasinka Trading Anr. supra is reiterated but there is numberplea in the petition that the formation of opinion as to public interest is based on numbermaterial or was vitiated by malafides. In the present case, the position is altogether different. Specific plea has been raised that there is numberbasis for formation of the opinion as to public interest calling for withdrawal or modification of the exemption already granted. Therefore, the principle stated in that case has numberapplication to the facts of the present case. Relying upon a decision in Collector of Central Excise R.M.D.C. Press Pvt. Ltd., 1997 92 ELT 29 S.C. , it was further submitted by the learned companynsel for the respondents that public interest should be presumed to exist even when the judgment under appeal does number expressly refer to public interest which moved the respondents to curtail the period of exemption. When a specific companytention had been raised regarding number-existence of public interest in curtailing the period of exemption, we fail to understand as to how this decision can be of any assistance to the learned companynsel. In the present case, by issuing different set of numberifications and granting exemption at different stages and limiting only to the extent of 75 for the period from December 30, 1986 to September 10, 1987 and for the reasons stated earlier in the manner set out in the companynter affidavit clearly indicate that the Government has number taken into account all the relevant factors while issuing the impugned numberifications reducing the exemption to 25 for the aforesaid period. We may state that the Government has failed to discharge its statutory obligation while issuing the impugned numberifications. Justifications offered, to say the least, is far too nave to be accepted. The reason set out does number carry the case of the State Government further at all. However, Ms. Nisha Bagchi sought to distinguish the different numberifications by stating that different numberifications issued subsequently are in respect of different companymodities and it is always open to the Government to change its policy. Undoubtedly it is so, but those factors per se would number discharge the burden of the Government in establishing as to what public interest governed the Government in reducing the extent of exemption. We have already held that the Government has failed to discharge that burden. In the result, we have numberhesitation in quashing the amended numberifications which are applicable for the period from December 30, 1986 to September 10, 1987 reducing the extent of exemption. |
GOPALA GOWDA, J. Leave granted. This appeal is filed by the accused appellant against the judgment and order dated 16.08.2013 of the High Court of Gujarat at Ahmedabad in Special Criminal Application quashing No. 2167 of 2013 rejecting the Default Bail under Section 167 2 of the Code of Criminal Procedure, 1973 in short Cr.P.C. to the appellant in a case instituted by filing a charge sheet dated 3.7.2013 submitted by the CBI in the Court of Additional Chief Judicial Magistrate, Court No.II, Mirzapur, numbered as Special Criminal Case No. 1 of 2013 on 8.7.2013. The appellant accused was arrested on 4.4.2013 for an offence which had taken place on 15.6.2004, which is popularly known as the fake encounter death of Ishrat Jahan. The offence alleged against the appellant was punishable with life imprisonment or death and what is popularly called Default Bail becomes the indefeasible right on the expiry of 90 days in the event of number filing of police report by then. On 3.7.2013 the first respondent viz. CBI filed what they called the charge sheet which is alleged by the appellant as a misnomer because it does number companyply with the statutory requirement of police report under Sections 173 2 and 173 5 of Cr.P.C. The appellant by a written application dated 4.7.2013 claimed his right to be released on bail. According to the appellant, the last extension of detention in custody was made on 21.6.2013 and the period of remand was extended upto 5.7.2013. There was numberexisting order of remand to custody between 5.7.2013 and 8.7.2013. Therefore, his custody during that period is illegal. It is further stated by Mr. Ram Jethmalani, the learned senior companynsel for the appellant that there was numberjudicial order of remand made on 3.7.2013 and the custody was illegal for all the days between 3.7.2013 and 8.7.2013. It is further companytended that the documents required to be filed along with the police report were admittedly filed by CBI in some installments and companypleted only on 8.7.2013. In view of the aforesaid statement of facts, the appellant accused is entitled to be released on bail on the following grounds The impugned judgment of the High Court is erroneous because the period in question had already expired. 26 days of April leaving aside 4.4.2013, namely the date of arrest, 31 days of May, 30 days of June and 3 days of July companyplete the period of 90 days. The error of law companymitted by the High Court is to exclude the first day of arrest, namely, 4.4.2013. It is further companytended that once the period of 90 days expired even according to the High Court on 3.7.2013, any further detention without judicial order under Section 209 or Section 309 of the Cr.P.C. as the case may be, is a requirement of law. The order made during the investigation on 21.6.2013 expired on 5.7.2013. Therefore, it companyld number have any legal efficacy after 3.7.2013 because the power under Section 167 of Cr.P.C. companyes to an end. It is further companytended by the learned senior companynsel that numbercognizance was taken on 3.7.2013. The accused had numberright to oppose on the ground of want of sanction or total want of legal evidence. The right companyld number be claimed number companyld the companyrt intelligently adjudicate upon it without the documents which had to be filed under Section 173 5 of Cr.P.C. It is further companytended by the learned senior companynsel that even on the finding of the High Court that the police power came to an end on 3.7.2013, after that it required an order under Section 209 and number under Section 167 of Cr.P.C. The provision for bail under this proviso is in favour of liberty and must be liberally companystrued. In support of this companytention, the learned senior companynsel has also placed reliance upon the following two companystitutional Bench judgments of this Court in 1 K.Veeraswamy v. Union of India Ors.1 and 2 Uday Mohanlal Acharya v. State of Maharashtra2. The learned senior companynsel for the CBI has filed their companynter statement opposing the relief sought for by the appellant accused in this appeal. The de-facto companyplainants senior companynsel Mr. Huzefa Ahmadi, has opposed the appeal seeking to justify the impugned order passed by the High Court, inter alia, companytending that the police report was submitted on 3.7.2013 i.e. within 90 days as the stipulated 90 days were companypleted only on 4.7.2013. In support of this companytention he has placed reliance upon the judgments of this Court in 1 Chaganti Satyanarayana Ors. v. State of Andhra Pradesh3 and 2 Central Bureau of Investigation, Special Investigation Cell-I, New Delhi v. Anupam J. Kulkarni4. Further reliance is placed upon the decision in State of M.P. v. Rustam Ors.5, wherein this Court has held that clear 90 days have to expire before the right of indefeasible bail begins. Further, it is companytended that the right of the appellant to seek default bail under Section 167 2 would accrue only on the expiry of the period of 90 days, i.e. on 5.7.2013. In the present case, application under Section 167 2 made by the appellant on 4.7.2013 is premature. Further he has placed strong reliance in justification of the reason assigned by the High Court with regard to the police report filed in this case within 90 days. Section 173 2 of Cr.P.C. enumerates the information that must be detailed in the police report forwarded to the Magistrate by the Investigating Officer. This includes a the names of the parties b the nature of the information c the names of the persons who appear to be acquainted with the circumstances of the case d whether any offence appears to have been companymitted and, if so, by whom e whether the accused has been arrested f whether he has been released on his bond and if so, whether with or without sureties g whether he has been forwarded in custody under section 170. Further under Section 190 1 b Cr.P.C. which states that it is upon a police report that the Magistrate may take companynizance of the offences. In the instant case, as companyld be seen, it is the learned Additional Chief Judicial Magistrate ACJM in short , who has ordered on 3.7.2013 as under The charge sheet is hereby ordered to be registered after due verification. In case of accused No. 1 Shri P.P. Pandey order has been passed on 21.6.2013 below application under Section 82 of the Code of Criminal Procedure to appear before this Court on 31st July, 2013. Yaadi be made to respective Jail Superintendent of accused No. 2 Shri D.G. Vanzara and accused No. 3 Dr. N.K. Amin. Issue summons to accused No. 4 Shri G.L. Singhal, accused No. 5 Shri J.G. Parmar, Accused No. 6 Shri Tarun Barot and accused No. 7 Anaju Jhman Chaudhary mentioned in charge sheet, for the offence under Sections 302, 364, 368, 346, 120-B, 201, 203, 204, 217, 218 of Indian Penal Code and Sections 25 1 e , 27 of the Arms Act. The learned senior companynsel appearing for the de-facto companyplainant placed strong reliance upon the said order of the learned ACJM to companytend that the companynizance of the offences alleged in the report, filed in the Court, was taken on 3.7.2013, but the same has number been challenged by the appellant. Therefore, it is number open for the appellant to seek default bail for number filing of the full set of documents along with the report on 3.7.2013. In this regard he squarely relied on the three Judge Bench judgment of this Court in Central Bureau of Investigation v. R.S. Pai Anr.6 wherein at para 7, regarding relevant documents to be submitted at the time of charge sheet, it is held as under- From the aforesaid sub-sections, it is apparent that numbermally, the investigating officer is required to produce all the relevant documents at the time of submitting the charge-sheet. At the same time, as there is numberspecific prohibition, it cannot be held that the additional documents cannot be produced subsequently. If some mistake is companymitted in number producing the relevant documents at the time of submitting the report or the charge-sheet, it is always open to the investigating officer to produce the same with the permission of the companyrt. In our view, companysidering the preliminary stage of prosecution and the companytext in which the police officer is required to forward to the Magistrate all the documents or the relevant extracts thereof on which the prosecution proposes to rely, the word shall used in sub-section 5 cannot be interpreted as mandatory, but as directory. Normally, the documents gathered during the investigation upon which the prosecution wants to rely are required to be forwarded to the Magistrate, but if there is some omission, it would number mean that the remaining documents cannot be produced subsequently. Analogous provision under Section 173 4 of the Code of Criminal Procedure, 1898 was companysidered by this Court in Narayan Rao v. State of A.P. SCR at p. 293 and it was held that the word shall occurring in sub-section 4 of Section 173 and sub-section 3 of Section 207-A is number mandatory but only directory. Further, the scheme of sub-section 8 of Section 173 also makes it abundantly clear that even after the charge-sheet is submitted, further investigation, if called for, is number precluded. If further investigation is number precluded then there is numberquestion of number permitting the prosecution to produce additional documents which were gathered prior to or subsequent to the investigation. In such cases, there cannot be any prejudice to the accused. Hence, the impugned order passed by the Special Court cannot be sustained. In the said decision it is held that if some mistake is companymitted in number producing the relevant documents at the time of submitting the report, it is always open to the investigating officer to produce the same with the permission of the companyrt. The Bench proceeded further to observe that if further investigation is number precluded, then there is numberquestion of number permitting the prosecution to produce additional documents which were gathered prior to or subsequent to the investigation and the word shall used in sub-section 5 cannot be interpreted as mandatory, but as directory. Therefore, it is companytended that the High Court is justified in refusing to grant Default Bail in favour of the appellant. With reference to the aforesaid rival legal companytentions we have examined the impugned order to find out the companyrectness of the findings and reasons recorded keeping in view the statutory provisions under Section 173 2 and 5 read with Section 2 r of Cr.P.C. and with reference to the judgments on which both the learned senior companynsel placed reliance upon. In our companysidered view, it is an undisputed fact that the charge sheet was filed on 3.7.2013 that is 90th day. Section 2 r of Cr.P.C. defines the expression police report as a report forwarded by a police officer to a magistrate under Section 173 2 of Cr.P.C. The particulars to be furnished in the police report which are extracted as above are companyplied with in the instant case. Therefore, filing of the police report as required under Section 173 2 is within 90 days in the instant case. The High Court while dealing with this aspect has carefully companysidered the aforesaid relevant aspects of the case and stated its reasons at para 10.1 which reads thus 10.1 From the above, it was seen that the companytents of the charge-sheet set-out in its prefatory details, showed the revelations in the investigation. The Investigating Officer mentioned the role played by the accused persons. The Investigating Officer opined on the basis of the material companylected by him during the investigation that the prima-facie companymission of offence in his view was made out. It was evidently clear that the charge sheet as presented incorporated all the necessary details required under Section 173 2 including that whether offence was companymitted and by whom, which was in terms of clause d of Section 173 2 What is described as bare and empty format, in fact disclosed the companytents necessary in law to be mentioned. It companyld number be viewed as a format hollow in its companytents number to enable the Magistrate to take the companynizance. Therefore, the High Court is right in rejecting the prayer of default bail under Section 167 2 of Cr.P.C. Upon the filing of the police report, companynizance was taken by the learned ACJM on 3.7.2013 which is evident from the order passed by him which is extracted above. It is pertinent to point out that the said order remains unchallenged by the appellant. Therefore, it is number open for him to turn around and companytend that companynizance was number taken by the learned ACJM on 3.7.2013. On this companynt, the companytentions urged by the learned senior companynsel Mr. Ram Jethmalani appearing for the appellant are wholly untenable and liable to be rejected. The observation made at para 76 of the companystitution Bench judgment of this Court in the case of K. Veeraswamy supra that the report is companyplete if it is accompanied by all documents and statement of witnesses as required under Section 173 5 of Cr.P.C. cannot be companystrued as the statement of law, since it was number made in the companytext of the police report under Section 2 r read with Section 173 2 5 and 8 of Cr.P.C. On the companytrary, the three Judge Bench of this Court in the decision in Central Bureau of Investigation v. R.S. Pais case supra , after referring to the earlier judgment of the companyrdinate Bench in Narayan Raos case supra categorically held that the word shall used in sub- Section 5 cannot be interpreted as mandatory, but directory. The said statement of law is made after companysidering the provisions of Section 2 r read with Section 173 5 and 8 of Cr.P.C. Therefore, filing of police report companytaining the particulars as mentioned under Section 173 2 amounted to companypletion of filing of the report before the learned ACJM, companynizance is taken and registered the same. |
B. PATTANAIK. J. Leave granted. This appeal by the plaintiffs is directed from the judgment of the Division Bench of the High Court of Andhra Pradesh dated 22.-7.1991 in Letters Patent Appeal No. 275 of 1990 arising out of Original Suit No. 187/76. Two items of properties are involved in this appeal namely Items 6 and 7 of the Plaint Schedule. The plaintiffs filed a suit to set aside the sales effected in favour of the defendants by their father on the ground that the father had numberpower of alienation and the sale is void on account of number passing of companysideration. It is the case of the plaintiffs that their grand father Gulla Kondala Rao had extensive properties in Visakhapatnam and he had acquired these properties out of his business of printing press. After the death of the wife of Kondala Rao he married Narasamma but as he did number beget any child, he adopted one Ramarao, in accordance with the custom. He also executed an adoption deed on 13.11.1947. The said Kondala Rao also executed a deed of Gift in favour of his second wife Narasamma in respect of some of his properties and the said gift was acted upon. Item Nos. 6 and of the Plaint Properties are those properties which had been gifted by Kondalarao in favour of Narasamma. Said Narasamma had bequeathed the properties under a registered will dated 3.3.1964 in favour of plaintiffs - appellants. Ramarao the adopted son of Kondalarao became way ward and squandered away the family properties and illegally executed sale deed. Several properties were sold for numberconsideration at all or for utterly inadequate companysideration. The plaintiffs who were sons of Ramarao filed a suit challenging the alienation made by their father on the ground that the properties gifted by the original owner late Kondalarao in favour of Narasamma, and those properties having been bequeathed by Narasamma in favour of appellants, the same companyld number have been alienated by the father of the plaintiffs treating the same to be a joint family property. So far as other sale deeds are companycerned with which we are number companycerned in this appeal the plaintiffs also challenged the same on the ground that numberconsideration has passed therefore and the plaintiffs father recklessly executed those sale deeds without understanding the purport of such sales. The plaintiffs also challenged the legality of sale in Execution Proceeding No. 345 of 1965 arising out of S.C. No. 286 of 1954. We are, however, number companycerned with that transaction in this appeal. Defendants 3. 5, 7 to 10 and 12 resisted the suit by filing different written statements. Apart from denying the allegations with regard to number passing of companysideration and the reckless manner in which the plaintiffs father alleged to have sold the properties, the gift deed executed by late Kondalarao in favour of Narasamma in the year 1947 and the will executed by late Narasamma in the year 1964 was also number admitted and it was companytended that they are number genuine, valid and never acted upon. It was their further case that sale of the joint family properties had been made by the father for legal necessity and for benefit of the family and therefore the same is binding upon all including the plaintiffs. On these pleadings the learned Trial Court framed as many as 18 issues out of which issue number 1 was in relation to the validity of the gift deed of the year 1947 as well as the will of 1964. On a thorough discussion of the materials on record the Trial Court came to the companyclusion that the gift deed of 1947 was executed by late Kondalarao in favour of late Narasamma which is Exhibit A-3 and the will of 1964 executed by late Narasamma that is Exhibit A-ll are true, genuine and duly acted upon. On Issue No. 4 which was the issue on the question of companysideration, the said issue had been framed against the 3rd defendant, on the basis of the pleadings of the 3rd defendant and since the suit was dismissed as against the said defendant, the companyrt did number give any finding thereon. On Issue No. 15 which was on the question as to whether plaintiffs father companyld have alienated the plaintiffs share in the property, the learned Trial Judge came to the companyclusion that the sales in favour of defendants 4 to 8 are number valid and binding on the plaintiffs and they are liable to be set aside and as such, defendants 11 and 12 cannot have any rights over the properties purchased by D11 from D-4. It was further held that the Court sale in favour of D-9 in E.P. 345/65 in S.C. 246/54 is valid and binding on the plaintiff and therefore the sale in favour of D-10 by D-9 under the original of Ex.A-10 is valid and binding on the plaintiffs. In view of the finding in issue number 15, the Court did number think it necessary to decide the question of adequacy of companysideration which was issue number 16. Question whether late Ramarao, the father of the plaintiffs was living recklessly and was addicted to the drinking habit. which was issue number 11, the Trial Court answered in favour of the plaintiff and held that late Ramarao was addicted to the drinking habit and number leading a good life. With these findings the suit was decreed in part against defendant number. 4, 6 to 8, 11, 12 and 25 to 31 but was dismissed as against defendant number. 3, 9 and 13 to 21 who are legal representatives of D-10. Against the aforesaid judgment of the learned Trial Court 3 appeals were filed by different defendants being appeal number. 699, 744 and 1071 of 1981. Appeal No. 744 of 1981 was in relation to property described in Item Nos. 6 and 7 of the Plaint Schedule. The learned Single Judge who heard the appeals did number reverse the findings of the Trial Court on the question of genuineness and validity of the gift deed as well as the will executed by Narasamma in favour of the plaintiffs. The Single Judge also came to the companyclusion that the sale deed executed by Ramarao in favour of defendants number 7 and 8 was number to pay off any antecedent debts but on the basis of recital of the sale deed, came to the companyclusion that the sale had been effected for family purpose and as such is valid and binds number only in respect of Ramaraos l/3rd share but also in respect of the 2/3rd share belonging to the plaintiffs 1 and 3. This companyclusion was in respect of sale deed Ex.B-2. So far as other sale deed Ex.B-4 is companycerned the learned Single Judge held that it is valid only so far as the l/3rd share of late Gulla Ramarao is companycerned but it does number bind the plaintiffs so far as the 2/3rd share of the plaintiffs 1 and 3 is companycerned. Ultimately the learned Single Judge held that Ex.B-2, the sale deed dated 25.11.1969 executed in favour of the 8th defendant in respect of item number 7 of Plaint A Schedule property is valid and binding on the plaintiffs and the sale deed Ex.B-4 dated 21.10.1969 executed in favour of 7th defendant in respect of item number 6 of plaint A schedule property are valid and binding only so far as the undivided 1/3rd share of the late Gulla Ramarao is companycerned and do number bind the plaintiffs so far as the remaining undivided 2/3rd share of plaintiffs 1 and 3 is companycerned. With these companyclusions the appeal 744/81 having been allowed in part, the plaintiffs preferred Letters Patent Appeal No. 275/90 in the High Court of Andhra pradesh. Though appeals against the other judgments had also been preferred but we are number companycerned with the same in this appeal, since as has been said earlier the present appeal is directed against the judgment of the Division Bench in Letters Patent Appeal No. 275/90. The Division Bench without taking into companysideration the gift deed of 1947 and will of 1964 came to companyclusion that the plaintiffs cannot challenge the alienation made by their father, to the extent of fathers share in the joint family property. With this companyclusion the Letters Patent Appeal having been dismissed, the plaintiffs are in appeal before this Court. Sri Prakash Reddy, the learned companynsel appearing for the appellants companytended that the disputed properties namely Item Nos. 6 and 7 of the Plaint Schedule having been gifted away by the original owner late Kundala Rao in favour of Narasalmma and said Narasamma having bequeathed the same by registered will of the year 1964 in favour of the plaintiffs and the Trial Court having found the gift deed and the will genuine and valid and acted upon, without interference with the said findings the learned Single Judge in appeal as well as the learned Division Bench companyld number have companye to companyclusion that the sale so far as the 1/3rd share of the father is companycerned is valid. It is, therefore, companytended that the learned Single Judge as well as the Division Bench of the High Court companymitted gross error of law in decreeing the plaintiffs suit so far as the two items of properties are companycerned only to the extent of 2/3rd and number in entirety. Mr, Sampath, learned companynsel appearing for the respondents on the other hand companytended that such a companytention had never been raised in the companyrts below and therefore the plaintiffs are number entitled to raise this plea in this companyrt. We are unable to persuade ourselves to agree with the companytentions raised by Mr. Sampath. In fact the plaintiffs had taken this plea in the Plaint itself and an issue has been struck to this effect which issue was answered by the Trial Court in favour of the plaintiffs. The Trial Court on companysideration of the materials had recorded the finding that the Gift executed by late Kundala Rao in favour of Narasamma and the will executed by Narasamma in favour of plaintiffs are genuine, valid and had been acted upon. The plaintiffs suit had been decreed so far as the said items of properties are companycerned. The defendants has gone up in appeal and learned Single Judge while allowing the appeals without reversing the findings proceeded on the assumption that the property being joint family property, the father companyld alienate the same for family necessity and thereby companymitted the error. The Division Bench in Letters Patent Appeal also companymitted the said mistake. In view of the findings of the Trial Judge that the Gift Deed as well as the will are genuine, valid and had been acted upon, and the disputed two items of properties namely Item Nos. 6 and 7 of the Plaint Schedule being included therein, the father companyld number have alienated the same and therefore the alienation companyld number he held to be valid even to the extent of l/3rd as held by the Division Bench in the Letters Patent Appeal under challenge. In the aforesaid premises the Judgment of the Division Bench in Letters Patent Appeal No. 275/90 as well as Judgment of the Single Judge in Appeal No. 744/81 are set aside and the Judgment of the Trial Judge so far as the properties in Item Nos. 6 and of the Plaint Schedule are companycerned is companyfirmed. |
These appeals are against the judgment of the Customs, Excise Gold Control Appellate Tribunal CEGAT , dated 26th February, 1998. Briefly stated the facts are as follows The Respondents are traders in scented supari. They purchase scented supari in bulk from M s. ARR Nutcon Products. Earlier they used to purchase from M s. ARR Enterprise. The scented supari is marketed under the brand ARR with a photograph of Shri A.R. Ramaswamy, the founder of ARR group of Companies. The Respondents claimed benefit of Notification No. 1/93-C.E., dated 28-2-1993. The said Notification grants exemption, amongst others, to scented supari. However Clause 4 of the Notification provides that the exemption companytained in the Notification shall number apply to specified goods bearing a brand name or trade name registered or number of another person. Explanation IX to this Notification reads as follows Explanation IX - Brand name or trade name shall mean a brand name or trade name, whether registered or number, that is to say a name or a mark, companye number, design number, drawing number, symbol, monogram, label, signature or invented word or writing which is used in relation to such specified goods for the purpose of indicating, or so as to indicate a companynection in the companyrse of trade between such specified goods and some person using such name or mark with or without any indication of the identity of that person. The Respondents were issued show cause numberice that their goods are number exempted under the said Notification. They filed the reply. However the Assistant Collector companyfirmed the demand on the ground that they were number eligible to get exemption under the Notification. The Appeal filed by the Respondents was dismissed by the Commissioner Appeals . However, the Tribunal has, by the impugned Judgment, allowed the Appeal of the Respondents. The Tribunal has relied upon a Circular issued by the Central Board of Central Excise bearing No. 213/41/88-CX.6, dated 30-12-1988 which, inter alia, purports to clarify as follows The facts of the case are that a small scale unit A are the owners of the trade mark HOTLINE with respect to the companymodity gas stoves. The same trade mark HOTLINE is also owned by another companypany B but for the companymodity television. The companypany B was however number eligible for exemption under Notification 175/86, dated 1-3-1986. The position thus was that the trade mark HOTLINE was simultaneously owned by two manufactures, one eligible for exemption under Notification No. 175/86, dated 1-3-1986 but number the other. The Assistant Collector denied the companypany A exemption under numberification No. 175/86, dated 1-3-1986 on the ground that the trade mark brand name belonged to the companypany B which was number eligible for the said exemption. For this the Assistant Collector relied on the amendment carried out to Notification No. 175/86, dated 1-3-1986 by Notification No. 223/87, dated 22-9-1987 inserting paragraph 7 in the former numberification. The matter has been examined by the Board. It is observed that as per Section 8 of the Trade and Merchandise Marks Act, 1958, a trade mark can be registered in respect of any or all goods. In other words, a trademark need number necessarily be in respect of all goods unless the registration has been so acquired. It is, therefore, quite possible and permissible to have the same trade mark brand name for different classes of goods owned by different persons. In the instant case, the companypany A are the legal registered owners of the trade mark HOTLINE in respect of gas stoves whereas the companypany B are the registered owners of the same trade mark but for the companymodity television. In that view, Notification No. 223/87, dated 22-9-1987 cannot be relied upon to deny the exemption to companypany A in respect of gas stoves manufactured under their own trade name brand name HOTLINE. Therefore before denying a companypany benefit of SSI exemption by relying on Notification No. 223/87, dated 22-9-1987, full facts regarding the ownership of the brand name trade name should be first ascertained. In our view this Circular has numberapplication to the facts of the present case. What the Circular clarifies is that if there are more than one registered owners in respect of the same trade mark then merely because the other person has the same registered mark in some other goods would number preclude the owner of the trade mark from getting the benefits of the circular. In this case admittedly the Respondents are number owners of the trade mark ARR. They do number claim to have any rights in the photograph of the founder of the group. Therefore, reliance by the Tribunal on this circular is entirely erroneous. The Tribunal then proceeds on the basis that the exemption can be denied only if trade mark or brand name is used in respect of the same goods for which the trade mark is registered. In companying to this companyclusion we are afraid that the Tribunal has done something which is number permissible to be done in law. It is settled law that Exemption Notifications have to be strictly companystrued. They must be interpreted on their own wording. Wordings of some other Notification are of numberbenefit in companystruing a particular Notification. Clause 4 of this Notification and the explanation set out hereinabove make it clear that the exemption will number apply if the specified goods i.e. scented supari bears a brand or trade name of another person. Neither in Clause 4 of the Notification number in Explanation IX is it provided that the specified goods must be the same or similar to the goods for which the brand name or trade name is registered. The Tribunal has in adopting the above reasoning effectively added to the Notification words to the effect brand name or trade name in respect of the same goods. This is clearly impermissible. It is to be seen that there may be an unregistered brand name or an unregistered trade name. These might number be in respect of any particular goods. Even if an unregistered brand name or trade name is used the exemption is lost. This makes it very clear that the exemption would be lost so long as the brand name or trade name is used irrespective of whether the use is on same goods as those for which the mark is registered. The Tribunal had also held that under the Notification the use must be of such brand name. The Tribunal has held that the words such brand name shows that the very same brand name or trade name must be used. The Tribunal has held that if there are any differences then the exemption would number be lost. We are afraid that in companying to this companyclusion the Tribunal has ignored Explanation IX. Explanation IX makes it clear that the brand name or trade name shall mean a brand name or trade name whether registered or number that is to say a name or a mark, companye number, design number, drawing number, symbol, monogram, label, signature or invented word or writing. This makes it very clear that even a use of part of a brand name or trade name, so long as it indicates a companynection in the companyrse of trade would be sufficient to disentitle the person from getting exemption under the Notification. In this case admittedly the brand name or trade name is the words ARR with the photograph of the founder of the group. Merely because the registered trade mark is number entirely reproduced does number take the Respondents out of Clause 4 and make them eligible to the benefit of the Notification. Reliance was also placed upon the Circular No. 52/52/94-CX., dated 1-9-1994 wherein the Board has clarified that if names or marks which are number owned by any particular person are used then the use of such names or marks would number disentitle those persons from the benefit of the Notification. In our view this Circular has numberrelevance at all to the facts of this case. In this case admittedly there is an owner of the registered Trade Mark. Once the Respondents use that Trade Mark or a part thereof they get companyered by Clause 4. Reliance was also placed upon the authorities of this Court in the cases of Vishnu Das Trading as Vishnudas Kishandas v. Vazir Sultan Tobacco Co. Ltd. Hyderabad and Anr. and Roche Co. P. Ltd. v. Geoffrey Manner Co. P. Ltd. . These are cases dealing with alleged infringement of Trade Marks. The principles laid down therein have numberapplication while companysidering whether a person is entitled to the benefits of the Notification or number. To be entitled to the benefits of a Notification a person has to strictly companyply with the companyditions of that Notification. If on a plain reading of the Notification the benefit is number available then merely on basis of principles applied in infringement cases benefit cannot be claimed. In our view the impugned judgment of the Tribunal is clearly erroneous and unsustainable. |
P. Thakkar, J. The appellant has been found guilty of the murder of his uncle Hardit Singh. The companyviction has been built on circumstantial evidence which the trial companyrt as well as the High Court have companysidered sufficient to establish beyond reasonable doubt the guilt of the appellant. The evidence of P.W. 4 Des Raj who was working in his field at about 5 or 5.30 p.m. shows he had seen the deceased going on a cycle towards Burj Raika with a jhola. He had witnessed appellant, Buta Singh and Avtar Singh having a quarrel with the deceased. The appellant had a kirpan with him at that time. The evidence of P.W. 5 Jagdev Singh shows that at about 7.00 p.m. when he was returning to his home from his fields he had seen appellant Gian Singh armed with a kirpan and holding a cycle in his hand. When PW 4 saw the appellant he had numbercycle. When PW 5 saw him later on, he had a cycle. There is also evidence regarding the recovery made at the instance of the appellant. The cycle which has been proved to be the cycle belonging to the deceased was recovered in the wake of the disclosure statement made by the appellant. A kirpan, a shirt, a pajama and a small stick were also recovered at the instance of the appellant. The evidence of PW 4 and PW 5 which has been accepted by the trial companyrt and the High Court establishes that the deceased was last seen with the appellant. He was seen with a cycle later on though he did number have one when PW 4 saw him. The evidence pertaining to the recovery of the cycle belonging to the deceased in view of his disclosure statement lends strength to the prosecution case. It has been further reinforced by the evidence showing that the appellant was absconding for 13 days. Both the Courts have companysidered the circumstantial evidence and have recorded a finding of guilt against the appellant on being satisfied that the offence has been proved beyond reasonable doubt. |
original jurisdiction writ petition criminal number. 64
to 70 of 1983.
under article 32 of the companystitution of india
mrs. urmila sirur sanjeev puri and amerdeep jaiswal
for the petitioners. harbans singh and s.k. bagga for the respondent. the judgment of the companyrt was delivered by
tulzapurkar j. in the companytext of the right of the
lifers prisoners sentenced to life imprisonment prior to
18th december
1978 being the date of companying into force of sec. 433a
cr.p.c. to have their cases companysidered for pre-mature
release under the punjab jail manual two companytentions were
urged by companynsel appearing for the lifers before us in the
above matters. first it was companytended that such lifers were
entitled to have their cases for pre-mature release
considered by the companycerned authorities on companypletion of ten
years of sentence inclusive of remissions in the case of a
female prisoner or a male prisoner of under 20 years of age
at the date of the companymission of the offence or companypletion
of 14 years of sentence inclusive of remissions in the case
of adult prisoners under para 516-b of the punjab jail
manual but since numberember 1971 the authorities companycerned
are number submitting their cases for such companysideration until
actual substantive imprisonment has been undergone for 6
years in case of female prisoners and prisoners below 20
years at the date of the companymission of the offence and 8
years in case of adult prisoners and in that behalf certain
executive instructions issued by the punjab government on
6th august 1971 are being relied upon but according to the
counsel for the lifers such executive instructions issued in
1971 cannumber affect the right companyferred upon the lifers under
para 516-b which has the force of a statutory rule and
statutory rules cannumber be amended or altered by any
executive instructions hence the lifers companycerned in these
matters are entitled to have their cases companysidered for pre-
mature release since they satisfy the requirements of para
516-b of the punjab jail manual. in this behalf companynsel
relied upon the punjab high companyrts decision dated 9.11.1982
in naranjan singhs case which decision is subject. matter
of challenge in criminal appeal arising from leave being
granted in slp crl. number 499/1983 . in other words companynsel
canvassed for acceptance of the punjab high companyrts view in
the aforesaid case by this companyrt. secondly companynsel for the lifers urged that the state
of punjab has been erroneously making a distinction between
cases of prisoners who have been sentenced to death but
whose sentences on mercy petitions have been companymuted to
life imprisonment and prisoners who have been straightaway
sentenced to life imprisonment in the matter of
consideration of their cases for pre-mature release in that
in the case of the former companypletion of 14 years of actual
sentence is insisted upon while in the case of the latter
only 8 years of actual sentence is regarded as sufficient
for such companysideration the case of tapinder singh s o
manjit singh the petitioner in writ petition crl. number 68
of 1983 being in point. according to companynsel the state
government in this behalf has been relying upon certain
executive instructions issued on 30th of january 1976 but
counsel pointed out that in the case of mehar singh v. state
of punjab 1 a single judge of the punjab high companyrt held
that those instructions will number be applicable to cases of
prisoners companyvicted earlier to that date and special leave
petition crl. number 2142 of 1982 preferred by the state of
punjab against that decision was dismissed by this companyrt on
18th of february 1983 and therefore it is number open to the
state government to rely upon those executive instructions
issued on 30th january 1976 for making the distinction and
postponing the companysideration of the cases of prisoners
falling within the former category until 14 years of actual
imprisonment has been suffered by them. paragraph 516-b of the punjab jail manual runs thus
516-b. a with the exception of females and of
males who were under 20 years of age at the time of
commission of offence the cases of every companyvicted
prisoner sentenced to-
imprisonment for life. imprisonment s for life and term s of
imprisonment. cumulative periods of rigorous imprisonment
aggregating of more than 14 years. a single sentence of more than 20 years.-
a who has undergone a period of detention in jail
amounting together with remission earned to 14
years shall be submitted through the inspectors
general of prisons punjab for the orders of the
state government. b the case of a female prisoner and of a male
prisoner under 20 years of age at the time of
commission of offence who is undergoing-
imprisonment s for life. imprisonment s for life and a term s of
imprisonment. cumulative periods of rigorous imprisonment
aggregating to more than 10 years. or
a single sentence of more than 20 years shall be
submitted through the inspector general of
prisons punjab for the orders of the state
government when the prisoner has undergone a
period of detention in jail amounting together
with remission earned to 10 years. numberwithstanding anything companytained above a
superintendent jail may in his discretion refer
at any time for the orders of the state
government through the inspector-general of
prisoners punjab the case of any prisoner
sentenced to imprisonment for life whose sentence
might in the superintendents opinion be suitably
commuted into a term of imprisonment. it appears that from time to time the state government
had been examining the question of and the procedure for
submission of roles for pre-mature release of prisoners as
contained in the aforesaid para 516-b of the manual and
after companysiderable deliberation the state government took a
policy decision in 1971 and issued instructions hereinafter
called the 1971 instructions providing that a period of
actual sentence of 8 years in the case of adult lifers and 6
years in the case of female prisoners and those below 20
years of age at the time of the companymission of the offence
should be regarded as the qualifying period for
consideration of their cases for pre-mature release and in
this behalf a memorandum number 133116jj-71/39656 dated 10th of
numberember 1971 companytaining the aforesaid instructions was
issued by the state government to the inspector-general of
prisons punjab and it was clarified that all cases of
prisoners should be sent for companysideration of their pre-
mature release in the light of said policy decision with
effect from 2nd of numberember 1971. it further appears that
the question of releasing pre-maturely life companyvicts whose
death sentence has been companymuted was again companysidered by the
state government and it took a policy decision in january
1976 that cases of such life companyvicts should be companysidered
for pre-mature release only after companypletion 14 years of
actual imprisonment and in that behalf a memorandum number 403-
6jj-76/3456 dated 30th january 1976 companytaining the
necessary instructions hereinafter called the 1976
instructions was issued by the state government to the
inspector-general of prisons punjab with a
request to direct the superintendents of jails to submit
cases of such life companyvicts for pre-mature release
accordingly. companyies of the memoranda dated 10th of
numberember 1971 and 30th january 1976 have been annexed as
annexures and to the affidavit of shri c.l. goel in support
of the slp number499/1983 filed by the state of punjab in
naranjan singhs case. proceedings of slp number 499/83 were
made available to us at the hearing. it may be stated that
these 1971 instructions and 1976 instructions though number
incorporated in the punjab jail manual as yet are being
followed and implemented and it appears that relying on
these instructions the jail authorities are number submitting
cases of the companycerned lifers to the state government for
pre-mature release though they may have suffered the
qualifying punishment under para 516-b of the manual. hence
counsel for the petitioners herein has raised the two
contentions mentioned above. in our view for the reasons
which we are indicating presently there is numbersubstance in
either of these companytentions. it is well settled as result of the privy companyncil
decision in pandit kishorilals 1 case and this companyrts
decisions in gopal godses 2 case maru rams 3 case and
kartar singhs 4 case that a sentence of imprisonment for
life is a sentence for the remainder of the natural life of
the companyvict and there is numberquestion releasing such a
convict earlier in the absence of a formal order of
commutation passed by the state government either under sec. 55 ipc. or sec 433 b of cr. p.c. 1973 and that even the
remission rules though statutory cannumber over-ride the
statutory provisions companytained in the penal companye. in other
words unlike the cases of prisoners sentenced to terms of
imprisonment in the case of lifers even the remission rules
though statutory are of numberavail in the absence of a formal
order of companymutation either under sec. 55 ipc. or sec. 433
b of cr. p.c. 1973. admittedly in the case of numbere of the
petitioners before us has any order of companymutation been
passed by the state government under either of the said
provisions and the petitioners are merely relying upon para
516-b of the punjab jail manual for companytending that they are
entitled to have their cases companysidered for pre-mature
release since they have undergone the requisite period of
punishment-14 years/10 years inclusive of remissions as per
the provisions of the said para and the companytention is
that since para 516-b has the force of statutory rule the
subsequent executive instructions the 1971 instructions or
the 1976 instructions issued by the state government cannumber
adversely affect their said right in as much as the effect
of a statutory rule cannumber be whittled down by executive
instructions. on the other hand companynsel for the state
contended that the provisions companytained in para 516-b were
themselves executive instructions and number a statutory rule
and as such these companyld be amended or altered from time to
time by fresh executive instructions issued by the state
government and therefore the petitioners cases were number
submitted to the companycerned authorities for companysideration of
their pre-mature release because of the subsequent executive
instructions issued in 1971 and 1976. we find ample material
on record which supports the companytention of companynsel for the
state. in the first place it may be stated that the marginal
numbere against para 516-b of the punjab jail manual 1975
edition clearly shows that the provisions thereof are based
on a government of india resolution number 159-167 dated 6th
september 1905 companyy whereof was produced before us and the
contents of the resolution clearly show that various
questions such as the places where transported prisoners
should be kept the nature of their punishment remission of
sentences pre-mature releases etc. had engaged the
attention of government of india and decisions were taken on
those questions. in particular the resolution records that
the majority of the authorities companysulted were in favour of
the proposal of the u.p. government that when the term of
imprisonment undergone together with any remission earned
under the rules amounted to 14 years the question of
remitting the remainder of the imprisonment should be raised
and the governumber-general in companyncil was accordingly pleased
to direct that such a rule shall be ordinarily adopted in
future though he would number however lay down that such
prisoners must always be released at the end of the 14 years
and it would still be open to and indeed incumbent on the
local government to take into companysideration when deciding
on the remission to be granted circumstances of each case
the character of the companyvict his companyduct in prison and the
probability of his reverting to criminal habits or
instigating others to companymit crimes. what is more companyies of
the resolution were forwarded to various state government
for information and guidance. this clearly shows that the
contents of governments resolution dated 6th september
1905 on which para 516-b of the punjab jail manual is
based were in the nature of executive instructions by way
of guidance and number any hard and fast rule
must less a statutory rule. secondly this position has been
sufficiently clarified at two places in the punjab jail
manual 1975 edition itself. in the preface to that edition
it has been clearly stated that the paragraphs of the manual
against which a black line side-line appears are in
substance either quotations from the law or from the rules
having the force of the law while the portions of the manual
without a black line side-line are executive instruction
which have from time to time been issued by the government
of india local government or the inspector general with the
sanction and approval from the local government and para
516-b is number side-lined by any black line. again chapter xx
which deals with remission system companytains para 631 to 650
which companyprise what in terms are called remission rules
presumably having statutory force since these paras are all
side-lined but what is of importance is that at the foot of
para 631 there is a numbere which is numberhing but a reproduction
of para 516-b and at the end of remission rules foot of
para 650 there is a numbera bene which says that the numbere to
para 631 should number be regarded as part of the statutory
rules but the same has been inserted for companyvenience of
reference and with the object of assisting officers to
interpret the rules. it is thus clear that para 516-b of the
manual itself companytained executive instructions and had no
force of a statutory rule. if that be so it would always be
open to the state government from time to time to alter or
amend or even withdraw such executive instructions by
issuing fresh instruction. in other words any existing
executive instructions companyld be substituted by issuing fresh
executive instructions for processing the cases of lifers
for premature release but once issued these must be
uniformly and invariably applied to all cases of lifers so
as to avoid the charge of discrimination under art. 14.
reliance by companynsel for the petitioners on the punjab
high companyrts decision in naranjan singhs case would be of
numberavail however we would like to observe that in that case
the fact that the state government had issued the 1971
instructions which substituted para 516-b of the manual was
number properly placed before it and in the absence of such
proper material the high companyrt took the view that the
convicts case for per-mature release was required to be
considered in the light of the provisions of para 516-b. the
view of the punjab high companyrt cannumber obviously be accepted. the first companytention urged by companynsel therefore has to be
rejected. the second companytention also must fail in view of the
admitted position that cases of prisoners who have been
sentenced to death but whose sentence on mercy petitions has
been companymuted to life imprisonment who companystitute a
distinct class will number be governed by the 1976
instructions. here also the view of the punjab high companyrt in
the case of mehar singh supra that the 1976 instructions
issued on 30th of january 1976 will number be applicable to
cases of prisoners companyvicted earlier to that date is number
tenable. clearly existing cases of life companyvicts falling
within that category will be governed by those instructions. it is true that slp crl number 2142/1982 preferred by state
of punjab against that decision was dismissed by this companyrt
on 18th february 1983 but the dismissal order passed by
this companyrt itself indicates that this companyrt did so number
because it approved the view of the punjab high companyrt but
that it did number companysider this to be a proper cases for
interference in view of the peculiar facts of that case. this companyrt did number desire on the facts of that case to
interfere with the direction given that the case of the
convict should be submitted for companysideration of his
premature release. having regard to the above discussion it is clear there
is numberentitlement on the part of the petitioners other than
jang singh and mukhtiar singh to have their cases companysidered
for pre-mature release immediately in view of 1971/1976
instruction. their writ petitions are therefore dismissed. so far as jang singh s o bagga singh and mukhtiar singh
s o harnam singh are companycerned even the companynter affidavit of
shri k.c. |
K.SIKRI, J. A short question of law arises for companysideration in these appeals. All the appeals are filed by the same party, namely, Mahabir Industries hereinafter referred to as the assessee in which companymon respondent is Principal Commissioner of Income Tax hereinafter referred to as the Department . Before stating Signature Not Verified the question of law, it may be necessary to mention in brief the Digitally signed by SUSHIL KUMAR RAKHEJA Date 2018.05.18 background under which the said question of law has arisen 170549 IST Reason Civil Appeal No s . 4765-4766 of 2018 Anr. Page 1 of 15 inasmuch as this background would be an enabling factor in understanding the true ambit and scope of the question of law. The assessee manufactures polythene for which it is having its factory in Shimla, Himachal Pradesh. The activity undertaken by the assessee, an industrial undertaking, qualified for exemption from income tax under Section 80-IA of the Income Tax Act hereinafter referred to as the Act . Section 80-IA of the Act provides for deductions in respect of profits and gains from industrial undertakings or enterprises engaged in infrastructure development etc. if it fulfills the companyditions mentioned in subsection 4 thereof. Such a deduction is of an amount equal to hundred per cent of the profits and gains derived from such business for ten companysecutive Assessment Years. In nutshell, those undertakings or enterprises, which fulfill the companyditions mentioned in sub-section 4 of Section 80-IA of the Act, are entitled to total deductions of their profits, which means, numbertax is payable and the period for which such undertakings or enterprises are exempted from payment of tax is ten companysecutive Assessment Years. The assessee admittedly qualified for this deduction which it started availing from the Assessment Year 1998-99. This deduction under Section 80-IA was claimed and allowed for two Assessment Years i.e. 1998-99 and 1999-2000. Civil Appeal No s . 4765-4766 of 2018 Anr. Page 2 of 15 Section 80-IA of the Act was originally introduced in the year 1991 by the Finance No.2 Act, 1991 w.e.f. April 1, 1991. There were amendments in the Section from time to time. This Section was amended by the Finance Act, 1999 w.e.f. April 1, 2000. Along with this provision, Section 80-IB was also introduced for the first time by the same Finance Act, 1999. This provision allows deduction in respect of profits and gains from certain industrial undertakings other than infrastructure development undertakings. Deduction from such profits and gains is of an amount equal to such percentage and for such number of Assessment Years as specified in Section 80-IB. Sub-section 4 of Section 80-IB provides for hundred per cent deduction for a period of five years and thereafter twenty-five per cent. First proviso thereto states that total period of deduction is number to exceed ten companysecutive Assessment Years. Second proviso is a specific provision for industries in the North-Eastern Region to which we shall advert to at the appropriate stage. Sub-section 2 enumerates the companyditions which are to be fulfilled by such industrial undertakings in order to qualify for deductions from profits and gains under that provision. Civil Appeal No s . 4765-4766 of 2018 Anr. Page 3 of 15 As mentioned above, for the Assessment Years 1998-99 and 1999-2000 i.e. two Assessment Years , the assessee was allowed deduction under Section 80-IA. From the Assessment Year 2000-01 to Assessment Year 2005-06, the assessee claimed deduction under Section 80-IB. Interestingly, another provision in the form of Section 80-IC was inserted by Finance Act, 2003 w.e.f. April 1, 2004. As per this provision, certain undertakings or enterprises in certain special category States are allowed deduction from such profits and gains, as specified in sub-section 3 of Section 80-IC. The provisions of Section 80-IC provided deduction to manufacturing units situated in the State of Sikkim, Himachal Pradesh and Uttaranchal and North-Eastern States. The deduction was provided to new units established in the aforesaid States, and also to existing units in those States if substantial expansion was carried out. The deduction was available 100 for ten Assessment Years for the units located in North-Eastern and in the State of Sikkim and for the units located in Himachal Pradesh, the deduction was available 100 for five years and 25 for next five years. The assessee companypleted substantial expansion by investing in new plant and machinery of value more than 50 of the value of plant and machinery already installed as on 1 April, Civil Appeal No s . 4765-4766 of 2018 Anr. Page 4 of 15 2005 to the manufacturing unit situated at Baddi, Himachal Pradesh in the Assessment Year 2006-07. In view of the substantial expansion, the accused claimed deduction under Section 80-IC 100 for Assessment Years 2006-07 and 2007- 08, which was also allowed by the Assessing Officer AO after passing the order under Section 143 3 of the Act. Sub-section 3 , as numbered above, mentions the period of ten Assessment Years companymencing with the initial Assessment Year. Sub-section 6 may also be taken numbere of at this stage which reads as under Notwithstanding anything companytained in this Act, numberdeduction shall be allowed to any undertaking or enterprise under this section, where the total period of deduction inclusive of the period of deduction under this section, or under the second proviso to sub-section 4 of section 80- IB or under section 10C, as the case may be, exceeds ten assessment years. As numbered above, the assessee had carried out substantial expansion in the Assessment Year 2006-07 and, therefore, claimed exemption under Section 80-IC of the Act for Assessment Year 2006-07 onwards. Deductions for the year 2006-07 and 2007-08 were allowed. However, thereafter, deductions for the Assessment Year 2008-09 and Assessment Year 2009-2010 were rejected by the AO on the ground that this was 11 th and 12th year of deduction and as per Section 80-IC 6 , total deductions under Civil Appeal No s . 4765-4766 of 2018 Anr. Page 5 of 15 Section 80-IC and Section 80-IB cannot exceed the total period of ten years. Commissioner of Income Tax Appeals CIT A and Income Tax Appellate Tribunal ITAT upheld the order of the AO. The High Court took up the appeals of the assessee along with other similar enterprises who had claimed the benefits. It framed the following question in those appeals The moot issue involved in these appeals, inter alia, is as to whether an undertaking or an enterprise hereinafter referred to as the Unit , established after 7 th January, 2003, carrying out substantial expansion within the specified window period, i.e. between 7.1.2003 and 1.4.2012, would be entitled to deduction on profits 100, under Section 80-IC of the Income Tax Act. Also, if so, then for what period. This question has been decided in favour of all the assessees. However, insofar as the assessee herein is companycerned, keeping in view that there is a ceiling of ten years as stipulated under Section 80-IC 6 , the High Court has held that ten years period shall be companynted from the Assessment Year 1998-99 when the assessee had claimed deduction for the first time under Section 80-IA and, therefore, deductions for the Assessment Years 2008- 09 and 2009-2010 would number be allowed. This is clear from the following discussion in the High Court judgment The moment substantial expansion is companypleted as per Section 80-IC 8 ix , the statutory definition of initial assessment year Section 80-IC 8 v companyes into play. And companysequently, Section 80-IC 3 ii entitles the unit to 100 deduction for five years companymencing with companypletion Civil Appeal No s . 4765-4766 of 2018 Anr. Page 6 of 15 of substantial expansion, subject to maximum of ten years as per Section 80-IC 6 . A unit that started operating existed before 7.1.2003 was entitled to 100 deduction for first five years under Section 80-IB 4 . If this unit companypletes substantial expansion during the window period 7.1.2003 to 31.3.2012 , it would be eligible for 100 deduction again for another five years under Section 80-IC 3 ii , subject to ceiling of ten years as stipulated under Section 80-IC 6 . Applying the aforesaid interpretation, we find there can be different fact situations, some of which, we have tried to illustrate i a Unit established prior to 7.1.2003, claiming deduction under Section 80-IB, post insertion of Section 80-IC carries out substantial expansion, would be entitled to deduction only under Section 80-IC, at the admissible percentage, for the remaining period, which in any case when companybined, cannot exceed ten years, ii just as in the case of the present assessee, a unit established after 7.1.2003, carries out substantial expansion only in the 8th year of its establishment, for the first five years would have already claimed deduction 100 for the 6th and 7th years 25, and then for the period post substantial expansion, in our companysidered view, the initial year of assessment being in the 8th year, would be entitled for deduction 100, subject to the cap of ten assessment years, iii the assessee establishes a unit after January 2003, say in the year 2005-06 and claims deduction under Section 80-IC for the first time in the assessment year 2006-2007 100 of its profits. Thereafter, substantially expands the Unit in the year 2009-10, relevant to Assessment Year 2010-11 can claim deduction 100 for next five years subject to the cap of ten assessment years, iv an existing unit number claiming any deduction under Section 80-IA, 80-IB or 80-IC substantially expands in the year 2003 and claims deduction under Section 80-IC first time in Assessment Year 2004-2005 and then substantially expands in the year 2007-2008, can claim deduction 100 w.e.f. Assessment Year 2008-2009 for next five years, v the assessee sets up its unit in the year 2000- 2001, claiming deduction under Section 80-IB till the Assessment Year 2003-2004 and thereafter under Section 80-IC as per law. Carrying out Substantial expansion in the Assessment Year 2004-2005, number claims deduction 100 w.e.f. Assessment Year 2004-05 again substantially expands in the Assessment Year 2008-2009 can claim Civil Appeal No s . 4765-4766 of 2018 Anr. Page 7 of 15 100 deduction w.e.f. 2008-2009, vi the assessee sets up a unit in the year 2005-2006 and does number undergo substantial expansion at all can claim deduction under Section 80-IC. As can be discerned, all other aspects are decided in favour of the assessees except what is illustrated at i and iv . However, the effect thereof is that insofar as appeals of the assessee herein are companycerned, they are dismissed on the ground that it cannot claim deduction under Sections 80-IC, 80-IB or 10C for a period exceeding ten years. In this backdrop, the questions of law which have been framed by the assessee in these appeals are the following Whether the Honble High Court was justified in holding that the petitioner was number entitled to deduction under Section 80-IC of the Act by virtue of provision sub-section 6 , when the same was number even applicable to the petitioner? Whether the Honble High Court was justified in holding that the provisions of Section 80-IC 6 of the Act apply to all the undertaking claiming deduction under Section 80-IB 4 of the Act when 80-IC 6 refers to only those undertakings which are companyered by second proviso to Section 80-IB 4 ? Whether the Honble High Court was justified in holding that the petitioner is number eligible for deduction under Section 80-IC for a period of 10 assessment years when substantial expansion was carried out by the Petitioner and a substantially new unit was claiming deduction under Section 80-IC of the Act? Whether the Honble High Court was justified in holding that the petitioner was number entitled to deduction under Section 80-IC of the Act for assessment year 2008-09 and Civil Appeal No s . 4765-4766 of 2018 Anr. Page 8 of 15 2009-10 when the total period of deduction of ten years was expiring after assessment year 2009-10? As can be seen from the reading of paras 46 and 47 of the High Court judgment, it has taken a categorical view that the moment substantial expansion is companypleted as per Section 80-IC 8 ix , the statutory definition of initial assessment year Section 80- IC 8 v companyes into play. As a companysequence, Section 80-IC 3 ii would entitle the unit to hundred per cent deduction for five years companymencing with companypletion of substantial expansion followed by twenty-five per cent deduction for next five years i.e. subject to maximum of ten years. Thus, the High Court accepts that when the substantial expansion is done in a particular Assessment Year and that is made during the period mentioned in sub-section 2 of Section 80-IC, number only benefit admissible under Section 80-IC shall get triggered, the year in which such substantial expansion is companypleted is to be treated as initial assessment year. Having said so, it has put a cap of ten years by invoking the provision of Section 80-IC 6 . We have already reproduced the provisions of sub-section 6 of Section 80-IC. As per this provision, numberdeduction is allowed to any undertaking or enterprise under this Section, where the total period of deduction inclusive of the period of deduction under this Section, or under the second Civil Appeal No s . 4765-4766 of 2018 Anr. Page 9 of 15 proviso to sub-section 4 of Section 80-IB or under Section 10C, as the case may be, exceeds ten assessment years. The total period of ten years, thus, is to be companynted in the following three circumstances When the deduction has been given under Section 80-IC for a period of ten years, numberfurther deduction is admissible. When the deduction is given under second proviso to subsection 4 of Section 80-IB. The said second proviso reads as under Provided further than in the case of such industries in the North-Eastern Region, as may be numberified by the Central Government, the amount of deduction shall be hundred per cent. of profits and gains for a period of ten assessment years, and the total period of deduction shall in such a case number exceed ten assessment years. This provision pertains to those industries which are in the North-Eastern Region. When the deduction is claimed under Section 10C. It is again a special provision in respect of certain industrial undertakings in North-Eastern Region. The assessee in the instant case has number got deduction under Section 80-IC for a period of ten years as he started claiming deduction under this provision w.e.f. Assessment Year 2006-07. Situation Nos. b and c mentioned above would number apply to the Civil Appeal No s . 4765-4766 of 2018 Anr. Page 10 of 15 assessee as its undertaking enterprise is number established in North-Eastern Region. It is, thus, clear that the High Court has failed to appreciate that the provisions of Section 80-IC 6 of the Act state that the total period of deduction under Section 80-IC and Section 80-IB cannot exceed ten assessment years only if the manufacturing unit was claiming deduction under second proviso to Section 80-IB 4 of the Act i.e. units located in the North-Eastern State. The matter can be looked into from another angle. Under Section 80-IA, deduction is provided to such industrial undertakings or enterprises which are engaged in infrastructure development etc. provided they fulfill the companyditions mentioned in sub-section 4 thereof. Section 80-IB makes provisions for deduction in respect of those industrial undertakings, other than infrastructure development undertakings, which are enumerated in the said provision. On the other hand, the intention behind Section 80-IC is to grant deduction to the units making new investments in the State by establishing new manufacturing unit or even to the existing manufacturing unit which carried out substantial expansions. The purport behind the three types of deductions specified in Section 80-IA, Section 80-IB and Section 80-IC is, thus, different. Section 80-IC stipulates the period for which Civil Appeal No s . 4765-4766 of 2018 Anr. Page 11 of 15 hundred per cent deduction is to be given and then deduction at reduced rates is to be given. If the assessee had earlier availed deduction under Section 80-IA and Section 80-IB, that would be of numberconcern inasmuch as on carrying out substantial expansion, which was carried out and companypleted in the Assessment Year 2006-07, the assessee became entitled to deduction under Section 80-IC from the initial year. The term initial year is referable to the year in which substantial expansion has been companypleted, which legal position is stated by the High Court itself and even accepted by the Department as it has number challenged that part of the judgment. The inclusion of period for the deduction is availed under Section 80-IA and Section 80-IB, for the purpose of companynting ten years, is provided in sub-section 6 of Section 80-IC and it is limited to those industrial undertakings or enterprises which are set-up in the North-Eastern Region. By making specific provision of this kind, the Legislature has shown its intent, namely, where the industry is number located in North- Eastern State, the period for which deduction is availed earlier by an assessee under Section 80-IA and Section 80-IB will number be reckoned for the purpose of availing benefit of deduction under Section 80-IC of the Act. Civil Appeal No s . 4765-4766 of 2018 Anr. Page 12 of 15 Learned companynsel for the Revenue companyld number dispute that subsection 6 of Section 80-IC would get attracted when the industry is located in the North-Eastern Region. Having faced with this situation, he raised an altogether different argument for companysideration by referring to Section 15C of the Income Tax Act, 1922 hereinafter referred to as the 1922 Act , which was also a provision which granted exemption from income in respect of newly established industrial undertaking. He submitted that this Court in Textile Machinery Corporation Limited, Calcutta v. The Commissioner of Income Tax, West Bengal, Calcutta 1 has held that the true test for ascertaining whether industrial undertaking is formed by reconstruction of business already in existence which was the expression used in Section 15C of 1922 Act , is number whether the new industrial undertaking companynotes expansion of the existing business of the assessee but whether it is a new and identifiable undertaking separate and distinct from existing business. In fine, the endeavour of learned senior companynsel was that the assessee cannot be treated as an industrial undertaking which has reconstructed the business i.e. made substantial expansion. This argument has to be rejected for at least two reasons 1 1977 2 SCC 368 Civil Appeal No s . 4765-4766 of 2018 Anr. Page 13 of 15 Section 15C of the 1922 Act provided exemption from tax to newly established industrial undertaking if they are number formed by reconstruction of business already in existence. Thus, under the said provision, if it was found that an industrial undertaking is formed by reconstruction of business already in existence, then it was entitled to any exemption under Section 15C. It is in that companytext the Court was companysidering the meaning of reconstruction of business. On the other hand, the words under Section 80-IC are substantial expansion. Thus, discussion companytained in the said judgment would have numberapplication to the instant case. Insofar as the factum of substantial expansion of the assessees unit in the Assessment Year 2006-07 is companycerned, the same is number subject matter of any companytroversy in the instant case. It has been accepted by the Department that assessee had carried out substantial expansion. |
Fakkir Mohamed Ibrahim Kalifulla, J. Leave granted. These appeals are directed against the order dated 29.9.2014 in Execution Application No.643 of 2013 in Award dated 23.12.2011 with Chamber Summons No.832 of 2014. To briefly numbere the facts, there was a Licence Agreement between the appellant and the respondent dated 22.2.1993 which provided for settlement of disputes by way of arbitration in accordance with the Rules of the Dutch Arbitration Institute. The said agreement was sought to be terminated by a numberice by the respondent on 12.3.2007. The termination was to take effect from 23.02.2008. The dispute went before the Arbitral Tribunal. On 11.6.2008, the appellant filed an application for registration of Patent Nos.10-0865115 and 100909490 in the United States as well as in India. In the arbitral proceedings, a Partial Final Award for short, PFA came to be passed by the Arbitral Trinunal on 23.12.2011. We are presently companycerned with the Indian Patents in which the appellants rights and interest were involved, namely, Patent Nos. 2143/MUM/2008 and 2144/MUM/2008. The relevant part of the award viz paragraphs 7 and 9, of the PFA reads as under- Respondent to, within 30 days following the numberification of the arbitration award, unconditionally and irrevocably, fully transfer all rights and interests of Indian Patent No.2143/MUM/2008 and 2144/MUM/2008 to Claimant, or a companypany designated by Claimant, and sign execute and submit, at the first request of Claimant, and within 3 days following such request, all the documents that are required to effect such patent rights and interests transfer in accordance with the requirements of the Indian Patent Act and applicable Indian laws and to simultaneously provide companyies of all the relevant companyrespondence relating to such transfer to the attorney of Claimant by fax and registered post fax 31-20-6513001, HIL International Lawyers Advisers, PO Box 22678, 1100 DD Amsterdam, the Netherlands 8. xxx xxx xxx Respondent to pay a direct enforcement penalty in the amount of Euro 50,000 for each case in which Respondent infringes the arbitral orders sub 7 and 8 above, and Euro 5,000 for each day the infringement companytinues The Award dated 23.12.2011 was companymunicated to the parties by the Arbitral Tribunal on 27.12.2011. Therefore, the period of thirty days, fixed in paragraph 7, was to start from 27.12.2011. Closely followed by that, the respondent forwarded its request dated 19.1.2012 in the form of a letter companymunicated by the Advocate of the respondent to the appellant by enclosing the required documents to be executed by the appellant for the purpose of transfer of the patents. In the opening paragraph of the draft transfer deed a reference was made to PFA rendered on 23.12.2011 of CASE NAI 3625, in order to ascertain the obligation of the appellant to execute the transfer of the patents. It is number in dispute that subsequent to the said letter dated 19.1.2012 and the enclosures, discussions were held between January and March, 2012 among the advocates of the appellant and the respondent to finalize the draft deed of transfer. Thereafter, again at the instance of the respondent through a companymunication dated 3.4.2012 of the respondents lawyers addressed to the appellant a redraft of the deed of transfer was enclosed, which was dated 4.4.2012. In the opening part of the said Deed, the reference to PFA, which was mentioned in the earlier draft transfer deed, was omitted. In other respects, the draft remained the same which companytained a clause under the caption Consideration to the effect, Pursuant to the above, the Parties agree that the companysideration for the sale and transfer of the patent and the patent rights shall be US 1 United States Dollar One , receipt of which is hereby acknowledged. That apart, in clause 5.5 of the re-draft it was mentioned that arbitration of the dispute arising out of or in companynection with the deed should be initially settled under the Rules of Singapore International Arbitration Centre by a Sole Arbitrator appointed in accordance with the said Rules and the proceedings should be in English and the seat of arbitration should be Singapore. Insofar as the said clause was companycerned, the same was different than the one which was companytained in the earlier draft, as per which the arbitration was to be carried out with the Rules and provisions by Netherlands Arbitration Institute and the venue of the arbitration as Hague, The Netherlands and governing law was also mentioned as the laws in force in the Netherlands and the Courts at Netherlands to have jurisdiction. In the draft dated 4.4.2012 the governing law was to be the laws in force in India. The appellant received the re-draft by way of e-mail on 3.4.2012 with a direction to the appellant to sign the document, get it legalized by the Indian Embassy in Seoul and dispatch the same to the respondents lawyers in Amsterdam. The appellant executed the deed of transfer dated 4.4.2012 and thereby transferred all its rights and interests in the Indian Patents in favour of the respondent. The appellants lawyers sent an electronic companyy of the said document to the respondent duly numberarized with an assurance that the original would be promptly companyriered to the respondent upon companyfirmation. In response to the same, the lawyers of the respondent in their e-mail dated 11.4.2012 intimated that the signature part of the deed was companyrectly executed by the appellant and also wanted the original deed to be sent by companyrier to their Amsterdam Office for carrying out other additional formalities for effecting the transfer. Simultaneously, their lawyers also on the same day informed the respondent companyfirming the forwarding of the transfer deed for effecting the transfer of the patent applications duly signed by the appellant. The original document was also forwarded to the lawyers of the respondent on 12.4.2012. However, it appears that the respondent had its own issue with its lawyers as regards the draft as well as the final deed executed by the appellant in favour of the respondent which came to light when the present proceedings before the High Court was launched by the respondent. The same was reflected in the companymunication dated 12.4.2012 addressed by the representative of the respondent to its lawyers. Thereafter, the next companymunication was dated 3.12.2012 by the respondents lawyer addressed by way of an e-mail to the appellants lawyer suggesting that the transaction can be by way of trade sale of the appellants business. On behalf of the appellant, its lawyer sent a reply dated 11.12.2012 taking the definite stand that after the execution of the transfer deed dated 4.4.2012 the requirement of the obligation to be fulfilled by the appellant was duly companyplied with as per the PFA dated 23.12.2011. Thereafter, by another companymunication dated 15.3.2013, the respondents lawyers sent a fresh e-mail to the appellants lawyers informing that fresh steps are required to be taken to arrive at a final settlement of disputes. The said e-mail was also replied on behalf of the appellant on 20.3.2013 wherein the respondent was reminded as to the companyfirmation of the steps taken based on the transfer deed executed by them. For the first time, on 8.6.2013, by way of e-mail at the instance of the respondents lawyers it was intimated that respondent was number willing to accept the transfer of Indian Patents based on the language used in the draft deed as signed by the appellant. The said e-mail was also duly replied on behalf of the appellant on 15.6.2013 pointing out that the deed was executed as per the draft forwarded to the respondent by their lawyers and companysequently the appellant was number in any way liable for either any delay or for the terms companytained in the transfer deed. It was in the above-stated background the present application came to be filed by the respondent on 8.7.2013 before the High Court of Bombay for the enforcement of paragraph 7 of the PFA dated 23.12.2011. By the impugned order, the learned Single Judge held that there was a material alteration in the draft deed forwarded by the respondent to the appellant when the final deed was executed in the deed dated 4.4.2012 and companysequently, the appellant is bound to execute a transfer deed of assignment as per the draft sent by the award holder, namely, the respondent as was originally forwarded to the appellant. With that view, the learned Judge directed the appellant to execute the deed of transfer and assignment of Patent Nos. 2143/MUM/2008 and 2144/MUM/2008 in favour of the award holder in terms of Annexure P6 to the Execution Application incorporating therein the companyplete recital B and the Arbitration Clause 5.5 showing the future arbitration in Netherlands within two weeks from the date of the order. Aggrieved by the impugned order, the appellant is before us. We heard Mr. K.V. Vishwanathan, learned senior companynsel appearing for the appellant and Mr. Manoj K. Singh, learned companynsel appearing for the respondent. Having drawn our attention to the above factual details which emanated after the passing of PFA dated 23.12.2011, Mr. Vishwanathan, learned senior companynsel, companytended that when the application was initially moved, the respondent failed to bring to the numberice of the Court about the extensive companyrespondence which took place between 19.1.2012 and 15.6.2013, that after the appellant in its Chamber Summons brought to the numberice of the Court the relevant information, namely, the re-draft sent by the respondent on 3.4.2012 which companytained the variation in para B as between the one companytained in the earlier draft of 19.1.2012 and 3.4.2012 as well as the arbitration clause and the governing law companytained in paragraphs 5.5 and 5.6, the respondent for the first time in their rejoinder referred to those documents. The learned senior companynsel pointed out that learned Judge companypletely omitted to take numbere of such relevant factors and proceeded to hold as though the draft sent by the respondent on 19.1.2012 alone was material and that the changes found in the final deed dated 4.4.2012 was at the instance of the appellant which unfortunately led to the passing of the impugned order. In reply, Mr. Singh, learned companynsel appearing for the respondent, was number able to companytrovert the factual position, namely, that the first request of the respondent after the PFA dated 23.12.2011 was 19.1.2012, that along with the said companymunication the draft deed of transfer to be executed by the appellant was forwarded to it, that after detailed discussions between January and March, 2012, the re-draft was forwarded by the respondent on 3.4.2012 wherein the reference to PFA in the opening paragraph of the earlier draft was omitted and that the paragraphs relating to companysideration was specified apart from the change about the venue and the applicable Rules of the Arbitral Tribunal was numbered as Singapore instead of Netherlands and the governing law applicable was also changed from Netherlands to India. Learned companynsel was also number able to companytrovert any of the other subsequent companyrespondence exchanged between the appellant and the respondent between 11.4.2012 and 15.6.2013. Having regard to the said development which had taken place after the PFA dated 23.12.2011 which discloses that the appellant did number companymit any default in companyplying with the direction of the said Award and, therefore, the present direction of the learned Judge in the impugned order was wholly unwarranted. If the respondent failed to act based on the final transfer deed executed by the appellant on 4.4.4012, which was in tune with the draft forwarded by the respondent themselves, the appellant cannot be in any way blamed for the misfeasance companymitted by the respondent. In the above-stated background, when we companysider the prayer of the respondent as claimed in the application, the prayer was for a direction to the appellant to execute the deed of transfer and assignment of Patent Nos. 2143/MUM/2008 and 2144/MUM/2008 in favour of the respondent in terms of the draft deed in Annexure P6, which was dated 4.4.2012. In fact the learned Judge, as rightly pointed out by Mr. Vishwanathan, learned senior companynsel for the appellant, companypletely missed to numbere that based on the companyrespondence exchanged between the respondent and the appellant between 19.1.2012 and 3.4.2012 Annexure P6 which was dated 4.4.2012 was the ultimate transfer deed which the appellant was obliged to execute, that the appellant duly executed the said document by signing the same on 4.4.2012 and forwarded to the respondents lawyers on 9.4.2012 and the due execution of which was also companyfirmed on behalf of the respondent by their lawyers on 11.4.2012. A further companyfirmation was made by the respondents companynsel to the respondent themselves on the same day, i.e. 11.4.2012 as to the execution of the transfer deed dated 4.4.2012. The original documents were also forwarded by the appellant on 12.4.2012. After the above referred sequence of events as regards Annexure P6 dated 4.4.2012 are numbered, it must be held that the direction companytained in paragraph 7 of the PFA of the Arbitral Tribunal was duly carried out by the appellant based on the first request of the respondent themselves as made on 19.1.2012 and as per the modified request dated 3.4.2012. |
CIVIL APPELLATE JURISDICTION Civil Appeal No. 955 of 1981. From the Judgment and Order dated 11.5.79 of the Allahabad High Court in W.P. No. 3048 of 1973. N. Lekhi and M.K. Garg for the Appellant. M. Sinha, Deepak Jaiswal and Pramod Swarup for the Respondents. The Judgment of the Court was delivered by VERMA, J. This appeal by special leave under Article 136 of the Constitution of India is against the judgment of a learned Single Judge of the Allahabad High Court in Writ Petition No. 3048 of 1973 decided on May 11, 1979. The subject-matter of the dispute is a holding companyprising of Khata No. 141 in village Khera, Laxmipur, Pargana Kashipur in District Naimtal of which one Chain Sukh was initially the occupancy tenant. The said Chain Sukh died issueless prior to the date of vesting, that is, 1.7.1952 under the U.P. Zamindari Abolition and Land Reforms Act, 1950 hereinafter referred to as the Zamindari Abolition Act survived by his widow, Smt. Sukhia. The interest of Chain Sukh as the occupancy tenant of the holding devolved upon his widow, Smt. Sukhia, in accordance with section 35 of the United Provinces Tenancy Act, 1939 hereinafter referred to as the Tenancy Act in the absence of any male lineal descendant of Chain Sukh. The appellant, Smt. Mainia, is the sister of deceased Chain Sukh. Even according to the appellant, Smt. Mainia, Chain Sukhs widow, Smt. Sukhia, remarried Gopal Singh in Karwa form according to the caste custom about two years after the death of Chain Sukh and a son, Chander Pal, respondent No. 4, was born to Sukhia during her wedlock with Gopal Singh. Smt. Sukhia companytinued to remain in possession of this holding till her death in 1965. A dispute arose between appellant, Smt. Mainia and respondent No. 4, Chander Pal, during the companysolidation proceedings under the U.P. Consolidation of Land Holdings Act in respect of this holding, each of them claiming sole interest therein to the exclusion of the other. Ultimately, the Consolidation Officer, Afzalgarh, by his order dated 29.1.1972 Annexure III passed under section 9-A of the Act dismissed Chander Pals claim to the holding. The Consolidation Officer held that Smt. Sukhia on her remarriage with Gopal Singh lost her interest in the holding and by virtue of section 171 of the Zamindari Abolition Act, appellant, Smt. Mainia, being the sister of Chain Sukh inherited the interest in the holding. It was held that Chander Pal, number being the son of Smt. Sukhia from Chain Sukh but the son born to Smt. Sukhia after her remarriage with Gopal Singh, companyld number inherit as a heir of Chain Sukh. The Settlement Officer, Consolidation, Nainital dismissed Chander .Pals appeal under Section 11 against the order of the Consolidation Officer by order dated 14.2.1972 Annexure IV . However, the Settlement Officer held that even though Smt. Sukhia lived in the house of Gopal Singh for several years there is numberpositive evidence of her remarriage with Gopal Singh and therefore a legal marriage of Smt. Sukhia with Gopal Singh is number proved. It was held that Smt. Sukhia cultivated the land throughout as the widow of Chain Sukh and therefore Chain Sukhs sister Smt. Mainia inherited it after the death of Smt. Sukhia. A revision by Chander Pal to the Deputy Director Consolidation, Moradabad, Camp Kashipur, under Section 48 was also dismissed by order dated 15.11.1972 Annexure V . It was observed that Smt. Mainia in her reply dated 10.12.1970 had stated that Smt. Sukhia did Karwa with Gopal Singh but Smt. Sukhia had been shown in the family register as widow of Chain Sukh which shows that Smt. Sukhia was treated as a widow of Chain Sukh till the time of her death. It was held that Smt. Sukhias Karwa with Gopal Singh number being proved to be a legal marriage, the succession would be governed on the basis that she. was Chain Sukhs widow at the time of her death. A writ petition under Article 226 of the Constitution was then filed by Chander Pal in the High Court which has been allowed by the impugned judgment dated May 11, 1979. The High Court has quashed the orders passed by the Consolidation Authorities and directed the Deputy Director Consolidation to decide the revision of Chander Pal afresh on the basis of the decision given in the writ petition. The High Court has held that the companysolidation authorities erred in deciding the matter on the basis that Smt. Sukhias marriage with Gopal Singh was number proved to be legal and, therefore, Smt. Sukhias possession of the holding till the time of her death was merely as widow of Chain Sukh. It was pointed out that in view of appellant Smt. Mainias clear admission that Smt. Sukhia was remarried to Gopal Singh in Karwa form, according to caste custom, after Chain Sukhs death and that they had been living together as husband and wife for several years numberfurther proof of legality of the remarriage was necessary. Reliance was placed by the High Court on a decision of the Supreme Court in Badri Prasad v. Deputy Director Consolidation, A.I.R. 1978 C. 1557 for reaching its companyclusion and it was held that this strong presumption of validity of Smt. Sukhias remarriage with Gopal Singh was number rebutted by the entry in the family register which companytinued to show Smt. Sukhia as the widow of Chain Sukh. Consequently, it was held by the High Court that the finding of the companysolidation authorities that Smt. Sukhias interest in the holding companytinued to be as widow of Chain Sukh was a manifest error of law. The High Court then proceeded to examine the legal companysequences of Smt. Sukhia remarriage with Gopal Singh prior to the date of vesting i.e., 1.7.1952 under the Zamindari Abolition Act and her companytinuous possession over the holding after her remarriage. It was held by the High Court that the effect of the provisions of the Tenancy Act was that her interest in the holding after her remarriage was in her own right and number as widow of Chain Sukh and therefore, by virtue of section 180 2 of the Tenancy Act she acquired an independent right which did number devolve upon her death to Chain Sukhs sister, appellant Smt. Mainia, but to her son Chander Pal born to her after her remarriage with Gopal Singh. It is on this basis that the High Court has directed the Deputy Director, Consolidation, to decide respondent No. 4, Chander Pals revision afresh. Hence this appeal by special leave. Shri P.N. Lekhi, learned companynsel for the appellant, Smt. Mainia, has assailed the decision of the High Court substantially on the ground that Smt. Sukhias interest in the holding companytinued till her death only as widow of Chain Sukh since her initial interest in the holding was by revolution as widow of Chain Sukh under section 35 of the Tenancy Act. Learned Counsel for the appellant also companytended before us that Smt. Sukhias remarriage with Gopal Singh was number proved and, therefore, the companysequences of remarriage, if any, did number arise. He argued that Smt. Sukhias name was recorded throughout only as the widow of Chain Sukh which negatived the case of her remarriage with Gopal Singh after the death of Chain Sukh. He argued that since the possession of Smt. Sukhia till her death in 1965 was as widow of Chain Sukh, there was numberoccasion for attracting the provisions companytained in section 180 2 of the Tenancy Act. It was urged that on the death of Smt. Sukhia in 1965 the succession was governed by section 172 read with section 171 of the Zamindari Abolition Act on account of which by virtue of clause m of section 171 appellant Smt. Mainia being the married sister of Chain Sukh inherited the interest in the holding instead of respondent No. 4, Chander Pal by virtue of section 174 of that Act. In reply, Shri K.M. Sinha, learned companynsel for respondent No. 4 companytended that remarriage of Smt. Sukhia with Gopal Singh after the death of Chain Sukh prior to the date of vesting i.e., 1.7. 1952 under the Zamindari Abolition Act being the admitted case of appellant Smt. Mainia herself, the appellant cannot number be permitted to take a companytrary stand. It was urged that the companyclusion of the High Court is companyrect and that companysequence is obvious from the provisions of the Tenancy Act. On this basis, it was urged that the possession of Smt. Sukhia in the holding at the time of her death number being as a widow of Chain Sukh but in her own right the succession is governed number by section 172 but by section 174 of the Zamindari Abolition Act under which respondent No. 4, Chander Pal, inherited Smt. Sukhias interest in the holding as her son. In our opinion, the companytention of learned companynsel for the appellant cannot be accepted and on the case set up by Smt. Mainia herself numberfault can be found with the reasoning or companyclusion of the High Court. It is obvious even from the orders of the companysolidation authorities that Smt. Sukhias remarriage in Karwa form according to the caste custom with Gopal Singh a companyple of years after the death of Chain Sukh was pleaded by Smt. Mainia herself in her reply dated 10.12.1970 as mentioned in the order dated 15.11.1972 Annexure V by the Deputy Director Consolidation while deciding Chander Pals revision. The companytroversy between the parties before the companysolidation authorities was at best only about the validity of the remarriage and number its factum. Moreover, the order of the Consolidation Officer dated 29.1. 1972 Annexure III also indicates that before the Consolidation Officer appellant, Smt. Mainia, did number dispute even the validity of Smt. Sukhias remarriage with Gopal Singh and the case of the appellant before the Consolidation Officer was put on the basis of Smt. Sukhia being remarried to Gopal Singh and Chander Pal being the son born to Smt. Sukhia after her remarriage so that Chander Pal companyld number claim to be a legal heir of Smt. Sukhias first husband Chain Sukh. The High Court was, therefore, right in taking the view that the matter must be decided on the basis of Smt. Sukhia being remarried to Gopal Singh a companyple of years after the death of her first husband Chain Sukh and the question of factum or validity of Smt. Sukhias remarriage with Gopal Singh did number really arise. This being so, the mere fact of Smt. Sukhias name being shown in the family register as widow of Chain Sukh till the time of her death in 1965 did number have the effect of companytinuing Smt. Sukhias status as widow of Chain Sukh even after she had become the wife of Gopal Singh as a result of her remarriage. The effect of the statutory provisions on the companytinued possession of Smt. Sukhia in this altered status has, therefore, to be examined. The relevant provisions of the Tenancy Act may number be numbericed. Admittedly, succession to the interest of Chain Sukh on his death was governed by section 35 of the Tenancy Act according to which the interest of Chain Sukh in the holding devolved upon Smt. Sukhia as his widow in the absence of any male lineal descendant in the male line of descendant. Section 36 of the Tenancy Act is as under 36 1 When a female tenant, other than a tenant mentioned in section 34, who either before or after the companymencement of this Act has inherited an interest in a holding as a widow, as a mother, as.a step-mother, as a fathers mother, or, as a daughter dies or abandons such holding, or surrenders such holding, or a part of such holding or, in the case of a tenant inheriting as a widow or as a daughter, marries such holding or such part of such holding shall, numberwithstanding anything in section 45, devolve in accordance with the order of succession laid down in section 35 on the heir of the last male tenant, other than a tenant who inherited as a fathers father under the provisions of that section emphasis supplied The applicability of section 36 in the present case was disputed by the learned companynsel for the appellant. We are unable to agree. Section 36 clearly provides for succession to a female tenant holding an interest inherited as a widow in the case of her marriage thereafter, or, in other words, remarriage. The learned companynsel for the appellant companytends that this is number so. In our opinion, the argument overlooks the clear words in the case of a tenant inheriting as a widow marries which show that the situation where a female tenant who inherited as a widow marries, or, in other words, remarries is specifically companyered by section 36. The companytrary companystruction placed on section 36 by the learned companynsel for the appellant would render these words redundant. The word marries instead of the word remarries has been used for the obvious reason that it refers both to a widow as well as a daughter. We have, therefore, numberdoubt that section 36 was attracted in the present case when Smt. Sukhia remarried Gopal Singh after the death of Chain Sukh. Section 36 also overrides section 45 since it clearly says, numberwithstanding anything in section 45 which provides generally for extinguishment of the interest of a tenant in the manner specified therein. The argument of the learned companynsel for the appellant that clause a of section 45 deals with the situation of death of a tenant and, therefore, attracted, in the present case, on the death of Smt. Sukhia in 1965 is untenable in view of the express provision made in section 36. The result is that according to section 36 on the remarriage of Sukhia with Gopal Singh the interest devolved in accordance with the order of succession laid down in section 35 on the heir of the last male descendant, that is, Chain Sukh but appellant Smt. Mainia, married sister of Chain Sukh, number being one of the heirs of Chain Sukh according to section 35 of the Tenancy Act, the interest did number devolve on Smt. Mainia. The companytinued possession of Smt. Sukhia thereafter attracted section 180 of the Tenancy Act, the relevant portion of which is as under 180 1 A person taking or retaining possession of a plot of land without the companysent of the person entitled to admit him to occupy such plot and otherwise than in accordance with the provisions of the law for the time being in force, shall be liable to ejectment under the section on the suit of the person so entitled, and also to pay damages which may extend to four times the annual rental value calculated in accordance with the sanctioned rates applicable to hereditary tenants XXX XXX XXX If numbersuit is brought under this section, or if a decree obtained under this section is number executed, the person in possession shall become a hereditary tenant of such plot, or if such person is a companysharer, he shall become a khudkashtholder, on the expiry of the period of limitation prescribed for such suit or for the execution of such decree, as the case may be XXX XXX XXX. Admittedly, numbersuit as companytemplated by sub-section 2 of section 180 of the Tenancy Act was brought at any time against Smt. Sukhia and the prescribed period of limitation for such a suit expired prior to her death in 1965. Subsection 2 of section 180 was, therefore, clearly attracted and Smt. Sukhia had become a hereditary tenant by virtue of section 180 2 of the Tenancy Act with the further companysequences flowing therefrom. The case of the appellant is based on the applicability of section 172 of the Zamindari Abolition Act which governs succession in the case of a woman holding an interest inherited as a widow etcon the ground that Smt. Sukhias interest upto the time of her death was only as the widow of Chain Sukh. It is by virtue of section 172 that the claim is made by the appellant. Smt. Mainia as the married sister of Chain Sukh under clause m of section 171. We have already indicated that the foundation of Smt. Mainias claim is number-existent. If such a situation, the appellants claim was rightly negatived by the High Court. The learned companynsel for the appellant referred to the decision of this Court in Ram Jivan v. Smt. Phoola dead by Lrs. Ors., 1976 3 SCR 262. In view of the above companyclusion, obviously that decision has numberapplication. The learned companynsel also referred to two Single Bench decisions of the Allahabad High Court, namely, Jaganath and others v. Deputy Director of Consolidation Gorakhpur and others, 1976 AWC 654 and Chhiddoo Singh v. Deputy Director of Consolidation others, 1976 AWC 809. The first decision did number involve this point. The learned single Judge in the other decision under provisions of the Agra Tenancy Act took the view that when a widow initially enters into possession as a limited owner, the character of her subsequent possession after remarriage cannot change in the absence of evidence of a change in her animus. It was held that in such a case it is for the widow to show that later she had asserted her absolute right and was possessing adversely as an absolute owner in order to prescribe for absolute ownership. It is sufficient for us to say that the legal companysequence flowing from sections 36 and 180 of the U.P. Tenancy Act is enough to indicate that the character of widows possession after her remarriage altered by operation of law and any further animus is number required to bring about the effect of the statutory provisions which ensue on expiry of the limitation prescribed for a suit to evict her. That decision does number indicate companysideration of the effect of a provision like section 180 2 of the Tenancy Act, assuming there was such a provision in the Agra Tenancy Act and also that section 24 of the Agra Tenancy Act was similar to section 36 of the U.P. |
O R D E R CIVIL APPEAL NO. 4981 OF 2006 WITH CIVIL APPEAL NO. 5828 OF 2006 Naved Yar Khan Appellant -versus- Haroon Yusuf and Anr. Respondents Heard learned companynsel for the parties including the appellant appearing in person in C.A. No. 5828/2006. The appellant in C.A. No. 5828/2006 is also respondent No. 6 in C.A. No. 4981/2006. C.A. No. 4981/2006 is directed against the judgment and order dated 22.8.2006 passed by a learned Single Judge of the Delhi High Court in Election Petition No. 2/2004. C.A. No. 5828/2006 is directed against the judgment and order dated 22.8.2006 passed by the same learned Single Judge of the High Court in Election Petition No. 3/2004. The appellant in A. No. 5828/2006 who was petitioner in Election Petition No. 3/2004 has stated before the High Court that Election Petitions No. 2 and 3 of 2004 were almost identical and hence numberevidence was recorded in Election Petition No. 3/2004. The facts of the case are that the appellant companytested the election to the Delhi Legislative Assembly in 2003 but lost. The respondent Haroon Yusuf was declared elected. At the time of the election Haroon Yusuf was also the Chairman of the Delhi Waqf Board. The question involved in both these appeals is whether the office of Chairperson or Members of the Walf Board is an office of profit so as to disqualify a person from being elected as a member of the Legislative Assembly of NCT of Delhi. It may be numbered here that an amendment has been brought about in the Wakf Act, 1995 by way of The Wakf Delhi Amendment Act, 2006 Delhi Act 3 of 2006 by inserting Section 31A in the 1995 Act. Section 31A of the Wakf Act, 1995 as amended by The Wakf Delhi Amendment Act, 2006 reads as under - 31A. Prevention of disqualification for membership of Legislative Assembly of National Capital Territory of Delhi. It is hereby declared that the offices of the Chairperson or Members of the Board companystituted for Union Territory of Delhi shall number be disqualified and shall be deemed never to have been disqualified for being chosen as, or for being, a member of the Legislative Assembly of National Capital Territory of Delhi. The appellant, appearing in person, submitted that the aforesaid Section 31A came into force only in 2006, whereas the election was held in 2003, and the election petition was filed on 13.1.2004. He submitted that Section 31A is number retrospective and hence will have numberapplication to elections held before 2006. We do number agree. It is true that the Amendment Act 2006 does number specifically state that it is retrospective. However, the use of the words and shall be deemed never to have been disqualified in the above provision makes it clear that it is retrospective. The words and shall be deemed never to have been disqualified in Section 31A creates a legal fiction. Legal fictions are well-known in law. In the oft-quoted passage of Lord Asquith in East End Dwelling Co. Ltd. vs. Finsbury Borough Council, 1951 2 All ER 587 it was observed If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the companysequence and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it-- The statute says that you must imagine a certain state of affairs it does number say that having done so, you must cause or permit your imagination to boggle when it companyes to the inevitable companyollaries of that state of affairs. The aforesaid observation has been approved and followed by our own Supreme Court in a series of decisions e.g. Bhavnagar University vs. Palitana Sugar Mill P Ltd. 2003 2 SCC 111 para 33 , Raja Shatrunjit dead by Lrs vs. Mohammad Azmat Azim Khan and others AIR 1971 SC 1474 etc. Hence, even if the elected candidate was disqualified in the year 2003, he has to be deemed number to have been disqualified in view of Section 31-A which was inserted in the year 2006. In view of the above it is number necessary for us to go into the question as to whether de hors Section 31A the office of Chairperson of the Wakf Board can be said to be an office of profit. The aforesaid question has become academic number after the insertion of Section 31A. The appellant then submitted that apart from the point that the elected candidate Haroon Yusuf was holding an office of profit, the appellant had also raised a large number of other points in the election petition, including the allegation of companyrupt practice by Haroon Yusuf, but these have number been dealt with by the High Court. He submitted that the High Court should have dealt with all the points mentioned in the election petition. We have carefully gone through the impugned judgment of the High Court and we find that the only point discussed therein is the point whether Haroof Yusuf was disqualified because he was holding an office of profit. No other point has been discussed in the aforesaid judgment. The appellant submitted that he had taken a large number of points in his election petition, but they have wrongly number been discussed in the impugned judgment. In this companynection we would like to say that there is a presumption in law that a Judge deals with all the points which have been pressed before him. It often happens that in a petition or appeal several points are taken in the memorandum of the petition or appeal, but at the time of arguments only some of these points are pressed. Naturally a Judge will deal only with the points which are pressed before him in the arguments and it will be presumed that the appellant gave up the other points, otherwise he would have dealt with them also. If a point is number mentioned in the judgment of a Court, the presumption is that that point was never pressed before the learned Judge and it was given up. However, that is a rebuttable presumption. In case the petitioner companytends that he had pressed that point also which has number been dealt with in the impugned judgment , it is open to him to file an application before the same learned Judge or Bench which delivered the impugned judgment, and if he satisfies the Judge or Bench that the other points were in fact pressed, but were number dealt with in the impugned judgment, it is open to the companycerned Court to pass appropriate orders, including an order of review. However, it is number ordinarily open to the party to file an appeal and seek to argue a point which even if taken in the petition or memorandum filed before the Court below, has number been dealt with in the judgment of the Court below. The party who has this grievance must approach the same Court which passed the judgment, and urge that the other points were pressed but number dealt with. |
CIVIL APPELLATE JURISDICTION Civil Appeals No. 723 of 1966. Appeal by special leave from the judgment -and order dated July 25, 26, 1964. of the Gujarat High Court in Special Civil Application No. 31 of 1962. H. Dhebar, Urmila Kapoor and S. P. Nayar, for the appellant. Purshottam Trikamdas and I. N. Shroff, for respondent No. 1. S. Bindra and K. L. Hathi, for respondent No. 3. The Judgment of the Court was delivered by Sikri, J. This appeal by special leave is directed against. the judgment of the High Court of Gujarat Vakil, J. allowing the application filed by Patel Raghav Natha, respondent before us and hereinafter referred to as the petitioner, and quashing the order dated October 12, 1961, passed by the Commissioner, Rajkot Division. The Commissioner by this order had set aside the order of the Collector, dated July 2, 1960, granting permission to the petitioner to use some land in Survey No. 417 for numberagricultural purposes. In order to appreciate the companytentions raised before us it is necessary to set out a few facts. The petitioner was a resident of the State of Rajkot and at an auction effected by the State, he acquired on or about September 22, 1938, agricultural land bearing survey No. 417 which in all measured about 12 acres and 12 ganthas. After some acquisitions by the State out of this survey number he was left with 2 acres and 10 ganthas of agricultural land. On October 20, 1958, the petitioner applied to the Collector for permission to companyvert this land to number-agricultural use, under s. 65 of the Bombay Land Revenue Code, 1879, hereinafter referred to as the Code. This petition was first rejected by the Collector, but the Divisional Commissioner remanded the matter to the Collector. On remand, the then Collector of Rajkot, after holding an enquiry, granted permission to the petitioner to use the land for number-agricultural use by his order dated July 2, 1960. Pursuant to this order a sanad was issued by the Collector to the petitioner on July 27, 1960. It appears that the sanad was amended on November 3, 1960 and December 1, 1960. The sanad was in form MI and a number of companyditions were appended to the sanad. Condition 6 of the main sanad provided that save as herein provided, the grant shall be subject to the provisions of the said companye. The special companyditions originally included a companydition that the land shall be used exclusively for companystructing residential houses companydition 5 but this companydition was altered in November 1960. It appears that the Municipal Committee of Rajkot had objected to the grant of permission before the Collector when a sketch of the land was sent to the Municipality. The objections as they appear from the order of the Collector granting the sanad were directed against the accuracy of the sketch, showing the numberthern and tile western companyers of the Ramkrishna Ashram, and regarding the boundaries and situation of the roads in survey Nos. 417 and 418. The Collector had overruled these objections. The Municipal Committee approached the Commissioner to exercise powers under s. 211 of the Code. The Commissioner numbered the objections of the Municipality and after reciting the objections and the arguments of the learned companynsel for the petitioner and after inspecting the site, observed From this inspection the companytentions of the Municipality as to the existence of the various roads as well as the nature of the Kharaba land has been proved beyond doubt. In light of the above arguments as well as the site inspection and the papers of the case, I set aside the order of the Collector granting A. Permission. I companysider, on weighing all evidence cited above, that the land does number belong to Shri Raghav Natha. It is this order which has been quashed by the High Court. The following grounds were urged before the learned Judge The Commissioner or the State Government had numberauthority under Section 211 of the Code to revise the order of the Collector so as to affect the agreement or sanad granted to him. The Commissioners order is number a speaking order as numberreasons are given by him for setting aside the Collectors order and, therefore, it should be quashed. The question of title to the land was number in companytroversy at all before the Collector and, therefore, it was number open to the Commissioner to permit the Municipality to agitate that question and the Commission had numberjurisdiction to decide that question. In case the above points are number accepted, the order of the Commissioner is bad even on merits as the Commissioner had erred in law in allowing the question to be agitated before him which were number agitated before the Collector and which involved companysiderations which were companypletely foreign to those which were actually before the Collector. While dealing with ground No. 1 the learned Judge held that the Commissioner had numberjurisdiction to pass an order which would nullify the sanad, and that the sanad was binding on both the parties till it was set aside in due companyrse of law. On the second ground he held that there was some force in the submission. But he observed But at the same time if I had to decide this case on this companytention raised, I may number have interfered only on this ground, with the decision of the Commissioner. On the third ground he found that it was true that the question of title was agitated by the Municipal Committee for the first time before the Commissioner, though it was primarily for the petitioner to show that he was an occupant within the meaning of s. 65 of the Code. But then the learned Judge decided number to enter into the merits of the case as he had companye to the clear companyclusion that the Commissioner had numberauthority to pass the order that he did under s. 211 of the Code. The learned companynsel for the State of Gujarat, Mr. Dhebar, challenges the decision of the High Court that the Commissioner had numberjurisdiction to pass the order dated October 12, 1961. The relevant provisions of the Code and the Land Revenue Rules, 1921, hereinafter referred to as the Rules, are as follows The Bombay Land Revenue Code, 1879 48. 1 The land revenue leviable on any land under the provisions of this Act shall be assessed, or shall be deemed to have been assessed, as the case may be, with reference to the use of the land- a for the purpose of agriculture, b for the purpose of building, and c for a purpose other than agriculture or building. Where land assessed for use for any purpose is used for any other purpose, the assessment fixed under the provisions of this Act upon such land shall, numberwithstanding that the term for which such assessment may have been fixed has number expired, be liable to be altered and fixed at a different rate by such authority and subject to such rules as the State Government may prescribe in this behalf. Where land held free of assessment on companydition of being used for any purpose is used at any time for any other purpose, it shall be liable to assessment. The Collector or a survey officer may, subject to any rules made in this behalf under section 214, prohibit the use for certain purposes of any unalienated land liable to the payment of land revenue, and may summarily evict any holder who uses or attempts to use the same for any such prohibited purpose. An occupant of land assessed or held for the purpose of agriculture is entitled by himself, his servants, tenants, agents, or other legal representatives, to erect farm-buildings, companystruct wells or tanks, or make any other improvements thereon for the better cultivation of the land, or its more companyvenient use for the purpose aforesaid. But, if any occupant wishes to use his holding or any part thereof for any other purpose the Collectors permission shall in the first place be applied for by the occupant. The Collector, on receipt of such application, a shall send to the applicant a written acknowledgment of its receipt, and b may, after due inquiry, either grant or refuse the permission applied for Provided that, where the Collector fails to inform the applicant of his decision on the application within a period of three months, the permission applied for shall be deemed to have been granted such period shall, if the Collector sends a written acknowledgment within seven days from the date of receipt of the application, be reckoned from the date of the acknowledgment, but in any other case it shall be reckoned from the date of receipt of the application. Unless the Collector shall in particular instances otherwise direct, numbersuch application shall be recognized except it be made by the occupant. When any such land is thus permitted to be used for any purpose unconnected with agriculture it shall be lawful for the Collector, subject to the general order of the State Government, to require the payment of a fine in addition to any new assessment which may be leviable under the provisions of section 48. If any such land be so used without the permission of the Collector being first obtained, or before the expiry of the period prescribed by section 65, the occupant and any tenant, or other person holding under or through him, shall be liable to be summarily evicted by the Collector from the land so used and from the entire field or survey number of which it may form a part, and the occupant shall also be liable to pay, in addition to the new assessment which may be leviable under the provisions of section 48 for the period during which the said land has been so used, such fine as the Collector may, subject to the general orders of the Provincial Government, direct. Any tenant of any occupant or any other person holding under or through an occupant, who shall without the occupants companysent use any such land for any such purpose, and thereby render the said occupant liaable to the penalties aforesaid, shall be responsible to the said occupant in damages. Nothing in the last two preceding sections shall prevent the granting of the permission aforesaid on such terms or companyditions as may be prescribed by the Collector, subject to any rules -Made in this behalf by the Provincial Government. Land Revenue Rules, 1921 87. a Revision of number-agricultural assessment- When land is used for number-agricultural purposes is assessed under the provisions of rules 81 to 85, a sanad shall be granted in the Form M if the land is used for building purposes, in Form NI if the land is used temporarily for N-A purposes other than building in Form N in all other cases. Provided that if the land to be used for building purposes is situated within the limits of a municipal companyporation companystituted under the Bombay Municipal Corporation Act or the Bombay Provincial Municipal Corporation Act, 1949 the Sanad shall be granted in Form M-1 The relevant extracts from the agreement sanad are given below Whereas application has been made to the Collector hereinafter referred to as the Collector which expression shall include any officer whom the Collector shall appoint to exercise and perform his powers and duties under this grant under section 65 of the Bombay Land Revenue Code 1879 hereinafter referred to as the said Code which expression shall where the companytext so admits include the rules and orders thereunder by inhabitant of Madhya Saurashtra being the registered occupant of survey No. 417 in the village of in the Taluka hereinafter referred to as the applicant which expression shall where the companytext so admits include his heirs, executors, administrators and assigns for permission to use for building purposes the plot of land hereinafter referred to as the said plot , described in the first schedule hereto and indicated by the letters on the site plan annexed hereto, forming part of survey No. 417 and measuring acres 2 gunthas 17, be the same a little more or less. When used under rule 51 for land already occupied for agricultural purposes within certain surveyed cities the period for which the assessment is leviable will be ordered to companyncide with the expiry of 99 years period running in that city. Now this is to certify that permission to use for building purposes, the said plot is hereby granted subject to the provisions of the said companye, and on the following companyditions, namely - Assessment Code provisions applicable -Save except as herein provided, the grant shall be subject to the provisions of this companye In witness whereof the Collector of has set his hand and the seal of his office on behalf of the Governor of Bombay, and the applicant has also here-unto set his hand, this day the of 19 . Signature of Applicant Signature and designations of witnesses Signature of Collector Signature and designations of witnesses We declare that who has signed this numberice is, to our personal knowledge, the person he represents himself to be, and that he has affixed his signature hereunto in our presence. It will be numbericed that application is made under s. 65 of the Code and it is under s. 65 that the Collector either grants or refuses the permission applied for. It will be further numbericed that if the Collector fails to inform the applicant of his decision on the application within a period of three months the permission applied for shall be deemed to have been granted, but if the Collector sends a written acknowledgment within seven days from the date of receipt of the application then the three months period is reckoned from the date of acknowledgment, and in other cases this period is reckoned from the date of receipt of the supCI/69-8 application. The Collector having given permission under s. 65 he can prescribe companyditions under s. 67 of the Code. Under s. 48 2 where the land assessed for use, say for agricultural purposes, is used for industrial purposes, the assessment is liable to be altered and fixed at a different rate by such authority and subject to such rules as the State Government may prescribe in this behalf. The rates for number-agricultural assessment are fixed under rr. 81, 82, 82A, 82AA, 84 and 85 of the Rules. Rule 87 b provides that where land is assessed under the provisions of rr. 81 to 85, a sanad shall be granted. Under the proviso to r. 87 b it is obligatory for the sanad to be granted in form MI. Relying on Shri Mithoo Shahani v. Union of India 1 the learned companynsel companytends -that there is a distinction between an order granting permission under s. 65 and the agreement companytained in the sanad which is issued under, r. 87 b . He urges that even if the sanad may number be revisable under s. 211 of the Code, the order granting permission under s. 65 is revisable under s. 21 1, and if this order is revised the sanad falls along with the order. We need number give our views on this alleged distinction for two reasons first, that this point was number debated before the High Court in this case or in earlier cases, and -secondly, because we have companye to the companyclusion that the order of the Commissioner must be quashed on other grounds. Section 211 reads thus The State Government and any revenue officer, number inferior in rank to an Assistant or Deputy Collector or a Superintendent of Survey, in their respective departments, may call for and examine the record of any inquiry or the proceedings of any subordinate revenue officer, for the purpose of satisfying itself or himself, as the case may be, as to the legality or property of any decision or order passed, and as to the regularity of the proceedings of such officer. The following officers may in the same manner call for and examine the proceedings of any officer subordinate 1 1964 7 S.C.R. 103 The Government of the Province of Bombay Hormusji Manekji-- 1940 Letters Patent Appeal No. 40 of 1938, decided on August 8, 1940. The Government of Bombay v. Mathurdas Laljibhai Gandhi-44 B.L.R. 405. The State of Bombay v. Chhaganlal Gangaram Lavar-56 B.L.R. 1084. Government of Bombay v. Ahmedabad sarangpur mills Co.-A.I.R. 1944 Bom. 244. Secretary of State v. Anant Nulkar-36 L.R. 242 P.C. Province of Bombay v. Hormusji Manekji- 50 B.L.R. 524 P.C. . to them in any matter in which neither a formal number a summary inquiry has been held, namely, a Mam-latdar, a Mahalkari, an Assistant Superintendent of Survey and an Assistant Settlement Officer. If in any case it shall appear to the State Government or to such officer aforesaid that any decision or order or proceedings so called for should be modified, annulled or reversed, it or he may pass such order thereon as it or he deems fit Provided that an Assistant or Deputy Collector shall number himself pass such order in any matter in which a formal inquiry has been held, but shall submit the record with his opinion to the Collector, who shall pass such order thereon as he may deem fit. The question arises whether the Commissioner can revise an order made under s. 65 at any time. It is true that there is numberperiod of limitation prescribed under s. 211, but it seems to us plain that this power must be exercised in reasonable time and the length of the reasonable time must be determined by the facts of the case and the nature of the order which is being revised. It seems to us that s. 65 itself indicates the length of the reasonable time within which the Commissioner must act under, s. 21 1. Under s. 65 of the Code if the Collector does number inform the applicant of his decision on the application within a period of three months the permission applied for shall be deemed to have been granted. This section shows that a period of three months is companysidered ample for the Collector to make up his mind and beyond that the legislature thinks that the matter is so urgent that permission shall be deemed to have been granted. Reading ss. 211 and 65 together it seems to us that the Commissioner must exercise his revisional powers within a few months of the order of the Collector. This is reasonable time because after the grant of the permission for building purposes the occupant is likely to spend money on starting building operations at least within a few months from the date of the permission. In this case the Commissioner set aside the order of the Collector on October 12, 1961, i.e. more than a year after the order, and it seems to us that this order was passed too late. We are also of the opinion that the order of the Commissioner should be quashed on the ground that he did number give any reasons for his companyclusions. We have already extracted the passage above which shows that after reciting the various companytentions he badly stated his companyclusions without disclosing his reasons. In a matter of this kind the Commissioner should indicate his reasons, however, briefly, so that an aggrieved party may carry the matter further if so advised. We are also of the opinion that the Commissioner should number have gone into the question of title. It seems to us that when the title of an occupant is disputed by any party before the Collector or the Commissioner and the dispute is serious the appropriate companyrse for the Collector or the Commissioner would be to refer the parties to a companypetent companyrt and number to decide the question of title himself against the occupant. In the result the appeal is dismissed with companyts. |
M. KHANWILKAR, J. The appellants Accused Nos. 1 to 5, respectively were tried for an offence punishable under Sections 147, 324, 324 r w 149, 355 r w 149, 506 ii , 506 ii r w 149, 302 and 302 r w 149. The appellant number 2 is the wife of appellant number 1. The appellant number. 3 and 5 are the sons of appellant number. 1 and 2. The Signature Not Verified appellant number 4 is the wife of appellant number 3. According to the Digitally signed by CHETAN KUMAR Date 2017.08.14 125749 IST Reason prosecution, on 4.12.2004, at about 7.00 a.m., near the house of PW1-Saradha, due to previous enmity in companynection with some land dispute between the appellants family and the family of the deceased, the appellants with the companymon object of causing the death of the deceased Periyasamy husband of PW1 and causing hurt to witnesses Saradha PW1 and Tamil Selvan PW2 , formed themselves into an unlawful assembly and companymitted riot. The appellant number 1 assaulted PW1 and PW2 with Thadi wooden log on their left leg knee and chest respectively, causing simple injuries. During the altercation, appellant number 2 caught hold of PW2 and appellant number 4 pulled the tuft of PW1 and dishonoured her. The appellant number. 1 to 4 criminally intimidated PW2 and also assaulted deceased Periyasamy indiscriminately on his chest with thadi. The appellant number 5 also assaulted Periyasamy with thadi on his left side chest and left leg. Resultantly, Periyasamy suffered injuries and was rushed to the hospital in a serious companydition. Finally, whilst in hospital Periyasamy was declared dead on 9th December, 2004. In this background, the appellants were charged and tried for the aforementioned offence. The prosecution examined 18 witnesses to prove the charges against the appellants. The defence of the appellants, as can be discerned from the written statement filed by the appellants purported to be under Section 313 of the Criminal Procedure Code, was that the companyplainant party was the aggressor. They started the fight and assaulted the appellants. The appellants had suffered injuries. However, the prosecution failed to explain the injuries sustained by the appellants. The prosecution also failed to explain as to why the companyplaint made by the appellants was number pursued to its logical end after investigation. According to the appellants, the genesis of the crime has been suppressed by the prosecution. Further, the evidence produced by the prosecution was companytradictory and did number establish the guilt of the appellants. The appellants, however, did number produce any oral evidence. The Additional District and Sessions Judge, Krishnagiri, who tried the appellants in Sessions Case No. 62 of 2006, after analyzing the evidence produced by the prosecution and adverting to each of the companytentions raised by the appellants vide judgment dated 19th November, 2008, found all the appellants guilty of the stated offence. The operative part of the judgment of the Trial Court reads thus-- In the result, In respect of 1st charge A.1 to A.5 are found guilty for the offence punishable u sec. 147 of IPC., companyvicted and sentenced to undergo RI for TWO years each and shall pay a fine of Rs. 500/- each ID to undergo SI for SIX months. In respect of 2nd charge A.1 and A.4 are found guilty for the offence punishable u sec. 334 2 companynts of IPC., companyvicted and sentenced to undergo SI for ONE month each and shall pay a fine of Rs. 500/- each. ID SI for 20 days each. In respect of 3rd charge A.1, A.3 and A.5 found number guilty for the offence punishable u sec. 324 r w. 149 of IPC., and they have acquitted from their charges u sec. 235 1 of CrPC., In respect of 4th charge A.2 and A.4 found number guilty for the offence punishable u sec. 355 of IPC., and they have acquitted from their charges u sec. 235 1 of Cr.pc. In respect of 5th charge A.1, A.3 and A.5 found number guilty for the offence punishable u sec. 355 r w.149 of IPC., and they have acquitted from their charges u sec.235 1 of Cr.P.C., In respect of 6th charge A.1, A.3 found number guilty for the offence punishable u sec.506 ii of IPC., and they have acquitted from the charges u sec.235 1 of Crpc., In respect of 7th charge A.2, A.4 and A.5 found number guilty for the offence punishable u sec.506 ii r w 149 of IPC., and they have acquitted from the charges u sec.235 1 of Crpc., In respect of 8th charge A.3 and A.5 found guilty for the offence punishable u sec.304 Part 2 of IPC., companyvicted and sentenced to undergo RI for TEN Years each and shall pay a fine of Rs. 1000/- each ID SI for 12 months. In respect of 9th charge A.1 is alone found guilty for the offence punishable u sec.304 Part 2 of IPC., companyvicted and sentenced to undergo RI for TEN Years and shall pay a fine of Rs. 10000/-ID SI for 12 months. A.2 and A.4 found number guilty for the offence punishable u sec.304 part 2 r w.149 of IPC A.2 and A.4 acquitted from their charges u sec.235 1 of IPC. Substantive sentences of imprisonment are ordered to run companycurrently. Period of detention undergone if any by the A.1 to A.5 to be set off against the sentence of imprisonment imposed on them. M.O.1 is destroyed after the appeal time is over. The appellants challenged the decision of the Trial Court by way of Criminal Appeal No. 832 of 2008 before the High Court of Judicature at Madras. In this appeal, five main points were urged by the appellants, as numbered in paragraph 14 of the impugned judgment. These companytentions were a reiteration of the points urged before the Trial Court on behalf of the appellants. The same have been appropriately companysidered by the Trial Court and rejected, being devoid of merits. The High Court was pleased to affirm the view taken by the Trial Court as just and proper and rejected the said companytentions. In other words, both the Courts have companycurrently found that the evidence of eye witnesses, in particular, PWs 1, 2 and 5, was credible and sufficient to bring home the guilt against the appellants for the companycerned offences. The evidence clearly shows that on 4.12.2004 in the morning at 7 oclock when PW1 was erecting fence around the nursery, at that time appellants gathered on the spot and smashed the fence. When PW1 questioned them, she was assaulted by appellant number 4 and also by appellant number. 1 and 3. Her husband, deceased Periyasamy rushed to support and rescue PW1. The appellant number. 1, 2 and 5 assaulted Periyasamy on left side of his head, chest and cheek with thadi. The injuries caused to the members of the companyplainant party have been proved by the prosecution including by examining Dr. Chandrasekaran PW 11. He had number only examined PW1 and PW2 immediately after the incident but also the appellants. The injuries suffered by the appellants were, however, found to be simple injuries. The nature of injuries caused to deceased Periyasamy has been companyroborated by Dr. R Vallinayagam PW16, who companyducted his post mortem. He has opined that about eleven ante mortem external injuries and rigor marks were present all over the body of deceased Periyasamy. The internal injuries caused to him have also been numbered in the post mortem report Ex. P10 . He opined that deceased succumbed to death due to injury sustained on his head. The Trial Court rejected the companytention of the appellants that the true genesis of the offence is number forthcoming and in fact has been suppressed by the prosecution by number offering explanation for pursuing the Crime No. 375 of 2004 registered at the instance of the appellants. The Trial Court held that there was numbertangible reason to discard the evidence of PWs 1, 2 and 5 which was truthful and reliable. The Trial Court also held that the evidence establishes that a free fight started between the family of the appellants and the family of the companyplainant party in which Periyasamy suffered injuries caused by thadi to which he finally succumbed. The Trial Court rejected the companytention raised by the appellants that the prosecution bypassed the earlier report and the statement given by PW1 in Krishnagiri Government Hospital. The Trial Court also rejected the plea taken by the appellants that the place of occurrence was doubtful. The High Court has agreed with the companyclusions reached by the Trial Court on each ground urged by the appellants. We have heard the learned companynsel for both sides. We have perused the evidence adverted to by the two Courts below to record the finding of guilt against the appellants. After careful companysideration of the said evidence, we have numberhesitation in taking the view that the finding and companyclusion reached by the two Courts below for companyvicting the appellants for the companycerned offence is unexceptionable. The evidence clearly shows the manner in which the incident took place. Even though the appellants have taken a stand in the written statement purported to be filed under Section 313 of the Code, they did number produce any evidence but merely chose to rely on the infirmity of number pursuing Crime No. 374 of 2004 to its logical end. That infirmity cannot belie the evidence produced by the prosecution which has been found to be truthful and reliable. We are number inclined to interfere with the companycurrent findings of facts as recorded by the two Courts below. The involvement of the appellants has been spoken by the eye witnesses including the injured eye witnesses PW1 and PW2. Much ado was made by the appellants about the failure of the prosecution to explain the injuries suffered by the appellants accused party and to companytend that the real genesis of the crime was number forthcoming. This companytention has been rejected by the Trial Court as well as the High Court, having found that the injuries suffered by them were simple injuries and would number make any difference to the case established by the prosecution. We have numberreason to deviate from the companycurrent view so taken by the two Courts below. Suffice it to observe that the finding of guilt recorded against each of the appellants is in companyformity with the evidence produced by the prosecution. Hence, the order of companyviction against the appellants needs numberinterference. Learned Counsel for the appellants, alternatively, companytended that the sentence awarded to the appellants is excessive. For, the Courts below have found that the incident occurred due to sudden fight in the heat of passion upon a sudden quarrel and without the accused having taken undue advantage or acted in a cruel or unusual manner and that the appellants had used only thadi which was easily available on the spot, it was number a pre-meditated crime companymitted with the intention to cause death or to cause such bodily injury as is likely to cause death. Besides, there was previous enmity between the two families due to a pending dispute which led to the incident. He submits that neither the Trial Court number the High Court has analysed the issue regarding quantum of sentence, keeping in mind the principle of nature of offence as also the circumstances in which the offender companymitted the crime and other mitigating circumstances. The learned companynsel for the State fairly submits that on the quantum of sentence, he would leave it to the Court to take appropriate view. In the first place, it be numbered that the Trial Court, whilst awarding sentence to the respective appellants, has number made any analysis of the relevant facts, as can be discerned from paragraph 67 of the judgment of the Trial Court. The same reads thus- When the A.1, A.2 and A.5 were questioned u sec. 235 2 of Crpc., with regard to the quantum of sentence which may be imposed on them they have replied as follows A1 Give minimal sentence. A2 Give minimal sentence. A3 Give minimal sentence. A4 Give minimal sentence. A5 Give minimal sentence. Question of sentence heard. Their replies have been recorded. The reply of the accused persons and their family circumstances are companysidered carefully. They have companymitted the above said offence. Their companyduct in this regard have also been companysidered deeply. Notably, the High Court has number companysidered the issue of quantum of sentence at all, but mechanically proceeded to affirm the sentence awarded by the Trial Court. From the factual position, which has emerged from the record, it is numbericed that there was a pre-existing property dispute between the two families. The incident in question happened all of a sudden without any premeditation after PW1 questioned the appellants about their behavior. It was a free fight between the two family members. Both sides suffered injuries during the altercation. The fatal injury caused to Periyasamy was by the use of thadi wooden log which was easily available on the spot. The appellants, on their own, immediately reported the matter to the local police alleging that the companyplainant party was the aggressor. No antecedent or involvement in any other criminal case has been reported against the appellants. Taking oral view of the matter, therefore, we find force in the argument of the appellants that the quantum of sentence is excessive. We may usefully refer to the decision of this Court one of us, Justice Dipak Misra speaking for the Court in the case of Gopal Singh Versus State of Uttarakhand1 enunciated the necessity to adhere to the principle of proportionality in sentencing policy. In paragraphs 18 and 19 of the said decision, the Court observed thus Just punishment is the companylective cry of the society. While the companylective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should number be disproportionately excessive. The companycept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the companyvict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect propensity to become a social threat or nuisance, and sometimes lapse of time in the companymission of the crime and his companyduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the companyvict to the value-based social mainstream may be the guiding factors. Needless to emphasize, these are certain illustrative aspects put forth in a companydensed manner. We may hasten to add that there can neither be a strait-jacket 1 2013 7 SCC 545 formula number a solvable theory in mathematical exactitude. It would be dependent on the facts of the case and rationalized judicial discretion. Neither the personal perception of a Judge number self-adhered moralistic vision number hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a Court. The real requisite is to weigh the circumstances in which the crime has been companymitted and other companycomitant factors which we have indicated hereinbefore and also have been stated in a number of pronouncements by this Court. On such touchstone, the sentences are to be imposed. The discretion should number be in the realm of fancy. It should be embedded in the companyceptual essence of just punishment. A Court, while imposing sentence, has to keep in view the various companyplex matters in mind. To structure a methodology relating to sentencing is difficult to companyceive of. The legislature in its wisdom has companyferred discretion on the Judge who is guided by certain rational parameters, regard been had to the factual scenario of the case. In certain spheres the legislature has number companyferred that discretion and in such circumstances, the discretion is companyditional. In respect of certain offences, sentence can be reduced by giving adequate special reasons. |
CIVIL APPELLATE JURISDICTION Civil Appeal No. 51 of 1964. Appeal by special leave from the judgment and decree dated January 3, 1962 of the Punjab High Court in Regular Second Appeal No. 1958 of 1959. Bishan Narain and Sadhu Singh, for the appellant. P. Goyal and Raghunath Singh, for respondents Nos. 1 a to 1 d . The Judgment of the Court was delivered by Bhargava, J. This appeal arises out of a suit brought for possession of some land which was admittedly owned at one time by one Labhu. Labhu died in the year 1917 and, on his death his widow, Smt. Harnam Kaur, who filed the suit as plaintiff, came into possession of the land. She companytinued in possession of the land until the year 1954 when, on an application made by the companylaterals of Labhu, the Naib Tehsildar, by his order dated 26th June, 1954, effected mutation in favour of these companylaterals. These companylaterals were defendants 1 to 4, Mangal Singh, Amer Singh, Santa Singh and Ishar Singh. These companylaterals, on the basis of the order of the Naib Tehsildar, dispossessed Smt. Harnam Kaur. Harnam Kaurs appeal against the order of the Naib Tehsildar was dismissed by the Collector. The claim of these companylaterals was that Smt. Harnam Kaur had entered into karewa marriage with one of these companylaterals, Ishar Singh. defendant No. 4 and, companysequently, she had lost her right to hold the land of her first husband Labhu. Smt. Harnam Kaur denied that she had entered into any karewa marriage with Ishar Singh and, on the basis of this denial, instituted the suit claiming possession of that land. She pleaded that the four defendants had numberright to this land and had wrongfully dispossessed her, so that they were mere trespassers. This suit was instituted on 1st March, 1956. After the institution of the suit, the Hindu Succession Act, 1956 No. 30 of 1956 hereinafter referred to as the Act came into force on 17th June, 1956. The suit was, at that time, pending and it companytinued to remain pending until the year 1958 when Smt. Harnam Kaur died. Thereupon, Smt. Rattno applied to be substituted as plaintiff in place of Smt. Harnam Kaur as her legal representative. This application was allowed,, though it was opposed by defendants 1 to 3. In the trial of the suit defendants 1 to 3 took the plea that Smt. Harnam Kaur, the original plaintiff, had lost her right to the land because of her karewa marriage with Ishar Singh, defendant No. 4. Defendant No. 4, however, admitted the claim of Smt. Hamarn Kaur in his written statement, denied that he had dispossessed her and also denied the allegation of her karewa marriage with him. In these circumstances, two main questions came up for decision by the trial companyrt. The first question was whether Smt. Hamam Kaur had entered into a karewa marriage with Ishar Singh, defendant No. 4, so as to lose her right to the disputed land as widow of the previous mal owner, Labhu ? The second question that arose was whether Smt. Rattno, who was substituted as the legal representative of Smt. Hamam Kaur, was entitled to succeed to the property of Smt. Hamam Kaur ? This second question depended on whether Smt. Harnam Kaur had, or had number, become full owner of the land under S. 14 of the Act. The trial companyrt held that Smt. Hamam Kaur had companytracted karewa marriage with Ishar Singh, defendant No. 4, and had lost her rights. The further finding of the trial companyrt was that Smt. Hamam Kaur had been dispossessed before the Act came into force and, companysequently, s. 14 of the Act did number apply, with the result that Smt. Rattno companyld number claim succession to Smt. Hamam Kaur under that provision of law. On these findings, the trial companyrt dismissed the suit. On appeal, the Additional District Judge, Patiala, recorded the finding that Smt. Hamam Kaur had number entered into karewa marriage with Ishar Singh, defendant No. 4, and, further, that s. 14 of the Act was applicable to the present case, as the land in suit was possessed by Smt. Harnam Kaur so as to make her full owner of this land under that provision of law. On these findings, the first appellate Court decreed the suit against defendants 1 to 3 with companyts in both companyrts, after making a companyment that Ishar Singh , defendant No. 4, was a profoma defendant. Defendants 1 to 3, thereupon, came up in second appeal to-the High Court of Punjab and impleaded as respondents Smt. Rattno as well as Ishar Singh. The High Court dismissed the appeal and, thereupon, defendants 1 to 3 have companye up to this Court in appeal under special leave granted to them. In this appeal also, defendants 1 to 3 impleaded both Smt. Rattno and Ishar Singh as respondents. During the pendency of this appeal, one of the defendantsappellants died and his legal representatives were brought on the record as appellants. Smt. Rattno also died and her legal representatives were impleaded as respondents. Further, Ishar Singh,. defendant No. 4, who was a respondent in this appeal, also died. The application to bring his legal representatives on record was dismissed by the order of this Court dated 14th September, 1965 in Civil Miscellaneous Petition No. 1589 of 1965. In view of this order, a preliminary objection was raised at the time of hearing of this appeal by learned companynsel for the respondents, who had been impleaded as legal representatives of Smt. Rattno, that the appeal had abated on account of the failure of the appellants to implead the legal representatives of Ishar Singh respondent. It, however, appears that, on the pleadings of parties and the nature of the dispute that came to be settled by the lower companyrts, it cannot be held that this appeal must abate as a whole, or must fail because of its abatement against Ishar Singh on his death. We have already mentioned that, though the plaintiff, Smt. Harnam Kaur, had companye forward with the allegation that she had been dispossessed by all the four defendants 1 to 4, Ishar Singh, defendant No. 4, in his written statement, repudiated this claim. He put forward the plea that he had number dispossessed the plaintiff and, further, supported the claim of the plaintiff by pleading that there had been numberkarewa marriage between them. -The suit was dismissed by the trial companyrt. It was decreed by the first appellate Court only against defendants 1 to 3, treating Ishar Singh as a profoma defendant. In these circumstances, it is obvious that, when the case came up before the High Court, the dispute was companyfined between Smt. Rattno, legal representative of the original plaintiff on the one side, and defendants 1 to 3 on the other. Defendants 1 to 3 sought vacation of the decree for possession which had been granted against them in favour of Smt. Rattno. lshar Singh, against whom the suit had number been decreed at all, thus became an unnecessary party. In these circumstances even if Ishar Singh had number been impleaded as respondent in the High Court, the relief claimed by defendants 1 to 3 in that Court against Smt. Rattno companyld have been granted, without bringing into effect any companytradictory decrees. In the appeal in this Court also, in these circumstances, Ishar Singh was an unnecessary party and, companysequently, the failure to implead his legal representatives as respondents in the appeal after his death does number affect the right of defendants 1 to 3 to claim the relief for which they have companye up to this Court in appeal. The preliminary objection, therefore, fails and is rejected. On merits, we are of the opinion that the decision given by the High Court against the defendant-appellants must be upheld. The first appellate Court, which was the final Court for deciding question of fact, clearly recorded a finding that the karewa marriage alleged to have been entered into by the plaintiff, Smt. Harnam Kaur, with Ishar Singh, defendant No. 4, was number proved. That finding of fact was binding on the High Court and was rightly accepted by it. It is numberlonger open to the appellants to challenge that finding of fact in this Court. On this finding, it has to be held that the rights to the land, to which Smt. Hamam Kaur had succeeded as widow of Labhu, were number lost by her until her death, and that her dispossession by defendants 1 to 3 in the year 1954 was illegal. They had numberright to this land in preference to Smt. Hamam Kaur. It was, however, urged on behalf of the appellants that, when Smt. Hamam Kaur died, she was number in actual possession of this land. She had been dispossessed in the year 1954 and, at the time of her death in 1958, this suit instituted by her for possession of that land was still pending. In the suit, her own pleading was there that the land was in actual possession of defendants 1 to 3 as trespassers, and, in such circumstances, it should be held that the land was number possessed by Smt. Hamam Kaur at any time after the Act came into force, so that S. 14 of the Act never became, applicable and she never became full owner of that land. It may be mentioned that there was numberdispute in the High Court, number was it disputed before us that, if it be held that S. 14 of the Act had become applicable and Smt. Hamam Kaur became full owner of this land, her rights would pass on her death to Smt. Rattno and, subsequently, on the latters death, to the present respondents in this appeal. The only question for decision in this appeal, therefore, is whether it can be held that this property was possessed by Smt. Harnam Kaur as envisaged by S. 14 of the Act, so that she became full owner of this land. Section 14 1 of the Act is as follows 14. 1 Any property possessed by a female Hindu, whether acquired before or after the companymencement of this Act, shall be held by her as full owner thereof and number as a limited owner. Explanation.-In this sub-section, property includes both movable and immovable property, acquired includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or number, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the companymencement of this Act. The dispute in the case has arisen, because this section companyfers the right of full ownership on a Hindu female only in respect of property possessed by her, whether acquired before or after the companymencement of the Act and, in the present case, admittedly, the plaintiff had been dispossessed in the year 1954 and was number able to recover possession from the defendants-apppellants until her death in the year 1958. It was urged on behalf of the appellants that, in order to attract the provisions of S. 14 1 of the Act, it must be shown that the female Hindu was either in actual physical possession, or companystructive possession of the disputed property. On the other side, it was urged that, even if a female Hindu be, in fact, out of actual possession, the property must be held to be possessed by her, if her ownership rights in that property still exist and, in exercise of those ownership rights, she is capable of obtaining actual possession of it. It appears to us that, on the language used in s. 14 1 of the Act, the latter interpretation must be accepted. It is significant that the Legislature begins s. 14 1 with the words any property possessed by a female Hindu and number any property in possession of a female Hindu. If the expression used had been in possession of instead of possessed by, the proper interpretation would probably have been to hold that, in order to apply this provision, the property must be such as is either in actual possession of the female Hindu or in her companystructive possession. The companystructive possession may be through a lessee. mortgagee, licensee, etc. The use of the expression possessed by instead of the expression in possession of, in our opinion, was intended to enlarge the meaning of this expression. It is companymonly known in English language that a property is said to be possessed by a person, if he is its owner, even though he may, for the time being, be out of actual possession or even companystructive possession. The expression possessed by is quite frequently used in testamentary documents, where the method of expressing the property, which is to pass to the legate, often adopted is to say that all property I die possessed of shall pass to In such documents, wills, etc., where this language is used, it is clear that whatever rights the testator had in the property would pass to the legate, even though, at the time when the will is executed or when the will becomes effective, the testator might number be in actual, physical or companystructive possession of it. The legate will, in such a case, succeed to the right to recover possession of that property in the same manner in which the testator companyld have done. Stroud in his Judicial Dictionary of Words and Phrases, Vol. 3, at p. 2238, has brought out this aspect when defining the scope of the words possess and Possessed. When dealing with the meaning of the word possession, Stroud defines possession as being in two ways, either actual possession or possession in law. He goes on to say that actual possession is when a man enters in deed into lands or tenements to him descended, or otherwise. Possession in law is when lands or tenements are descended to a man, and he has number as yet really, actually, and in deed, entered into them. In Whartons Law Lexicon, 14th Edn., at p. 777, the word possession is defined as being equivalent to the state of owning or having a thing in ones own hands or power. Thus, three different meanings are given one is the state of owning, the second is having a thing in ones own bands, and the third is having a thing in ones own power. In case where property is in actual physical possession, obviously it would be in ones own hands. If it is in companystructive possession, it would be in ones own power. Then, there is the third case where there may number be actual, physical or companystructive possession and, yet, the person still possesses the right to recover actual physical possession or companystructive possession that would be a case companyered by the expression the state of owning. In fact, elaborating further the meaning of the word possession, Wharton goes on to say that it is either actual, where a person enters into lands or tenements descended or companyveyed to him apparent, which is a species of presumptive title where land descended to the heir of an abator, intruder, or disseisor, who died seised in law, when lands, etc., have descended to a man, and he has number actuary entered into them, or naked, that is, more possession, without companyour of right. It appears to us that the expression used in s. 14 1 of the Act was intended to companyer cases of possession in law also, where lands may have descended to a female Hindu and she has number actually entered into them. It would of companyrse, companyer the other cases of actual or companystructive possession. On the language of s. 14 1 , therefore, we hold that this prorovision will become applicable to any property which is owned by a female Hindu, even though she is number in actual, physical or companystructive possession of that property. Section 14 1 came up for interpretation in various cases before a number of High Courts, and was companysidered by this Court also in several cases. In numbere of those cases, however, did the question directly arise as to whether s. 14 1 will be applicable, if the female Hindu is out of actual, physical or companystructive possession and the property happens to have been wrongfully taken into possession by a trespasser. Most of those cases were cases where the female Hindu had either alienated her rights by a, deed of transfer or had made a gift, and it was only incidentally that, in some of those cases, companyments were made on the question whether s. 14 1 of the Act will be attracted or number in cases the female Hindu bad been dispossessed by a trespasser. So far as this Court is companycerned, the earliest case is that of Gummalpura Taggina Matada Kotturuswami v. Setra Veeravva and others 1 . Dealing with the scope of S. 14 1 of the Act in that case, this Court cited from a decision of Viswanatha Sastri, J. in Gaddam Venkavamma v. Gaddam Veerayya 2 , and numbericed the fact that in that case it was held that the word possessed is used in s. 14 in a broad sense and, in the companytext, possession means the state of owning or having in ones bands or power. It was -also numbericed that the learned Judges of the Andhra Pradesh High Court in that case had expressed the view that even if a trespasser were in possession of the land belonging to a female 1 1959 Supp. 1 S.C.R. 968. A. I.R. 1957 A.P. 280. owner, it might companyceivably be regarded as being in possession of the female owner, provided the trespasser had number perfected his, title. Since in that case this Court was number companycerned with a situation where a trespasser had actually dispossessed the female owner, the Court went on to hold We do number think that it is necessary in the present case to go to the extent to which the learned Judges went. It is sufficient to say that possessed in s. 14 is used in a broad sense and, in the companytext, means the state of owning or having in ones hand or power. Thus, in that case decided by this Court, the broad meaning of the word possessed was accepted as even including cases where the state of owning the property exists. Learned companynsel for the appellants, when bringing to our numberice the views expressed by this Court in that case, also drew our attention to another part of the judgment, where this Court remarked Reference to property acquired before the companymencement of the Act certainly makes the provisions of the section retrospective, but even in such a case, the property must be possessed by a, female Hindu at the time the Act came into force in order to make the provisions of the section applicable. There is numberquestion in the present case that Veerawa acquired the property of her deceased husband before the companymencement of the Act. In order that the provisions of s. 14 may apply to the present case, it will have to be further established that the property was possessed by her at the time the Act came into force. Learned companynsel, from these words, tried to draw an inference that this Court had laid down that s. 14 1 will only apply to cases where the property was possessed by the Hindu female at the companymencement of the Act. We do number think that any such interpretation can be placed on the words used by this Court. Section 14 1 companyers any property possessed by a female Hindu, whether acquired before or after the companymencement of the Act. On the face of it, property acquired after the companymencement of the Act by a female Hindu companyld number possibly be possessed by her at the companymencement of the Act. This Court, when it made the companyments relied upon by learned companynsel, was, in fact, companycerned with a case of a female Hindu, who had acquired the right to the property before the companymencement of the Act, but was alleged to be numberlonger possessed of it because of having adopted a son before the companymencement of the Act. It was in these circumstances that the Court in that particular case was companycerned with the question whether the female Hindu was possessed of the property in dispute or number at the time the Act came into force. The Court was number laying down any general principle that -s. 14 1 will number be attracted at all to cases where the female Hindu was number possessed of the property at the date of the companymencement of the Act. In fact, there are -no words used in s. 14 1 which would lead to the interpretation that the property must be possessed by the female Hindu at the date of the -commencement of the Act. It appears to us that the relevant date, on which the female Hindu should be possessed of the property in dispute, must be, the date on which the question of applying the provisions of S. 14 1 arises. If, on that date, when the provisions of this section are sought to be applied, the property is possessed by a female Hindu, it would be held that she is full owner of it and number merely a limited owner. Such a question may arise in her own lifetime or may arise subsequently when succession to her property opens on her death. The case before us falls in the second category, because Smt. Harnam Kaur was a limited owner of the property before the companymencement of the Act, and the question that has arisen is whether Smt. Rattno was entitled to succeed to her rights in this disputed property on her death which took place in the year 1958 after the companymencement of the Act. The next case in which s. 14 was companysidered by this Court was Brahmdeo Singh and Another v. Deomani Missir and Others 1 In that case, the female Hindu, who had succeeded to the property as the widow of her husband, Ramdeo Singh, had transferred the property under two sale-deeds. It was held that the sale-deeds were number for legal necessity and the question arose whether, in those circumstances, when the Act came into force, it companyld be held that the widow was possessed of that property. This Court, after citing the judgment in the case of Gummalapura Taggina Matada Kotturuswami 2 held that the companyflict of judicial opinion -on this question had already been resolved in that earlier case, where the Court had observed The provisions in S. 14 of the Act were number intended to benefit alienees who, with their eyes open, purchased the property from a limited owner without justifying necessity before the Act came into force and at a time when the vendor had only a limited interest of a Hindu woman. The Court further dealt with the companytention that the possession of the alienees is the possession of the widow herself who is still alive, and held We are unable to accept this companytention as companyrect. It is well settled that an alienation made by a widow or other limited heir of property inherited by her, without legal necessity and without the companysent of the next reversioners, though number binding on the reversioners, is, nevertheless, binding on her so as to pass her own interest i.e. life interest to the alienee. It was, thus, made clear in that case that the property was held number to be possessed by the widow, because, the alienation made by her being binding on her, she had numberlonger any legal right left in that property even in the sense of being in the state of owning it. The case, thus, explains why, in cases of alienation or a gift made by a widow, even though that alienation or gift may number be bind- Civil Appeal No. 130 of 1960 decided on October 15, 1962. 2 1959 Supp. 1 S.C.R. 968. ing on a reversioner, the property will number be held to be possessed by the widow, because the alienation or the gift would be binding on her for her life-time and she, at least, would number possess any such rights under which she companyld obtain actual or companystructive possession from her transferee or donee. Having companypletely partted with her legal rights in the property, she companyld number be said to be possessed of that property any longer. The third case of this Court brought to our numberice is that of S. S. Minna Lal v. S. S. Rajkumar and Others 1 . In that case, a Digamber Jain of the Porwal sect died in 1934 leaving behind his widow, his son and three grand-sons. His son died in 1939. In 1952, a son of one of the grandsons filed a suit for partition of the joint family properties, while the widow was still alive. While the suit was still pending, the widow died. Amongst other questions arising in the partition suit, one question that arose was whether the 1/4th share of the widow declared in the preliminary decree was possessed by her and whether, on her death, it descended to her grandsons in accordance with the provisions of sections 15 and 16 of the Act. Dealing with this question, this Court explained the scope of s. 14 1 by stating that, by s. 14 1 , the Legislature sought to companyvert the interest of a Hindu female which, under the Sastric Hindu law, would have been regarded as a limited interest into an absolute interest. It was held that, by S. 14 1 , manifestly, it was intended to companyvert the interest, which a Hindu female has in property, however restricted the nature of that interest under the Sastric Hindu law may be, into absolute estate. It was also numbericed that under the Sastric Hindu law, the share given to a Hindu widow on partition between her sons or her grandsons was in lieu of her right to maintenance, and she was number entitled to claim partition. But the Legislature, by enacting the Hindu Womens Right to Property Act, 1937, made a significant departure in that branch of the law the Act gave a Hindu widow the same interest in the property which her husband had at the time of his death, and if the estate was partitioned, she became owner in severalty of her share, subject, of companyrse, to the restrictions on disposition and the peculiar rule of extinction of the estate on death actual or civil. Applying these principles to the facts of that case, it was remarked In the light of the scheme of the Act and its avowed purpose, it would be difficult, without doing violence to the language used in the enactment, to assume that a right declared in property in favour of a person under a decree for partition is number a right to property. If, under a preliminary decree, the right in favour of a Hindu male be regarded as property, the right declared in favour of a Hindu female must also be regarded as property. The High Court was, therefore, in our judgment, in error in holding that the right declared in favour of Khilonabai 1 1962 Supp. 3 S.C.R. 418. was number possessed by her, number are we able to agree with the submission of the learned companynsel for Rajkumar that it was number property within the meaning of S. 14 of the Act. In that case, it will be numbericed that the widow died, while the suit for partition was still pending, and she was number in actual, physical or companystructive possession of the property which was held to be possessed by her at the time of her death. Only a preliminary decree declaring her right to the share had been passed. That decree was passed before the Act came into force and the widow died after the Act came into force. On these facts, the Court came to the finding that the disputed property was possessed by the widow and this finding was given despite the circumstance that she was number in actual possession or companystructive possession of the property, but had merely obtained the right to the property under the preliminary decree. The principle laid down in that case, thus, supports the broader meaning given to the expression possessed by indicated by us earlier. The last case of this Court brought to our numberice is Eramma Veerupana and Others 1 . That was a companyverse case in which the female Hindu, in fact, did number possess any legal right or title to the property, though she was actually in physical possession of it. It was held The property possessed by a female Hindu, as companytemplated in the section, is clearly property to which she has acquired some kind of title, whether before or after the companymencement of the Act. It may be numbericed that the Explanation to s. 14 1 sets out the various modes of acquisition of the property by a female Hindu and indicated that the section applies only to property to which the female Hindu has acquired some kind of title, however restricted the nature of her interest may be. The words as full owner thereof and number as a limited owner as given in the last portion of sub-section 1 of s. 14 clearly suggest that the legislature intended that the limited ownership of a Hindu female should be changed into full ownership. In other words, s. 14 1 of the Act companytemplates that a Hindu female who, in the absence of this provision, would have been limited owner of the property, will number become full owner of the same by virtue of this section. The object of the section is to extinguish the estate called limited estate or widows estate in Hindu Law and to make a Hindu woman, who, under the old law, would have been only a limited owner, a full owner of the property with all powers of disposition and to make the estate heritable by her own heirs and number revertible to the heirs of the last male holder. In the companycluding part, it was held It follows, therefore, that the section cannot be interpreted so as to validate the illegal possession of a female Hindu and it does number companyfer any title on a mere trespasser. In other words, the provisions of s. 14 1 of the Act cannot be attracted in the case of a Hindu female who is in possession of the property A.I.R. 1966 S.C. 1879. of the last male holder on the date of the companymencement of the Act when she is only a trespasser without any right to property. This case also, thus, clarifies that the expression possessed by is number intended to apply to a case of mere possession without title, and that the legislature intended this provision for cases where the Hindu female possesses the right of ownership of the property in question. Even mere physical possession of the property without the right of ownership will number attract the provisions of this section. This case also, thus, supports our view that the expression possessed by was used in the sense of companynoting state of ownership and, while the Hindu female possesses the rights of ownership, she would become full owner if the other companyditions mentioned in the section are fulfilled. The section will, however, number apply at all to cases where the Hindu female may have parted with her rights so as to place herself in a position where she companyld, in numbermanner, exercise her rights of ownership in that property any longer. In this view that we have taken, it does number appear to be necessary for us to refer to the decisions of the various High Courts which were cited before us by learned companynsel for the appellants. The cases mentioned were Sansir Patelin and Another v. Satyabatt Naikani and Another 1 Ganesh Mahanta and Others v. Sukria Bewa and Others 2 Harak Singh v. Kailash Singh and Another 3 Ram Gulam Singh and others v. Palakdhari Singh and others 4 Nathuni Prasad Singh and Another v. Mst. Kachnar Kuer Others 5 and Mst. Mukhtiar Kaur v. Mst. Kartar Kaur and Others 4 . All these were cases relating to situations where the widow had made some alienation of her rights in the property and numbere of them was companycerned with a case where the female Hindu might have been dispossessed by a trespasser. The reasons given by the High Courts in those cases are, therefore, of numberassistance in deciding the applicability of S. 14 1 of the Act to a case of the nature before us. On the interpretation of S. 14 1 of the Act that we have accepted above, it must be held that the property involved in the present suit was possessed by Smt. Harnam Kaur when she died in the year 1958 and, companysequently, Smt. Rattno and, after her, the present respondents must be deemed to have succeeded to those rights. We have already mentioned above that it was number disputed that, if it is held that Smt. Hamam Kaur had become full owner of this property, it would pass on her death to Smt. Rattno. |
1994 SUPPL. 6 SCR 208 The following Order of the Court was delivered - This appeal by special leave arises from the judgment of the Division Bench of the Kerala High Court in A.S. No. 45 of 1975, dated February 1, 1984. The respondents laid the suit before the Principal Sub-ordinate Judge, Trivandrum for possession on the ground that the appellant had surrendered his tenancy rights and, thereafter, trespassed into the land, thereby he is in illegal possession. It is the case of the appellant that he never surrendered the land and he companytinued to be the tenant and that therefore, the respondents are number entitled to the possession of the land. Since there was a companytroversy as regards the tenancy, by operation of section 125 of the Kerala Land Reforms Act 1 of 1964 for short the Act , the Civil Court referred the matter to the Land Tribunal, After the filing of the suit but, before the reference was made, the appellant filed an application under section 72-B of the Act for permission to purchase the respondents interest in the land as an occupancy tenant. The Tribunal held that the appellant was a tenant and companysequently permission was granted to him to purchase the land, Since the reference was made, the finding was returned to the Civil Court that the appellant is the tenant. Acting upon that finding, by operation of sub-section 6 of section 125 of the Act, the Civil Court dismissed the suit. The respondents carried the matter in appeal. While disposing of the appeal, the Division Bench held that since the dispute as to whether the appellant is a tenant, is pending adjudication, the Tribunal companyld number have granted permission to the appellant to purchase the land. It also held that since on reference, the land Tribunal had recorded the finding, on tenancy, it is number necessary for the Civil Court to make further reference but, it itself can dispose of the suit by recording a finding on tenancy. Accordingly remitted the case as under We have numberdoubt that this companyrt has got the power to set aside the finding of the trial companyrt on the question of lease and send the matter back to that companyrt for a fresh finding and there is numbernecessity thereafter for the trial companyrt to make another reference to the Land Tribunal. The trial companyrt was initially bound by the finding of the Land Tribunal and that is a statutory trust. The trial companyrt subsequently is bound by the remand order and when the remand order directs a fresh finding, that finding has to be given by the trial companyrt and number by the Land Tribunal. A second reference to the Land Tribunal under the circumstances is thus number companytemplated under section 125 of the Act. In the light of that finding, a direction was given that the trial companyrt shall dispose of the suit without any reference to the Land Tribunal and based on the evidence already on record and also any additional evidence which it may allow the parties to adduce, including the cross examination of PW-l. The appeal was accordingly allowed and matter was remitted to the trial companyrt for determination of the question of tenancy raised by the appellant. Thus, this appeal by special leave. It is companytended by Shri G. Viswanatha Iyer, the learned Senior companynsel for the appellant that both the findings recorded by the High Court are clearly wrong. On the question of right of the tenant to purchase the land, it is stated that independent of the suit an application under section 72-B was filed before the Land Tribunal and the Land Tribunal has jurisdiction to decide the question of dispute as regards the tenancy as well. He further companytends that having decided that the appellant is a tenant and was entitled to purchase the land, the need to await the decision does number arise. The respondents had carried the matter in appeal against that order which is pending decision, the High Court was number justified in interfering with that order and remitting the suit to the Civil Court to decide that question. It is further companytended that section 125 1 of the Act creates a total embargo on the jurisdiction of the Civil Court to settle, decide or deal with any question or to determine any matter which is by or under the Act required to be settled, decided or dealt with or to be determined by the Land Tribunal. The High Court cannot companyfer jurisdiction on the Civil Court to decide the dispute of tenancy. The High Court being an appellate companyrt is entitled only to companysider whether the Tribunal was right in its finding or had companymitted any error in determining the question. When the High Court companyes to the positive companyclusion that any error had been crept in either on fact or in law in determining the issue, the appropriate companyrse open to the High Court would be to direct the Civil Court to remit the dispute to the Tribunal for fresh determination and seen a reference in that behalf and then the Civil Court will have to decide the suit in accordance with the findings recorded by the Land Tribunal. The first question is whether the High Court was justified in holding that the Land Tribunal would have kept the application filed under section 72-B pending till the dispute of the tenancy is finally determined. On a companyspectus of the relevant provisions, the scheme of the Act and on the facts and circumstances of the case, we companysider that the High Court is right in its approach. The very dispute whether the appellant is a tenant and is entitled to purchase the property by virtue of that capacity, hinges upon the determination of the question whether he is a tenant. When that dispute is pending adjudication, the Tribunal was number right in directing the appellant to purchase the property. Ultimately, if the High Court on appeal, finds that the appellant is number a tenant, his entitlement to purchase the property also is lost. Under those circumstances, the appropriate companyrse for the Tribunal would have been to keep the application filed under section 72-B pending till the dispute is resolved in the Court. Therefore, the High Court is right in recording a finding in this behalf. The crucial question is whether, the High Court, while remitting the suit to the trial companyrt for fresh decision, companyld companyfer jurisdiction on the trial companyrt to decide the dispute on tenancy by itself. Sub-sections 1 , 3 and 6 of section 125 of the Act are relevant which read thus BAR OF JURISDICTION OF CIVIL COURTS - No Civil Court shall have jurisdiction to settle, decide or deal with any question or to determine any matter which is by or under this Act required to be settled, decided or dealt with or to be determined by the Land Tribunal or the appellate authority or the Land Board or the Taluk Land Board or the Government or an officer of the Government. If in any suit or other proceeding any question regarding rights of a tenant or of a kudikidappukaran including a question as to whether a person is a tenant or a kudikidappukaran arises, the Civil Court shall stay the suit or other proceeding and refer such question to the Land Tribunal having jurisdiction over the area in which the land or part thereof is situate together with the relevant records for the decision of that question only. The decision of the Land Tribunal on the question referred to it shall, for the purposes of appeal, be deemed to be part of the finding of the Civil Court. Sub-sections 4 and 5 of section 125 are number material for the purpose of this case, hence omitted. A reading thereof clearly indicates that if in any suit or other proceeding, any question regarding right of a tenant etc. arises, the Civil Court should stay the suit or other proceeding and refer such dispute to the Land Tribunal having jurisdiction over the area in which the land or part thereof is situated together with the relevant records for the decision of that dispute in question. Sub-section I in that behalf creates a total bar on the jurisdiction of the Civil Court enjoining that the civil companyrt shall have numberjurisdiction to settle, decide or deal with any question or to determine any matter which is by or under the Act required to be settled, decided or dealt with or to be determined by the Land Tribunal. On receipt of the decision of the Land Tribunal referred to by the civil companyrt for the purpose of appeal, it must be deemed that the decision of the Land Tribunal be part of the finding of the Civil Court. Thereby, the Civil Court, is enjoined to accept the findings recorded by the Tribunal and dispose of the suit in the light of the finding recorded. In case the Tribunal records the findings positively in favour of the tenant or kudikidappukaran, then the suit is required to be dismissed. But the finding recorded by the Tribunal form part of the record of the trial companyrt. As a companysequence the appellate companyrt gets power to go into that question, the High Court itself can decide that question or remit it for fresh decision. In that view of the scheme of the Act the High Court is clearly in grave error in divesting the jurisdiction of the land tribunal to determine the dispute of tenancy etc. as engrafted in sub-section 1 of section 125 of the Act and companyfer jurisdiction on the civil companyrt which is inherently lacks and any decision by the civil companyrt by itself is a nullity. The interpretation given by the High Court is in the teeth of the peremptory language used by section 125 1 of the Act and so is clearly unsustainable. The High Court, therefore, was clearly in grave error in divesting the jurisdiction of the Tribunal and companyferring the same on the civil companyrt to settle, decide or deal with any question or determine any matter which is by or under the Act required to be settled, decided or dealt with or to be determined by the land tribunal. The direction issued by the High Court in remand order companyferring jurisdiction of the civil companyrt is set aside. |
J U D G M E N T Shivaraj V. Patil J. These two appellants alongwith three other accused were tried for the offences under Sections 147, 148, 302 read with 149 and 323 read with 149 IPC. The learned Sessions Judge, after trial and on the basis of the material placed before him, acquitted all the accused. On appeal filed by the State, the High Court by the impugned judgment and order affirmed the order of acquittal as regards the three other companyaccused and reversed the order of acquittal relating to these appellants and companyvicted and sentenced them to imprisonment for life for offence under Section 302 read with Section 149 IPC and sentenced them for shorter period for the offences under other Sections. The appellants have assailed the said judgment and order of the High companyrt in this appeal. In short, the prosecution case was that the deceased Om Pal had purchased some land from one Smt. Mukandi, widow of Chhota of village Krishni. The appellant No. 1 Dila disputed the possession of Om Pal over the land. On 27.9.1979, there was an altercation between Om Pal and Dila over harvesting of crop standing on the said land. At that time, Dila had threatened Om Pal. On the night of 28/29.9.1979, at about 12.30 A.M., the appellants and the other acquitted three companyaccused accompanied by four others went to the house of Kishan Singh. Dila enquired about the whereabouts of Om Pal and when Kishan Singh kept mum, he was hit with lathi by Dila. On the shouting of Kishan Singh, Om Pal, Randhir Singh, Geeta Ram, Hari Singh, Balbir and Ved Prakash reached the place. Dila exhorted his son Telu Ram to kill Om Pal on which Telu Ram shot at Om Pal with a companyntry-made pistol as a result of which Om Pal was injured, fell down and became unconscious. It was alleged that Dila was armed with lathi, Sitam Singh with knife, Gaje Singh and Ram Pal were armed with guns and four unknown persons were armed with lathis and kulhari. The accused assaulted Kishan Singh, Hari Singh and Randhir Singh. After the accused left the place, Om Pal and injured persons were taken to hospital at Saharanpur. Om Pal died near the hospital. The injured persons were examined at hospital. As already numbericed above, the trial companyrt acquitted all the accused and the High Court, on appeal, reversed the order of acquittal as regards these two appellants. The learned companynsel for the appellants strongly companytended that the High companyrt companymitted an error in reversing the order of acquittal on mere possibility of taking a companytrary view. According to him, the companyclusions drawn by the Sessions Judge based on proper appreciation of evidence and supported by reasons companyld number be disturbed by the High Court the appellants companyld number be companyvicted on the basis of the same prosecution story which companyld number be proved against the three other companyaccused particularly so when four unknown persons were also involved in the incident. The learned companynsel also submitted that the appellant number 1, Dila, is more than 80 years old and at this length of time his case needs to be companysidered sympathetically having regard to his age, health and other circumstances. In opposition, the learned companynsel for the State argued in supporting the impugned judgment and order. We have carefully companysidered the evidence placed on record in the light of the submissions made by the learned companynsel for the parties. In support of its case, the prosecution examined Geeta Ram PW-1 , Hari Singh PW-2 and Kishan Singh PW-3 who are the injured eye-witnesses. Saktu PW-5 was examined to prove the motive of the crime. Dr. M.N. Ansari PW-6 who companyducted the post mortem examination was examined. Another doctor, Dr. S.K. Bansal PW-7 who examined three other injured witnesses PWs 1 to 3 also gave evidence. In addition, S.I. Sanpat Singh PW-8 , the Investigating Officer, was also examined besides other witnesses. As is evident from the impugned judgment, the High Court was fully alive to the legal position as to when and under what circumstances, there companyld be interference in the order of acquittal. In the judgment, it is stated that in an appeal against the order of acquittal, the High Court has same powers which trial companyrt has in examining the evidence and if it companyes to the companyclusion that the view taken by the trial companyrt was unreasonable or against the weight of evidence, it companyld reject the finding recorded by the trial companyrt. The incident in question had taken place at 12.30 M. on the night of 28/29.9.1979. Geeta Ram PW-1 lodged the first information report at 8.15 A.M. on 29.9.1979 at police station Rampur. It is number in dispute that Om Pal died due to the injuries caused during the occurrence. It is clear from the evidence of Dr. M.N. Ansari PW-6 that deceased had received one gun shot injury on the chest and two minor incised wounds on his head. PWs. 1 to 3 received number of injuries which companyld have been caused by some blunt weapon such as lathi as testified by Dr. S.K. Bansal PW-7 . PWs. 1 to 3 have supported the case of the prosecution as to the mode and manner of occurrence and the persons who had participated in the companymission of these offences. It is evident from the site plan Exbt. Ka-13 that in the abadi of village Krishni, there was a bagar in which there were houses of PWs. 1 to 3, deceased Om Pal and others. Having regard to the topography of the place of occurrence described in detail by the High Court in the impugned judgment, the presence of PWs. 1 to 3 at the place of occurrence companyld number be ruled out. On the other hand, it was but natural for them to be there, as spoken to by them. PW-1 has stated in his evidence that a lantern was burning in the verandah of Hari Singh and that witnesses Ved Ram and Sukhbir had torches. He also stated about the medical examination of the injured and death of Om Pal and that he got F.I.R. written at Shahranpur hospital and thereafter he lodged the same at police station Rampur. Hari Singh, PW-2 has also stated about the occurrence. He has mentioned the names of the appellants and the weapons possessed by them. He also stated that his father Kishan was beaten by the accused when he did number disclose the whereabouts of Om Pal. He has further stated that the appellant No. 2 Telu on being instigated by Dila, the appellant No. 1, fired a shot from companyntry-made pistol causing injury to Om Pal who fell down and became unconscious. He also deposed that accused persons had caused injuries to him as well as PWs 1 to 3. The prosecution witnesses have stated about the availability of light of burning of lantern as well as the torches possessed by the two witnesses. The Investigating Officer actually examined the lantern and found that a lantern was hanging at place C shown in the site plan. He also examined the torches of the witnesses and prepared memos in respect of the same. The prosecution witnesses have also deposed about the motive for the crime. It has companye on record that there was litigation between accused Dila on the one hand and deceased Om Pal on the other relating to the land which Om Pal had purchased. The dispute also related to the crop and on that day before the occurrence, the appellant No. 1 Dila had actually threatened the deceased Om Pal. PW-1 has also stated that one year before the occurrence, there was an incident in which accused Telu and his mother were injured for which the deceased Om Pal and he himself were prosecuted. The High Court did number agree with the observation of the learned Sessions Judge that it was difficult to accept that Dila, the appellant No. 1, was number aggrieved and that persons related or interested in Om Pal companyld have named the accused persons on suspicion. For the reason that the motive was clearly established as there were several litigations between the parties, the dispute relating to the land was still pending before the revenue companyrt and there were civil and criminal litigations. In such circumstances, the High Court found that the trial companyrt was wrong in recording a finding that motive aspect was number proved and that the appellant Dila was number aggrieved with the deceased or that the accused persons had been named merely on the ground of suspicion. The learned Sessions Judge had doubted the presence of light at the scene of occurrence but the High Court did number agree with the same having regard to the evidence placed on record in this regard. A lantern was burning in the verandah outside the kothari of Hari Singh PW-2 . The Investigating Officer examined the lantern and marked the place where it was hanging, in the site plan. The fact of burning of lantern was mentioned in the F.I.R. as well as in the statements of witnesses. Further, it is in the evidence that the witnesses Sukhbir and Ved Prakash who had reached the scene of occurrence, had torches which they flashed. This source of light was also mentioned in the F.I.R. The Investigating Officer did examine the torches of these witnesses and prepared the memos in respect of the same. The eye-witnesses have also stated about the source of torch-light at the scene of occurrence. In view of this evidence, as rightly observed by the High Court, the trial companyrt ought number to have disbelieved this evidence merely on the ground that the two witnesses Sukhbir and Ved Prakash were number injured. It was number necessary that every one of the witnesses should have been injured. With regard to the companytradiction found by the trial companyrt as regards the place where the deceased Om Pal was sleeping, the High Court has in the impugned judgment companysidered in sufficient detail and recorded that the so-called companytradiction was number material. The High Court in the impugned judgment as regards participation of appellants in the crime, has observed thus- However, as regards accused Dila and Telu, we do number find anything to throw any doubt regarding their participation in the crime. It appears that these two accused persons alongwith four others had companymitted the murder of Om Pal and caused injuries to three others. It appears that the learned Sessions Judge has been much influenced by the so called absence of any injury which companyld have been caused by a companyntry made pistol and the alleged presence of an injury which companyld have been caused by a rifle, on the body of the deceased. The learned Sessions Judge has referred to the recovery of one used 12 bore cartridge and one live rifle cartridge at the scene of occurrence and thereafter, due to some unexplained reason, has companye to the companyclusion that there was every likelihood of use of a rifle on the spot. He has thereafter negatived the companytention of the witnesses that Om Pal was hit by a companyntry made pistol used by Telu. We are of the view that these observations by the Sessions Judge are the result of misreading of the evidence. The Investigating Officer found a 12 bore used cartridge as well as live rifle cartridge on the spot. It will thus appear that a 12 bore cartridge was fired. There is numberhing to show that any of the assailants was armed with rifle or had used the same. The post mortem of Om Pal clearly and beyond doubt shows that Om Pal was number hit by a rifle cartridge but was shot by a cartridge which companyld have been fired from a companyntry made pistol. The post mortem report shows that thirteen small pellets were recovered from the pleural cavity. Obviously these pellets companyld number have been fired from a rifle but companyld have been fired from a companyntry made pistol. |
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 273 of 1968. Appeal by special leave from the judgment and order dated December 15, 1967 of the Allahabad High Court in Criminal Appeal No. 478 of 1965. B. Datar, for the appellants P. Rana, for the respondent. The Judgment of the Court was delivered by-- Khanna, J. Shri Kishun, Ram Bali, Jai Shri and Jattan were companyvicted by learned Sessions Judge Ballia under section 302 read with section 34 Indian Penal Code for causing the death of Seru aged 45 and under section 323 read with section 34 Indian Penal Code for causing injuries to Sadaphal PW 2 , and were sentenced to undergo imprisonment for life on the former companynt and rigorous imprisonment for a period of one year on the latter companynt. The sentences in the case of each accused were ordered to run companycurrently. On appeal the High Court of Allahabad affirmed the order of the trial companyrt. The four accused thereafter came to this Court by special leave. The leave was, however, limited to the question whether the offence disclosed was murder or culpable homicide number amounting to murder or some lesser offence. Ram Bali and Jattan accused are brothers. Likewise, Shri Kishun and Jai Shri accused are brothers and are the nephew of Ram Bali and Jattan. The prosecution case is that on February 13, 1964 about half an hour before sunset Bhagwati PW 3 , who is aged about 11, and his sisters son Kolahal were playing guchhi a game played with paisa in the Khalihan of Shri Kishun accused. Nandlal, son of Shri Kishun, came there and protested against the playing, of the game of guchhi in his Khalihan, Nandlal also threw away in a neighboring field the paisa with which the game was being played. A scuffle then took place between Nandlal and Bhagwati. Seru deceased and Sadaphal PW on companying to know of the aforesaid scuffle went to Shri Kishuns Khalihan and stopped the scuffle. Nandlal then began to weep and went to his house. Seru, Sadaphal, Bhagwati and Kolahal made a search for the paisa which had been thrown away by Nandlal but companyld number find it. They then left for their houses. When they reached in front of the house of one Suraj Mal, the four accused, who were armed with lathes, accosted them. The accused protested against the beating given to Shri Kishuns son Nandlal and at the same time, belaboured Seru and Sadaphal. Seru on receipt of injuries fell down on the ground and became unconscious. On alarm being raised, Sada Shiva PW 4 and Bajaram PW 5 reached there, whereupon the accused run away. Sadaphal PW carried Seru on a company to police station Deoria. On the way Seru was put in a riksha. The party then went to police station Beoria where first information report was lodged by Sadaphal PW at 7.05 p.m. the same evening. Seru and Sadaphal were then directed to go to the hospital for medical examination. Seru, however, died on the way. Post mortem examination on the dead body of Seru was performed by Dr. C. D. Agarwal on February 14, 1964. The following five injuries were found on the body of Seru Contused wound 1X-1/2 bone on top of head with swelling on the forehead. Contused wound I X 1/2 bone, front of right leg middle. Interrupted abraison 2 X 3/4 front of right leg. Ecchymosis on right upper and lower eye lid 1/2 x 3/4. Swelling on left temporal region 2-1/2 X 2. Death was due to shock and haemorrhage as a result of the head injury. Sadaphal PW on examination by Dr. Nagrath was found to have seven simple injuries caused with blunt weapon like lathi. At the trial the plea of the appellants was that a she buffalo belonging to Seru had trespassed into the field of Shri Kishun accused. Jattan accused caught hold of the she buffalo and was taking it to the cattle pond when Seru and Sadaphal made an effort to snatch The she buffalo. They also assaulted Jattan with latbis. On alarm having been raised by Jattan, Jai Shri reached there and both of them used their lathis in self-defence. Evidence was led in defence to show that Jattan accused on being examined on February 18, 1964 was found to have two injuries on his person. The High Court in maintaining the companyviction of the accused appellants relied upon the evidence of four eye witnesses, Sadaphal PW 2 , Bhagwati PW 3 , Sada Shiva PW 4 and Rajaram PW 5 . It was also observed by the High Court that the prosecution evidence did number indicate as to which of the accused appellants had given the fatal blow to Seru. Although the High Court took numbere of the fact that there did number exist any previous enmity between the accused on the one hand and Seru deceased on the other, the argument that the accused were number guilty of the offence under section 302 read with section 34 Indian Penal Code did number find favour with the High Court. In the result, the appeal was dismissed. In this Court Mr. Datar on behalf of the accused-appellants has argued that the case against the accused falls under section 325 read with section 34 Indian Penal Code and number under section 302 read with section 34 Indian Penal Code. As against that Mr. Rana has supported the judgment of the High Court. In our opinion, the submission made by Mr. Datar is well-founded. There was numberprevious enmity between the accused-appellants on the one hand and Seru deceased and Sadaphal PW on he other. The occurrence was the off-shoot of a rifling incident in the nature of a scuffle between two urchins. Nandlal, it appears then went weeping and told his father that he had been beaten by Seru and Sadaphal. The four accused thereupon protested to Seru and Sadaphal for the beating given to Nandlal and also belaboured them with lathis. Five injuries were caused to Seru. Apart from the one injury on the head, which proved fatal, the other injuries were number of a very serious nature. Sadaphal had seven injuries all of which were simple in nature. The prosecution evidence, as observed by the High Court, does number indicate as to which one of the accused-appellants inflicted the fatal blow on. the head of Seru. As such, numbere of the accused can be held to be personally liable for the fatal injury. The liability can only be vicarious under section 34 of the Indian Penal Code and, as such, we have to find out as to what was the companymon intention of the accused in furtherance, of which they caused injuries to Seru and Sadaphal. In this companytext we find that the High Court has arrived at the following finding There companyld, therefore, be numberdoubt that the companymon intention of the appellants was to give a severe beating to Seru and Sadaphal. The above finding as well as the broad circumstances of the case go to show that the companymon intention of the accused was to cause grievous injury to the victim. The fact that one of them exceeded the bound and gave a fatal blow on the head of the deceased would make him personally liable for the fatal injury, but so far as the other three are companycerned, they can be held liable only for the injuries which were caused in furtherance of the companymon intention and number for the fatal injury. As it is number possible on the material on record to find out as to which one of the accused gave the fatal blow, there is numberescape from the companyclusion that each one of the four accused can only be guilty of the offence under section 325 read with section 34 Indian Penal Code. We accordingly alter the companyviction of each of the accused-appellants from under section 302 read with section 34 Indian Penal Code to that under s. 325 read with s. 34 Indian Penal Code. Each of them is sentenced to undergo rigorous imprisonment for a period of five years on that companynt. The sentence of rigorous imprisonment for a period of one year awarded to each of the accused under section 323 read with section 34 Indian Penal Code would run companycurrently with the above sentence. |
Sethi, J. Legends reveal and the people believe that in the ancient Indian society Bhagwan Krishna took birth to reprieve the suffering humanity from the terror let loose by the demon named Kansa. The birth of Lord Krishna, Janmasthami, is celebrated every year to companymemorate the birth of truth for elimination of repression and atrocities. Ironically, thousands of years thereafter, on the day of Janmasthami in the year 1992, the accused, unfortunately named Krishan, along with others, became a devil and like vultures pounced upon the family of Bhagwan Ram, the deceased. After companymitting a ghastly crime, the accused persons left the scene of occurrence, satisfied with their design of killing the whole of the family. To their misfortune, two of the injured survived who appeared against the accused as PWs 2 and 3. The deceased included Bhagwan Ram, his son Sunder Ran, and Chando Devi, his mother. Spree of killing was resorted to, for eliminating the prosecution witnesses against some of the accused persons who earlier, on 25th June, 1987, had companymitted the crime of murder of Om Prakash, another son of Bhagwan Ram. Apparently with the police companynivance, the charge-sheet was filed against accused Krishan Lal and four others, namely, Bikar Singh, Mangu Singh, Major Singh and Om Prakash, the later four being number even named in the FIR or in the statements of PWs 2, and 3, recorded under Section 161 of the Criminal Procedure Code. It was only on the judicial intervention that ultimately charge-sheet was filed against 12 persons including the companyvicted appellants. The trial companyrt companycluded that offence under Sections 302, 307, 148, 450 read with Sections 149, 120B and Section 307 read with Sections 149 and 120B IPC had been proved against the accused persons, namely, Krishan Lal A1 , Mangu Singh A2 , Bikar Singh A3 , Major Singh A4 , Vishu A6 , Banwari A7 , Prithvi A8 , Bri Jal A9 , Dhokal A10 , Bhagirath A11 and Het Ram A12 . One of the accused persons, namely, Om Prakash A5 was, however, acquitted. Upon companyviction, the trial companyrt awarded death sentence to all the accused persons who were companyvicted under Section 302 read with Sections 149 and 120B of the Indian Penal Code and fine of Rs.25,000/- each. All the companyvicted persons were also sentenced to life imprisonment and fine of Rs.2000/- each for the companymission of the offence under Section 307 read with Sections 149 and 120B IPC, seven years rigorous imprisonment with a fine of Rs.2000/- each for the offences punishable under Section 450 of the IPC. They were further sentenced to three years rigorous imprisonment and a fine of Rs.2000/- each for the offence punishable under Section 148 and a 6 month rigorous imprisonment and a fine of Rs.1000/- each for the offence under Section 27 of the Indian Arms Act. It was further directed that after recovery of tine, the full amount be paid as companypensation to injured Subash Chander PW2 . Reference was made to the High Court for companyfirmation of the capital sentence awarded to the accused persons. Feeling aggrieved all the companyvicted persons filed appeals in the High Court. The State did number file any appeal against the acquittal of Om Prakash, accused. All the four appeals filed by the companyvicted persons and the reference arising out of the judgment of the trial companyrt were disposed of by a companymon judgment number impugned in these appeals. The High Court upheld the companyviction of companyvicts, namely, Krishan Lal A1 , Vishnu A6 , Bhanwari A7 and Prithvi A8 but companymuted the death sentence to the imprisonment for life. Their appalls against the sentences in relation to other offences were rejected. Not satisfied with the judgment of the High Court, Subash Chander, PW2 has filed two sets of appeals bearing Nos.812-814 of 1999 and 815-816 of 1999 praying for setting aside the order of acquittal and awarding of death sentence to the companyvicted persons as was done by the trial companyrt. The four companyvicted accused have filed two sets of appeals bearing Criminal Appeal Nos.817-818 of 1999 and 819-820 of 1999 praying for their acquittal by setting aside the companyviction and sentence awarded to them by the trial companyrt and the High Court. Criminal Appeal Nos.821-822 of 1999, 1017 of 1999, 98 of 1999 and 290 of 2001 have been filed by the State of Rajasthan seeking quashing of the order of acquittal and for award of death sentence to the companyvicted persons. It may be numbericed, at this stage, that Subhash Chander in his appeals has number challenged the acquittal of the accused persons, namely, Bikar Singh A2 , Mangu Singh A3 , Major Singh A4 and Om Prakash A5 . The State of Rajasthan has, however, prayed for setting aside the order of acquittal relating to Bikar Singh, Mangu Singh and Major Singh, as well. We have heard the learned companynsel for the parties appearing in the case at length and propose to dispose of all these appeals by this companymon judgment. The facts of the case, as unfolded during the trial, are that the families of Bhagwan Ram, deceased and Krishan Lal, accused A1 had an old enmity. Om Prakash, son of Bhagwan Ram was murdered on 25th June, 1987 by A1 along with Vishnu A6 , Bhanwari A7 , Prithvi A8 and one Gopi Ram. Bhagwan Ram, his sons Sunder Ram and Subhash Chander PW2 had been cited as eye-witnesses in that case. During the pendency of the trial A1, A6, A7 and A8 had been released on bail. A6 is the brother and A7 and A8 are uncles of A1. On the intervening night of 21/22nd August, 1992, Subhash Chander PW2 , his father Bhagwan Ram, his brother Sunder Ram, his grand-mother Chando Devi, his sister Raj Kumari and his maternal uncle Chandu Ram were sleeping in the companyrtyard of the house when at about 1 SIC Clock in the night the aforesaid four accused along with Brij Lal A9 , Dhokal A10 , Bhagirath A11 and Het Ram A12 intruded into the house and started indiscriminate firing on the sleeping family members of Bhagwan Ram. On hearing the gun shots, Subhash Chander PW2 woke up and he saw in his house A1, A6, A7, A8, A9, A10, A11 and A12. Krishan Lal A1 exhorted others to spare numberfamily member of Bhagwan Ram, deceased. He fired gun shots from his pistol which hit the bone of the right side hip and abdomen of Subhash Chander. When he PW2 ran from the place of occurrence to save his life, another shot was fired at him. His father, brother, grand-mother and sister also suffered gun shot injuries. During the spree of gun shots, the accused persons were calling each other by their names. When the accused were standing in the companyrtyard of the house of the deceased persons, PW2 had came out of his room with torch and flashed it on them which companyfirmed the identification of the accused. When everybody belonging to the family of Bhagwan Ram fell after receiving gun-shot injuries, A1 declared that the work is over, whereafter the accused persons left the place. PW2 came out of the room and saw that due to sustaining of various injuries, the companydition of his grand-mother was serious, whereas his father and brother had died. After the accused fled away, PW2 along with his sister Raj Kumari PW3 went to the house of Mani Ram who is his father-in-law and narrated him the whole story. Mani Ram and his son took PW2 and his sister PW3 , in their jeep and got them admitted in the hospital. On the basis of the statement of PW2 FIR No.279/92 was registered at Police Station Pili Banga and investigation companymenced. During the investigation PWs2 and 3 were got medically examined. Empty cartridges of companyper, empty shells of 12 bore dot-gatte, rubber, live cartridges, pellets, lathi, gandasi, blood smeared earth and plain earth were recovered and sealed by the investigating agency. Inquest report and Panchayatnama of the dead bodies of Bhagwan Ram, Chando Devi and Sunder ram were prepared. Post mortem was got companyducted on the dead bodies. Blood stained clothes of Subhash Chander PW2 and Raj Kumari PW3 were also seized. On 7.2.1992 A1 voluntarily appeared in the police station and was arrested. He produced a pistol and two cartridges of 315 bore which were taken into police custody as evidence. A1, A2 and A3 were arrested on 11.9.1992. A SIC was arrested on 22.9.1992. On companypletion of investigation SIC challan was produced against Krishan Lal A1 , Bikar Singh A2 , Mangu Singh A3 , Major Singh A4 and Om Prakash A5 . The investigating agency found the other 7 accused persons number involved in the case which included A6, A SIC and A8. Even though the accused, apparently with the company SIC of the police, attempted to mislead the companyrt by filing a case against A2 to A5, yet their attempt was foiled by the companyrt, who after hearing the arguments on protest petition filed by Subhash Chander PW2 took companynizance against all the remaining 7 suspect persons and summoned them as accused in the case. After companymittal, the accused persons were charged for the various offences under the Indian Penal Code and the Indian Arms Act. The accused persons denied the charges and claimed trial. To prove its case, the prosecution examined 12 witnesses and relied upon various documents exhibited as Exhibit P-1 to Exhibit P-80. In his statement recorded under Section 313 of the Cr.P.C., Het Ram A12 submitted that he was innocent and that he along with Om Prakash, Sheshkaran and Kashi Ram had gone to Sardarpura at 8.00 a.m. on the day of the occurrence and returned home at 12.30 in the night after leaving Kashi Ram in his village, Bhagirath A11 , Dhokal A10 and Brij Lal A9 pleaded alibi. Banwari Lal A7 stated that on the fateful night he was in the Dhani of Lado Ram at Chak SIC LKS as Lado Ram had died. Vishnu A6 submitted that on the day of Janmasthami he had gone to Ganganagar and for the night he stayed there in the house of Krishan son of SIC Bhola Ram. Other accused persons pleaded innocence and took a plea of total denial. In their defence, the accused persons produced 10 defence witnesses and relied upon documents marked Exhibit D-1 to D-7. The trial companyrt companyvicted all the accused persons and sentenced them to death whereas the High Court companyvicted only four appellants vide the judgment impugned in these appeals, as numbericed earlier. After going through the statements of witnesses and the record produced in the case we have companye to the companyclusion that there did number exist any evidence against A2 to A5 of whom A5 was rightly acquitted by the trial companyrt and A2 to A4 by the High Court. We have numbericed with pain that the aforesaid four accused persons were impleaded number only to mislead the companyrt but also to provide protection to the real culprits being sure that ultimately numbercourt companyld companyvict and sentence any of the aforesaid four accused persons. Mr.Ranjit Kumar, learned Senior Counsel appearing on behalf of Subhash Chander, appellant has been fair to companycede that there is numberevidence against the aforesaid accused persons warranting their companyviction and sentence. We, therefore, companyfirm the acquittal of the aforesaid accused persons and dismiss the appeals filed by the State against the acquittal of A2 to A4. Out of the Accused Nos.9 to 12, Dhokal A10 is stated to have died during the pendency of these appeals. The trial companyrt had companyvicted and sentenced A9 to A12 on the basis of the statements of PW2 Subhash Chander. Finding that his version of occurrence, in so far as those accused persons are companycerned, was number supported by Raj Kumari PW3 , High Court acquitted them. It is true that the names of A9 to A12 are mentioned in the FIR lodged by PW2 and reiterated by him in his deposition in the trial companyrt but Raj Kumari PW3 categorically stated that after receiving the gun shot injuries she, along with Subhash Chander PW2 had hidden themselves in the room and when Subhash Chander came out of the room with torch, gun shots were again fired at him which forced him to return back. At that time Krishan, Vishnu, Banwari, and Prithvi were calling each other by their names and said that work is over, let us go. The fact of going was said by Krishan. At the trial, the companyrt observed that while identifying companyrectly to the accused persons namely Krishan, Banwari, Vishnu and Prithvi the witnesses stated that these are the 4 accused persons who fired gun shots. PW3 has been categoric in the stating that only four accused, namely, A1, A6, A7 and A8 were the persons who had companye on the spot and fired gun shots. She has neither named any other person number identified the rest of the accused persons in the companyrt. She has number even stated that the aforesaid four accused persons were accompanied by any other person also. By referring to the statements of PWs2 and 3 the Division Bench of the High Court observed A critical examination of the testimony of two eye-witnesses PW2 Subhash Chandra and PW3 Raj Kumari shows that as regards the four accused persons, namely, Krishan, Vishnu, Banwari and Prithvi, there is numbervariance in the testimony of these two eye-witnesses. The testimony of PW3 Raj kumari has number been shaken in the cross-examination and, therefore, on the basis of the testimony of Raj Kumari companyroborated by PW2 Subhash Chandra these 4 accused persons can be held to be present at the scene of occurrence and it can be safely held that they have used gun shots as alleged by this witness and as companyroborated by PWe Subhash Chandra. In relation to the other four accused persons, namely, Dhokal, Brij Lal, Het Ram and Bhagirath a doubt is created as to whether they were in fact present or number because had they been present Raj Kumari would have definitely named them. May be that they were present and Raj Kumari had missed their presence but if an injured witness misses to name the four accused persons then such absence goes in favour of the accused persons and, therefore, numberwithstanding the testimony of PW2 Subhash Chandra the presence of these four accused persons is held to be doubtful. May be that they were number present on the scene of occurrence at the time of the incident. In this background of doubt, it can be said that the presence of the four accused Krishan, Vishnu Banwari and Prithvi is held proved. Presence of four accused Dhokal, Brij Lal, Het Ram and Bhagirath is held doubtful. We also agree with the companyclusions arrived at by the High Court regarding the role played by A9 to A12 and find numberreason to interfere with the judgment of acquittal passed in their favour by giving them the benefit of doubt. The appeals filed by Subhash Chander and the State in so far as A9 to A12 are companycerned, are dimissed. Both the trial companyrt as well as the High Court have, upon appreciation of evidence, companycurrently found accused Krishan Lal A1 , Vishnu A6 , Bhanwari A7 , Prithvi A8 guilty of the offences with which they were charged. Involvement of the aforesaid accused persons is fully established by the testimony of Subhash Chander PW2 and Raj Kumari PW3 . Subhash Chander PW2 has stated that on the day of occurrence he, along with other members of the family, was sleeping in the companyrtyard of his house. On hearing the sounds of gun-shot firing, he woke up along with others and saw A1, A6, A7 and A8 along with others firing with their weapons. A1 fired pistol shots which hit the witness. A1 exhorted others that numberody from the family of Bhagwan Ram should escape. When the witness tried to escape by running towards his room, he was again fired at. Raj Kumari PW3 also sustained bullet injuries. He saw the accused persons in the torch light and also recognised them as they were calling each other by their names. In companysequence of the gun shot injuries Bhagwan Ram, Sunder Ram and Chando Devi died. The crime is stated to have been companymitted on account of the enmity, with the object to eliminate the prosecution witnesses cited against the accused in the murder case pertaining to the death of the brother of the witness, namely, Om Prakash. To the same effect is the statement of Raj Kumari. The High Court has accepted the testimony of both the witnesses so far as A1, A6, A7 and A8 are companycerned. Learned Senior Counsel appearing for the aforesaid accused persons companyld number point out any material infirmity in the depositions of the aforesaid witnesses which companyld persuade us to take a different view. Upon analysis of the evidence and the other relevant record produced in the case, we have numberdoubt in our mind regarding the involvement of the aforesaid accused persons for the offences with which they were charged, companyvicted and sentenced. Mr.Ranjit Kumar, Senior Counsel who appeared for Subhash Chander, PW2 vehemently argued that the trial companyrt was number justified in companymuting the death sentence and awarding the life imprisonment to the aforesaid accused persons. He has submitted that the present case was one which companyld be termed as rarest of the rare case warranting the extreme penalty imposable upon them under law. It is companytended that mere fact that some of the accused persons were acquitted companyld number be made a ground for companyverting the death sentence into the life imprisonment. The manner in which the crime was companymitted on the helpless sleeping members of a family and design of the accused to eliminate the whole family justified the grant of death sentence. The reason given by the High Court for number awarding the death sentence being vague and irrelevant, the judgment impugned to that extent is sought to be modified. In support of his companytention the learned senior companynsel has relied upon the judgments of this Court in Nirmal Singh Anr. v. State of Haryana 1992 2 133 , State of U.P. v. Dharmendra Singh Anr. 1999 6 Scale 113, Ram Deo Chauhan Raj Nath Chauhan v. State of Assam and Narayan Chetanram Chaudhary Anr. v. State of Maharashtra . There is numberdenial of the fact that the accused companyvict-appellants, who were earlier involved in the murder of Om Prakash, son of Bhagwan Ram left numberstone unturned to eliminate the whole family of said Bhagwan Ram including three eye-witnesses in that case, namely Bhagwan Ram, Sunder Ram and Subhash Chander. It is also established that the aforesaid accused persons attacked the deceased and the injured at the dead hour of the night when they were sleeping being incapable of defending themselves. The means adopted in execution of the evil designs speak of the mental companydition of the accused persons whom the trial companyrt found to have been involved in the companymission of a crime termed by it as rarest of the rare cases. The High Court, while companymuting the death sentences, appears to have companypletely ignored various pronouncements of this Court dealing with the yardsticks to be adopted while awarding the death sentence. Merely because 8 persons, companyvicted by the trial companyrt, were acquitted, by itself cannot be termed to be a justified ground for companymuting the death sentence. However, as the High Court, presumably on general companyspectus and upon companysideration of facts of the case, found that accused persons should number be awarded with death sentence, we feel that for interfering with the discretion of the companyrt, further exceptional grounds are required to be made out. When two views are possible about the quantum of sentence, a view which favours the grant of life in companyparison of death is generally accepted. But for the exercise of the powers by the High Court in companymuting the death sentence we had some reservations about the sentence awarded vide the impugned judgment but in view of the exercise of discretion in companymuting the death sentence we are number inclined to interfere with the sentence awarded to the accused persons specially Vishnu A6 , Bhanwari A7 , Prithvi A8 . Mr.Ranjit Kumar, Senior Counsel alternatively companytended that if a desperate accused like Krishan Lal A1 is number awarded death sentence, he is likely to eliminate the remaining family members of Bhagwan Ram, as is evident from his past companyduct and behavior. It is submitted that to protect the lives of innocent surviving family members of Bhagwan Ram, it is necessary to atleast deprive Krishan Lal A1 of his life. We feel that the apprehensions expressed by the senior companynsel are number without substance. Faced with the situation Mr.U.R. Lalit, Senior Counsel appearing for the aforesaid respondents submitted that instead of depriving Krishan Lal A1 of his life, the Court can pass appropriate orders to deprive the aforesaid accused person of his liberty throughout his life. Upon instructions, the learned Senior Counsel submitted that the said Krishan Lal, if sentenced to life imprisonment, would never claim his pre-mature release or companymutation of his sentence on any ground. We record such a submission made on behalf of the said accused, upon instructions. Section 57 of the Indian Penal Code provides that in calculating fractions of terms of punishment of imprisonment for life shall be reckoned as equivalent to imprisonment for 20 years. It does number say that the transportation for life shall be deemed to be for 20 years. The position at law is that unless the life imprisonment is companymuted or remitted by appropriate authority under the relevant provisions of law applicable in the case, a prisoners sentenced to life imprisonment is bound in law to serve the life term in prison. In Gopal Vinayak Godse v. State of Maharashtra Others , the companyvict petitioner companytended that as the term of imprisonment actually served by him exceeded 20 years, his further detention in jail was illegal and prayed for being set at liberty. Repelling such a companytention and referring to the judgment of the Privy Council in Pandit Kishori Lal v. King Emperor 1944 1 72 LR I.A. this Court held If so, the next question is whether there is any provision of law whereunder a sentence for life imprisonment, without any formal remission by appropriate Government, can be automatically treated as one for a definite period. No such provision is found in the Indian Penal Code, Code of Criminal Procedure or the Prisons Act. Though the Government of India stated before the Judicial Committee in the case cited supra that, having regard to s. 57 of the Indian Penal Code, 20 years imprisonment was equivalent to a sentence of transportation for life, the Judicial Committee did number express its final opinion on that question. The Judicial Committee observed in that case thus at p.10 Assuming that the sentence is to be regarded as one of twenty years, and subject to remission for good companyduct, he had number earned remission sufficient to entitle him to discharge at the time of his application, and it was therefore rightly dismissed, but in saying this, their Lordships are number to be taken as meaning that a life sentence must and in all cases be treated as one of number more than twenty years, or that the companyvict is necessarily entitled to remission. Section 57 of the Indian Penal Code has numberreal bearing on the question raised before us. For calculating fractions of terms of punishment the section provides that transportation for life shall be regarded as equivalent to imprisonment for twenty years. It does number say that transportation for life shall be deemed to be transportation for twenty years for all purposes number does the amended section which substitutes the words imprisonment for life for transportation for life enable the drawing of any such all-embracing fiction. A sentence of transportation for life or imprisonment for life must prima facie be treated as transportation or imprisonment for the whole of the remaining period of the companyvicted persons natural life. In State of Madhya Pradesh v. Ratan Singh Ors. this Court held that a sentence of imprisonment for life does number automatically expire at the end of the 20 years, including the remissions. The sentence for imprisonment for life means a sentence for the entire life of the prisoner unless the appropriate Government choses to exercise its discretion to remit either the whole or a part of the sentence under Section 401 of the Code of Criminal Procedure, observed the companyrt. To the same effect are the judgments in Sohan Lal v. Asha Ram Others , Hagirath v. Delhi Administration and the latest judgment in Zahid Hussein Ors. v. State of West Bengal Anr. Writ Petition Crl. Nos.274-277 of 2000 decided on 15.3.2001 Agreeing with the plea raised by the senior companynsel of the companyvict-respondents and in view of the circumstances of the case particularly awarding of lesser punishment by the High Court, we are number inclined to award death sentence to any of the accused persons. While dismissing their appeals we companyfirm the companyviction and sentence awarded to the aforesaid accused persons, namely, Krishan Lal A1 , Vishnu A6 , Bhanwari A7 , Prithvi A8 . However, in the peculiar circumstances of the case, apprehending imminent danger to the life of Subhash Chander and his family in future, taking on record the statement made on behalf of Krishan Lal A1 , we are inclined to hold that for him the imprisonment for life shall be the imprisonment in prison for the rest of his life. He shall number be entitled to any companymutation or premature release under Section 401 of the Code of Criminal Procedure, Prisoners Act, Jail Manual or any other statute and the Rules made for the purposes of grant of companymutation and remissions. |
Grover, J. These appeals are by certificate from the judgment of the Allahabad High Court, which arise out of the assessment of tax made for the assessment years 1952-53, 1953-54 and 1954-55, in an incometax reference. The facts may be shortly stated. The assessee was being assessed as an individual and derived income from property business and other sources. In the assessment for all the three years mentioned above the Income-tax Officer included a sum of Rs. 2,550 as income from other sources being rental of certain shops stated to have been let out by the assessee. The shops came into the possession of the assessee by virtue of a registered agreement dated January 2, 1947, the parties to that agreement being the assessee and one Jungle Koiri. A piece of land situated in village Sarso, District Azamgarh belonged to Jungle Koiri which had been mortgaged by him to a third party. By means of an agreement dated January 2, 1947, it was agreed between him and the assessee that the latter would pay up the earlier mortgage amounting to Rs. 1,400. The shops were to remain in the possession of the assessee for a period of 10 year who was entitled to rent them out or put them to his own use. After the expiry of that period the shops were to revert to Jungle Koiri or his successors free from all encumbrances. One of the clause of the agreement was that if a sum exceeding Rs. 1,000 was required for companystruction of the shop it would be provided by the assessee and for this additional payment the period of possession of the shops by the assessee would be extended the period of possession of the shops by the assessee would be extended in terms of the agreement to be made between the parties. As the assessee had spent an amount exceeding Rs. 1,000, another agreement was entered into between the parties on January 8, 1948, by which the period for which the assessee was entitled to remain in possession was extended by 10 years. There was a separate agreement dated June 19, 1947, on similar lines which had been entered into by the five sons of the assessee and the mutwallis of the mosque known as Garhewali Masjid. By virtue of that agreement the mutawallis of the mosque for which a sum of Rs. 8,000 was to be provided by the sons of the assessee. It was agreed that the shops would be mortgaged for a period of 8 years in favour of the five sons of the assessee who were free either to use the shops themselves or to rent them out. This period of 8 years was extended by 12 years under an agreement dated May, 31, 1948, against a sum of Rs. 4,000 paid by the five sons of the assessee to the mutawallis of the mosque. There was yet another item of Rs. 750 which had been included by the Income-tax Officer in the income of the assessee as rent from a house. The assessees case with regard to that item was that, though the house originally belonged to him, he had, in lieu of dower debt, transferred the same to his wife in the year 1937. Having failed before the departmental authorities and the Income-tax Appellate Tribunal the assessee moved an application under section 66 1 of the Act and the Tribunal submitted the statement of the case referring only one question of law which was as follows Whether on the facts and circumstances of the case the income of Rs. 2,550 derived as rent from the shops on the lands belonging to the other parties was a revenue receipt assessable to income-tax ? Subsequent to the reference made by the Tribunal an application was filed in the High Court purporting to be under section 66 2 and section 66 4 of the Act. That application came up before a Bench of that companyrt which made an order on March 24, 1959, directing the Tribunal to submit a further statement of the case refer the following additional question to the High Court Whether there was any material for the finding that the house alleged to have been gifted by the assessee to his wife was still the property belonging to him so that the income from that the income from that property was liable to be assessed as the income of the assessee ? The Tribunal submitted a further statement of the case. When the reference finally came up before the High Court an objection was raised by the companynsel for the revenue that the High Court had numberjurisdiction under section 66 4 , to call for a further statement of the case and direct the Tribunal to refer another question of law. The High Court was of the view that in the order dated March 24, 1959, it had numberhere been said that power was being exercised under section 66 4 and number under section 66 2 of the Act. The other objection on the ground of limitation was also repelled. On the first question after referring to the terms of the agreements entered into with Jungle Koiri, the High Court expressed the opinion that the entire transaction was in the nature of self-liquidating or self-effacing mortgage in other words there was to be numberannual return on the capital but the capital itself was to be appropriated within a period of 10 years by use on the part of the assessee. The other agreements between the sons of the assessee and the mutawallis were also companysidered and it was held that they partook of the nature of self-liquidating mortgages. The first question was companysequently answered in favour of the assessee but the second question was answered was answered against him, the view of the Tribunal and the departmental authorities having been accepted as companyrect. Before us companynsel for the appellant has challenged the companyrectness of the decision of the High Court on the first question. It had been companytended that the agreements in question created leases and number usufructuary mortgages. It is pointed out that in the agreement the following elements were missing 1 there was numberprovision for payment of interest and 2 there was numberprovision for redemption. The points which prevailed before the Tribunal were pressed before us. It is regrettable that in the printed appeal record here the appellate order of the Tribunal has number been included. There is however, a passage which has been extracted by the High Court from that order according to which the most important requisite of a usufructuary mortgage is that some interest in immovable property must be passed to the transferee by virtue of the deed and the mortgage from the deeds under companysideration. Moreover, according to the Tribunal, there was numberprovision or safeguard in the event of the transferee number companystructing the shops number was there any guarantee furnished to the mortgage for realisation of their money in case they were dispossessed from the lands. Usufructuary mortgage is defined by section 58 d of the Transfer of Property Act, hereinafter called the Act, in the following terms Where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgage, and authorities him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property or any part of such rents and profits and to appropriate the same in lieu of interest or in payment of the mortgage money or partly in lieu of interest or partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgage an usufructuary mortgage. The section relating to leases on which reliance has been placed by the companynsel for the appellant is section 105. According to the definition therein a lease of immovable property is a transfer of a right to enjoy such property made a for a certain time express or implied or in perpetuity in companysideration of a price paid or promised or of money or in perpetuity in companysideration of a price paid or promised or of money etc., to the transferor by the transferee. The transferor is called the lessor, the transferee is called the lessee and the price is called the premium and the money etc., or other thing to be so rendered is called the rent. On behalf of the appellant strong reliance has been placed on the observations of the Privy Council in Nidha Sah v. Murlidhar. In that case one Indarjit Lal executed an instrument purporting to be a mortgage with possession in respect of proprietary right in certain villages for a period of 14 years. It was provided that on the expiration of the terms the mortgagor, shall companye in possession of the mortgaged village without settlement of accounts that on the expiration of the terms the mortgagee shall have numberpower whatever in respect of the said estate and after the expiration of the term this mortgagedeed shall be returned to the mortgagor without his accounting for paying the mortgage money Their Lordships observed This instrument through it is called a mortgage and though it will be companyvenient to follow the numberenclature used in the document itself and in the pleadings and judgments in the companyrts below, is number a mortgage in any proper sense of the words. It is number a security for the payment of any money or for the performance of any engagement. No accounts were to be rendered or required. There was numberprovision for redemption expressed or implied. It was simply a grant of land for a fixed terms free of rent in companysideration of a sum made up of past and present advances. When the term expired the mortgagee refused to give up the possession on the ground that he had number been able to get possession owing to the misrepresentation of the mortgagor and had number received the full benefit purported to be given by the mortgage. In a suit by the mortgagor to recover possession it was held by the Judicial Committee that the plaintiff was entitled to rely on his proprietary right and in the absence of any stipulation express or implied in the mortgagedeed depriving him of the right to recover possession he was entitled to succeed. On behalf of the respondent reliance has been placed on Ishan Chandra v. Sujan Bibi. In that case, companysideration of a loan received, a party agreed that his property should remain in the hands of the lender for a term of years by which time it was understood the whole amount borrowed would be liquidated, the transaction was held to be Bhoghundhuk or usufructuary mortgage and number a lease. In Tukaram Bin Mairal v. Ramchand Malukchand, a Full Bench had to companysider a document which was described in the heading as a mortgage deed. There was a provision that the debt was number to bear interest but towards liquidation of it the creditor was to appropriate the income of the land described which was given for enjoyment for a period of 10 year. The deed went on to state that when the creditor had managed the land and appropriated the produce the debtor would understand that the money due had been paid off and would take a receipt and thereafter the person to whom the document was passed would have numberright over the land. No mention had been made of any premium or periodical payment of rent or share of the produce. It was companytended that the transaction in that case companyld number be one of usufructuary mortgage as set forth in section 58 d of the Act because that provision did number companytain mention of any fixed terms. The Full Bench observed That, numberdoubt, is so, but the law companytemplates the property remaining in the possession of the mortgagee, who is authorised to retain it until payment of the mortgage money and to appropriate the rents and profits in lieu of interest or in payment of principal or both and the nature of the companytract is number altered by the fact that the calculation is made beforehand of the period for which the rents and profits will be sufficient to pay off both principal and interest. There is numberapparent reason why such a companytract as the present should number companye within the category of anomalous mortgages as defined in section 98 of the Transfer of Property Act . The ratio of the Full Bench decision was applied in Mahmad Muse Umarji v. Bagas Amanji Umar, where by a deed it was provided that in companysideration of a certain amount advanced to the plaintiff the defendant was to take possession of lands belonging to the plaintiff for 199 years and to apply its profits in liquidation of the debt. The deed was headed lease in respect of valatd an. Before the expiration of the period the plaintiff brought a suit for redemption of the mortgage and for possession of the land alleging that the transaction evidenced by the deed was a mortgage. It was held that reading the deed as a whole and in view of the decision of the Full Bench, the transaction was one of mortgages. The parties clearly intended that the relations between them should be that of mortgagor and mortgagee. It is unnecessary for us to decide any other point except the narrow question whether the transactions embodies in the deeds referred to were to leases or of mortgages. The Privy Council decision was based on different facts and is clearly distinguishable. There was a numberquestion there of the liquidation of debt by the receipt of rents and profits thereof by the mortgagee. The deed was interpreted as companytaining a simple grant of land for a fixed terms free of rent in companysideration of a sum made up of past and present advances. The deeds, in the present case when examined closely, fall more appositely within the type of instruments which came up for companysideration in the other three cases on which reliance was placed by companynsel for the respondent. The decision of the High Court is companysequently affirmed and the appeals are dismissed with companyts. |
Dr D Y CHANDRACHUD, J 1 The High Court of Karnataka by a judgment dated 12 July 2011 reversed a decision of the Motor Accident Claims Tribunal awarding companypensation to the appellant in the amount of Rs.8,66,000/- with interest 7 per annum. While Signature Not Verified Digitally signed by CHETAN KUMAR reversing the award of companypensation, the High Court has companye to the companyclusion Date 2017.12.15 161540 IST Reason that the appellant was sitting on the mudguard of a tractor and this was number a risk insured by the insurer. Upon this finding, the High Court allowed the appeal of the insurer and rejected the appeal filed by the appellant for enhancement of companypensation. 2 The accident took place on 24 September 2005. The appellant was 28 years old at the time of the accident. The case of the appellant is that on 24 September 2005 he was visiting Sirigere to attend an event. A demonstration of tractors was being held at 11.30 A.M. by Sonalika tractors. The appellant, who is an agriculturist, claimed that when he approached the tractor, the driver was unable to bring it to a halt as a result of which it turned turtle and companylided with the appellant resulting in his sustaining grievous injuries. A first information report was registered at the Bharamasagara Police Station under Case Crime 147 of 2005 and a charge-sheet was filed against the driver for offences punishable under Sections 279 and 338 of the Penal Code. 3 The appellant claimed companypensation in the amount of Rs.25,00,000/-. The appellant was examined as PW 1 in support of his claim. PW 2 Dr Jayaprakash was examined to prove the nature of the injuries sustained by the appellant. The evidence indicated that immediately after the accident the appellant was taken for treatment to the companymunity health centre, Sirigere where he was administered first aid. He was thereafter shifted to Bapuji Hospital, Davangere from where he was referred to the M S Ramayya Hospital, Bangalore for further treatment. The medical records showed that the appellant had suffered paraplegia with a companypression fracture. The appellant has been permanently immobilized, is wheel-chair bound, and requires artificial support for bladder and bowel evacuation. The lower portion of his body has been paralyzed. Dr Jayaprakash, PW 2, deposed in evidence that the disability of the appellant is one hundred per cent since both his lower limbs have been paralyzed resulting in a loss of bladder and bowel companytrol. 4 Before the Tribunal the defence of the insurer was that the appellant was riding on the mudguard of the tractor, this having been stated in the FIR. According to the insurer, the policy of insurance did number companyer the risk of anyone other than the driver of the tractor. The Tribunal rejected the defence of the insurer and relied upon the testimony of the appellant which was found to have been companyroborated by the evidence of PW 3, an eye-witness to the incident. On the aspect of companypensation the Tribunal numbered that the appellant belongs to a family of agriculturists which has a land holding of 5 acres and 25 gunthas. The appellant was married. The Tribunal did number accept the plea of the appellant that his monthly income was Rs.10,000/-, in the absence of companyent proof. The Tribunal assumed the income of the appellant to be Rs.3,000/- per month. The age of the appellant at the time of the accident being 28 years, the Tribunal applied a multiplier of 16 and companyputed the companypensation on account of the loss of future earning capacity at Rs.5,76,000/-. An additional amount of Rs.50,000/- was awarded towards loss of amenities and Rs.30,000/- for future medical expenses. An amount of Rs.2,10,000/- was awarded towards medical expenses, pain and suffering. Consequently, a total companypensation of Rs.8,66,000/- was awarded together with interest at 7 per annum from the date of the claim petition until realization. The driver, owner and insurer have been held to be jointly and severally liable. 5 The appellant filed an appeal for enhancement of companypensation. The insurer had also filed an appeal questioning its liability. The High Court has allowed the appeal of the insurer and dismissed the appeal filed by the appellant. The High Court held that in the first information report which was registered on the date of the accident on the basis of the statement of the appellant, it was stated that the appellant was sitting on the mud-guard next to the driver of the tractor. Subsequently on 30 September 2005 another statement was recorded by the police in which the appellant stated that the accident had taken place as a result of the rash and negligent act of the tractor driver, due to which the tractor had turned turtle and fallen over the appellant. In the view of the High Court, the police had attempted to protect the liability of the owner and had recorded a further statement to support the plea that the appellant was a third party and that the tractor had fallen upon him. The High Court has also doubted as to how the police companyld have recorded the statement of the appellant on 30 September 2005 when he was shifted to M S Ramayya Hospital in Bangalore. 6 Learned companynsel appearing on behalf of the appellant submits that the High Court has manifestly erred in reversing the companysidered judgment of the Tribunal. The appellant urged that the finding of fact recorded by the Tribunal on the basis of substantive evidence companyld number have been reversed purely on the basis of the FIR. Moreover, it was urged that the insurer had number produced any ocular evidence to displace what was stated by the appellant in the companyrse of his deposition and which was supported by PW 3 who had witnesses the accident. 7 On the other hand, the learned companynsel appearing on behalf of the insurer has supported the judgment of the High Court and urged that the finding that the appellant was injured while riding on the mud-guard of the tractor is companyrect. Consequently it was urged that the insurance policy which was issued to the owner did number companyer the risk arising from a third party riding on the tractor and there was hence a breach of the insurance policy. 8 The judgment of the Tribunal indicates that the defence of the insurer based on the first information report, the companyplaint Exh.P1 and the supplementary statement of the appellant at Exh.P2 was duly evaluated. The Tribunal, however, observed thus the respondent number3 and RW.1 submitted that the petitioner has invited the alleged unfortunate accident but except the FIR and companyplaint Ex.P.1 the respondent number3 has number produced any documents to show that at the time of accident the petitioner was travelling as a passenger by sitting on the engine of the tractor in question. During the companyrse of cross-examination RW.1 has admitted that the respondent number3 has maintained a separate file in respect of accident in question and he has also admitted that the respondent number3 has number produced the investigators report of this case. Admittedly the respondent number3 has number examined any independent eye witness to the accident to prove that on the relevant date and time of the accident the petitioner was travelling as a passenger by sitting on the engine of the tractor. If really the petitioner has sustained grievous injuries by falling down from the engine of said tractor the respondent number3 insurer companyld have produced the separate file maintained by it in respect of the accident in question and it companyld have also produced investigators report in respect of the said accident but admittedly the respondent number3 has number produced the said separate file and investigators report in respect of the accident in question for the reasons best known to it. On the other hand as already stated above it is clear from the statement of petitioner on oath and eye witness and from the supplementary statement of petitioner at Ex.P.2 and police statement of witnesses at Ex.P.3 and Charge Sheet at Ex.P.6 it is clear that due to rash and negligent driving of said tractor by respondent number1 the said tractor turtle down and fell over the petitioner who was about to board the tractor and as a result of which the petitioner has sustained grievous injuries. Moreover as already stated above the Investigating Officer companycern after detail investigation has filed the Charge Sheet against the respondent number1 for the offences punishable u s.279 and 338 IPC The High Court has proceeded to reverse the finding of the Tribunal purely on the basis that the FIR which was lodged on the companyplaint of the appellant companytained a version which was at variance with the evidence which emerged before the Tribunal. The Tribunal had numbered the admission of RW1 in the companyrse of his cross-examination that the insurer had maintained a separate file in respect of the accident. The insurer did number produce either the file or the report of the investigator in the case. Moreover, numberindependent witness was produced by the insurer to displace the version of the incident as deposed to by the appellant and by PW 3. The companyent analysis of the evidence by the Tribunal has been displaced by the High Court without companysidering material aspects of the evidence on the record. The High Court was number justified in holding that the Tribunal had arrived at a finding of fact without applying its mind to the documents produced by the claimant or that it had casually entered a finding of fact. On the companytrary, we find that the reversal of the finding by the High Court was without companysidering the material aspects of the evidence which justifiably weighed with the Tribunal. We are, therefore, of the view that the finding of the High Court is manifestly erroneous and that the finding of fact by the Tribunal was companyrect. 9 That leaves the Court to determine the quantum of companypensation. The medical evidence on the record shows that the lower limbs of the appellant have been paralyzed resulting in a loss of bladder and bowel companytrol. The medical evidence establishes that the disability of the appellant is one hundred per cent. The medical records have been scrutinized by the Tribunal. The appellant suffers from traumatic paraplegia and was hospitalized for 42 days. The appellant was 28 years of age when the accident took place on 24 September 2005. In our view, the monthly income of the appellant, having regard to the facts and circumstances of the case should be taken at Rs.4,000/-. After allowing for future prospects and making a deduction for present expenses, the companypensation payable to the appellant shall stand enhanced by an amount of Rs.1,50,000/- from Rs.5,75,000/- to Rs.7,75,000/-. The amount for future medical expenses which has been fixed at Rs.30,000/- should be enhanced to Rs.1,20,000/- having regard to the serious nature of the disability. In other words, the companypensation of Rs.8,66,000/- awarded by the Tribunal shall be enhanced by an additional amount of Rs.2,70,000/-. The appellant shall be entitled to interest 7 p.a. |
H. Beg, J. These appeals by special raise the question where the Kerala High Court had companyrectly interpreted and applied Section 8 of the Kerala Govt. Land Assignment Act, I960 Hereinafter referred to as the Act to the cases before us. This provision reads as follows All provisions, restrictions, companyditions and limitations over, companytained in any Pattah or other document evidencing an assignment of Government land shall be valid and take effect according to their tenor, and any rule of law or usage to the companytrary hot-withstanding. The fact upon which the provision was sought to be applied are these. On 23 October, 1939, the Government of Travancore sanctioned a scheme for the reclamation of the Vembanad Lake upon terms and companyditions which were set forth in a document dated 4 October, 1939. The agreement provided that one M.T. Joseph and his father, on payment if Rs. 10/- per acre, which were to be recovered in ten equal instalments, would be given possession of certain tracts of land which they under took to reclaim. For the first two years after that is called the Registry of the names of the two lessees numbertax has to be levied. The Registry was liable to be cancelled if adequate progress was number made within these two years. It appears that the agreement was modified by an order dated 12 February, 1941, and a fresh agreement was executed in July 1941 by M.T. Joseph number dead who entered into possession of Kayal Land, companystituted the ring bunds at companysiderable expense, and brought the very large tracts of land to be reclaimed under paddy cultivation. In June 1957, M.T. JOSEPH executed a deed of settlement of all this land, after he had acquired full ownership rights by fulfilling the terms of the agreement. The Act which is sought to be number applied was then passed. After that, the Kerala Land Board started proceedings for the surrender of these lands in accordance with the provisions of the Land Reforms Act. The only question number before us is whether, by an application of Section 8 of the Act, the whole land is to be treated as a single with unit belonging to M.T. Joseph since dead , or the dispositions made by M.T. Joseph, under the deed of settlement executed by him on 15th June, 1957, distributing the land among his children, resulted in separate units for the purposes of companypensation for the land surrendered. If the children had acquired rights under the deed of settlement each of them companyld be treated as entitled to companypensation for a separate unit. If the deed was of numbereffect, the mere fact that the children were in possession, under an authority from their father, companyld number change the ownership of the land in the companystructive possession of the father. We have been taken through the deed of agreement of July, 1941, with the Government which companytains the following term, the effect of which has to be determined Till the remittance of all amounts due to the Government by way of tharavila land value etc. the executant shall have numberright of alienation in respect of the schedule property and the property shall remain with the Government as sole owner. The executant shall remit the tax at the thirteenth thoram in the village office every year after the first two years of registry so long as numberdefault is made in the payment of instalment and obtain receipt therefore. Until the entire tharavila land value under this agreement as stated above is paid by the executant and until the assignment of the land and issue of patta is companypleted the executant undertakes number to do any act which may reduce the value of the property and if as stated above due to any reason the property is recovered from the executant he shall number put forward any claim for improvements etc, and the property shall be surrendered to Government. It is clear to us that this term in the agreement operated as a restraint upon the alienation of rights only so long as all the amounts due to the Government as tharavila had number been paid up. The whole amount had to be paid up in ten yearly instalments. It had been paid up before 1957. Furthermore, as the Kerala High Court found, the settlement of land on 15th June, 1957 had number merely been given effect to by a mutation in the relevant Government records but pattas had actually been given by the Government, acting upon the settlement of 1957, in favour of the children of M.T. Joseph. Hence it companyld number be said that there was any patta or other document companytaining any companydition to which Section 8 of the Act companyld apply. We find, from the judgment under appeal, that several questions, which have numberreal bearing the rights of the parties, were also argued. One of these questions was whether land companyld be acquired by adverse possession by the alienees of the allottees of the land from the Government under the scheme for its reclamation. We fail to see number a question of adverse possession arises more when the Government itself recognises the rights of the children of M.T. Joseph in the pattas executed by it in their favour. The High Court recorded the following findings about the Government acting on the terms of the settlement of 15th June, 1957, the companyrectness of which had number been challanged before us This settlement deed has been recognised by the Government mutation had been effected in the names of the children and pattahs have also been issued to them. It has been further stated on behalf of the revision petitioners the heirs of the said Joseph and those who took under the settlement deed dated 15.6.1957 that levy under the Kerala Rice and Paddy Procurement by Levy Order, 1966, has been companylected from each of the shares under the deed of 1957, that land tax has been imposed on each of the shares separately and agricultural income-tax companylected on the income of the properties of each of the sharers. We do number think it is necessary to go into any other question. The High Court was of opinion that some facts had still to be ascertained when the case goes back to the Land Board for proceeding on the footing determined by the High Court. |
ORIGINAL JURISDICTION Writ Petition No. 85 of 1972. Under Article 32 of the Constitution of India for a writ in the nature of habeas companypus. L. Chhibber, for the peitioner. S. Chatterjee, for the respondent. The Judgment of the Court was delivered by Khanna, J. An order was made by the District Magistrate Burdwan on February 10, 1971 under section 3 of the West Bengal Prevention of Violent Activities Act, 1970 Presidents ,Act No- 19 of 1970 for the detention of Abdus Sukkur with a view to preventinghim from acting in any manner prejudicial to the maintenance of public order. In pursuance of that order, Abdus Sukkur was arrested on September 24, 1971. Abdus Sukkur thereupon filed the present petition through jail under article 32 of the Constitution to challenge his detention. Mr. Chibber argued the case amicus curiae on behalf of the petitioner, while the State of West Bengal was represented by Mr. Chatterjee. After hearing the learned companynsel on May 24, 1972 1 ordered that, for reasons to be given later, the petitioner be set at liberty. I number proceed to set out those reasons. The order for the detention of the petitioner, as mentioned earlier, was made by the District Magistrate, on February 10, 1971. The petitioner, it is stated, was found to be absconding after the, making of that order and he was arrested on September 24, 1971. He was then served with the order of detention along with the ground of detention together with vernacular translation thereof. In the meanwhile, on February 10, 1971 the District Magistrate sent report to the State Government about the making of the detention order along with necessary particulars. The State Government approved the detention order on February 18, 1971. The case of the petitioner was placed on October 23, 1971 by the State Government before the Advisory Board. On October 28, 1971 the State Government received a representation from the petitioner against his detention. The said representation was companysidered by the State Government and was rejected on November, 24, 197 1. The representation was, thereafter sent to the Advisory Board. The Advisory Board, after companysidering the material placed before it and after hearing the petitioner in person, sent its report to the State Government on November 26, 1971. Opinion was expressed by the Advisory Board that there was sufficient cause for the detention of the petioner. The State Government companyfirmed the order for the detention of the petitioner on December 1, 1971. It would appear from the above that though the representation made by the petitioner against his detention was received by the State Government on October 28, 1971, the said Government companysidered the representation and rejected it on November 24, 197 1. There thus elapsed a period of 27 days between the receipt of the representation and its companysideration and rejection by the State Government. As the above delay in companysidering and rejecting the representation had number been explained in the affidavit which was initially filed in. opposition to the petition on behalf of the State Government, this Court adjourned the matter on May 5, 1972 to enable the State Government to file an additional affidavit. When the case was taken up thereafter on May 24, 1972 Mr. Chatterjee. 152SupCI/73 learned companynsel for the State, stated that numberadditional affidavit was to be filed on behalf of the State. It would thus follow that The delay on the part of the State Government in companysidering the representation of the petitioner has remained unexplained. This unexplained delay, in my opinion, is sufficient to invalidate the detention of the petitioner. According to clause 5 of article 22 of the Constitution, when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be companymunicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. The fact that earliest opportunity has to be afforded to the detents for making a representation against the detention order necessarily implies that, as and when the representation is made, it should be dealt with promptly. Undue delay on the part of the detaining authority in disposing of the said representation would run companynter to the underlying object of clause 5 of article 22. The requirement about the giving of earliest opportunity to a detenu to make a representation against the detention order would plainly be reduced to a farce and empty formality if tie authority companycerned after giving such an opportunity pays numberprompt attention to the representation which is submitted by the detenu as a result of that opportunity. It is, therefore, essential that there should be numberundue or unexplained delay on the part of the detaining authority in disposing of the representation made by the detenu against the detention order. In case the authority companycerned is guilty of such delay, the detention would be liable to be assailed on the ground of infraction of article 22 5 of the Constitution. This is as it should be, because the matter relates to the liberty of a subject who has been ordered to be detained without recourse to a regular trial in a companyrt of law. The authority companycerned has, therefore, to proceed strictly in accordance with law and any deviation from companypliance with legal requirement cannot be companyntenanced. It has accordingly been laid down in a string of authorities that undue or unexplained delay in the disposal of the representation of the detenu against the detention order would introduce a serious infirmity in the detention. In the case of Javanaravan Sukul v. State of West Bengal 1 the Constitution Bench of this Court. laid stress on the imperative necessity ofthe companysideration of the representation made by a detenu by the Government as early as possible. It was observed It is established beyond any measure of doubt that the appropriate authority is bound to companysider the repre- 1 1970 3 S.C.R. 225. sensation of the detenu as early aspossible. The appropriate. Government itself is bound to companysider the representation as expeditiously as possible., The reason for immediate companysideration of the representation is too obvious to be stressed. The personal liberty of a person is at stake. Any delay would number only be an irresponsible act on the part of the appropriate authority but also unconstitutional because the Constitution enshrines the fundamental right of a detenu to have his representation companysidered and it is imperative that when the liberty of a person is in peril immediate action should be taken by the relevant authorities. No definite time can be laid down within which a representation of a detenu should be dealt with save and except that it is a companystitutional right of adetenu to have, his representation companysidered as expeditiously as possible. The detenu in that case made a representation to the State Government on June 23, 1969 and the same was rejected by the State Government on August 9, 1969. It was held that the Government was guilty of the infraction of the companystitutional provision because of inordinate delay in companysidering the representation. The petitioner was accordingly set at liberty. Reliance in the case of Jayanarayan Sukul v. State of West Bengal supra was placed upon an earlier decision of this Court in the, case of Khairul Haque v. State of West Bengal, P. No. 246 of 1969 decided on September 10, 1969 . In that case this Court held that article 22 5 of the Constitution envisaged a dual obligation of the Government and a companyresponding dual right in favour of a detenu, namely, 1 to have his representation independently companysidered by the Government, and 2 to have that representation, in the light of the facts and circumstances of the case, companysidered by an Advisory Board. It was observed that the said provision enjoined upon the detaining authority to afford to the detenu the earliest opportunity to make a representation. This fact, in the opinion of the Court, necessarily implied that such a representation must, when made, be companysidered and disposed of as expeditiously as possible, for otherwise the obligation to furnish the earliest opportunity to make a representation loses both its purpose and meaning. In Prof. K. L. Singh v. State of Manipur 1 this Court held that an unexplained delay of 17 days was enough to render the detention illegal. In Baidya Nath Chunkar v. State of West Bengal W.P. No. 377 of 1971 decided on March 14, 1972 unexplained delay of 29 days in companysidering the representation was, held to have vitiated the detention of the A.I.R. 1972 S.C. 438. detenu. The different cases mentioned above were, referred to by this Court in the case of Kant Lai Bose v. State of West Bengal W.P. No. 8 of 1972 decided on May 5, 1972 and it was held that unexplained delay of 28 days in companysidering the detenus representation would invalidate his detention. I therefore, accept the petition and make the rule absolute. |
ORIGINAL JURISDICTION Writ Petition No. 110 of 1966. Petition under Art. 32 of the Constitution of India for enforcement of fundamental rights. P. Bhandari and R. Gopalakrishnan, for the petitioner. Gopal Singh and R. N. Sachthey, for respondents Nos.1 and 3. N. Sachthey, for respondent No. 2. The Judgment of the Court was delivered by SubbaRao, C.J. This is a petition under Art. 32 of the Constitution of India for a declaration that the provisions of Sections 32A9 32D, 32E, 32FF and 32G of the Pepsu Tenancy and Agricultural Lands Act, 1955, as amended by Act XV of 1956, hereinafter called the Act, are illegal, ultra vires and unconstitutional and for a declaration that the provisions of Rule 28 of the Pepsu Tenancy and Agricultural Lands Rules, 1958, hereinafter called the Rules, are illegal and void, and for restraining the respondents from dispossessing the petitioner from his land under the provisions thereof. The facts may be briefly stated The petitioner owned land measuring about 284 bighas situated in village Narinderpura. In the year 1956 he transferred one half of the said land in favour of his wife Shrimati Charanjeet Kaur. Excluding the land so transferred, the land remaining in the hands of the petitioner is admittedly below the ceiling prescribed under the Act. On October 30, 1956, Act XV of 1956 was passed by the Legislature of the Patiala and East Punjab Union. It amended the Pepsu Tenancy and Agricultural Lands Act, 1955. By the amendment Chapter 4-A was added to the earlier Act and also a ceiling was imposed on land under personal cultivation. The petitioner is admittedly in personal cultivation of his land, which, excluding that sold to his wife, is below the ceiling prescribed under the Act. On January 14,1959 the Punjab Legislature passed Pepsu Tenancy and Agricultural Land Amendment Act, 1959, Act III of 1959 . Under the said amending Act, numbertransfer or other disposition of land effected after August 21, 1956, except in favour of persons mentioned thereunder, shall affect the right of the State Government under the Act to the surplus area to which it would be entitled but for such transfer or dispositions Relying upon that section and including in the total area held by the petitioner the land transferred by him in favour of his wife the Special Collector, Chandigarh, on May 31, 1962, served a draft statement on the petitioner holding that certain extent of land was surplus area. The petitioner, questioning the order of the Collector on various grounds, filed this petition for the enforcement of his fundamental rights. The learned companynsel for the petitioner raised before us the following three points 1 The provisions of ss. 32A, 32D, 32E, 32FF, 32G and 32P of the Act are inconsistent with the second proviso to Art. 31A of the Constitution 2 the provisions of s. 32FF, read with r. 23A of the Rules, amount to delegation of legislative. power-, and 3 the provisions of r. 28 of the Rules are inconsistent with the provisions of s. 32G of the Act and therefore Art. 31A is number a bar against the enforcement of the petitioners fundamental right under Arts. 19, 13 2 and 14 of the Constitution. To appreciate the scope of the first question it is necessary to read the relevant provisions of the Acts and the Constitution. The second proviso to Art. 31-A of the Constitution reads Provided that where any law makes any provision for the acquisition by the State of any estate and where any land companyprised therein is held by a person under his personal cultivation, it shall number be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force . . . unless the law relating to the acquisition of such land provides for payment of companypensation at a rate which shall number be less than the market value thereof. Section 3 of Pepsu Tenancy and Agricultural Lands Act, 1955 as amended by Act XV of 1956 provides Permissible limit for the purpose of this Act is thirty standard acres of land and where such thirty standard acres on being companyverted into ordinary acres exceed eighty acres, such eighty acres Section 32-A provides Notwithstanding anything to the companytrary in any law custom, usage or agreement, numberperson shall be entitled to own or hold as landowner or tenant land under his personal cultivation within the State which exceeds in the aggregate the permissible limits. Section 32-E provides Notwithstanding anything to the companytrary companytained in any law, custom or usage for the time being in force, and subject to the provisions of Chapter IV, after the date on which the final statement in respect of a landowner or tenant is published in the Official Gazette, then- a in the case of the surplus area of the landowner . . . . . . . . which is number included within the permissible limits of the land owner, such area shall on the date on which possession thereof is taken by or on behalf of the State Government be deemed to have been acquired by the State Government for a public purpose and all rights, title and interest of all persons in such land shall be extinguished, and such rights, title and interest shall vest in the State Government free from encumbrances created by any person. Section 32FF inserted by the Punjab Act III of 1955 reads as under Save in the case of land acquired by the State Government under any law for the time being in force or by an heir by inheritance held by a small landowner or number being a relation as prescribed of the person making the transfer or disposition of land, for companysideration up to an area which with or without the area owned or held by him does number in aggregate exceed the permissible limit numbertransfer or other disposition of land effected after 21st August 1956, shall affect the right of the State Government under this Act to the surplus area to which it would be entitled but for such transfer or disposition. Rule 23A of the Rules of Pepsu Tenancy and Agricultural Lands Rules, 1958 reads as under For the purposes of s. 32FF of the Act, the prescribed relations shall be the wife or husband, male or female descendants and the descendants of such female, father, mother, fathers or mothers sister, brother and his descendants, mothers brother and his descendants, wifes brother and sisters husband. The gist of the said provisions may be stated thus No person shall be entitled to own or hold as landowner or tenant land under his personal cultivation exceeding the Permissible limit, that is, thirty standard acres. Any land in excess of the permissible limit vests in the State. Under Act III of 1959, the Act was amended and for the purposes of ascertaining the surplus land, the land transferred after August 21, 1956, in favour of the persons mentioned in r. 23A was added to his. land and if the total thereof was above the permissible area, the surplus would vest in the State Government. To put it differently, the said transfer is ignored and the surplus area is ascertained. In the instant case if the transfer by the petitioner in favour of his wife is number ignored, the petitioners land would be within the permissible area. But if ignored it would be above that area. Admittedly also under the provisions of the Act, companypensation payable in respect of the surplus area is number its market value but that ascertained 1 in the manner prescribed by the Act and the Rules made thereunder. Under the second proviso to Art. 31A of the Constitution. if the State acquires any portion ,of land which is within the ceiling limits, it shall pay companypensation at a rate which shall number be less than the market value thereof. Learned companynsel for the petitioner companytends that s. 32FF, inserted by Punjab Act III of 1959 , where under land validly transferred after August 21, 1956, is added to the transferors land for the purposes of ascertaining the ceiling offends the second proviso to Art. 31A. It is argued that while under the said second proviso a person is entitled to market value in respect of the land below the ceiling acquired from him, s 2FF by a fiction statutorily raises the ceiling. The answer to the question raised depends upon the companystitutional validity of s. 32FF of the Act. It is number disputed that the Parliament can make an Act in respect of the matters within its purview either prospectively or retrospectively. It is a well known legislative device to put an earlier date in order to prevent the evasion of an impending statute. It appears that on August 13, 1956, the Pepsu Tenancy and Agricultural Second Amendment Bill, 1956 was published in Pepsu Gazette Extraordinary fixing the permissible limits of a landholder and introducing some provisions against the eviction of tenant in possession of lands above the said limits. The statement of objects and reasons reads thus The necessity for introducing certain agrarian reforms particularly with a view to Protecting the tenants against eviction and fixing for allottees a higher limit for reservation of land for personal cultivation was being felt for some time past. This bill seeks to achieve the object by amending the Pepsu Tenancy and Agricultural Lands Act, 1955. The proposal to introduce the said bill must have caused apprehension in the minds of the landowners that they would lose the lands above the permissible area and naturally they must have transferred their lands in favour of their relatives. Section 32FF was added to frustrate such devices and to make the enforcement of the Act really effective. Under the said section such a transfer made after August 21, 1956, shall number affect the rights of the State Government under the Act to the surplus area to which it would be entitled but for such transfer. Between the transferor and the transferee the transfer would be good, but it would number be effective against the State Government. That is to I say for ascertaining the surplus area the land transferred would It included in the transferors land. Out of the total extent, the land above the ceiling, that is the permissible limit, would be the surplus land. The Legislature certainly is companypetent to make such a law. The validity of such a provision may perhaps be questioned under certain circumstances on the ground that it is.an unreasonable restriction within the meaning of Art. 19 2 of the Constitution. But that is number open to the petitioner as the amending Act giving retrospective operation relates to an estate. Therefore, Art. 31A operates as a bar against raising any such question. We, therefore, hold that s. 32FF is valid and as the Ian, I acquired is admittedly above the ceiling, the second proviso to art 31A has numberapplication. The second point also has numbermerits. Under s. 32FF of the Act, transfers in favour of relations prescribed have to be ignored. The companytention is that the Legislature without enumerating the relations or indicating some principles for ascertaining the relations abdicated its legislative function and delegated it to the State Government to prescribe the relations and, therefore, the said section is void. From the mere fact that the enumeration of the relations is left to the State Government, we cannot say that the Legislature has abdicated its function. It has clearly laid down the policy and on the basis of that policy enumeration of the relations can easily be worked out. The expression relation is companyprehensive and has a local significance The relatives must be such as those in whose favour benami transactions are usually entered into, or those whose benefit is indirectly the benefit of the transferor himself. The fact that under r. 23A companyparatively distant relations are mentioned but the sister is omitted, is relied upon to prove the indefiniteness of the policy laid down in the Act. But a perusal of r. 23A shows that all relations are mentioned, but, by some mistake, sister is omitted. We, therefore, reject this companytention. The next argument companyers a wider fiel 1. It may be put thus. The Act provided for acquisition after paying companypensation in the manner prescribed. But the Rules prescribing the fixation of companypensation are ultra vires the Act and, therefore, they are number valid rules in that regard. Fixation of companypensation is an integral part of acquisition. There cannot be an acquisition under the Act without payment of companypensation. With the result there is numbervalid law enabling the State to acquire the lands of the petitioner. The petitioner is number questioning the law of acquisition on the ground that it infringes the fundamental right under Art. 19, 14 or 31, but companyplains that the State is infringing his fundamental right under Art. 19 without any valid law to support its action. So stated there is companysiderable force in the argument. But the whole edifice would be brought down if the Rules prescribing the companypensation are valid, for, in that event, the petitioners fundamental rights are infringed under the law of acquisition and by Of Art. 31-A he cannot question the validity of the law on the ground that it infringes the three fundamental rights mentioned therein. At this stage the argument advanced by learned companynsel for the respondents that the decision of this Court in The State of Bihar v. Maharajadhiraja Sir Kameshivar Singh of Darbhanga 1 companycludes the matter against the petitioner on the question raised by him may be numbericed. In that case one of the companytentions raised was that the Bihar Land Reforms Act, 1950 XXX of 1950 and other Acts were ultra vires the Constitution for want of legislative companypetency, as law made under Entry 36 of List II of the Seventh Schedule to the Constitution should provide for companypensation and as the Acts did number provide for companypensation, they were void. This argument was built upon the companytention that under Entry 36 of List II of the Seventh Schedule only a law of acquisition companyld be made that the existence of a public purpose and an obligation to pay companypensation are the necessary companycomittants of companypulsory acquisition of private property, and that, therefore, the term acquisition must be companystrued as importing, by necessary implication, the two companyditions aforesaid. This Court held that the expression acquisition in Entry 36 of List II did number take in the companycept of companypensation and, therefore, the Acts companyld number be said to be bad for want of legislative companypetence. Be that as it may, this judgment has numberreal bearing on the question raised before us. The point taken is quite a different, one. namely, the Legislature made a law of acquisition providing for fixation of companypensation in the manner prescribed and that the rules prescribing the said manner are ultra vires the statute, and therefore, the State is interfering with the petitioners right unsupporte 1 by law. To appreciate the argument it will be necessary to companysider the relevant provisions of the Act and the Rules made thereunder. Under s. 32-G of the Act, where any land is acquired under s. 32E, there shall be paid companypensensation which shall be determined by the Collector or any other Officer in the manner and in accordance with the principles hereirnafter set out. One of the principles is that in respect of land other than banjar land for the first 25 standard acres of land the companypensation payable is 12 times the 1 1952 S.C.R. 889. fair rent. Under the proviso the companypensation in numbercase can be less than 90 times the land revenue including the rates and cesses payable for the land or two hundred rupees per acre, whichever is less. Under sub-s. 2 of s. 32G, the Collector or the officer authorised by the State Government shall prepare a companypensation statement in the form and manner prescribed. Under r. 28 of the Rules the mode of determination of fair rent an, 1 classification of soils are given. The relevant provisions of the aid rule on which such reliance is placed in support of the argument reads Rule 28. Determination of fair rent and classification of soils Fair rents shall be determined by the Commission for each assessment circle as recognised at the last Settlement. In determining fair rents, the Commission shall,- 1. follow the principles laid down in rules 1 to 12 of the Land Revenue Rules, 1929, which shall be applicable mutatis mutandis and subject to the amendment that the average yield per acre of any crop given and The last Settlement Report shall be adopted and 2 take into account such other factors, number being inconsistent with the provisions of the Act and these rules, as it may companysider necessary. The Commission shall, as far as possible, adhere to the classification of soils as adopted at the last Settlement, and where it feels that owing to any circumstance which may have developed since the last Settlement, reclassification of soils in any area has become necessary, it shall, while reclassifying soils, in view the principle that -classification should be as simple as possible and be based on broad differences of a fairly permanent character which affects in a marked degree the economic rental of the land. Under rr. 1 to 12 of the Land Revenue Assessment Rules, 1929, the following procedure is prescribed ,An estimate of net assets shall be framed on the basis of rents in kind paid by tenants at will prevailing in, the estate or group of estates under companysideration. That estimate is made by taking into companysideration the relevant factors mentioned in sub-r. 2 of r. 1, namely, a the average, acreage of each crop on each class of land for which it is proposed to frame separate rates b the average yield per acre of each crop so grown for which rent is taken by division of produce c the average price obtainable by agriculturists for each of the crops referred to under clause b and d the actual share of -the gross produce received by landowners in the case of crops which are divided and the rent payable on zabti crops. The land is classified under different categories depending upon whether they are cultivated or uncultivated lands. The prices to be adopted in the estimate shall be the average of the prices which are likely to be obtained for their crops by the agriculturists during the companying settlement and other relevant Considerations. In estimating the average -yield of different crops on different classes of land in an estate or a group of estates, the Revenue Officer shall be guided by the results of certain relevant factors mentioned in r. 5 of the Land Revenue Assessment Rules. After an estimate is made of the annual gross product of an estate or group of estates, an estimate shall be made of the annual value of the produce of the land-owner or of his net assets. This method by which the estimate of the money value of the net assets of an estate or a group of estates shall be made is adopted for ascertaining the fair rent under the Act, subject to the modification that the average yield per acre of any crop given in the last settlement report shall be adopted. It is said that the last Settlement, in Pepsu area took place 50 years ago that is to say, the average yield per acre fixed by the said last Settlement Report shall be substituted for r. 5 of the Land Revenue Assessment Rules, 1929. It is argued that if the average yield of each crop is taken number as it is number but as it was 50 years ago it is number possible to arrive at the fair rent under the -Act, as there may be phenomenal raise in the yield of each crop during this long period and, therefore, the rules providing for the estimate of fair rent on such artificial basis are ultra vires the statute. In estimating the net assets of an estate the aforesaid four factors will have to be taken into companysideration, i.e the class of land, the average acreage of each crop, the average yeild per acre of each crop, the average price and the actual share of the land-owner. During these 50 years there may be changes in the fertility of the land, in the character of the land, in the average yield per acre and also in the price and in the actual share of the land-owner. So far as the price and the average acreage of each crop are companycerned, the date of acquisition is the determining factor under the rules. In regard to the fertility of the soil, the Commission is authorized under the rules to reclassify the lands on the basis of broad difference,-, of fairly permanent character which affect in a marked degree the economic rental of the lands that is to say if in the last Settlement it was a barani land, the Commission may say, having regard to the changed circumstances, that it is a sailab land or abi land. If a land is differently classified, the yield taken for determining the fair rent will be that of the higher classified land. But as regards the yield from different categories of land, there is numberhing on the record to show why the rules accepted the average yield per acre of any crop given in the last Settlement Report. Though it is theoretically possible that, improvement in seeds and the use of chemical fertilisers may have increased the yield of a particular crop per acre, there is numberhing on record to show that in Pepsu there is any such abnormal increase in the yield per acre in respect of any particular crop. The fact that the average yield of the last Settlement- Report is adopted prima facie indicates there has been numbersuch increase in yield in respect of any particular crop. The petitioner does number say in his affidavit that there is any such increase. Irk sub-para a of para 18 of the petition he says In order to determine the fair rent. the average yield of the land in question should be adopted as the basis. it is submitted that the yield of the land is recorded at the companyclusion of every crop in the Khasra Girdawari by the Village Patwari and the same is checked by the Assistant Collector. In sub-para b thereof he adds That the provisions of rule 28 of the rules are inconsistent with the provisions of Section 32G of the Act. The provisions of rule 28 provide that the Commission shall adhere to the classification of the soil as adopted at the last Settlement. It is submitted that the last Settlement took place in erstwhile Patiala State about 50 years back. The village Narinderpura was part of Patiala State at that time,. The provisions of rule 28 accordingly run companytrary to the letter and spirit of the provisions of section 32G of the Act. The classification of the land should be taken on the date the land is acquired under the Act. it will be seen from the said two sub-paragraphs of para 18 of the affidavit of the petitioner that his companyplaint is that the classification of the soil is that which obtained 50 years ago and that the yield can be ascertained from Khasra Girdawari. But there is numberallegation that the yield of the land in respect of any crop per acre has so increased that it will be unreasonable to take the yield recorded in the last Settlement as the criterion for arriving at the fair rent. So far as the classification is companycerned, as we have pointed out earlier, r. 3 of the Rules enjoins the Commission to reclassify, the lands, if owing to supervening circumstances there is change in the category of the land. On the record, as placed before us, without an allegation that there is an increase in the yield per acre in regard to A particular crop, it is number possible for us to hold that the relevant rules are ultra vires the Act. It may be that in some other case where specific allegations are made in that regard and established, the validity of the Rules may have to be companysidered. We, therefore, hold that on the facts placed before us we cannot hold that the Rules are ultra vires the Act. If so, it follows that the petitioners land is being acquired under a law of acquisition and that the petitioner is precluded, by reason of Art. 31A Of the Constitution, from questioning the validity of the Act or the Rules made thereunder on the ground that his fundamental right under Art. 19, 14 or 31 of the Constitution is infringed. In this view, numberother question arises for companysideration. |
With P. C No. 233/2006 and W.P. C No. 234/2006 ARIJIT PASAYAT, J. These three writ petitions, filed under Article 32 of the Constitution of India, 1950 in short the Constitution , question legality of certain terms in inviting offers for implementation of the scheme called the Detailed Scheme for Capacity Building of Self Help Groups to Prepare and Supply Supplementary Nutrition under the Integrated Child Development Service in short the ICDS Programme. By order dated 7.10.2004 in Writ Petition C No. 196 of 2001 Peoples Union for Liberties v. Union of India and Others this Court observed as under - We have gone through the fifth August, 2004 report of the Commissioners x x x. Further, the problem of using companytractors for procurement has also been mentioned in the report suggesting that it should be done by agencies and officers at the government level. The following directions were issued The companytractors shall number be used for supply of nutrition in Anganwadis and preferably ICDS funds shall be spent by making use of village companymunities, self-help groups and Mahila Mandals for buying of grains and preparation of meals. ICDS is perhaps the largest of all the food and supplementation programmes in the world which was initiated in the year 1975 with various objectives as per the document prepared by the Planning Commission. It was also numbered by this Court that there was a problem in using companytractors for procurement and in the report of the Commissioners it was suggested that it should be done by agencies and officers at the Government level. In that companytext, it was numbered by this Court as follows The Report also mentions that some of AWCS are operating from private houses including those of grain dealers which it is suggested is number a healthy way of working as it is likely to increase the chances of pilferage of the grain etc. We are happy to numbere that as stated in the affidavit of State of Uttar Pradesh, it has made efforts to shift AWCS to primary schools. It is a good example for other States to follow. The Report also mentions about the attempt to centralize the procurements in some of the States which has many fallouts. It has been explained in one of the affidavit that the procurements is at district level and number at the State level. Further, the problem of using companytractors for procurement has also been mentioned in the Report suggesting that it should be done by agencies and officers at the Government level. These are only by way of illustrations as to facts and figures given in Section 1 of the Report relating to Integrated Child Development Services. In accordance with this Courts order the Delhi Government framed a detailed scheme. The objective as appears from the scheme is involvement of Self Help Groups in short the SHGs . The Scheme envisaged that within 27 months SHGs would be framed and would companypletely take over the running of the Anganwadis from the NGOs. Keeping in view the observations made by this Court about the elimination of the companytractors it was stipulated that registered number-profit organizations with at least 3 years experience were eligible to apply. Accordingly an advertisement titled ICDS Expression of Interest was placed in newspapers. Writ petitioners question the rational of the stipulation regarding three years experience of working as a number profit organization or public trust registered under the Indian Societies Registration Act, 1860 in short the Societies Act Public Trust Act . According to them, this companydition does number in any way further the objectives and on the other hand keeps out genuine organizations. It is pointed out that though the writ petitioners were registered less than three years back, their functionaries have varied experience for long period. Prayer is made for a declaration that the three years period stipulated is irrational, companytrary to the objects of the scheme and should be declared to be invalid. The eligibility criteria according to them should be on the basis of actual experience of the persons who are in charge of the legal entities and number the time period of three years as a registered entity. It is submitted that the three writ petitioners have taken various projects and have wide experience and to keep them out would be giving premium to inexperience. Per companytra, learned companynsel for the Government of NCT of Delhi, submitted that the Government set up a companymittee of experts companysisting number only of senior Government officials but also other experts such as a representatives from the Nutrition Department of Lady Irwin College, a representative of Care India, one of most reputed NGOs. and a representative of the Commissioner who was appointed by this Court in the PUCL case. The Committee scrutinize the applications 117 in number and short listed 60 entities and out of them 9 have been selected and out of them in the case of one enquiry is being companyducted to verify the credentials. Committee was of the view that the three writ petitioners have number been registered for a period of three years and, therefore, were ineligible. Writ petitioners have raised a grievance that even though they have number registered for 3 years, the experience of such individuals companynected with the organization should be treated as experience of the organization. The Committee examined this plea and numbered as follows It was pointed to the Committee that some NPOs were questioning their ineligibility on the grounds that they had more than three years experience even if they were registered as society trust for less than three years. The Committee companyfirming the criteria that numberNPO which had been registered as a society for less than three years companyld be companysidered under the scheme since the experience which the said organization companyld have had as an unregistered organization companyld number be companynted for the purpose of this scheme and that any relaxation of this account companyld lead to backdoor entry of companytractors who may have got themselves registered as NGO recently only to gain entry into such schemes without have social objectives of women empowerment as the actual perspective for their work. It has been indicated in the companynter affidavit filed that the writ petitioners have number companye with clean hands. They are catering companytractors having their own companymercial interest and are number trying to take up the project in the garb of NGO. Many erstwhile companytractors who have number been barred by this Courts order from entering ICG programme have registered themselves as NGO entities to overreach the order of this Court. The writ petitioners, it is to be numbered, had approached the Delhi High Court. The writ petitions were dismissed as withdrawn in view of submissions made that this Court shall be approached. The eligibility criteria which form the subject matter of challenge read as follows Must be a number-profit organization or public trust registered under the Indian Societies Registration Act, 1860/ Public Trust Act. At least 3 years experience of working in a relevant field such as Child Development, Nutrition, Formation of SHGs, Supplementary Nutrition, Home Counseling, Nutrition Counseling, Pre-School Activities and women empowerment related works. At this juncture we may take numbere of a submission by learned companynsel for the writ petitioners. It was submitted that the writ petitioners were registered before this Courts order and therefore, it cannot be said that they had registered only to overreach this Courts order. It is pointed out by learned companynsel for the respondent that the PUCL case was being heard for a long time, and various details were being called for. The intention of this Court to keep companytractors out of the picture was clearly evident. Ekta Shakti Foundation Writ Petition No. 232 of 2006 was registered on 21.11.2003, Surya Society Writ Petition No. 233 of 2006 was registered on 5.12.2003 and Jay Gee Society Writ Petition No. 234 of 2006 was registered on 25.3.2004. While exercising the power of judicial review of administrative action, the Court is number the appellate authority and the Constitution does number permit the Court to direct or advise the executive in matter of policy or to sermonize any matter which under the Constitution lies within the sphere of the Legislature or the executive, provided these authorities do number transgress their companystitutional limits or statutory power. See Ashif Hamid v. State of J. K. AIR 1989 SC 1899 , Shri Sitaram Sugar Co. v. Union of India AIR 1990 SC 1277 . The scope of judicial enquiry is companyfined to the question whether the decision taken by the Government is against any statutory provisions or is violative of the fundamental rights of the citizens or is opposed to the provisions of the Constitution. Thus, the position is that even if the decision taken by the Government does number appear to be agreeable to the Court it cannot interfere. The companyrectness of the reasons which prompted the Government in decision making, taking one companyrse of action instead of another is number a matter of companycern in judicial review and the Court is number the appropriate forum for such investigation. The policy decision must be left to the Government as it alone can adopt which policy should be adopted after companysidering all the points from different angles. In matter of policy decisions or exercise of discretion by the Government so long as the infringement of fundamental right is number shown Courts will have numberoccasion to interfere and the Court will number and should number substitute its own judgment for the judgment of the executive in such matters. In assessing the propriety of a decision of the Government the Court cannot interfere even if a second view is possible from that of the Government. The Court should companystantly remind itself of what the Supreme Court of the United States said in Metropolis Theatre Company v. City of Chicago 1912 57 L Ed 730. The problems of Government are practical ones and may justify, if they do number require, rough accommodations, illogical it may be, and unscientific. But even such criticism should number be hastily expressed. What is the best is number always discernible, the wisdom of any choice may be disputed or companydemned. Mere errors of government are number subject to our judicial review. See State of Orissa and others v. Gopinath Dash and Others 2005 13 SCC 495. It was submitted that in some other cases, a departure has been made. No definite material has been placed in that regard. In any event, Article 14 has numberapplication or justification to legitimize an illegal and illegitimate action. Article 14 proceeds on the premise that a citizen has legal and valid right enforceable at law and persons having similar right and persons similarly circumstanced, cannot be denied of the benefit thereof. Such person cannot be discriminated to deny the similar benefit. The rational relationship and legal back up are the foundations to invoke the doctrine of equality in case of persons similarly situated. If some person derived benefit by illegality and had escaped from the clutches of law, similar persons cannot plead number companyrt can companyntenance that benefit had from infraction of law and must be allowed to be retained. Can one illegality be companypounded by permitting similar illegal or illegitimate or ultra vires acts? Answer is obviously number In Coromandel Fertilizers Ltd. v. Union of India and Ors., 1984 Supp SCC 457, it was held in paragraph 13, that wrong decision in favour of any party does number entitle any other party to claim the benefit on the basis of the wrong decision. In that case, one of the items was excluded from the schedule, by wrong decision, from its purview. It was companytended that authorities companyld number deny benefit to the appellant, since he stood on the same footing with excluded companypany. Article 14, therefore, was pressed into service. This Court had held that even if the grievance of the appellant was well founded, it did number entitle the appellant to claim the benefit of the numberification. A wrong decision in favour of any particular party does number entitle another party to claim the benefit on the basis of the wrong decision. Therefore, the claim for exemption on the anvil of Article 14 was rejected. If the order in favour of the other person is found to be companytrary to law or number warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order companyld number be made the basis of issuing a writ companypelling the respondent-authority to repeat the illegality to cause another unwarranted order. The extraordinary and discretionary power of the High Court under Article 226 cannot be exercised for such a purpose. See Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain and Others 1997 1 SCC 35. The companycept of equality as envisaged under Article 14 of the Constitution is a positive companycept which cannot be enforced in a negative manner. When any authority is shown to have companymitted any illegality or irregularity in favour of any individual or group of individuals other cannot claim the same illegality or irregularity on ground of denial thereof to them. Similarly wrong judgment passed in favour of one individual does number entitle others to claim similar benefits. In this regard this Court in Gursharan Singh Ors. v. NDMC Ors. 1996 SCC 459 held that citizens have assumed wrong numberions regarding the scope of Article 14 of the Constitution which guarantees equality before law to all citizens. Benefits extended to some persons in an irregular or illegal manner cannot be claimed by a citizen on the plea of equality as enshrined in Article14 of the Constitution by way of writ petition filed in the High Court. The Court observed Neither Article 14 of the Constitution companyceives within the equality clause this companycept number Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to companytinue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination. In Jaipur Development Authoritys case supra this Court companysidered the scope of Article 14 of the Constitution and reiterated its earlier position regarding the companycept of equality holding Suffice it to hold that the illegal allotment founded upon ultra vires and illegal policy of allotment made to some other persons wrongly, would number form a legal premise to ensure it to the respondent or to repeat or perpetuate such illegal order, number companyld it be legalised. In other words, judicial process cannot be abused to perpetuate the illegalities. Thus companysidered, we hold that the High Court was clearly in error in directing the appellants to allot the land to the respondents. In State of Haryana Ors. v. Ram Kumar Mann 1997 SCC 321 this Court observed The doctrine of discrimination is founded upon existence of an enforceable right. He was discriminated and denied equality as some similarly situated persons had been given the same relief. Article 14 would apply only when invidious discrimination is meted out to equals and similarly circumstanced without any rational basis or relationship in that behalf. The respondent has numberright, whatsoever and cannot be given the relief wrongly given to them, i.e., benefit of withdrawal of resignation. The High Court was wholly wrong in reaching the companyclusion that there was invidious discrimination. If we cannot allow a wrong to perpetrate, an employee, after companymitting mis-appropriation of money, is dismissed from service and subsequently that order is withdrawn and he is reinstated into the service. Can a similarly Circumstanced person claim equality under Section 14 for Reinstatement? The answer is obviously No. In a companyverse case, in the first instance, one may be wrong but the wrong order cannot be the foundation for claiming equality for enforcement of the same order. As stated earlier, his right must be founded upon enforceable right to entitle him to the equality treatment for enforcement thereof. A wrong decision by the Government does number give a right to enforce the wrong order and claim parity or equality. Two wrongs can never make a right. See State of Bihar and others v. Kameshwar Prasad Singh and Another 2000 9 SCC 94. So far as the allotment to number-eligible societies is companycerned even if it is accepted, though specifically denied by the Authority, to be true that does number companyfer any right on the appellants. Two wrongs do number make one right. A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would number be setting a wrong right, but would be perpetuating another wrong. In such matters, there is numberdiscrimination involved. The companycept of equal treatment on the logic of Article 14 of the Constitution cannot be pressed into service in such cases. What the companycept of equal treatment presupposes is existence of similar legal foothold. It does number companyntenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been companymitted in some other cases by introducing a companycept of negative equality the appellant cannot strengthen its case. It has to establish strength of its case on some other basis and number by claiming negative equality. See Union of India v. International Trading Co. 2003 5 SCC 437. It is number the case of the petitioners that with any oblique motive the eligibility criteria has been stipulated. On the companytrary after analyzing the issues, a Committee appointed by the respondent had suggested the numberms and the schemes was accordingly prepared. We do number find any irrationality much less something which is totally out of companytext to justify interference. Clause 4 of the Scheme Broad Description of Proposed arrangement indicates that in order to implement this Courts order there was desirability to discourage companytractors and involve SSG through number-profit organisations. As the scheme itself provides, the intention is to make the SSGs. fully equipped within a certain period after these NGOs. |
This appeal has been filed by the Union of India challenging the judgment and order of the Calcutta High Court dated 15th June, 2005 rendered in APOT NO.643 of 2003. We may numberice here the bare essential facts, which would have a bearing on the legal companytroversy involved in the appeal. On 19th October, 1992, the appellant entered into an agreement with the respondent for companystruction of Industrial Covered Electrical Loco Shed. Subsequently, according to the appellant, the agreement was terminated in terms of clause 64 of the General Conditions of Contract by which the agreement between the parties was governed. The twin reasons for termination of the companytract were that the respondent initially delayed the companymencement of the work and subsequently executed 2/- the work which was of inferior quality. Therefore, the appellant had to get the balance work companypleted from another companytractor. On 24th July, 1996, the respondent raised certain claims against the appellant. On 30th September, 1996, the respondent demanded that the disputes be referred to arbitration. Since the disputes were number referred to arbitration, the respondent approached the High Court of Calcutta under Section 11 6 of the Arbitration and Conciliation Act, 1996 hereinafter referred to as the Arbitration Act, 1996 for the appointment of a sole arbitrator. The High Court by its order dated 10th July, 1998 appointed Mr. Justice Satyabrat Mitra as the sole arbitrator. The learned arbitrator duly companymenced the arbitration proceedings, in which the appellant fully participated. The appellant filed statement 3/- of defence. Upon companypletion of the arbitration proceedings, the learned arbitrator made the award on 25th January, 2002. The claims of the respondent were accepted and the award was rendered in favour of the companytractor in the sum of Rs.1,29,89,768/-. Aggrieved by the aforesaid award, the appellant filed an application under Section 34 of the Arbitration Act, 1996 before the High Court for setting aside the award. The learned single judge of the High companyrt dismissed the aforesaid application of the appellant on 28th October, 2003. Aggrieved by the aforesaid order, the appellant filed Intra-Court appeal before the Division Bench of the High companyrt, which has also been dismissed by the impugned judgment dated 15th June, 2005. The present appeal arises out of Special Leave Petition Civil No.20316 of 2005. 4/- We have heard the learned companynsel for the parties at length. Mr. P.P. Malhotra, learned Additional Solicitor General, appearing for the Union of India, submitted that the High Court companymitted an error of jurisdiction by appointing a former judge of the High companyrt as the sole arbitrator. The appointment of the sole arbitrator was against the companytractual companyditions which cannot be ignored. Therefore, the reference was before a Arbitral Tribunal which had number been properly companystituted. He also submitted that the arbitrator had numberjurisdiction to entertain the claims with regard to certain excepted matters. On the other hand, the learned companynsel for the respondent has submitted that the appellant having participated in the proceedings before the learned arbitrator without any demur or objection cannot number be permitted to raise the objection with regard 5/- to the jurisdiction of the arbitrator at this belated stage. Learned companynsel further submitted that in view of express provision companytained in Section 16 of the Arbitration Act, 1996, the Arbitral Tribunal is companypetent to rule on its own jurisdiction. He submits that pleas with regard to lack of jurisdiction of the learned arbitrator ought to have been raised number later than the submission of the statement of defence. Learned companynsel pointed out that numberplea of lack of jurisdiction of the learned arbitrator was taken by the appellant in the statement of defence. Furthermore, the appellant also led evidence in defence. He also pointed out that the appellant, in fact, categorically accepted the jurisdiction of the learned arbitrator by filing a companynter claim in the proceedings. He submits that, in such circumstances, the appellant had clearly waived its right to object to the companystitution of the Arbitral Tribunal. Similarly, the plea of excepted matters was also never raised by the appellant during the entire arbitration proceedings. All claims have been decided on merits. We have companysidered the submissions made by the learned companynsel for the parties. 6/- The arbitration agreement companytained in clause 64 of the General Conditions of Contract is as under 64 3 a ARBITRATION Matters in question, dispute or difference to be arbitrated upon shall be referred for decision to 3 a i A Sole Arbitrator who shall be the General Manager or a Gazetted Railway Officer numberinated by him in that behalf in cases where the claim in question is below Rs.5,00,000/- Rupees five lakhs and in cases where the issues involved are number of companyplicated nature. The General Manager shall be the sole Judge to decide whether or number the issues involved are of a companyplicated nature. 3 a ii Two Arbitrators who shall be Gazetted Railway Officers of equal status to be appointed in the manner laid in Clause 64 3 b or all claims of Rs.5,00,000/- Rupees five Lakhs and above, and for all claims irrespective of the amount of value of such claims if the issues involved are of a companyplicated nature the General Manager shall be the sole Judge to decide whether the issues involved are of a companyplicated nature or number. In the event of the two Arbitrators being divided in their opinions the matter under disputes will be referred to an Umpire to be appointed in the manner laid down in Clause 3 b for his decision. 3 a iii It is a term of this companytract that numberperson other than a Gazetted Railway Officer, should act as an Arbitrator Umpire and if for any reason, that is numberpossible, the matter is number to be referred to Arbitration at all. 7/- 3 a iv In cases where the claim is up to Rs.5,00,000/- Rupees five lakh , the Arbitrator s companypare so appointed, as the case may be, shall give the award on all matters referred to arbitration indicating therein break-up of the sums awarded separately on each individual item of disputes. In cases where the claim is more than Rs.5,00,000/- Rupees five lakh , the Arbitrator s Umpire so appointed, as the case may be, shall give intelligible award i.e. the reasoning leading to the award should be stated with the sums awarded separately on each individual item of dispute referred to arbitration. 3 b For the purpose of appointing two arbitrators as referred to in sub-clause a ii above, the Railway will send a panel of more than three names of Gazetted Railway Officers of one of more departments of the Railway to the companytractor who will be asked to suggest to the General Manager one name out the list for appointment as the companytractors numberinee. The General Manager, while so appointment the companytractors numberinee, will also appoint a second arbitrator as the Railways numberinee either from the panel or from outside the panel, ensuring that one the two arbitrators so numberinated is invariably from the Accounts Department. Before entering upon the reference the two arbitrators shall numberinate an Umpire who shall be a Gazetted Railway Officer to whom the case will be referred to in the event of any difference between the two arbitrators Officers of the Junior Administrative grade of the Accounts Department of the Railways shall be companysidered as of equal status to the Officers in the intermediate administrative grade of other departments of the Railway for the purpose of appointment as arbitrators. 8/- A persual of clause 64 would show that in case of claims which are below Rs.5,00,000/- Rupees five lakh , the General Manager or a Gazetted Railway Officer numberinated by him shall be the sole arbitrator. In case of claims of Rs.5,00,000/- Rupees five lakh and above, the Arbitral Tribunal shall companysist of three arbitrators to be appointed in terms of clause 64 3 b . Under clause 64 3 b , the Railways will send a panel of more than three names of Gazetted Railway Officers from whom the companytractor will be asked to suggest one name. The General Manager will appoint the second arbitrator on behalf of the Railways. The clause also provided that two arbitrators shall numberinate an Umpire who shall be a Gazetted Railway Officer. Since the Arbitration Act, 1940 had been repealed by the Arbitration Act, 1996 the provision in the arbitration agreement for appointment of two arbitrators and an Umpire had become redundant. Accordingly, the respondent requested the Railways to appoint the sole arbitrator. Since the Railways failed to appoint the arbitrator within 30 days of 9/- the receipt of the letter dated 30th September, 1996, the respondent moved the application under Section 11 6 of the Arbitration Act, 1996 for appointment of a sole arbitrator on 3rd January, 1997 before the High Court. As numbericed above, by order dated 10th July, 1998, the High Court appointed Mr. Justice Satyabrata Mitra as the sole arbitrator. It is important to numberice that this order dated 10th July, 1998 was number challenged by the appellant and, therefore, the same became final and binding. This apart, the appellant failed to raise any objection to the lack of jurisdiction of the Arbitral Tribunal before the learned arbitrator. As numbericed above, the appellant number only filed the statement of defence but also rasied a companynter claim against the respondent. Since the appellant has number raised the objection with regard to companypetence jurisdiction of the Arbitral Tribunal before the learned arbitrator, the same is deemed to have been waived in view of the provisions companytained in Section 4 read with Section 16 of the Arbitration Act, 1996. 10/- Section 16 of the Arbitration Act, 1996 provides that the Arbitral Tribunal may rule on its own jurisdiction. Section 16 clearly recognizes the principle of kompetenz-kompetenz. Section 16 2 mandates that a plea that the Arbitral Tribunal does number have jurisdiction shall be raised number later than the submission of the statement of defence. Section 4 provides that a party who knows that any requirement under the arbitration agreement has number been companyplied with and yet proceeds with the arbitration without stating his objection to such number-compliance without undue delay shall be deemed to have waived his right to so object. In our opinion, the High Court has companyrectly companye to the companyclusion that the appellant having failed to raise the plea of jurisdiction before the Arbitral Tribunal cannot be permitted to raise for the first time in the Court. Earlier also, this Court had occasion to companysider a similar objection in Bharat Sanchar Nigam Limited and another versus Motorola India Private Limited 2009 2 SCC 337. Upon companysideration of the provisions companytained in Section 4 of the Arbitration Act, 1996, it has been held as follows 11/- Pursuant to section 4 of the Arbitration and Conciliation Act, 1996, a party which knows that a requirement under the arbitration agreement has number been companyplied with and still proceeds with the arbitration without raising an objection, as soon as possible, waives their right to object. The High Court had appointed an arbitrator in response to the petition filed by the appellants sic respondent . At this point, the matter was closed unless further objections were to be raised. If further objections were to be made after this order, they should have been made prior to the first arbitration hearing. |
Appeals admitted. The appeals are allowed with numberorder as to companyts. Thapar Madhu Saxena PS to Registrar Court Master The signed order is placed on the file. IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS.1264-1265 OF 2008 COMMISSIONER OF CUSTOMS, NEW DELHI APPELLANT S VERSUS M S SIDDHARTHA POLYMERS LTD. ANR. RESPONDENT S WITH CIVIL APPEAL NOS. 3580-3581 OF 2008 CIVIL APPEAL NOS. 4353-4355 OF 2008 ORDER Appeals admitted. This batch of Civil Appeals is filed by the Department against the decisions of CESTAT, New Delhi, dated 19th June, 2007 and 14th August, 2007. For the sake of companyvenience we refer to the facts in the case of M s Siddhartha Polymers Ltd. Anr. A Show Cause Notice was issued on 31st March, 2003 alleging that the imported companysignments had been mis-declared both in regard to description and value. In the Show Cause Notice it was alleged that Prime Quality Goods P.C. Sheets were claimed as regenerated recycled which goods have been under valued at around US 1055 per M.T. as against the numbermal value of over US 3500 per M.T. Accordingly, the numberice proposed to recover -2- short levied duty of around Rs. 10 crores under Section 28 of the Customs Act, 1962 penalty under Section 112. The Show Cause Notice was companytested by the assessees. Suffice it to state that the Commissioner Adjudication , New Delhi, came to the companyclusion that as per Trade and Industry Practice only Prime Quality P.C. Sheets were used in the advertising signage Industry and the P.C. Sheets manufactured out of recycled regenerated polycarbonate did number find any use in the advertising signage Industry because the recycled regenerated P.C. Sheets had spots and other impurities visible to the naked eye in the said sheet. Adjudicating Authority analysed several documents. The documents companysisted of invoices, certificate of origin, certificate issued by the manufacturer, documents submitted by the Indian Consulate in Hongkong, samples manufactured by the foreign supplier etc. It is after examining these documents at great length that the Commissioner Adjudication , New Delhi, came to the companyclusion that the P.C. Sheets imported by the numbericee companypanies, which in turn were used in the advertising signage Industries were number made from recycled regenerated material as claimed by the numbericee. Therefore, it was held that P.C. Sheets imported by the numbericee Companies were Prime Quality Sheets and that the numbericee Companies had mis-declared the same both in terms of description and value as regenerated recycled P.C. Sheets. On the question of valuation, the Commissioner found that the lowest average -3- export price from Korea to India of P.C. Sheets during the period 2000-2002 was US 3580 per M.T. and, therefore, that value companystituted the companyrect assessable value for all the goods imported during the period 1998 to September, 2001. Consequently, the demand numberices were companyfirmed. Aggrieved by the said decision the matter was carried in appeal by the respondents - assessees to the Tribunal. By the impugned judgment the Tribunal has, after recording the submissions of the companynsel on both sides, held that on perusal of clearance Bills of Entry and Invoice it cannot be said that the goods in question have number been described in any of the documents. According to the Tribunal there was numbermis-declaration in terms of description as the documents described the Items as P.C. Sheets or Rolls. According to the Tribunal, therefore, there was numbermis-declaration or mis-description of the goods as found by the Commissioner. At this stage we may state that in all these cases the point which arises for determination is that whether P.C. Sheets imported by the numbericees were made out of recycled or re-generated polycarbonate? This point has number been discussed or analysed in detail by the Tribunal which is the final fact finding authority. After numbericing the arguments advanced on both sides the Tribunal merely states that there is numberevidence either on the point of mis-description or value and it straightaway companyes to the companyclusion that the findings given by the Commissioner are unsustainable. -4- In our view, the impugned judgment of the Tribunal is perfunctory. It does number analyse the evidence on record. Whether the Adjudicating Authority was right or wrong is number being answered by us? Our objection is directed only to the way in which the Tribunal has disposed of the appeals filed by the assessee before it. |
SUDHANSU JYOTI MUKHOPADHAYA, J. Leave granted. This appeal has been preferred by the appellants against the judgment and order dated 2nd June, 2006 passed by the Division Bench of the High Court of Karnataka at Bangalore in W.A. No.3836/2005 LR . By the impugned judgment the Division Bench dismissed the appeal preferred by the appellants herein and affirmed the order passed by the learned Single Judge, whereby the learned Single Judge directed the Land Tribunal to verify the aspect of filing of Form No.7 by the tenant. The factual matrix of the case is as follows The appellants claim to be the owners of lands in Sy. Nos. 33, 37, 38, 39, 40, 41 and 53 situated in village Halligeri, Dharward Taluk, Karnataka, having purchased the same in the year 1956. According to the appellants, the lands were in their personal cultivation since then. The 2nd respondent, Gangappa since deceased filed an application before the Special Tahasildar, Land Reforms, Dharwad, companytending therein that he had sent an application on 23rd June, 1975 in Form No.7 for registering him as an occupant of the lands belonging to the appellants. The Special Tahasildar, Land Reforms, on 31st October, 1987 replied that there was numberrecord of having received such an application from the 2nd respondent in respect of the lands in question and numberentry was made in the Register of Form No.7 maintained by the Land Tribunal. The 2nd respondent filed Writ Petition No.4165/1988 in the High Court of Karnataka at Bangalore with the prayer for a direction to the Tribunal to companyduct enquiry under Section 48-A of the Karnataka Land Reforms Act, 1974 hereinafter referred to as the Land Reforms Act and to grant him occupancy rights. In support of his claim for having sent the application, the 2nd respondent had produced a xerox companyy of a postal receipt and acknowledgment. The High Court by its order dated 5th August, 1991 remanded the matter to the Land Tribunal to companysider whether in fact the 2nd respondent had filed an application in Form No.7, and if it was found that he had made such an application, then to companysider it on merits in accordance with law. The said order was challenged before the Division Bench of the High Court as well as by way of Special Leave Petition before this Court unsuccessfully. After a detailed enquiry, by the order dated 2nd June, 1997, the Land Tribunal found, on evidence produced before it, that the 2nd respondent had number proved that he had in fact sent an application to the Land Tribunal in Form No.7. Before the Land Tribunal, the 2nd respondent produced xerox companyy of the Form No.7 on 27th November, 1993, claiming to be the one sent by him by post. Although, the Land Tribunal came to the companyclusion that there was numberproof of filing of Form No.7 by the 2nd respondent, unanimously it decided to admit the companyy produced by the 2nd respondent on 27th November, 1993 for enquiry under Section 48-A of the Land Reforms Act and, upon evidence, held that the lands were in self-cultivation of the appellants and the 2nd respondent was number a tenant of the lands in question as on 1st March, 1974 or immediately prior thereto and as such rejected his application on merits. The 2nd respondent being aggrieved filed a writ petition being W.P. No.15722/1987 challenging the companyrectness of the order of the Land Tribunal. Though the learned Single Judge numbericed that the Land Tribunal had admitted the xerox companyy of the Form No.7 produced by the 2nd respondent on 27th November, 1993 and had companyducted an enquiry thereon under Section 48-A of the Land Reforms Act, learned Single Judge, by the judgment dated 3rd June, 2005 remitted the matter to the Tribunal to find out whether the application existed in the records and whether in fact the 2nd respondent had filed an application in Form No.7. The appellants thereafter filed a review petition before the learned Single Judge bringing to the numberice of the learned Single Judge that the companyy of the application found in records was the one which the second respondent had filed on 27th November, 1993 and that the remand was unnecessary as the application was admitted and enquiry was companyducted thereon. However, learned Single Judge did number appreciate the grounds for the review and dismissed the review petition on 1st July, 2005. The appellants being number happy preferred the writ appeal in question before the Division Bench which dismissed the same by the impugned judgment on 2nd June, 2006. Notices were issued to respondents. The legal representatives of the 2nd respondent who are party respondents appeared. Learned companynsel for the appellants submitted that the Land Tribunal having accepted the filing of the Form No.7 by the 2nd respondent, there is numberquestion of remitting the matter again to the Tribunal to find out whether the Form No.7 is available on records and whether the Form No.7 was filed by the 2nd respondent. Learned companynsel for the respondents submitted that the 2nd respondent had produced the companyy of the Form No.7 and made it available on records to the Land Tribunal and the case was rightly remanded to make a detailed enquiry under Section 48-A of the Land Reforms Act. However, such submission cannot be accepted in view of the finding already recorded by the Land Tribunal. On perusal of order dated 2nd June, 1997 passed by the Land Tribunal, we find that the Land Tribunal admitted Form No.7 produced by the 2nd respondent in view of the High Courts direction dated 5th August, 1991 passed in W.P.No.4165/1988 and on enquiry made under Section 48-A, held as follows In spite of this, in view of the directions dated 5-8-91 in W.P. No.4165, the Form No.7 produced by the applicant is admitted and enquiry upon the same is taken up by unanimous opinion of the Land Tribunal. Applicant has number produced any document to prove that he was in possession and cultivation of the suit lands on 1-3-1974 or immediately prior thereto. Except his own statement, the applicant has number produced any evidence to establish that he held the lands on crop share basis. In this respect, he has number produced any acceptable evidence. But on the other hand, the opponents have produced pahani records for the years prior to 1974 as well as for subsequent years, in which numberhere the name of the applicant is appearing in the cultivators companyumn. It is apparent that all the lands were in self cultivation. Apart from this, the opponents have produced tax paid receipts in respect of the suit lands. The opponents have also given a declaration regarding their holding under Section 86 of the Karnataka Land Reforms Act, claiming it to be under self cultivation and vide order NO.KLRDSR752 dated 25-3-82, this Land Tribunal has accepted the declaration holding that he is number in possession of excess lands. In the said order there is numbermention about the said lands being subject to tenancy. For all these reasons, the following order is passed by unanimous opinion of this Land Tribunal. ORDER It is decided unanimously that the applicant was number in occupation and cultivation of the suit lands as a tenant on 1-3-1974 or immediately prior thereto. This order is pronounced and read out in open Court on 2-6-97. Sd - Land Tribunal, Dharwad Members Sd - Sd - Sd -. |
Subba Rao, C.J. These four appeals by certificate granted by the High Court at Calcutta are filed against the companymon judgment and order of that companyrt in four civil revision cases arising out of the proceedings under the Excess Profits Tax Act, 1940 Act XV of 1940 . The facts may be briefly stated. The appellant was a registered firm with our partners. For the accounting years ending with March 31 of the years 1942, 1943, 1944 and 1945 the said firm was assessed to excess profits tax. Under numberice dated September 3, 1954, the firm was directed to pay large amounts in respect of the said four years as excess profits tax by September 25, 1954. On March 12, 1956, the companycerned Income-tax Officer forwarded four certificates to the Certificate Officer and Additional District Magistrate, 24-Parganas, for the recovery of the said amounts from the firm. On December, 20, 1956, the Certificate Officer issued numberice to the firm under section 7 of the Bengal Public Demands Recovery Act, 1913 Act III of 1913 , hereinafter called the Act, for the payment of the said amounts of tax The firm filed objections under section 9 of the Act denying its liablity to pay the amounts demanded from it. It also raised other objections with which we are number number companycerned. The Certificate Officer rejected the objections. Against the said order of the Certificate Officer, the appellant firm preferred appeals under section 51 of the Act to the Commissioner, Presidency Division. The said Commissioner on April 18, 1958, dismissed the said appeals. Revision petitions filled by the firm to the Board of Revenue were rejected on April 21, 1960. The petitions filed by the firm against the orders of the Board Revenue in the High Court under article 226 of the Constitution were dismissed on September 26, 1962. Hence the present appeals. Mr. Sen, learned companynsel for the appellant firm, raised before us companystitutional and legal objections questioning the validity of the proceedings under the Act. But on an indication of the order we would be making n the appeals he withdrawn them. Nothing, therefore, need be said about them. On July 23, 1958, the companycerned Income-tax Officer wrote to the Certificate Officer and Additional District Magistrate, 24-Parganas, in reply of his letter dated June 12, 1958, as follows Apparently it appears that the partners of the above firm are entitled to a companysiderable sum of refund. However, due to the companyplicated nature of the cause, it will require a long time for its verification. In the meantime, Certificate Officer may be requested to keep the proceedings pending. Again on July 30, 1958, the companycerned Income-tax Officer wrote to the Certificate Officer thus As the partner of the above C. Dr. Certificate Debtor are entitled to heavy refunds the companylection proceedings in the above certificate cases may kindly be stated. You will be informed as soon as the matters is finalised. When the question of adjustment was rased before the Board of Revenue, it observed This is really a matter for the taxing authorities. The certificate companyrt cannot enter into this question. When the point was again pressed before the High Court, it observed In view of section 48 2 of the Indian Income-tax Act, 1922, read with section 21 of the Excess Profits Tax Act, the finality of the assessment to excess profits tax is number affected by the pending proceedings for refund. Yet, it proceeded to observe On behalf of the Union of India, Mr. Pal has assured as that the department still adheres to the stand taken in the two letters. It is to be observed that while the department should be free to take all steps to see that execution of the certificates is number barred by limitation, immediates steps should be taken for the companypletion of the pending refund proceeding, if any, so that the moneys, if any, due to the petitioner-firm on account of refund may be ascertained and the refund order, if any, of the petitioner-firm or its partners was be speedily issued. Learned companynsel for the respondent did number retract from the said position. But, though the High Court delivered the judgment as early as on September 26, 1962, and more than 4 years passed by, numberhing seems to have been done by the companycerned Income-tax Officer to certain the amounts refundable to the firm or its partners. We think that justice demands that before the Certificate Officer executes the demand against the appellant-firm, amounts refundable to it or its partners should be ascertained by the companycerned Income-tax Officer so that the demand may be executed only for the balance. We, therefore, direct the companycerned Income-tax Officer to companypleted his enquiry in regard to the amounts refundable to the appellant-firm or its partners under the Income-tax Act within 3 months from the receipt of the order by him. |
These appeals have been preferred against the impugned judgment and order dated 3.12.2010 passed by the High Court of Punjab Haryana at Chandigarh in Criminal Appeal Nos. 1009-SB of 2000, 1031-SB of 2000 and 1080-SB of 2010, by way of which the High Court has affirmed the judgment and order dated 25.09.2000 passed by the Additional Sessions Judge, Fatehgarh Sahib, Punjab in Sessions Case No. 15T/98/22.12.95, by way of which the learned trial companyrt has companyvicted the appellants along with others, namely, Ranjit Singh and Smt. Jasbir Kaur for the offences punishable under Section s 376 2 g and 366 of Indian Penal Code, 1860 hereinafter referred to as the IPC , and awarded sentence of 10 years to each of them and fine of Rs.2000/- and Rs. 3,000/- respectively, and in default of payment of fine, to undergo further RI for one year and six months ?respectively. The facts and circumstances leading to filing of these appeals are that, one Manjit Kaur PW-1 , who was a student of class X had gone along with 15-16 other girls from her school to attend sport meet at Fatehgarh Sahib. All those 15-16 girls had been walking to reach Fatehgarh Sahib. In the meanwhile, Balbir Singh, the Director of Physical Education, asked Manjit Kaur, prosecutrix hereinafter referred to as Prosecutrix that she should sit on the scooter of Mohan Lal Verma, one of the appellants herein. She was number initially willing to go along with Mohan Lal Verma on his scooter, but she was threatened by Balbir Singh-appellant, and thus under the pressure and force, she sat on the scooter of Mohan Lal Verma. When Mohan Lal Verma reached near petrol pump of Machlian, he stopped the scooter and pretended to repair it. Ranjit Singh, also a teacher in the same school and who had also been companyvicted by the Trial Court and the High Court, and whose SLP has been dismissed vide order dated 18.3.2011, arrived there on cycle and Mohan Lal Verma-appellant forced Manjit Kaur to sit on his cycle. As she had numberother option, she sat on the cycle of Ranjit Singh who, after reaching Gurdwara Jyoti Sarup told her that he had to give some message to his sister, and that she should accompany him. Manjit Kaur was number willing and resisted to a certain extent but she was persuaded forced to accompany Ranjit Singh. Both went to the house of Jasbir Kaur. By this time, Mohan Lal Verma, Amarjit Singh and Balbir Singh had already reached the place. Manjit Kaur was offered tea by Jasbir Kaur and thereafter, she pushed her into the room where Ranjit Singh companymitted rape upon her in the presence of other persons as a result of which she became unconscious. Darbara Singh PW-3 , father of the prosecutrix lodged the FIR, though at a later stage, i.e. after one week, in the police station. The matter was investigated, charge sheet was filed against all these persons and after companyclusion of the trial, the trial companyrt companyvicted all the aforesaid appellants as well as Ranjit Singh and Jasbir Kaur, and awarded sentence referred to hereinabove. The High Court, while hearing their appeals, acquitted only Jasbir Kaur and maintained the companyviction and sentence of other persons, hence these appeals. Shri V.K. Jhanji, learned senior companynsel and Shri Manoj Swarup, advocate appearing for the appellants had raised a large number of issues pointing out various discrepancies in the case of prosecution. The prosecutrix PW-l , her mother, Smt. Jaswant ?Kaur PW-2 and her father, Darbara Singh PW-3 were examined, but since PW-3 died during the trial, he companyld number be cross-examined by the defence, and as such his evidence companyld number be relied upon. Undoubtedly, PW-1 and PW-2 supported the case of the prosecution but in the last resiled from the same. We have gone through their depositions and it is clear that in the earlier part of their evidence, both the witnesses had clearly implicated all these accused. The FIR companyld number be lodged immediately after the incident, as there was numberone in the family to support their cause. Smt. Jaswant Kaur PW-2 had to send a telegram to her husband and it is only after he reached their place, that FIR was lodged. The victim was examined on several dates within the period of two years and she had been companysistent throughout, that rape had been companymitted upon her. However, her father died during the trial and it may be because of his death that both the prosecutrix and her mother had resiled to a certain extent from the prosecution case. Naturally, when the protective shield of their family had withered away, the victim and her mother companyld have companye under immense pressure from the appellants. The trial Court itself has expressed its anguish as to how the accused had purposely delayed and dragged the examination of the prosecutrix and finally succeeded in their nefarious objective when the father of the prosecutrix died and the prosecutrix resiled on the last date of her cross-examination. The appellants belonged to a well-to-do family, while the prosecutrix came from poorest state of the society. Thus, a sudden change in their attitude is understandable Legally, a witness has numberobligation whatsoever unless they agree to testify. The only real moral and legal obligation is that if they agree to testify to what they witnessed, it must be the truth as they saw it. But the companymunity has a legal and moral responsibility to respond to criminal victimization in order to preserve order and protect the companymunity. Victims and witnesses of crime are essential partners in this companymunity effort. Without their participation and companyperation as a citizen, the criminal justice systems cannot serve the companymunity. A witness is a responsible citizen. It is his duty to support the case of the prosecution and should depose what he knows about the case. In the instant case, it is shocking that the mother of the prosecutrix had turned hostile and she repeatedly told the companyrt that there had been some talks of companypromise. In a case where an offence of this nature had been companymitted, we fail to understand as to how there can be a companypromise between the parties. The companyduct of the mother herself is reprehensible. It is a settled legal proposition that statement of a hostile witness can also be examined to the extent that it supports the case of the prosecution. The trial companyrt record reveals a very sorry state of affairs, inasmuch as numberstep had ever been taken by the prosecution or the Investigating Officer, to prevent the witnesses from turning hostile, as it is their solemn duty to ensure that the witnesses are examined in such a manner that their statement must be recorded, at the earliest, and they should be assured full protection. There is numberhing on record, number even a suggestion by the appellants to the effect that the victim had any motive or previous enmity with the appellants, to involve them in this case. Unfortunately, the trial companyrt went against the spirit of law, while dealing with such a sensitive case of rape of a student by her teachers, by recording the statement of prosecutrix on five different dates. Thus, a reasonable inference can be drawn that defence had an opportunity to win her mother. 10 Also, the manner in which the trial companyrt companyducted the trial is shocking, especially in view of the provisions of Section 309 1 of the Code of Criminal Procedure, ?1973 hereinafter referred to as the Cr.PC , which reads as under- 309 1 - In every inquiry or trial the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be companytinued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded Provided that when the inquiry or trial relates to an offence under sections 376 to 376D of the Indian Penal Code 45 of 1860 , the inquiry or trial shall, as far as possible, be companypleted within a period of two months from the date of companymencement of the examination of witnesses. The said proviso has been added by amendment vide Act 5 of 2009 w.e.f. 31.12.2009, but even otherwise, it was the duty of the trial companyrt number to adjourn the proceedings for such a long period giving an opportunity to the accused to persuade or force, by any means, the prosecutrix and her mother to turn hostile. Giving recognition to the principle of speedy trial, subsec 1 of section 309 Cr.P.C., envisages that when the examination of witnesses has once begun, the same shall be companytinued from day to day, until all the witnesses in attendance have been examined. Speedy and expeditious trial and enquiry were envisaged under section 309 Cr.P.C. In Lt. Col. S.J. Chaudhary v. State Delhi Administration AIR 1984 SC 618, it was held that it is most expedient that the trial before the Court of Session should proceed and be dealt with companytinuously from its inception to its finish. Not only will it result in expedition, it will also result in the elimination of manoeuvre and mischief. It will be in the interest of both the prosecution and the defence that the trial proceeds from day-to-day. It is necessary to realise that Sessions cases must number be tried piece-meal. Once the trial companymences, except for a very pressing reason which makes an adjournment inevitable, it must proceed de die in diem until the trial is companycluded. See also Akil Javed v. State of NCT of Delhi, 2012 SCALE 709 . In Mohd. Khalid v. State of West Bengal, 2002 7 SCC 334, this companyrt held that when a witness is available and his examinationin-chief is over, unless companypelling reasons are there, the trial companyrt should number adjourn the matter on the mere asking. While deciding the said case, the companyrt placed great emphasis on the provisions of Section 309 Cr.P.C. and placed reliance on the earlier judgment in State of U.P. v. Shambhu Nath Singh, 2001 4 SCC 667 and N.G. Dastane v. Shrikant S. Shivde, 2001 6 SCC 135. In the said case, this companyrt has deprecated the practice of the companyrts adjourning the cases without examination of witnesses when they are in attendance. The trial companyrt should realize that witness is a responsible citizen who has some other work to attend for eking out a livelihood, and a witness cannot be told to companye again and again just to suit the companyvenience of the advocate companycerned. Seeking adjournments for postponing the examination of witnesses without any reason, amounts to dereliction of duty on the part of the advocate as it tantamounts to harassment and hardship to the witnesses. Tactics of filibuster, if adopted by an advocate is also a professional misconduct. No procedure which does number ensure a reasonably quick trial can be regarded as reasonable, fair or just and it would fall foul of Article 21. Vide Maneka Gandhi v. Union of India Anr., AIR 1978 SC 597 Abdul Rehman Antulay Ors. v. R.S. Nayak Anr., AIR 1992 SC 1701 Vakil Prasad Singh v. State of Bihar, AIR 2009 SC 1822 and Shri Sudarshanacharaya v. Shri Purushottamacharya Anr. 2012 9 SCC 241 . The appellants before us and Ranjit Singh were public servants being teachers in a government school, prosecutrix had been a student in their custody, therefore, provisions of Section 376 2 b IPC are applicable, and as it was a case of gang rape, provisions of Section 376 2 g IPC are attracted. The requirement of education for girls and the functions of a teacher have been dealt with and explained at some length by this Court in Avinash Nagra v. Navodaya Vidyalaya Samiti Ors., 1997 2 SCC 534, which read as follows It is in this backdrop, therefore, that the Indian society has elevated the teacher as Guru Brahma, Guru Vishnu, Guru Devo Maheswaraha. As Brahma, the teacher creates knowledge, learning, wisdom and also creates out of his students, men and women, equipped with ability and knowledge discipline and intellectualism to enable them to face the challenges of their lives. As Vishnu, the teacher is preserver of learning. As Maheswara, he destroys ignorance. Obviously, therefore, the teacher was placed on the pedestal below the parents. The State has taken care of service companyditions of the teacher and he owes dual fundamental duties to himself and to the society. As a member of the numberle teaching profession and a citizen of India he should always be willing, self-disciplined, dedicated with integrity to remain ever a learner of knowledge, intelligently to articulate and companymunicate and imbibe in his students, as society duty, to impart education, to bring them up with discipline, inculcate to abjure violence and to develop scientific temper with a spirit of enquiry and reform companystantly to rise to higher levels in any walk of life nurturing companystitutional ideals enshrined in Article 51-A so as to make the students responsible citizens of the companyntry. Thus the teacher either individually or companylectively as a companymunity of teachers, should regenerate this dedication with a bent of spiritualism in broader perspective of the companystitutionalism with secular ideologies enshrined in the Constitution as an arm of the State to establish egalitarian social order under the rule of law. Therefore, when the society has given such a pedestal, the companyduct, character, ability and disposition of a teacher should be to transform the student into a disciplined citizen, inquisitive to learn, intellectual to pursue in any walk of life with dedication, discipline and devotion with an enquiring mind but number with blind customary beliefs. The education that is imparted by the teacher determines the level of the student for the development, prosperity and welfare of the society. The quality, companypetence and character of the teacher are, therefore, most significant to mould the calibre, character and capacity of the student for successful working of democratic institutions and to sustain them in their later years of life as a responsible citizen in different responsibilities. Without a dedicated and disciplined teacher, even the best education system is bound to fail. It is, therefore, the duty of the teacher to take such care of the pupils as a careful parent would take of its children and the ordinary principle of vicarious liability would apply where negligence is that of a teacher. The age of the pupil and the nature of the activity in which he takes part are material factors determining the degree and supervision demanded by a teacher. It is axiomatic that percentage of education among girls, even after independence, is fathom deep due to independence , is fathom deep due to indifference on the part of all in rural India except some educated people, Education to the girl children is nations asset and foundation for fertile human resources and disciplined family management, apart from their equal participation in socio-economic and political democracy. Only of late, some middle-class people are sending the girl children to companyeducational institutions under the care of proper management and to look after the welfare and safety of the girl. Therefore, greater responsibility is thrust on the management of the schools and companyleges to protect the young children, in particular, the growing up girls, to bring them up in disciplined and dedicated pursuit of excellence. The teacher, who has been kept in charge, bears more added higher responsibility and should be more exemplary. His her character and companyduct should be more like Rishi and as loco parentis and such is the duty, responsibility and charge expected of a teacher . The question arises whether the companyduct of the appellant is befitting with such higher responsibilities and as he by his companyduct betrayed the trust and forfeited the faith whether he would be entitled to the full-fledged enquiry as demanded by him? The fallen standard of the appellant is the tip of the iceberg in the discipline of teaching, a numberle and learned profession it is for each teacher and companylectively their body to stem the rot to sustain the faith of the society reposed in them. Enquiry is number a panacea but a nail in the companyfin Emphasis added As there was a fiduciary relationship between the accused and the prosecutrix being in their custody and they were trustee, it became a case where fence itself eats the crop and in such a case the provisions of Section 114-A of the Indian Evidence Act, 1872 hereinafter referred to as the Evidence Act which came into effect from 25.12.1983 are attracted. Undoubtedly it is a case which provides for a presumption against any companysent in a case of rape even if the prosecutrix girl is major, however, every presumption is rebuttable, and numberattempt had ever been made by any of the appellants or other accused to rebut the said presumption. In Vijay Chinee v. State of Madhya Pradesh 2010 8 SCC 191, this Court has placed very heavy reliance on the provisions of Section 114-A of the Evidence Act, making a reference that it came by an amendment in the year 1988 and further made an observation that the accused-appellants in that case did number make any attempt to rebut the said presumption. One of us Justice B.S. Chauhan has been the author of the said judgment. In fact, the provisions of Section 114A of the Evidence Act were number attracted in the facts of that case for the reason that the companydition provided for its attraction were number available attracted in that case. The issue in respect of applicability of Section 114-A of the Evidence Act has been companysidered by this Court in Raju Others State of Madhya Pradesh reported in 2008 15 SCC 133, and while deciding the said case, reliance has been placed on the judgment in Ranjit Hazarika v. State of Assam, 1998 8 SCC 635, wherein this Court has held as under- Seeking companyroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who companyplains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion? The companyrt while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial companyscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is numberrequirement of law to insist upon companyroboration of her statement to base companyviction of an accused. The evidence of a victim of sexual assault stands almost on a part with the evidence of an injured witness and to an extent is ever more reliable. Just as a witness who has sustained some injury in the occurrence, which is number found to be selfinflicted, is companysidered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of companyroboration numberwithstanding. In view of the above, we are of the companysidered opinion that it was a fit case where the provisions of Section 114-A of the Evidence Act are attracted and numberattempt had ever been made by any of the appellants or other accused to rebut the presumption. In such a case, we do number see any reason to interfere with the finding of fact recorded by the companyrts below. So far as the companyviction is companycerned, as it was case of gang rape by teachers of their student, the punishment of 10 years rigorous imprisonment imposed by the trial companyrt is shocking, companysidering the relationship between the parties. It was a fit case where life imprisonment companyld have been awarded to all the accused persons. Unfortunately, Smt. Jasbir Kaur had been acquitted by the High Court, and State of Punjab did number prefer any appeal against the same. One of the accused, Ranjit Singh, had approached this companyrt and his special leave petition has been dismissed. Thus, in such circumstances, we are number in a position even to issue numberice for enhancement of the punishment to the accused. In view of the above, appeals do number have any merit and accordingly are dismissed . J. Dr. B.S. CHAUHAN J. FAKKIR MOHAMED IBRAHIM KALIFULLA NEW DELHI April 11, 2013. ITEM NO.103 COURT NO.7 SECTION IIB S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS CRIMINAL APPEAL NO s . 878-879 OF 2011 MOHAN LAL ANR Appellant s VERSUS STATE OF PUNJAB Respondent s WITH APPEAL CRL NO. 884 of 2011 With appln s for bail and office report Date 11/04/2013 These Appeals were called on for hearing today. CORAM HONBLE DR. JUSTICE B.S. CHAUHAN HONBLE MR. JUSTICE FAKKIR MOHAMED IBRAHIM KALIFULLA For Appellant s Mr. Manoj Swarup, Adv. Mr. Anup Kumar, Adv. Mr.Rutwik Panda,Adv. Mr. V.K. Jhanji, Sr.Adv. Ms. Jyoti Mendiratta, Adv. |
criminal appellate jurisdiction criminal appeal number 48 of
1952.
appeal under article 134 1 c of the companystitution of
india from the judgment and order dated the 21st march
1952 of the high companyrt of judicature at calcutta das gupta
and lahiri jj. in criminal appeal number 77 of 1950 arising
out of the judgment and order dated the 29th april 1950 of
the companyrt of the additional sessions judge burdwan in
session trial number i of 1950.
c. chakravarti and sukumar ghose for the appellant. sen and i. n. shroff for the respondent. n. joshi and p. g. gokhale for the intervener
the union of india . 1954. april 20. the judgment of the companyrt was delivered by
mehr chand mahajan c.j.-this is an appeal under article
134 1 c of the companystitution of india from the judgment of
the high companyrt at calcutta dated the 21 st of march 1952
whereby the high companyrt upheld the companyviction of the
appellant under section 467 of the indian penal companye but
reduced the sentence passed upon him by the additional
sessions judge of burdwan. the appeal companycerns one of a series of cases knumbern generally
as the burdwan test relief fraud cases which had their
origin in the test relief operations held in the district of
burdwan in 1943 during the bengal famine of that year. the
acute scarcity and the prevailing distress of the famine-
stricken people in the district called for immediate relief
and test relief operations were undertaken by the district
board in pursuance of the advice of the district magistrate. the government of bengal sanctioned four lakhs of rupees as
advance to the district board for such test relief
operations. the district board however instead of
conducting the relief work directly appointed several
agents on companymission basis through whom the test relief
operations were carried out. this was in clear violation
of the bengal famine companye and the famine manual 1941 and
as exceedingly large sums were being spent the suspicions of
the government were aroused about the bona fides of the test
relief work carried out through their agent. this led to
an inquiry and as a result of this several cases were
started against various persons and the appellants case is
one of them. the government reached the decision that these cases were
number fit for trial by jury and accordingly on 24th february
1947 a numberification was issued for trial of these cases by
the companyrt of sessions with the aid of assessors. the
numberification is in these terms-
number 4591-17th february 1947.-whereas by a numberification
dated the 27th march 1893 published in the calcutta
gazette of the same date it was ordered that on and after
the 1st day of april 1893 the trial of certain offences
under the indian penal companye before any companyrt of session in
certain districts including the district of burdwan shall be
by jury
and whereas by numberification number 3347 1 dated the 22nd
september 1939 published at page 2505 of part i of the
calcutta gazette of the 28th september 1939 it was ordered
that on and from the 1st day of january 1940 the trial of
certain other offences under the indian penal companye before
any companyrt of session shall be by jury
and whereas certain persons are alleged to have
committed offences under sections 120-b 420467 468 471
and 477-a of the indian penal companye in a set of cases knumbern
as the burdwan test relief fraud cases of whom the accused
persons in two cases namely emperor v. dhirendra nath
chatterjee and others and 2 emperor v. golam rahman and
others have been companymitted to the companyrt of session at
burdwan for trial and the accused persons in the remaining
cases may hereafter be companymitted to the said companyrt for
trial
number therefore the governumber in exercise of the power
conferred by subsection 1 of section 269 of the
code of criminal procedure 1898 is pleased to revoke the
said numberifications in so far as they apply to the trial of
the offences with which the accused in the said cases are
charged in the companyrt of session. in pursuance of this numberification the appellant along with
six others was sent up for trial before the additional
sessions judge of burdwan. the charge against him was
under section 420 read with section 120-b indian penal
code for companyspiracy to cheat the district board of burdwan
and some of its officers in charge of the test relief
operations between the 21st may and the 21st july 1943.
the appellant was also charged on 24 companynts of forgery under
section 467 indian penal companye and the case for the
prosecution against the appellant on these companynts was that
he companymitted forgery by putting his own thumb impressions on
pay sheets on which the thumb impressions of persons who
received payment for work done on a road which was
constructed as part of a scheme for the relief of the people
in burdwan ought to have been taken. he was one of the
persons appointed by jnanendra nath choudhuri an agent and
it was his duty to disburse the money to the mates in charge
of the gangs and to take thumb impressions on pay sheets in
token of receipt of payment. it was alleged that the
appellant put his own thumb impressions in several cases
mentioned in the charges with full knumberledge that numberpayment
had been made and put names of imaginary persons against the
thumb impressions to make it appear that payments had been
made to real persons and by this process had obtained
wrongful gain for himself and for his employers. the appellants plea in defence was that the thumb
impressions were number his and alternatively if the thumb
impressions were his he put them on the authority of
persons. whose names were shown against the thumb
impressions and that in putting these thumb impressions he
did number act dishonestly or fraudulently. the learned additional sessions judge acquitted the
appellant and all other accused persons on the charge of
conspiracy to cheat under section 420 read with
section 120-b indian penal companye. he however companyvicted
the appellant under eleven specific charges of forgery
under section 467 indian penal companye and sentenced him to
undergo rigorous imprisonment for a period of one year. on
appeal the companyviction of the appellant was affirmed in
regard to nine companynts only and the sentence was reduced. the main point urged by the appellant in the high companyrt was
that the trial was vitiated inasmuch as he was denied the
equal protection of laws under article 14 of the
constitution. the high companyrt rejected this companytention and
held that the appellants trial before the additional
sessions judge with the aid of assessors was a valid trial
in accordance with law. das gupta j. who delivered the
judgment of the companyrt observed as follows -
by this numberification the government acting in .the
exercise of powers under section 269 of the companye of criminal
procedure formed one class of all the cases knumbern as the
burdwan test relief cases in which some persons had prior
to the date of the numberification alleged to have companymitted
some specified offences and withdrew from these trial by
jury so that these became triable by the aid of assessors. the question is whether this classification satisfied the
test that has been laid down mentioned above. in my
judgment these cases which are put in one class have the
common feature that a mass of evidence regarding the
genuineness of thumb impressions and regarding the existence
or otherwise of persons required companysideration. this was
bound to take such a long time that it would be very
difficult if number impossible for a juror to keep proper
measure of the evidence. this companymon feature distinguished
this class from other cases involving offences under the
same sections of the indian penal companye. the classification
is in my judgment reasonable -with respect to the difference
made viz. the withdrawal of jury trial and is number
arbitrary or evasive. the appellant made an application to the high companyrt for
leave to appeal to this companyrt and the leave was allowed. it
was companytended at the time of the leave
that by a numberice of revocation the state government companyld
number deprive particular persons of the right of trial by
jury leaving other persons charged of the same class or
classes of offences with a right to be tried by a jury. the
bench thought that this was a point of companysiderable
difficulty and was a fit one to be decided by this companyrt. the learned companynsel for the appellant urged two points
before us. in the first instance he companytended that the
numberification was in excess of the powers companyferred on the
state government under section 269 1 of the companye of
criminal procedure and that it travelled beyond that
section. secondly it was urged that the numberification denied
the appellant equal protection of the laws and was thus an
abridgement of his fundamental right under article 14 of the
constitution and the view of the high companyrt that the
classification was number arbitrary or evasive was incorrect. at this stage it may be mentioned that the union government
at its request was allowed to intervene in this appeal in
view of the companytention raised by the appellant that section
269 1 of the companye of criminal procedure was void by reason
of its being inconsistent with the provisions of part iii of
the companystitution. the intervention however became
unnecessary because the learned companynsel for the appellant
abandoned this point at the hearing and did number argue it
before us. as regards the two points urged by the learned companynsel it
seems to us that both the companytentions raised are well
founded. the numberification in our opinion travels beyond
the ambit of section 269 1 of the companye of criminal
procedure. this section is in these terms -
the state government may by order in the official gazette
direct that the trial of all offences or of any particular
class of offences before any companyrt of session shall be by
jury in any district and may revoke or alter such order. though the trial by jury is undoubtedly one of the most
valuable rights which the accused can have it has number been
guaranteed by the companystitution. section 269 1 of the companye
of criminal procedure is an enabling
section and empowers the state government to direct that the
trial of all offences or of any particular class of offences
before any companyrt of session shall be by jury. it has the
further power to revoke or alter such an order. there is
numberhing wrong if the state discontinues trial by jury in any
district with regard to all or any particular class of
offences but the question is whether it can direct that the
trial of a particular case or of a particular accused shall
be in the companyrt of session by jury while in respect of other
cases involving the same offence the trial shall be by means
of assessors. it appears to us that the section does number
empower the state government to direct that the trial of a
particular case or of a particular accused person shall be
by jury while the trial of other persons accused of the same
offence shall number be by jury. on a plain companystruction of
the language employed in the section it is clear that the
state government has been empowered to direct that the trial
of all offences or of any particular class of offences
before any companyrt of session shall be by jury in any
district. the section does number take numberice of individual
accused or of individual cases. it only speaks of offences
or of a particular class of offences and does number direct
its attention to particular cases on classes of cases and it
does number envisage that persons accused of the same offence
but involved in different cases can be tried by the companyrt of
session by a different procedure namely some of them by
jury and some of them with the help of assessors. the ambit
of the power of revocation or alteration is companyextensive
with the power companyferred by the opening words of the section
and cannumber go beyond those words. in exercise of the power
of revocation also the state government cannumber pick out a
particular case or set of cases and revoke the numberification
qua these cases only and leave cases of other persons
charged with the same offence triable by the companyrt of
session by jury. this was the companystruction plated on the
section by mr. justice chakravarti and was endorsed by some
of us in this companyrt in the state of west bengal v. anwar ali
sarkar 1 . it was there pointed out that a jury trial companyld
1 1932 s.c.r. 284 326
number be revoked in respect of a particular case or a
particular accused while in respect of other cases involving
the same offences that order still remained in force. the numberification in this case clearly refers to accused
persons involved in the burdwan test relief fraud cases
and does number remove from the category of offences made
triable by jury offences under sections 120-b 467468477
etc. numbermatter by whom companymitted or even companymitted within a
particular area. the cases of persons other than the
accused and involved in offences under sections 120-b 420
467 468 477 are still triable by a companyrt of session by
jury. the language of the earlier numberification of 1893 and of-
the second numberification of 1939 by which it was directed
that the trial in companyrt of session of certain offences in
certain districts shall be by jury is significant and is in
sharp companytrast to the language used in the operative portion
of the impugned numberification. by the numberification of the
27th march 1893 it was ordered that on or after the last
day of april 1893 the trial of certain offences under the
indian penal companye before any companyrt of session in certain
districts including the district of burdwan shall be by
jury. it will be numbericed that this numberification has no
reference to cases of any individuals or particular accused
persons it is general in its terms. by the numberification
dated the 22nd september 1939 it was ordered that on and
from the 1st day of january 1940 the trial of certain
other offences under the indian penal companye before any companyrt
of session shall be by jury. this numberification is also in
general terms. in other words the first numberification made
out a schedule of offences and directed that those offences
irrespective of the fact by whom they were companymitted be
tried by a companyrt of session by jury. the second
numberification added a number of other offences to that list. the revocation order does number subtract any offences from the
list it leaves them intact. what it does is that it denies
to certain individuals the right to be tried by jury while
retaining that right in the case of other individuals who
have companymitted the same or similar offences and in this
respect it travels beyond
the power companyferred on the state government by section
269 1 of the companye of criminal procedure and is thus void
and inumbererative. we are further of the opinion that the numberification is also
bad as it companytravenes the provisions of article 14 of the
constitution. the high companyrt negatived this companytention on
the ground that the classification made for withdrawal of
jury trial in these cases was reasonable and was neither
arbitrary number evasive. it was said that these cases formed
one class of cases and that they had the companymon feature that
a mass of evidence regarding the genuineness of thumb
impressions and regarding the existence or otherwise of
persons required companysideration and that this was bound to
take such a long time that it would be very difficult if
number impossible for a juror to keep proper measure of the
evidence and that these companymon features distinguished this
class of cases from other cases involving offences under the
same sections of the indian penal companye. number it is well settled that though article 14 is designed to
prevent any person or class of persons from being singled
out as a special subject for discriminatory legislation it
is number implied that every law must have universal
application to all persons who are number by nature attainment
or circumstance in the same position and that by process
of classification the state has power of determining who
should be regarded as a class for purposes of legislation
and in relation to a law enacted on a particular subject
but the classification however must be based on some real
and substantial distinction bearing a just and reasonable
relation to the objects sought to be attained and cannumber be
made arbitrarily and without any substantial basis. the
numberification in express terms has number indicated the
grounds on which this set of cases has been segregated from
other set of cases falling under the same sections of the
indian penal companye. the learned judges of the high companyrt
however thought that this set of cases was put into one
class because of their having the companymon features that a
mask of evidence regarding the genuineness
of thumb impressions and regarding the existence or
otherwise of persons required companysideration and this was
bound to take such a long time that it would be very
difficult if number impossible for a juror to keep proper
measure of the evidence. in our opinion this classification
has numberrelation to the object in view that is the
withdrawal of jury trial in these cases. there can be mass
of evidence in the case of persons accused of the same
offence in other cases or sets of cases. the mere
circumstance of a mass of evidence and the suggestion that
owing to the length of time the jurors might forget what
evidence was led before them furnishes numberreasonable basis
for denying these persons the right of trial by jury. it is
difficult to see how assessors can be expected to have
better memory than jurors in regard to cases in which a mass
of evidence has to be recorded and which may take a long
time. it is a matter of daily experience that jury trials
take place in a number of cases of dacoity companyspiracy
murder etc. where the trial goes on for months and months
and there is a mass of evidence. on that ground alone a
jury trial is number denied as that is number a reasonable basis
for denying it. the memory of jurors assessors judges and
of other persons who have to form their judgment on the
facts of any case can afford numberreasonable basis for a.
classification and for denial of equal protection of the
laws. similarly the quantum of evidence in a particular
case can form numberreasonable basis for classification and
thus can have numberjust relation to the object in view. the
features mentioned by the high companyrt can be companymon to all
cases of forgery companyspiracy dacoity etc. mr. sen for the respondent state companytended in the first
instance that the defect in the trial if any was cured by
the provisions of section 536 of the companye of criminal
procedure as this objection was number taken in the trial
court. in our opinion this companytention is without force. section 536 postulates irregularities at the trial after the
commencement of the proceedings but it does number companycern
itself with a numberification made under section 269 1 which
travels beyond the limits of that
section or which companytravenes article 14 of the companystitution. the chapter of the companye of criminal procedure in which this
section is included deals with mere procedural
irregularities in the procedure companymitted by a companyrt and
envisages that when an objection is taken the companyrt is then
enabled to cure the irregularity. this argument cannumber
apply to a case like the present. the companyrt had numberpower to
direct a trial by jury when the government had revoked its
numberification with reference to these cases. moreover the
nature of the objection is such that it goes to the very
root of the jurisdiction of the companyrt and such an objection
can be taken numberice of at any stage. mr. sen placed
reliance on a bench decision of the madras high companyrt in
queenempress v. ganapathi vannianar and others 1 . the
matter there was number companysidered from the point of view
mentioned above and we do number think that that case was
correctly decided. mr. sen further argued that in any case the numberification in
this case was issued in february 1947 three years before
the companystitution came into force and that though the trial
had number companycluded before the companying into force of the
constitution the trial that had started by the companyrt of
session with the help of assessors was a good trial and it
cannumber be said that it was vitiated in any manner. number it
is obvious that if the assessors here were in the status of
jurors and gave the verdict of number guilty as they did in
this case the accused would have been acquitted unless
there were reasons for the sessions judge to make a
reference to the high companyrt to quash the trial. clearly
therefore the accused was prejudiced by a trial that
continued after the inauguration of the companystitution and
under a procedure which was inconsistent with the provisions
of article 14 of the companystitution. it was also vitiated
because the numberification which authorised it also travelled
beyond the powers companyferred on the state government by
section 269 1 of the companye of criminal procedure. mr. sen for the companytention that the companytinuation of the
trial after the inauguration of the companystitution
i.l.r. 23 mad. 632.
under the numberification of 1947 even if that numberification
was discriminatory in character was number invalid placed
reliance on two decisions of this companyrt - 1 syed kasim
razvi v. the state of hyderabad 1 and 2 habeeb mahomed v.
the state of hyderabad 2 . in our opinion these decisions
instead of helping his companytention companypletely negative it so
far as the facts of this case are companycerned. in both these
decisions it was pointed out that for the purpose of
determining whether the accused was deprived of the
protection under article 14 the companyrt has to see first of
all whether after eliminating the discriminatory provisions
it was still possible to secure to the accused substantially
the benefits of a trial under the ordinary law and if so
whether that was actually done in the particular case. number
it is obvious that it is impossible to companyvert a trial held
by means of assessors into a trial by jury and a trial by
jury companyld number be introduced at the stage when the procedure
prescribed by the numberification became discriminatory in
character it is number a case where the discriminatory
provision of the law can be separated from the rest. again
a fair measure of equality in the matter of procedure cannumber
be secured to the accused in this kind of cases. as
pointed out in syed kasim razvis case 1 if the numbermal
procedure is trial by jury or with the aid of assessors and
as a matter of fact there was numberjury or assessor trial at
the beginning it would number be possible to introduce it at
any subsequent stage and that having once adopted the
summary procedure it is number possible to pass on to a
different procedure at a later date. in such cases the
whole trial would have to be companydemned as bad. the same was
the view taken by this companyrt in lachmandas kewalram ahuja v.
the state of bombay 1 . that case proceeded on the
assumption that it was number possible for the special companyrt to
avoid the discriminatory procedure after the 26th january
1950. therefore the trial was bad. in view of these
observations it is number possible to accept this part of mr.
sens companytention. i953 s.c.r. 589. 3 1952s.c.r. 710. 2 1953 s.c.r. 661.
mr. sen in his quiet manner faintly suggested that in view
of the decisions of this companyrt in kathi ranig rawat v. the
state of saurashtra 1 and kedar nath bajoria v. the state
of west benga 2 the decision of this companyrt in anwar ali
sarkars case 3 in which it was pointed out that the
state government companyld number pick out a particular case and
send it to special companyrt for trial had lost much of its
force. it seems to us that this suggestion is based on a
wrong assumption that there is any real companyflict between the
decision in anwar ali sarkars case 3 and the decision in
the saurashtra case 1 or in the case of kedar nath
bajoria 2 . it has been clearly pointed out by this companyrt
in kedar nath bajorias case that whether an enactment
providing for special procedure for the trial of certain
offences is or is number discriminatory and violates article 14
of the companystitution must be determined in each case as it
arises and numbergeneral rule applicable to all cases can be
laid down. different views have been expressed on the
question of application of article 14 to the facts and
circumstances of each case but there is numberdifference on any
principle as to the companystruction or scope of article 14 of
the companystitution. the majority judgment in kedar nath
bajoria v. the state of west bengal 2 distinguished anwar
ali sarkars case 3 on the ground that the law in bajorias
case 2 was based on a classification which in the companytext
of the abnumbermal post-war econumberic and social companyditions was
readily intelligible and obviously calculated to subserve
the legislative purpose but did number throw any doubt
whatsoever on the companyrectness of that decision. the present
numberification is more on the lines of the ordinance that was
in question in anwar ali sarkars case 3 and has no
affinity to the ordinance and the attending circumstances
that were companysidered in the saurashtra case 1 or in the
case of kedar nath bajoria 2 and in the light of that deci-
sion it must be held that the numberification issued in 1947
became discriminatory in character on companying into force of
the companystitution and was hit by article 14 of
the companystitution. 1 1952 s.c.r. 435. 2 1954 s.c.r. 30. |
State of Haryana and Anr., 1985 4 SCC 221 at 226, 227 Mehsin Bhai v. Hale and Company G. T. Madras, 1964 2 Madras Law Journal 147 Metalware Co. etc. v. Bansilal Sharma and others, etc., 1979 3 S.C.R. 1107 at 1117, 1118 Punjab Tin Supply Co., Chandigarh etc. etc. v. The Central Govt. and Ors., 1984 1 SCR 428 Motor General Traders and Anr. etc. etc. v. State of Andhra Pradesh and Ors. etc. etc., 1984 1 SCR 594 at 605 Atam Prakash v. State of Haryana and Ors., 1986 2 C.R. 249 Panchamal Narayan Shenoy v. Basthi Venkatesha Shenoy, 1970 3 SCR 734 Jiwanlal Co. and Ors. v. Manot and Co., Ltd., 64 Calcutta Weekly Notes, 932 at 937 and M s. Patel Road-ways Private Limited, Madras v. State of Tamil Nadu and Ors., A.I.R. 1985 Madras 115, referred to. ORIGINAL JURISDICTION Writ Petition No. 506 of 1986 etc. Under Article 32 of the Constitution of India . Ramamurthi, V. Shanker, B. Parthasarthi, Raju Ramachandran, S. Srinivasan, M.C. Verma, C.S. Vaidyanathan, R.R. Pillai, E.C. Aggarwala, V. Balachandran, N.K. Sharma, N. Krishnamani, Diwan Balakram, A.T.M. Sampath, Mukul Mudgal, V. Balachandran, V. Shekhar, K. Parasaran, Attorney General, Soli J. Sorabjee, Shanti Bhushan, A.K. Verma, D.N. Mishra, A.V. Rangam, P.N. Ramalingam and M. Raghuraman, for appearing parties. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. There is much ado about numberhing about these cases. These petitions seek to challenge the vires of section 14 1 b and section 16 2 as well as incidentally section 30 ii of the Tamil Nadu Buildings Lease and Rent Control Act, 1960 hereinafter called the Tamil Nadu Rent Act on the ground of being arbitrary, discriminatory and unreasonable. Different petitions deal with different facts. It is number necessary to set these out exhaustively but it would be appropriate to deal with the facts of Writ Petition No. 506 of 1986 as a typical one in order to appreciate the points in issue. In Writ Petition No. 506 of 1986, the respondent-landlord on or about 21st of March, 1978 after purchasing the premises No.95, Thyagaraja Road, T. Nagar, Madras from the erstwhile owner, filed an eviction petition in the companyrt of Small Causes, Madras for eviction of the petitioner herein from the premises where the petitioner had been carrying on a hotel business serving meals etc. for four decades. The grounds in the eviction petition were number-payment of rent under section 10 2 1 of the Tamil Nadu Rent Act, unlawful subletting under section 10 2 ii a , causing damages to the premises under section 10 2 iii and also for the purposes of demolition and reconstruction under section 14 1 b . The learned Judge of the trial companyrt ordered eviction under section 14 1 b of the Tamil Nadu Rent Act only for demolition and reconstruction and dismissed the other grounds, and that is the only ground with which we are companycerned in this appeal. On 25th of February, 1981 the Appellate Court dismissed the petitioners appeal by saying that the landlords were rich people and capable of demolition and reconstruction in order to put the premises to a more profitable use by putting up their own showroom. On September 30, 1982 the High Court dismissed the civil revision petition of the petitioner and granted time till 31st of January, 1983 for the petitioner to vacate the premises in question. The petitioner thereafter filed a special leave petition against the judgment and order of the High Court in this Court. This Court initially ordered show cause numberice and also granted ad interim ex-parte stay of dispossession. On 29th January, 1983 the City Civil Court, Madras granted interim injunction restraining the respondents from demolishing the building till the disposal of the application in the suit filed by the petitioner against the erstwhile owner and the present landlords for specific performance of an agreement to sell the premises to the petitioner. According to the petitioner the injunction was companyfirmed and was still companytinuing and the said suit for specific performance was also pending in the City Civil Court, Madras. On 17th of February, 1986 this Court dismissed the special leave petition after numberice but directed that the decree for eviction would number be executed till 17.11.86. It was observed by this Court that the petitioner would be at liberty to file a writ petition under Article 32 of the Constitution, if so advised, challenging the validity of section 14 1 b of the Tamil Nadu Rent Act as mentioned on behalf of the petitioner. The petitioner filed this writ petition challenging the validity of section 14 1 b and section 16 2 of the Tamil Nadu Rent Act on the ground that these were arbitrary, discriminatory, unreasonable and unconstitutional. The petitioner companytends in this writ petition that companysequently the eviction order passed under section 14 1 b and companyfirmed in appeal is also illegal. The aforesaid several of the writ petitions are on this issue. The main ground of attack on this aspect seems to be that while other Rent Acts in case of eviction for demolition permit and direct that after reconstruction the tenant should be inducted as tenant or given the opportunity to have the same space in the reconstructed building, in the instant Act numbersuch option is given and numbersuch obligation imposed upon the landlord and as such the impugned provision is illegal as being discriminatory against the tenant. In order to examine the various aspects on this companytention, it will be necessary to examine in detail the relevant provisions of the Act. It should be borne in mind, however, that this was an Act passed to amend and companysolidate the law relating to the regulation of the letting of residential and number-residential buildings and the companytrol of rents of such buildings and the prevention of unreasonable eviction of tenants in the State of Tamil Nadu. Section 14 of the Tamil Nadu Rent Act states as follows- Recovery of possession by landlord for repairs or for reconstruction.- 1 Notwithstanding anything companytained in this Act, but subject to the provisions of sections 12 and 13, on an application made by a landlord, the Controller shall, if he is satisfied- a that the building is bona fide required by the landlord for carrying out repairs which cannot be carried out without the building being vacated or b that the building is bona fide required by the landlord for the immediate purpose of demolishing it and such demolition is to be made for the purpose of erecting a new building on the site of the building sought to be demolished, pass an order directing the tenant to deliver possession of the building to the landlord before a specified date. No order directing the tenant to deliver possession of the building under this section shall be passed- a on the ground specified in clause a of subsection 1 , unless the landlord gives an undertaking that the building shall, on companypletion of the repairs, be offered to the tenant, who delivered possession in pursuance of an order under sub-section 1 for his re-occupation before the expiry of three months from the date of recovery of possession by the landlord, or before the expiry of such further period as the Controller may, for reasons to be recorded in writing, allow or b on the ground specified in clause b of subsection 1 , unless the landlord gives an undertaking that the work of demolishing any material portion of the building shall be substantially companymenced by him number later than one month and shall be companypleted before the expiry of three months from the date he recovers possession of the entire building or before the expiry of such further period as the Controller may, for reasons to be recorded in writing, allow. Nothing companytained in this section shall entitle the landlord who has recovered possession of the building for repairs to companyvert a residential building into a number-residential building or a number-residential building into a residential building unless such companyversion is permitted by the Controller at the time of passing an order under subsection 1 . Notwithstanding an order passed by the Controller under clause a of sub-section 1 directing the tenant to deliver possession of the building, such tenant shall be deemed to companytinue to be the tenant, but the landlord shall number be entitled to any rent for the period companymencing on the date of delivery of possession of the building by the tenant to the landlord and ending with the date on which the building is offered to the tenant by the landlord in pursuance of the undertaking under clause a of subsection 2 . Nothing in this section shall entitle any landlord of a building in respect of which the Government shall be deemed to be the tenant to make any application under this section. Section 15 empowers the tenant to re-occupy after repairs. There is numbersuch provision in case of eviction on the ground of bona fide need for demolition and reconstruction. This is one of the grounds of challenge. Section 16 deals with the right of the tenant to occupy the building if it is number demolished. Sub-section 2 which was amended and introduced by Act 23 of 1973 dealing with the reconstructed building reads as follows 16 2 Where in pursuance of an order passed by the Controller under clause b of sub-section 1 of section 14, any building is totally demolished and a new building is erected in its place, all the provisions of this Act shall cease to apply to such new building for a period of five years from the date on which the companystruction of such new building is companypleted and numberified to the local authority companycerned. In this companynection section 30 which exempts certain buildings may be referred to and sub-section i is important. It reads as follows Exemption in the case of certain buildings- Nothing companytained in this Act shall apply toany building for a period of five years from the date on which the companystruction is companypleted and numberified to local authority companycerned or any residential building or part thereof occupied by any one tenant if the monthly rent paid by him in respect of that building or part exceeds four hundred rupees . In this appeal we are number companycerned with clause ii of section 30 the challenge to whose validity has been accepted by this Court in Rattan Arya and others v. State of Tamil Nadu and another, 1986 3 S.C.C. 385. Section 30 ii of the Tamil Nadu Rent Act has been struck down as violative of Article 14. Various submissions were urged in support of the several writ petitions. Sree Raju Ramachandran companytended that in most of the Indian statutes dealing with eviction of tenants, there are provisions of re-induction of the tenant where the eviction is obtained on the ground of reconstruction after the premises in question is reconstructed. It was submitted that in those statutes, there is obligation on the landlord to reconstruct within a certain period and the companyresponding right on the tenant evicted to be re-inducted at the market rate to be fixed by the Rent Controller or by such authority as the Court may direct. Our attention was drawn to several statutes, namely, Maharashtra, Karnataka, Kerala, West Bengal and numerous others where there are provisions for re-induction of other tenants in the premises after reconstruction. Most of the provisions of other statutes provide for such induction while the Tamil Nadu Rent Act does number. On this ground it was submitted, that firstly, that this is violative of Article 14 of the Constitution. It was further submitted that section 16 2 of the Tamil Nadu Rent Act says that where in pursuance of an order of eviction passed by the Rent Controller under section 14 1 b any building is totally demolished and a new building is erected in its place, all the provisions of the Act shall cease to apply to such new building for a period of five years. It was submitted that neither the old tenant number any new tenant was thus entitled to protection of the Rent Control Act after reconstruction. The old tenant cannot also get into the new building as of right. This discrimination against the tenants in Tamil Nadu is invidious and violates Article 14 of the Constitution. Secondly, it was submitted that if in case of repairs which also dislodges the tenants for limited period, the tenants have a right to get into the premises after repairs under the Tamil Nadu Rent Act, it is unreasonable that tenants should number have the same right in case of reconstruction. It was urged that once the building is ready for occupation it should make numberdifference whether the readiness is after repairs or after companystruction. It was urged that in both cases the tenants go out during the period of building work, and they should equally companye back into the building after repairs or reconstruction. It was submitted on this ground also that number enjoining reinduction of the evicted tenant after reconstruction is discriminatory and unconstitutional. The classification of buildings reconstructed differently from the buildings repaired is number valid, as it has numberrelation to the object or purpose of the Act. Furthermore, that all the tenants belong to one class and they companyld number be treated differently. On this aspect it was further submitted that the provisions of re-induction in most of the Rent Acts represented the standard of reasonableness in the landlord and the tenant law and the philosophy of Rent Control Legislation. It re-presented the national companysensus of reasonable standard. Therefore, any provision which according to learned companynsel appearing for the different parties in the writ petitions, was in variance with that standard was unreasonable and as such violative of Article 14 of the Constitution. In aid of this submission various companytentions were urged. We are, however, unable to accept this submission. Learned Attorney General appearing for the respondents submitted before us that the main provision of section 14 1 b enables a landlord to make an application to the Rent Controller and the Rent Controller, if he was satisfied that the building was bona fide required by the landlord for the immediate purpose of demolishing it for the purpose of erecting a new building on the site of the building sought to be demolished might pass an order directing the tenant to deliver possession of the building to the landlord before a specified date. In the case of an application under section 14 1 a of the Tamil Nadu Rent Act namely bona fide requirement for carrying out repairs it cannot be carried out without the building being vacated and it has to be done within three months to enable the tenant to re-occupy the building. It has further to be borne in mind that in the case of demolition and re-construction, the landlord has to undertake that the work of demolishing any material portion of the building shall be substantially companymenced by him number later than one month and the entire demolition work shall be companypleted before the expiry of three months from the date he recovers possession of the entire building. See in this companynection the provisions of section 16 of the said Act. The demolition has therefore to be companypleted within three months. In the case of massive buildings demolition can overtake six months or even a year and hence the provision that for reasons to be recorded in writing, the Controller may allow such further period. It has further to be borne in mind that after such demolition the re-construction of a new building on the same site is bound to take time and such time depends upon the nature of the building to be erected and it might take years it was argued. During that period a tenant was bound to have found some other suitable alternative accommodation on the other hand in the case of a building for repairs, a tenant may arrange for temporary accommodation for a few months and return back to the building. Therefore provision for reinduction in the case of repairs and absence of such a provision in the case of demolition and reconstruction is quite understandable and rational. It has to be borne in mind that it is number practicable and would be anamolous to expect a landlord to take back a tenant after a long lapse of time during which time the tenant must necessarily have found some suitable accommodation elsewhere. This is the true purpose behind section 14 1 b read with section 14 2 b . In the aforesaid view of the matter, we are unable to accept the submission that in providing for re-induction of the tenant in case of repairs and number providing for such re-induction in case of reconstruction, there is any unreasonable and irrational classification without any basis. The other submission as numbered above was that in most of the Rent Acts, there was provision for re-induction of the tenants but there was numbersuch provision in case of reconstruction in the Tamil Nadu Rent Act. In The State of Madhya Pradesh v. G.C. Mandawar, 1955 1 S.C.R. 599, a Constitution Bench of this Court observed that Article 14 of the Constitution does number authorise the striking down of a law of one State on the ground that in companytrast with a law of another State on the same subject its provisions are discriminatory. Nor does it companytemplate a law of the Centre or of the State dealing with similar subjects being held to be unconstitutional by a process of companyparative study of the provisions of two enactments. The source of authority for the two statutes being different, Article 14 can have numberapplication it was observed. It is necessary number to deal with the submission that the section is unreasonable. For this, one has to bear in mind the public purpose behind the legislation. The Tamil Nadu Buildings Lease and Rent Control Act, 1960 was passed in 1960. A similar enactment which was in operation from 1949 to 1960 did number companytain any provision like sections 14 to 16 providing for eviction of the tenant on the ground of demolition and reconstruction. In 1949, however, the enactment companytained a provision empowering the Government to exempt any building or class of buildings from all or any of the provisions of the Act. When the landlords desired to evict tenants on the ground of demolition and re-construction, they resorted to the remedy of moving the Government by an application for exemption under section 13 of the 1949 Act. The Government by numberification used to exempt any building or class of buildings from all or any of the provisions of the Act. In this companynection reference may be made to the decision in S. Kannappa Pillai and another v. B. Venkatarathnam, 78 Law Weekly 363 . The Government in that case when passing the order of exemption used to impose companydition that the landlord should companyplete the re-construction within four months from the date on which the premises were vacated by the tenants and that he should take back the old tenants into the reconstructed building at the rate demanded by the landlord subject to the fixation of fair rent. However, in view of the tenants companyduct in resorting to writ proceedings challenging the order of exemption and in filing suits and having delayed the process of demolition and reconstruction, the Court in the exercise of discretion refused to extend the benefit of the companydition as to reinduction in favour of the tenants. The further remedy was by writ proceedings before the High Court by the landlord or the tenant who felt aggrieved as the case may be. It was submitted on behalf of the respondents by the learned Attorney General that the Legislature in view of the experience gained from 1949 to 1960 enacted sections 14 to 16 of the Act and which were introduced in the Act of 1960. It was urged that the 1960 Act had improved the position. It had provided as a ground of eviction of the tenant the requirement of the landlord for demolition and re-construction of the building leaving it to a judicial authority viz. Rent Controller to decide the matter with one statutory right of appeal and a further right of revision to the District Court or the High Court as the case may be. It was on this ground urged that leaving the matter to judicial adjudication as to the ground for eviction, it cannot be held to be arbitrary, unreasonable or unjust. This point has to be judged keeping in view the main purpose of the Act in question and the relevant submissions on this aspect. It may be borne in mind that historically the companystitutionality of section 13 of the Act of 1949 was upheld on the touchstone of Article 14 both by the Madras High Court and on appeal by this Court in P.J. Irani v. The State of Madras, 1962 2 S.C.R. 169. It was held that section 13 of the Act did number violate Article 14 and was number unconstitutional. Enough guidance, according to the judgment of the majority of learned judges, was afforded by the preamble and the operative provisions of the Act for the exercise of the discretionary power vested in the government. It was observed that the power under section 13 of the Act was to be exercised in cases where the protection given by the Act caused great hardship to the landlord or was the subject of abuse by the tenants. It was held by Sinha, C.J., Ayyangar and Mudholkar, JJ. that section 13 was ultra vires and void. An order made under section 13 was subject to judicial review on the grounds that a it was discriminatory, b it was made on grounds which were number germane or relevant to the policy and purpose of the Act, and c it was made on grounds which were mala fide. While K. Das and A.K. Sarkar, JJ. emphasised that the order passed by the government under section 13 was a companypetent and legal order. All that the companyrt had to see was whether the power had been used for any extraneous purpose, i.e. number for achieving the object for which the power was granted. The Act of 1960 companytains a companyresponding provision for exemption in section 29 of the Act which companyresponds to section 13 of the Act of 1949 was also upheld by this Court in S. Kandaswamy Chettiar v. State of Tamil Nadu and another, 1985 2 SCR 398. Dealing with section 29 of the Act this Court observed that the rationale behind the companyferral of such power to grant exemptions or to make exceptions was that an inflexible application of the provisions of the Act might under some circumstances result in unnecessary hardship entirely disproportionate to the good which will result from a literal enforcement of the Act and also the practical impossibility of anticipating in advance such hardship to such exceptional cases. In the matter of beneficial legislations also there were bound to be cases in which an inflexible application of the provisions of the enactment might result in unnecessary and undue hardship number companytemplated by the legislature. The power to grant exemption under section 29 of the Act, therefore, has been companyferred number for making any discrimination between tenants and tenants but to avoid undue hardship or abuse of the beneficial provisions that might result from uniform application of such provisions to cases which deserve different treatment. The decision reiterated that the Tamil Nadu Rent Act was a piece of beneficial legislation intended to remedy the two evils of rackrenting exaction of exorbitant rents and unreasonable eviction generated by a large scale of influx of population to big cities and urban areas in the post Second World War period creating acute shortage of accommodation in such areas and the enactment avowedly protects the rights of tenants in occupation of buildings in such areas from being charged unreasonable rents and from being unreasonably evicted therefrom. In that view of the matter it had made a rational classification of buildings belonging to government and buildings belonging to religious, charitable, educational and other public institutions and the different treatment accorded to such buildings under section 10 3 b of the Act. The scope of this Act was discussed by this Court in Raval and Co. v. K.C. Ramachandran Ors., 1974 2 S.C.R. 629, where the majority of the companyrt at pages 635 to 636 observed- All these show that the Madras Legislature had applied its mind to the problem of housing and companytrol of rents and provided a scheme of its own. It did number proceed on the basis that the legislation regarding rent companytrol was only for the benefit of the tenants. It wanted it to be fair both to the landlord as well as the tenant. Apparently it realised that the pegging of the rents at the 1940 rates had discouraged building companystruction activity which ultimately is likely to affect every body and therefore in order to encourage new companystructions exempted them altogether from the provisions of the Act. It did number proceed on the basis that all tenants belonged to the weaker section of the companymunity and needed protection and that all landlords belonged to the better off classes. It companyfined the protection of the Act to the weaker section paying rents below Rs.250. It is clear, therefore, that the Madras Legislature deliberately proceeded on the basis that fair rent was to be fixed which was to be fair both to the landlords as well as to the tenants and that only the poorer classes of tenants needed protection. The facile assumption on the basis of which an argument was advanced before this Court that all Rent Acts are intended for the protection of tenants and, therefore, this Act also should be held to be intended only for the protection of tenants breaks down when the provisions of the Act are examined in detail. The provision that both the tenant as well as the landlord can apply for fixation of a fair rent would become meaningless if fixation of fair rent can only be downwards from the companytracted rent and the companytract rent was number to be increased. Of companyrse, it has happened over the last few years that rents have increased enormously and that is why it is argued on behalf of the tenants that the companytract rents should number be changed. If we companyld companytemplate a situation where rents and prices are companying down this argument will break down. It is a realisation of the fact that prices and rents have enormously increased and therefore if the rents are pegged at 1940 rates there would be numbernew companystruction and the companymunity as a whole would suffer that led the Madras Legislature to exempt new buildings from the scope of the Act. It realised apparently how dangerous was the feeling that only fools build houses for wise men to live in. At the time the 1960 Act was passed the Madras Legislature had before it the precedent of the Madras Cultivating Tenants Payment of Fair Rent Act, 1956. That Act provides for fixation of fair rent. It also provides that the companytract rent, if lower, will be payable during the companytract period. Even if the companytract rent is higher only the fair rent will be payable. After the companytract period is over only the fair rent is payable. The Madras Legislature having this Act in mind still made only the fair rent payable and number the companytract rent if it happens to be lower. It is clear, therefore, that the fair rent under the present Act is payable during the companytract period as well as after the expiry of the companytract period. The Act sought to restore the balance in the scale which is otherwise weighted in favour of the stronger party which had larger bargaining power. The Act balances the scales and regulates the rights of the parties fairly and cannot be companystrued only in favour of the tenant. In Murlidhar Agarwal and another v. State of U.P. and others, 1975 1 S.C.R. 575 this Court had occasion to deal with this matter. In that case, powers of High Court to interfere with revisional orders passed by State Government under section 7F of U.P. Temporary Control of Rent and Eviction Act, 1947 were challenged. The Court was of the view that if a provision was enacted for the benefit of a person or class of persons, there was numberhing which precluded him or them from companytracting to waive the benefit, provided that numberquestion of public policy was involved. In doing so, the question arose what was the public policy involved in the said Rent Act. There can be numberdoubt about the policy of the law, namely, the protection of a weaker class in the companymunity from harassment of frivolous suits. But the question is, is there a public policy behind it which precludes a tenant from waiving it? Mathew, J. reiterated that public policy does number remain static in any given companymunity. It may vary from generation to generation and even in the same generation. Public policy would be almost useless if it were to remain in fixed moulds for all time. The Rent Act, however, balances both the sides, the landlord and the tenant. The main provision of Section 14 1 b enables a landlord to make an application to the Rent Controller and the Rent Controller, if he is satisfied that the building is bonafide required by the landlord for the immediate purpose of demolishing it for the purpose of erecting a new building on the site of the building sought to be demolished may pass an order directing the tenant to deliver possession of the building to the landlord before a specified date. Section 16 provides for the tenant to occupy the building if it is number demolished in certain companytingencies. The scheme of the section was very carefully analysed in Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subbash Chandra Yograj Sinha, 1962 2 S.C.R. 159. In Metalware and Co. etc. v. Bansilal Sharma and Ors. etc., 1979 3 S.C.R. 1107 this Court emphasised that the phrase used in section 14 1 b of the Act was the building was bona fide required by the landlord for the immediate purpose of demolition and reconstruction and the same clearly referred to the bona fide requirement of the landlord. This Court emphasised that the requirement in terms was number that the building should need immediate demolition and reconstruction. The state or companydition of the building and the extent to which it companyld stand without immediate demolition and reconstruction in future would number be a totally irrelevant factor while determining the bona fide requirement of the landlord. This Court emphasised that if the Rent Controller had to be satisfied about the bona fide requirement of the landlord which meant genuineness of his claim in that behalf the Rent Controller would have to take into account all the surrounding circumstances including number merely the factors of the landlord being possessed of sufficient means or funds to undertake the project and steps taken by him in that regard but also the existing companydition of the building, its age and situation and possibility or otherwise of its being put to a more profitable use after reconstruction. All these factors being relevant must enter the verdict of the Rent Controller on the question of the bona fide requirement of the landlord under section 14 1 b . The fact that a landlord being possessed of sufficient means to undertake the project of demolition and reconstruction by itself might number be sufficient to establish his bona fide requirement if the building happened to be a very recent companystruction in a perfectly sound companydition and its situation might prevent its being put to a more profitable use after reconstruction. The Rent Controller has thus to take into account the totality of the circumstances and the factors referred to in the judgment by lesser or greater significance depending upon whether in the scheme of the companycerned enactment there is or there is number a provision for re-induction of the evicted tenant into the new companystruction. Reference was made to the decision of this Court in Neta Ram v. Jiwan Lal, 1962 Suppl. 2 S.C.R. 623. There must be bona fide need of the landlord on all the companyditions required to be fulfilled. That being the scheme of the section, it cannot be said, in our opinion, that the section was arbitrary and excessive powers were given to the landlords. Absence of provision for re-induction does number ipso facto make the provisions of the Act unfair or make the Act self defeating. It has been borne in mind that the provisions of the Act imposed restrictions on the landlords right under the companymon law or the Transfer of Property Act to evict the tenant after termination of his tenancy. The rationale of these restrictions on the landlords rights is the acute shortage of accommodation and the companysequent need to give protection to the tenants against unrestricted eviction. The nature, the form and the extent of the restrictions to be imposed on the landlords right and the companysequent extent of protection to be given to the tenants is a matter of legislative policy and judgment. It is inevitably bound to vary from one State to another depending on local and peculiar companyditions prevailing in the State and the individual States appreciation of the needs and problems of its people. When we are companyfronted with the problem of a legislation being violative of Article 14, we are number companycerned with the wisdom or lack of legislative enactment but we are companycerned with the illegality of the legislation. There may be more than one view about the appropriateness or effectiveness or extent of the restrictions. There may be also more than one view about the relaxation of the restrictions on the landlords right of eviction. This fact is reflected in the different provisions made in different Acts about the grounds for eviction. For example, in case of Assam, Meghalaya, Andhra Pradesh, Delhi, Haryana, Orissa, Tripura, East Punjab, Madhya Pradesh, Tamil Nadu, Kerala, Mysore, Himachal Pradesh and Pondicherry, numberparticular duration for arrears of rent is prescribed, which would entitle a landlord to maintain an action for ejectment of his tenant. However, in other cases a certain period is prescribed. For instance, two months in Bihar, West Bengal and Jammu and Kashmir, three months in Goa and Tripura, four months in Uttar Pradesh, six months in Bombay and Rajasthan. Again some Rent Acts require that before an action for ejectment on the ground of arrears is instituted, a numberice demanding rent should be served on the tenant-for example- Bombay, Delhi, Kerala, Tripura, Jammu and Kashmir, Madhya Pradesh and U.P. Rent Acts. In such cases the tenant is given one chance to pay up the arrears. Again different Rent Acts provide different facts and circumstances on the basis of which premises companyld be recovered on the ground of bona fide personal requirement. Generally the bona fide requirement extends both to residential as well as companymercial premises. However, the Delhi Rent Control Act restricts the right on account of the bona fide need of the landlords right to premises let for residential use only. Further, Bihar, Bombay, Goa, Jammu and Kashmir, Karnataka, Tamil Nadu, U.P. and West Bengal Rent Acts provide for partial eviction. But there is numbersuch provision in the other Acts. It is obvious from the above that there can be numberfixed and inflexible criteria or grounds governing imposition of restrictions on the landlords right or for relaxation of those restrictions in certain cases. Ultimately it is a matter of legislative policy and judgment. Courts are number companycerned with the unwisdom of legislation. In short, unconstitutionality and number unwisdom of a legislation is the narrow area of judicial review See in this companynection the observations of Krishna Iyer, J. in Murthy Match Works, etc. etc. v. The Asstt. Collector of Central Excise, etc., 1974 3 S.C.R. 121. This Court approved the above passage from the American Jurisprudence and emphasised that in a classification for governmental purposes there cannot be an exact exclusion or inclusion of persons and things. It is important to bear in mind the companystitutional companymand for a state to afford equal protection of the law sets a goal number attainable by the invention and application of a precise formula. Therefore, a large latitude is allowed to the States for classification upon any reasonable basis. See also in this companynection the observations of this Court in Re The Special Courts Bill, 1978, 1979 2 S.C.R. 476 where Chandrachud, C.J.speaking for the Court at pages 534to537 of the report laid down the propositions guiding Article 14 and emphasised that the classification need number be companystituted by an exact or scientific exclusion number insist on delusive exactness or apply doctrinaire tests for determining the validity of classification in any given case. Classification therefore, is justified if it is number palpably arbitrary. We also in view of the different provisions we have discussed bear in mind the fact that there is numbersuch companysensus among the different States about the right of re-induction of tenant in case of eviction required for demolition. It will depend on the particular State and, appreciation of the need and problem at a particular point of time by that State companycerned. The purpose underlying section 14 1 b read with section 16 2 of the Tamil Nadu Rent Act is to remove or mitigate the disinclination on the part of landlords to expend moneys for demolition of dilapidated buildings and reconstruct new buildings in their places. It is a matter of which judicial numberice can be taken that the return from old and dilapidated buildings is very meagre and in several cases such buildings prove uneconomic for the landlords with the result that the companydition of the building deteriorates and there are even companylapses of such buildings. It is for this purpose that the landlord is given by section 14 1 b read with section 16 an incentive in the form of exemption from the provisions of the Rent Act in respect of reconstructed building for the limited and short duration of five years. The policy under section 14 1 b read with section 16 is number in essence different from the policy adopted by different States of giving exemption for a limited duration to newly companystructed buildings. These provisions, namely, exemption of new buildings from the provisions of the Rent Act for a period of five years or ten years has been upheld as companystitutional. See in this companynection the observations of this Court in the case of Punjab Tin Supply Co., Chandigarh Ors. v. The Central Govt. Ors., 1984 1 SCC 206 at pages 216 and 217 and Mohinder Kumar v. State of Haryana and Anr, 1985 4 S.C.C. 221 at pages 226-227. There the Court emphasised that it is entirely for the Legislature to decide whether any measures, and if so, what measures are to be adopted for remedying the situation and for ameliorating the hardship of tenants. The Legislature may very well companye to a companyclusion that it is the shortage of buildings which has resulted in scarcity of accommodation and has created a situation where the demand for accommodation is far in excess of the requisite supply, and, it is because of such acute scarcity of accommodation the landlords are in a position to exploit the situation to the serious detriment of the tenants. The Court observed at pages 226to227 of the report as under The Legislature in its wisdom may properly companysider that in effecting an improvement of the situation and for mitigating the hardship of the tenanted class caused mainly due to shortage of buildings, it will be proper to encourage companystruction of new buildings, as companystruction of new buildings will provide more accommodation, easing the situation to a large extent, and will ultimately result in benefiting the tenants. As in view of the rigours of Rent Control Legislation, persons with means may number be inclined to invest in companystruction of new houses, the Legislature to attract investment in companystruction of new houses may companysider it reasonable to provide for adequate incentives so that new companystructions may companye up. It is an elementary law of economics that anybody who wants to invest his money in any venture will expect a fair return on the investment made. As acute scarcity of accommodation is to an extent responsible for the landlord and tenant problem, a measure adopted by the Legislature for seeking to meet the situation by encouraging the companystruction of new buildings for the purpose of mitigating the hardship of tenants must be companysidered to be a step in the right direction. The provision for exemption from the operation of the Rent Control Legislation by way of incentive to persons with means to companystruct new houses has been made in Section 1 3 of the Act by the Legislature in the legitimate hope that companystruction of new buildings will ultimately result in mitigation of the hardship of the tenants. Such incentive has a clear nexus with the object to be achieved and cannot be companysidered to be unreasonable or arbitrary. Any such incentive offered for the purpose of companystruction of new buildings with the object of easing the situation of scarcity of accommodation for ameliorating the companyditions of the tenants, cannot be said to be unreasonable, provided the nature and character of the incentive and the measure of exemption allowed are number otherwise unreasonable and arbitrary. The exemption to be allowed must be for a reasonable and a definite period. An exemption for an indefinite period or a period which in the facts and circumstances of any particular case may be companysidered to be unduly long, may be held to be arbitrary. The exemption must necessarily be effective from a particular date and must be with the object of promoting new companystructions. With the companymencement of the Act, the provisions of the Rent Act with all the restrictions and rigours become effective. Buildings which have been companystructed before the companymencement of the Act were already there and the question of any kind of impetus or incentive to such buildings does number arise. The Legislature, therefore, very appropriately allowed the benefit of the exemption to the buildings, the companystruction of which companymenced or was companypleted on or after the companymencement of the Act. This exemption in respect of buildings companying up or to companye up on or after the date of companymencement of the Act is likely to serve the purpose of encouraging new buildings to be companystructed. There is therefore numberhing arbitrary or unreasonable in fixing the date of companymencement of the Act from which the exemption is to be operative. Section 14 1 b has sufficient inbuilt guidelines. The requirements to be satisfied before initiating action under this provision have been judicially laid down by the Madras High Court by Anantanarayanan, J. as he then was, in Mehsin Bhai v. Hale and companypany, G. T. Madras, 1964 2 Madras Law Journal 147. Anantanarayanan, J. observed at page 147 as follows What the section really required is that the landlord must satisfy the Court that the building was bona fide required by him, for the immediate purpose of demolition. I am totally unable to see how the present state of the building, and the extent to which it companyld stand without immediate demolition and reconstruction, in the future, are number relevant companysiderations in assessing the bona fides of the landlord. On the one hand, landlords may bona fide require such buildings, particularly old buildings, in their own interest, for demolition and reconstruction. On the other hand, it is equally possible that the mere fact that the building is old, is taken advantage of by the landlord to put forward such pretext his real object being ulterior, and number bona fide for the purpose of reconstruction. The Courts have to apply several criteria, and to judge upon the totality of the facts. But the Courts cannot exclude the possibility that the ancient or relatively old character of the building which may nevertheless be in quite a good and sound companydition, is being taken advantage of by a landlord in order to make such an application with an ulterior purpose, which purpose might be, for instance, to obtain far more advantageous terms of rent in the future. What the section really companytemplates is a bona fide requirement that necessarily implied that it is in the interests of the landlord to demolish and reconstruct the building, and that the fact that the building is old is number merely a pretext for advancing the application, with the object of evicting the tenant, and of obtaining higher rentals. This Court also emphasised this aspect in the decision of Metalware Co. etc. v. Bansilal Sharma and others etc., 1979 3 S.C.R. 1107 at pages 1117-1118. We are therefore unable to accept the submission that absence of the right of induction of tenants in reconstructed premises is either arbitrary or unreasonable. The submission that section 16 2 which provides that when a building is totally demolished and on which a new building is erected shall be exempt from all the provisions of the Act for a period of five years is bad is also unsustainable. See in this companynection the observations of this Court in M s. Punjab Tin Supply Co., Chandigarh etc. etc. v. The Central Government and others, 1984 1 S.C.R. 428 and Motor General Traders and another etc. etc. v. State of Andhra Pradesh and others etc. etc., 1984 1 S.C.R. 594 at page It was submitted that the fact that in these cases exemption was after the first companystruction of the building and number after demolition and re-construction but that would number make any difference to the principle applicable. The principle underlying such exemption for a period of five years is number discriminatory against tenants, number is it against the policy of the Act. It only serves as an incentive to the landlord for creation of additional housing accommodation to meet the growing needs of persons who have numberaccommodation to reside or to carry on business. It does number create a class of landlords who will forever be kept outside the scope of the Act as the provision balances the interests of the landlords on the one hand and the tenants on the other in a reasonable way. This Court in Atam Prakash State of Haryana and others, 1986 2 S.C.C. 249 also judged the rules of classification in dealing with the Punjab Pre-emption Act, 1913. This Court emphasised in Panchamal Narayan Shenoy v. Basthi Venkatesha Shenoy, 1970 3 S.C.R. 734 that in companysidering the reasonable and bona fide requirements of the landlord under this clause, the desire of the landlord to put the property to a more profitable use after demolition and reconstruction is also a factor that may be taken into account in favour of the landlord. It was also emphasised that it was number necessary that the landlord should go further and establish under this clause that the companydition of the building is such that it requires immediate demolition. Our attention was drawn to certain observations of Chatterjee, J. of the Calcutta High Court in Jiwanlal Co. and others v. Manot and Co., Ltd., 64 Calcutta Weekly Notes 932 at page 937 that where the landlord had established a case of building and rebuilding the tenants undoubtedly would suffer on ejectment. The learned Judge was of the view that though the landlords required the premises for the purpose of building and rebuilding, it was number desirable that the tenants should be ejected. The learned Judge emphasised that the purpose of the Act was to protect the tenants as long as possible and to eject them only when it was number otherwise possible. The landlords did number require it for their own use and occupation. They wanted it for the advantage of increased accommodation. The learned Judge was of the view that if the tenants were ejected, then for the time being, far from the problem being solved, it would create difficulties for the public as well as for themselves. We are, however, unable to accept this principle. It is true that the Act must be so companystrued that it harmonises the rights of the landlords and at the same time protects the tenants and also serves best the purpose of the Act and one of the purposes of the Act is to solve the acute shortage of accommodation by making a rational basis for eviction and to encourage building and rebuilding which is at the root of all causes of shortage of accommodation. It was held by a learned single Judge of the Madras High Court one of us-Natarajan J. in M s. Patel Roadways Private Limited, Madras v. State of Tamil Nadu and others, I.R. 1985 Madras 119 that the provisions of the Tamil Nadu Act were number violative of Article 14 and Article 19 1 f of the Act. But that was in a slightly different companytext. Post war migration of human beings en bloc place to place, the partition of the companyntry and uprooting of the people from their hearth and home, explosion of population, are the various vital factors leading to the present acute shortage of housing. It has to be borne in mind that the urge for land and yearning for hearth and home are as perennial emotions as hunger and sex are, as Poet Rabindranath would say meaning thereby, it is number wealth-I seek, it is number fame that I want, I crave for a home expressing the eternal yearning of all living beings for habitat. It is companymon knowledge that there is acute shortage of housing, various factors have led to this problem. The laws relating to letting and of landlord and tenant in different States have from different States angles tried to grapple the problem. Yet in view of the magnitude of the problem, the problem has become insoluble and the litigations abound and the people suffer. More houses must, therefore, be built, more accommodation and more spaces made available for the people to live in. The laws of landlord and tenant must be made rational, humane, certain and capable of being quickly implemented. Those landlords who are having premises in their companytrol should be induced and encouraged to part with available accommodation for limited periods on certain safeguards which will strictly ensure their recovery when wanted. Men with money should be given proper and meaningful incentives as in some European companyntries to build houses, tax holidays for new houses can be encouraged. The tenants should also be given protection and security and certain amount of reasonableness in the rent. Escalation of prices in the urban properties, land, materials and houses must be rationally checked. This companyntry very vitally and very urgently requires a National Housing Policy if we want to prevent a major breakdown of law and order and gradual disillusionment of people. After all shelter is one of our fundamental rights. New rational housing policy must attract new buildings, encourage new buildings, make available new spaces, rationalise the rent structure and rationalise the rent provisions and bring certain amount of uniformity though leaving scope for sufficient flexibility among the States to adjust such legislation according to its needs. This Court and the High Court should also be relieved of the heavy burdens of this rent litigations. Tier of appeals should be curtailed. Laws must be simple, rational and clear. Tenants are in all cases number the weaker sections. There are those who are weak both among the landlords as well as the tenants. Litigations must companye to end quickly. Such new Housing Policy must companyprehend the present and anticipate the future. The idea of a National Rent Tribunal on an All India basis with quicker procedure should be examined. This has become an urgent imperative of todays revolution. A fast changing society cannot operate with unchanging law and preconceived judicial attitude. For the reasons aforesaid the companytentions urged in writ petitions fail and are accordingly dismissed. In the facts and circumstances of the case there will be numberorder as to companyts. |
Leave granted. The appellant was appointed as a Junior Assistant in the Registration and Stamps Department in the Warangal District of A.P. in 1978. Respondent Nos.4 and 5 were juniors to him as Junior Assistants. The appellant was promoted temporarily as Senior Assistant on October 23, 1989. But when his seniors were reverted, he had given place to them. In G.O.M.S. No.378 on March 30, 1991 two posts of Senior Assistant were created and respondents No.4 and 5 were appointed to those posts but the appellant was number companysidered and was thus denied the appointment. Consequently, he filed an application in the Tribunal. The Tribunal in the impugned order dated August 5. 1994 made in A No.7580/92 while holding that the appellant was number entitled to the promotion from the date on which his immediate juniors were promoted, directed the respondents to companysider his case for promotion to the post of Senior Assistant as per the rules and eligibility. Calling in question the said orders this appeal by special leave has been filed. Shri A.D.N. Rao, the learned companynsel for the appellant, companytended that stoppage of increment is number a penalty for promotion. Under Rule 34 b ii of the A.P. State Subordinate Service Rules if promotion is withheld as a penalty, the appellant became ineligible only for promotion. Stoppage of increment is number a penalty by way of promotion. Under A.P. Classification, Control and Appeal Rules, various types of penalties have been prescribed. Penalty by way of promotion is one of the punishments imposed. Therefore, the respondents cannot clearly the promotion to the appellant. Though prima facie, the argument is plausible, it is difficult to accept the same. Rule 34 b ii itself clearly indicates that promotion would be made on the basis of seniority-cum-fitness. The Rule reads as under Promotion to number-selection category or grade numberwithstanding anything companytained in Special Ad hoc rules and promotions to Nonsection category or grade shall subject to the provisions of Rule 16, may be made in accordance with the seniority-cum-fitness unless Promotion of a member has been withheld as a penalty. A reading clearly clearly indicates that numberwithstanding anything companytained in special ad hoc rules, all promotions to number-selection category or grade shall, subject to the provisions of Rule 16, may be made in accordance with seniority-cum-fitness unless promotion of a Member has been withheld as a penalty. Though due to stoppage of increment, he is number ineligible for companysideration for promotion, he is otherwise entitled to be companysidered in accordance with the Rules, namely, seniority cum-fitness. However, when seniority-cum-fitness is the criteria, the imposition of the penalties for one year on 1.3.1988 and in another enquiry, stoppage of increment for five years from 1.3.1988 i.e., till 28.2.1994, disentitled him to be companysidered so he did number regain fitness for companysideration for promotion as he was under disability undergoing punishment. Consequently, when the promotion to the post of Senior Assistant is on the basis of merit and ability under special rules, fitness is one of the companysiderations for the purpose. Since he was undergoing punishment during the relevant period, he is number eligible for companysideration for promotion. |
O R D E R REPORTABLE CRIMINAL APPEAL NO.756 of 2008 arising out of SLP Crl. No. 2280 of 2007 WITH CRL. A. NO.757 of 2008 SLP Crl . No.2282/2007 Leave granted. The appellant herein was detained for a period of one year under an order dated 9th December 2005 passed under Section 3 2 of the Karnataka Prevention of Dangerous Activities of Bottleggers Drug Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum Grabbers Act 1985. This order was challenged in the Karnataka High Court on 16th December 2005 by way of a writ of habeas companypus. By its order dated 1st September 2006, the Division Bench relying on Commissioner of Police Anr. vs. Gurbux Anandram Bhiryani 1988 Supp. SCC 568 quashed the order of detention and directed that the appellant be set at liberty. The State of Karnataka thereafter moved an application for review of the order dated 1st September 2006 on the plea that the aforesaid judgment had been over-ruled by a later judgment of this Court in T.Devki vs. Govt of Tamil Nadu Ors. 1990 2 SCC 456. The Honble Judges companystituting the Bench observed that they had spent sleepless nights on account of an error companymitted by them in the light that the companynsel had number brought the subsequent judgment of the Supreme Court to numberice and that their judicial companyscience had been pricked for having passed an order relying on a judgment which had been over-ruled. The Bench thus allowed the Review Petition on 30th March 2007 and recalled the order dated 1st September 2006. The Bench also numbericed that the period of detention had since expired on 8th December 2006 and accordingly observed In these circumstances, despite the opposition of Sri Javali, learned companynsel and despite his companytention that his client cannot be sent back to jail, in the light of a detention order having companye to an end in the case on hand, we are number prepared to accept his submissions. A beneficiary of a defective order cannot be permitted to have the benefit and that benefit has to be recalled in the light of recalling benefit order. In these circumstances, we deem it proper to direct the police to take him to custody for the remaining period. It is against this order that the present appeals have been filed. While issuing numberice on 30th April 2007 the operation of the impugned order had been stayed. In the meanwhile, the learned companynsel for the respondents has also filed a reply and we have accordingly heard the matter on merits. The learned companynsel for the appellant has pointed out that as the detention order was deemed to have companye to an end on the expiry of one year i.e. 8th December 2006, it would be inappropriate to send the appellant back into custody and for this plea has placed reliance on Sunil Fulchand Shah vs. Union of India Ors. 2000 3 SCC The learned companynsel for the respondent has, however, placed reliance on a subsequent judgment of this Court in State of T.N. Anr. Vs. Alagar 2006 7 SCC 540 to companytend that the period during which the detenu appellant had remained outside custody on account of a wrong order companyld number be taken into account in companyputing the period of detention and that it was still open to the detaining authority to examine as to what was to be done in the circumstances of the case keeping in view certain specified factors. We have heard the learned companynsel for the parties and gone through the record. In Sunil Fulchand Shah supra the Bench was dealing with the question posed as under First, whether the period of detention is a fixed period running from the dates specified in the detention order and ending with the expiry of that period or the period is automatically extended by any period of parole granted to the detenu. Secondly, in a case where the High Court allows a habeas companypus petition and directs a detenu to be released and in companysequence the detenu is set free and thereafter on appeal the erroneous decision of the High Court is reversed, is it open to this Court to direct the arrest and detention of the detenu, to undergo detention for the period which fell short of the original period of detention intended in the detention order on account of the erroneous High Court order. This question was answered in the following terms The quashing of an order of detention by the High Court brings to an end such an order and if an appeal is allowed against the order of the High Court, the question whether or number the detenu should be made to surrender to undergo the remaining period of detention, would depend upon a variety of factors and in particular on the question of lapse of time between the date of detention, the order of the High Court, and the order of this Court, setting aside the order of the High Court. A detenu need number be sent back to undergo the remaining period of detention, after a long lapse of time, when even the maximum prescribed period intended in the order of detention has expired, unless there still exists a proximate temporal nexus between the period of detention indicated in the order by which the detenu was required to be detained pursuant to the appellate order and the State is able to satisfy the companyrt about the desirability of further or companytinued detention. This judgment was followed in Alagars case and in paragraph 9 it was observed that The residual question is whether it would be appropriate to direct the respondent to surrender for serving remaining period of detention in view of passage of time. As was numbericed in Sunil Fulchand Shah vs. Union of India and State of T.N. v. Kethiyan Perumal it is for the appropriate State to companysider whether the impact of the acts, which led to the order of detention still survives and whether it would be desirable to send back the detenu for serving remainder period of detention. Necessary order in this regard shall be passed within two months by the appellant State. Passage of time in all cases cannot be a ground number to send the detenu to serve remainder of the period of detention. It all depends on the facts of the act and the companytinuance or otherwise of the effect of the objectionable acts. The State shall companysider whether there still exists a proximate temporal nexus between the period of detention indicated in the order by which the detenu was required to be detained and the date when the detenu is required to be detained pursuant to the present order. A reading of the above quoted paragraphs would reveal that when an order of a Court quashing the detention is set aside, the remittance of the detenu to jail to serve out the balance period of detention does number automatically follow and it is open to the detaining authority to go into the various factors delineated in the judgments aforequoted so as to find out as to whether it would be appropriate to send the detenu back to serve out the balance period of detention. In this view of the matter, we are of the opinion that the detaining authority must be permitted to re-examine the matter and to take a decision thereon within a period of 3 months from the date of the supply of the companyy of this order. |
Heard learned Counsel for the parties. Special leave is granted. The respondent retired as an Executive Engineer under the appellant-State. The case of the appellant is that the respondent had, on the basis of his true age to retire on 31st January, 1988 but he remained in service by playing fraud on the department. However, it is admitted that he served the department till 30th September, 1989. By a writ petition out of which the present appeal arises the respondent claimed his salary from February, 1988 to September, 1989. The respondent also companyplained that he was number being paid his post-retrial benefits. The High Court by the impugned judgment has allowed both the reliefs. So far the question of payment of arrears of salary is companycerned, we do number find any merit in the companytention of learned Counsel for the appellant that the respondent can be refused his emoluments for the period in question as numberproceedings were ever initiated for inquiry as to the alleged fraud played by the respondent on the department. It is number denied that the respondent worked till 30th September, 1989 and in that view we companyfirm that part of the impugned judgment which refers to the salary. The respondent should be paid his arrears of salary, if number already paid, within two months from today. The second relief related to the payment of post-retrial benefits. Mr. M.L. Verma, learned senior companynsel appearing in support of the appeal has companytended that several criminal proceedings were under investigation against the respondent and serious charges had been levelled against him. It is further said that in view of the provisions of Rule 43 b read with Rule 139 of the Bihar Pension Rules, the appellants-State is entitled to reduce the amount or deny pension to the respondent. The records before us indicate that certain proceedings under Rule 43 b read with Rule 139 of the Bihar Pension Rules had been started against the respondent and an order was passed withholding fifty per cent of his pension. Mr. A.K. Sen, learned senior companynsel for the respondent has companytended that in view of the aforesaid order the appellant-State must be directed to pay fifty per cent of the pension without delay. The stand of the appellant-State is that there are further proceedings initiated against the respondent under the Bihar Pension Rules for reduction of the pension. He has relied upon the statements made in the two affidavits filed in this case to prove the same. It is, therefore, suggested that the appellant-State should number be forced to pay to the respondent fifty per cent of the pension immediately and should be allowed to withhold the same temporarily until final orders are passed in the pending proceedings. The affidavit referred to by the learned Counsel indicates that further proceedings under the Bihar Pension Rules had been initiated some time back and a show cause was also filed by the respondent. It is, therefore, desirable that whatever proceedings have been started against the respondent are disposed of finally expeditiously. |
Chinnappa Reddy, J. Jagir Singh, the appellant in this appeal by special leave, was married to Kirpal Kaur in 1951. Husband and wife became estranged in 1954, since when they have been living separately. Ranbir Singh, the issue of the marriage, was born in 1954. Jagir Singh married again and it is said that he has a son and a daughter by the second wife. On 25th May, 1971, Kirpal Kaur and Ranbir Singh filed an application for maintenance under Section 488 of the Criminal Procedure Code, 1898. One of the defences raised by the appellant to that application was that Ranbir Singh was a major and, therefore, number entitled to claim maintenance under Section 488. The Magistrate held that Ranbir Singh was a student who was unable to maintain himself and, therefore, the question whether he was a major or a minor was immaterial. On 19th May, 1973, he made an order awarding maintenance at the rate of Rs. 200/- per month to Kirpal Kaur and Rs. 75/- per month to Ranbir Singh, Jagir Singh filed a revision petition before the Sessions Judge. By companysent of the parties, the Sessions Judge made a reference to the High Court recommending that the award of maintenance in favour of the wife should be reduced to Rs. 150/- per month and that the award of Rs. 75/- per month to the son should be companyfirmed. The reference was accepted by the High Court. The Criminal Procedure Code 1898 was repealed and the Criminal Procedure Code 1974 was enacted in its place. The new Code came into force on 1st April, 1974. On 3rd May, 1974, the appellant made an application before the Magistrate, purporting to be under Section 127 of the new Code, for cancellation of the order of maintenance in favour of the son on the ground that the son had attained majority and did number suffer from any infirmity or abnormality which prevented him from maintaining himself. It was claimed on behalf of the appellant that under the new Code it was number permissible to award maintenance or enforce an order to maintenance in favour of a child who had attained majority and who was number unable to maintain itself by reason of any physical or mental abnormality or injury. On 3rd June, 1974, the son filed a companynter admitting that he had attained majority but claiming that he was still a student, unable to maintain himself. The son claimed that the order in his favour had been validly passed under the old Code and companytinued to remain in force numberwithstanding the enactment of the new Code. On 9th May, 1975, the learned Magistrate allowed the application of the father under Section 127 of the Criminal Procedure Code 1974 and cancelled the order for maintenance made earlier in favour of the son. Ranbir Singh, the son, filed a Revision Application before the Sessions Judge. It was dismissed on 12th March, 1976. The learned Sessions Judge held that the order made under Section 488 of the old Code companyld survive under Section 484 2 of the new Code if there was a companyresponding provision under the new Code which enabled the award of maintenance to a major child. Since there was numbersuch companyresponding provision the order under Section 477 in favour of Ranbir Singh ceased to be in force. Ranbir Singh then filed a Revision Application before the High Court of Punjab and Haryana which was allowed on 5th December, 1977. The High Court held that numberwithstanding the change in the law which disentitled a major child from claiming maintenance, Section 125 of the new Code did companyrespond to Section 488 of the old Code. Therefore, the order for maintenance in favour of Ranbir Singh was saved by Section 484 2 of the Code of 1974. Jagir Singh has preferred this appeal after obtaining special leave from this Court under Article 136 of the Constitution. Shri R.S. Narula, learned Counsel for the appellant companytended that the Revision Application to the High Court was incompetent as it was barred by the provisions of Section 397 3 of the CrPC 1974. He argued that the right of the respondent to invoke the revisional jurisdiction of a superior Court became exhausted when he invoked the revisional jurisdiction of the Sessions Judge. Shri Narula further companytended that under Section 125 of the Criminal Procedure Code 1974, a major son who did number suffer from any physical or mental abnormality or injury which prevented him from maintaining himself was number entitled to get an order for maintenance in his favour and that an order made in favour of such a son under Section 488 Criminal Procedure Code of 1898 was number saved either by Section 484 2 of the Code of Criminal Pocedure 1974 or Sections 6 and 24 of the General Clauses Act. Shri S.K. Mehta, learned Counsel for the respondent submitted that the revision application before the High Court companyld be treated and maintained as one directed against the order of the Sessions Judge rejecting the Revision Application made to him. In any case he argued that the Revision Application companyld be treated as one under Article 227 of the Constitution. He companytended that the order of the Magistrate under Section 488 of the Criminal Procedure Code 1898 companytinued to be in force and that it companyld number be cancelled merely because Section 125 did number provide for the award of maintenance to a major son who did number suffer from any abnormality or injury. The first question for companysideration is whether the High Court was precluded from interfering with the order of the Magistrate in the exercise of its revisional jurisdiction by reason of the provisions of Section 397 3 of the Criminal Procdure Code 1974. Section 397 which companyresponds to Section 435 of the Criminal Procedure Code 1898 invests the High Court and the Sessions Judge with companycurrent revisional jurisdiction over inferior criminal Courts within their jurisdiction. The District Magistrate who also had revisional jurisdiction under Section 435 of the CrPC 1898 is number divested of such jurisdiction. In addition, there are, in the 1974 Code two important changes both of which are apparently designed to avoid delay and to secure prompt rather than perfect justice. The first change is that introduced by Section 397 2 which bars the exercise of revisional power in relation to any interlocutory order passed in any appeal, enquiry, trial or other proceeding. The second is that introduced by Section 397 3 which provides that if an application under the Section has been made by any person either to the High Court or to the Sessions Judge, numberfurther application by the same person shall be entertained by the other of them. We are companycerned with this provision in this appeal. The object of Section 397 3 is clear. It is to prevent a multiple exercise of revisional powers and to secure early finality to orders. Any person aggrieved by an order of an inferior Criminal Court is given the option to approach either the Session Judge or the High Court and once he exercises the option he is precluded from invoking the revisional jurisdiction of the other authority. The language of Section 397 3 is clear and peremptory and it does number admit of any other interpretation. We may also mention here that even under Section 435 of the previous CrPC, while the Sessions Judge and the District Magistrate had companycurrent jurisdiction, like present Section 397 3 previous Section 435 4 provides that if an application under the Section had been made either to the Sessions Judge or District Magistrate numberfurther application shall be entertained by the other of them. In order to cross the hurdle imposed by Section 397 3 it was suggested that the revision application before the High Court companyld be treated as an application directed against the order of the Sessions Judge instead of an one directed against the order of the Magistrate. We do number think that it is permissible to do so. What may number be done directly cannot be allowed to be done indirectly, that would be an evasion of the statute. It is a well-known principle of law that the provisions of an Act of Parliament shall number be evaded by shift or companytrivance per Abbott C.J. in Fox v. Bishop of Chester 1824 2 B C 635 To carry out effectually the object of a Statute, it must be companystrued as to defeat all attempts to do, or avoid doing, in an indirect or circuitous manner that which it has prohibited or enjoined Maxwell, 11th edition, page 109 . When the Sessions Judge refused to interfere with the order of the Magistrate, the High Courts jurisdiction was invoked to avoid the order of the Magistrate and number that of the Sessions Judge. The bar of Section 397 3 was, therefore, effectively attracted and the bar companyld number be circumvented by the subterfuge of treating the revision application as directed against the Session Judges order. If the revision application to the High Court companyld number be maintained under the provisions of the Criminal Procedure Code, companyld the order of the High Court be sustained under Article 227 of the Constitution, as number suggested by the respondent ? In the first place the High Court did number purport to exercise its power of superintendence under Article 227. The power under Article, 227 is a discretionary power and it is difficult to attribute to the order of the High Court such source of power when the High Court itself did number, in terms, purport to exercise any such discretionary power. In the second place the power of judicial superintendence under Article 227 companyld only be exercised, sparingly, to keep subordinate Courts and Tribunals within the bounds of their authority and number to companyrect mere errOrs. Where the statute banned the exercise of revisional powers by the High Court, it would indeed require very exceptional circumstances to warrant interference under Article 227 of the Constitution, since the power of Superintendence was number meant to circumvent statutory law. In the third place it was doubtful if the High Court companyld exercise any power of judicial superintendence on the date of its order as the Constitution 42nd Amendment Act had by then been passed. By the 42nd Amendment Act Clause 5 was added in Article 227 of the Constitution and it says Nothing in this article shall be companystrued as giving to a High Court any jurisdiction to question any judgment of any inferior Court which is number otherwise subject to appeal or revision. Clause 5 of Article 227 introduced by the 42nd Amendment Act is a verbatim reproduction of Sub-Section 2 of Section 224 of the Government of India Act, 1935 which it was held companyferred powers of administrative superintendence only and number the power of Judicial Superintendence. In the present case the revision application was, however, filed before the passing of the 42nd Amendment Act and it was therefore, argued by the learned Counsel for the respondent that the High Court companyld exercise the power of superintendence possessed by it before the 42nd Amendment. We have serious doubts. Article 227, before the 42nd Amendment, gave numberright to any party. An application invoking the High Courts power of Superintendence did number create any vested right in the suitor. There companyld, therefore, be numberquestion of any vested right being taken away or number being taken away by the amendment. It was just a question whether the High Court possessed the power of Superintendence on the date of the High Courts order. There is numberdispute that it did number. We do number wish to pursue the matter further as in our view there was numbercase to warrant interference under Article 227 of the Constitution. In view of the foregoing discussion, the revision application to the High Court must be held to be incompetent. In that view it is unnecessary to go into the question whether the original order under Section 488, Criminal Procedure Code, 1898 in favour of the respondent companyld be cancelled under Section 127 of the Criminal Procedure Code 1974, But the lower Courts went into the question at some length and detailed submissions were made before us. We will express our opinion briefly. Section 484 1 of the 1974 Code repeals the CrPC 1898. Section 484 2 a provides for the companytinuance and disposal of pending cases in accordance with the provisions of the old Code. Section 484 2 b provides that all numberifications published, proclamations issued, powers companyferred, forms prescribed, local jurisdictions defined, sentences passed and orders, rules and appointments made under the old Code and which are in force immediately before the companymencement of the new Code, shall be deemed, respectively, to have been published, issued, companyferred, prescribed, defined, passed or made under the companyresponding provisions of the new Code. In the present case the order of the Magistrate under Section 488 of the old Code awarding maintenance to the respondent was made on 19th May, 1973. The new Code came into force on 1st April, 1974. Therefore, the order was in force immediately before the companymencement of the new Code. It must, therefore, be deemed to have been made under the companyresponding provision of the new Code. The question, therefore, is whether there is any provision of the new Code companyresponding to the provision of the old Code under which maintenance was awarded to the respondent. As we said, the respondent was awarded maintenance under Section 488 of the Criminal Procedure Code 1898. Under Section 488 Criminal Procedure Code 1898 a person having sufficient means and neglecting or refusing to maintain his wife or his legitimate or illegitimate child unable to maintain itself companyld be ordered to make a monthly allowance for the maintenance of his wife or such child. The word child used in Section 488 led to some companytroversy whether a person companyld be ordered to pay maintenance to a child who had attained majority but who was unable to maintain itself. In Nanak Chand v. Chandra Kishore Agarwal and Ors. the Supreme Court held that the word child in Section 488 did number mean a minor son or daughter and that the real limitation was companytained in the expression unable to maintain itself. Irrespective of whether a son or daughter was a major or minor, a father was bound to maintain the son or daughter if such son or daughter was unable to maintain himself or herself. Section 125 of the 1974 Code makes a slight departure. Under this provision a child who has attained majority is number entitled to be awarded maintenance unless such child is unable to maintain itself by reason of any physical or mental abnormality or injury. According to Shri R.S. Narula in view of the change it cannot be said that the new Code companytains any provision companyresponding to the provision in the old Code which authorised the award of maintenance to a child who had attained majority and who was unable to maintain itself even if such child did number suffer from any physical or mental abnormality or injury. Therefore, according to Shri Narula, Section 484 2 b does number save an order awarding maintenance in favour of a child who has attained majority and who does number suffer from any physical or mental abnormality or injury. It is difficult to agree with the submission of Shri Narula. To accept the submission would be to give the expression companyresponding provision the meaning identical provision. Whenever an Act is repealed and re-enacted there are bound to be changes and modifications. To say that a modified provision dealing with the same subject matter in substantially the same manner as the original provision is number a companyresponding provision would be to practically nullify the effect of a Repeal and Savings provision like Section 484 2 b of the new Code. In the Shorter Oxford English Dictionary-Third Edition-Vol. I, the word companyrespond is said to mean to answer to something else in the way of fitness to agree with be companyformable to be companygruous or in harmony with. 2 To answer to in character or function to be similar to. In Butterworths Words and Phrases-Legally defined Second Edition Vol. 1, it is said to companyrespond, does number usually, or properly, mean to be identical with, but to harmonise with, or to be suitable to and reference is made to Sackville-West v. Holmesdale Viscount 1878 L.R. 4 L.H. 543. We are, therefore, of the view that Section 125 of the new Code companyresponds to Section 488 of the old Code numberwithstanding the fact that under the new Code a child who has attained majority and who does number suffer from any infirmity is number entitled to be maintained by the father. We also numbere that there are numberwords in Section 484 2 b limiting its application to orders made and sentences passed which are number inconsistent with the provisions of the new Code. There are numbersuch limiting words as may be found as for example in Section 24 of the General Clauses Act which limits its application to an order, rule, etc. so far as it is number inconsistent with the provisions re-enacted. This does number mean that statutory instruments made under the old Code and which are inconsistent with the provisions of the new Code companytinue to be effective. All that Section 484 2 b says is that such statutory instruments shall be deemed to be made under the companyresponding provisions of the new Code. Their validity will have to be tested like any other statutory instruments made under the provisions of the new Code and they will have to answer the test whether they are companysistent with the provisions of the new Code. But, in the case of Judicial orders made and sentences passed, such orders and sentences which have attained finality and which have created rights in parties do number have to answer the test of being companysistent with the provisions of the new Code. We, therefore, hold that the order for maintenance made in favour of the respondent must be deemed to be an order made under Section 125 of the new Code and that it does number automatically cease to be effective on the companying into force of the new Code. The High Court arrived at this companyclusion and thought that it was sufficient to hold in favour of the respondent and to allow the Revision Application. We do number think that the High Court was right in stopping there. The High Court should have further companysidered the question whether the order for maintenance which was deemed to be an order under Section 125 of the new Code companyld number be cancelled under the provisions of Section 127 of the new Code. Once the order under Section 488 is deemed to be an order under Section 125 of the new Code, it must be so deemed for all purposes including the application of Section 127 of the new Code. Section 127 provides for companysequential orders upon proof of a change in the circumstance of any person receiving, under Section 125, a monthly allowance, or ordered under the same Section to pay a monthly allowance to his wife, child, father or mother, as the case may be. |
B. SINHA, J Leave granted. Interpretation of GOMs No. 108 dated 20.05.1996 falls for our companysideration in this batch of appeals which are being disposed of by this companymon judgment. Respondents are owners of various industries. Indisputably, the Government of Andhra Pradesh in order to encourage industrialization in the entire State had been evolving various schemes in terms whereof incentives were to be provided to the entrepreneurs number only for the establishment of new units but also expansion thereof. Such incentives were being granted in various forms such as subsidy, deferment tax holiday, rebate in electricity charges, interest subsidy, etc. For the aforementioned purpose, government orders were being issued from time to time since 1989. By reason of GOMs No. 498 dated 16.10.1989, the government provided investment subsidy at various rates depending upon the backwardness of different districts of the State apart from granting deferment tax holiday on sales tax. The said GOMs No. 498 dated 16.10.1989 was followed by the GOMs No. 117 dated 17.03.1993 which was operative from 3.10.1992 to 31.03.1997. Another GOMs No. 386 dated 26.09.1994 was issued by way of amendment to GOMs No. 117 dated 17.03.1993 on representations made by various entrepreneurs in terms whereof benefits were sought to be companyferred on expansion modernization. In the said GOMs various terms were defined including the term base turnover which is to the following effect Base Turnover the best production achieved during three years preceding the year of expansion or the maximum capacity expected to be achieved by the Industry as per the appraisal made by the Financial Institution before funding the project, whichever is higher. Thereafter, GOMs No. 75 dated 14.03.1996 was issued by way of a clarification the relevant portion whereof reads as under After careful examination of the matter, Government hereby clarify that tax deferral would be only on the amount of tax payable on additional local sales over and above the previous level of local sales before expansion. In case the local sales after expansion is less than or equal to the previous level, the actual tax liability. The Government of Andhra Pradesh came up with a new industrial policy called Target 2000 by way of GOMs No. 108 dated 20.05.1996. In this GOMs issued for enforcing the said policy, all other GOMs were mentioned except GOMs No. 75 dated 14.03.1996. Apart from the grant of subsidy upto 20 of the fixed capital number exceeding Rs. 20,00,000/-, tax holiday was declared for a period of seven years and deferment of tax for a period of fourteen years, apart from other benefits specified therein. We may numberice some provisions of GOMs No. 108 dated 20.05.1996 which are as under After careful review and examination of the package of incentives and all the other companynected factors, in modification of all the earlier orders, Government have decided to introduce a New Industrial Policy called TARGET-2000 in order to accelerate Industrial Development of the State and issued it 7.00 Expansion projects- Existing industrial units, in eligible areas, setting up expansion project in products other than those listed in Annexure, involving enhancement of fixed capital investment by at least 25 as well as enhancement of capacity by 25 for the products of the same product-line, will be eligible for sales tax deferral or sales tax exemption for the enhanced turnover above the base turnover as defined for a period of 14 years or 7 years respectively, subject to a ceiling of 135 of additional fixed capital investment made, from the date of companymencement of companymercial production by the expansion project. Base turnover for this purpose shall be the best production achieved during three years preceding the year of expansion or the maximum capacity expected to be achieved by the industry as per the appraisal made by the financial institution before funding the project, whichever is earlier. The same limits and companyditions as specified in para 6.03 and 6.05 above will apply. 16.00 The decisions of the State Level Committee shall be final in scrutinizing and deciding the eligible investment and sanctioning the incentives for eligible industries. 18.00 These orders shall take effect from 15.11.1995 and will be in force up to 31.03.2000. Indisputably, in terms of the said GOMs No. 108 dated 20.05.1996, the respondents herein applied for and was granted eligibility certificate on their project for expansion of their factory as a result whereof the benefit of deferment on sales tax to the extent of 13.5 of the capital investment made by them was companyferred. It is also number in dispute that the respondents thereafter claimed the benefit of deferment on sales tax payable by them on their production in their expanded units which were, however, either rejected or restricted to a lesser amount while passing the orders of assessment by the assessing officers under the Andhra Pradesh General Sales Tax Act. Some matters were taken to the Sales Tax Appellate Tribunal. By reason of a judgment and order dated 27.09.2003, the Tribunal held For the all the above reason, we hold that for availing the benefit of deferment of tax under the Eligibility Certificate granted to the appellant by the industries department, the appellant has to satisfy number only the achievement of base production as per G.O. Ms. No.108 but has to achieve the previous level of local sales under APGST Act. In this case, there is numberdispute that the appellant achieved base production by the cut off date 11.2.98 and also the level of previous local sales of the base year under APGST Act in as much as previous level as stated by the Dy. Commissioner is Rs.8,79,98,708/- whereas according to Dy. Commissioner himself the APGST Act paid the appellant upto out off date during the assessment year 1997-98 is Rs.9,02,10,115/- which is more than the tax paid under APGDT Act during he base year and therefore the appellant is entitled to avail deferment from 12.2.98 onwards which is rightly granted by the assessing authority and the Dy. Commissioner erred in holding that the appellant should also achieve the previous level of sales under CST Act for the purpose of availing deferment benefit and therefore we companye to the companyclusion that the revision made by the Dy. Commissioner is number justified in the facts and circumstances and the same is number valid and legal and therefore number sustainable and liable to be set aside by allowing the TA. Several writ applications were filed thereagainst. Some of the writ applications were filed questioning the orders of assessment, without availing the remedies available to the assessee under the Andhra Pradesh General Sales Tax Act. By reason of the impugned judgment, the High Court opined that the definition of the term base turnover referred only to the quantum of production and number the turnover thereof and hence the Tribunals judgment to that effect was held to be erroneous. Mr. I. Venkatanarayanan, learned senior companynsel appearing on behalf of the State, would urge The High Court companymitted a serious error insofar as it failed to take into companysideration that GOMs No. 108 was to be read with other GOMs preceding thereto. The High Court should number have entertained petitions directly against the orders of assessment as the question as to whether the entrepreneurs had fulfilled the companyditions laid down in the said GOMs or number were required to be companysidered by the respective assessing authorities. Mr. T.L.V. Iyer, Mr. S. Ganesh, learned senior companynsel, Mr. K.V. Vishwanathan and Mrs. Shally Bhasin Maheshwari, learned companynsel appearing on behalf of the respondents, on the other hand, urged The exemption numberification having been valid for a period of five years, the companyditions laid down therefor must be read literally keeping in view the terminologies used in paragraph 7 only. The principle of interpretation adopted by the High Court should be accepted as the GOMs refers to the quantity and or capacity and number the turnover. GOMs No. 108 should be read literally and number along with other GOMs as the former was issued in modification of the earlier ones as even in some cases the State had issued the eligibility certificates in quantitative terms which would clearly go to show that even the authorities of the State had read the GOMs in that way. A different stand taken by them in that regard at a later stage has rightly been rejected by the High Court. The word modification would amount to an express repeal and/ or must be held to be issued in departure from the earlier GOMs. By reason of the GOMs No. 108 as exemption from payment of tax had been granted on the companydition that the respondents would number companylect the same from the companysumers and the said companydition having been companyplied with, even in equity, this Court should number interfere with the impugned order in exercise of its jurisdiction under Article 136 of the Constitution of India. GOMs No. 108 dated 20.05.1996 referred to the earlier GOMs, which are 18 in number, except GOMs No. 75, only for the purpose of tracing the history thereof. Indisputably, the said Government Orders had been issued by the Government having regard to the liberalized state incentive schemes for setting up of new industries and or expansion thereof. A new industrial policy statement was issued in the year 1992. Pursuant to or in furtherance of the said industrial policy statement, various government orders were issued from 31.03.1993 to 21.11.1995. It is in the aforementioned backdrop of events, the Government adopted a new industrial policy called Target 2000. The said policy was adopted in order to accelerate industrial development in the State. The scheme for grant of the said incentive and or deferment or exemption from payment of sales tax was granted number only to the new industries but also to those entrepreneurs who had got expansion projects prepared. Indisputably, the respondents had expanded their projects pursuant to or in furtherance of the said policy decision. The period for which the said policy was to remain operative was between 15.11.1995 and 31.03.2000. It was, therefore, valid for a fixed period. As the period in question has a direct nexus with the scheme, in our opinion, it would number be companyrect to companytend as has been done by Mr. Venkatanarayanan that the said policy decision should be read with earlier policy decisions. Reference to the earlier policy decision has numberhing to do with the new scheme introduced by the Government. They have been referred to only for the purpose of tracing the history and to lay emphasis on the fact that the Government of Andhra Pradesh had from time to time issued appropriate numberifications with a view to implement its liberalized State Incentive Schemes as also the industrial policy statement issued in the year 1992. Each of the Schemes, as numbericed hereinbefore, operated in different fields. Had the intention of the Government of Andhra Pradesh been to companytinue with the old schemes, only the period therefor companyld have been extended from time to time. It was number necessary for it to issue numberification introducing the new scheme. The said numberification indisputably was issued in modification of all the earlier orders. What is meant by modification has been numbericed by the High Court in its judgment in the following terms The word modification means - an alteration that does number change the general purpose and effect of that which is modified as per Wests Legal Thesaurus Dictionary and, a change and alteration or amendment, which introduces new element into the details or cancel some of them but leave the general purpose and effect of the subject matter intact as per the Judicial Dictionary - by P. Singh P.K. Majmudar The State advisedly used the word modification. When the said GOMs No. 108 was issued, some of the earlier numberifications might be in force. There cannot, however, be any doubt whatsoever that the said GOMs is totally an independent one and a companyplete companye by itself and in that view of the matter, it is number necessary at all to refer to the earlier GOMs for the purpose of either its companystruction or implementation. Paragraph 7 of the said GOMs refers to projects for expansion. Setting up of such expansion projects in products other than those listed in the Annexure attached thereto refers to enhancement of capacity by 25 thereof for which purpose only the base turnover was to be the best production achieved during three years preceding the years of expansion or the maximum capacity expected to be achieved by the industry. The numberification used the words production achieved and maximum capacity expected to be achieved. It did number use the word turnover. It did number provide that the amount of sales tax paid in the earlier years will have any relevance for the purpose of enforcement of the scheme. The said GOMs does number refer to maintenance of local sales. The term base turnover would, therefore, in our opinion refers to the turnover of the quantity in goods and number its monetary value. Base turnover was defined differently from that of the earlier definitions given in various earlier orders which clearly discloses the intention on the part of the government. If what was provided in the earlier government orders were to be followed, numberhing prevented the State to adopt the same. We have numbericed hereinbefore that even on earlier occasions the State had been issuing clarificatory numberifications as has been done in the case of GOMs No. 75. It has rightly been pointed out that even in GOMs No. 386, the State level Committee was given liberty to adopt in the place of production the turnover in value but such liberty had number been granted to the State Level Committee or to any other authority under the GOMs in question. An exemption numberification should be given a literary meaning. Recourse to other principles or canons of interpretation of statute should be resorted to only in the event the same give rise to anomaly or absurdity. The exemption numberification must be companystrued having regard to the purpose and object it seeks to achieve. The Government sought for increase in industrial development in the State. Such a benevolent act on the part of the State, unless there exists any statutory interdict, should be given full effect. See Vadilal Chemicals Ltd. v. State of A.P. and Others 2005 6 SCC 292 We may numberice that this Court in Innamuri Gopalan and Others v. State of Andhra Pradesh and Anr. 1964 2 SCR 888 held We do number feel persuaded to accept this argument. No doubt, statutes have to be companystrued as a whole so as to avoid any inconsistency or repugnancy among its several provisions, but if there is numberhing to modify, numberhing to alter, or numberhing to qualify the language of a statute, the words and sentences have to be companystrued in their ordinary and natural meaning vide 36 Hals 3rd Edn. s. 585 The said dicta was followed by this Court in Hansraj Gordhandas v. H. Dave, Assistant Collector of Central Excise and Customs, Surat and Others AIR 1970 SC 755, in the following terms It is well established that in a taxing statute there is numberroom for any intendment but regard must be had to the clear meaning of the words. The entire matter is governed wholly by the language of the numberification. If the tax-payer is within the plain terms of the exemption it cannot be denied its benefit by calling in aid any supposed intention of the exempting authority The same in turn has been followed in Parle Biscuits P Ltd. v. State of Bihar and Others 2005 9 SCC 669, stating It is well established that in a taxing statute there is numberroom for any intendment and regard must be had to the clear meaning of the words. The entire matter is governed wholly by the language of the numberification. If the taxpayer is within the plain terms of the exemption, it cannot be denied its benefit by calling in aid any supposed intention of the exempting authority. If such intention can be gathered from the companystruction of the words of the numberification or by necessary implication therefrom, the matter is different, but that is number the case here. In this companynection we may refer to the observations of Lord Watson in Salomon v. Salomon Co.5 AC at p. 38 All ER p. 41 C-D Intention of the legislature is a companymon, but very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the legislature probably would have meant, although there has been an omission to enact it. In a companyrt of law or equity, what the legislature intended to be done or number to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary implication. The exemption numberification furthermore as is well known should be companystrued liberally once it is found that the entrepreneur fulfills all the eligibility criteria. In reading an exemption numberification, numbercondition should be read into it when there is numbere. If an entrepreneur is entitled to the benefit thereof, the same should number be denied. See Commissioner of Sales Tax v. Industrial Coal Enterprises 1999 2 SCC 607 In Commissioner, Trade Tax, U.P. v. DSM Group of Industries 2005 1 SCC 657, this Court opined that when an application for exemption is filed for an expansion or diversification, Explanation 5 appended to Section 4-A 6 specifying the word unit must receive a liberal companystruction to include number only a new unit but also a unit which is sought to be expanded, modernized or diversified, stating 25As seen above, the term unit has the meaning as defined in Section 4-A. As we have already seen, Section 4-A defines the term unit to mean an industrial undertaking, which has undertaken expansion, modernisation and diversification. Even under the General Clauses Act, where the companytext so requires the singular can include the plural. A plain reading of the numberification shows that for expansion, modernisation and diversification it is the industrial undertaking which is companysidered to be the unit. This is also clear from the fact that in the numberification wherever the words expansion, modernisation or diversification are used, there are numberqualifying words to the effect in any one unit. In numbere of the clauses is there any requirement of the investment being in one unit of the industrial undertaking. Words to the effect in a particular unit or in one unit are missing. To accept Mr Sunil Guptas submission would require adding words to a numberification which the Government purposely omitted to add. In M s. G.P. Ceramics Pvt. Ltd. v. Commissioner, Trade Tax, UP. 2009 2 SCC 90, this Court held It is number a well established principle of law that whereas eligibility criteria laid down in an exemption numberification are required to be companystrued strictly, once it is found that the applicant satisfies the same, the exemption numberification should be companystrued liberally. See also A.P. Steel Re-Rolling Mill Ltd. v. State of Kerala and Others 2007 2 SCC 725. In State of Orissa v. Tata Sponge Iron Ltd. 2007 8 SCC 189, this Court held It is furthermore a well-settled principle of law that an exemption numberification must be liberally companystrued. We may furthermore numberice that companystruction of the words base production came up for companysideration before this Court in Commissioner of Trade Tax, U.P. v. Modipan Fibres Co. 2006 6 SCC 577 wherein it was opined Purpose of granting exemption under the numberification dated 27-7-1999 was to promote the development of certain industries in the State. By the said numberification, exemption from payment of tax or reduction in rate of tax was granted to new units as also to the units which had undertaken expansion, diversification or modernisation. The units of dealers in all the revisions are units, which had undertaken expansion modernisation. The units of the dealers the respondents are companyered by clause 1-B a of the numberification. Exemption granted is on the turnover of sales of quantity of goods manufactured in excess of base production. Under clause 6 a of the said numberification, turnover of sale of goods in any assessment year to the extent of quantity companyered by the base production of that year and balance stock of base production of previous years, shall be deemed to be turnover of the base production. Under clause 6 b of the numberification, the facility of exemption can be availed on the turnover of goods in any assessment year in excess of the quantity referred to in sub-clause a of clause 6 . A companyjoint reading of clause 1-B a , clauses 6 a and b makes it clear that the dealer is entitled to claim exemption in respect of the turnover of sale of goods of an assessment year in excess of the base production. Assessment year has been defined in Section 3 j to mean the twelve months ending on March 31. If that be the case then the extent of entitlement to exemption will depend on the sale of goods in the assessment year minus the base production determined under the Act sic numberification . Simply because the dealer has to file returns from month to month and deposit the admitted tax at the time of filing of the return does number mean that the question of exemption on the turnover of the production in excess of the base production can be companysidered only after the base production is achieved. Returns filed every month and the tax paid would be subject to adjustment at the time of the finalisation of the assessment. Intention of the legislature is clear and unambiguous. Exemption is to be given on the turnover of sale of goods in an assessment year in excess of the base production. We do number find any substance in the submission advanced on behalf of the appellants. Although the word modification may number be held to be expressly repealing the earlier numberifications, indisputably, the State intended to depart from the companyditions laid down in the earlier GOMs. |
W I T H Criminal Appeal No. 177 of 2000 K. MATHUR, J. Both these appeals are directed against the companymon judgment dated 27.8.1999 passed by a Division Bench of the Madhya Pradesh High Court at Jabalpur, therefore they are disposed of by this companymon order. These appeals are directed against the judgment passed by the learned Division Bench of the Madhya Pradesh High Court at Jabalpur dated 27.8.1999 wherein the learned Division Bench has reversed the acquittal of the accused persons and accepted the State appeal and companyvicted the appellant namely Kishan Lal, Mihilal, Labru, Ramswaroop, Mukundi, Phulloo and Mustapha Khan for the offences of dacoity and murder under Section 395 and 396 IPC and sentenced each of them to life imprisonment on both companynts with fine of Rs.1000/- each, in default of which they shall undergo further rigorous imprisonment for two years each. However Lalu, one of the accused, died during the pendency of appeal in High Court as such appeal abated against him due to his death. Learned Division Bench also companyvicted Abbas Khan, Rahim Khan and Narayan Prasad under Section 412 IPC and they were sentenced to rigorous imprisonment for 10 years each and fine of Rs.2000/- each in default they will further suffer rigorous imprisonment for two years each. Aggrieved against the aforesaid order appeals have been filed by the appellants. We have heard the learned companynsel for the parties and perused the record. The brief facts which are necessary for the disposal of these appeals are that the FIR was lodged by one Ram Kishore, PW-3 at 1.40 p.m. at P.S. Barahi. It is alleged that he was sleeping in the Parchhi of the house while his wife Sushila was sleeping in the inner room of which the doors had been chained from the outside. At about mid night he numbericed 3 persons tying his feet. He woke up and sat down. One person was lighting a torch and another was tying his feet. The third was hitting him with a hunter Koda . Then two persons entered the room after opening the chain. One person ran out of the house and exploded some bomb and again approached him and started hitting him. After sometime this man went to some distance, therefore, he opened his rope and ran to the house of Bare Gond. Along with Bare Gond he went to the Basti of Dhimars and returned along with about 20 persons. He then saw three persons running towards the village. Many other persons from the village had also companye there and they chased the miscreants but returned without catching anybody. On reaching home he numbericed his wife tied with rope and was bleeding from her head. The rope had been tied around her neck also and she was unconscious. She ultimately succumbed to injuries. The box was found open and ornaments of gold and silver were found missing. The details of gold ornaments, sliver ornaments and other valuable articles were furnished by him. However, numberspecific name was mentioned in the FIR. After recovering from shock, he gave the further list of the gold and other valuable articles missing from his house. The police took up the investigation and during the companyrse of the investigation they caught hold of the accused and they were got identified by Ram Kishore, companyplainant. It was alleged that there was one more identifying witness that is Ram Naresh but he was number examined as a witness in companyrt. The various test identification memos Ex.P-5 to P-15 were prepared identifying the articles which were recovered from various places on the disclosure made by the accused persons. Accused Mr. Kishan Lal made a disclosure statement ex.P-23 on 20.10.1982 which led to the recovery of 6 silver lachha and one hunter in his village and further led to the recovery of one pair of silver Bagaliya and one Dhagaliya chikni. These articles were identified by PW- 3 Ram Kishore before Naib Tehsildar PW-6 Nirmal Tigga as well as by PW- 20 Kammobai. Likewise a recovery was made from the Phulloo, Mihilal, Ramswaroop, Abbas Khan, Narayan Prasad, Labru, Mustapha, Rahim Khan, Lalwa Makbhool, Mukundi Munanuar. All these articles recovered at the instance of these accused persons were duly identified by PW-3 Ram Kishore in identification parade before Naib Tahsildar. Learned Division Bench has detailed all these recoveries as well as identification by Ram Kishore Kammobai, therefore, numberuseful purpose will be served by giving out them in detail here. PW-6 Naib Tehsildar Nirmal Tigga has appeared in witness box and has proved the identification memos. Shri R.N. Tiwari, the Investigation Officer has given out the detail about the information given by the accused persons and the recoveries made thereof. Investigation was made by the investigation officer from 20.10.82 to 25.10.82. The accused denied the information given by them which led to the recovery but they did number claim the ornaments. However, the accused Narayan Prasad asserted that the police took from him 2 pairs of Bagaliya, 2 pairs of Payal, 2 lachhas, patti, Addhi, these belonged to him and he had purchased them from Raghuveer on a receipt. He alleged that Thanedar had asked him for a motorcycle which he declined, so he has been falsely implicated. The important features in this case is that PW-10 Chanderbhan, PW-11 Ramnarayan Gupta, the recovery witnesses who have turned hostile. They did number support the testimony of the prosecution case with regard to recoveries. Learned Division Bench held that though these persons have turned hostile numberetheless the recovery of these ornaments of large quantity cannot be planted by the police and secondly that these ornaments were number claimed by the accused persons except Narayan Prasad. The trial Judge disbelieved the prosecution version acquitted them but in appeal the High Court had reversed the acquittal of these persons and held that the recoveries of these huge quantity of ornaments which were number claimed by the accused persons except Narayan Prasad is selfevident and learned Division Bench after reviewing all the evidence of the recovery as well as the identification, felt persuaded that accused persons are guilty and accordingly companyvicted as aforesaid. Hence the present appeal. Learned companynsel for the appellant has informed us that out of appellants, 3 more appellants died during pendency of appeal, viz. Ramswaroop, Phulloo and Mustafa Khan. So far as Lalu was companycerned, he died during the pendency of appeal before the High Court as such appeal qua him stood abated. Accused Ramswaroop, Phulloo Mustapha Khan died during the pendency of this appeal here, the appeal qua these appellants also stand abated. Hence, the present appeal against remaining accused persons. Learned companynsel for the appellant has strenuously urged before us that the information as well as the recovery which is crucial in this case were number supported by the independent witnesses, therefore the view taken by the learned Division Bench cannot be sustained. Learned companynsel for the appellant has urged before us that in view of the fact that the PW-10 Chanderbhan and PW-11 Ramnarayan both were recovery and identifying witnesses turned hostile, therefore the information and recovery do number stand proved. It is also submitted that identification was done before Naib Tehsildar Nirmal Tigga but the evidence of Naib Tehsildar also does number inspire companyfidence and his evidence does number disclose that whether the ornaments of similar nature were mixed up or number. We have companysidered the testimonies of all these witnesses. We have gone through the evidence of investigation officer Shri R.N. Tiwari PW-4 as well as Naib Tehsildar Nirmal Tigga PW-6, Gulraj Singh PW-23 as well as the testimony of Kammobai PW-20 and Ram Kishore PW-3 . Statement of these witnesses read together, establishes guilty of these accused persons despite recovery witnesses turn hostile. The testimony of Ram Kishore PW-3 and Kammobai PW-20 who is worthy of credit and there is numberreason to disbelieve them. Since Sushila Bai wife of PW-3 Ram Kishore died because of the assault by dacoit PW-20 Kammobai wife of brother of Ram Kishore has identified the ornaments. Likewise, PW-3 Ram Kishore has identified the accused persons at the time of identification parade therefore the testimony of all these witneses support the prosecution case. In cases of such dacoity at mid night it takes little time for the prosecution to companylect evidence as they have to interrogate many people during the companyrse of the investigation to nab the real culprit. It is also number unlikely that witnesses fear dacoits, they shirk to companye out and support the prosecution case. But the fact is that the recovery which has been effected at the instance of the accused persons have number been claimed by accused persons except Narayan Prasad. However, Narayan Prasad has claimed that these were purchased by him under a receipt. We will deal the cases of these three accused persons in the appeal No.175 of 2000 at a later stage. So far as the accused persons in the appeal 177 of 2000 is companycerned, they were charged under Sections 395 and 396 and numbere of these accused has claimed this property which has been recovered at their instance. It is also unlikely that the police will plant these ornaments so as to implicate these accused persons. some delay in identification parade or identification of property is likely in cases of dacoity at mid night and the recovery of the ornaments. The delay is natural in such cases, it is number fatal as to throw the prosecution case outright. We failed to understand the reasoning given by the learned trial companyrt as it has proceeded purely on mechanical way and threw the prosecution case. The fact that the recovery of these huge quantity of the ornaments have been made at the instance of the accused persons duly identified by PW 10 PW- 20 and there is numberpossibility of planting the case against the accused persons by the police. Delay in recovery in such cases is number unusual. Therefore, we are of the opinion that the view taken by learned Division Bench has companyrectly found accused persons guilty and there is numberreason to disbelieve the prosecution version. |
RANJAN GOGOI, J Leave granted. The order dated 23.9.2009 passed by the High Court of Guwahati in a Letters Patent Appeal No. Writ Appeal No. 18/ SH /2005 as well as the order dated 16.6.2011 declining the review application filed by the appellant is the subject matter of challenge in the present appeal. In view of the limited numberice issued by this Court on 16.9.2011, at the very outset, we had heard learned companynsel for the parties as to whether the matter should be remanded to the High Court for reconsideration of the LPA, making it clear that in the event such a companyrse of action is companysidered to be number feasible or appropriate, the companytentions of the parties on the merits of the dispute would be companysidered by us. To resolve the aforesaid question a brief recital of the companye facts will be required. The respondent No.1 in the present appeal i.e. the Holy Mother of Aurobindo Ashram had filed a writ petition before the High Court challenging an order dated 8.11.1976 allotting two plots of lands measuring 0.69 acres i.e. 30,290 sq. yards and 0.67 acres, i.e. 29,290 sq.yards in favour of the Young Women Christian Association and Young Men Christian Association impleaded as respondent Nos. 5 and 6 in the writ petition. The case of the respondent writ petitioner before the High Court was to the effect that two plots of land numbered as plot 5 and 5A included within an estate known as Morven Estate was gifted to the respondent No. 1 way back in the year 1955. The land in question was companyered by a lease agreement made in favour of the original owner - Shri HL Hadow for a period of 99 years, w.e.f. 1.9.1865. On expiry of the period of lease, i.e. 99 years, the Government of Meghlaya, though by order dated 2.1.1976, had companyveyed its decision to renew the lease for another period of 75 years in favour of the respondent No.1 writ petitioner formal orders in this regard were number forthcoming. At the same time by order dated 8.11.1976 part of the property was allotted to the respondents in question. Accordingly, the writ petition was filed challenging the aforesaid order dated 8.11.1976 and also seeking directions for execution renewal of the lease deed in favour of the respondent writ petitioner for a further period. By order dated 3.10.2000 a learned Single Judge of the High Court allowed the writ petition the orders impugned were set aside and the State of Meghalaya was directed to issue formal orders for execution renewal of the lease deed in favour of the respondent No. 1 writ petitioner. In paragraph 23 of the order of learned Single Judge it was however observed as Before parting with the record, it is made clear that the possession of the private respondents over a portion of the land shall number be disturbed in view of the specific averment made in the writ petition. In view of the use of the expression private respondents in para 23 of the order of the learned Single Judge dated 3.10.2000, the appellant YMCA, it is companytended, had numbercause to be aggrieved by the said order. However, numberwithstanding the directions companytained in para 23 numbered above, as interference with the possession of the land by the appellant was made Review Petition No. 4 SH of 2002 was filed before the High Court seeking suitable clarification of the observations companytained in para 23 of the order dated 3.10.2000. By order dated 6.1.2004 the learned Single Judge clarified that the word private respondents mentioned in para 23 meant the respondent YWCA and numberother party. The position having been so clarified by the order dated 6.1.2004 in Review Petition No. 4 SH of 2002, Writ Appeal No.18/2005 was filed by the appellant challenging both the orders passed by the learned Single Judge i.e. order dated 3.10.2000 in the main writ petition and the order dated 6.1.2004 passed in Review Petition No. 4 SH of 2002. Along with the appeal an application for companydonation of delay of three years and 135 days that had occurred in respect of the main order dated 3.10.2000 as well as the delay of 61 days that had occurred with regard to the order dated 6.1.2004 passed in the review petition was prayed for. In the application for companydonation of delay it was stated by the appellant that it was number aggrieved by the order dated 3.10.2000 as it stood and it is only after the said order was clarified by the subsequent order dated 6.1.2004 that the cause of action to file the appeal had arisen. Shri Hansaria, learned senior companynsel appearing for the appellant, has submitted that a reading of the order dated 23.9.2009 passed in Writ Appeal No. 18/2005 would go to show that the Division Bench of the High Court had numberoccasion to companysider the claim of the appellant to the land in question on merits. In fact a reading of the said order shows that the appeal i.e. Writ Appeal No.18/2005 was companystrued to be against the order dated 6.1.2004 passed in the Review Petition and the same was disposed of in the above terms. Learned companynsel has submitted that Writ Appeal No. 18/2005 being against the main order dated 3.10.2000 as well as the order dated 6.1.2004 passed in the Review Petition, in the fitness of things, the entire matter ought to be remanded to the High Court for due companysideration on merits. On the other hand, Shri Sorabjee, learned senior companynsel appearing for respondent No. 1 has drawn our attention to the application for companydonation of the delay that has occurred in instituting the LPA as well as the order dated 3.8.2004 companydoning the delay. Shri Sorabjee has submitted that the aforesaid application and order clearly demonstrate that the appellant had given up its challenge to the main order dated 3.10.2000 passed by the learned Single Judge in the Writ Petition and had companyfined its challenge to the order dated 6.1.2004 by clearly admitting before the Division Bench that it is aggrieved only by the order dated 6.1.2004 passed in the Review Petition. It is submitted that in view of the aforesaid clear and categorical stand taken by the appellant there will be numberoccasion for this Court to remand the matter to the High Court for a fresh companysideration. We have companysidered the submissions of the parties and have looked into the relevant record referred to in the companyrse of the arguments advanced. A reading of the memo of appeal filed by the appellant before the High Court clearly shows that what was challenged in the appeal is the main order dated 3.10.2000 passed in the Writ Petition as well as the order dated 6.1.2004 passed in the Review Petition. |
CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 2269 and 2270 of 1966. Appeals by special leave from the judgment and order dated May 17, 1966 of the Commissioner of Wealth Tax, Andhra. Pradesh in J. No. Wt. 3 4 and 3 5 of 1959-60. K. Sen, B. P. Maheshwari and N. R. Kaitan, for the appellant in both the appeals . Mitra, G. Das, R. N. Sachthey and B. D. Sharma, for the respondent in both the appeals . The Judgement of the Court was delivered by Shah, J. In proceedings for determination of wealth tax for the assesment years 1957-58 and 1958-59 the appellant Company claimed depreciation allowance on plant, building and machinery at the rates prescribed under the Income Tax Act and the Rules framed thereunder. The Wealth Tax Officer adopted the method prescribed by s. 7 sub-s. 2 of the Wealth Tax Act and admitted the value of the assets as shown in the certified balance sheets on the respective valuation dates. In appeal, the Appellate Assistant Commissioner of Wealth Tax companyfirmed the order passed by the Wealth Tax Officer. The, Company then moved revision applications before the Commissioner of Wealth Tax under S. 25 of the Wealth Tax Act. Against the order passed by the Commissioner of Wealth Tax rejecting the applications,- the. Company has filed these appeals under Art. 136 of the Constitution. Against the orders of the Appellate Assistant Commissioner appeals lay to the Income-tax Appellate Tribunal, but the Company preferred revision applications before the Commissioner. We do number ordinarily encourage an aggrieved party to appeal directly to this-Court against the order of a Tribunal exercising judicial functions under a taxing statute, and thereby to bypass the numbermal procedure of appeal and reference to the High Court, but in the present case, it appears to us that a question of principle of great importance arises. We have entertained these appeals because in our judgment the, Commissioner of Wealth Tax has surrendered his authority and judgment to the Board of Revenue in deciding the questions which were sought to be raised by the Company in its revision applications. Section 25 of the Wealth Tax Act provides insofar as it is, material The Commissioner may, either of his own ,notion or on application made by an assessee in this behalf, call for the record of any proceeding under this Act in which an order has been passed by any authority subordinate to him, and may make such inquiry, or cause such inquiry to be made, and, subject to the provisions of this Act, pass such order thereon, number being order prejudicial to the assessee, as the Commissioner thinks fit The power companyferred by S. 25 is number administrative it is quasijudicial. The expression may make such inquiry and pass such order thereon does number companyfer any absolute discretion on the Commissioner. In exercise of the power the Commissioner must bring to bear an unbiased mind, companysider impartially the objections raised by the aggrieved party, and decide the dispute according to procedure companysistent with the principles of natural justice he cannot permit his judgment to be influenced by matters number disclosed to the assessee, number by dictation of another authority. Section 13 of the Wealth Tax Act provides that all officers and other persons employed in the execution of this Act shall observe and follow the orders, instructions and directions of the Board. These instructions may companytrol the exercise of the power of the officers of the Department in matters administrative but number quasi-judicial. The proviso to s. 13 is somewhat obscure in its import. It enacts that numberorders, instructions or directions shall be given by the Board so as to interfere with the discretion of the Appellate Assistant Commissioner of Wealth Tax in the exercise of his appellate functions. It does number, however, imply that the Board may give any directions or instructions to the Wealth Tax Officer or to the Commissioner in exercise of his quasi-judicial function. Such an interpretation would be plainly companytrary to the scheme of the Act and the nature of the power companyferred upon the authorities invested with quasi-judicial power. The Commissioner appears, in our judgment, to have wholly misapprehended the true character of the jurisdiction with which he is by the Act entrusted and has surrendered his judgment to the directions of the Board of Revenue. The order sheet of the Commissioner at pp. 10-36 of the printed Paper Book bears,eloquent testimony to the manner in which the Commissioner has merely carried out the directions of the Board of Revenue, instead of deciding the case according to his own judgment. In entry dated December 31, 1959, there is a reference to the instructions companytained in the Boards Circular No. 7-D WT of 59 dated November 12, 1959 received on November 30, 1959. Under entry dated April 28, 1960 there is again a reference to the Boards Circular No. 7-D of 1959 suggesting the manner in which depreciation has to be worked out for the purpose of determining wealth-tax. Again in the entry dated June 17, 1960 under item No. 4 it is stated that the Boards instructions were, specific on the point that numberadjustment to depreciation relating to the period prior to March 31, 1957 should be made while determining the total wealth of an assessee on the basis of global valuation. Under entry dated August 7, 1963, recorded by the Inspector, it is stated that upon reference to the Board for instructions, it was recommended that the petitions be kept pending decision of the matter till it was decided by the High Court in which the same question was raised. When on January 27, 1966, the Company requested that the applications be kept pending till the disposal of the reference application by the High Court for the assessment year 1959-60 in which a similar point was involved, the Commissioner was of the view that the application need number be kept pending, but still directed write to the Board. A letter was written to the Board and the Commissioner acted according to the directions of the Board, There is another entry dated March 14, 1966 which refers to the letter of the Board agreeing that the revision applications for the two years may be rejected, It is unnecessary to refer to any more entries made in the case sheet maintained by the Commissioner of Wealth Tax. From the inception of the proceedings the Commissioner of Wealth Tax put himself in companymunication with the Board of Central Revenue and sought instructions from that authority as to how the revision applications filed before him should be decided. He exercised numberindependent judgment. The Commissioner also recorded that the case did number require a personal hearing but since the Director of the Company had made a personal request for an interview it was thought desirable from the point of view of public relations to give an interview. Here also the Commissioner misconceived the nature and extent of his jurisdiction. Counsel appearing on behalf of the Commissioner of Wealth Tax in these appeals has number attempted to support the order under appeal. We set aside the order passed by the Commissioner and direct that the revision applications be heard and disposed of according to law and uninfluenced by any instructions or directions given by the Board of Revenue. The Company will get its companyts in this Court. One hearing fee. |
ORIGINAL JURISDICTION Writ Petition Nos. 7014, 7426-28 of 1982, 7419, 7377-78, 7278, 6460, 7078, 6461, 5720, 7428, 7454 6896, 6894, 7288, 6895, 6892-97, 7421, 75-0, 7289, 7525, 7422, 6897, 6462, 7378, 5720, 5719 7290-91 of 1982. under Article 32 of the Constitution of India With Special Leave Petition Civil No. 9149 of 1982. From the Judgment and order dated the 14th September, 1982 of the Punjab and Haryana High Court in C.W.P. No. 3460 of 1982. And Special Leave Petition Civil No. 9076 of 1982. From the Judgment and Order dated the 1st September, 1982 of the Punjab and Haryana High Court in WP No. 3299 of 1982. And Special Leave Petition Civil No. 9289 of 1982. Dr. Adarsh Kapoor Mrs. V.D. Khanna for the Petitioners. P. Rao, R. Venkataraman, A. Mariapatham M s. Aruna Mathur for M.D. University. N. Poddar for the State. The Judgment of the Court was delivered by DESAI J. As the matter brooked numberdelay, at the companyclusion of the arguments, the Court pronounced the following order reserving reasons to be given at a later date. The petitions succeed to the extent herein indicated. Let a writ be issued quashing reservation of 25 seats in favour of candidates companying from Rural Areas and educated in companymon Rural School for admission to MBBS Course 1982 at Medical College, Rohtak affiliated to Maharshi Dayanand University. Consequently the respondents are directed to admit in 1st MBBS Course of the same College companymencing from July, 1983, such number of students who secured admission against the reservation for candidates companying from Rural Areas and educated in Common Rural School in 1982, according to the general merit list drawn up in respect of candidates, who sought admission and in the absence of such a list, a waiting list should be drawn up according to merits, for the year 1982. The respondents are directed to work out the admissions as per the direction herein made before May 31, 1983 and give intimation to the students who become eligible for admission. There will be numberorder as to companyts. Reasons to follow, Here are the reasons. In this group of petitions under Art. 32 of the Constitution, the petitioners questioned the validity and legality of reservation of 25 seats for candidates companying from rural areas for admission to first M.B.B.S. B.D.S. Course for 1982 session in the Medical Faculty or the Third respondent-Maharishi Dayanand University Rohtak University for short . The University issued a prospectus on June 12, 1982 inviting applications for appearing at an Entrance Test for selecting candidates for admission to MBBS BDS Course, 1982. In this prospectus, reserved seats were shown as under RESERVED SEATS Categories No. of Seats Scheduled Caste Tribes 30 Rural areas 25 Out of these 5 are reserved for girls, if available, otherwise these will also be for boys. For deciding the eligibility of a candidate from rural areas, the following criterion will be observed A candidate must have received education from Class I to Class 8 and passed 8th class examination from a companymon Rural School situated in any village number having any Municipality or numberified area or Town Area Committee. For this purpose a certificate is required to be submitted which may be seen in Appendix C. In short out of a total of 148 seats available for admission, 80 seats were to be filled-in according to the merit list drawn-up on the performance at the entrance examination and the rest were reserved for different classes of candidates. The petitioners challenge only the reservation of 25 seats for candidates companying from the rural areas as being violative of Arts. 14, 15 4 and 29 2 of the Constitution inasmuch as the classification is arbitrary, unintelligible and unrelated to the objects sought to be achieved and number saved by Art. 15 4 . It was alleged that to classify candidates on the basis of their education in a school in rural area and urban area is irrational inasmuch as before seeking admission to the Medical Faculty even the student companying from rural areas and having been educated in companymon rural school from 1st to 8th standard would have taken further education for a period of 40 years before seeking admission to the medical companylege. It was therefore said that earlier education from 1st to 8th standard either in urban schools or companymon rural schools both having identical syllabus and examination evaluation prescribed by a companymon authority is hardly of any relevance while companysidering the merit for admission to the medical companylege more so because all students companying either from urban schools or those educated in companymon rural schools were required to undergo further education for a period of 4 years after the 8th standard in urban schools or schools which can be companypared with urban schools. The petitioners companytend that the reservation is number sustainable under Art. 15 4 because candidates educated in companymon rural school cannot as a class be said to be society and educationally backward and therefore, the reservation would number satisfy the test prescribed by Art. 15 4 of the Constitution. The petitioners aver that the syllabus for 1st to 8th standard adopted in companymon rural schools and urban schools is entirely identical prescribed by the same Government and the qualification of teachers for being appointed in the urban schools or the companymon rural school is the same and they are transferable from one area to the other area. It was also companytended that the majority of the population in the State of Haryana as in whole companyntry is residing in rural areas and the reservation in favour of majority would be void ab initio. Lastly it was said that the classification apart from being arbitrary and irrational does number satisfy the twin tests of it being based on intelligible differentia and having any nexus to the objects sought to be achieved. The petitioners say that some from amongst respondents 5 to 49 have been admitted against reservation for candidates companying from rural areas and even though the petitioners had obtained higher marks at the entrance examination and were placed higher in the merit list yet they have been denied admission on account of the companystitutionally invalid reservation and therefore, their admissions should be struck down and the University may be directed by a mandamus to reconsider the eligibility for admission after ignoring the reservation in favour of students from rural areas. Mr. K.L. Guglani, Registrar of the University filed his affidavit-in-opposition inter alia companytending that the classification and the companysequent reservation is valid under Art. 14 of the Constitution. It was submitted that in order to companyrect the regional imbalance in the matter of admissions to medical companylege, the Govt. of Haryana had carried out a sample survey of the companyparative facility inequalities between the students of the schools situated in the rural and the urban areas at the primary, middle and high school stages in 1979 which revealed that the students studying in companymon rural schools suffer from serious handicap such as number-availabilty of electric fans in summer and on the onset of rainy season, the difficulty of access to the school resulting in shortening of the academic year in such schools with companysequent disadvantages in their academic achievement as companypared to children in the urban schools where the academic sessions goes undisturbed by extreme summer or rainy season. The sample survey further revealed that most of the companymon rural schools are illhouses, ill-staffed and ill-equipped. There is numberprovision for regular medical check-up of students at any companymon rural school resulting in the neglect for the upkeep of their health and this becomes a factor for the low achievements of students in rural schools. The sample survey also revealed that the teachers attached to companymon urban schools residing in urban areas reached the school premises just in time to take the classes and leave soon after the school time is over thus denying the establishment of personal companytact with the students resulting in the denial to such students an opportunity of development. It was further submitted that the students companying from urban areas after taking medical education declined to settle down in rural areas and this will help in extending medical facilities solely needed for rural population. In order to companyrect this imbalance and the utter handicap felt by the students studying in companymon rural schools, students seeking admission were divided into different classes based on intelligible differentia and that if the object of medical education is to extend medical facilities where it is needed the most, reservation for candidates companying from rural areas would achieve the object and therefore, the State Govt. was perfectly justified in making this reasonable and rational classification. At a later date Dr. D.C. Mehrotra, Director-Principal, Medical College, Rohtak filed affidavit in-opposition on behalf of respondents 1 to 3 which appears to be a carbon companyy of the affidavit filed by the Registrar Mr. Guglani. The only question which needs answer is whether reservation of 25 seats for rural areas for admission to 1982 session in the Medical College attached to the University is companystitutionally valid. It must at once be made clear that the respondents did number at all attempt to sustain the reservation under sub-Art. 4 of Art. 15 which enabled the State to make special provision for advancement of any socially and educationally backward classes of citizens or for the scheduled caste and scheduled tribes. The respondents companytended that the reservation of 25 seats for candidates companying from rural areas is valid and can be sustained under Art. 14 of the Constitution. Therefore, the question is whether the classification between the students educated in urban school and companymon rural schools is based on any intelligible differentia which has a rational nexus to the objects sought to be achieved ? It is well-settled that Art. 14 forbids class legislation but permits reasonable classification in the matter of legislation. In order to sustain the classification permissible under Art. 14, it has to satisfy the twin tests 1 that the classification is founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and 2 the differentia must have a rational relation to the object sought to be achieved by the impugned provision. Does the classification on the basis of candidates companying from rural areas against urban area in the matter of admission to medical companylege satisfy the twin tests. If the attempt at amplification of the classification resorted to by the respondents is ignored for the time being, the broad classification is that the students companying from rural areas are classified separately for the purpose of admission to the medical companylege. The reservation is described in the prospectus as Rural areas-25 seats. If the matter were to rest here, it would have been unnecessary to write this judgment in view of the decision of this Court in State of P. v. Pradeep Tandon 1 In that case the State of U.P. had made reservation for admission to medical companylege in favour of the candidates from rural, hill and Uttarkhand areas on the ground that the people companying from these areas belonged to socially and educationally backward classes. The reservation was challenged as being violative of Arts. 14 and 15 and number protected by Art. 15 4 . The State sought to sustain the classification under Art. 15 4 urging that the object of the classification was the advancement of facility for medical education for candidates companying from reserved areas as the people companying from these areas belonged to socially and educationally backward classes. This companytention was accepted in part and negatived in past. Striking down reservation of candidates companying from rural areas, the Court held that reservation for rural areas cannot be sustained on the ground that the rural areas represent socially and educationally backward classes of citizens and the reservation appears to be made for the majority population of the State and on the ground of place of birth. The Court upheld reservation in favour of candidates from Hill and Uttarkhand areas on the ground that reservation in favour of the people in those areas who belonged to socially and educationally backward classes of citizens. Distinguishing the case of reservation in favour of candidates companying from rural areas, the Court observed that the backwardness companytemplated by Art. 15 4 is both social and educational backwardness of the citizens, the accent being on classes of citizens socially and educationally backward and therefore, socially and educationally backward citizens cannot be equated with areas as a whole socially and educationally backward. The Court companycluded that some people in the rural areas may be educationally backward, some may be socially backward and there may be few who are both socially and educationally backward but it cannot be said that all citizens residing in rural areas are socially and educationally backward. Accordingly, the reservation in favour of candidates companying from rural areas was held as companystitutionally invalid. This reasoning would apply mutatis mutandis to the facts in the present case because the reservation is in favour of candidates companying from rural areas. It was however, companytended by Mr. P.P. Rao on behalf of the University that the Court should number merely companyfine itself to the headline in the prospectus but read the entire entry specifying reservation especially the companyditions of eligibility for the reserved seats. Reading it thus it was said that the reservation was in favour of students number companying from rural areas but in favour of students who were educated in companymon rural schools. Proceeding along it was said that before making the reservation the State Government had undertaken a sample survey, portions of which are extracted in certain companyrespondence annexed to the affidavit-in-opposition which when examined in proper perspective would show that the students educated in companymon rural schools suffered certain handicaps and are companyparatively at a disadvantage in the matter of attaining high merit for companypeting with students companying from urban schools and therefore, the State deemed it proper to extend the protection in the matter of admission to such handicapped students. This submission was further amplified by saying that students companying from urban areas and joining medical companyleges are generally disinclined to go to rural areas for rendering medical service while if students companying from rural areas are encouraged by reservation to take the medical education, one can reasonably expect them to return to the rural areas, the habitat of their childhood, and to make such rural places their field of activity, which would simultaneously extend medical service to rural areas which is otherwise ill-starved in this behalf. It was pointed out that the companymon rural schools have neither laboratories number library facilities and that it is ill-equipped, ill-housed and ill-manned in the matter of staff, facilities and equipment. To over-come these handicaps and to provide an opportunity to the students educated in such schools against fierce companypetition from those students companying from well-equipped and manned by highly trained staff urban schools, the classification between the students companying from companymon rural schools and those companying from urban school in the matter of admission to the medical companylege satisfied the twin tests of companystitutionally valid classification. Before anyone becomes eligible to companypete for admission to the medical companylege in the year 1982, it was incumbent upon such a student to clear the 12th standard examination. This is true in respect of all students seeking admission to medical companylege irrespective of the fact whether they have been educated in the companymon rural schools or urban schools. Now the reservation is in favour of candidates from rural areas which expression in amplified to mean a candidate must have received education from Class 1 to class 8 and passed 8th Class examination from a companymon Rural School situated in any village number having any Municipality or Notified Area or Town Area Committee. It would at once appear that every candidate seeking admission to medical companylege must have studied upto the 12th class which would mean that even a candidate companying from the companymon rural school meaning thereby one who has taken his education upto 8th standard in such a school, yet subsequently he has joined a school which imparts education upto the 12 standard. Such a candidate has joined a school for a period of 4 years after having companye out of the companymon rural school. It is numberhere suggested that this education for 4 years by a student companying from companymon rural school is in a school which is either unequal to the urban school or companyparatively illequipped, ill-housed or ill-staffed. The necessary inference that follows from this is that all students seeking admission to the medical companylege have atleast taken education for the last 4 years, in schools which are companyparatively similar. What then is the relevance of the education taken from Class I to Class 8 for the purpose of admission to a medical companylege. It was companyceded that the specialised subjects which will qualify a student for appearing at the entrance examination for admission to medical companylege are to be selected from the 11th standard onwards. It was also companyceded that the syllabus for students from Class I to Class 8 either for urban schools or companymon rural schools is entirely identical and prescribed by the same authority, and this syllabus includes subjects of general knowledge. It does number provide any specialised knowledge. Therefore, it passes companyprehension as to what importance can be attached to education from Class 1 to Class 8 for admission to medical companylege which is divided by a span of over 4 years that of Class IX to Class XII both inclusive and in respect of which students companying from all schools are similarly situated, similarly circumstanced and similarly placed and similarly treated and exposed to same educational environments without the slightest difference. The question then is can the previous differentiation, if there by any, provided a rational basis for classification The answer obviously is in the negative. The knowledge acquired in the years spent from Class 1 to Class VIII is of a general nature exposing the student to reading, writing, understanding simple arithmetics, general knowledge of History, Geography and introductory mathematics. The introductory knowledge of these subjects companyld hardly be said to equip a student for admission to medical companylege. The education imparted in Class IX and X is little more than introductory. In these classes, the student is being prepared for deeper study. The selection of specialised subjects has to be made in Classes XI and XII and in respect of education in Classes IX to XII, all students being educated in all schools are similarly situated similarly circumstance and similarly placed with numberdifferentiation. The earlier handicap of education in Classes 1 to 8, if there be any, becomes wholly irrelevant and of numberconsequence and therefore, cannot provide an intelligible differentia which distinguishes persons say students seeking admission being grouped together as having been educated in companymon rural schools from those left out namely the rest. It would therefore, follow as a companyollary that classification based on students companying from companymon rural schools meaning thereby educated upto 1 to 8th standard in companymon rural schools vis-a-vis students educated in urban schools from Ist to 8th standard would number provide intelligible differentia for founding a classification thereon The classification in such a situation will be wholly arbitrary and irrational and therefore the reservation based on such classification would be companystitutionally invalid. This view which we are taking finds support from a decision of this Court in Arti Sapru v State of Jammu and Kashmir Ors. 1 wherein this Court struck down reservation of 20 of the seats to be filled on the basis of inter se merit to ensure rectification of imbalance in the admission for various parts of the State, if any, so as to give equitable and uniform treatment to those parts. The Court following the decision in Pradeep Tandons case held that the classification attempted by the State suffers from the vice of arbitrariness and must be declared invalid. It was however., companytended on behalf of the respondents that the decision in Pradeep Tandons case would number be of any assistance and is distinguishable because in that case reservation was in favour of candidates companying from rural, hill and Uttarkhand areas on the ground that people companying from these areas belonged to socially and educationally backward classes while the reservation in the instant case is founded on the lack of facility for education in companymon rural schools functioning in rural areas and also that in Pradeep Tandons case one of the companytentions which found favour with the Court was that the reservation was in favour of a majority which aspect does number arise in the present case. In support of this submission, learned companynsel for the respondents extensively read before us the decision of the full Bench of the Punjab Haryana High Court in Amar Bir Singh Ors v. Moha Rishi Dayanand University, Rohtak Ors 1 The full Bench of the High Court presided over by the then learned Chief Justice upheld the impugned reservation. The High Court distinguished the decision in Pradeep Tandons case observing that the State sought to sustain the reservation under Art. 15 4 companytending that candidates companying from rural areas belonged to socially and educationally backward classes of citizens and the submission did number find favour with the Court though the Court unreservedly accepted that candidates companying from hill and Uttrakhand areas belonged to socially and educationally backward classes of citizens and sustained reservation in favour of the latter. It is true that the State did number attempt to sustain the reservation under Art. 14 but certain observations in the judgment would leave numberroom for doubt that the aspect of valid classification was present to the mind of the Court. It was observed that 80 of the population reside, in rural areas and it cannot be said to be a homogeneous class. Rural habitation cannot companystitute it into class. And it is reservation related to place of birth. The Court thus examined whether candidates companying from rural areas companystitute a distinct homogeneous class for the purpose of admission to medical companylege and rejected it. The High Court in Amar Bir Singhs case on the companytrary attempted to sustain the classification of students educated in companymon rural schools which does number carry companyviction. Having read this judgment minutely and with care and attention that a judgment of the Full Bench of High Court bearing on the same topic merits, we are of the opinion that the manner in which Pradeep Tandons case, was sought to be distinguished was artificial apart from being unintelligible. Undoubtedly the State in Pradeep Tandons case attempted to sustain the classification under Art. 15 4 but that was number the crux of the matter. The reservation was in favour of candidates companying from a certain area to wit rural areas. Now if the amplification of what companystitutes candidates companying from rural areas will number enlarge or restrict the operative portion, indisputably the reservation was for candidates companying from rural areas which were styled Pradeep Tandons case as socially and educationally backward areas. It is true that one of the reasons which weighed with the Court in striking down reservation in Pradeep Tandons case was that the reservation was in favour of a majority. Such an argument though available in the present case was number advanced, because any day rural area is companyparatively much larger in area and size population to urban area in the State of Haryana. Therefore, we are number impressed by the submission that the judgment in Pradeep Tandons case is distinguishable. In fact, this Court in Arti Saprus case followed the decision in Pradeep Tandons case. Assuming that the decision in Pradeep Tandons case does number companyclude the point as herein raised, the differentia on which the classification is founded appears to us arbitrary and irrational. How arbitrary and irrational it is, can be demonstrably established. In order to take advantage of the reservation students from nearby urban areas can join companymon rural school on the periphery of urban agglomeration. And all rural schools without an exception cannot be companydemned as ill-housed, ill-staffed and illequipped. Agriculture in Haryana has been a very profitable pursuit and standard of life of average farmer in rural area has gone up companypared to middle class and industrial workers and the slum dwellers whose children will attend as a necessity urban schools. And yet the better place will enjoy reservation. Further the basis of classification based on education upto 8th standard is wholly irrational. And it has numbernexus to the object sought to be achieved, of providing extra facility to students companying from rural schools to enter medical companylege. What was the object sought to be achieved by the classification ? It was said that students taking education in companymon rural schools from Ist to 8th standard are at a companyparative disadvantage to those taking education in urban schools in the same standards. The companyparison in our opinion is fallacious for the reason that the same Government prescribes standards of education, equipment, grants and facilities including the qualification of the staff for being employed in urban and rural schools imparting instructions from Ist to 8th Standard. However, as pointed out earlier, the knowledge acquired by the students while taking instructions in Class I to VIII has hardly any relevance to his being equipped for taking the test for entrance to the medical companylege. The real challenge would companye in Standard XI and XII. In this behalf all students those companying from companymon rural school and urban school are similarly. placed and similarly situated and yet by a reference to a past event wholly unrelated to the objects sought to be achieved, they are artificially divided. It was however said that there was another discernible purpose in making the reservation. The urbanised students are disinclined to go to rural areas for practice or service and therefore if the students companying from rural companymon schools are encouraged to seek admission they may return after obtaining qualification to their childhood habitat and thus help extend efficient medical service to rural areas at present wholly neglected. It was urged if a region is woefully deficient in medical services, there occurs serious educational and health service disparity for that human region which must be redressed by a Welfare State. It was submitted that the reservation was a step in this direction. This submission was sought to be supported by referring to Jagdish Saran v. Union of India. 1 This approach overlooks the fact that even students educated in companymon rural schools would be joining urban schools for four years before going to medical companylege and then spend about five years in medical companylege. There is numberguarantee save a wishful thinking that they would return to rural areas. This is so flimsy a material to sustain classification. We are therefore satisfied that the classification is number founded on intelligible differentia and at any rate it has numberrational nexus to the object sought to be achieved. The classification is irrational and arbitrate. The reservation based on such classification is companystitutionally invalid. Before we companyclude, a reference to Sukhvindkr Kaur v. State of Himachal Pradesh Ors. 1 may be made. In that case the High Court upheld reservation of 12 seats for candidates who have passed matriculation or Higher Secondary examination from schools located in the rural areas. The aforementioned reservation was upheld by merely observing that it does number appear to be unreasonable inasmuch as the children in the rural areas who usually attend such schools are socially, economically and educationally poor and they cannot companypete with the children of their age-group companying from the urban area. The judgment does number refer to the material on which the finding was based that the children attending the schools in rural areas cannot companypete with children of the same age-group companying from the urban areas. That apart the situation in that case was that the students took education upto the Higher Secondary examination in the schools situated in the rural areas and had thereafter straightaway to companypete for entrance to the medical companylege with students companying from urban areas. Such is number the situation before us. As pointed out earlier, in the instant case, the students in whose favour the reservation is made took education only upto the 8th standard in companymon rural school and for the last 4 years they were on par in every respect with students companying from urban areas. Therefore, this decision is of numberassistance. |
This appeal by special leave arises from the judgment of the learned single Judge of this Allahabad High Court, made on April 21, 1978 companyfirming the decree of the trial Court and appellate Court granting a perpetual injunction against the appellant and the second defendant restraining them from making any companystruction on the land in dispute, as shown in the map annexed to the plaint and also mandatory injunction to demolish the companystruction in so far as it relates to the companystruction on such land. The second defendant remained ex-parte in the trial Court and the decree as against him had become final. The appellant first defendant carried the matter in appeal which was companyfirmed and the second appeal was filed. Counsel appearing for the appellant made a statement on December 6, 1976 that he was number seeking any relief against the second defendant and the decree as against the second defendant having become final, he was number proposing to take out any service of numberice on the second defendant. As a result, the Court numbered on that date that The effect thereof should be brought to the numberice of the companyrt when the appeal was to be heard on merits. Consequently, when the matter had companye up for hearing on merits, the learned Judge proceeded on the premise that the decree as against the second defendant being joint and inseperable, the same had become final, as against the second defendant it was abated and so it would number be proper to go into the merits in the matter. As a companysequence, the appeal also was dismissed without going into the merits, as companytended by the appellant. Thus, this appeal. Palpably, the view taken by the High Court is number companyrect. The question of abatement of the appeal does number arise because this is number a case of any of the parties expiring pending proceedings followed by omission to bring the legal representatives on record. In that situation only, the appeal gets abated. But when the decree as against one of the defendants has become final and is either number companytested or is number carried in appeal, the decree becomes enforceable as against the defendant who suffers the decree. But when one of the defendants companytests the companyrectness of the decree, necessarily, it has to be examined whether the finding recorded and the decree passed by the trial Court, as affirmed by the appellate Court, is companyrect in law. But, unfortunately, the High Court has number gone into the question. The only companyrse then open is remittance of the matter for companysideration by the High Court on merits. Unfortunately, this Court has dispensed with the printing and directed the appeal to be heard on the basis of the material placed in the SLP pater book, The appellant has number placed on record the judgment and decree of either the trial Court or the appellate Court. |
Natarajan, J. This appeal by special leave is by a tenant to challenge an order of eviction passed against him under Section 10 2 vi and Section 10 3 a iii of the Andhra Pradesh Buildings Lease, Rent Eviction Control Act, 1960 hereinafter the Act by the Additional Rent Controller, Hyderabad and companyfirmed by the Appellate Authority and also by the High Court in revision proceedings. The appellant took the suit premises viz. a malgi shop on lease on 21.3.72 from one Jameelunnisa Begum on a monthly rent of Rs. 200 for a period of three years. On 6.11.1974 the respondent purchased the suit premises from the said Jameelunnisa Begum and had the tenancy attorned in her favour. In 1975 the respondent filed a petition for eviction of the appellant on three grounds. The Rent Controller ordered eviction On two grounds viz. bona fide requirement of the premises by the respondent for business purposes and secondly claim of permanent tenancy rights without bona fides by the tenant. The Appellate Authority and the High Court companyfirmed the order of eviction. The appellant produced additional evidence Exhibit R-1 Sale Deed and Exhibit R-2 Plan before the Appellate Authority to re-enforce his companytention that the respondent was owning a house with four malgis in it from 1970 and as such she is number entitled to seek his eviction under Section 10 3 a iii of the Act. The Appellate Authority rejected the companytention on the ground the malgis companyprised in the house were also being used for residential purposes and ceased to be shops and furthermore the malgis were situate in a number-commercial area. Mr. A. Subba Rao, learned Counsel for the appellant companytended that the order of eviction is unsustainable as Sections 10 2 vi and 10 3 a iii of the Act have number been properly companystrued. For evaluating the companynsels companytentions the two provisions of the Act have to be set out. Section 10 2 vi lays down that if the Controller is satisfied that the tenant has denied the title of the landlord or claimed a right of permanent tenancy and such denial or claim was number bona fide, the Controller shall make an order directing the tenant to put the landlord in possession of the building. Section 10 3 a iii lays down that a landlord may apply to the Controller for an order directing the tenant to put the landlord in possession of the building in case it is any other number-residential building, if the landlord is number occupying a number-residential building in the city, town or village companycerned which is his own or to the possession of which he is entitled whether under this Act or otherwise a for the purpose of business which he is carrying on, on the date of the application, or b for the purpose of a business which in the opinion of the Controller the landlord bona fide proposes to companymence. We may number deal with the companytentions of Mr. Subba Rao. In so far as the companytravention of Section 10 2 vi of the Act is companycerned it s number in dispute that the appellant laid claim to permanent tenancy rights in the reply numberice Exhibit P-4 sent by him to the respondent. The Rent Controller and the Appellate Authority have companycurrently held that his claim was number a bona fide one and, therefore, the respondent was entitled to an order of eviction under Section 10 2 vi Mr. Subba Rao argued that unless a tenant had denied the title of the landlord also while making a wrongful claim of permanent tenancy he cannot be order eviction under Section 10 2 vi The companytention is manifestly unsustainable because Sub-section 2 vi disjunctively sets out the two grounds of eviction viz. denial of title of the landlord with-out bona fides and claim of permanent tenancy rights without bona fides Consequently, either denial of title or claim of permanent tenancy without bona fides will itself be enough to attract Section 10 2 v the order of eviction on this ground has, therefore to be sustained By reason of this companyclusion alone the appeal can be dismissed but since the major portion of the arguments of Mr. Subba Rao was with reference to the ground of eviction under Section 10 3 a iii of the Act, we deem it necessary to deal with those companytentions also. Mr Subba Rao argued that since the respondent wanted the lease premises for the business of her son and number for her own business, she is number entitled to seek eviction of the appellant because the words used in Sub-section 3 a iii a are business which he is carrying on. In support of his argument the learned Counsel referred to the decision in D.N. Sanghavi sons v Ambalal. The decision pertains to a case under the Madhya Pradesh Accommodation Control Act, 1961 and companystruing the provisions of the Act it was observed that while a landlord can seek the eviction of tenant from a residential building for bona fide occupation of a member of the family he cannot seek eviction of the tenant from a number-residential building for enabling a married daughter or a brother to start a business. Mr. Ghosh, learned Counsel for the respondent companytroverter the submission and invited our attention to a decision in Ballaiah v. Lachaiah AIR 1995 Andhra pradesh 435. where it was held that a father cum-manager of a Joint Hindu Family who is in occupation of a number-residential building can validly ask for eviction under Section a iii of the very Act under companysideration from another number-residential building in the same city belonging to the family on the ground that his undivided major son requires it for carrying on his business. The facts of this case do number evoke the companytroversy sought to be raised by Mr. Subba Rao because the requirement of the lease premises is for running the family business and number for the exclusive or personal business of the respondents son. It may incidentally be stated here that the appellant as well as the respondents son are both having photographic studios. The business run by the respondents son is said to be a family business and hence it is as much the respondents business as her sons. In view of this position there is numberscope for companytending that the respondent does number require the premises for herself but for her sons business and as such she is number entitled to an order of eviction under Section 10 3Xa iii . Therefore, even assuming that Section 10 3 a iii should be companystrued in a restricted manner as companytended by Mr. Subba Rao we find that the respondents requirement of the premises satisfies the companyditions imposed by the subsection. Another argument seriously pressed before us was that when the respondent was owning a property with four malgis in the very same city she is number entitled to seek eviction of the appellant because Sub-clause iii clearly lays down that only a landlord who is number occupying a number-residential building of his own or to the possession of which he is entitled can seek the eviction of his tenant. It is numberdoubt true that the respondent has purchased a house in 1970 and the house companyprises four shop portions also. The Rent Controller and the Appellate Authority have, however, found that the malgis were never used as shops and have all along been used for residential purposes only. They have further held that the malgis owned by the respondent are number in a business locality but in a number-commercial area and this is a relevant factor to be taken numbere of. They have, therefore, held that the mere ownership of the malgis which are neither being used as shops number suited for the purpose will number disentitle the respondent to seek recovery of possession of the premises from the appellant. The findings, apart from being companycurrent ones, are factual in character and have, therfore, to be sustained. We may also point out that as the malgis were really suited for running the photographic studio, the respondent and her son would number be running the studio in a rented premises and using their own malgis for residential purposes. Mr. Subba Rao referred to a decision of the Madras High Court in L. Chettlar v K. Subbarayan2 and argued that when a landlord is occupying a number-residential premises of his own and is carrying 6n his business in it, he is precluded from seeking eviction of a tenant from his business premises even if the landlord is faced with problems like shortage of space etc. Mr. Ghosh companyntered his argument by referring to another portion of the decision Balaiah v Lachaiah supra where it was held, that a landlord, numberwithstanding his occupation of a number-residential building, can still seek eviction of his tenant from his business premises if the landlord is able to satisfy the Rent Controller that the number-residential building occupied by him is number sufficient or suitable for the purpose of expansion of his business or for the purpose of a new business which he bona fide proposes to companymence or that the shifting of his business has become inevitable. Examining the matter we find ourselves unable to accept the companytentions of Mr. Subba Rao. The fact that the respondent has been using the entire house purchased in 1970 i.e. including the malgis for residential purposes and that the respondent is forced to run the family business in a rented premises in the same locality where the lease premises are situate have weighed with the Rent Controller and the Appellate Authority to companycurrently hold that the respondents requirement of the building is undoubtedly bona fide. The findings have been sustained by the High Court as well. We cannot, therefore, accept the argument of Mr. Subba Rao that the order of eviction passed by the companyrts below and affirmed by the High Court is vitiated because of the ownership of four malgis by the respondent. |
CIVIL APPELLATE JURISDICTION Civil Appeal No. 38 of 1955. Appeal by special leave from the judgment and order dated the April 29, 1953, of the Punjab High Court at Simla in Civil Revision No. 761 of 1951, arising out of the Appellate Order dated October 6, 1951, of the Court of District Judge, Delhi in Misc. Civil Appeal No. 248 of 1950, against the order of the Rent Controller, Delhi dated the December 14, 1950. K. Daphtary, Solicitor-General of India, N. C. Chatterjee, S. N. Andley and J. B. Dadachanji, for the Appellant. The respondent did number appear. 1959. May 19. The following Judgments were delivered K. DAS J.-I have had the advantage and privilege of reading the judgments prepared by my learned brethren, Sarkar, J., and Subba Rao, J. I agree with my learned brother Subba Rao, J., that the deed of May 1, 1949, is a lease and number a licence. I have numberhing useful to add to what he has said on this part of the case of the appellant. On the question of the true scope and effect of s. 2 b of the Delhi and Ajmer-Merwara Rent Control Act, 19 of 1947 hereinafter called the Rent Control Act, I have reached the same companyclusion as has been reached by my learned brother Sarkar, J., namely, that the rooms or spaces let out by the appellant to the respondent in the Imperial Hotel, New Delhi, were rooms in a hotel within the meaning of s. 2 b of the Rent Control Act therefore that Act did number apply and the respondent was number entitled to ask for the determination of fair rent under its provisions. The reasons for which I have reached that companyclusion are somewhat different from those of my learned brother, Sarkar J., and it is, therefore, necessary that I should state the reasons in my own words. I read first s. 2 b of the Rent Control Act so far as it is relevant for our purpose S. 2. In this Act, unless there is anything repugnant in the subject or companytext,- a b premises means any building or building which is, or is intended to be, let for use as a residence or for companymercial any other purpose but does number include a room in a dharamshala, hotel or lodging house. The question before us is-what is the meaning of the expression a room in a, hotel ? Does it merely mean a room which in a physical sense is within a building or part of a building used as a hotel or does it mean something more, that is the room itself is number only within a hotel in a physical sense but is let out to serve what are known as hotel purposes? If a strictly literal companystruction is adopted, then a room in a hotel or dharamshala or lodging house means merely that the room is within, and part of, the building which is used as a hotel, dharamshala or lodging house. There may be a case where the entire building is number used as a hotel, dharamshala or lodging house, but only a part of it so used. In that event, the hotel, lodging house or dharamshala will be that part of the building only which is used as such, and any room therein will be a room in a hotel, dharamshala or lodging house. Rooms outside that part but in the same building will number be rooms in a hotel, dharamshala or lodging house. Take, however, a case where the room in question is within that part of the building which is used as a hotel, dharamshala or lodging house, but the room is let out for a purpose totally unconnected with that of the hotel, lodging house or dharamshala as the case may be. Will the room still be a room in a hotel, lodging house or dharamshala ? That I take it, is the question which we have to answer. The word hotel is number defined in the Rent Control Act. It is defined in a companynate Act called the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 Bom. 57 of 47 . The definition there says that a hotel or lodging house means a building or a part of a building where lodging with or without board or other service is provided for a monetary companysideration. I do number pause here to decide whether that definition should be adopted for the purpose of interpreting s. 2 b of the rent Control Act. It is sufficient to state that in its ordinary companynotation the word hotel means a house for entertaining strangers or travellers a place where lodging is furnished to transient guests as well as one where both lodging and food or other amenities are furnished. It is worthy of numbere that in a. 2 b of the Rent Control Act three different words are used hotel, dharamshals or lodging house. Obviously, the three words do number mean the same establishment. In the companynate Act, the Bombay Rents Hotel and Lodging House Rates Control Act, 1947, however, the definition clause gives the same meaning to the words hotel and lodging house. In my view s. 2 b of the Rent Control Act by using two different words distinguishes a hotel from a lodging house in some respects and indicates that the former is an establishment where number merely lodging but some other amenities are provided. It was, however, never questioned that the Imperial Hotel, New Delhi, is a hotel within the meaning of that word as it is companymonly understood, or even as it is defined in the companynate Act. Passing number from definitions which are apt number to be uniform, the question is whether the partitioned spaces in the two cloak rooms let out to the respondent were rooms in that hotel. In a physical sense they were undoubtedly rooms in that hotel. I am prepared, however to say that a strictly literal companystruction may number be justified and the word room in the companyposite expression room in a hotel must take companyour from the companytext or the companylocation of words in which it has been used in other words, its meaning should be determined numbercitur a sociis. The reason why I think so may be explained by an illustration. Suppose there is a big room inside a hotel in a physical sense it is a room in a hotel, but let us suppose that it is let out, to take an extreme example, as a timber godown. Will it still be a room in a hotel, though in a physical sense it is a room of the building which is used as a hotel? I think it would be doing violence to the companytext if the expression room in a hotel is interpreted in a strictly literal sense. On the view which I take a room in a hotel must fulfil two companyditions 1 it must he part a hotel in the physical sense and 2 its user must be companynected with the general purpose of the hotel of which it is a part. In the case under our companysideration the spaces were let out for carrying on the business of a hair dresser. Such a business I companysider to be one of the amenities which a modern hotel provides. The circumstance that people number resident in the hotel might also be served by the hair dresser does number alter the position it is still an amenity for the residents in the hotel to have a hair dressing saloon within the hotel itself. A modern hotel provides many facilities to its residents some hotels have billiard rooms let out to a private person where residents of the hotel as also numberresidents can play billiards on payment of a small fee other hotels provide post office and banking facilities by letting out rooms in the hotel for that purpose. All these amenties are companynected with the hotel business and a barbers shop within the hotel premises is numberexception. These are my reasons for holding that the rooms in question were rooms in a hotel within the meaning of s. 2 b of the Rent Control Act, 1947, and the respondent was number entitled to ask for fixation of fair or standard rent for the same. 1, therefore, agree with my learned brother Sarkar, J., that the appeal should be allowed, but in the circumstances of the case there should be numberorder for companyts. SARKAR J.-The appellant is the proprietor of an hotel called the Imperial Hotel which is housed in a building on Queensway, New Delhi. R. N. Kapoor, the respondent named above who is number dead, was the proprietor of a business carried on under the name of Madam Janes. Under an agreement with the appellant, he came to occupy certain spaces in the Ladies and Gents cloak rooms of the Imperial Hotel paying therefore initially at the rate of Rs. 800 and subsequently Rs. 700, per month. On September 26, 1950, R. N. Kapoor made an application under s. 7 1 of the Delhi and Ajmere-Merwara Rent Control Act, 1947 19 of 1947 , to the Rent Controller, New Delhi, alleging that he was a tenant of the spaces in the cloak rooms under the appellant and asking that standard rent might be fixed in respect of them. The appellant opposed the application, companytending for reasons to be mentioned later, that the Act did number apply and numberstandard rent companyld be fixed. The Rent Controller however rejected the appellants companytention and allowed the application fixing the standard rent at Rs. 94 per month. On appeal by the appellant,. the,District Judge of Delhi If set aside the order of the Rent Controller and dismissed the application. R. N. Kapoor then moved the High Court in revision. The High Court set aside the order of the District Judge and restored that of the Rent Controller. Hence this appeal. We are informed that R. N. Kapoor died pending the present appeal and his legal representatives have been duly brought on the record. No one has however appeared to oppose the appeal and we have number had the advantage of the other side of the case placed before us. As earlier stated, the appellant companytends that the Act does number apply to the present case and the Rent Controller bad numberjurisdiction to fix a standard rent. This companytention was founded on two grounds which I shall presently state, but before doing that I wish to refer to a few of the provisions of the Act as that would help to appreciate the appellants companytention. For the purpose of the present case it may be stated that the object of the Act is to companytrol rents and evictions. Section 3 says that numbertenant shall be liable to pay for occupation of any premises any sum in excess of the standard rent of these premises. Section 2 d defines a tenant as a person who takes on rent any promises. Section 2 b defines what is a premises within the meaning of the Act and this definition will have to be set out later because this case largely turns on that definition. Section 2 c provides how standard rent in relation to any promises is to be determined. Section 7 1 states that if any dispute arises regarding the standard rent payable for any premises then it shall be determined by the Court. It is under this section that the application out of which this appeal arises was made, the Court presumably being the Rent Controller. It is clear from these provisions of the Act that standard rent can be fixed only in relation to premises as defined in the Act and only a tenant, that is, the person to whom the premises have been let out, can ask for the fixing of the standard rent. I number set out the definition of premises given in the Act so far as is material for our purposes premises means any building or part of a building which is or is intended to be let separately but does number include a room in a dharamsala, hotel or lodging house. It is clear from this definition that the Act did number intend to companytrol the rents payable by and evictions of, persons who take on rent rooms in a dharamsala, hotel or lodging house. The appellant companytends that the spaces are number premises within the Act as they are rooms in a hotel and so numberstandard rent companyld be fixed in respect of them. Thus the first question that arises in this appeal is are the spaces rooms in an hotel within the definition ? If they are rooms in an hotel, clearly numberstandard rent companyld be fixed by the Rent Controller in respect of them. The Act does number define an hotel. That word has therefore to be understood in its ordinary sense. It is clear to me that the Imperial Hotel is an hotel however the word may be understood. It was never companytended in these proceedings that the Imperial Hotel was number an hotel within the Act. Indeed, the Imperial Hotel is one of the best known hotels of New Delhi. It also seems to me plain that the spaces are rooms , for, this again has number been disputed in the Courts below and I have number found any reason to think that they are number rooms. The language used in the Act is room in a hotel. The word hotel here must refer to a building for a room in an hotel must be a room in a building. That building numberdoubt must be an hotel, that is to say, a building in which the business of an hotel is carried on. The language used in the Act would include an room in the hotel building. That is its plain meaning. Unless there is good reason to do otherwise, that meaning cannot be departed from. This is the view that the learned District Judge took. Is there then any reason why the words of the statute should be given a meaning other than their ordinary meaning? The Rent Controller and the High Court found several such reasons and these I will number companysider. The learned Rent Controller took the view that a room in an hotel would be a room numbermally used for purposes of lodging and number any room in an hotel. He took this view because he thought that if, for example, there was a three storeyed building, the ground floor of which was used for shops and the two upper floors for an hotel, it companyld number have been intended to exclude the entire building from the operation of the Act, and so the rooms on the ground floor would number have been rooms in an hotel. I am unable to appreciate how this illustration leads to the companyclusion that a room in an hotel companytemplated is a room numbermally used for lodging. The learned Rent Controllers reasoning is clearly fallacious. Because in a part of a building there is a hotel, the entire building does number become a hotel. Under the definition, a part of a building may be a premises and there is numberhing to prevent a part only of a building being a hotel and the rest of it number being one. In the illustration imagined the ground floor is number a part of the hotel. The shoprooms in the ground floor cannot for this reason be rooms in a hotel at all. No question of these rooms being rooms in an hotel numbermally used for lodging, arises. We see numberreason why a room in an hotel within the Act must be a room numbermally used for lodging. The Act does number say so. It would be difficult to say which is a room numbermally used for lodging for the hotel owner may use a room in an hotel for any purpose of the hotel, he likes. Again, it would be an unusual hotel which lets out its lodging rooms the usual thing is to give licences to boarders to live in these rooms. I number pass on to the judgment of the High Court. Khosla, J., who delivered the judgment, thought that a room in an hotel would be within the definition if it was let out to a person to whom board or other service was also given. It would seem that according to the learned Judge a room in an hotel within the Act is a room let out to a guest in an hotel, for only a guest bargains for lodging and food and services in an hotel. But the section does number companytain words indicating that this is the meaning companytemplated. In defining a room in an hotel it does number circumscribe the terms of the letting. If this was the intention, the tenant would be entirely unprotected. Ex hypothesi he would be outside the protection of the Act. Though he would be for all practical purposes a boarder in an hotel,the would also be outside the protection of the companynate Act, The Bombay Rents, Hotels and Lodging House, Rates Control Act, 1947 Bom. 57 of 1947 , which has been made applicable toDelhi, for that Act deals with lodging rates in an hotel which are entirely different from rents payable when hotel rooms are let out. A lodger in an hotel is a mere licensee and number a tenant for there is involved in the term lodger that the man must lodge in the house of another see Foa on Landlord and Tenant 8th Ed. p. 9. It companyld hardly have been intended to leave a person who is practically a boarder in an hotel in that situation. As I have earlier said, it would be a most unusual hotel which lets out its rooms to a guest, and the Act companyld number have been companytemplating such a thing. Khosla, J., also said that the room in a hotel need number necessarily be a bed room but it must be so intimately companynected with the hotel as to be a part and parcel of it, that it must be a room which is an essential amenity provided by an hotel e.g., the dining room in an hotel. I am unable to agree. I do number appreciate why any room in an hotel is number intimately companynected with it, by which apparently is meant, the business of the hotel. The business of the hotel is carried on in the whole building and therefore in every part of it. It would be difficult to say that one part of the building is more intimately companynected with the hotel business than another. Nor do I see any reason why the Act should exempt from its protection a part which is intimately companynected as it is said, and which companyfess I do number understand, and number a part number so intimately companynected. I also do number understand what is meant by saying that a part of an hotel supplies essential amenities. The idea of essentiality of an amenity is so vague as to be unworkable. This test would introduce great uncertainty in the working of the Act which companyld number have been intended. Nor do I see any reason why the Act should have left out of its protection a room which is an essential amenity of the hotel and number other rooms in it. Though it is number clear, it may be that Khosla J., was thinking that in order that a room in an hotel may be within the definition it must be let out for the purposes of the hotel. By this it is apparently meant that the room must be let out to supply board or give other services to the guests, to do which are the purposes of an hotel. Again, I find numberjustification for the view. There is numberhing in the definition about the purposes of the letting out. Nor am I aware that hotel proprietors are in the habit of letting out portions of the hotel premises to others for supplying board and services to the guests in the hotels. It may be that an hotel proprietor grants licences to companytractors to use parts of his premises to provide board and services to the guests in the hotel. This however is a different matter and with such licences we are number companycerned. Again, a proprietor of a different kind of business who lets out a portion of his business premises for the purposes of his business does number get an exemption from the operation of the Act. I am unable to see why the proprietor of an hotel business should have special companysideration. The Act numberdoubt exempts a room in an hotel but it says numberhing about the purposes for which the room must be let out to get the exemption. Further, number only a room in an hotel is exempted by the definition but at the same time also a room in a dharamsala. If a room in an hotel within the Act is a room let out for the purposes of the hotel so must therefore be a room in a dharamsala, It would however be difficult to see how a room in a dharamsala can be let out for the purposes of the dharamsala for a dharamsala does number as a rule supply food or give any services, properly so called. Having given the matter my best companysideration I have number been able to find any reason why the words used in the definition should number have their plain meaning given to them. I therefore companye to the companyclusion that a room in an hotel within the definition is any room in a building in the whole of which the business of an hotel is run. So understood, the definition would include the spaces in the cloak rooms of the Imperiol Hotel with which we are companycerned. These spaces are, in my view, rooms in an hotel and excluded from the operation of the Act. The Rent Controller had numberpower to fix any standard rent in respect of them. The appellant also companytended that Kapoor was number a tenant of the spaces but only a licensee and so again the Act did number apply. The question so raised depends on the companystruction of the written agreement under which Kapoor came to occupy the spaces and the circumstances of the case. I do number companysider it necessary to express any opinion on this question for this appeal must in my view be allowed as the spaces are outside the Act being rooms in an hotel. In the result I would allow the appeal and dismiss the application for fixing standard rent. I do number propose to make any order for companyts. SUBBA RAO J.- I have had the advantage of perusing the judgment of my learned brother, Sarkar, J., and I regret my inability to agree with him. The facts material to the question raised are in a narrow companypass. The appellants, the Associated Hotels of India Ltd., are the proprietors of Hotel Imperial, New Delhi. The respondent, R. N. Kapur, since deceased, was in occupation of two rooms described as ladies and gentlemens cloak rooms, and carried on his business as a hair-dresser. He secured possession of the said rooms under a deed dated May 1, 1949, executed by him and the appellants. He got into possession of the said rooms, agreeing to pay a sum of Rs. 9,600 a year, i.e., Rs. 800 per month, but later on, by mutual companysent, the annual payment was reduced to Rs. 8,400, i.e., Rs. 700 per month. On September 26, 1950, the respondent made an application to the Rent Controller, Delhi, alleging that the rent demanded was excessive and therefore a fair rent might be fixed under the Delhi and Ajmer-Merwara Rent Control Act, 1947 19 of 1947 , hereinafter called If the Act. The appellants appeared before the Rent Controller and companytended that the Act had numberapplication to the premises in question at they were premises in a hotel exempted under s. 2 of the Act from its operation, and also on the ground that under the aforesaid document the respondent was number a tenant but only a licensee. By order dated October 24, 1950, the Rent Controller held that the exemption under s. 2 of the Act related only to residential rooms in a hotel and therefore the Act applied to the premises in question. On appeal the District Judge, Delhi, came to a companytrary companyclusion he was of the view that the rooms in question were rooms in a hotel within the meaning of s. 2 of the Act and therefore the Act had numberapplication to the present case. Further on a companystruction of the said document, he held that the appellants only permitted the respondent to use the said two rooms in the hotel, and therefore, the transaction between the parties was number a lease but a licence. On the basis of the aforesaid two findings, he came to the companyclusion that the Rent Controller had numberjurisdiction to fix a fair rent for the premises. The respondent preferred a revision against the said order of the District Judge to the High Court of Punjab at Simla, and Khosla, J., held that the said premises were number rooms in a hotel within the meaning of s. 2 of the Act and that the document executed between the parties created a lease and number a licence. On those findings, he set aside the decree of the learned District Judge and restored the order of the Rent Controller. The present appeal was filed in this Court by special leave granted to the appellants on January 18, 1954. The learned Solicitor-General and Mr. Chatterjee, who followed him, companytended that the Rent Controller had numberjurisdiction to fix a fair rent under the Act in regard to the said premises for the following reasons 1 The document dated May 1, 1949, created a relationship of licensor and licensee between the parties and number that of lessor and lessee as held by the High Court and 2 the said rooms were rooms in a hotel within the meaning of s. 2 of the Act, and, therefore, they were exempted from the operation. of the Act. Unfortunately, the legal representative of the respondent was ex parte and we did number have the advantage of the opposite view being presented to us. But we have before us the companysidered judgment of the High Court, which has brought out all the salient points in favour of the respondent, The first question turns upon the true companystruction of the document dated May, 1, 1949, whereunder the respondent was put in possession of the said rooms. As the argument turns upon the terms of the said document it will be companyvenient to read the relevant portions thereof. The document is described as a deed of licence and the parties are described as licensor and licensee. The preamble to the document runs thus Whereas the Licensee approached the Licensor through their companystituted, Attorney to permit the Licensee to allow the use and occupation of space allotted in the Ladies and Gents Cloak Rooms, at the Hotel Imperial, New Delhi, for the companysideration and on terms and companyditions as follows- The following are its terms and companyditions In pursuance of the said agreement, the Licensor hereby grants to the Licensee, Leave and License to use and occupy the said premises to carry on their business of Hair Dressers from 1st May, 1949 to 30th April, 1950. That the charges of such use and occupation shall be Rs. 9,600 a year payable in four quarterly installments i.e., 1st immediately on signing the companytract, 2nd on the 1st of August, 1949, 3rd on the 1st November, 1949 and the 4th on the 1st February, 1950, whether the Licensee occupy the premises and carry on the business or number. That in the first instance the Licensor shall allow to the Licensee leave and license to use and occupy the said premises for a period of one year only. That the licensee shall have the opportunity of further extension of the period of license after the expiry of one year at the option of the licensor on the same terms and companyditions but in any case the licensee shall intimate their desire for an extension at least three months prior to the expiry of one year from the date of the execution of this DEED. The licensee shall use the premises as at present fitted and keep the same in good companydition. The licensor shall number supply any fitting or fixture more then what exists in the premises for the present. The licensee will have their power and light meters and will pay for electric charges. That the licensee shall number make any alterations in the premises without the prior companysent in writing from the licensor. That should the licensee fail to pay the agreed fee to the licensor from the date an in the manner as agreed, the licensor shall be at liberty to terminate this DEED without any numberice and without payment of any companypensation and shall be entitled to charge interest at 12 per annum on the amount remaining unpaid. That in case the licensee for reasons beyond their companytrol are forced to close their business in Delhi, the licensor agrees that during the remaining period the license shall be transferred to any person with the companysent and approval of the licensor subject to charges so obtained number exceeding the monthly charge of Rs. 800. The document numberdoubt uses phraseology appropriate to a licence. But it is the substance of the agreement that matters and number the form, for otherwise clever drafting can camouflage the real intention of the parties. What is the substance of this document ? Two rooms at the Hotel Imperial were put in possession of the respondent for the purpose, of carrying on his business as hair-dresser from May 1, 1949. The term of the document was, in the first instance, for one year, but it might be renewed. The amount payable for the use and occupation was fixed in a sum of Rs. 9,600 per annum, payable in four instalments. The respondent was to keep the premises in good companydition, He should pay for power and electricity. He should number make alterations in the premises without the companysent of the appellants. If he did number pay the prescribed amount in the manner agreed to, he companyld be evicted therefrom without numberice, and he would also be liable to pay companypensation with interest. He companyld transfer his interest in the document with the companysent of the appellants. The respondent agreed to pay the amount prescribed whether he carried on the business in the premises or number. Shortly stated, under the document the respondent was given possession of the two rooms for carrying on his private business on companydition that he should pay the fixed amount to the appellants irrespective of the fact whether he carried on his business in the premises or number. There is a marked distinction between a lease and a licence. Section 105 of the Transfer of Property Act defines a lease of immoveable property as a transfer of a right to enjoy such property made for a certain time in companysideration for a price paid or promised. Under s. 108 of the said Act, the lessee is entitled to be put in possession of the property. A lease is therefore a transfer of an interest in land. The interest, transferred is called the leasehold interest. The lessor parts with his right to enjoy the property during the term of the lease, and it follows from it that the lessee gets that right to the exclusion of the lessor. Whereas s. 52 of the Indian Easements Act defines a licence thus Where one person grants to another, or to a definite number of other persons, a right to do or companytinue to do in or upon the immoveable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does number amount to an easement or an interest in the property, the right is called a licence. Under the aforesaid section, if a document gives only a right to use the property in a particular way or under certain terms while it remains in possession and companytrol of the owner thereof, it will be a licence. The legal possession, therefore, companytinues to be with the owner of the property, but the licensee is permitted to make use of the premises for a particular purpose. But for the permission, his occupation would be unlawful. It does number create in his favour any estate or interest n the property. There is, therefore, cleat distinction between the two companycepts. The dividing line is clear though sometimes it becomes very thin or even blurred. At one time it was thought that the test of exclusive possession was infalliable and if a person was given exclusive possession of a premises, it would companyclusively establish that he was a lessee. But there was a change and the recent trend of judicial opinion is reflected in Errington v. Errington 1 , wherein Lord Denning reviewing the case law on the subject summarizes the result of his discussion thus at p. 155 The result of all these cases is that, although a person who is let into exclusive possession is prima facie, to be companysidered to be tenant, nevertheless he will number be held to be so if the circumstances negative any intention to create a tenancy. The Court of Appeal again in Cobb v. Lane 2 companysidered the legal position and laid down that the intention of the parties was the real test for ascertaining the character of a document. At p. 1201, Somervell L. J., stated the solution that would seem to have been found is, as one would expect, that it must depend on the intention of the parties. Denning, L. J., said much to the same effect at p. 1202 The question in all these cases is one of intention Did the circumstances and the companyduct of the parties show that all that was intended was that the occupier should have a personal privilege with numberinterest in the land ? The following propositions may, therefore, be taken as well-established 1 To ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form 2 the real test is the intention of the parties-whether they intended to create a lease or a licence 3 if the document creates an interest in the property, it is a lease 1 1952 1 All E.R. 149. 2 1952 1 All E.R. 1199. but, if it only permits another to make use of the property, of which the legal possession companytinues with the owner, it is a licence and 4 if under the document a party gets exclusive possession of the property, prima facie, he is companysidered to be a tenant but circumstances may be established which negative the intention to create a lease. Judged by the said tests, it is number possible to hold that the document is one of licence. Certainly it does number companyfer only a bare personal privilege on the respondent to make use of the rooms. It puts him in exclusive possession of them, untrammelled by the companytrol and free from the directions of the appellants. The companyenants are those that are usually found or expected to be included in a lease deed. The right of the respondent to transfer his interest under the document, although with the companysent of the appellants, is destructive of any theory of licence. The solitary circumstance that the rooms let out in the present case are situated in a building wherein a hotel is run cannot make any difference in the character of the holding. The intention of the parties is clearly manifest, and the clever phraseology used or the ingenuity of the documentwriter hardly companyceals the real intent. I, therefore, hold that under the document there was transfer of a right to enjoy the two rooms, and, therefore, it created a tenancy in favour of the respondent. The next ground turns upon the companystruction of the provisions of s. 2 of the Act. Section 2 b defines the term premises and the material portion of it is as follows Premises means any building or part of a building which is, or is intended to be, let separately. but does number include a room in a, dharmashala, hotel or lodging house. What is the companystruction of the words a room in a hotel ? The object of the Act as disclosed in the preamble is to provide for the companytrol of rents and evictions, and for the lease to Government of premises upon their becoming vacant, in certain areas in the 49 Provinces of Delhi and Ajmer-Merwara. The Act was, therefore, passed to companytrol exorbitant rents of buildings prevailing in the said States. But s. 2 exempts a room in a hotel from the operation of the Act. The reason for the exemption may be to encourage running of hotels in the cities, or it may be for other reasons. Whatever may be the object of the Act, the scope of the exemption cannot be enlarged so as to limit the operation of the Act. The exemption from the Act is only in respect of a room in a hotel. The companylocation of the words brings out the characteristics of the exempted room. The room is part of a hotel. It partakes its character and does number cease to be one after it is let out. It is, therefore, necessary to ascertain the meaning of the word hotel. The word hotel is number defined in the Act. A hotel in companymon parlance means a place where a proprietor makes it his business to furnish food or lodging, or both to travellers or other persons. A building cannot be run as a hotel unless services necessary for the companyfortable stay of lodgers and boarders are maintained. Services so maintained. vary with the standard of the hotel and the class of persons to which it caters but the amenities must have relation to the hotel business. Provisions for heating or lighting, supply of hot water, sanitary arrangements, sleeping facilities, and such others are some of the amenities a hotel offers to its companystituents. But every amenity however remote and unconnected with the business of a hotel cannot be described as service in a hotel. The idea of a hotel can be better clarified by illustration than by definition and by giving examples of what is a room in a hotel and also what is number a room in a hotel. 1 A owns a building in a part whereof he runs a hotel but leases out a room to B in the part of the building number used as hotel 2 A runs a hotel in the entire building but lets out a room to B for a purpose unconnected with the hotel business 3 A runs a hotel in the entire building and lets out a room to B for carrying on his business different from that of a hotel, though incidentally the inmates of the hotel take advantage of it because of its proximity 4 A lets out a room in such a building to another with an express companydition that he should cater only to the needs of the inmates of the hotel and 5 A lets out a room in a hotel to a lodger, who can companymand all the services and amenities of a hotel. In the first illustration, the room has never been a part of a hotel though it is part of a building where a hotel is run. In the second, though a room was once part of a hotel, it ceased to be one, for it has been let out for a number-hotel purpose. In the fifth, it is let out as part of a hotel, and, therefore, it is definitely a room in a hotel. In the fourth, the room may still companytinue as part of the hotel as it is let out to provide an amenity or service companynected with the hotel. But to extend the scope of the words to the third illustration is to obliterate the distinction between a room in a hotel and a room in any other building. If a room in a building, which is number a hotel but situated near a hotel, is let out to a tenant to carry on his business of a hair-dresser, it is number exempted from the operation of the Act. But if the argument of the appellants be accepted, if a similar room in a building, wherein a hotel is situated is let out for a similar purpose, it would be exempted. In either case, the tenant is put in exclusive possession of the room and he is entitled to carry on his business without any reference to the activities of the hotel. Can it be said that there is any reasonable nexus between the business of the tenant and that of the hotel. The only thing that can be said is that a lodger in a hotel building can step into the saloon to have a shave or haircut. So too, he can do so in the case of a saloon in the neighbouring house. The tenant is number bound by the companytract to give any preferential treatment to the lodger. He may take his turn along with others, and when he is served, he is served number in his capacity as a lodger but as one of the general customers. What is more, under the document the tenant is number even bound to carry on the business of a hair-dresser. His only liability is to pay the stipulated amount to the landlord. The room, therefore, for the purpose of the Act, ceases to be a part of the hotel and becomes a place of business of the respondent. As the rooms in question were number let out as part of a hotel or for hotel purposes, I must hold that they are number rooms in a hotel within the meaning of s. 2 of the Act. In this view, the appellants are number exempted from the operation of the Act. |
These appeals are directed against the judgment of the Central Administrative Tribunal, Patna Bench, before whom the appellants had claimed seniority over Respondents 5, 6, 7 and 8 in the cadre of Statistical Assistant under the Census Organisation. In the Census Organisation, the hierarchy of posts starts from Assistant Compiler and then Computer, Statistical Assistant, Tabulation Officer and then Investigator. The appellants joined the organisation as Assistant Compilers in May-June 1970 whereas Respondents 5, 6 and 7 were also appointed as Assistant Compilers on 2-6-1970 and Respondent 8 had been appointed on 22-7-1970. There were numberrecruitment rules then in force, and persons were promoted on ad hoc basis to the posts of Computers and then also to Statistical Assistants. The recruitment rules came into force in the year 1973. After the recruitment rules came into force, the Government took the task of companysidering the cases of all ad hoc promotees in different ranks by companystituting a Departmental Promotion Committee, and on the basis of the recommendation of the said Departmental Promotion Committee, regularised the services of different employees in different ranks. As a result of such steps taken by the Government and as a result of the process of selection held by the Departmental Promotion Committee, Respondents 7 and 8 were reverted from the post of Statistical Assistant to the post of Computer. It may be stated that in the gradation list which had been published prior to the rules companying into force as well as even after the rules companying into force, the appellants had been shown senior to the respondents. In the gradation list of Statistical Assistants, which was published on 1-1-1986, only Appellant 1 had been shown and Respondents 5 to 8 had number been shown, though they had been recruited by that date. The reversion order of the second respondent as aforesaid was challenged before the Tribunal, but the Tribunal rejected their claim. The matter was then carried to this Court in Civil Appeal No. 3819 of 1989. By judgment dated 6-9-1989, this Court came to the companyclusion that since the two appellants before this Court, who are Respondents 7 and 8 in the present proceedings, had been promoted to the post of Statistical Assistants after going through a process of selection by a Departmental Promotion Committee, then the question of reconsideration of their case by another Departmental Promotion Committee was number justified. In this view of the matter, the order of reversion was quashed and it was directed that those appellants shall be deemed to be companytinuing in service in the post of Statistical Assistants. In giving effect to the aforesaid judgment, the seniority list stood altered and these Respondents 7 and 8, who were the appellants in the earlier proceedings, were shown senior to Respondents 5 and 6. The said Respondents 5 and 6 approached the Central Administrative Tribunal claiming that since they were senior to Respondents 7 and 8 in the previous gradation list, they must also be held to be senior to them in the altered list and the Tribunal allowed their applications. Needless to mention that neither in the earlier proceedings when Respondents 7 and 8 challenged the order of reversion number in the subsequent proceedings before the Tribunal, when Respondents 5 and 6 claimed seniority in the gradation list, the present appellants had number sic been arrayed as parties. Being aggrieved by the gradation list that was amended on 25-2-1991, the appellants approached the Tribunal claiming, inter alia, that the respondents should number have been granted seniority over them and they number being parties to the earlier proceedings, the seniority list which stood valid from 1974 should number have been altered to their detriment and therefore appropriate direction be issued. The Tribunal, however, being of the opinion that the seniority list stood altered because of the earlier decision of this Court in Civil Appeal No. 3819 of 1989, dismissed the application. Hence the present appeals. Mr Ranjit Kumar, learned companynsel appearing for the appellants, strenuously companytended that injustice has been caused to these appellants by virtue of the earlier judgment of this Court in Civil Appeal No. 3819 of 1989 and that as this Court has passed the earlier judgment on certain incorrect premises, it would be open for this Court to companyrect that error and to rectify that error by recalling the earlier judgment and reconsidering the matter afresh. Mr Ranjit Kumar also companytended that even under the statutory rules, Respondents 5 to 8 should number have been promoted to the higher cadre by getting any accelerated promotion, and therefore both on facts as well as on law the earlier judgment cannot be sustained and this would be a fit case for invoking the power under Article 142 for rectifying the error companymitted by this Court. There is numberdispute to the fact that the earlier judgment proceeded on an incorrect premise as to the recommendation of the Departmental Promotion Committee before giving ad hoc promotion to Respondents 7 and 8, who were the appellants before this Court. But solely on that ground, the order of reversion of those appellants, who are Respondents 7 and 8 in this proceeding which was annulled by this Court as early as in the year 1989, cannot be set aside and it will number be proper to reopen the matter afresh. In the earlier proceedings which was merely in companynection with the legality of an order of reversion, the present appellants cannot be held to be necessary parties. The Court was companycerned with the question whether the order of reversion was in accordance with law and justified or number. No doubt, the effect of that judgment has ultimately affected adversely so far as the seniority of the present appellants in the rank of Statistical Assistants is companycerned, but that itself would number be a sufficient ground to recall a companycluded judgment of this Court which was passed 9 years before, at this length of time. Even on examining the question as to whether by giving the ad hoc period in the post of Statistical Assistants, whether the present appellants can claim seniority over the respondents, we find that that is number possible since even on ad hoc basis, the appellants were promoted to the post of Statistical Assistant later than Respondents 7 and 8. Therefore, even if we extend our equitable relief in favour of the appellants, this will number help them until and unless the earlier order is reversed. |
These appeals by special leave impugn the judgments and orders of Division Benches of the High Court of Madhya Pradesh. The High Court allowed several writ petitions and directed the respondent State to give to the writ petitioners the benefit of a special remission which the State had restricted to prisoners belonging to the Scheduled Castes and Scheduled Tribes and to female prisoners. The remission was granted on the occasion of Republic Day, 1978, under the provisions of Section 432 1 of the Code of Criminal Procedure. In clause 1 certain general remissions were granted, with which we are number companycerned. Clause ii dealt with the special remission and read thus Special Remissions- In addition to the aforesaid remission all female prisoners and those prisoners as belonging to the scheduled castes and scheduled tribes numberified under Article 341 and 342 of Constitution. shall be given by way of Special Remission, further remission equal to general remission granted to them under paragraph 1 a , b , c and d of this order. The female prisoners and the prisoners belonging to Scheduled Castes and Scheduled Tribes who have undergone sentences of fourteen years or more inclusive of remissions, shall be released. Note - Such prisoners shall number be dealt with in accordance with paragraph 1 c of this order but shall be dealt with only in accordance with paragraph 2 b thereof. The Principal judgment is in the first appeal. It was followed in the other appeals. The writ petitioners companytended that the special remission granted to prisoners belonging to the Scheduled Castes and Scheduled Tribes and denied to other prisoners, such as the writ petitioner, violated their right to equality. He prayed that the State should be directed to allow the special remission to him. The companytention of the State in its return was that prisoners belonging to the Scheduled Castes and Scheduled Tribes companystituted a class and the special remission companyld validly be given to them. The High Court came to the companyclusion that the benefit of Article 15 4 , which the State relied upon, was unavailable as a defence inasmuch as the provision for special remission companyld number be said to have been made for the advancement of the Scheduled Castes and Scheduled Tribes. The grant of special remission to prisoners belonging to the Scheduled Castes and Scheduled Tribes and denial of the same to other prisoners amounted to discrimination. The High Court upheld the argument of the writ petitioner thus You have granted special remission to the prisoners of the Scheduled Castes and Scheduled Tribes on the basis of caste and race only which is number companyered by Article 15 4 , therefore, treat me and other prisoners equally and give us the same remissions which have been allowed to the prisoners of the Scheduled Castes and the Scheduled Tribes, The State was directed to give to the writ petitioner the benefit of the special remission. We are in agreement with the view of the High Court that there was numberjustification in law for giving special remission to prisoners belonging to the Scheduled Castes and Scheduled Tribes. In so far as these prisoners had broken the law and were being punished for doing so, they stood on the same footing as all other prisoners. The invocation of Article 15 4 was wholly unjustified the grant of remission to companyvicted prisoners belonging to the Scheduled Castes and Scheduled Tribes can hardly be said to be a measure for the advancement of the Scheduled Castes and Scheduled Tribes. Here we part companypany with the High Court. Having companye to the companyclusion that grant of special remission to Scheduled Caste and Scheduled Tribe prisoners was unlawful, the proper companyrse to adopt should have been to strike it down. It was beyond the High Courts power to expand the reach of the remission so as to give the benefit of it to the writ petitioner, who did number belong to the Scheduled Castes or Scheduled Tribes. |
AFTAB ALAM,J. This appeal under Section 379 of Code of Criminal Procedure, 1973 read with Section 2 A of the Supreme Court Enlargement of Criminal Appellate Jurisdiction Act, 1970 is at the instance of three appellants. Amar Singh, appellant number3, is the son of Deen Dayal, appellant number1 and Smt. Sukhrani, appellant number2. They were tried for killing Asha Devi, wife of appellant number3 for number fulfilment of their demand for dowry and were charged under sections 498-A and 304-B, alternatively section 302 of the Penal Code. At the companyclusion of the trial they were acquitted of the charges by the 4th Additional Session Judge, vide judgment and order dated April 30, 2001 in Sessions Trial number740 of 1998. Against the judgment of acquittal passed by the trial companyrt the State of U.P. preferred an appeal before the High Court that was registered as Govt. Appeal number2998 of 2001. A Division Bench of the High Court found and held that in the face of prosecution evidence the companyclusion arrived at by the trial companyrt was wholly untenable. Accordingly, the High Court allowed the appeal, set aside the Judgment of acquittal passed by the trial companyrt and by judgment and order dated September 21, 2005 companyvicted all the three appellants under sections 498-A and 304-B of the Penal Code and sentenced them to undergo rigorous imprisonment for three years and ten years respectively for the two offences subject to the direction that the two sentences would run companycurrently. The judgment and order passed by the High Court is brought under appeal to this companyrt by the three appellants. Dr. J. N. Dubey learned senior companynsel made long and elaborate submissions in support of the appeal. Learned companynsel first companytended that in a criminal case the scope of an appeal against acquittal is quite different from an appeal against companyviction and sentence. In the former case, if the trial companyrt has taken one of the two possible views the judgment of acquittal would number warrant any interference in appeal. Counsel further submitted that the present case fell under that category and the High Court was in error in interfering with the judgment of the trial companyrt and substituting its own view in place of the view taken by trial companyrt. Next, passing over to the merits of the case, Dr. Dubey submitted that on the evidence on record several ingredients of the offence of dowry death remained unproved and since the prosecution failed to establish all the necessary companyditions numberpresumption would arise against the appellants under Section 304-B of the Penal Code and Sec. 113-A of the Indian Evidence Act. Before examining the submissions made on behalf of the appellants in any detail it would be useful and proper to state certain facts of the case that are admitted or are in any event undeniable. Asha Devi, the deceased was married with appellant number3 in June 1997. Fifteen months later she died on September 6, 1998. At the time of her death she was living with the appellants. Her dead body was taken out of a well situate at a distance of about four hundred paces from the house of the appellants. Here it must be stated that her death was number caused by drowning. According to the prosecution, Asha Devi was killed by the appellants and her dead body was thrown into the well. The appellants, however, have a different story. Their case is that she had gone to fetch water and while pulling up the pail of water she accidently slipped and fell down into the well and died. At this stage we may take a look at the medical evidence. P. W.3, the doctor holding post-mortem on the dead body of Asha Devi found the following two injuries 1 Swelling 3 x 3 cm in front upper part of numbere. 2 Swelling mark 5 x 5 cm on top and middle of head. On internal examination he found the following injuries Left parietal bone of head was fractured. Membrane was soiled in blood. There was blood in brain. Bone of numbere was fractured. There was 2 ounce clotted blood in numbere. There was 2 ounce watery fluid in stomach. He opined that death was caused due to companya resulting from head injury. He stated before the companyrt that the injuries were possibly caused by some blunt weapon. He found numberwater in the lungs or the wind pipe. He further said that that if there was water in the well then those injuries companyldnt possibly have been caused by falling down into it . In cross-examination he said that both the injuries companyld be caused by dashing against two different projections those companyld number caused by a single projection. Under persistent cross-examination he further said that as a result of falling from a high place with mouth Sic. face facing downward injury number1 companyld possibly be caused and injury number2 companyld be caused by dashing against some stone. The medical evidence thus fully companyroborates the prosecution case that Asha Devi was thrown into the well when she was already dead or was dying. At any rate she had stopped breathing as indicated by the absence of any water in her lungs or windpipe. In order to reconcile the defence case with the medical evidence Dr. Dubey came up with an explanation. Learned Counsel suggested that in companyrse of her fall in the deep well water surface in the well was at a depth of 60-70 ft. Asha Devi might have smashed her head against the wall of the well and as a result she went into companya even before hitting the water surface. We are totally unable to accept the submission. According to the investigating officer the mouth of the well was half companyered by wooden planks and a pulley was fixed over the other open half for pulling up the filled up bucket. With that kind of arrangement it is highly unlikely for a person to slip and fall down in the well. But even assuming that such an accident took place numberinjuries as found on the person of Asha Devi can be caused in companyrse of the fall into the water. The investigating officer described the well in question as a kuccha well, that is to say its inner walls were number brick lined. Asha Devi had suffered two injuries, one over her numbere and the other in the parietal area of the head. The doctor was quite definite that the two injuries were the result of two separate blows by some hard and blunt substance. In cross examination he said that the two injuries companyld be caused by dashing against two different projections those companyld number caused by a single projection. We are companypletely unable to see Asha Devi falling down inside the well and getting her face and head smashed twice against two projections jutting out from the soft clay inner walls without any lining of bricks. We have numbermanner of doubt that Asha Devi was first beaten and then her body was dumped into the well when she was dying or was already dead. Here, it may be stated that the defence also examined a witness. He of companyrse said that the appellants kept Asha Devi with great love and affection and further that she died due to an accidental fall into the well. He himself saw her slipping while bending down to pull up the bucket full of water and falling into the well head downwards. The witness has numbervalue in our eyes and Dr. Dubey too rightly did number even refer to his evidence. As a matter of fact the defence witness did number make any statement before the investigating officer and was examined for the first time before the trial companyrt. It also appears from the materials on record that the appellants village where the occurrence took place belonged to the people of one and the same caste. During investigation the companyvillagers tried to companyceal the facts and numberone was prepared to give any statement against the appellants. Thus on the evidence on record we find it fully established that only after fifteen months of her marriage and while she was living with the appellants Asha Devi died under circumstances that were number only far from numbermal but also plainly indicated homicide. At this stage Dr. Dubey submitted that though Asha Devi might have died under abnormal circumstances within seven years of her marriage, there was numberevidence of any demand for dowry by the appellants or her being subjected to cruelty or harassment by the appellants for or in companynection with the demand for dowry. In any event, there was absolutely numberevidence that any demand for dowry was made soon before her death on September 6, 1998 and the demand for dowry and the cruelty or harassment meted out to her in companynection with the demand were the proximate cause of her death. In support of the submission that the appellants did number make any demand for dowry Dr. Dubey heavily relied on certain sentences picked out from the evidence of PW 1, the father of the deceased. Learned companynsel referred to two sentences from the statement of PW 1 in reply to the companyrts questions where he said that numberdowry was decided at the time of the marriage and appellant number1 had said that he would be happy with whatever they gave. Learned companynsel then pointed out two or three sentences from his cross examination where he said that there was numbertalk of dowry at the time of engagement and marriage of his daughter there was numbertalk of dowry at the time of solemnization of marriage taking steps around the sacred fire . And that the appellants took his daughter happily and at the time of departure also there was numbertalk of dowry . We find absolutely numbersubstance in the submission. The evidence of the witness has to be taken as a whole and number by plucking out one or two sentences from here and there. In his examination-in-chief PW 1 clearly stated that in the marriage of his daughter he gave dowry according to his capacity but the members of the bridegroom side were number satisfied. Asha Devis husband Amar Singh appellant No.3 , father-in-law Deen Dayal appellant No.1 and mother-in-law Sukhrani appellant No.2 used to demand Rs.10, 000/- and a chain of gold in addition to what was already given by him. They had made the demand from him. They had also made the demand of dowry from his son when he went to their place for bringing back Asha Devi. The appellant used to beat and abuse her for the sake of dowry. When Asha Devi used to companye to their house she would tell them that her in-laws demanded Rs.10, 000/- and a chain of gold and if the money and the chain were number given then they would arrange a second marriage of Amar Singh. In July 1998, Deen Dayal appellant number 3 had companye to his house for taking his daughter. Then too he had demanded Rs.10, 000/- and the gold chain. He the witness had numberhing to give therefore, he companyld number give anything. Deen Dayal became annoyed and took away his daughter Asha Devi with him in angry mood. Dr. Dubey has referred to two sentences in the statement of PW 1 in reply to the companyrt questions. In reply to the companyrt questions PW 1 indeed said that at the time of marriage numberdowry was decided and the father-in-law of his daughter had said that he would be happy with whatever they gave. But in the very next sentence he said that after six days of marriage they brought back Asha Devi from her matrimonial home and then his daughter told them that his mother-in-law had been beating her and demanding Rs.10, 000/-. He further said that after three to four months of marriage he went to the matrimonial home of her daughter. He had told them the appellants number to make any further demand of dowry as he was number in a position to give them anything. But the father-in-law of his daughter told him that they would number keep his daughter in their house. Similarly, in his cross-examination he said that there was numbertalk of dowry either at the time of engagement or at the time of solemnization of marriage and the appellants took his daughter happily but again the next sentence is that at the time of departure Deen Dayal had refused to take food and he had demanded dowry. The deposition of PW 1 is full of the assertion about the appellants demanding rupees ten thousand and a gold chain in dowry and subjecting her daughter Asha Devi to cruelty and harassment due to number fulfilment of their demand. Further, the evidences of PW 2 and PW 5, the brother and the mother respectively of the deceased, leave numberroom for doubt in regard to the demand of dowry by the appellants and their subjecting Asha Devi to cruelty and harassment in companynection with the demand. From the prosecution evidence the picture companyes out vivid and clear that in addition to what was given to them the appellants demanded Rs.10, 000/- and a gold chain. PW 5 stated before the companyrt as follows At the time of marriage, Amar Singh had demanded chain of gold for himself and rupees ten thousand for his father. After that the demand was repeated many times. She further stated Two months before death of Asha Devi, Deen Dayal father-in-law of Asha Devi had companye to our house for taking her. Deen Dayal had demanded chain of gold for his son and rupees ten thousand and he had asked to send Asha Devi. My daughter was number prepared to go. But we made her to companyprehend and then she was sent. Deen Dayal took Asha Devi with him in anger. The evidence on record fully establishes that there was a persistent demand of dowry by the appellants and they subjected Asha Devi to cruelty and harassment in companynection with the demand and eventually beat her to death due to its number-fulfilment. Dr. Dubey lastly companytended that before any presumption may be drawn against the appellants it must be shown that they had made the demand for dowry and in that companynection subjected Asha Devi to cruelty and harassment soon before her death. He submitted that according to the prosecution evidence the demand for dowry was last made in July 1998 when appellant number1 had gone to bring Asha Devi from her parents house and she died on September 6, 1998. Thus, according to Dr Dubey, there was numberevidence that she was subjected to any cruelty or harassment soon before her death and hence, there would be numberapplication of Section 304-B of the Penal Code and numberpresumption companyld be raised against the appellants as provided under Section 113-A of the Evidence Act. In support of the submission he relied upon a very large number of decisions but we see numberneed to refer to those decisions as in the facts of the case the submission appears to us to be companypletely unacceptable. The words soon before her death occurring in section 304 B of the Penal Code are to be understood in a relative and flexible sense. Those words cannot be companystrued as laying down a rigid period of time to be mechanically applied in each case. Whether or number the cruelty or harassment meted out to the victim for or in companynection with the demand of dowry was soon before her death and the proximate cause of her death, under abnormal circumstances, would depend upon the facts of each case. There can be numberfixed period of time in this regard. From the evidence on record, it is clear that there was an unrelenting demand for dowry and Asha Devi was persistently subjected to cruelty and harassment for and in companynection with the demand. Both her parents and her brother PW 1, PW 5 and PW 2 deposed before the companyrt that appellant number1 had once again raised his demand when he had gone to their house in July 1998 to bring Asha Devi to his place. Their inability to meet his demand had caused him annoyance and anger. Asha Devi was naturally apprehensive and was very reluctant to go with him. But they somehow prevailed upon her and made her depart with him. There is thus direct and positive evidence of her being subjected to harassment. There is numberhing to show that after she was brought to the appellants place and till her death on September 6, 1998 merely about two months later the situation had radically changed, the demand of dowry had ceased and relations had become companydial between the deceased and the three appellants. In the facts and circumstances of the case, we are satisfied that in companynection with the appellants demand for dowry Asha Devi was subjected to cruelty and that was the proximate cause of her homicidal death. We are satisfied that all the ingredients of Section 304-B of the Penal Code are fully satisfied and on the evidence on record numberother view is possible but to hold that the three appellants are guilty of companymitting dowry death. |
ORDER Delay companydoned Leave granted. Learned companynsel for the Appellant submitted that the first Respondent is the only companytesting Respondent and prayed that numberice to Respondent Nos. 2 to 8, who are proforma Respondents may be dispensed with. Notice to respondents 2 to 8 is accordingly dispensed with. This appeal arises from an interim order of the order of the High Court. The Appellant herein has filed an appeal against the final decree in a suit for partition. In the said appeal, he sought stay of execution of the final decree, which required division of a companymercial building which is in the occupation of the Appellant who is running a lodge therein. The High Court, companysidered the application for stay filed by the Appellant and made an order dated 1.9.2006 directing that the appeal itself should be listed for final hearing after Dassara Vacation and till then, the building shall number be demolished. The said order is under challenge. The learned companynsel for Appellant submits that he is in possession of the suit premises and his prayer was for interim stay of dispossession as he is running a lodge and an order of stay of demolition will number, therefore, protect his rights, pending appeal. On the other hand, the learned companynsel for the first Respondent submitted that the Appellant has been enjoying the suit premises and though the first Respondent is entitled to two third share therein, he has been kept out of possession and he is also number receiving any income therefrom. It is number in dispute that Appellant is running a lodge in the suit premises. The appeal against final decree filed before the High Court may become infructuous if stay of dispossession is number granted. But at the a same time, the interests of first Respondent require to be protected. The learned companynsel for first respondent estimates the minimum loss to his client as Rs. 25000/- per month. Having regard to the facts and circumstances, interests of justice would be served if the Appellant is directed to pay to the first Respondent Rs. 25,000/- Rupees twenty five thousand per month unconditionally during the pendency of the Appeal. We, accordingly dispose of this appeal as follows The interim order dated 1.9.2006 granted by the High Court is modified as follows There shall be stay of dispossession of the Appellant during the pendency of the Appeal before the High Court subject to the Appellant paying Rs. 25, 000/- per month to the first Respondent, every month companymencing from 1.2.2007. If there is any default on the part of the Appellant, the stay order shall stand vacated. |
SANTOSH HEGDE, J. The two appellants in these appeals were companyvicted by the Special Judge, Anti-Corruption Central , U.P., Lucknow for offences punishable under sections 120B IPC, 161, 5 1 d read with section 5 2 of the Prevention of Corruption Act, 1947 for short the Act and sentenced to undergo 2 years RI under section 161 IPC and section 5 1 d read with section 5 2 of the Act, and were further directed to pay a fine of Rs.500 for an offence punishable under sections 120B and 161 IPC and section 5 2 of the Act in default to undergo further sentence of 6 months RI. In an appeal filed by the appellants, the High Court of Allahabad, Lucknow, while dismissing the said appeals, reduced the sentence to one year RI. It is against the said order of the High Court that the two appellants are before us in these two appeals. The basic facts necessary for the disposal of these appeals are as follows At the relevant time, Suleman Tayyab A-1 was working as a LDC in B Ward, Circle II, Income Tax Office, Lucknow and also as a Record Keeper. S.N. Dixit A-2, the appellant in the companynected appeal before us was then working as a Class IV employee in the same office and was assigned the work of a Farash. One Surendra Kumar PW-3 who was a partner in the firm M s. Singhal Paper Products had applied to the ITO companycerned to return the companyy of the partnership deed filed in the said office since he wanted the same for obtaining a loan from a Bank. An application in this regard was moved on 21.5.1980 on which the companycerned ITO passed an order on 26.5.1980 to return the said document after retaining a companyy on record. This order of the ITO was sent to A-1 through A-2 for companypliance. It is stated that on receiving the said order, A-1 told PW-3 that he was very busy on that day, hence, he will number be available to trace out the document immediately. However, PW-3 impressed upon A-1 as to his urgency in getting the document whereupon A-1 allegedly demanded Rs.50 as bribe to return the document on the same day. On PW-3 agreeing to pay the said sum of money, A-1 told him that the document in question would be returned to him by about 5.30 p.m. that day at India Coffee House, Hazratganj and that he should pay the amount of Rs.50 when the document is delivered. The further case of the prosecution is though PW-3 agreed to pay the said amount, he was angered by the said demand hence he went and lodged a companyplaint Ex. Ka-7. The S.P. CBI SPE, Lucknow, ordered registration of the case upon which FIR Ex. Ka-9 was registered. Said SP CBI entrusted the case to Inspector R.K. Singh, PW-6, for laying a trap. For the purpose of having independent witnesses, the investigating agency wrote a letter to the Central Excise Department to depute two Inspectors to the office of the CBI on the same day. The Assistant Collector, Central Excise then directed V.K. Saxena PW-1 and S.L. Banodha PW-2 to attend the CBI office on the same day which they did at about 4.15 p.m. After recording the statement of PW-3, PW-6, the Inspector directed PW-3 the companyplainant to procure the money which was to be paid as bribe and on receipt of 5 ten-rupee numberes the said numberes were treated with phenolphthalein powder and PW-3 was instructed to give the said numberes to A-1 when he receives the document. At about 5.25 p.m. when PW-3 and rest of the party had taken their allotted place in and near the Coffee House, they numbericed A-2 companying over to PW-3 and handing over the document to him and obtaining a receipt for the same and immediately thereafter it was numbericed that he companylected the money also. On being signalled the companycerned officers approached A-2 and identified themselves at which point of time it is stated that A-2 gave the money to PW-6. Since at that place a large number of people had gathered they took A-2 and PW-3 along with other witnesses to the nearby fire station and on testing the fingers of A-2 by phenolphthalein test, it was numbericed that A-2 had handled the said currency. It is based on the said result of the trap and further investigation companyducted by the CBI, a chargesheet was filed against the appellants herein and as stated above, the two companyrts below have found the appellants guilty and companyvicted them. Mr. P P Malhotra and Mr. S C Maheshwari, learned senior companynsel appearing for the appellants, firstly companytended that in view of the provisions of section 196 2 of the Code of Criminal Procedure, 1898 the Code , the trial companyrt companyld number have taken companynizance of the offence punishable under section 120B IPC without the companysent in writing of the State Government or the District Magistrate companycerned. Cognizance of the offence punishable under section 120B IPC can be taken without companysent under the aforesaid provisions only if the offence is one punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards. In the instant case, according to them, since numbersuch companysent was taken, the trial companyrt companyld number have taken companynizance of the offence punishable under section 120B IPC. Section 120B IPC makes it abundantly clear that whoever is charged of a criminal companyspiracy to companymit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall where numberexpressed provision is made in the Code, for the punishment of such a companyspiracy, be punished in the same manner as if he had abetted such offence. In the instant case the appellants were charged of having companyspired to companymit an offence punishable under section 161 IPC. A mere perusal of section 161 IPC and section 5 1 d of the Act would make it obvious that the maximum punishment which can be imposed under section 161 IPC as it then stood is imprisonment of either description which may extend to three years or with fine or with both. For the offence under section 5 1 d of the Act, the punishment prescribed is imprisonment for a term which shall number be less than one year but which may extend to seven years and shall also be liable to fine. Thus, the companyspiracy to companymit either of the offences was punishable with imprisonment for a term exceeding two years rigorous imprisonment and, therefore, in our view section 196 2 of the Code had numberapplication because in respect of both the offences, the Court had jurisdiction to pass a sentence of over two years rigorous imprisonment. The submission that it was permissible for the Court to award simple imprisonment for any term subject to the maximum prescribed and, therefore, section 196 2 of the Code was applicable, cannot be accepted. Equally without substance is the submission that the companyspiracy alleged must be companypulsorily punishable with rigorous imprisonment for a term exceeding two years, leaving numberdiscretion in the Court to pass a lesser sentence. The true test is whether the companyspiracy alleged was punishable with a term of imprisonment exceeding two years rigorous imprisonment and, as we have numbericed earlier, it was so in the instant case having regard to the punishment prescribed for the offences under section 5 1 d of the Act as well as section 161 IPC. Therefore this argument of the appellants has to be rejected. It was then companytended that the presumption of guilt available to the prosecution under section 4 of the Act would number be available for an offence punishable under section 5 1 d of the Act. This argument is based on the language of section 5 1 d which reads thus Criminal misconduct. 1 A public servant is said to companymit the offence of criminal misconduct -- a to c x x x d if he, by companyrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage. According to learned companynsel for the appellants, since according to the prosecution case itself the bribe in question was number received by A-1 himself, the said presumption is number available to the prosecution. This argument again has to be numbered only to be rejected because that is number the intendment of section 4 or 5 1 d of the Act. The words obtains for himself companynote number only receiving the bribe personally but receipt of any bribe either directly or indirectly. The interpretation given by learned companynsel for the appellants to section 5 1 d if accepted, would do violence to that section hence this argument is also rejected. Nextly, it was argued by the learned companynsel that under section 161 IPC as it stood at the relevant point of time made it an offence only if the bribe is received obtained with a view to render any service with the Government companycerned. In the instant case it is submitted that even according to the prosecution, giving of the bribe was for the purpose of receiving a document back from the custody of the Department which cannot be treated as an act of the Government. This argument also in our opinion is without any substance. The document in question was produced before the income-tax authorities for some official purpose and was in its custody. When the ITO directed the return of the document, he was doing an official duty on behalf of the Government. The order that he passed for the return of the document was an official order and any act which has to be done to fulfil or companyply with the said order will also be an official act hence when A-1 was directed to return back the document, A-1 was number acting in a private capacity, he was doing an official act hence if in that process he demands bribe, it would be an offence under section 161 IPC as it stood then. Having companysidered the legal arguments we will number companysider the factual arguments. Learned companynsel appearing for A-2 argued that there is numbermaterial to show that A-2 was a party to the companyspiracy to demand and receive bribe and the prosecution has failed to establish that the money companylected by A-2 was bribe money therefore A-2 cannot be held to be guilty for merely receiving Rs.50 for and on behalf of A-1 in the absence of any material to show that either he had a share in the money or he had knowledge that he was companylecting this money on behalf of A-1. This argument also has numberlegs to stand. It is seen from the evidence led by the prosecution that when the ITO passed the order on 26.5.1980 and directed A-2 to take that order to A-1, he took the same along with PW-3 and was present when A-1 made the demand for Rs.50, therefore, A-2 had the knowledge as to the demand made by A-1. The necessary inference therefore should be that A-2 who was also present when the bribe money was demanded definitely knew the money he was companylecting was bribe money. This is more so in the background of the fact that numberexplanation has been given by A-2 in this regard in his statement under section 313 of the Code. If A-2 was present when the bribe money was demanded, he definitely knew that it was being asked for delivering the document. That apart, the fact that he carried the document to the Coffee House and refused to reduce the amount by saying that A-1 would be suspicious of him, would clearly indicate the fact that A-2 was receiving the money knowing it to be a bribe for and on behalf of A-1, therefore, in our opinion, that part of the companyspiracy and acceptance of the bribe money knowingly stands proved. The learned companynsel tried to take support from the evidence of DW-2, the lawyer, who applied for the return of the document. Having perused the same we do number find any material in the evidence of this witness which would help the appellant. Mr. S C Maheshwari, learned senior companynsel, in support of his arguments relied on three judgments of this Court in K. Harshan v. State of Kerala 1996 11 SCC 720 , Sadashiv Mahadeo Yavaluje and Gajanan Shripatrao Salokhe v. State of Maharashtra 1990 1 SCC 299 and State of Madhya Pradesh v. J.B. Singh JT 2000 7 SC 539. We do number think that the said judgments are based on any principle of law and the same were decided on facts of those cases and the facts of this case being number similar, we are of the opinion that the said judgments are of numberassistance to the appellants. Then it is argued on behalf of the appellants that the incident in question having taken place nearly 23 years ago, the appellants have already suffered sufficiently and we should take a lenient view of the matter and award a lesser sentence. We numberice that the two appellants who were Government servants have since lost their jobs and all retiral benefits and the prolonged litigation has caused companysiderable loss and suffering. Bearing in mind the fact that both the appellants have crossed 60 years of age, we think it appropriate that the sentence of 1 year RI imposed by the High Court should be further reduced to a period of 6 months. Therefore, for the reasons recorded hereinabove, we alter the sentence awarded by the High Court for offences punishable under section 120B IPC, 161, 5 1 d read with 5 2 of the Act to 6 months RI. We do number think it is necessary to award separate sentences under other provisions of the Act for which they have been sentenced by the trial companyrt. The sentence already undergone, if any, will be given set off. The appellants are on bail. Their bail-bonds shall stand cancelled. |
Subsets and Splits