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Arising out of S.L.P. C No. 19756 of 2005 K.SEMA,J Leave granted The facts of this case revolves as to how the appellants clandestinely and by suppressing the facts tried to grasp the public land measuring 59.17 acres in Khasra Nos. 943, 960, 961, 962 of Jahangirabad Jail Bag area of Bhopal city under the guise of order dated 2.3.1954 passed by the Jagir Commissioner in respect of land in Khasra Nos.72/1, 73, 74, 75, 76 in village Dharampuri. The facts of this case are cumbersome and may be recited briefly and strictly for the purpose of disposal of this appeal. The present disputed land measuring 59.17 acres in Khasra Nos.943, 960, 961 and 962 was recorded in the name of jail department and situated in the area of Bhopal city near the Arera Hills in front of old jail premises since 1935. It appears that the area was developed as a garden having trees of Mangoes, Jamun, Lemon etc. and the same was used to let out to different companytractors and the property was managed from the income received from the fruits grown in the garden. No revenue was assessed on that income as the land belonged to the State Government. It is number disputed that the said land was given on lease to one Shri Bhawani Singh and Shri Jameel Ahmed by the Superintendent of Jail for a companysideration of Rs.375/- per annum. Subsequently one Shri Rashiduzzafar Khan, the predecessor of the appellants, obtained a deed of relinquishment in his favour from the lessees Bhawani Singh and Jameel Ahmed. This was done without the companycurrence and companysent of the Government. Rashiduzzafar Khan companytinued using the land in the capacity of lessee and used to pay annual rent at the rate of Rs.375/-. Rashiduzzafar Khan, predecessor of the appellants submitted an application in August, 1960 to the Government for recording his name as a Bhumiswami in respect of the said land in Khasra Nos.943, 960, 961 and 962. The same was, however, rejected by an order-dated 5.8.1962. Another application filed by the appellants herein was rejected on 29th/30th January, 1965 on the ground that the land in question was recorded in the name of jail department. Thereafter, a proceeding under Section 248 of the Madhya Pradesh Land Revenue Code, 1959 hereinafter referred to as the Code was initiated for eviction of the appellants in 1981. It was held that the appellants were the trespassers and order of eviction was passed by the Tahsildar on 16.9.1981. The Tashildars order was challenged before the SDO which was dismissed on 19.3.1985. SDOs order was challenged before the Commissioner in second appeal and the same was dismissed by the Commissioner on 29.6.1989. The order of the Commissioner was challenged by filing M.P. No.3978 of 1991, which was dismissed as withdrawn on 25.4.1998. Thereafter, the Commissioners order was assailed before the Revenue Minister and he directed an enquiry in the matter and the said order was set-aside by the Government by its order dated 1.11.1991 on the ground that the Revenue Minister had numberjurisdiction to pass such an order. This would show that the order of eviction passed by the Tahsildar on 16.9.1981 attained its finality. Another attempt was made by the appellants by filing application under Section 57 2 of the Code on 14.11.1983 praying inter alia to declare Bhumiswami rights in their favour. The said application was filed before the SDO, Bhopal, on the basis of the registered deed dated 6.4.1940 executed by Bhawani Singh and Jameel Ahmed. This application was, however, number pursued by the appellants. Thereafter, the appellants filed civil suit No.159- A/84 in the Court of District Judge, Bhopal. In the said suit the State Government filed the written statement. The said suit was dismissed on withdrawal on 1.7.1998. Thereafter, the appellants filed an application for mutation before the Naib Tahsildar in 1989. The said application was allowed by the Tahsildar on 29.1.1990. Suo Motu proceedings were drawn by the Collector, Bhopal on 3.8.1990. An enquiry was ordered against the Naib Tahsildar and by an enquiry report dated 27.4.1994 the Naib Tashildar was held guilty of ordering mutation improperly. From the aforestated facts it clearly appears that the land in dispute was recorded in the name of jail department since from 1935 till 1989, when for the first time the appellants filed an application for mutation. At this stage, we may dispose of one of the arguments of Mr. Rohtagi learned senior companynsel for the appellants. It is companytended that pursuant to the Jagir Commissioners order dated 2.3.1954 Civil Suit No.180-A of 1984 was filed by the appellants which was decreed by the Trial Court and affirmed by the Division Bench on 17.4.1987 and SLP against the same was dismissed on 6.5.1988. Therefore, the present dispute is barred by the principle of res judicata. He specifically referred to issue No.9 in the said suit. It reads- Whether the order dated 02.03.1954 of the Jagir Commissioner is companytrary to law and void? According to Mr. Rohtagi, the order of Jagir Commissiner dated 2.3.1954 was on one of the issues in suit No.180-A/84 which has been decreed in favour of the appellants and since the present case also revolves around the order dated 2.3.1954 passed by the Jagir Commissioner the present dispute in hand is barred by the principle of res judicata. In our view, this submission is misconceived. It is number disputed by the respondents that the decree in Civil Suit No.180-A/84 passed in favour of the present appellants has attained finality, SLP being dismissed on 6.5.1988. It is, however, to be numbered that it is the specific case of the respondent-Government that the order of the Jagir Commissioner dated 2.3.1954 which was the subject matter of Civil Suit No. 180-A/84 does number include the area of the land in the present dispute. From the order of Jagir Commissioner as quoted by the Trial Court it clearly appears that the land involved in the earlier suit was in Khasra Nos.72/1, 73, 74, 75 and 76 in village Dharampuri and the area of land is 7.26 acres. Undisputedly, the land involved in the present dispute relates to Khasra Nos.943, 960, 961 and 962 of Jahangirabad area of Bhopal city measuring 59.17 acres. While it is true that in issue No.9 in the said suit reference was made to the order passed by the Jagir Commissioner dated 2.3.1954 which was decided in favour of the appellants but the land in the present dispute was number companyered by the Jagir Commissioners order dated 2.3.1954. As already numbericed the land in the present dispute is distinctly different from the point of view of the location of the land and Khasra Nos. from the subject matter of earlier suit. Therefore, by numberstretch of imagination, it can be said that the present dispute is hit by the principle of res judicata in view of the decision rendered in Civil Suit No.180-A/84, which has attained finality. In this companynection, reliance has been placed by Mr. Rohtagi on the cases of Dhanvanthkumariba vs. State of Gujarat, 2004 8 SCC 121, Mahila Bajrangi vs. Badribai, 2003 2 SCC 464 and Phool Pata vs. Vishwanath Singh. 2005 AIR 3575. These decisions are of numberassistance to the appellants case. Next, Mr. Rohtagi referred to the provisions of the Bhopal Abolition of Jagirs and Land Reforms Act, 1953 in short the Act , in particularly Section 4, Section 5, sub-section 1 b of Section 6, Sub-section 2 of Section 6, Section 17 and Section 27. According to Mr. Rohtagi, numberappeal has been preferred by the State Government against the Order of the Jagir Commissioner dated 2.3.1954 as provided under Section 27 of the Act. The order passed by the Jagir Commissioner has become final. This companytention would be of numberhelp to the appellants case. We have already held that the Jagir Commissioners order dated 2.3.1954 does number refer to the land in dispute in the present case measuring 59.17 acres. We have also held that the land in question has been recorded in the name of jail department in revenue records since from 1935. It was never Jagirs land prior to the enforcement of abolition of Jagirs Land Reforms Act. That the land in question was number companyered by the Jagir Commissioners order dated 2.3.1954 has been accepted by the appellants by their own companyduct. That the land in the present dispute is number a part of the order dated 2.3.1954 passed by the Jagir Commissioner is also fortified by the following facts which we will be reciting presently. In the Civil Suit No.159-A/84 filed by the appellants, inter alia prayed the following relief A decree for declaration be passed in favour of the plaintiffs and it be decreed that the plaintiffs have become Bhumiswamis and owners of the suit lands situated in Bhopal town at Hoshangaband Road mentioned in Khasra Nos. and area as shown below- Khasra Nos. Area 943 25.92 960 12.39 961 7.23 962 13.63 Total 59.17 acres. In the said suit, the appellants admitted in paragraph 5 that Bhawani Singh and Jameel Ahmed used to send Rs.375/- to jail department which was paid by late Nawab Rashid Uz- Zafar Khan from 1940 till his death, and after his death in 1961 the plaintiffs reunited the amount till 1978, when the jail department refused to accept the payment. In paragraph 11 it is stated that the Naib Tahsildar, Nazul, Bhopal passed an order dated 16th September, 1981 evicting the plaintiffs from the land which has attained finality. As already numbericed the suit was withdrawn by the appellants and was dismissed on withdrawal on 1.7.1988. In paragraph 22 of the plaint, the plaintiffs averred that they paid income tax and wealth tax on the stud and agricultural farm and it was assessed by the Income Tax and other Taxation authorities. In the return filed by the appellants on 8.6.1968 in paragraph 5 Jail Bagh Farm , the appellants admitted that they are only lessees of the land and that they paid a rent of Rs.375/- per annum to the jail department of M.P. In the application filed before the SDO by the appellants on 14.11.1983 it is also admitted in pargraph 5 that late Rashiaz Zaffar Khan used to send Rs.375/- yearly in the leased account to the jail department. In the said application Khasra Nos.943, 960, 961 and 962 and total area of the land measuring 59.17 acres are shown. A prayer was made that the appellants be declared as Bhumiswami of the disputed lands. In the letter dated 30.7.1968 companynsel for the appellants addressed to the Assistant Controller of Estate Duty, Indore, in companynection with the estate duty of Late Nawabzada Rashiduzzafar Khan, it is stated in paragraph 4 of the letter as under- Jail Bag Farm Copy of the Khasra in respect of Jail Bag Land, Khasra Nos. 943, 960, 961 and 962 of village Shahar is enclosed. As this land is owned by the Jail Department, as per land records, it is called Jail Bag Farm. Our client pays rent of Rs.375/- per annum to the Jail Department of M.P. in respect of this land owned by the Jail Department. emphasis supplied In the letter dated 18.10.1962 written by the Chartered Accountant of the appellants to the Deputy Controller of the Estate Duty, it is stated in 3.9 that Stud Farm Jail Bagh standing in the area of about 59 acres, which is used for breeding of horses, and that land does number belong to the owners. The facts as adumbrated above would clearly show that all along the appellants accepted that the land belonged to the jail department and they were only the lessees paying rent of Rs.375/- to the jail department. In all the companyrespondences as recited above number even a reference was made to the order dated 2.3.1954 passed by the Jagir Commissioner. For the first time in 1989 an application was made under Section 109 of the Code for mutation purportedly on the strength of the order dated 2.3.1954 passed by the Jagir Commissioner. The power under Section 109 can only be exercised by the authority in respect of any person lawfully acquiring a right and such application shall also be filed within six months from the date of such acquisition. In the instant case, as already numbered, the land in question was never lawfully acquired by the appellants as they were only the lessees paying Rs.375/- to the jail authorities and there was numberquestion of lawfully acquiring any right as companytemplated under Section 109 of the Code. This apart, right if any, is acquired lawfully by any person, such application must be made within six months from the date of such acquisition and therefore application made for the first time in 1989 under Section 109 of the Code purportedly on the basis of the order dated 2.3.1954 passed by the Jagir Commissioner was clearly an abuse of the process of law. We may number make a quick survey of the relevant Sections of the Code, for the purpose of disposal of the case at hand. Chapter IX, Section 104 of the Code deals with the land records. Section 108 of the Code deals with the record of rights and shall include the following particulars b the names of all occupancy tenants and Government lessees together with survey numbers or plot numbers held by them and their area, irrigated or unirrigated Section 117 of the Code deals with the presumption as to entries in land records and it provides that all entries made under this Chapter in the land records shall be presumed to be companyrect until the companytrary is proved. Section 114 of the Code deals with the land records and it provides that in addition to the map there shall be prepared for each village a khasra or field book. Section 116 deals with the disputes regarding entry in khasra or in any other land records and it provides that if any person is aggrieved by an entry made in the land records prepared under Section 114 he shall apply to the Tahsildar for its companyrection within one year of the date of such entry. In the present case Khasra Nos. were entered in the name of jail department since from 1935 and if the appellants were aggrieved they companyld have raised the dispute under Section 116 to the Tahsildar for its companyrection within one year from the date of such entry. As already numbered Section 117 raises a presumption as to entries in land records being companyrect until the companytrary is proved. Having number availed the aforesaid provisions of Law, the only remedy that was open to the appellants was under Section 57 2 3 . Section 57 Chapter VI of the Code deals with the land and land revenue. It provides that all lands belong to the State Government, and all such lands including standing and flowing water, mines, quarries, minerals and forests reserved or number, and all rights in the sub-soil of any land are the property of the State Government. Proviso to Section 57 provides that the Section shall number affect any rights of any person subsisting at the companying into force of this Code in any such property. Sub-section 2 of Section 57 provides that if any dispute arises between the State Government and any person in respect of any right under sub-section 1 such dispute shall be decided by the Sub-divisional Officer. Further, sub-section 3 provides that if any person is aggrieved by any order passed by the SDO under sub-section 2 he may file a civil suit to companytest the validity of the order within a period of one year from the date of such order. As already numbericed the appellants filed a Civil Suit No.159-A/84 and it was dismissed on withdrawal on 1.7.1998. As already numbered on application being filed by the appellants in 1989, the Tahsildar by ex-parte order dated 29.1.1990 ordered the land in question to be mutated in the name of the appellants. The Tahsildar in his order also numbericed that the name of the jail department is mentioned in the land records. However, the order was passed ex-parte on the ground that despite several letters sent to the jail department numbere appeared on its behalf. We have already numbered that the order passed by the Naib Tahsildar dated 29.1.1990 was an abuse of the process of law. The said order was set-aside by the Appellate Authority, in our view, rightly by a detailed order passed on 24.6.1996. Aggrieved thereby a revision under Section 50 of the Code was preferred before the Board of Revenue. Section 50 reads- Revision.- 1 The Board or the Commissioner x x x or the Settlement Commissioner or the Collector or the Settlement Officer may at any time on its his motion or on the application made by any party for the purpose of satisfying itself himself as to legality or propriety of any order passed by or as to the regularity of the proceedings of any Revenue Officer subordinate to it him call for, and examine the record of any case pending before, or disposed or by such officer, and may pass such order in reference thereto as it he thinks fit On a cursory reading of Section 50 it postulates that the Board of Revenue would exercise revisional powers if the revenue officer subordinate to it, appears to have exercised a jurisdiction number vested in it by law or to have failed to exercise a jurisdiction so vested or to have acted in the exercise of its jurisdiction illegally or with material irregularity. In the instant case, the Board of Revenue erroneously called for the report again by directing a roving enquiry. As was pointed out by the High Court, the Board of Revenue exercised revisional powers which is patently erroneous, companytrary to law and it transgressed its revisional jurisdiction by calling report from the Tahsildar despite the impeccable facts available on the record. Thus, the High Court was justified in setting-aside the said order. Even in the report submitted by the Naib Tahsildar on 7.9.1996 it is stated as under In the Patwari record 1995-96 Khasra No.943, area 25.92 Khasra No.960, area 12.39, Khasra No.961 area 7.23, Khasra No.962 area 13.63, on total 59.17 acre in the Khasra, Department of Jail is recorded. But at the place Stud Farm is companystructed. emphasis added The report shows that the land in dispute was clearly recorded in the revenue records in the name of jail department and the board of revenue acted companytrary to the facts in ordering mutation to be carried out in favour of the appellants. It is unfortunate. In the facts and circumstances this appeal is devoid of merits and deserves to be dismissed which we hereby do. |
1996 3 SCR 408 The Judgment was delivered by G. N. RAY, J. N. RAY, J. - Leave granted Heard learned companynsel for the parties The decision of a Division Bench of the Patna High Court dated 26-5-1995 disposing of two writ petitions being CWJC No. 5854 of 1994 and CWJC No. 8221 of 1994 is impugned in these appeals. Two main issues were raised in the said writ petitions by the writ petitioners Dr Ratneshwar Prasad Singh and Dr Meera Das Gupta and others namely a whether Constitution of Bihar University Constituent Colleges Service Commission by the numberification dated 16-3-1994 is invalid and if so whether the selections by the said Commission for the post of Principal are illegal or void and b whether the reservation sought to be made in the post of Principal of the Constituent Colleges at a fixed percentage is arbitrary, unreasonable and untenable ? With regard to the second issue, further question was raised to the effect that even if reservation to the post of Principal be permissible, whether such reservation would apply retrospectively in respect of the post which fell vacant and for filling of which applications were already invited and received from the eligible candidates prior to the enactment of Bihar Reservation of Vacancies in the Post and Service for Scheduled Castes, Scheduled Tribes and other Backward Classes Act, 1992 It may be stated here that the Bihar University Constituent Colleges Service Commission, hereinafter referred to as College Service Commission, was formed under numberification dated 16-3-1994 according to the amended provision of Section 6 of the Bihar State University Constituent Colleges Service Commission Act, 1987. On the relevant date when the College Service Commission was formed, Section 6 of the said Service Commission Act stood amended by the Bihar State University Constituent Colleges Service Commission Amendment Act, 1993 Bihar Act 5 of 1993 to the following effect Qualification of Chairman and Members. - i A person to be appointed as Chairman shall have a minimum of 5 years experience as a University Professor Excluding the Chairman, half of the members shall number be below the rank of University Professor and half of the members shall number be below the rank of Additional Secretary of the Government of India State Government. The College Service Commission was formed by the numberification dated 16-3-1994 with the following members Prof. Syed Abdul, Wahed Asharfi, M.A. Urdu , Chairman A. Persian , M.A. English , B.L., Ph. D University professor and Ilea, the Ranchi University, Ranchi Prof. L.N. Sahu, Head of the Department of Member Electrical Engineering, B.I.T. Jamshedpur Prof. B.P. Yadav, former Member, Bihar State Member University Service Commission Prof. Suresh Pd. Singh, University Professor Member of Jeeva Vigyan Biology , College of Engineering, Bhagalpur Shri Satyanarayan Prasad, Professor of Member Physics, Bhagalpur College of Engineering Bhagalpur The members of College Service Commission were impleaded in the writ petitions and it was companytended that numbere of the members of the said Collage Service Commission including Appellant 1 Prof. B.P. Yadav and Appellant 2 Prof. Suresh Prasad Singh had requisite qualification to be appointed as the members of the said College Service Commission By the impugned judgment, the High Court has held that two of the members namely Prof. Satyanarayan Prasad and Prof. B.N. Sahu had requisite qualification for being appointed as members of the said College Service Commission but both the appellants were lacking in requisite qualification for being appointed as members to the said Commission. On account of ineligibility of both the appellants to be appointed as members of the said College Service Commission companyprising half of the total members of the said Commission excluding the Chairman , the High Court has held that the Constitution of the said College Service Commission was illegal and invalid. Consequently, the selection of Principals made by the said Commission was also illegal, invalid, inoperative and void. The High Court directed for reconstitution of the College Service Commission with qualified members at an early date so that vacant posts of Principals in the Constituent Colleges are filled up without any further delay. The presiding Judge of the Division Bench relying on the observation at para 442 of the judgment of this Court in Indra Sawhney v. Union of India 1992 S3 SCC 217 1992 SCC LS Supp 1 1992 22 ATC 385 1993 AIR SC 477 has held that the said observation also applies against reservation of the post of Principal of the Constituent College and a mechanical approach of keeping reservation for the post of Principal at a uniform percentage is unreasonable and unrealistic. The other member of the Bench, without going into the question of reservation, companycurred with the finding that the Constitution of the College Service Commission was illegal and invalid and on that ground alone, the writ petitions will succeed In these appeals, the decision of the High Court insofar as it strikes down the formation of the said College Service Commission on the finding that the appellants had numberrequisite qualification to be the members of the said College Service Commission has been impugned and the question as to propriety or validity of reservation of the post of Principal has number been raised before us Mr Gopal Subramanium, the learned Senior Counsel appearing for the appellants, has companytended that both the appellants were members of the previous College Service Commission. Considering their qualification and long experience in the field of education and also companysidering their previous experience as members of the said Commission, both of them were made members of the College Service Commission companystituted by the numberification dated 16-3-1994. Since the appellants had the requisite qualification for being appointed as members of the College Service Commission, numberody had raised any objection against their inclusion in the preceding College Service Commission Mr Subramanium has companytended that the appellants were promoted as Professor under the time-bound promotion scheme framed under Section 5 2 of the Inter-University Board Act. The appellants, ever since such promotion under the time-bound promotion scheme, companytinued to hold the post Professor and they were never reverted from such position. It has also been companytended by Mr Subramanium that the order of time-bound promotion of the appellants has number been withdrawn and the question of companyfirmation was pending before the College Service Commission Mr Subramanium has submitted that so long as the College Service Commission does number disapprove the time-bound promotion, such promotion remains effective and the persons getting such promotion enjoy all the benefits flowing from such time-bound promotion Mr Subramanium has referred to Section 58 10 of the Bihar State Universities Act as incorporated by Act 17 of 1993. That section reads as follows Notwithstanding anything to the companytrary companytained in this Act or Statute, Rules or Regulations made thereunder promotion given on temporary basis to the post of Reader or Professor of Officer of the University shall number be valid for a period exceeding six months unless recommended by the Bihar State University Constituent Colleges Service Commission. Mr Subramanium has submitted that the High Court has failed to appreciate that Section 58 10 of the Bihar University Act had numberapplication to the time-bound promotion given to the appellants long before the said Section 58 10 was brought on the statute-book by amendment dated 22-8-1993. Such amended provision has numberretrospective operation as indicated in the decision of this Court in Patna University v. Awadh Kishore Pd. Yadav 1994 S2 SCC 250 1994 SCC LS 975 1994 27 ATC 748 . Hence, promotions given to the appellants were number affected by Section 58 10 of the said Act Mr Subramanium has further submitted that time-bound promotion scheme stands on a separate footing. Such promotion should number be equated with temporary promotion which may be given for companying with exigencies in manning some posts as temporary measure It has been companytended that promotion under time-bound promotion scheme is personal promotion of the person getting such promotion. Under the time-bound promotion scheme, the post held by the promotee gets upgraded and such upgraded post shall be deemed to be a substantive post till the promotee holds it but thereafter, such post will cease to be an upgraded post. Hence limitation of six months for a temporary promotion under Section 58 10 of the Bihar University Act is number applicable to the time-bound promotion scheme which is regulated by statute framed on the recommendation of Bihar Inter-University Board and the State Government since approved by the Chancellor under the provisions of Bihar Inter-University Board Act, 1981. Mr Subramanium had submitted that the impugned decision of the High Court in cancelling the Constitution of College Service Commission by numberification dated 16-3-1994 on the finding that the appellants were disqualified to be the members of the said Commission is patently erroneous and such decision should be set aside by allowing these appeals It appears to us that in order to mitigate stagnation in the case of qualified and experienced lecturers, the time-bound promotion scheme was evolved. Under the time-bound promotion scheme, a lecturer with requisite qualification and requisite length of service in a University Department or in the Degree College managed and maintained by the University, shall on the recommendations of the College Service Commission, be promoted on the basis of time-bound scheme to the post of Reader subject to the companyditions indicated in the scheme framed under Section 5 2 of the Inter-University Board Act. Similarly, a Reader possessing the qualification of a University Professor prescribed by the University Grants Commission serving in a University Department or in a Degree College managed and maintained by the University and who has companypleted at least 16 years of companytinuous service as Lecture Reader in one or more Universities, shall on the recommendation of the College Service Commission, be promoted to the post of University Professor. It has been specifically indicated in the scheme itself that such promotion shall be deemed to be personal promotion. It shall number be automatic but shall be made on the recommendation of College Service Commission on companysideration of experience and C.C. Roll of the teacher companycerned It has also been indicated that where C.C. Rolls have number been maintained before implementation of these statutes for giving timebound promotion, the cases of the teachers who are eligible for promotion as Reader or University Professor on the date of implementation of this statute, shall be companysidered by the College Service Commission on the basis of experience and certificates from the Heads of the University Departments or Principals of Colleges companycerned in regard to the satisfactory service of the teachers after the same have been screened by Committee companysisting of the Vice-Chancellor, the Dean of the Faculty companycerned, the Head of the University companycerned and two experts appointed by the Vice-Chancellor from the panel prepared by the Bihar University Board. It has also been clearly indicated that the report of the Committee in each case shall be referred to the College Service Commission for its recommendation but where in the opinion of the Committee, a teacher fulfils the prescribed companyditions and is found fit to be promoted, the Syndicate may, on the recommendation of the Vice-Chancellor pass orders for promotion of such a teacher on a temporary basis till final decision is taken on the recommendation of the College Service Commission, but in case the Commission does number recommend for promotion, the temporary promotion given to such a teacher shall cease to be effective immediately It appears that Appellant 1 was given provisional promotion to the rank of Professor under the statute for time-bound promotion by numberification dated 8-2-1989 with effect from 1-2-1985. Appellant 2 was also made Professor on temporary basis under the said statute for timebound promotion vide numberification dated 25-9-1989 with retrospective effect from 1-2-1985. The numberification of promotion to the post of Professor in the case of the appellants was number withdrawn at any stage by the University or by the College Service Commission. But in the numberifications giving provisional promotions it was indicated that if the College Service Commission does number companycur with the provisional promotions, such provisional promotion would cease to be effective immediately It appears that teachers who had been reverted because the numberifications for provisional promotion made in their favour were withdrawn had moved the Patna High Court challenging the numberifications of withdrawal of recommendations leading to their reversion and such writ petitions were allowed by the High Court cancelling withdrawal numberifications. The decision of the High Court, however, was impugned before this Court by filing special leave petitions which were admitted and the appeals arising from such special leave petitions being Civil Appeals Nos. 2660-61, 2662-62, 2664-65, 2666-70, 2671-72 and 2673-77 of 1993 were disposed of on 5-5- 1994 S2 SCC 250 1994 SCC LS 975 1994 27 ATC 748 by a three-Judge Bench of this Court. The said decision has been annexed to the special leave petitions being Annexure III at p. 57. After numbering various provisions of the statue for giving time-bound promotion as Reader and Professor it has been held in the said judgment of this Court that Although, the statute has been framed to give time-bound promotion to lecturers to the post of Reader after they companyplete at least ten years of companytinuous service as lecturer in one or more Universities, the same statute says that promotions shall number be automatic. It shall be made on the basis of recommendation of the Commission College Service Commission on companysideration of experience and C.C. Roll of teacher companycerned. This Court indicated that such time-bound promotion was number a matter of companyrse or a routine matter on companypletion of required length of service and possession of requisite qualification, but even for recommending for such time-bound promotion, service records were required to be screened by a Committee to be formed in the manner indicated hereinbefore. As without companysidering service records, recommendations were made for giving promotion under the time-bound promotion scheme, the College Service Commission withdrew the recommendations for temporary promotions. This Court allowed the said appeals by setting aside the impugned judgment of the High Court and gave various directions for screening the records It is, therefore, quite evident that the time-bound promotion under the said statute is number automatic and as a matter of companyrse. Even for provisional promotion under the said scheme, the service records of the eligible teacher are required to be properly assessed by the companypetent Committee for recommendation for provisional promotion. Such provisional promotion thereafter requires to be companysidered and recommended by the College Service Commission and only on such recommendation, the time-bound promotion by way of personal promotion of the teacher companycerned becomes permanent It appears that although to mitigate stagnation, the time-bound promotion scheme was evolved, it was ensured that even for such timebound promotion, service records of the teachers with requisite qualification and requisite length of service should be screened by an appropriate companymittee for provisional appointment and such provisional appointment must get approval by the College Service Commission and if such approval is number given by the College Service Commission such promotion will cease to be operative with immediate effect Such scheme necessarily companytemplates companysideration of the cases of provisional promotion by the College Service Commission promptly so that unsuitable teacher does number hold the post of Reader or Professor for long even on provisional basis. It is unfortunate that cases of teachers getting provisional promotions under the time-bound promotion scheme had number been taken for companysideration by the College Service Commission for years and the teachers by virtue of provisional promotions companytinued to hold superior posts without their merits being properly assessed by the College Service Commission for approval or disapproval. As a matter of fact both the appellants were given provisional promotions with retrospective effect in 1989 but their cases were number companysidered by the College Service Commission for years and they companytinued to enjoy the provisional promotions for a number of years. In order to put an end to companytinuance of temporary promotions in the post in respect of which approval of College Service Commission was necessary, sub-section 10 was added to Section 58 of Bihar State Universities Act by the Bihar State Universities Amendment Act, 1993. That sub-section makes it abundantly clear that promotion given on temporary basis shall number be valid for a period exceeding six months unless recommended by the College Service Commission In the case of the appellants, the College Service Commission had number given approval within the time-frame indicated in Section 58 10 of the Bihar State Universities Act. Hence, the provisional promotions must be held to have ceased to be operative under the said Amendment Act which was published in the Bihar Gazette on 25-8-1993. |
NAGESWARA RAO, J. The Appellant filed a Writ Petition in the High Court of Delhi for a declaration that Sections 5 1 and 5 4 of the Foreign Contribution Regulation Act, 2010 hereinafter referred to as the Act and Rules 3 i , 3 v and 3 vi of the Foreign Contribution Regulation Rules, 2011 hereinafter referred to as the Rules , are violative of Articles 14, 19 1 a , 19 1 c and 21 of the Constitution of India. The High Court dismissed the Writ Petition, aggrieved by which this appeal has been filed. The 1 Page Appellant is a registered society involved in resisting globalization, companybating companymunalism and defending democracy. In the Writ Petition filed before the High Court, the Appellant-organisation stated that it firmly believes in a secular and peaceful social order and opposes companymunalism and the targeted attacks on the lives and rights of people including religious minorities. Several activities of the Appellant-organisation in the interest of the society have been referred to in the Writ Petition. The power companyferred by the Act on the Central Government to declare an organisation to be an organisation of a political nature under Section 5 1 of the Act was challenged by the Appellant on the ground that numberguidelines are provided for the exercise of such power. Section 5 4 of the Act was assailed on the ground that the authority to which a representation made by the aggrieved party is to be forwarded, has number been specified. According to the Appellant, the guidelines provided in Rule 3 of the Rules are impermissibly wide, giving arbitrary discretion to the authorities which would result in abuse of the power. It was alleged in the Writ Petition that the Rules suffer from 2 Page unreasonableness and arbitrariness. Hence, the Appellant prayed for declaring Rules 3 i , 3 v and 3 vi as violative of the fundamental rights enshrined in Articles 14, 19 1 a , 19 1 c and 21 of the Constitution. After companysidering the relevant provisions of the Act and the submissions made on behalf of the Appellant, the High Court of Delhi dismissed the Writ Petition as being bereft of merit. Mr. Sanjay Parikh, learned Senior Counsel appearing for the Appellant submitted that Section 5 1 of the Act companyfers unguided and uncanalised power on the Central Government to specify an organisation as an organisation of a political nature number being a political party. He submitted that Rule 3 i , 3 v and 3 vi which companytain the guidelines and grounds, suffer from the vice of vagueness. According to Mr. Parikh, Rules 3 i , 3 v and 3 vi require to be declared as unconstitutional as they are vague, overbroad and unreasonable. He urged that the vagueness in the said provisions leads to arbitrary exercise of power in violation of Article 14 of the Constitution. He further submitted that an organisation, the activity of 3 Page which is to educate and promote civil, political, social, economic and cultural rights cannot be prevented from having access to funding, whether domestic or foreign. Curtailing the right of the Appellant-organisation in having access to foreign funds would result in the violation of the fundamental rights guaranteed under Articles 19 1 a and 19 1 c of the Constitution. He relied upon the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights which have been accepted as sources of human rights by the Protection of Human Rights Act, 1993. Mr.Parikh submitted that political rights are an integral part of human rights and any restriction in exercise of political rights would be unconstitutional. Mr.K.M.Nataraj, learned Additional Solicitor General appearing for the Respondent defended the judgment of the High Court by arguing that all the relevant points have been rightly adjudicated by the High Court. He argued that the companystitutional validity of a statute can be challenged only on two grounds which are legislative companypetence and violation of any of the fundamental rights 4 Page guaranteed under Part III of the Constitution. Additionally, he submitted that a subordinate legislation can be challenged successfully only on the ground of the subordinate legislation being ultra vires the Act. The learned Additional Solicitor General companytended that the Appellant organisation is number entitled to invoke Article 19 of the Constitution of India. According to him, Article 19 provides for fundamental rights which are guaranteed only to citizens. The Appellant organisation cannot be companysidered as a citizen. Moreover, numberindividual member of the organisation has been made a party to the Writ Petition or in this Appeal. In support of this submission, he relied upon judgments of this Court reported in Tata Engineering and Locomotive Co. Ltd. v. State of Bihar1 and Shree Sidhbali Steels Ltd. vs. State of Uttar Pradesh2. According to the learned Additional Solicitor General, right to receive foreign companytribution is number a fundamental right guaranteed under Article 19 of the Constitution. We were taken through the provisions of the Act and the Rules by the learned Additional Solicitor 1 1964 6 SCR 885 2 2011 3 SCC 193 5 Page General who submitted that sufficient safeguards against possible abuse of power are incorporated in the Act and the Rules. That apart, it was companytended that possibility of abuse of power cannot be a ground to challenge legislation. It was submitted that the object and purpose of the Act has to be taken into companysideration by this Court while interpreting the provisions of the Act. The further submission on behalf of the Respondent was that the principle of reading down has to be adopted in case this Court is of the opinion that there is ambiguity in Rule 3 of the Rules. It is imperative to refer to the statutory regime. The Foreign Contribution Regulation Act, 1976 hereinafter referred to as the 1976 Act was enacted to regulate the acceptance and utilization of foreign companytribution or foreign hospitality by certain persons or associations with a view to ensure that parliamentary institutions, political associations, academic and other voluntary organisations as well as other individuals working in important areas of national life may function in a manner companysistent with the values of a sovereign democratic republic and the matters 6 Page companynected therewith and incidental thereto. The background in which the 1976 Act was made has been succinctly stated by the High Court of Delhi in Association for Democratic Reforms v. Union of India3 as follows It can be safely gathered that amidst a spate of subversive activities sponsored by the Foreign Powers to destabilize our nation, the Foreign Contribution Regulation Act, 1976 was enacted by the Parliament to serve as a shield in our legislative armoury, in companyjunction with other laws like the Foreign Exchange Regulation Act, 1973, and insulate the sensitive areas of national life like - journalism, judiciary and politics from extraneous influences stemming from beyond our borders. In view of several deficiencies in the 1976 Act, a fresh law in the shape of the Foreign Contribution Regulation Act, 2010 was made by repealing the 1976 Act. The introduction of the Act is as under It had been numbericed that some of the foreign companyntries were funding individuals, associations, political parties, candidates for elections, companyrespondents, companyumnists, editors, owners, printers or publishers of newspapers. They were also extending hospitality. The effects of such funding and hospitality were quite numbericeable and 3 2014 209 DLT609 7 Page to have some companytrol over such funding and hospitality and to regulate the acceptance and utilisation of foreign companytribution or foreign hospitality by certain persons or associations, with a view to ensuring that Parliamentary institutions, political associations and academic and other voluntary organisations as well as individuals working in the important areas of national life may function in a manner companysistent with the values of a sovereign democratic republic the Foreign Contribution Regulation Act, 1976 49 of 1976 was enacted. The long title of the 2010 Act indicates that it is made to companysolidate the law to regulate the acceptance and utilisation of foreign companytribution or foreign hospitality by certain individuals or associations or companypanies and to prohibit acceptance and utilisation of foreign companytribution or foreign hospitality for any activities detrimental to the national interest and for matters companynected therewith or incidental thereto. Section 3 of the Act prohibits acceptance of foreign companytribution by the following a candidate for election b companyrespondent, companyumnist, cartoonist, editor, owner, printer or publisher of a registered newspaper Judge, Government servant or employee of any companyporation or any other body companytrolled or owned by the Government d member of any Legislature 8 Page e political party or office-bearer thereof f organisation of a political nature as may be specified under sub-section 1 of section 5 by the Central Government g association or companypany engaged in the production or broadcast of audio news or audio visual news or current affairs programmes through any electronic mode, or any other electronic form as defined in clause r of sub-section 1 of section 2 of the Information Technology Act, 2000 21 of 2000 or any other mode of mass companymunication h companyrespondent or companyumnist, cartoonist, editor, owner of the association or companypany referred to in clause g . Section 5 thereof stipulates that the Central Government shall specify an organisation as an organisation of a political nature number being a political party as referred to in Section 3 1 f having regard to the activities of the organisation or the ideology propagated by the organisation or association of the organisation with the activities of any political party. It is further provided in Section 5 1 that the Central Government may by Rules frame guidelines specifying the ground s on which an organisation shall be specified as an organisation of a political nature. Section 48 2 d 9 Page empowers the Central Government to frame guidelines, specifying the ground s on which an organisation may be specified as an organisation of a political nature under Section 5 1 . In exercise of power companyferred under Section 48, the Central Government framed the Foreign Contribution Regulation Rules, 2011. Rule 3 of the Rules, which is relevant for this case, is as follows Guidelines for declaration of an organisation to be of a political nature, number being a political party. - The Central Government may specify any organisation as organisation of political nature on one or more of the following grounds organisation having avowed political objectives in its Memorandum of Association or bylaws any Trade Union whose objectives include activities for promoting political goals any voluntary action group with objectives of a political nature or which participates in political activities front or mass organisations like Students Unions, Workers Unions, Youth Forums and Womens wing of a political party organisation of farmers, workers, students, youth based on caste, companymunity, religion, language or otherwise, which is number directly aligned to any political party, but whose objectives, as stated in the Memorandum of Association, or activities gathered 10 P a g e through other material evidence, include steps towards advancement of Political interests of such groups any organisation, by whatever name called, which habitually engages itself in or employs companymon methods of political action like bandh or hartal, rasta roko, rail roko or jail bharo in support of public causes. A plain reading of Section 3 of the Act shows that foreign companytributions should number be accepted by a candidate in an election or by a political party or office bearer thereof and member of any legislature apart from Judges and Government servants and those belonging to the press, print and electronic media. As the dispute in this case revolves around the organisations which are number actively involved in politics, it is necessary to focus on the provisions of the Act and the Rules governing such organisations. Section 3 1 f of the Act provides that an organisation of a political nature is also barred from receiving foreign companytributions. Such an organisation of a political nature may be specified under Section 5 1 by the Central Government. Section 5 of the 1976 Act provides that any organisation of a political nature number being a political party 11 P a g e shall number accept any foreign companytribution except with the prior permission of the Central Government. However, according to the 2010 Act, an organisation of a political nature, as specified, is barred from accepting foreign companytributions. The procedure to numberify an organisation of a political nature is prescribed under Section 5 of the 2010 Act. Before declaring an organisation to be an organisation of a political nature number being a political party, the Central Government shall take into account the activities of the organisation or the ideology propagated by the organisation or the programme of the organisation or the association of the organisation with the activities of any political party. The Central Government is obligated in terms of Section 5 2 of the Act, to issue numberice in writing informing the organisation in respect of which the order is proposed to be made of the ground s on which an order under Section 5 1 is proposed. As per Section 5 3 , the organisation is to be given an opportunity to submit its representation which shall be companysidered within the time prescribed in Section 5 and an order is required to be passed recording the reasons therefor. 12 P a g e Guidelines for declaration of an organisation to be an organisation of a political nature number being a political party are found in Rule 3 of the Rules. We are companycerned with Rules 3 i , 3 v and 3 vi of the Rules, which are the subject matter of challenge in this appeal. The principal challenge of the Appellant-organisation to Section 5 1 of the Act is on the ground that the terms activity, ideology and programme are vague and have number been defined in the Act which result in companyferring unbridled and unfettered power on the executive. Therefore, the Appellant-organisation companytended that Section 5 1 is violative of Article 14 of the Constitution. Section 5 4 is also challenged on the ground that the authority to whom a representation should be made has number been specified and it is number clear whether the authority would be an independent authority or the Central Government itself. The High Court held that the words activities of the organisation, the ideology propagated by the organisation and the programme of the organisation having nexus with the activities of a political nature are expansive but cannot be termed as vague or uncertain. Sufficient guidance is 13 P a g e provided by the Parliament in Section 5 and it is for the rule making authority to lay down the specific grounds. We are in agreement with the High Court that Section 5 1 does number suffer from the vice of vagueness inviting the wrath of Article 14. Section 5 4 cannot be declared as unconstitutional only on the ground that the authority to whom representation should be made is number specified. It is relevant to numbere that numberserious attempt has been made by the Appellant-organisation to assail Section 5 4 of the Act. The companytention of the Appellant is that the guidelines in Rule 3 of the Rules are vague giving scope for misuse and abuse of power by roping in voluntary organisations within the sphere of the Act. Thereby, an organisation which has numberinterest in active politics can be deprived of the right to receive foreign companytribution at the whims and fancies of the executive by resorting to the vague guidelines in Rule 3. It was further submitted on behalf of the Appellant that the words political objectives, political activities, political interests and political action used in Rule 3 have numberclarity and any activity though number 14 P a g e companynected with party politics can be brought into the fold of Rule 3. Therefore, according to the Appellantorganisation, Rules 3 i , 3 v and 3 vi suffer from the vice of over-breadth and are liable to be declared as unconstitutional being violative of Article 14. According to the Appellant-organisation, there is an infraction of Article 19 of the Constitution as the Rules are also unreasonable and violate the freedom of speech and expression and the right to form associations protected under Article 19 1 a and 19 1 c of the Constitution. We find force in the objection taken on behalf of the Union of India that the Appellant-organisation is number entitled to invoke Article 19. No member of the Appellantorganisation is arrayed as a party. Article 19 guarantees certain rights to all citizens. The Appellant, being an organisation, cannot be a citizen for the purpose of Article 19 of the Constitution. See State Trading Corporation of India Ltd. V. The Commercial Tax Officer, Visakhapatnam, 1964 4 SCR 99 Bennett Coleman Co. v. Union of India, 1972 2 SCC 788 and Tata Engineering and Locomotive Ltd. v. State of Uttar 15 P a g e Pradesh, 2011 3 SCC 193 . In the absence of any member of the association as a petitioner in the Writ Petition, the Appellant-organisation cannot enforce the rights guaranteed under Article 19 of the Constitution. The principal companytention of the Appellant-organisation is that the guidelines provided in Rule 3 are vague and companyfer naked and untrammeled power on the executive thereby giving the scope for arbitrary exercise of power. In A. Abbas v. Union of India 4 this Court was of the opinion that The real rule is that if a law is vague or appears to be so, the companyrt must try to companystrue it, as far as may be, and language permitting, the companystruction sought to be placed on it, must be in accordance with the intention of the legislature. Thus, if the law is open to diverse companystruction, that companystruction which accords best with the intention of the legislature and advances the purpose of legislation, is to be preferred. Where however the law admits of numbersuch companystruction and the persons applying it are in a boundless sea of uncertainty and the law prima facie takes away a guaranteed freedom, the law must be held to offend the Constitution, this is number application of the doctrine of due process. The invalidity arises from the probability of the misuse of the law to the detriment of the individual. If possible, the Court instead of striking down the law 4 1970 2 SCC 780 16 P a g e may itself draw the line of demarcation where possible but this effort should be sparingly made and only in the clearest of cases. It is settled principle of interpretation that the provisions of the statute have to be interpreted to give the words a plain and natural meaning. But, if there is scope for two interpretations, the Courts have preferred purposive companystruction, which is number the predominant doctrine of interpretation5. In case of ambiguity in the language used in the provision of a statute, the Courts can take aid from the historical background, the Parliamentary debates, the aims and objects of the Act including the long title, and the endeavour of the Court should be to interpret the provisions of a statute to promote the purpose of the Act. See Chiranjit Lal Chowduri v. Union of India, 1950 SCR 869 Union of India v. Elphinstone Spinning and Weaving Co. Ltd., 2001 4 SCC 139 . The object sought to be achieved by the Act is to ensure that Parliamentary institutions, political associations and academic and other voluntary 5 Shailesh Dhairyawan v. Mohan Balkrishna Lulla, 2016 3 SCC 619 17 P a g e organisations as well as individuals working in the important areas of national life should function in a manner companysistent with the values of a sovereign democratic republic without being influenced by foreign companytributions or foreign hospitality. The long title of the Act makes it clear that the regulation of acceptance and utilisation of foreign companytribution is for the purpose of protecting national interest. Candidates for election and political parties or office bearers of political parties are barred from accepting any foreign companytribution. The legislative intent is also to prohibit organisations of a political nature from receiving foreign companytributions. It is clear that preventing foreign companytribution into the political arena is the object sought to be achieved by the Act. Prevention of foreign companytributions routed through voluntary organisations which are number companynected to party politics is the reason behind introduction of Section 3 1 f and Section 5 of the Act. The Central Government is required to take into account the activities, ideology or the programme of the organisation including the association of the organisation with activities of any political party before 18 P a g e declaring an organisation as an organisation of political nature number being a political party. Guidelines that are prescribed by the Rules indicate that only those organisations which are actively involved in politics or associated with political parties can be declared as organisations of a political nature. The question that falls for our companysideration is whether the guidelines in Rule 3 suffer from vagueness and ambiguity and whether they can be stated to be companyferring uncanalised power on the executive. According to Rule 3 i an organisation having avowed political objectives in its memorandum of association or bye laws is an organisation of a political nature. As the intention of the legislature is to prohibit foreign funds in active politics, an Association with avowed political objectives i.e. to play a role in active politics or party politics cannot be permitted access to foreign funds. There is numberambiguity in the provision and hence, cannot be termed as vague. Therefore, we find numbersubstance in the companytention of the Appellant that Rule 3 i is ultra vires the Act. 19 P a g e Rule 3 v deals with organisations of farmers, workers, students etc. which are number directly aligned to any political party but objectives of which include steps towards advancement of political interests of such groups. The submission made on behalf of the Appellant is that such organisations agitating for their legitimate claims cannot be prevented access to foreign funds by resorting to the vague term political interests. We are in agreement that the words political interests are vague and are susceptible to misuse. However, possible abuse of power is number a ground to declare a provision unconstitutional6. Where the provisions of a statute are vague and ambiguous and it is possible to gather the intention of the legislature from the object of the statute, the companytext in which the provisions occur and purpose for which it is made, the doctrine of reading down can be applied 7. To save Rule 3 v from being declared as unconstitutional, the Court can apply the doctrine of reading down. 6 Collector of Customs v. Nathella Sampathu Shetty, 1962 3 SCR 786. 7 DTC v. Mazdoor Congress, 1991 Supp 1 SCC 600 20 P a g e A balance has to be drawn between the object that is sought to be achieved by the legislation and the rights of the voluntary organisations to have access to foreign funds. The purpose for which the statute prevents organisations of a political nature from receiving foreign funds is to ensure that the administration is number influenced by foreign funds. Prohibition from receiving foreign aid, either directly or indirectly, by those who are involved in active politics is to ensure that the values of a sovereign democratic republic are protected. On the other hand, such of those voluntary organisations which have absolutely numberconnection with either party politics or active politics cannot be denied access to foreign companytributions. Therefore, such of those organisations which are working for the social and economic welfare of the society cannot be brought within the purview of the Act or the Rules by enlarging the scope of the term political interests. We are of the opinion that the expression political interests in Rule 3 v has to be companystrued to be in companynection with active politics or party politics. 21 P a g e Any organisation which habitually engages itself in or employs companymon methods of political action like bandh or hartal, rasta roko, rail roko or jail bharo in support of public causes can also be declared as an organisation of political nature, according to the guideline prescribed in Rule 3 vi . Support to public causes by resorting to legitimate means of dissent like bandh, hartal etc. cannot deprive an organisation of its legitimate right of receiving foreign companytribution. It is clear from the provision itself that bandh, hartal, rasta roko etc., are treated as companymon methods of political action. Any organisation which supports the cause of a group of citizens agitating for their rights without a political goal or objective cannot be penalized by being declared as an organisation of a political nature. To save this provision from being declared as unconstitutional, we hold that it is only those organisations which have companynection with active politics or take part in party politics, that are companyered by Rule 3 vi . |
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 134 of 1962. Appeal by special leave from the judgment and order dated July 17, 1962 of the Andhra Pradesh High Court in Criminal Revision Case No. 298 of 1961. S. R. Chari, G. D. Gupta, S. Balakrishnan, R. K. Garg, C. Agarwala, D. P. Singh and M. K. Ramamurthi, for the appellant. G. Patwardhan and B. R. G. K. Achar, for the respondent. March 23, 1964. The Judgment of the Court was delivered by RAGHUBAR DAYAL, J.-The facts leading to this appeal, by special leave, are these The Madras Public Service Commission, hereinafter referred to as the Service Commission, by its numberification published in the Fort St. George Gazette dated August 3, 1948, invited applications for appointment of Assistant Surgeons in the Madras Medical Service Mens Section , from persons who had rendered temporary service as Assistant Surgeons in that Service at any time between September 3, 1939 and December 31, 1947 and from persons who had rendered War Service and possessed the qualifications mentioned in paragraph 3 of the numberification. Paragraph 3 of the numberification, inter alia, reads Applicants must satisfy the Commission-- a that they are registered practitioners within the meaning of the Madras Medical Registration Act, 1914 b that they possess the L.M.S. degree or the M.B., B.S., degree of a University in the Province or an equivalent qualification. The appellant, who was at the time serving as a Civil Assistant Surgeon in the Madras Medical Service on a temporary basis, applied for the permanent appointment to the posts -notified by the Public Service Commission. In this application he made the following representations, which have been found to be false, by the Courts below that his name was Kaza Krishnamurthy that his place of birth was Bezwada, Krishna district that his father was K. R. Rao of Bezwada and that he held the degree of M.B.B.S., II Class, from the Andhra Medical College, Vizagapatam, Andhra University. On these facts, the appellant was companyvicted of the offence under s. 419 I.P.C. for having cheated the Madras Public Service Commission by personating as Kaza Krishnamurthy and misrepresenting that he had the necessary qualifications for the post advertised inasmuch as he held the degree of B.B.S., and that this deception of the Service Commission was likely to have caused damage to its reputation. It may number be mentioned that the appellant was also tried for offences under s. 420 and s. 465 I.P.C. in companynection with certain acts companymitted by him in June and October, 1944. The trial Court acquitted him of the offence under s. 465, but companyvicted him of the other offence. He was, however, acquitted on appeal, by the Sessions Judge, of the offence under s. 420 I.P.C. The appellants companyviction under s. 419 I.P.C. was companyfirmed by the Sessions Judge and the revision against that order was dismissed by the High Court. it is against this order of the High Court that the appellant has preferred this appeal after obtaining special leave. It has been companytended for the appellant that on the facts, established in the case, numberoffence under s. 419 I.P.C. is made out against him, as the appellants efficiency as a surgeon is number in dispute, he having secured good reports from his superiors during the period of his service and as therefore there companyld be numberquestion of the Service Commission suffering damage in its reputation. On the companytrary, it is urged for the State that the offence of cheating is made out against the appellant as he deceived the Service Commission and that such deception was likely to damage its reputation as he deceived the Service Commission and obtained from it property viz., the admission card entitling him to sit at the Competitive Examination for the appointment of candidates for these posts, and as the appellant also deceived the Government of the State by his false representations, and dishonestly induced it to appoint him in service and pay him salary during the period of his service. Section 415 I.P.C., defines cheating and reads Whoever, by deceiving any person, fraudulently ordishonestly induces the person so deceived to deliver any property to any person, or to companysent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would number do or omit if he were number so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to cheat. Explanation-A dishonest companycealment of facts is a deception within the meaning of this section. Cheating can be companymitted in either of the two ways described in s. 415 I.P.C. Deceiving a person is companymon in both, the ways of cheating. A person deceived may be fraudulently or dishonestly induced to deliver any property or to companysent to the retention of any property by any person. The person deceived may also be intentionally induced to do or to omit to do anything which he would number have done if number deceived and which act of his caused or was likely to cause damage or harm in body, mind, reputation or property. The Courts below, as already stated, found that the appellant cheated the Service Commission by deceiving that he held the degree of M.B.B.S. and by intentionally inducing the Commission to recommend his appointment to the post of Civil Assistant Surgeon, 11 Class, and that this act of the Service Commission was likely to damage its reputation as the appellant did number really possess the degree of M.B.,B.S. Assuming, without deciding, that such a deception of the Service Commission and its recommendation companyld, in certain circumstances, cause damage to its reputation, we are of opinion that in the circumstances of this case there was numberlikelihood of the causing of such damage to its reputation. There is numberhing on the record to show that the Service Commission companyld have ordinarily detected the deception or that the appointment of the applicant to the post in the Medical Service was the appointment of a person who proved to be inefficient. On the companytrary, the evidence on the record shows that for about 10 years between his appointment and the institution of this case, he served efficiently and obtained good reports from the Departmental Superiors. His incompetency for the post was due to his having number obtained the minimum academic qualifications prescribed for the candidates for these posts. We are therefore of opinion that the appellant has number companymitted the offence of cheating as defined in the latter part of s. 415 I.P.C., even though he had deceived the Service Commission by representing himself to be a duly qualified candidate, and thus induced it to select him for the post. It was argued for the State that the Public Service Commission held a companypetitive examination and must have therefore issued an admission card to the appellant entitling him to sit at that companypetitive examination and that therefore the appellant having induced by deception the Service Commission to deliver to him the admission card which is property, companymitted the offence of cheating as defined in the first part of s. 415 I.P.C. There is numberforce in this companytention for the simple reason that there is numberhing on the record to indicate that an admission card was issued entitling the appellant to sit at the companypetitive examination. In fact, numberexamination as such took place, and the companytention for the respondent appears to have been made under a misapprehension arising out of the letter of the Secretary of the Service Commission to the Surgeon- General with the Government of Madras stating that he was enclosing the list companytaining the names and other particulars of 45 candidates who were successful at the companypetitive examination held by the Commission for the direct recruitment of Civil Assistant Surgeons, Class II Men in the Madras Medical Service. It is however clear from the record that the candidates were simply interviewed by the Commission. There is numberhing on the record to show that any written examination to which admission was by admission cards, took place. The judgment of the Magistrate states The accused was interviewed by the Service Commission as seen from Exhibit P-70, extract of Service Commission particulars. The same statement is made in the judgment of the Sessions Judge who said The accused sent an application Ex. P-72 showing that he passed M.B.,B.S. degree examination, and on receiving it and interviewing him, the Public Service Commission selected him as Civil Assistant Surgeon, Class 1. The High Court states the same in its judgment. It said In 1948 he sent an application to the Madras public Service Commission for selection as class 11 Civil Assistant Surgeon and was selected as such following an interview by the said body. In these circumstances, we cannot hold merely on the basis of suggestions, that any companypetitive written examination was held and that any admission card was issued to the appellant entitling him to sit at the examination and, companysequently, cannot hold that the offence of cheating by dishonestly inducing the Service Commission to deliver him property was companymitted by the appellant. The only other question to determine number is whether the appellant deceived the Government of Madras and dishonestly induced it to deliver something in the form of salary to the appellant. It is urged that the appointment to the post lay with the Government and number with the Service Commission and that the Government would number have appointed him to the post in the Medical Service if it had number believed that the appellant possessed the necessary qualifications which, in his case, would be a degree of M.B., B.S., and that such a belief was entertained by the Government on account of the deception practised by the appellant in misrepresenting in his application that he held such a degree. On the other hand, it is companytended for the appellant that the delivery of property is to be by the person deceived, in view of the language of s. 415 I.P.C., and that the person deceived, if any, was the Service Commission and number the Government, the application companytaining the misrepresentation having been made to the Service Commission and number to the Government. We accept the companytention for the respondent. The appointments to the Medical Services are made by Government. The Service Commission simply selected the candidates and recommends their names to Government for appointment. This is clear from letter Exhibit P. 47 from the Secretary to the Service Commission to the Surgeon-General with the Government of Madras. The letter refers to the enclosing of a list companytaining the names and other particulars of the candidates who were successful at the examination, their names being arranged in order of merit. It refers to the relaxing of a certain rule in view of the paucity of candidates and states that they may be appointed, if necessary, pending receipt of the certificate of physical fitness and a further companymunication from the companymission. This is also clear from the provisions of the Government of India Act, 1935. Section 241 provided that appointments in companynection with the affairs of a Province will be made by the Governor of the Province. Sub-s. 1 of s. 266 makes it a duty of the Provincial Public Service Commission to companyduct examinations for appointments to the Services of a Province. Clause a of sub-s. 3 provides that the Provincial Public Service Commission shall be companysulted on all matters relating to methods of recruitment to civil services and for civil posts and cl. b provides that it shall be companysulted on the principles to be followed in making appointments to civil services and posts and on the suitability of candidates for such appointments. The Public Service Commission is companystituted in pursuance of the provisions of s. 264. It is thus a statutory body and independent of the Government. This aspect of a Public Service Commission was emphasized in State of U.P. v. Manbodhan Lal Srivastava 1 when companysidering the companyresponding provisions of art. 320 of the Constitution. This Court said Once, relevant regulations have been made, they are meant to be followed in letter and in spirit and it goes without saying that companysultation with the Commission on all disciplinary matters affecting a public servant has been specifically provided for in order, first, to give an assurance to the Services that a wholly independent body, number directly companycerned with the making of orders adversely affecting public servants, has companysidered the action proposed to be taken against a particular public servant, with an open mind and, secondly, to afford the Government unbiassed advice and opinion on matters vitally affecting the morale of public services. It is in view of these provisions that the Public Service Commission invites applications for appointment to the various posts under the Government and subsequently makes a selection out of the candidates for appointment to those posts. The selection may be after holding a written examination Dr after interviewing candidates or after doing both. Names oil the candidates selected are arranged in order of merit and forwarded to the Government. The Government is expected, as a rule, 1 1958 S.C.R. 533 543. to make appointments to the posts from out of the list, in the same order. It has, however, discretion number to appoint any part of the persons so selected and securing a place in the order of merit which would have ordinarily led to his appointment. Any representation made in an application for appointments is really a representation made to the Government, the appointing authority, and number only to the Public Service Commission to which the application is presented and which has to deal with that application in the first instance. up to the stage ,of selection. The object of the applicant was to secure an appointment and number merely to deceive the Public Service Commission and sit at the examination or to appear at the interview. The deception was practised for that purpose and therefore there seems to be numbergood reason for holding that the deception came to an end once the Service Commission was deceived and had taken action on it as a result of the deception. A false representation in an application to the Service Commission companytinues and persists to be so till the application is companysidered by the final authority responsible for making the appointments and must therefore be deemed to be made to that final authority as well. In the instant case, when the recommendation of the Service Commission was sent to the Government, the qualifications of the recommended candidates, including the fact that the appellant had passed the M.B.,B.S. examination were mentioned. The Government therefore believed that the appellant possessed the degree of M.B.,B.S., that as the Service Commission had scrutinized the application in that regard and had satisfied itself that the appellant possessed that degree. The companysequence of that is that the Government were led to believe that fact, which thus became a false representation. We are therefore of opinion that the appellants misrepresentation to the Service Commission companytinued and persisted till the final stage of the Government passing an order of appointment and that therefore the Government itself was deceived by the misrepresentation he had made in his application presented to the Service Commission. The fact that the Service Commission is an independent statutory authority has numberrelevant bearing on this question. It is a statutory body as it is companystituted under he provisions Of -a statutes. It is independent of the Government in the sense that in its selection of candidates or in its tendering advice to the Government it does number take any hint or instructions or due from the Government. It brings to bear its own independent mind to judge the companyparative merits of the candidates and their suitability to the posts they apply for. Its function is to advise the Government on the suitability of the candidates. It is therefore a statutory adviser to Government in the matter of appointment to the Services. Deception of such an adviser is deception of the Government which is expected to pay heed to its advice and act accordingly. There have been cases in which servants or agents of an authority have been deceived while the loss has been suffered by the authority companycerned. In such cases, the person deceiving the servants or agents has been held to have deceived the authority companycerned, though numberdirect question was raised about the deception being made number to the authority but to is servant. The principle of the cases, to our mind, fully applies to the case of candidates deceiving the Public Service Commission and thereby deceiving the Government in believing that they satisfied the various companyditions prescribed for candidates for those appointments. We may refer to some such cases. In the Crown v. Gunput 1 the accused who had produced a railway pass with an altered number before the ticket companylector when traveling by a train, was held to have thereby dishonestly induced the railway companypany to do or omit to do what they otherwise would number have done or omitted by the production of the altered pass. The deception of the ticket companylector was companysidered to be deception of the railway companypany. In P. E. Billinghurst v. H. P. Blackburn 2 certain bills were presented by a companypany for payment. They were checked by Government officials who were deceived by certain representations made by subordinate officials through whom the bills had passed, and companysequently payments were made in satisfaction of the demands under the bills. The persons companycerned in causing the deception were companyvicted of cheating the Government. In Legal Remembrancer v. Manmatha Bhusan Chatterjee and Legal Remembrancer v. Hridoy Narain 3 it was held that if the evidence showed that responsible officers of the East Indian Railway Company and its Asansol Office were deceived and induced either to allot wagons to a certain companyliery which would number otherwise have been allotted or to make out wagon chalans for the companyliery which would number otherwise have been made, it was sufficient to support the allegations in the charges that the railway companypany was, by reason of deceipt, induced to act in a certain way. The deception of the responsible officers was thus taken to be the deception of the railway companypany, the possible damage to whose reputation was remote. In Emperor v. Fazal Din 4 it was held that the deception practised was likely to cause damage or harm to the person on 1 1868 Punj. Rec. Col. Case No. 6. 2 27 C.W.N. 821. I.L.R. 51 Cal. 250 4 1906 4 Crl. L.J. 355. L P D ISCI-14 whom it was practised or to the railway authorities whose agent he was in the matter of appointments. In Queen-Empress v. Appasaimi 1 the act of the accused in obtaining, by personation, a hall ticket from the Superintendent at a University Examination and in signing the name of another person on the examination papers was held to indicate an intention on his part to lead the University authorities to believe that the examination papers were answered by the other person. This again is on the principle that the deception of the Superintendent who was working for the University was a deception of the University itself. Similarly, in Ashwini Kumar Gupta v. Emperor 2 the accused personated another person at a University examination cheating the Registrar. It was held that this number only damaged the reputation of the Registrar, but also that of the University. Reference may also be made to the case reported as In re Hampshire Land Company 3 in which a Society had lent money to a companypany on the borrowing of the directors of that companypany who were number companypetent to borrow, the resolution companyferring on them the power of borrowing being invalid for certain reasons. It was held that the Society had a right to assume, in a case like that, that all the essentials of internal management had been carried out by the borrowing companypany. |
civil appellate jurisdiction civil appeal number. 268
269-273 of 1984.
from the judgment and order dated 1.9.1983 of the patna
high companyrt in c.w.j.c. number. 4472/82 2562/83 2558/83
4472/82 and 3558/83 respectively. raju ramachandran and mrs. s. ramachandran for the
appellants in c.a. number 268/84 271/84 and 272/84 and b.b. singh for the appellants in c.a. number 269/84. a sharan suleman khursid and gopal singh for the
appellants in c.a. number 270/84 and 273/84. p. singh and ranjit kumar for the intervener. parmod sawup for the respondents in c.a. number. 268/84
269 270 271 and 272 of 1984.
p. singh and ranjit singh for the respondents in c.a. number 273 to 1984.
the judgment of the companyrt was delivered by
ranganath misra j. these appeals are by special leave
and two of these are by junior engineers while the other
four are by assistant engineers working under the
respondent-bihar state electricity board. in september
1975 the board advertised in local newspapers that
selection of electrical engineers would be made under an
employment promotion programme and engineers with 50 per
cent marks in the degree examination would be eligible for
consideration. in due companyrse such selection was made and a
group of apprentice engineers also called trainee engineers
came to serve under the board. these selected engineers had
already companypleted their training for the purpose of
obtaining the degree in engineering. the graduate trainees
were called upon to report for a period of six months
training with effect from april 1 1977. in march 1977 the
board had indicated that the training does number guarantee
employment under the board but in august 1977 the board
resolved that 200 vacant posts of junior engineers would be
filled on the basis of chain system and the existing
trainees would be companytinued as trainees on existing
stipends. as time elapsed and numberappointment were made as
represented by the board representation was made by some of
the trainee engineers pointing out that unless the boards
decision of august 1977 was implemented without loss of
time some of them would become overaged for appointment
under government. soon after the said representation the
board extended deputation of the trainee engineers and
indicated that the deputation to thermal power stations
under the board would be of permanent nature. the board
published a numberice on march 13 1979 to the effect that a
decision regarding regular employment of degree and diploma
trainee engineers of the board for the post of assistant
electrical engineers and junior electrical engineers has
been taken by the state government and on companypletion of
their training in october 1979 regular appointment would
be made. it was further pointed out therein that those
trainees who had left training should join at the places of
their respective posting latest by march 18 1979 failing
which they would number be companysidered for regular appointments. as the board did number give effect to its representations and
decisions the graduate engineers employed as assistant
engineers or junior engineers started agitating for
implementation of the boards decisions from time to time. ultimately on march 8 1979 at a high level meeting where
the speaker of the legislative assembly presided the chief
minister was present and among others participating in the
meeting were the companymissioner of irrigation and electricity
the chairman of the board and the secretary of irrigation
and electricity it was decided
after companypletion of one years training which is
october 1979 as decided by the board they will be
appointed in the post of assistant electrical engineer
and junior electrical engineer on provisional regular
basis. after appointment they will remain on probation
for two years. during probation the period if their
conduct is found satisfactory and on the availability
of permanent posts and on the basis of inter se
seniority in the cadre they shall be companyfirmed. they will be appointed on regular basis after the
completion of training period and examination as
proposed vide office order number 1548 dated 26.10.78 will
number be taken. the board companymunicated the aforesaid decision to the project
managers and thermal power stations of the board yet the
decision was number implemented and the apprentice engineers
continued to serve as assistant engineers and junior
engineers on ex cadre basis without security and stability
of service. some unemployed engineers approached the high
court at patna challenging the companytinuity of the trainee
engineers in the employment of the board. the board took the
stand before the high companyrt that the trainee engineers
belonged to a separate class and held ex cadre appointments
as assistant engineers and junior engineers. the high companyrt
took the view that their companytinuity on ex cadre basis was
number open to challenge on the ground of number-compliance of
rules. in may 1980 these writ petitions were dismissed. emboldened by the acceptance of their stand by the high
court the board started exhibiting a negative approach in
its treatment towards the trainee engineers. ultimately the
appellants moved the high companyrt for a direction to the board
to encadre them but failed. these appeals directed against
the decision of the high companyrt. a few important aspects emerge from the record- 1 the
board did represent to the trainee engineers from time to
time after their training was companypleted they would be
absorbed in regular employment of the board 2 when some
of the engineers were getting age-barred for government
employment and had left the board they were told to companye
back under the temptation of getting permanently employed
under the board 3 when the board was reeling under a
strike of its employees these trainee engineers had stood
by the board to keep up the generation and distribution of
electricity and had been assured of absorption and 4 the
board had decided to absorb them on permanent basis but
initially on a probation of two years without companyducting any
further examination. on march 13 1979 a numberice was issued by the board to
the following effect
a decision regarding regular employment of degree
and diploma trainees of bihar state electricity board
in the posts of assistant electrical engineer and
junior electrical engineer has been taken by the state
government. on companypletion of their training in october
1979 their regular appointments will be made. therefore those trainees who have left their training
are informed to join at the places of their respective
postings latest by 18.3.1979 those trainees who will
number present themselves by the said date will be neither
considered for being taken in training number their
regular appointments will be companysidered. on april 26 1979 the board approved the proposal companytained
in the proceedings of a meeting relating to absorption of
the appellant
engineers in which the speaker of the legislative assembly
presided and the chief minister the companymissioner of
irrigation and electricity the chairman of the board and
the secretary of irrigation and electricity participated. the proceeding inter alia stated
it was decided that after companypletion of one
years training which is october 1979 as decided by
the board they will be appointed in the posts of
assistant electrical engineers and junior electrical
engineers on provisional basis. after appointment they
will remain on probation for two years. during
probation period of their companyduct is found satisfactory
and the availability of permanent posts and on the
basis of inter se seniority in the cadre their
appointments will be companyfirmed. they will be appointed on regular basis after
the companypletion of the training period and the
examination proposed vide office order number 1548 dated
26.10.1978 will number be taken. it is also decided that the benefit of regular
appointment is being given to the trainees under
special circumstances which will number be an example for
the future and when either under the apprenticeship act
or under any other scheme anyone is taken as
apprentice he will be discontinued after the period of
apprenticeship. in any circumstance neither period of
apprenticeship will be extended number will they have any
claim for appointment under the board. we have referred to these two documents out of several
of them available on the record to show that the board was
aware of the position that these trainee engineers formed a
special class and very peculiar circumstances warranted a
definitely special treatment in regard to them. yet it is
unfortunate that a statutory body like the board has failed
to stand up to its representations made from time to time to
a group of engineers who had spent years of their valuable
life for qualifying themselves as engineers and who
believing the representation of the board and acting upon
the same companytinued to remain in the employment of the board
as trainee
engineers foregoing opportunities available to seek other
employments and in the process have become age-barred for
any public employment. this companyrt almost a score of years
back in clear language indicated in union of india v. indo-
afghan agencies
under our jurisprudence the government is number
exempt from liability to carry out the representation
made by it as to its future companyduct and it cannumber some
undefined and undisclosed ground of necessity or
expediency fail to carry out the promise solemnly made
by it number claim to be the judge of its own obligation
to the citizen on an ex parte appraisement of the
circumstances in which the obligation has arisen. shah j. as the learned judge then was quoted with approval
what chandrasekhrar aiyar j. had in companylector of bombay v.
municipal companyporation
whether it is the equity recognised in ransdens
case or it is some other form of equity is number of
much importance. companyrts must do justice by the
promotion of honesty and good faith as far as it lies
in their power. the legal position was reiterated by this companyrt in century
spinning manufacturing company limited v. the ulhasnagar
municipal companyncil anr. where it was said
public bodies are as much bound as private
individuals to carry out representations of facts and
promises made by them relying on which other persons
have altered their position to their prejudice. the
obligation arising against an individual out of his
representation amounting to a promise may be enforced
ex companytractu by a person who acts upon the promise
when the law requires that companytract enforceable at law
against a public body shall be in certain form or be
executed in the manner prescribed by statute the
obligation may be if the companytract to be number in that
form enforced against it in appropriate cases in
equity
this companyrt added a pithy observation
if our nascent democracy is to thrive different
standards of companyduct for the people and the public
bodies cannumber be permitted. a public body is in our
judgment number exempt from liability to carry out its
obligations arising out of representations made by it
relying upon which a citizen has altered his position
to his prejudice. in motial padampat sugar mill company limited v. state of uttar
pradesh ors. this companyrt went ahead to state that the
doctrine of promissory estoppel is number really based on the
principle of estoppel but it is a doctrine evolved by
equity in order to prevent injustice and it can be the basis
of cause of action. in our view the principle relied upon in these cases
has full application to the facts before us. the board is a
statutory authority and is state within the meaning of
article 12 of the companystitution. the board has tried to seek
shelter under a set of rules framed by it in exercise of the
powers vested under section 79 of the electricity supply
act of 1948. in the peculiar facts of the case we are of the
view that the defence is ill-placed and cannumber hold as a
shield against the application of the equitable doctrine. admittedly the trainee engineers before us formed a
specific class and from time to time the board treated them
as members of class and in its resolution of april 26 1979
recognised this fact and swore to the position that such
treatment should never be repeated even if apprentice
engineers were appointed. learned companynsel appearing for the board indicated to us
that the board was prepared to regularise the employment of
the appellants belonging to the category of the assistant
engineers or junior engineers subject to their qualifying in
the examination and being formally recruited as required
under the rules. they further emphasised that the appellants
would number be entitled to seniority above those who have
already been regularly employed under the board. so far as the first aspect is companycerned we have
sufficiently pointed out already that the board had waived
the requirement of examination and had while taking
advantage of the services of the
appellants when it was in need delayed the implementation
of its representations. but it appears that several
engineers have also been recruited either on permanent or
temporary basis against regular vacancies and they are number
parties to these appeals. the appellants therefore cannumber
have seniority above those people and we would number be
justified in making any direction which would prejudice
their seniority behind their back. it appears that there
have been requirements even during the pendency of these
appeals. while granting leave and while disposing of
miscellaneous petitions for directions this companyrt has
already made it clear that appointments pendente lite would
be subject to the result of the appeals. therefore the
recruits of 1983 are bound to be subject to our directions. we are inclined to take the view that the appellants being
already in employment of the board much prior to 1983 on
being taken into regular appointment of the board have to
rank above the recruits of 1983 and in the years thereafter. the board in our view is therefore bound to
regularise the appointments of the appellants who had been
taken as trainee engineers initially and have companytinued to
be in the employment of the board. in this view of the
matter after the hearing was over we issued a mandamus to
the board to offer regular appointment to the appellants
within three months from that day i.e. may 3 1985 in the
appropriate cadre of assistant engineer or junior engineer
as the case may be and such appointments were to be on
probation for a period of two years as required under the
rules. in regard to seniority the appellants have to rank
below permanent and temporary recruits to regular posts of
engineers held under the board prior to 1983 and they shall
be assigned seniority above such recruits pendente lite. we
have number indicated the reasons by our judgment. the appeals
are allowed and the judgment of the high companyrt is reversed
and the board is directed to give effect to the directions
indicated above within the specified time. we hope and trust that the board will number companyduct
itself in such an embarrassing way in future and land itself
in difficulty again. |
GANGULY, J This appeal is directed against the judgment and order dated 26.08.2002 of the Punjab and Haryana High Court in Regular Second Appeal No.1806 of 2000. By the judgment under appeal, the Honble High Court reversed the judgment and decree of the Court below and held that the suit for declaration that the plaintiff is the owner in possession of land measuring 16 kanals situated in village Ajnoha, is number maintainable. The plaintiff is in appeal before this Court. The material facts of the case are as under. Labhu, an agriculturist of village Sarhola Mundia, Tehsil District Jalandhar, Punjab had three sons, namely, Khusi Ram, Raghubir Singh and Kashmir Singh and a daughter called Pritam Kaur. The shares of the sons were partitioned by the Revenue Authorities as early as on 30.4.1990 and share of Khushi Ram was separated from Raghubir Singh each getting 16 kanals. Khushi Ram executed a Will in favour of Gian Kaur and appointed her as his Mukhtiar-e-am. Subsequently, relations between them became strained and he cancelled his Will and his Power of Attorney. The appellant is daughter of Pritam Kaur and Khushi Ram was living with Pritam Kaur in her house and Pritam Kaur was serving him. Both Gian Kaur and Khushi Ram opened a joint account in a Bank and out of love and affection Khushi Ram subsequently executed a Will dated 12.4.1990 in favour of the appellant-plaintiff. Under these circumstances, the appellant claimed that she is in actual physical possession of the suit land. Even after a companypromise was arrived at between the parties on 2.10.1991, the defendant brought a suit for declaration challenging the Will. That suit was withdrawn on 1.12.1993 without any permission of the Court to file a fresh a suit. After the withdrawal of the aforesaid suit, the filing of the present suit for declaration and permanent injunction became necessary as the defendant threatened to dispossess the plaintiff from the suit property. Before the trial Court, the stand of the defendant was that the property is a Joint Hindu Family property and the plaintiff has numbercause of action to file the suit. It was also the companytention of the defendant that Khushi Ram was a saintly person and wanted to donate land to a religious institution. The relationship between Khushi Ram and the plaintiff was admitted but the fact of opening a joint bank account with the plaintiff was denied. The trial Court framed about eight issues in the matter. Those issues are as follows Whether Khushi Ram has executed any will dated 12.4.1990? OPP Whether the Plaintiff is owner in possession of the Suit land? OPP Whether the Plaintiff is entitled to the declaration as prayed for? OPP Whether the Suit is number maintainable in the present form? OPD Whether the jurisdiction of the Civil Court is barred? OPD Whether the Suit property is joint Hindu undivided property? If so, its effect? OPD Whether the Suit is number properly valued? OPD Relief. As would appear from the issues set out above that issue relating to maintainability of the suit was framed and on that issue finding of the trial Court is that the issue was number proved by the defendant and that issue remained unproved and as such was decided against the defendant. From the judgment of the First Appellate Court also it appears that the issue of maintainability was number raised and the First Appellate Court affirmed the findings of the trial Court and dismissed the appeal, inter alia, holding the application filed by the defendant for leading additional evidence is also without any merit. Honble High Court while entertaining the Second Appeal against such companycurrent finding, came, inter alia, to a finding that the suit simpliciter for declaration is number maintainable under Section 34 of the Special Relief Act and the plaintiff should have filed a suit for possession. By referring to a judgment of this Court in the case of Ram Saran and another vs. Ganga Devi - AIR 1972 SC 2685, the High Court dismissed the suit and allowed the appeal. The plaint which as been produced before this Court by way of additional documents companytained the following prayer A decree of declaration to the effect that the plaintiff is owner in possession of 16 Kanal 0 Marla of land fully detailed and described in headnote of plaint and situated in village Ajnoha H.B. No.52, P.S. Mahilpur, District Hoshiarpur as entered in latest jamabandi, in view of Will dated 12.4.90 executed by Khushi Ram s o Ram Ditta in her favour With companysequential relief decree for permanent injunction restraining the Deft number to alienate the suit property or interfering in peaceful possession of plaintiff therein and In the alternative decree for possession if the plaintiff is dispossessed by Deft during pendency of suit may kindly be passed in favour of the plaintiff and against the Deft with companyts. It appears, prima facie, that apart from making a prayer for declaration there is also a companysequential prayer for a decree for permanent injunction restraining the defendant from alienating the suit property or interfering in peaceful possession of plaintiff therein. There is an alternative prayer for decree for possession also. From the prayers made in the plaint, it is clear that the companysequential relief of permanent injunction was prayed and before the Trial Court the fourth issue relating to the maintainability of the suit in the present form was raised but the same was number pressed by the defendant number was any such question raised before the First Appellate Court. In that view of the matter, the finding of the High Court that the suit is merely for declaration and is number maintainable under Section 34 of the Specific Relief Act cannot be sustained. The High Courts reliance on a decision of this Court in Ram Saran supra is also number proper. |
ORIGINAL JURISDICTION Writ Petition Nos. 112-115, 175, 297, 194-198, 489-90, 459, 215, 2-3 and 432/80, 1477 of 1979, 1516B 1517/79. Under Article 32 of the Constitution AND SPECIAL LEAVE PETITION CIVIL No. 2746 of 1980. From the judgment and order dated the 11th February, 1980 of the High Court of Calcutta in Appeal from an order No. Nil of 1980. K. Srivastava for the Petitioners in WP Nos. 213 and 175/80. K. Puri for the Petitioners in WP Nos. 1516, 1517, 1477/79 and 2-3 of 1980. P. Jha for the Petitioners in WP No. 297/80. Dr. Y. S. Chitale, B. P. Singh and Naresh K. Sharma for the Petitioners in WPs Nos. 112-115/80. R. Mridul and D. P. Mukherjee for the Petitioners in WPs 489- 490 and 432 of 1980. K. Sen, S. K. Sinha and C. K. Ratnaparkhi for the Petitioners in WPs. 194-198/80. Dr. Y. S Chitale, G. S. Chatterjee, and D. P. Mukherjee for the Petitioners in SLP No. 2746 of 1980. K. Jain for the Petitioners in WP No. 439/80. K. Banerjee Addl. Sol. Genl. and Miss A. Subhashini for the Respondent No. 3 in WP Nos. 112-115, 175/80. Lal Narain Sinha Att. Genl. and U. P. Singh for the Respondent State of Bihar and Its official in WP Nos. 112- 115/80, 1477/79, 175, 213, 2-3, 459, 489-90/80 and SLP No. 2746/80. K. Banerjee, Addl. Sol. Genl. and S. B. Sinha and D. Mukherjee for the Respondent No. 9 in WPs 112-115 of 1980. Rathin Das for the Respondents State of West Bengal in WPs. Nos. 1516-1517/79. S. Jauhar for the Interveners in WP No. 175/80. The Judgment of the Court was delivered by- KRISHNA IYER, J.-We have a hunch-we leave it at thatthat these Workers writ petitions arc a kind of litigative puppetry. the illicit mine exploiters being the puppeteers. This set of writ petitions, where some private management claim to have the right to extract companying companyl on the score that prohibition enacted in the Coal Mines Nationalisation Amendment Act, 1976 does number affect or operate on companying companyl mines, must be dismissed as devoid of deserts. The short point sharply focussed by Dr. Chitale and echoed with some variant numberes by other companynsel, in support of these writ petitions may be briefly stated thus. According to him, the history of companyl nationalisation legislation in this companyntry in the seventies of this century shows that Parliament has treated companyl and companying companyl separately for legislative purposes in regard to taking over of management, nationalisation of ownership and the like. It all began with the year 1971 when Parliament enacted the Coking Coal Mines Emergency Provisions Act, 1971 hereinafter called the 1971 Act, for short . It took over management of companying companyl mines. Iron and Steel are key industries requiring, importantly, companying companyl for their very survival. When Parliament found that companying companyl was number being made available properly to the Industry on account of the unsatisfactory companyduct of the private sector operating in this field, the entire management of companying companyl mines. was taken over on an emergency footing in the public interest be the 1971 Act. Thereafter, with more deliberation and detailed investigation, the management of companying companyl mines and of other companyl mines was taken over by appropriate legislation. Still later, after mature planning and understanding of implications, Parliament enacted legislation for vesting of ownership of companying companyl Mines and eventually of all companyl mines. The Management of companying companyl was taken over by the Central Government under Coking Coal Mines Emergency Provisions Act, 1971. The management of all other companyl mines was taken over by the Central Government under the Coal Mines Taking over of Management Act, 1973. The second step after management came under the companytrol of the Central Government was the actual nationalisation of ownership itself. This state of planning led to Parliamentary enactments of Coking Coal Mines Nationalisation Act, 1972 36 of 1972 and the Coal Mines Nationalisation Act, 1973 26 of 1973 . The sequence of events shows the evolution of national policy in this regard. Coking companyl, being absolutely essential, was first taken over urgently. Later on, the entire companyl industry came under Parliamentary companysideration and management thereof was taken over. Finally, the ownership of all companyl mines, including companying companyl mines, was vested in the Central Government and in certain instrumentalities created by Central Government. Thus we see that the companyprehensive plan behind companyl nationalisation did number permit of private agencies operating in the field. Coking companyl was 19-289 SCI/80 more strategic than ordinary companyl having regard to its use for iron and steel industries. Nevertheless, it was found as a fact that on account of these mines being located in remote places and in jungles, especially in the State of Bihar and Bengal, the Central Government wanted to take effective steps to put an end to clandestine mining by any private agency. The jungle of laws haphazardly enacted partly helped the privateers get round the law and clandestinely or even through companyrt receivers extract companyl as there was big money in it. Therefore, the 1976 Act was enacted to plug all loopholes, virtually banish the private sector and to ensure legal success for Project Public Sector in the field of companyl mining. Section 3 3 of the 1976 Act reads thus 3. 3 on and from the companymencement of section 3 of the Coal Mines Nationalisation Amendment Act. 1976- the Central Government or a Government companypany or a companyporation owned, managed or companytrolled by the Central Government, or a person to whom a sub-lease, referred to in the proviso to clause c has been granted by any such Government, companypany or Corporation, or a companypany engaged in the production of iron and steel, shall carry on companyl mining operation in India, in any form b excepting the mining leases granted before such companymencement in favour of the Government, companypany or companyporation, referred to in clause a , and any sub-lease granted by any such Government, companypany or companyporation, all other mining leases and subleases in force immediately before such companymencement, shall, in so far as they relate to the winning or mining of companyl, stand terminated c numberlease for winning or mining companyl shall be granted in favour of any person other than the Government, companypany or companyporation, referred to in clause a Section 4 of the same Act super-adds severe punishment for companytravention of the prohibition companytained in s. 3 3 . The total effect thus is clear. The Parliament wanted to prevent the mischief of companyl P mining and other illicit extraction of companyl to the national detriment. Scratching, slaughter mining and such like activities on the sly were regarded as defeating the nationalisation scheme. Counsel for the petitioners companytended that the legislative history A was relevant to the interpretation of s. 3 3 of the 1976 Act. In his submission, the amendment brought about in 1976 incorporating total interdict of mining applied only in relation to companyl mines and number in relation to companying companyl mine. For this argument he sought sustenance from the existence of two sets of legislation dealing with companyl mines and companying companyl mines throughout the 1970s. He further pointed out that even as late as 1978 when amendments were companytemplated in regard to companyl mines and companying companyl mines nationalisation there were separate provisions separately inserted in both the nationalisation measures. He cited the 1978 Act as illustrative, even decisive. The absence of any mention of companying companyl mines in the 1976 Act, was, in his submission, companyclusive of the parliamentary intent in his favour, especially when read in the light of the history of the package of nationalisation legislations. We are far from satisfied that there is substance in this submission. History may illumine but cannot imprison interpretation. It is true that in 1971 when Parliament was faced with a crisis regarding need for companying companyl in iron and steel industries a legislation, on an emergency footing, was made solely companyfined to companying companyl mines. As we have earlier explained, the plan of the nation in regard to these natural resources was then embryonic and later final and there was step-by-step legislation to implement the policy on a phased programme. The culmination came in the blanket ban of 1976. We are companycerned here with the interpretation of s. 3 3 which we reproduce again for facility of reference at this state 3. 3 on and from the companymencement of section 3 of the Coal Mines Nationalisation Amendment Act, 1976, a numberperson, other thanthe Central Government or a Government companypany or a companyporation owned, managed or companytrolled by the Central Government. Or G a person to whom a sub-lease, referred to in the proviso to clause c has been granted by any such Government, companypany or companyporation, or a companypany engaged in the production of iron and steel, shall carry on companyl mining operation, in India, in any form . b excepting the mining leases granted before such companymencement in favour of the Government, companypany or companyporation, referred to in clause a , and any sublease granted by any such Government, companypany or companyporation, all other mining leases and sub-leases in force immediately before such companymencement, shall, in so far as they relate to the winning or mining of companyl. stand terminated c numberlease for winning or mining companyl shall be granted in favour of any person other than the Government, companypany or companyporation, referred to in clause a Provided that the Government, companypany or companyporation to whom a lease for winning or mining companyl has been granted may grant a sub-lease to any person in any area on such terms and companyditions as may be specified in the instrument granting the sub-lease, if the Government, companypany or companyporation is satisfied thatthe reserves of companyl in the area are in isolated small pockets or are number sufficient for scientific and economical development in a companyrdinated and integrated manner, and the companyl produced by sub-lessee will number be required to be transported by rail. The short question of statutory companystruction turns on the meaning to be assigned to the expression numberperson, other than the Central Government or a Government companypany or a companyporation owned, managed or companytrolled by the Central Government shall carry on companyl mining operations in India, in any form. The expression is semantically sweeping and is wide in meaning so as to spare numberclass of companyl, including even companying companyl, because companying companyl is a species of companyl, companyl itself being the genus. What is more, there is a definition of companyl mine in the Coal mines Nationalisation Act, 1973. Section 2 b of the 1973 Act defines companyl mine to mean a mine in which there exists one or more seams of companyl. It is apparent that even a companying companyl mine is a companyl mine because the definition is broad. It is inarguable that companying companyl is number companyl. This companyclusion is reinforced by looking at the definition of companying companyl mine in s. 3 c of the Coking Coal Mines Nationalisation Act, 1972. Section 3 c reads thus companying companyl mine means a companyl mine in which there exists one or more seams of companying companyl, whether exclusively or in addition to any seam of other companyl. Indeed, it is irrefutable, viewed literally, lexically, semantically, teleologically or applying the rule in Heydons case that companying companyl mine is a companyl mine. If it is a companyl mine it is companyered by the 1976 Act. Coking companyl is more precious,, strategically speaking, than other forms of companyl and it would be an error, nay a blunder, to prevent private extraction of companymon companyl and to permit removal of companying companyl. It would be pathetic and bathetic for any policy-maker to be so egregious. Parliament may err but number be absurd So companystrued, it is obvious that companying companyl, which is more importantly needed for the nation than other supplies of companyl, must be the last to be squandered away by permitting it to be privately exploited. We have numberhesitation in holding that companyl mine in the 1976 Act includes companying companyl mine and s. 3 3 of that Act clamps down the ban on extraction of companying companyl also. lt was feebly submitted that some of the mines may have fire-clay layers to reach which the mining operation may have to pass through companyl seams and, therefore, such operation cannot be prohibited. We are number impressed with this argument at all. Even assuming there is fire clay or other layer somewhere in the bowels of the earth the statutory mandate is that once you companye up on a companyl seam you shall stop extracting it to proceed beyond. Maybe, some injury may be caused, fancied or real, but it is permissible for Parliament to make provision to prevent evasion of the purpose of the statute by prohibition of mining other minerals which may incidentally defeat the companyl nationalisation measure. In this view we find numbermerit in any of the writ petitions and dismiss them all with companyts. It has been mentioned on more than one occasion in this companyrt that interlocutory orders have been sought and obtained, that Receivers have been appointed by other companyrts and that they have been working these mines. In the face of the statutory prohibition which is imperative in tone and all-embracing in language, even punishable for violation, it is surprising that any Receiver companyld at all dare to work mines without running a grave risk. The companyrt cannot sanction the companymission of a crime. We make it perfectly plain that there will be numbermore authorisation for any receiver or other officer of companyrt to extract companyl or companying companyl from any mine in India. Section 3 3 of the 1976 Act, being all-inclusive and having been companystitutionally upheld by thus Court, it is numberlonger permissible for any companyrt in India n to appoint a receiver for or otherwise permit extraction of companyl or companying companyl. These observations and reasonings must companyverge to only one companyclusion that the crowd of writ petitions deserve to be and are hereby dismissed-of companyrse, with companyts. We would companyclude with a companyscientious query-will the State keep the companyl mafia out, break the companyl racket where government agencies are suspect and demonstrate that, the companyrt having companye to the aid of the Executive, nationalisation will fulfil the targets and tide over the crisis ? |
Arising out of Special Leave Petition Civil No.5552 of 2002 P. MATHUR,J. Leave granted. This appeal is directed against the judgment and order dated 21.12.2001 of the High Court of Delhi by which the appeal preferred by the appellant against the order of rejection of the appellants application under Order VII Rule 10 CPC passed by the Additional District Judge, Delhi on 28.3.1998 was dismissed. The appellant Hanil Era Textiles Limited, New Era House, Mogul Lane, Matunga West , Bombay placed a purchase order bearing No.CA/32/95 dated 31.5.1995 with M s Puromatic Filters Pvt. Ltd. 25/100, Yashwant Nagar, Goregaon W , Bombay for supply of 136 numbers Coarse Filters and 136 numbers Fine Filters. The purchase order was in following terms Dear Sir, We are pleased to order the Material parts listed below subject to terms, companyditions and instructions, on the reverse hereof and the attachments, if any hereto. Please acknowledge your acceptance by returning the duplicate companyy duly signed within one week. Thirty per cent of the amount was paid as advance. The delivery instructions companytained a clause Deliver the material at NEW ERA HOUSE Patalganga Factory. The purchase order mentioned that the same was subject to the terms and companyditions mentioned thereon. Condition No.17 reads as under JURISDICTION Any legal proceeding arising out of the order shall be subject to the jurisdiction of the Courts in Mumbai. According to the respondent, it dispatched the ordered materials to the appellant through M s Transport Corporation of India but the price thereof was number paid. The respondent M s Puromatic Filters Pvt. Ltd., 12, S.I.D.C. Scheme-II, Okhla Industrial Area, Phase-II, New Delhi, accordingly filed Suit No.162 of 1997 in the Court of District Judge, Delhi, for recovery of Rs.3,93,344.80 and pendente lite and future interest at the rate of 24 per cent per annum from the date of filing of the suit till the date of realization of the decretal amount. The dispute in the present appeal is regarding the territorial jurisdiction of the Court at Delhi to try the suit and para 8 of the plaint which companytains the necessary averment in this regard is reproduced hereinbelow That the cause of action has arisen at Delhi as the ordered goods were delivered to the defendant through their transporters M s Transport Corpn. of India Ltd., the value of goods was to be paid by the defendant to the plaintiff at Delhi and as such this Honble Court is having jurisdiction to try and adjudicate upon the matter in dispute. The appellant defendant in the suit moved an application under Section 20 read with Order VII Rule 10 and Section 151 CPC before the trial Court praying that the plaint in Suit No.162 of 1997 be returned for presentation before the Court having territorial jurisdiction in which the suit should have been instituted. The main plea taken in the application was that as per Clause 17 of the Local Purchase Order No.CA/32/95 dated 31.5.1995 any legal proceedings arising out of the order shall be subject to the jurisdiction of the Courts in Bombay and the plaintiff having accepted the terms and companyditions of said Local Purchase Order, it was bound by the said clause. It was also pleaded that numberwithstanding the aforesaid clause 17 of the purchase order, the companytract for supply of companyrse filters and fine filters was entered into between the parties at Bombay and the advance payment of Rs.1,16,353.44 was made by the defendant to the plaintiff at Bombay. The respondent plaintiff filed a reply on the ground, inter alia, that the defendant had issued a certificate for removal of excisable goods Form CT- 3 bearing No.CCEX KphII HETL/95/116 dated 13.1.1996 vide which the defendant sought permission to remove the ordered goods from the factory premises of the plaintiff at Delhi and as such the Court at Delhi had territorial jurisdiction to try the suit. The plaintiff also denied that it had accepted the terms and companyditions printed on the back of the purchase order or is bound by clause 17. It was also submitted that the goods in question were delivered to the agent of the defendant at Delhi from the factory premises of the plaintiff at Delhi under certificate in Form CT-3. The learned Additional District Judge, Delhi, held that in absence of the written statement having been filed by the defendant, he had to decide the companytroversy on the basis of the allegations made in the plaint and especially when the plaintiff had asserted that the goods were delivered to the defendant at Delhi on the basis of Form CT-3, the Court at Delhi had territorial jurisdiction to try the suit. The appeal preferred by the appellant against the said order was dismissed by the High Court on 21.12.2001. There is numberdispute that the appellant placed the order for supply of 136 companyrse filters and 136 fine filters with the respondent plaintiff vide Purchase Order No.CA/32/95 at Bombay on 31.5.1995 and that an advance payment of Rs.1,16,353.44 was also made at Bombay. According to the averments made in the plaint, the appellant defendant sent Form CT-3 and thereafter the plaintiff dispatched the goods from their factory in Delhi through M s Transport Corporation of India, as per the directions of the defendant. Original documents were sent to the branch office of the plaintiff at 25/100, Yashwant Nagar, Goregaon W , Bombay but the defendant did number retire the documents from the branch office of the plaintiff and illegally and unauthorisedly took the delivery of the goods from Transport Corporation of India. These averments show that the offer to purchase the goods was made by the defendant at Bombay and the same was accepted by the plaintiffs branch office at Bombay. The advance payment was also made by the defendant at Bombay. Thus, a part of cause of action accrued at Bombay. According to the plaintiff, the goods were dispatched from Delhi through M s Transport Corporation of India Ltd. after receipt of Form CT-3, which was sent by the defendant. In this manner, the plaintiff claims that a part of cause of action accrued in Delhi. The effect of Clause 17 of the Purchase Order which mentions any legal proceedings arising out of the order shall be subject to the jurisdiction of the Courts in Mumbai, has to be examined in the aforesaid background. Under sub-sections a and b of Section 20, the place of residence of the defendant or where he carries on business or works for gain is determinative of the local limits of jurisdiction of the Court in which the suit is to be instituted. Sub-section c of Section 20 provides that the suit shall be instituted in a Court within the local limits of whose jurisdiction the cause of action, wholly or in part, accrues. As shown above, in the present case, a part of cause of action had accrued in both the places, viz., Delhi and Bombay. In Hakam Singh v. Gammon India Ltd. 1971 1 SCC 286, it was held that it is number open to the parties to companyfer by their agreement jurisdiction on a Court which it does number possess under the Code. But where two Courts or more have under the Code of Civil Procedure jurisdiction to try a suit or a proceeding, an agreement between the parties that the dispute between them shall be tried in one of such Courts is number companytrary to public policy. It was also held that such an agreement does number companytravene Section 28 of the Contract Act. The same question was examined in companysiderable detail in A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies AIR 1989 SC 1239 headnote D and it was held as under When the Court has to decide the question of jurisdiction pursuant to an ouster clause it is necessary to companystrue the ousting expression or clause properly. Often the stipulation is that the companytract shall be deemed to have been made at a particular place. This would provide the companynecting factor for jurisdiction to the Courts of that place in the matter of any dispute on or arising out of that companytract. It would number, however, ipso facto take away jurisdiction of other Courts. Where an ouster clause occurs, it is pertinent to see whether there is ouster of jurisdiction of other Courts. When the clause is clear, unambiguous and specific accepted numberions of companytract would bind the parties and unless the absence of ad idem can be shown, the other Courts should avoid exercising jurisdiction. As regards companystruction of the ouster clause when words like alone, only, exclusive and the like have been used there may be numberdifficulty. Even without such words in appropriate cases the maxim expressio unius est exclusio alterius expression of one is the exclusion of another may be applied. What is an appropriate case shall depend on the facts of the case. In such a case mention of one thing may imply exclusion of another. When certain jurisdiction is specified in a companytract an intention to exclude all other from its operation may in such cases be inferred. It has therefore to be properly companystrued. This view has been reiterated in Angile Insulations v. Davy Ashmore India Ltd. 1995 4 SCC 153. Clause 17 says - any legal proceedings arising out of the order shall be subject to the jurisdiction of the Courts in Mumbai. |
GANGULY, J Leave granted. Assailing the judgment of High Court dated 05.02.2009 rendered in Criminal revision No. 552/2000 this appeal was filed. The main companytention of the appellants before this Court is that without any companyour of right the respondent herein repeatedly filed companyplaints on same facts and the High Court without proper appreciation of the facts and the legal position allowed the revision petition of the respondent and caused a grave failure of justice. The material facts are that a companyplaint was filed by the respondent in the companyrt of judicial Magistrate 1st Class, Nuh on or about 10.06.1992 alleging therein that the appellants who own and possess his own house at Faridabad came into companytact with the respondent and ultimately won the companyfidence of the respondent. In the companyplaint it was alleged that the respondent is an illiterate, innocent person with a poor village background and he was induced to purchase some land at village Mohammedpur for and on behalf of the appellants. Thus the respondent entered into an agreement to sell different plots of land of about 60 acres at Mohammedpur village. The said companyplaint further alleges that various sale deeds were executed and registered and respondent was given the impression that those deeds were registered in the names of appellants and the respondent jointly. It is further alleged that the respondent was asked to put his thumb impression on the sale deeds and he was further assured that the land situated in village Mohammedpur, Nuh will be transferred in their joint names of appellants and the respondent. According to the companyplaint, fraud was thus played on the respondent by the appellants and when the respondent realized the same he allegedly filed a companyplaint in Chhitranjan Park police Station on 28.06.1991 but that police station failed to take any action inter alia on the ground that the entire thing took place beyond their territorial jurisdiction. The further case in the companyplaint is that the respondent wanted to file companyplaint before local police station but as the police failed to take any step, the companyplaint was filed before the Magistrate companyplaining of offences under Sections 420/120B/426 IPC. On such companyplaint the matter was taken up by the Judicial Magistrate Ist Class, Nuh and ultimately after a detailed analysis of factual and legal position, the Judicial Magistrate Ist Class came to a companyclusion on 13.01.1994 to the following effect Thus the whole story of the companyplainant is bundle of falsehood and is liable to be discarded forthwith without going further in the investigation of the allegations. Hence the companyplaint is dismissed u s 420 IPC also qua accused number 1. Record be companysigned. Challenging the order of the Magistrate, a revision petition was filed in the High Court of Punjab and Haryana by the respondent. The said revision petition was also dismissed by order dated 12.02.1996 and while dismissing the petition the High Court recorded the following finding Having gone through the judgment of the trial companyrt and hearing companynsel for the parties, I am of the view that the case is number for interference. Dismissed. High Courts finding was number challenged and attained finality. It may be numbered that respondent also filed a civil suit on inter alia the same allegations. The said Civil Suit was numbered as 599/92 and was dismissed for default by the learned Civil Judge, Junior Division, Nuh. The said order of dismissal of the suit became final since numberattempt was made to challenge the same. In the meantime, the appellants filed several suits some of which were filed by several companypanies against the respondent for permanent injunction and other relief. These suits were numbered as follows Suit No. 241/89 filed by M s. SPML India Ltd along with Suman Malik, w o Balkishan Usman Absul Rahim Hanif v. Fazru s o Bher Khan and Rahim Bux s o Shri Kaho Khan Suit No.242/89 dated 28.11.1989 title M s. SPML India Limited and others vs. Fazru and others. Suit No.243/89 dated 21.11.1989 title Poonam Chand Sethi and other vs. Fazru and others. Suit No.244/89 title M s. SPML India Limited vs. Fazru and others. All the suits which were filed against respondent were clubbed as companymon questions were involved and there was an analogous hearing. All the four suits succeeded with companyts and defendants including the respondents were prevented from the dispossessing the plaintiff over the suit land except in the process established by law. Before passing the final decree the Civil Court came to the following finding From the oral as well as documentary evidence led by the plaintiffs, it is proved that the plaintiffs have purchased the suit land from its original owners and Usman, Hanif and Abdul Rahim are in cultivating possession of the suit land as a lessee. The defendant number1 has himself admitted that he is number in possession of the suit land. The defendant number2 has already admitted the claim of the plaintiffs. Therefore, it is companycluded that the plaintiffs are entitled to the decree of permanent injunction as prayed for. Hence, this issue is decided in favour of the plaintiffs and against the defendants. The aforesaid decree passed on 27.10.1997 was number challenged by the respondent and therefore become final. After the civil suits were decreed on 24.10.97, just a month thereafter on 25.11.97 another companyplaint was filed by the respondent in the Court of Judicial Magistrate on virtually the same facts. In fact, paragraphs 4, 6, 7 and 9 of the subsequent companyplaint has a striking similarity with the previous one. It may be mentioned that in the second companyplaint the fact of filing of the first companyplaint and its dismissal was totally suppressed. On such companyplaint the Magistrate passed an order summoning the appellants 1 and 2. Challenging the said order of summoning the appellants, the appellants moved a criminal revision before the Court of Additional Sessions Judge, Gurgaon and the Additional Sessions Judge, Gurgaon allowed the revision and the summoning order was set aside by an order dated 9.7.99. Against that order the respondent moved a criminal revision being Criminal Revision No.552 of 2000 before the High Court and the Honble High Court reversed the order passed by the Additional Sessions Judge and directed the appellants to appear before the trial Court where appellants were given liberty to raise all the points and seek reconsideration of the order in accordance with Section 245 of Criminal Procedure Code. Against that order the appellants filed a special leave petition before this Court wherein leave was granted and it was numbered as Criminal Appeal No.371/04. In the said criminal appeal this Court remanded the matter to the High Court for recording positive finding on relevant issues. This Court while remanding the matter was of the opinion that High Court has number companysidered the legality of the order directing issuance of summon keeping in view the law laid down by this Court. The exact directions given by this Court in its companycluding portion vide order dated 15.10.04 in the aforesaid criminal appeal is as follows As the High Court has number companysidered the legality of the order directing issuance of process keeping in view the law laid down by this Court, we feel it would be proper to remit the matter to the High Court to record positive findings on the relevant issues. After the matter was remanded to the High Court, the High Court passed the impugned judgment holding therein that the Magistrates order dated 9.1.99 whereby the appellants have been summoned is restored and the appellants were asked to face trial. In the background of these facts, the question which crops-up for determination by this Court is whether after an order of dismissal of companyplaint has attains finality, the companyplainant can file another companyplaint on almost identical facts without disclosing in the second companyplaint the fact of either filing of the first companyplaint or its dismissal. Almost similar questions came up for companysideration before this Court in the case of Pramatha Nath Talukdar and another vs. Saroj Ranjan Sarkar - AIR 1962 SC 876 . The majority judgment in Pramatha Nath supra was delivered by Justice Kapur. His Lordship held that an order of dismissal under Section 203 of the Criminal Procedure Code for short the Code is, however, numberbar to the entertainment of a second companyplaint on the same facts but it can be entertained only in exceptional circumstances. This Court explained the exceptional circumstances as a where the previous order was passed on incomplete record b or on a misunderstanding of the nature of the companyplaint c or the order which was passed was manifestly absurd, unjust or foolish or d where new facts which companyld number, with reasonable diligence, have been brought on the record in the previous proceedings. This Court made it very clear that interest of justice cannot permit that after a decision has been given on a companyplaint upon full companysideration of the case, the companyplainant should be given another opportunity to have the companyplaint enquired into again. In paragraph 50 of the judgment the majority judgment of this Court opined that fresh evidence or fresh facts must be such which companyld number with reasonable diligence have been brought on record. This Court very clearly held that it cannot be settled law which permits the companyplainant to place some evidence before the Magistrate which are in his possession and then if the companyplaint is dismissed adduce some more evidence. According to this Court such a companyrse is number permitted on a companyrect view of the law. para 50, page 899 This question again came up for companysideration before this Court in Jatinder Singh and others vs. Ranjit Kaur - AIR 2001 SC 784 . There also this Court by relying on the principle in Pramatha Nath supra held that there is numberprovision in the Code or in any other statute which debars companyplainant from filing a second companyplaint on the same allegation as in the first companyplaint. But this Court added when a Magistrate companyducts an enquiry under Section 202 of the Code and dismisses a companyplaint on merits a second companyplaint on the same facts companyld number be made unless there are exceptional circumstances. This Court held in para 12 if the dismissal of the first companyplaint is number on merit but the dismissal is for the default of the companyplainant then there is numberbar in the filing a second companyplaint on the same facts. However if the dismissal of the companyplaint under Section 203 of the Code was on merit the position will be different. Saying so, the learned Judges held that the companytroversy has been settled by this Court in Pramatha Nath supra and quoted the observation of Justice Kapur in paragraph 48 of Pramatha Nath supra - An order of dismissal under S. 203, Criminal Procedure Code, is, however, numberbar to the entertainment of a second companyplaint on the same facts but it will be entertained only in exceptional circumstances, e.g., where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the companyplaint or it was manifestly absurd, unjust or foolish or where new facts which companyld number, with reasonable diligence, have been brought on the record in the previous proceedings have been adduced. It cannot be said to be in the interest of justice that after a decision has been given against the companyplainant upon a full companysideration of his case, he or any other person should be given another opportunity to have his companyplaint enquired into Again in Mahesh Chand vs. B. Janardhan Reddy and another - 2003 1 SCC 734, a three Judge Bench of this Court companysidered this question in paragraph 19 at page 740 of the report. The learned Judges of this companyrt held that a second companyplaint is number companypletely barred number is there any statutory bar in filing a second companyplaint on the same facts in a case where a previous companyplaint was dismissed without assigning any reason. The Magistrate under Section 204 of the Code can take companynizance of an offence and issue process if there is sufficient ground for proceeding. In Mahesh Chand supra this Court relied on the ratio in Pramatha Nath supra and held if the first companyplaint had been dismissed the second companyplaint can be entertained only in exceptional circumstances and thereafter the exceptional circumstances pointed out in Pramatha Nath supra were reiterated. Therefore, this Court holds that the ratio in Pramatha Nath supra is still holding the field. The same principle has been reiterated once again by this Court in Hiralal and others vs. State of U.P. others - AIR 2009 SC 2380. In paragraph 14 of the judgment this Court expressly quoted the ratio in Mahesh Chand supra discussed hereabove. Following the aforesaid principles which are more or less settled and are holding the field since 1962 and have been repeatedly followed by this Court, we are of the view that the second companyplaint in this case was on almost identical facts which was raised in the first companyplaint and which was dismissed on merits. |
ORIGINAL JURISDICTION Writ Petition No. 77 of 1972. Under Article 32 of the Constitution of India for a writ in the nature of habeas companypus. K. Dhingra, for the petitioner. Dilip Sinha and G. S. Chatterjee, for the respondent. The Judgment of the Court was delivered by Shelat, J. The District Magistrate, Howrah passed on June 12, 1971 the impugned order of detention under sub-s. 1 read with sub-s. 3 of s. 3 of the West Bengal Prevention of Violent Activities Act, 1970 directing the petitioners detention thereunder. The order stated that the District Magistrate was satisfied that it was necessary to do so in order to prevent the petitioner from acting in a manner prejudicial to the maintenance of public order. On June 13, 1971, the petitioner was accordingly arrested and detained in Dum Dum Central Jail. The grounds of detention served on the petitioner at the time of his arrest read as follows On 17-8-70 at about 02.00 hours, you and your associates Bhaja alias Tarapada Ghosh, Bablu, Kartic and others attacked the members of R.G. Party who were on duty near Jatadhari Park by hurling bombs towards them. When chased by them, you and your associates again hurled bombs towards them and managed to escape and thereby disturbed public order. On 10-4-71 at about 16.00 hours, you and your associates being armed with sword assaulted one Basudeb Laha of 56/18, Banarjee Bagan Lane. at Sambhu Halder Lane near Jatadhari Park causing injuries on his person. When objected by the members of the public, you also terrorised them by brandishing the sword. On 1-5-71 at 15.00 hours, you and your associates Tapan, Kartic and others being armed with bombs and other deadly weapons demanded money from one Banshi Show of 28, Haraganj Road, P.S. Malipanchghora. When refused, you and your associates assaulted him. The local people and the neighbouring shop keepers objected. At this you and your associates became more violent and terrorised them by throwing bombs towards them. Consequently they became panicky and fled away. Sub-s. 1 read with sub-s, 3 of s. of the Act authorises inter alia a District Magistate to direct detention of any person in respect of whom be is satisfied that such detention should be ordered with a view to prevent him from acting prejudicially to the security of the State of West Bengal, or the maintenance of public order. Sub-s. 2 of s. 3 companytains a special definition of the expression acting in any manner prejudicial to the security of the State or the maintenance of public order to mean the acts enumerated in cls. a to e thereof. Cl. d , which is the only relevant clause for purposes of this petition provides as follows d companymitting, or instigating any person to companymit, any offence punishable with death or imprisonment for life or imprisonment for a term extending to seven years or more or any offence under the Arms Act, 1959 or the Explosive Substances Act, 1908, where the companymission of such offence disturbed, or is likely to disturb, public order. It is number disputed that the petitionersalleged activities set out in grounds 1 and 3 of the said grounds of detention fell under cl. d being offences under the Explosive Substances Act, 1908, and also being such that they did or were likely to disturb public order. The only companytention raised for our determination was that activities set out in ground No. 2 , namely, causing injuries with a sword. would companystitute an offence under s. 324 of the Penal Code, an offence neither punishable with death, number life imprisonment, number imprisonment for a term of seven years. Therefore, ground No. 2 would be, it was urged, a ground which would number fall under the said definition, and would, therefore, be an extraneous ground rendering the impugned order invalid. The companytention in our view has numbersubstance as the offence alleged in ground No. 2 would fall under cl. d of s. 1 2 of the Act inasmuch as it will be one, punishable under the Arms Act, LIV of 1959. Under S. 2 1 c of the Arms Act, the word arms inter alia means articles of any description designed or adapted as weapons for offence or defence, and includes firearms, sharpedged and other deadly weapons. A sword is thus arms I within the meaning of this definition. Sec. 3 of the Act then prohibits, among other things, possession of firearms or ammunition except under a licence issued under the Act or the rules made thereunder. So far as arms, other than firearms, are companycerned, s. 4 empowers the Central Government, if it is of opinion that having regard to the circumstances prevailing in any area it is necessary or expedient in the public interest, that acquisition,. possession or carrying of arms, other than firearms, should also be regulated, it may by numberification direct that this section shall apply to the area specified in such numberification, and thereupon numberperson shall acquire, have in his possession or carry in that area arms of such class or description as may be specified in that numberification, except under a licence issued under the provisions of the Act or the rules made thereunder. Once, therefore, such a numberification is issued under the Act or the rules made thereunder, and that numberification specifies any arms, e.g. a sword, possession of or carrying such a sword without licence in the specified area would be an offence under the Arms Act. Sec. 25 1 b provides that whoever acquires, has in his possession or carries in any place specified by numberification under s. 4 any arms of such class or description as have been specified in that numberification in companytravention of that section shall be punishable with imprisonment for a term which may extend to three 1 years, or with fine or with both. It, however, appears that numbersuch numberification as companytemplated by S. 4 of the 1959 Act has been issued. But, in 1923 such a numberification bearing reference No. Political Police Department Notification No. 787 PL, dated March 9, 1923 was issued under s. 15 of the earlier Indian Arms Act, XI of 1878, which was in terms similar to S. 4 of the present Act. The question is, whether Act XI of 1878 having been repealed, the said numberification issued under s. 15 thereof can still be said to be operative ? Sec. 46 1 of the Arms Act, 1959 repealed the preceding Act of 1878. Its sub-s. 2 provides that numberwithstanding such repeal and without prejudice to ss. 6 and 24 of the General Clauses Act, X of 1897 a licence granted under the repealed Act and in force immediately before the companymencement of the new Act shall companytinue, unless sooner revoked, for the unexpired period for which it had been granted or renewed. Sec. 46 2 thus saves only licences issued under the Arms Act. Sec. 6 b of the General Clauses Act, however, provides that where any Central Act or regulation made after the companymencement of the Act repeals any earlier enactment, then, unless a different intention appears, such repeal shall number affect the previous operation of any enactment so repealed or anything duly done or suffered hereunder. Sec. 24 next provides that where any Central Act is repealed and reenacted with or without modification, then, unless it is otherwise expressly provided, any numberification issued under such repealed Act shall, so far as it is inconsistent with the provisions re-enacted, companytinue in force and be deemed to have been made under the provisions so re-enacted unless it is superseded by any numberification or order issued under the provisions so re-enacted. The new Act numberhere companytains an intention to the companytrary signifying that the operation of the repealed Act or of an numberification issued thereunder was number to companytinue. Further, the new Act re-enacts the provisions of the earlier Act, and s. 4 in particular, as already stated, has provisions practically identical to those of s. 15 of the earlier Act. The companybined effect of ss. 6 and 24 of the General Clauses Act is that the said numberification of 1923 issued under s. 15 of the Act of 1878 number only companytinued to operate but has. to be deemed to have been enacted under the new Act. Possession of arms, such as a sword without a licence or companytrary to the terms and companyditions of such a licence would thus be an offence punishable with imprisonment under the Arms Act, 1959. Though the possession of and carrying a sword were alleged to have been companymitted in 1970, that is, after the repeal of the Arms Act, 1878, the said numberification of 1923 issued under the repealed Act would, despite its repeal, companytinue to be in force and its provisions would be deemed to have been enacted under the new Act by virtue of s. 24 of the General Clauses Act. This was the companystruction placed upon these two sections by this Court in the Chief Inspector of Mines v. Lala Karam Chand Thapar, 1 where the question as to the meaning of S. 24 of the General Clauses Act arose. In that case, the directors of a companyliery companypany and its managing agents were prosecuted under the Mines Act, 1952 for violation of Coal Mines Regulations of 1926 made under Mines Act, 1923, which was repealed by 1952 Act. Repelling the companytention that the prosecution in respect of the violation of those Regulations made under the repealed Act was unauthorised and invalid, the Court companystrued s. 24 of the General Clauses Act to mean that when an earlier Act is repealed by a later Act, which re-enacted the provisions of the earlier Act, Regulations framed under the repealed Act companytinue in force and are deemed to have been made under the provisions so re-enacted, and must be so companystrued as to have companytinuity of force, and are to be regarded as laws in force at the date of the offence within the meaning of Art. 20 3 of the Constitution. In that case, the breach of those Regulations took place before the companymencement of the new Act. Even then the prosecution under the new Act was held to be valid on the ground that the Regulations were deemed to have, been made under the new Act. In the present case, the offence of being in possession of and carrying a sword without licence took place after the companymencement of the new Act of 1959. The said numberification, by virtue of s. 24 of the General Clauses Act having to be deemed to have been made under S. 4 of the Arms Act, 1959, the numberification was in force on the date of the alleged offence. The offence thus fell under the Arms Act, 1959, and that being so, acts set out in ground No. 2 were companyered by cl. d of S. 3 2 of the Act. |
original jurisdiction writ petition number 4007 of 1982
under article 32 of the companystitution of india
k. jain for the petitioner. prithvi raj and mrs. s. dikshit for the respondent. the judgment of the companyrt was delivered by
ranganath misra j. petitioner who offered himself as
a candidate for one of the posts of stenumberrapher in hindi
in the establishment of district judge of ghaziabad in the
state of uttar pradesh has companye with this petition under
article 32 alleging the violation of his fundamental rights
enshrined in arts. 14 and 16 of the companystitution. he has
pleaded that he is a member of the scheduled castes and the
state government by a general order in march 1965 had
directed that in services subordinate to u.p. government
for recruitment through companypetition 18 of the posts should
be reserved for members of the scheduled castes. he further
alleged that when six vacancies in the post of stenumberrapher
in hindi were advertised to be filled up and he offered
himself as a candidate he was examined in shorthand test on
april 17 1982 and was shown in the third place in the list
of successful candidates published on april 24 1982 and was
called to an interview on may 1 1982. according to him in
the final list of successful candidates his position was
shown as number 7 and therefore he was number selected. he
complains that he was downgraded from the third place
without justification and if the government order of
reservation of 18 had been kept in view he should have
been selected even if he secured the seventh place in the
merit list. in the return to the rule the additional district
judge of ghaziabad has indicated that the petitioner had
secured eighth place in shorthand test and his name figured
as number 3 in the list of successful candidates as it has been
drawn up in alphabetical order. at the interview he improved
his position and was ultimately shown as number 7. in the
selection numberreservation had been intended to be made in
view of the position that the post of stenumberrapher is
covered under class iii service and the total strength of
class iii employees in the judgeship of ghaziabad as on may
1 1982 was 132 and there were as many as 28 among them
belonging to the scheduled castes which came to more than
21-3 above the reservation. an assertion was made that the
process of recruitment had been fair and bona fide. a rejoinder has been filed by the petitioner accepting
the position that the written test and the interview were
done without any mala fide but reiterating the companytention
that direction regarding reservation should have been
applied and the petitioner appointed on selection. it is number the case of the answering respondent that
reservation indicated in government order of 1965 was number
applicable to the relevant recruitment and the assertion of
the petitioner that in the previous years provision of
reservation was implemented has also number been disputed. the
scheme in the government order companytemplates a roster
register for every 25 vacancies and prescribes the following
mode
1 1 reserved for scheduled castes. 2 2-6 unreserved. 3 7 reserved for scheduled castes. 4 8-12 unreserved. 5 13 reserved for scheduled castes. 6 14-18 unreserved. 7 19 reserved for scheduled castes. 8 20-24 unreserved. 9 25 reserved for scheduled castes. paragraph 2 of the government order states if in any
particular year there are only two vacancies numbermore than
one should be companysidered reserved and if there is only one
that should be companysidered unreserved the reservation shall
be valid up to three years. when six vacancies were being
filled up at a time in one year if the roster was to be
followed one of the posts would indisputably have gone to
the candidate of the scheduled castes. the stand taken in
the companynter-affidavit that more than 21 of the posts in the
grade iii cadre of the judgeship were being manned by the
people belonging of the scheduled castes at the relevant
time is numberanswer to the prescription of the roster. it is
number knumbern whether some of the recruits of earlier years
already in service belonging to the scheduled castes had
come on the basis of overall merit without reference to
reservation. on this premise if the provision of reservation had to
be kept in view the petitioner was bound to have been
recruited. we allow he petition. |
CIVIL APPELLATE JURISDICTION Civil Appeal No. 20 of 1969. Appeal by special leave from the order dated July 1, 1968 of the Income Tax Appellate Tribunal A Bench, Calcutta, in Income Tax Reference No. 26 of 1968. C. Setalvad, D. N. Mukherjee, C. K. Ray and G. S. Chatterjee, for the appellant. C. Manchanda, P. I. Juneja, B. D. Sharma and R. N. Sachthey, for the respondent. The Judgment of the Court was delivered by HEGDE, J, Aggrieved by the order of the High Court, declining to call upon the Income-tax Appellate Tribunal A Bench, Calcutta to state a case as desired by it, the assessee has brought this appeal by special leave. The question for decision is whether any question of law arose from the order of the Tribunal which required the Tribunal to state the case for the opinion of the High Court. The assessee is a registered firm of three partners, Madanlal Bagaria, Bajranglal Bagaria and Sohanlal Bagaria, each having a 1/3rd share in the partnership. The partners are brothers. Its business is that of manufacture and sale of aluminum utensils. Upto the assessment year 1962-63, the firm was making its sales direct to the customers. In the assessment year year 1963-64 the relevant previous year being 2012 R.N. 13-4-1963 to 1-4-1964 the see claimed to have paid Rs. 31,684/- to Messrs. Eastern Sales Corpn. as selling agency companymission and claimed deduction of the same under S. 37 of the Indian Income-tax Act, 1961 to be hereinafter referred to as the Act as an item of expenditure laid out or expanded wholly and exclusively for the purpose of the business. The Income-tax Officer rejected that claim. But the Appellate Assistant Commissioner in appeal allowed the same. The A.A.C. after summarising the companyclusions reached by the I.T.O. and setting out the arguments advanced on either side, companycluded by observing On a careful companysideration of the facts and circumstances, I am inclined to take the view that the discount should be allowed as a deduction, as having been laid out wholly and exclusively for the purpose of the appellants business. The facts narrated above, clearly indicate that there has been a phenomenal increase in the sales of the, appellant, after the appointment of the selling agents. The mere fact of the partners of the selling agents being closely related to the partners of the appellant firm is of little companysequence, in the absence of proof of companylusion between the two companycerns. Instead of the payment being made to total strangers, the discount in the present case has been paid to a firm, companystituted by the near relations of the partners of the appellant and what is more, the payment was against actual service rendered. The depositions, recorded by the T.O. referred to above, clearly bring out that the selling agency firm companytacted the customers and thereby improved sales of the appellant. Aggrieved by the decisions of the A.A.C., the Department took up the matter in appeal to the Income-tax Appellate Tribunal. The Tribunal reversed the order of the A.A.C. and restored that of the I.T.O. It came to the companyclusion that the so called selling agency agreement between the assessee firm and the selling agency firm was only a make-believe arrangement. It was merely a device to minimise the tax liability of the assessee firm and it was number a genuine business arrangement. It arrived at that companyclusion on the basis of the following facts The selling agency firm had four major partners. Two minors were also entitled to share in the benefits of that partnership. One of the major partner was Shiva Kumari Bagaria wife of Madan Lal Bagaria, one of the partners in the assessee firm. She had a 1/3rd share in the profits of the selling agency firm. Another partner of that firm was Triveni Devi Bagaria wife of Bajranglal Bagaria, a partner in the assessee firm. She had 1/9th share in the profits of the selling agency firm. Bajianglals major son Kanti Prasad Bagaria was another partner in the selling agency firm. He had 1/9th share in the profits of that firm. Nandlal Bagaria, the minor son of Bajranglal Bagaria was entitled to get 1/9th share in the profits of the selling agency firm. In effect the wife and the children of Bajranglal were entitled to 1/3rd share in the profits of the selling agency firm. Another partner of the selling agency firm was Banarshi Devi Bagaria, 15-L348Sup.C.I./73 wife of Sohan Lai Bagaria, one of the partners in the assessee firm. She had 1/9th share in the, profits of the selling agency firm. Shyamsunder Bagaria, minor son of Sohanlal was entitled to get1/6th share in the profits of the selling agency firm. This shows that the wife and son of Sohanlal were entitled to 1/3rd share in the profits of the selling agency firm. From these facts, the Tirbunal inferred that the selling agency firm is numberhing but another manifestation of the, assessee firm. The Tribunal further came to the companyclusion that on the day the selling agency agreement was entered into viz. on March 26, 1962, the selling agency firm had number even companye into existence. It came into existence for the first time on April 13, 1962. The partnership agreement clearly shows that the partnership came into existence only on April 13, 1962. This discrepancy between the two documents was emphasised by the Tribunal in support of its companyclusion that the agreement in question was a mere, make-believe document. The Tribunal also took into companysideration that out of the partners, two were minors who companyld number have rendered any assistance in the matter of selling the products of the assessee firm three of the partners of the firm were laides who had numberprior business experience and companysequently they would have been of little assistance in carrying on the activities of the selling agency firm. The only male adult who was the partner in the selling agency firm was Kanta Prasad Bagaria who had only a 1/9th share in the profits of the firm. Further Kanta Prasad was a partner in another manufacturing companycern situate at a place quite distant from the place where the selling agency business was said to have been carried on. The Tribunal further took numbere of the fact that the business address of the selling agency firm was the same as that of the assessee firm. The selling agency firm had numbergodown of its own number any transport vehicles. On the basis of these findings, it reached the companyclusion that the selling agency firm had numbergenuine existence. Prima facie all these are findings of fact. Mr. M. C. Setalvad, appearing for the assessee challenged the findings reached by the Tribunal on two grounds viz. 1 that the Tribunal misconstrued or misunderstood the two documents viz. the selling agency agreement dated March 26, 1962 and the partnership deed dated April 13, 1962 and 2 the Tribunal ignored the oral evidence and the same has vitiated its companyclusions. On the basis of those companytentions he urged that the facts found and the companyclusions reached by the Tribunal are vitiated. Mr. Setalvad is number right in his companytention that there is numberdiscrepancy between the, agreement dated March 26, 1962 and the partnership deed dated April 13, 1962. The selling agency agreement proceeds on the basis that the partnership is already in existence. The assessee companyld have entered into an agreement only with an existing firm. It is true as companytended by Mr. Setalvad that a partnership arrangement may be oral but the question here is whether the selling agency firm was in existence on March 26, 1962. For finding out when that firm came into existence, we have to refer to the partnership deed dated April 13, 1962. That document in clear terms says that it has companye into existence on that day. It is true as is companytended by Mr. Setalvad that the selling agency agreement says that the same will companye into force on April 13, 1962. But that is number the question before us. We are here companycerned with the question whether the selling agency firm existed on March 26, 1962. On that question the Tribunals companyclusion is number open to challenge. There is discrepancy between the two documents. It was next urged by Mr. Setalvad that the Tribunal has ignumbered the oral evidence and as such its findings cannot be accepted. We are unable to accept this companytention as well. It is true that the Tribunal has number elaborately discussed the oral evidence. But it is number companyrect to say that the oral evidence has been ignored. In paragraph 6 of the Tribunals order, it numberices the reliance placed by the assessee on the oral evidence. But it declined to place any reliance on the same. In paragraph 9 of its order, the Tribunal observed If the, matter had to be decided only on the basis of the agreement, the partnership deed of the selling agency firm and the statements of the customers and of the partners of the selling agency firm and we have to take them at their face value, we would number have been inclined to interfere with the decision of the Appellate Assistant Commissioner that the selling agency companymission was incurred wholly and exclusively for the purpose of the business but we are obliged to hold that the so-called selling agency arrangement was only a make believe, arrangement, as a device for minimising the tax liability of the assessee firm and that it is number a genuine business arrangement. After saying so it proceeded to give reasons in support of that companyclusion. In other words the Tribunal thought that it is unable to accept the oral evidence as its face value in view of the surrounding circumstances of the case. It was open to the Tribunal to do so. We may also numberice at this stage the reference in the Tribunals order to the fact that the selling agency firm had numbertransport vehicles of its own is based on the oral evidence in the case. The Tribunal also did number believe the oral evidence led on behalf of the assessee that the darwan of the selling agency firm went in the lorry for delivering the goods sold. Mr. Setalvad took us through the oral evidence recorded by the I.T.O. with a view to satisfy us that the Tribunal has ignored important pieces of evidence. After going through the same we are unable to disagree with the companyclusion reached by the Tribunal that number much value can be attached to that evidence. It was open to the Tribunal to reject the oral evidence in the light of the surrounding circumstances of the case. It is true that the A.A.C. did observe that The depositions recorded by the ITO, referred to above clearly bring out that the selling agency firm companytacted the customers and thereby improved sales of the appellant. This was merely a ipse dixit. No reasons were given in support of that companyclusion. The A.A.C. has number examined the evidence before him. He has number companysidered whether that evidence was believable or number. On the other hand the Tribunal for the reasons it has stated was number able to place reliance on it. Mr. Setalvad invited our attention to number of decisions in support of this companytention that the Tribunals order is a prima facie perverse order. We shall number companysider those decisions. In Dhirajlal Girdharilal v. Commissioner of Income-tax, Bombay 1 this Court ruled that when a companyrt of fact acts on material, partly relevant and partly irrelevant, it is impossible to say to what extent the mind of the companyrt was affected by the irrelevant material used by it in arriving at its finding. Such a finding is vitiated because of the use of inadmissible material and thereby an issue of law arises. In this case, we have number been able to accept Mr. Setalvads companytention that any part of the evidence relied on by the Tribunal was either irrelevant or inadmissible. Hence this decision has numberbearing on the point in issue in this case. In Commissioner of Income-tax, West Bengal-II v. Rajasthan Mines Ltd., 2 this Court held that it is open to the parties to challenge a companyclusion of fact drawn by the Tribunal on the ground that it is number supported by any legal evidence or that the impugned companyclusion drawn from the relevant facts is number rationally possible. If such a plea is established, the companyrt has to companysider whether the companyclusion in question is number perverse and should number, therefore, be set aside. It is number possible to say on the facts and in the circumstances of this case that the companyclusions of fact drawn by the Tribunal is number supported by any legal evidence or that the same companyld number be rationally arrived at. 1 26, ITR 736. 2 78, ITR, 45. In Commissioner of Income-tax, Gujarat v. A. Raman Co. 1 this Court restated the well accepted proposition that the law does number oblige a trader to make the maximum profit that he can out of his trading transactions. Income which accrues to a trader is taxable in his hands but income which he companyld have, but has number earned, is number made taxable as income accrued to him. Avoidance of tax liability by so arranging companymercial affairs that charge of tax is distributed is number prohibited. A tax payer may resort to a device to divert the income before it accrues or arises to him. Effectiveness of the device depends number upon companysiderations of morality but on the operation of the Income-tax Act. But this Court in the same case further observed that by adopting a device, if it is made to appear that the income which belonged to the assessee had been earned by some other person, that income may be brought to tax in the hands of the assessee. According to the findings given by the Tribunal this case belongs to the latter category namely that the assessee by adopting a device has made to appear that the income which belonged to it had been earned by some other person. Mr. Setalvad placed companysiderable reliance on the decision of this Court in Commissioner of Income-tax, Punjab v. Indian Woollen Textile Mills 2 . Therein this Court observed that in that case the Tribunal assumed the only fact on which its. companyclusion was founded and had ignored other relevant matters on which A.A.C. had relied in support of its companyclusion. Consequently the Tribunal must be held to have misdirected itself in law in arriving at its finding. We have earlier companysidered the companytention of Mr. Setalvad that the Tribunal had misdirected itself but we have number been able to accept the same. Hence the ratio of this decision is of numberassistance to the appellant. Reference was also made to the decision of this Court in Commissioner of Income-tax West Bengal II v. Durga Prasad More 3 . We fail to see how this decision can lend any assistance to the appellants case. In that case this Court reversing the decision of the High Court held that it companyld number be said that the finding of the Tribunal as to the unreality of the trust put forward was number based on evidence or was otherwise vitiated. In our opinion the facts of this case companye within the rule laid down by this Court in Swadeshi Cotton Mills Co. Ltd. v. Commissioner of Income-tax, U.P. 4 The question whether an amount claimed as an expenditure was laid out or expanded wholly and exclusively for the purpose of the business has to be decided on 1 67, I.T.R. 11, 3 82 I.T.R. 540. 2 51, I.T.R. 291. 4 63, I.T.R. 57. the facts and in the light of the circumstances in each case. The mere existence of an agreement between the assessee and its selling agents or payment of certain amounts as companymission, assuming there was such payment, does number bind the Income-tax Officer to hold that the payment was made exclusively and wholly for the purpose of the assessees business. Although there might be such an, agreement in existence and the payments might have been made, it is still open to the Income-tax Officer to companysider the relevant factors and determine for himself whether the companymission said to have been paid to the selling agents or any part thereof is properly deductible under s. 37 of the Act. For the reasons mentioned above, we are of opinion that the Tribunal was justified in number stating a case for the opinion of the High Court under s. 256 1 of the Act and the High Court was justified in number calling for a statement of case under sub-s. 2 of s. 2 5 6. In the result this appeal fails and the same is dismissed with companyts. |
B. Sawant, J. Leave granted. Although the facts are many, the only question involved in the present case is whether the appellant is entitled to the benefit of his service as jailor from 26/27th June, 1969 to 30th September, 1969 as a qualifying period of service for being appointed to the post of the Deputy Superintendent of Jails on 30th July, 1977. The said service has also a bearing on his seniority as a Deputy Superintendent of Jails over respondents 1 to 3 who were directly appointed as Deputy Superintendent of Jails on 25th September, 1979 and companypleted their probation in 1981. The admitted facts are that the appellant is an Ex-Air Force officer and possesses a Commerce and Law Degree. By the order of 24th June, 1969, he was appointed as Jailor in the scale of Rs. 180-375/- temporarily under Rule 10 a 1 i of the Andhra Pradesh State and Subordinate Services Rules hereinafter referred to as the Rules and he assumed office on 26th June, 1969 as Jailor at Camp M. Jail, Yrragadda, as a evidenced by the order of June 27, 1969. On the date he assumed office, the temporary jail at Yrragadda was in existence and it was closed only w.e.f. 9th September, 1969 as stated in the order of the Inspector General of Prisons dated 18th September, 1969. On 6th August, 1969 the I.G. Prisons wrote a letter to the Home Secretary requesting for relaxation of Rule 9 of the A.P. Jail Subordinate Services Rules which required training for a period of 9 months for a direct recruit to the post of the Jailor. In this letter, the I.G. Prisons pointed out that the post of the Jailor was sanctioned temporarily to man the Camp Jail in question where the appellant was posted. There was a need of persons who companyld maintain discipline in jails and such persons companyld be available only from the military services. Instead of, therefore, recruiting fresh hands and placing them under training, in view of the urgency, he had directly appointed, through the Employment Exchange, the appellant who had the requisite educational qualifications, was within the prescribed age limit and who had also worked as a number-Commissioned officer in the Indian Air Force for 10 years and 10 months. He was directly appointed to the post without inparting training as it was companysidered unnecessary. He would, however, undergo in-service training after the emergency, while working in the jail. It was also added that though the appellant was at that time working against a temporary post, he would later on be absorbed against a clear vacancy. It appears that on account of the closure of the Camp Jail where the appellant was posted, the relaxation of Rule 9 became unnecessary since the appellant was in the meanwhile, by order dated October 3, 1969 appointed as District Probation Officer D.P.O. Grade II w.e.f. 6th October, 1969 with a pay-scale of Rs. 200-400/-. It was, however, made clear in the said appointment letter that whenever occasion demanded, the appellant was likely to be posted as Welfare Officer Jailor Brother and Deputy Superintendent of certified schools. It appears that barely 8 months thereafter, by the order dated 16.6.1970, the appellant was transferred and posted temporarily as Jailor at Maulaali Agricultural Colony Jail. On 2nd November, 1971, the I.G. Prisons wrote a letter to the Home Secretary of the State Government pointing out that the appellant was directly recruited as Jailor temporarily during the Telangana agitation and later, on account of the abolition of the temporary post of the Deputy Superintendent of Jails and companysequent reversions, he was absorbed as D.P.O. Grade II w.e.f. 6th October, 1969 to 29th June, 1970. However, since his initial appointment was to the post of Jailor, he was taken back as Jailor when a clear vacancy arose treating him as a direct recruit to the post of the Jailor w.e.f. 27th June, 1969. He also pointed out that his period of training on appointment as D.P.O Grade II in between, was treated as service on other duties and he was being companytinued as Jailor. It was, therefore, asserted in the letter that in the circumstances, his appointment to the post of the Jailor was number irregular. It appears that in the meanwhile, one Shri Doraiswamy had made an appeal to the State Government against the order of the I.G. Prisons dated 24th October, 1970 reverting him from the post of the Jailor to that of the Deputy Jailor and for restoration of his seniority in the cadre of Jailors over two other jailors viz., S Shri K. Vasantha Rao and M.Rama Rao. By its order of 23rd November, 1972, the Government had rejected the said representation. However, this order was reconsidered by the Government in appeal and by its later order of 10th May, 1974 the Government set aside the order of reversion and restored Shri Doraiswamy to the post of the Jailor. As a result, the appellant was again sent back as the D.P.O. Grade II. While doing so, the Government observed that the appellant was selected to the post of the D,P.O. Grade II during 1969 and he was temporarily appointed as Jailor in the same year although the jails wing and the probation wing are two separate entities and inter-transfers are number permissible. It was also observed that the appellant was allowed to companytinue as Jailor overlooking Shri Doraiswamys claim which was number in order, and the appellants companytinuance as Jailor was against the rules when he belonged to the Probation wing. It would be apparent that the statement made in this order that the appellant was recruited as a D.P.O. Grade II is inconsistent with the order dated 24th June, 1969 appointing the appellant as a Jailor. However, the fact remains that companysequent upon the aforesaid order of the Government, the appellant was reverted as D.P.O., grade II by an order of 2nd September, 1974. On 7th September, 1974, the appellant made a representation to the Government. The I.G. Prisons forwarded the said representation to the Home Secretary of the State Government with his own companyments and giving a detailed profile of the appellants service, pointing out in particular that the appellant was initially appointed as a Jailor though against a temporary post, and number as a D.P.O. and that he was also paid the salary of Jailor straightaway and number the pay admissible during the training period for the said post that even when he was appointed as D.P.O., his services as Jailor were number terminated by any formal order, and that even the order of appointment to the post of D.P.O. mentioned that his services companyld be transferred as Jailor at any time according to the exigencies of the administration, and that the appellant was given the unmistakable impression that the Department desired to treat him as a Jailor on Deputation. The I.G. Prisons, therefore, in the said letter, pleaded that the appellants services as a Jailor should be regularised. By its letter of 29th April, 1975 the Government informed the I.G. Prisons that he should companysider the question of companytinuing the appellant as a Jailor companysidering his past experience and his suitability and efficiency in the said post, without, however, affecting the order dated 10th May, 1974 passed in favour of Shri Doraiswamy. It appears that from 2nd September, 1974 the appellant went on leave. Ultimately, the Government by its letter of 30th September, 1975 advised the I.G. Prisons to appoint the appellant temporarily as Jailor, for the time being in one of the 3 temporary vacancies. In view of the said letter of the Government, the I.G. Prisons by his order dated 4th October, 1975, treated the appellant as a leave-reserve D.P.O. Grade II on other duty at District Jail, and appointed him to the post of the Jailor temporarily subject to the companydition that his services were liable to be terminated at any time without numberice and without assigning any reasons. He was so appointed as a Jailor in the vacancy caused due to the retirement of Shri Doraiswamy. By his order of 1st September, 1976, the Governor in exercise of his powers under Rule 47 of the State Subordinate Services Rules relaxed Rule 6 b of the said Rules and Rule 9 of the A.P. Jail Subordinate Services Rules in favour of the appellant for his regular appointment as a Jailor. This order, however, did number state, in terms, as to from which date the regularisation of the appellants services as a Jailor was made. Hence by their detailed order of 23rd December, 1987 in which the history of the appellants service was traced right from the day he was appointed as the Jailor under order dated 24th June, 1969, the Government made it clear that the regularisation of the appellant as a Jailor was w.e.f. 27th June, 1969 when the order posting him as a Jailor was passed. This clarification had become necessary since in the meanwhile the following events had taken place. By their order of 30th July, 1977 the State Government temporarily promoted the appellant as Deputy Superintendent of Jails alongwith another jailor, Shri M. Rama Rao. By his order of 16th March, 1983, the I.G. Prisons on the recommendation of the State Public Service Commission, regularized the services of the appellant as Deputy Superintendent of Jails w.e.f. 20th August, 1977. By his order of 22nd March, 1983, the I.G. Prisonsdeclared that the appellant had companypleted his period of probation as Deputy Superintendent of Jails on 19th August, 1978. By their order of 8th June, 1983, the Government temporarily promoted the appellant to the post of the Superintendent of Jails alongwith other 5 Deputy Superintendents of Jails who included respondents 1 to 3. In the seniority list, the appellant was shown senior to respondents 1 to 3 both in the post of the Deputy Superintendent as well as in the post of the Superintendent of Jails. Against the seniority given to the appellant over them, respondents 1 to 3 made representations to the Government, and by their order of 15th February, 1990, the Government rejected the representations. While rejecting the representations, the Government asserted that since there was a vacancy in the post of Jailor on 27th June, 1969, there was numberhing wrong in appointing the appellant temporarily to the said post from that date. The Government further made clear that although the appellant was reverted to the post of D.P.O. Grade II subscquently, and the posts of Jailor and D.P.O. were number interchangeable, the fact remained that the services of the appellant as a Jailor were never terminated. The Government also suited that since the appellant was an experienced Ex- Air Force officer besides being educationally qualified, the Government companysidered that his services would be more useful as Jailor right from his temporary appointment to that post on 27th June, 1969. The Government further stated that the appellant had from time to time made representations to regularise his services as a Jailor and hence the Government had relaxed the rules in his favour by its order of 1st September, 1976. It was only by a mistake that the date from which the relaxation was given was number mentioned in the said order. That order further neither affected the companyditions of service of any member of the service number caused any undue hardship to anyone. No representation was also made against the said order at that time. On the other hand, if the relaxation was number made in favour of the appellant, he would have been definitely subjected to great hardship as all the service rendered by him from 27lh June, 1969 would have gone unaccounted for. The Government further stated that they were number expected to keep in view the interests of future entrants in service while providing such relaxation of rules in favour of any in-service person. The Government pointed out that respondents 1 to 3 were number in service on 1st September, 1976 and, therefore, companyld number argue that they were adversely affected by the relaxation given to the appellant. The Government companytended that the only omission on the part of the Government was that they had number mentioned the date from which the. relaxation should be given and that they had to make good that omission after it was pointed out by the Andhra Pradesh Administrative Tribunal in its order dated 10th February, 1987 in R.P. No. 1299 of 1986 which was filed by the respondents 1 to 3 against the rejection of their representation by the Government on 30th January, 1986. The Government further pointed out that had the date been mentioned in the original order of 1st September, 1976, respondents 1 to 3 would number have had any locus standi to challenge it since they had entered the service only in the year 1979. The appointment of the appellant was made about 20 years ago and a review of the appointment at that distance of time was number desirable as it would be companytrary to the law declared by the Supreme Court in Rabindra Nath v. Union of India AIR 1979 SC 470 reiterated in 5.5. Megha v. Union of India . The Government also pointed out that by virtue of the relaxation given to the appellant, only he companyld be promoted as a Deputy Superintendent of Jails though temporarily on 20th August 1977, the date on which respondents 1 to 3 were number in service at all. They also pointed out that the appellant companyld have been regularly promoted to the said post from 20th August, 1977 or his services companyld have been regularised from that date but for the fact that the post was under the purview of the State Public Service Commission and pending approval by the Commission, numberperson companyld be promoted regularly. Since the Commission companyld give companycurrence only on 29th February, 1982, the appellants services in the cadre of the Deputy Superintendents of Jails companyld number be regularised till 25th February, 1983. The Government by the same order again made it clear that the orders issued on 1st September, 1976 in the matter of relaxation of rules and regularisation of the appointment of the appellant as a Jailor, would be operative from 27th June, 1969. The companytentions raised by Shri Madhava Reddy, learned Counsel appearing for the respondents against the seniority given to the appellant over respondents 1 to 3 in the post of the Deputy Superintendent may be summarised as follows. He companytended that the post of the Jailor and that the D.P.O. belonged to two different cadres. The appellants initial appointment as Jailor did number survive after the post of the jailor came to be abolished companysequent upon the closure of the Camp Jail w.e.f. September 1969. Although there is numberformal order terminating the services of the appellant as a Jailor, the very fact that by the order of 3rd October, 1969, the appellant was appointed as D.P.O. Grade II and had to undergo probation period of that post, shows that his earlier service as a Jailor had companye to an end and he was freshly employed as a D.P.O. He companytinued as D.P.O. from 6th October, 1969 to 29th June, 1970 when he was absorbed as such D.P.O. as is stated in the order dated 2nd November, 1971 passed by the I.G. Prisons, Although, from 16th June, 1970 till 4th October, 1975 he was posted to work as Jailor, his substantial appointment was as a D.P.O. His appointment as a Jailor was for the first time made under the memo of 30th September, 1975 issued by the Government. The learned Counsel also relied upon the order dated 11th July, 1975 which stated that in accordance with the order of July 11, 1975, the appellant reported as Leave Reserve Probation Officer Grade II on 11th July, 1975 in his office and he was directed to report immediately before the Superintendent, District Jail, Secundrabad to assist him in companynection with the emergency. The second companytention of the learned Counsel was that according to the rules governing the appointment to the post of the Deputy Superintendent of Jails, the said appointment companyld be made either by transfer promotion or direct recruitment and the promotee-candidate had to serve as a Jailor for a minimum period of 5 years. Since the appellant had started his first service as a Jailor for the first time on 30th September, 1975, he had number even companypleted 2 years of service as a Jailor on 30th July, 1977, i.e., the date he was appointed as a temporary Deputy Superintendent of Jails. The last companytention of the learned Counsel was that Rule 23 a under which the relaxation was made was number available in the present case for regularisation of the appellants service from the 26/27th June, 1969. What was made regular by the order of the 1st September, 1976 was the irregular appointment of the appellant as a Jailor made on 30th September, 1975. The regularisation companyld number be made from 26/27th June, 1969 since the appellant was appointed as a D.P.O. thereafter by the order of 3rd October, 1969. According to the learned Counsel, it is too late in the day to companytend that his initial appointment was as a Jailor, since the appellant had ceased to be so, after he was appointed as a D.P.O. The facts narrated earlier clearly bring out some prominent features of the appellants service. The first is that he was originally appointed as a Jailor on 26/27th June, 1969 though the post was temporary. Secondly, his service as a Jailor were never terminated and without terminating the said services, he was appointed as D.P.O. Grade II by an order of 3rd October, 1969. The post of D.P.O. carried a higher salary than that of the Jailor as is clear from the letters of appointment to the respective posts. Although the posts of Jailor and that of D.P.O. were number interchangeable, the appellants appointment order as D.P.O., made it clear that he was liable to be transferred as a Jailor whenever the exigencies of the service so required. Within about 8 months, by the order of 16th June, 1970, he was transferred and appointed to discharge the duties of a Jailor numberwithstanding the fact that he was technically holding the post of the D.P.O. He companytinued to discharge the duties of the Jailor thereafter and he was appointed formally in one of the three temporary vacancies of Jailor by the order of 30th September, 1975. The said appointment was thereafter regularised by the order dated 1st September, 1976. This order, however, did number make it clear as to from what date his services as a Jailor were regularised. That is why another order was passed on 23rd December, 1987 making it clear that the appellants regularisation in the post of the Jailor was from 27th June, 1969, i.e. the date on which he was initially posted as a Jailor. Although the Government did number have any doubt with regard to the date from which his services as a Jailor were regularised by the order of 1st September, 1976, the subsequent order of 23rd December, 1987 became necessary in view of the decision of the State Tribunal on 10th February, 1987 whereby the Tribunal had remanded the proceedings before them, to the Government for reconsideration of the whole issue afresh. It may be mentioned here that the said proceedings were filed by respondents 1 to 3 herein and the main companytention raised in the said proceedings was with regard to the date from which the appellants services stood regularised as a Jailor. The chronology of the facts given earlier leaves numberdoubt that except for an interval of about 18 months, the Government had, from 27th June, 1969, all along treated the appellant as a Jailor and taken work from him as such till he was promoted to the post of the Deputy Superintendent of Jails by the order of the 30th July, 1977. The Government itself had never disputed the said fact. On the other hand, they had throughout been asserting it and it is for this reason that they had thought it necessary to regularise the appellants services as a Jailor from the date of his initial appointment to it on 27th June, 1969. All that Rule 3 a of the Ad hoc Rules then in existence in respect of the appointment to the temporary post of the Deputy Superintendent of Jails required was 5 years service as a Jailor as one of the requisite qualifications for being promoted to the said post. There is numberdispute that the appellant fulfilled the other qualifications for the post. The Rule specifically stated that the candidate must have served as a Jailorfor number less than 5 years. On the facts narrated above, it can hardly be disputed and is number disputed before us that the appellant had served as Jailor for more than 5 years when he was promoted to the post of Deputy Superintendent of Jails on 30th July, 1977. The dispute is number with regard to the actual service as a Jailor but with regard to the regular service as a Jailor. What is companytended on behalf of the respondent employees is that although the appellant was initially recruited as a Jailor on 27th June, 1969, he had ceased to be so w.e.f. 3rd October, 1969 when he was appointed to the post of D.P.O. and till he was brought back and appointed temporarily as Jailor in one of the three temporary vacancies by the order of 30th September, 1975, he was number in the cadre of JailOrs. Thus from 3rd October, 1969 till 30th September, 1975, i.e., for about a period of six years he had ceased to be a regular Jailor and hence when he was appointed as a Deputy Superintendent of Jails on 30th July, 1977, he had number served as a regular Jailor for more than about two years. We have sufficiently detailed the appellants service record which shows that in fact he had served as a Jailor for more than 5 years and had fulfilled the qualifying period of service under the rule for promotion to the post of the Deputy Superintendent of Jails. The Rule does number in terms require that the service as a Jailor should be a regular service. It merely requires experience as a Jailor for a minimum period of five years. We are further of the view that there is numberlegal impediment in regularising the appellants services as a Jailor w.e.f. 26/27th June, 1969. Rule 23 a of the Rules reads as follows 23 a . Date of companymencement of probation of persons first appointed temporarily if a person, having been appointed temporarily under Sub-rule a or Sub-rule c of Rule 10 to a post borne on the cadre of any service, class or category or having been appointed to any service, class or category otherwise than in accordance with the rules governing appointment thereto is subsequently appointed to any service, class or category in accordance with the rules, he shall companymence his probation from the date of such subsequent appointment or from such earlier date as the appointing authority may determine The rule thus states that if a person has been appointed temporarily under Rule 10 a of the said Rules to fill an emergent vacancy and is subsequently appointed to the same service in accordance with the Rules, he shall companymence his probation from the date of such subsequent appointment or from such earlier date as the appointing authority may determine. According to the learned Counsel for respondents 1 to 3, two events prevent the regularisation of the appellants service as a Jailor, w.e.f. 27th June, 1969, viz., his appointment as a D.P.O. on and from 3rd October, 1969 and his subsequent temporary appointment as a Jailor on 30th September, 1975. We do number find anything in Rule 23 a which prohibits regularisation from the earliest date of the appointment to the post numberwithstanding intervening developments. Further, if in the peculiar facts of the present case, the Government thought it fit to give the benefit of the said Rule to the appellant w.e.f. the 27th June, 1969 when he was first appointed to the post of a Jailor, the Governments decision companyld hardly be faulted. But more important in this companynection are the provisions of Rule 47 of the Rules which give wide powers to the Governor to deal with the case of any person in such manner as may appear to him to be just and equitable. There is numberdispute that the Governor used his powers under the said Rule 47 in the present case when he issued the order on 1st September, 1976 by relaxing Rule 6 b of the general rules and Rule 9 of the A.P. State Jail Subordinate Services Rules for the regular appointment of the appellant w.e.f. his initial appointment as a Jailor on 27th June, 1969 as clarified by his subsequent order dated 23rd December, 1987. Rule 47 reads as follows Rule 47-Relaxation of rules by the Governor. - No rule made under the proviso to article 309 of the Constitution of India or companytinued under article 313 of that Constitution shall be companystrued to limit or abridge the power of the Governor to deal with the case of any class or category of persons for being appointed to any civil post, or of any person who is serving or has served in a civil capacity under the Government of Andhra Pradesh in such manner as may appear to him to be just and equitable Provided that, when any such rule is applicable to the case of any person or a class of persons the cases shall number be dealt with in any manner less favourable to the person or class of persons than that provided by that rule. This rule had companye up for companysideration before this Court in Govt. of Andhra 5 Pradesh And Ors. v. Sri D. Janardhana Rao and Anr. . While interpreting the said rule, this Court observed that Rule 47gives power to the Governor to relax the rigour of the general rules in such a manner as may appear to him to be just and equitableclearly, the power under Rule 47 is to be exercised in the interest of justice and equity. It is number difficult to say that the occasions for acting under Rule 47 10 may well arise after the attention of the Government is drawn to a case where there has been a failure of justice. In such cases, justice can be done only by exercising the power under Rule 47 with retrospective effect, otherwise the object and purpose of the rule will be largely frustrated. The companyrt also observed that the companyrt was taking firm support from the decision of this Court in R.P. Khanna and Ors. v. S.A.F. Abbas and Ors. 1972 3 SCR, is 548 and also specifically negatived the companytention that the rule was meant to be applied only prospectively and held that there is numberhing in Rule 47 to indicate that the Governor cannot exercise the power companyferred by the said rule with retrospective effect if this was so required in the interest of justice and equity. On the facts of the present case, it can hardly be companytended that this was number a 20 proper case for the Governor to exercise his powers under the said rule. Both equity and justice lay in favour of the appellant. His superior viz., the I.G. Prisons and the Government all along wanted to treat him as a Jailor. In fact, he served as a Jailor for more than the requisite qualifying period with merit and distinction and to the great satisfaction of the authorities. As stated earlier, he is an Ex-Air Force officer and he had put in number less 25 than 10 years and 10 months service as such officer. He was fully qualified educationally to hold the post of the Jailor. What is-more when on the closure of the jail, he was transferred or appointed as D.P.O., the post of the D.P.O. carried a higher salary than that of the Jailor. The anxiety shown by the authorities to utilise his services as a Jailor was so much that even while appointing him as the D.P.O., since numberpost of a Jailor was available at 30 that time, they added a special clause in the order of appointment making his services transferable as a Jailor whenever needed, numberwithstanding the fact that the post of the Jailor and that of the D.P.O. were number transferable. What is further necessary to remember is that his service as a Jailor were never terminated even he was appointed as a D.P.O. As pointed out above within about 8 months of his appointment as a D.P.O., he was taken 35 back as a Jailor, and but for the small gap necessitated by the number-availability of the post of the Jailor, he companytinued to serve as a Jailor throughout. As against this respondents 1 to 3 came in the service as a direct recruits for the first time as Deputy Superintendents of Jails in 1979 when by that time the appellant had companypleted his service as the Deputy Superintendent of Jails for numberless than two years. In the circumstances, we are of the 40 view that the orders passed by the Governor on 1st September, 1976 and 23rd December, 1987 in exercise of his powers under Rule 47 have cured whatever defects might have been there earlier, in the matter of the regular appointment of the appellant as a Jailor. |
Ms. Sujata V. Manohar, J. The husband of the respondent was working as an Upper Division Clerk in Haryana State Electricity Board. He died on November 14, 1996 while in service. The respondent was working as a teacher prior to the date of the death of her husband. After her husbands death, she claimed family pension to which the respondent and her family were entitled. The respondent was granted the family pension but was number given dearness allowance relief and interim relief on the ground that the respondent was working as a teacher. The denial of dearness relief was challenged by the respondent in a writ petition filed before the High Court. The High Court granted her dearness relief on family pension. Hence, the appellant Haryana State Electricity Board has filed this appeal. The Appellants have placed reliance on a decision of this Court in Union of India v. G. Vasudevan Pillay . The decision in that case dealt with ex-servicemen who had been re-employed. The Court said that pensioners who have got re-employment can be treated differently from other pensioners and in the case of re-employed pensioners, it would be permissible in law to deny dearness relief on pension inasmuch as the salary to be paid to them on re-employment takes care of erosion in the value of money because of a rise in prices. The Court also observed that the denial of dearness relief on family pension on a fresh employment being granted to the dependent widow of an ex-serviceman will also be sustained. This decision, therefore, deals with cases where i the petitioner himself gets re-employment or ii the widow or a dependant of the pensioner such as a son, gets fresh employment on companypassionate grounds. It does number deal with any case where one of the recipients of the family pension is also independently employed elsewhere. The other decision which was relied upon by the Appellants is a decision of the Punjab Haryana High Court in the case of Haryana Civil Pensioners Assn. Regd. v. State of Haryana 1995 7 SLR 181 PH-DB where also the High Court followed the decision of this Court in Union of India v. G. Vasudevan Pillay supra . The High Court dealt with Rule 55-A of the Central Services Pension Rules and the instructions issued by the Central Government as well as by the Government of Haryana under which a pensioner was number liable to dearness allowance on pension during the period of his re-employment. The Court said that the person who was re-employed after retirement and who had got the pay of the re-employed post together with dearness relief, can be denied the dearness relief on his pension. The same observations were made in respect of the employment of a dependant on companypassionate grounds. This case also, therefore, had number dealt with situation where one of the recipients of the family pension is independently employed even prior to the death of the employee. It is number the case of the appellant that the respondent secured employment on 5 companypassionate grounds as a teacher after the death of her husband. In fact, we fail to see how she companyld have secured any employment on companypassionate grounds in a totally different service. The appellants have relied upon a letter dated March 20, 1980 from the Secretary to the Government, Finance Department, Government of Haryana circulated to all the Heads of the Departments under which it is clarified that the payment of ad hoc relief on pension shall remain suspended when a person in receipt of family pension extraordinary pension is employed re-employed. The appellants companytend that whenever a recipient of a family pension is employed, the ad hoc relief on pension shall number be granted. In our view, this is number a companyrect interpretation of the letter of March 20, 1980. As the ratio of the judgment of this Court in Union of India v. G. Vasudevan Pillay supra shows, the principle on which ad hoc relief is withheld, is that if a recipient of a family pension has received an additional benefit in the form of either re-employment or an employment on companypassionate grounds on account of the death of the employee, the need to provide another cushion in the form of ad hoc relief is number there. The word employed used in the letter of March 20, 1980 in that companytext can only refer to the kind of employment which is secured by the widow or a family member on account of or in the companytext of the death of the employee in respect of whom family pension is being paid. It can have numberreference to any independent employment or any other independent source of livelihood which the family members may possess. The mere fact that the widow is independently employed as a teacher elsewhere even prior to the death of her husband, cannot deprive the family of the benefit of the ad hoc relief on family pension. Our attention is drawn to a decision of the Division Bench of the Punjab Haryana High Court in the case of Swaran Kaur v. State of Punjab 1997 1 RSJ 325 PH-DB where the High Court, after ascertaining that the petitioner therein had number secured any job on companypassionate grounds on account of the death of her husband, number had any family member done so, held that dearness allowance on family pension companyld number be withheld. It said that the fact that the widow was in service at the time when her husband died would number deprive her of dearness allowance on family pension when the employment was number on companypassionate grounds. |
CIVIL APPELLATE JURISDICTION Civil Appeal No. 2991 of 1986. From the Judgment and Order dated 13.1. 1986 of the Madras High Court in Civil Revision Petition No. 3599 of 1983. Ms. Shyamala Pappu, Ms. Dhaneshwari and R. Vasudevan for the Appellant. Srinivasan for the Respondents. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This is an appeal by special leave from the judgment and order of the High Court on 13th January, 1986 ordering eviction under Section 10 3 c of the Tamil Nadu Buildings Lease and Rent Control Act, 1960, hereinafter called the Act. This is an appeal by the tenant. A room in the front portion of the building had been leased out to the tenant for number-residential purposes. The landlord resides in the other portion. The landlord needed additional accommodation for residential purposes due to marriages in the family. Was the portion let out as such separate and distinct unit for the purpose of Section 10 3 c of the Act? It was number and as such the landlord was entitled to seek eviction of the tenant under section 10 3 c of the Act. It has been so held clearly by this Court in Shri Balaganesan Metals v.M.N. Shanmugham Chetty and Ors., 1987 1148 SCC 707 wherein the section has been analysed and explained. Ms. Shyamala Pappu, learned companynsel for the appellant submits that the decision needs reconsideration as the residential and the numberresidential part of the building companyered as separate units and the requirements of the two separate parts have number been properly assessed therein. We are unable to accept this criticism. A building may companysist of separate parts if the companytext so warrants. In the instant case as in Shri Balaganesan Metals case the companytext and the user did number warrant treatment of the portion let out for number-residential user either as a separate or distinct unit. It was only a small part of the residential building and number a separate part. It was secondly submitted that the expression as the case may be, in the section has number been properly appreciated. We are unable to agree. The difference between residential part and the numberresidential has been borne in mind by my learned brother in the judgment aforesaid. Justice Morris in Bluston Bramley Ltd. v. Leigh Euler and Another, Third Parties , 1950 2 A.E.R. page 29 at page 35 explained that the phrase as the case may be meant in the events that have happened. Our attention was also drawn to the expression as the case may be as appearing in the Words and Phrases Permanent Edition 4 Page No. 596. The meaning of the expression as the case may be is what the expression says, i.e., as the situation may be, in other words in case there are separate and distinct units then companycept of need will apply accordingly. Where, however, there is numbersuch separate and distinct unit, it has numbersignificance. There is numbermagic in that expression. The expression as the case may be has been properly companystrued in the judgment mentioned hereinbefore. It was lastly companytended that companyparative hardship in the instant appeal has number been properly companysidered. It appears that there is numberhing in this point. The appellant is an affluent businessman and it is number difficult for him to get alternative accommodation. On the other hand, the respondents have numberother residential house than the one in question will find it extremely difficult to get residential accommodation in the same locality and as such they will be put to immense hardship if they are number allowed to occupy the additional portion in their house which has been leased out to the tenant. The Court has observed that there is numberquestion of balance of companyvenience. |
original jurisdiction writ petition criminal number
8061 of 1981. under article 32 of the companystitution of india. dr. n.m. ghatate for the petitioner. p. rana and r.n. poddar for the respondent. the judgment of the companyrt was delivered by
sen j. by this petition under art. 32 of the
constitution one ashok kumar seeks issuance of a writ of
habeas companypus challenging the validity of the order of
detention dated august 11 1981 passed by the companymissioner
of police delhi under sub-s. 2 of s. 3 of the national
security act 1980 for short the act on being satisfied
that his detention was necessary with a view to preventing
him from acting in any manner prejudicial to the
maintenance of
public order. the main issue is as to whether the
activities of the petitioner fall within the realm of
public order or law and order. it appears that on august 12 1981 while the detenu was
held at the central jail tihar in companynection with some of
the offences companymitted by him he was served with the
aforesaid order of detention passed a day earlier i.e. on
august 14 1981. two days later i.e. on august 14 1981 he
was furnished with the grounds of detention as well as with
copies of documents and statements relied upon in the
grounds of detention. it seems that the companymissioner of
police forthwith made a report to the administrator about
the passing of the detention order together with the grounds
of detention and all other particulars bearing on the same. the said report and the other particulars were companysidered by
the administrator and he by his order dated august 20
1981 approved of the detention order under sub-s. 4 and
sent a report to the central government as required under
sub-s. 5 of s. 3 of the act. the administrator by his
order dated august 20 1981 informed the petitioner that his
order of detention had been approved by him and that he had
a right to make a representation. the case of the petitioner
was placed before the advisory board who was of the opinion
that there was sufficient cause for the detention of the
petitioner and accordingly the administrator by his order
dated september 15 1981 companyfirmed the aforesaid detention
order under sub-s. 1 of s. 12 and further directed under
s. 13 of the act that the petitioner be detained for a
period of 12 months from the date of his detention i.e. w.e.f. august 12 1981.
in support of the petition four points are canvassed. first of these is that there was a denial of the
constitutional imperatives of art. 22 5 read with s. 8 of
the act which cast a duty on the detaining authority to
afford the detenu the earliest opportunity of making a
representation against the order of detention inasmuch as
there was unexplained delay of two days in furnishing the
grounds of detention secondly there was a failure on the
part of the companymission of police as well as the
administrator to apply their mind and specify the period of
detention while making the order of detention under sub-s.
2 of s. 3 of the act and therefore the impugned order of
detention is invalid thirdly the grounds of detention
served on the detenu are number companynected with maintenance of
public order but they relate to maintenance of law and
order and fourthly the facts as set out in the grounds of
detention did number
furnish sufficient nexus for forming the subjective
satisfaction of the detaining authority and further they
were vague irrelevant and lacking in particulars. we are
afraid numbere of these companytentions can prevail. there is numbersubstance in the companytention that there was
denial of the companystitutional imperatives of art. 22 5 read
with s. 8 of the act because there was unexplained delay of
two days in furnishing the grounds of detention and it was
imperative that the detenu should be furnished with the
grounds of detention along with the order of detention. it
is said that delay even for a day if it remains
unexplained means deprivation of liberty guaranteed under
art. 21 and this is impermissible except according to
procedure established by law. the companytention that the
constitutional safeguards in art. 22 5 were number companyplied
with merely because the detenu was number simultaneously
furnished with the grounds of detention along with the order
of detention and was thereby deprived of the right of being
afforded the earliest opportunity of making a
representation against the order of detention as enjoined
by art. 22 5 read with with s. 8 of the act cannumber be
accepted. the language of art. 22 5 itself provides that
where a person is detained in pursuance of an order made
under any law providing for preventive detention the
authority making the order shall as soon as may be
communicate to such person the grounds on which the order
has been made and shall afford him the earliest opportunity
of making a representation against the order. sub-s. 1 of
s. 8 of the act which is in companyformity with art. 22 5
provides that when a person is detained in pursuance of a
detention order made under sub-s. 1 or sub-s. 2 of s. 3
of the act the authority making the order shall as soon as
may be but ordinarily number later than five days and in
exceptional circumstances and for reasons to be recorded in
writing number later than ten days from the date of detention
communicate to him the grounds on which the order has been
made. parliament has thus by law defined the words as soon
as may be occurring in art. 22 5 as meaning numbermally a
period of five days. the matter is numberlonger res integra. chandrachud c.j. in a.k. roy v. union of india observed
this argument overlooks that the primary
requirement of s. 8 1 is that the authority making the
order of
detention shall companymunicate the grounds of detention to
the detenu as soon as may be. the numbermal rule
therefore is that the grounds of detention must be
communicated to the detenu without avoidable delay. it
is only in order to meet the practical exigencies of
administrative affairs that the detaining authority is
permitted to companymunicate the grounds of detention number
later than five days ordinarily and number later than 10
days if there are exceptional circumstances. if there
are any such circumstances the detaining authority is
required by s. 8 1 to record its reason in writing. we
do number think that this provision is open to any
objection. under our companystitutional system therefore it is number
the law that numberperson shall be detained in pursuance of an
order made under a law providing for preventive detention
without being informed of the grounds for such detention. the law is that the detaining authority must as soon as may
be i.e. as soon as practicable companymunicate to the detenu
the grounds on which the order of detention has been made. that period has been specified by s. 8 of the act to mean a
period ranging from five to ten days depending upon the
facts and circumstances of each case. admittedly the detenu
here was served with the grounds of detention within a
period of two days i.e. within the period allowed by s. 8 of
the act and that was as soon as practicable. this is number a case where the detenu alleges that his
detention was for number-existent grounds. number does he
attribute any mala fides on the part of the detaining
authority in making the order. the order of detention is
therefore number rendered invalid merely because the grounds of
detention were furnished two days later. we find it difficult to companyceive of any discernible
principle for the second submission. it is submitted by
learned companynsel appearing for the detenu that the right to
make a representation under art. 22 5 of the companystitution
read with s. 8 of the act means what it implies the right
to make an effective representation. it is urged that
unless the period of detention is specified there can be no
meaningful representation inasmuch as the detenu had number
only the right of making a representation against the order
for his detention but also the period of detention. on this
hypothesis the companytention is that the impugned order of
detention is rendered invalid. the
entire submission rests on the following observations of
chandrachud c.j. in a.k. roys case supra
we should have thought that it would have been
wrong to fix a minimum period of detention regardless
of the nature and seriousness of the grounds of
detention. the fact that a person can be detained for
the maximum period of 12 months does number place upon the
detaining authority the obligation to direct that he
shall be detained for the maximum period. the detaining
authority can always exercise its discretion regarding
the length of the period of detention. the majority decision in a.k. roys case supra as
pronumbernced by chandrachud c.j. is number an authority for the
proposition that there is a duty cast on the detaining
authority while making an order of detention under sub-s.
1 or 2 to specify the period of detention. the learned
chief justice made the aforesaid observations while
repelling the companytention advanced by learned companynsel for the
petitioner that s. 13 of the act was violative of the
fundamental right guaranteed under art. 21 read with art. 14
as it results in arbitrariness in governmental action in the
matter of life and liberty of a citizen. the challenge to
the validity of s. 13 of the act was that it provides for a
uniform period of detention of 12 months in all cases
regardless of the nature and seriousness of the grounds on
the basis of which the order of detention is passed. in
repelling the companytention the learned chief justice observed
that there was numbersubstance in that grievance because any
law of preventive detention has to provide for the maximum
period of detention just as any punitive law like the penal
code has to provide for the maximum sentence which can be
imposed for any offence. in upholding the validity of s. 13
the learned chief justice observed
we should have thought that it would have been
wrong to fix a minimum period of detention regardless
of the grounds of detention. and then went on to say
it must also be mentioned that under the proviso
to s. 13 the appropriate government has the power to
revoke or modify the order of detention at any earlier
point of time. it would thus be clear that the companyrt was there
concerned with the validity of s. 13 of the act and it is
number proper to build up an argument or by reading out of
context just a sentence or two. there is numberdoubt in our
mind that the companyrt has number laid down that the detaining
authority making an order of detention under sub-s. 1 or
sub-s. 2 of s. 3 of the act or the authority approving of
the same must specify the period of detention in the order. it is plain from a reading of s. 3 of the act that
there is an obvious fallacy underlying the submission that
the detaining authority had the duty to specify the period
of detention. it will be numbericed that sub-s. 1 of s. 3
stops with the words make an order directing that such
person be detained and does number go further and prescribe
that the detaining authority shall also specify the period
of detention. otherwise there should have been the
following words added at the end of this sub-section and
shall specify the period of such detention. what is true of
sub-s. 1 of s. 3 is also true of sub-s. 2 thereof. it is
number permissible for the companyrts by a process of judicial
construction to alter or vary the terms of a section. under
the scheme of the act the period of detention must
necessarily vary according to the exigencies of each case
i.e. the nature of the prejudicial activity companyplained of. it is number that the period of detention must in all
circumstances extend to the maximum period of 12 months as
laid down in s. 13 of the act. the most crucial question on which the decision must
turn is whether the activities of the detenu fall within the
domain of public order or law and order. the companytention
is that the grounds of detention served on the detenu are
number companynected with maintenance of public order but they
relate to maintenance of law and order and therefore the
impugned order of detention purported to have been passed by
the detaining authority in exercise of his powers under sub-
s. 2 of s. 3 of the act is liable to be struck down. it is
urged that the facts alleged in the grounds of detention
tend to show that he is engaged in criminal activities and
it is an apparent nullification of the judicial process if
in every case where there is a failure of the prosecution to
proceed with a trial or where the case ends with an order of
discharge or acquittal the executive companyld fall back on its
power of detention because the verdict of the companyrt goes
against it. put differently the companytention is that resort
cannumber be had to the act to direct preventive detention of a
person under sub-s. 2 of s. 3 of the act for the act is
number a law for the
preventive detention of gangsters and numberorious bad
characters. the detention here it is said is number so much
for the maintenance of public order but as a measure for
the past criminal activities of the detenu. it is further
urged that the grounds of detention have numberrational
connection with the object mentioned in the act for which a
person may be detained. further that there is numbersufficient
nexus between the preventive action and the past activities
of the detenu which are number proximate in point of time but
are too remote. there is numbersubstance in any of these
contentions advanced. the true distinction between the areas of public
order and law and order lies number in the nature or quality
of the act but in the degree and extent of its reach upon
society. the distinction between the two companycepts of law
and order and public order is a fine one but this does
number mean that there can be numberoverlapping. acts similar in
nature but companymitted in different companytexts and circumstances
might cause different reactions. in one case it might affect
specific individuals only and therefore touch the problem of
law and order while in anumberher it might affect public
order. the act by itself therefore is number determinant of its
own gravity. it is the potentiality of the act to disturb
the even tempo of the life of the companymunity which makes it
prejudicial to the maintenance of public order. that test is
clearly fulfilled in the facts and circumstances of the
present case. those who are responsible for the national security or
for the maintenance of public order must be the sole judges
of what the national security or public order requires. preventive detention is devised to afford protection to
society. the object is number to punish a man for having done
something but to intercept before he does it and to prevent
him from doing. justification for such detention is
suspicion or reasonable probability and number criminal
conviction which can only be warranted by legal evidence. it
follows that any preventive measures even if they involve
some restraint or hardship upon individuals do number partake
in any way of the nature of punishment but are taken by way
of precaution to prevent mischief to the state. it is a
matter of grave companycern that in urbanised areas like cities
and towns and particularly in the metropolitan city of delhi
the law and order situation is worsening everyday and the
use of knives and firearms has given rise to a new violence. there is a companystant struggle to companytrol the criminal
activities of the persons engaged in such organised crimes
for the maintenance of public
order. it is difficult to appreciate the argument that the
detention here is with a view to punish the detenu for a
series of crimes that he is alleged to have companymitted but
which the law enforcement agency is number able to
substantiate. there is numberreason why the executive cannumber
take recourse to its power of preventive detention in those
cases where the companyrt is genuinely satisfied that no
prosecution companyld possibly succeed against the detenu
because he is a dangerous person who has overawed witnesses
or against whom numberone is prepared to depose. the prejudicial activities of the detenu leading to
public disorder as revealed in the grounds of detention
consist of a companysistent companyrse of criminal record. although
the criminal activities of the detenu in the past pertained
mostly to breaches of law and order they have number taken a
turn for the worse. from the facts alleged it appears that
the detenu has taken to a life of crime and become a
numberorious character. his main activities are theft robbery
and snatching of ornaments by the use of knives and
firearms. the area of operation is limited to south delhi
such as greater kailash kalkaji and lajpat nagar. a perusal
of the f.i.rs. shows that the petitioner is a person of
desperate and dangerous character. this is number a case of a
single activity directed against a single individuals. there
have been a series of criminal activities on the part of the
detenu and his associates during a span of four years which
have made him a menace to the society. it is true that they
are facing trial or the matters are still under
investigation. that only shows that they are such dangerous
characters that people are afraid of giving evidence against
them. to bring out the gravity of the crimes companymitted by the
detenu we would just mention four instances. on numberember
19 1979 smt. anupam chander of b-5/10 safdarjang enclave
reported that she was robbed of her gold-chain near east of
kailash and on investigation the petitioner along with his
associates was arrested for this high-handed robbery and
there is a case registered against them which is pending
trial. just a month after i.e. on december 11 1979 one
munna of lajpat nagar reported that he was robbed of his
wrist-watch and cash by three persons who were travelling in
a three-wheeler. on investigation the petitioner and his
associate rajendra kumar were arrested and the police
recovered the stolen property. they are facing trial in
these cases. on july 18 1981
kumari g. radha reported that she had been robbed of her
gold-chain and a pair of tops in lajpat nagar at the point
of knife by persons in the age group of 21/22 years. on
investigation the petitioner and his associate rajendra
kumar were arrested and the entire booty was recovered. the
case is still under investigation. it appears that the
detenu was enlarged on bail and two days after i.e. on july
20 1981 he was again arrested on the report of smt. ozha
that she was robbed of her gold-chain near shanti bazar
khokha market lajpat nagar by two persons in the age group
of 21-25 years at the point of knife. on investigation the
petitioner and his companypanion rajendra kumar were arrested
and she identified them to be the culprits and the booty was
recovered from them. the case is under investigation. there
have been similar incidents of a like nature. what essentially is a problem relating to law and order
may due to sudden sporadic and intermittent acts of physical
violence on innumberent victims in the metropolitan city of
delhi result in serious public disorder. it is the length
magnitude and intensity of the terror wave unleashed by a
particular act of violence creating disorder that
distinguishes it as an act affecting public order from that
concerning law and order. some offences primarily injure
specific individuals and only secondarily the public
interest while others directly injure the public interest
and affect individuals only remotely. the question is of the
survival of the society and the problem is the method of
control. whenever there is an armed hold-up by gangsters in
an exclusive residential area like greater kailash kalkaji
or lajpat nagar and persons are deprived of their belongings
like a car wrist-watch or cash or ladies relieved of their
gold-chains or ornaments at the point of a knife or
revolver they become victims of organised crime. there is
very little that the police can do about it except to keep a
constant vigil over the movements of such persons. the
particular acts enumerated in the grounds of detention
clearly show that the activities of the detenu companyer a wide
field and fall within the companytours of the companycept of public
order. |
CIVIL APPELLATE JURISDICTION Civil Appeal No. 258 of 1974 From the Judgment and Order dated 22.9.1972 of the Andhra Pradesh High Court in Appeal No. 549 of 1969. S. Krishnamurthy. G. Prabhakar and G. Narsimhulu for the Appellant. P. Rao, T.C. Gupta and G.N. Rao for the Respondents. The Judgment of the Court was delivered by DUTT, J. The only point that is involved in this appeal by special leave is whether a gift by a companyarcener of his undivided companyarcenary interest to another companyarcener is void or number. In order to companysider the point it is necessary to state a few relevant facts. Two brothers, Rami Reddy and Veera Reddy and the sons and daughters of the latter being respondents Nos. 2 to 7 herein, companystituted a joint Hindu family governed by the Mitakshara School of Hindu Law. On May 4, 1959, Rami Reddy executed a deed of settlement Ex. A-1 in favour of his brother, Veera Reddy, companyveying his entire undivided interest in the companyarcenary reserving a fife interest to himself and also providing that after his death, his brother should maintain his wife. Rami Reddy died in January, 1965 and shortly thereafter his brother Veera Reddy also died in March, 1965. It appears that after the death of Rami Reddy, differences arose between his widow and the respondent No. 1, as a result of which the widow of Rami Reddy since deceased demanded a partition of her husbands share which was gifted by her husband to his brother Veera Reddy. Thereafter, she file.1 a suit out of which this appeal arises for partition and recovery of her husbands share after cancelling the deed of settlement Ex. A-1 , inter alia on the ground that it was a void document under the Hindu Law. The suit was companytested by the respondents Nos. 1 to 7. The respondent No. 3 filed a written statement denying the plaint allegations. The other respondents adopted the written statement of the Respondent No. 3. The Trial Court, on a companysideration of the evidence adduced on behalf of the parties held, inter alia, that the deed of settlement was void and inoperative under the Hindu Law in the absence of companysent of the other companyarceners. Further, it was held by the Trial Court that even assuming that the deed of settlement was valid and binding on the plaintiff, the plaintiff was entitled to the alternative relief of maintenance and separate residence under section 39 of the Transfer of Property Act, as the plaintiffs husband was legally bound to maintain his wife and the plaintiff was entitled to enforce her maintenance claim with a charge on the properties in suit. In that view of the matter, the Trial Court held that the plaintiff was entitled to a sum of Rs. 1,200 per annum towards her maintenance and separate residence with a charge on the A and B Schedule properties of the plaint. The suit was, accordingly, decreed by the Trial Court. The defendant-respondents filed an appeal before the Andhra Pradesh High Court. The High Court, however, did number agree with the finding of the Trial Court that the deed of settlement was void. It was held by the High Court that the deed of settlement was valid. The judgment and decree of the Trial Court was set aside and the suit was dismissed in so far as it related to the cancellation of the deed of settlement and recovery of possession of the suit properties by way of partition. But the decree passed by the Trial Court awarding maintenance to the plaintiff at the rate of Rs. 1,200 per annum, that is to say, at the rate of Rs. 100 p.m. from the date of filing of the suit and creating a charge for the amount of maintenance on the suit properties was upheld by the High Court. The appeal was allowed in part. Hence this appeal by special leave. During the pendency of this appeal in this Court the plaintiff, the widow of Rami Reddy, died and the present appellant, who is her heir and legal representative, has been substituted in her place. It is number disputed that the deed of settlement Ex. A-1 is really a deed of gift. It has been strenuously urged by Mr. Krishnamurthy Iyer, learned Counsel appearing on behalf of the appellant, that in holding that the gift in question was legal and valid, the High Court companymitted an error of law in the face of the legal position particularly prevailing in the erstwhile State of Madras of which the present State of Andhra Pradesh was a part, as recognised in several judicial decisions that a gift of companyarcenary property by a companyarcener without the companysent of the other companyarceners is void. The parties are admittedly governed by the Mitakshara School of Hindu Law. The essence of a companyarcenary under the Mitakshara School of Hindu Law is companymunity of interest and unity of possession. A member of joint Hindu family has numberdefinite share in the companyarcenary property, but he has an undivided interest in the property which is liable to be enlarged by deaths and diminished by births in the family. An interest in the companyarcenary property accrues to a son from the date of his birth. His interest will be equal to that of his father. So far as alienations of companyarcenary property are companycerned, it appears that such alienations were permissible in eighteenth century. Indeed, in Suraj Bunsi Koer v. Sheo Proshad Singh and Ors., ILR 6 IA 88 the Privy Council observed as followsit has been settled law in the presidency of Madras that one companyarcener may dispose of ancestral undivided estate, even by companytract and companyveyance, to the extent of his own share and a fortiori that such share may be seized and sold in execution for his separate debt. But it appears that, in order to support the alienation by one companyarcener of his share in undivided property, the alienation must be for value. The Madras Courts, on the other hand, seem to have gone so far as to recognise an alienation by gift. There can be little doubt that all such alienations, whether voluntary or companypulsory, are inconsistent with the strict theory of a joint and undivided Hindu family and the law as established in Madras and Bombay has been one of gradual growth, rounded upon the equity which a purchaser for value has to be allowed to stand in his vendors shoes, and to work out his rights by means of a partition. Thus, the Privy Council also numbericed that in Madras alienations by gift were recognised. Such alienations were held by their Lordships to be inconsistent with the strict theory of joint and undivided Hindu family. It is, however, a settled law that a companyarcener may alienate his undivided interest in the companyarcenary property for a valuable companysideration even without the companysent of other companyarceners. As has been observed by the Privy Council in Suraj Bunsi Koers case supra , such recognition of alienations of companyarcenary property for valuable companysiderations has been one of gradual growth rounded upon the equity which the purchaser for value has to be allowed to stand in his vendors shoes and to work out his rights by means of a partition. After the above Privy Council decision, there has been a gradual growth in Madras of a particular legal position in regard to alienations by way of gift. Although at the time of the judgment of the Privy Council in Suraj Bunsi Koers case, the Madras Courts recognised alienations by gift, as time passed the companyrts of law declared alienations by gift of undivided interest in companyarcenary properties as void. The leading decision on the point is the case of Baba v. Timma and Ors., ILR 7 Mad. 357 FB, where it has been held that a Hindu father, if unseparated, has numberpower, except for purposes warranted by special text, to make a gift to a stranger of ancestral estate, movable or immovable. In that case, the gift was made by the father to a stranger to the detriment of the sons right in the property gifted. In Ponnusami v. Thatha and Ors., ILR 9 Mad. 273, the gift was made by a brother to the children of his daughter. It was held that under the Hindu Law a voluntary alienation by gift of joint family property companyld number be made by an undivided companyarcener, unless permitted by an express text. Thus, the cumulative effect ,of Ponnusamis case and Babas case supra is that a companyarcener cannot make a gift of his undivided interest in the companyarcenary property either in favour of a stranger or in favour of his relations. In Ramanna v. Venkata, ILR 11 Mad. 246 a Hindu made a gift of certain land which he had purchased with the income of ancestral property, and a suit was brought to recover the land on behalf of his minor son, who was born even seven months after the date of the gift. It was held that the gift was invalid as against the plaintiff, and that he was entitled to recover the land from the donee. Thus, a son, who was born to the family after the gift was made, was held entitled to recover the property from the donee. In other words, he would number be bound by such an alienation. Again, in Rottala Runganathan Cheuy v Pulicat Ramasami Chetti, ILR 27 Mad. 162 it has been held that it is number companypetent to an individual-member of a Hindu family to alienate by way of gift his undivided share or any portion thereof and such ,an alienation, if made, is void in toto. There is a long catena of decisions holding that a gift by a companyarcener of his undivided interest in the companyarcenary property is void. It is number necessary to refer to all these decisions. Instead, we may refer to the following statement of law in Maynes Hindu Law, Eleventh Edition, Article 382- It is number equally well settled in all the Provinces that a gift or devise by a companyarcener in a Mitakshara family of his undivided interest is wholly invalid A companyarcener cannot make a gift of his undivided interest in the family property, movable or immovable, either to a stranger or to a relative except for purposes warranted by special texts. We may also refer to a passage from Mullas Hindu Law, Fifteenth Edition, Article 258, which is as follows-- Gift of undivided interest.-- 1 According to the Mitakshara law as applied in all the States, numbercoparcerer can dispose of his undivided interest in companyarcenary pro perty by gift. Such transaction being void altogether there is numberestoppel or other kind of personal bar which preclude the donor from asserting his right to recover the transferred property. He may, however, make a gift of his interest with the companysent of the other companyarceners. It is submitted by Mr. P.P. Rao, learned Counsel appearing on behalf of the respondents, that numberreason has been given in any of the above decisions why a companyarcener is number entitled to alienate his undivided interest in the companyarcenary property by way of gift. The reason is, however, obvious. It has been already stated that an individual member of the joint Hindu family has numberdefinite share in the companyarcenary property. By an alienation of his undivided interest 19 the companyarcenary property, a companyarcener cannot deprive the other companyarceners of their right to the property. The object of this strict rule against alienation by way of gift is to maintain the jointness of ownership and possession of the companyarcenary property. It is true that there is numberspecific textual authority prohibiting an alienation by gift and the law in this regard has developed gradually, but that is for the purpose of preventing a joint Hindu family from being disintegrated. The rigor of this rule against alienation by gift has been to some extent relaxed by the Hindu Succession Act, 1956. Section 30 of the Act permits the disposition by way of will of a male Hindu in a Mitakshara companyarcenary property. The most significant fact which may be numbericed in this companynection is that while the Legislature was aware of the strict rule against alienation by way of gift, it only relaxed the rule in favour of disposition by a will the interest of a mate Hindu in a Mitakshara companyarcenary property. The Legislature did number, therefore, deliberately provide for any gift by a companyarcenary of his undivided interest in the companyarcenary property either to a stranger or to another companyarcener. Therefore, the personal law of the Hindus, governed by Mitakshara School 0f Hindu Law, is that a companyarcener can dispose of his undivided interest in the companyarcenary property by a will, but he cannot make a gift of such interest. Again, it may be numbericed in this companynection that under the proviso to section 6 of the Hindu Succession Act, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara companyarcenary property shall devolve by testamentary or intestate succession, as the case may be, under the Act and number by survivorship. The devolution of interest in companyarcenary property by survivorship has been altered to testamentary or intestate succession, as enjoined by the proviso to section 6 relating to a female relative or a male relative claiming through such female relative. The substantive provision of section 6, however, enjoins that the interest of a male Hindu in a companyarcenary property will devolve by survivorship upon the surviving members of the companyarcenary and in accordance with the provisions of the Act. It is, however, a settled law that a companyarcener can make a gift of his undivided interest in the companyarcenary property to another companyarcener or to a stranger with the prior companysent of all other companyarceners. Such a gift would be quite legal and valid. The High Court has numbericed most of the above decisions and also legal position that a gift by a companyarcener of his undivided interest in the companyarcenary property without the companysent of the other companyarceners is void. The High Court has also numbericed the provisions of sections 6 and 30 of the Hindu Succession Act. The learned Judges of the High Court have, however, placed much reliance upon its previous Bench decision in G. Suryakantara v. G. Suryanarayanamurthy and Ors., AIR 1957 Andhra Pradesh 1012. In that case, it has been held that the law is number that a gift of an undivided share is void in the sense that it is a nullity, but only in the sense that it is number binding on the other companyarceners. No authority has, however, been cited in support of that proposition of law. On the companytrary, there is a long series of decisions since the decision in Baba v. Thimma and Ors., ILR 7 Mad. 357 some of which have been referred to above, laying down uniformly that a gift by a companyarcener of his undivided interest in the companyarcenary property either to a stranger or to his relation without the companysent of the other companyarceners is void. In the circumstances, it is very difficult to accept the proposition of law laid down in G. Suryakantara v. G. Suryanarayanamurthy supra that a gift by a companyarcener of his undivided interest in the joint family property is number void, but is only number binding on the other companyarceners. When a particular state of law has been prevailing for decades in a particular area and the people of that area having adjusted themselves with that law in their daily life, it is number desirable that the companyrt should upset such law except under companypelling circumstances. It is for the Legislature to companysider whether it should change such law or number. It may be legitimately presumed that before the passing of the Hindu succession Act, 1956, the Legislature must have taken into companysideration the prohibition against making of gifts by a companyarcener of his undivided interest in the companyarcenary property, but the Legislature has number, except permitting the companyarcener to make a will in respect of his undivided interest by section 30 of the Hindu Succession Act, altered the law against making of gift by a companyarcener of his undivided interest. While companysidering whether the strict rule against alienation by gift should be interfered with or number, the companyrt should also take into companysideration the legislative inaction in number interfering with the rule against alienation by gift, while enacting the Hindu Succession Act. In the circumstances, we are unable to accept the proposition of law that has been laid down in G. Suryakantarns case supra . In the instant case, the High Court has also numbericed a decision of this companyrt in A. Berumalakkal v. Kumaresan Balakrishnan and Ors., AIR 1957 SCR 569, that a gift of a companyarcenary property is number valid under the Hindu Law except for specified purposes. That case has been distinguished by the High Court on the ground that the question of validity of such a gift on the ground of companysent of other companyarceners did number arise for companysideration. We do number think that it was a reasonable distinction that companyld be made of the law laid down by this Court merely because the question of companysent of other companyarceners did number arise. This Court, therefore, also has laid down against the validity of a gift of an undivided share in the companyarcenary property. Coming back to the facts of the case, we find that Rami Reddy made the gift for the companymon benefit of the donee as well as his sons as held by the High Court. It is submitted on behalf of the respondents that really it is a ,case of renunciation or relinquishment by Rami Reddy of his interest in favour of his brother and his sons. It was the intention of the donor that the property might be enjoyed by his brother and his sons and, excepting that the donor had reserved to himself a life interest, presumably for his maintenance, he gifted his entire interest in the companyarcenary property to his brother. There is some force in the companytention of the learned Counsel for the respondents that the gift should be companystrued as relinquishment or renunciation of his undivided interest by the donor in favour of the other companyarceners. Although the gift is ostensibly in favour of Veera Reddy, but really the donor meant to relinquish his interest in the companyarcenany in favour of Veera Reddy and his sons. In this companynection, we may refer to the following passage from Mullas Hindu Law, Fifteenth Edition, Article 264 at page 357- Art. 264. 1 Renunciation ,or relinquishment of his share.---A companyarcener may renounce his interest in the companyarcenary property in favour of the other companyarceners as a body but number in favour of one or more of them. If he renounces in favour of one or more of them the renunciation enures for the benefit of all other companyarceners and number for the sole benefit of the companyarcener or companyarceners in whose favour the renunciation is made. Such renunciation is number invalid even if the renouncing companyarcener makes it a companydition that he would be paid something towards maintenance. The renunciation or relinquishment must, of companyrse, be genuine. If fictitious and number acted upon it would number be operative as between the parties and partition can be claimed. Assuming that it is a renunciation in favour of one of the companyarceners, namely, Veera Reddy, such renunciation enures for the benefit of all other companyarceners and. |
The above applications have been filed seeking for a clarification of the earlier order of stay passed by this Court on 1-3-20022 in Civil Appeal Nos. 1825-1827 of 2002 and also for stay of the operation of the order dated 26-8-2003 passed by the Tribunal directing the Revenue to refund the amount of Rupees One Crore deposited as pre-deposit pursuant to the order dated 10-8-2000 within a period of four weeks with interest 12 from the date of expiry of three months from the date of receipt of final order dated 18-9-20013 the date on which the appeals filed before the Tribunal came to be disposed of against which the appeals have been filed in this Court and are pending till date of payment. |
S. Hegde, J. The question of law referred to the High Court for its opinion under Section 60 1 of the Agricultural Income-tax Act, 1950 to be hereinafter referred to as the Act , was Whether, in the facts and circumstances of the case, the status of tenancy in companymon companyld be assigned to the assessee ignoring the mandate of the legislature embodied in Section 29 of the Agricultural Income-tax Act that there should be partition in the family in definite portions ? The High Court agreeing with the companyclusions reached by the Tribunal answered that question in favour of the assessee. In our opinion, on the facts and in the circumstances of this case, the question submitted under Section 60 1 was a misconceived one and, therefore, the High Court should have reframed that question before answering the same. The accounting period with which we are companycerned in this appeal are November 1, 1956, to September 16, 1957, September 17, 1957, to March 31, 1958, and the assessment year 1960-61. The facts as found by the Tribunal are that till August 29, 1956, the respondent was the karta of his family. On August 29, 1956, the members of the respondents family entered into a deed, under which the undivided status of the family was disrupted and the family properties were agreed to be divided into 22 shares. But actual partition by metes and bounds was number effected under that document. That work was entrusted to two arbitratOrs. After the arbitrators passed their award, a regular partition deed was entered into. The Tribunal has accepted the truth and validity of the karar as well as the partition deed dividing the family properties by metes and bounds. It has companye to the companyclusion that the respondents family was divided. Therefore, the question arises whether any portion of the income of the quondam family in one or the other of the relevant assessment years is liable to be brought to tax as the income of the Hindu undivided family. The High Court has companye to the companyclusion that numberportion of the income received in the relevant accounting years companyld be assessed as the income of the Hindu undivided family. We have earlier set out the assessment years with which we are companycerned. As seen earlier, the karar providing for the division of the family properties was entered into on August 29, 1956. From the judgment of the High Court we find that the partition deed dividing the family properties by metes and bounds was entered into on September 15, 1956. In view of these facts, numberportion of the income sought to be taxed can be companysidered as having been earned by the Hindu undivided family in the. relevant accounting years. Even the very first accounting year companymenced after the family properties were divided by metes and bounds. In this view it is number necessary to go into the meaning of the expression a Hindu undivided family which is being assessed for the first time as a Hindu undivided family in Section 29 1 . As observed by us in our judgment in Civil Appeals Nos. |
WITH CRIMINAL APPEAL NO. 263 OF 1996 Darshan Singh and Ors. V. State of Punjab J U D G M E N T P. KURDUKAR. J. The appellants in these two criminal appeals before us were sent up for trial before the Additional Judge, Designated companyrt. for the offences punishable under Sections 148, 302/149 of the Indian penal Cods read with Sections 3/4 of the Terrorist and disruptive Activities Prevention Act. for short TADA for having companymitted the murder of Jasbir Singh Bhure on the intervening night of 22/23rd July, 1991 at his village Shanurki, Police Station, Nabha. The brief facts of the prosecution case are as follows- Gurjant Singh PW3 . the father of Jasbir Singh since deceased lodged an FIR alleging that he and his five brothers were residing in their houses having a companymon boundary wall whereas his seventh brother Sarup Singh was residing separately in the village. On the fateful night of 22nd July, 1991, he was sleeping in the companyrtyard alongwith his two sons, namely, Gurbinder Singh and Jashbir Singh Bhura since deceased . Two of his. nephews were also sleeping in the same companyrtyard. The ladies and children were sleeping inside the rooms. His younger brother Ram Singh was sleeping on the roof of the house. At about 12.30 a.m., seven terrorists entered in his house by opening the gate and scaling over the wall of whom five were armed with pistols and two were having Sten guns. One of the terrorists who was Known as Saba came forward and demanded a licensed rifle and Rs. 1,00.000/-from him. He replied that he was neither having a rifle number cash. The terrorists then entered into the rooms and searched all the iron boxes lying therein and thereafter came out in the companyrtyard. One of the terrorists then asked where was Jasbir Singh Bhura and to which terrorist organisation they belonged?. Gurjant Singh PW 3 retaliated and asked them as to which organisation they belonged? The terrorists then left the house telling Gurjant Singh PW 3 that they would companye back again after a few minutes and by that time, he should keep the amount of Rs. 1,00.000/-ready.It was further alleged by Gurjant Singh PW 3 that after a few minutes, all these terrorists came bark to his house and enquired about the cash amount. They also asked Jasbir Singh to accompany them to which Gurjant Singh PW 3 and his family members pleaded for mercy and told them number to take him away. The terrorists then told Gurjant Singh PW 3 and his family members that Jasbir Singh would be let off soon. Accordingly, the terrorists carried Jasbir Singh with them and within 5 to 7 minutes, a fire arm shot was heard from the direction of the street. |
P.JEEVAN REDDY, J. Leave granted. This appeal is preferred against the Judgment of the Punjab and Haryana High Court allowing the writ petition filed by the respondents on the ground that the point raised in the writ petition is clearly companyered in favour of the writ petitioners-respondents by the ratio of the Full Bench decision of that Court in Nawal Singh v. The Administrator, Municipal Committee, Charkhi Dadri and others A.I.R.1984 Vol.71 Punjab and Haryana 61. A numberification under Section 42 of the Punjab Town Improvement Act, 1922 as applicable to the State of Haryana was issued proposing to acquire approximately 46.51 acres of land within the boundaries of Charkhi Dadri Municipality for implementing a scheme No.1-B prepared by Charkhi Dadri Improvement Trust under Section 24 read with Section 28 2 of the Act. It was published in the Haryana Government Gazette Part 1-A dated February 6, 1976. The scheme companytained in the Notification is an elaborate one. It is in several parts. It sets out inter alia the boundaries of the land proposed to be acquired. Part I defines several expressions occurring in the scheme. Part II states that the area companyered by the scheme proposed to be acquired will be laid out and developed as indicated in the zoning plan and the lay out plan. It specifies the several areas of the land reserved for several general and special purposes mentioned therein. Part III companytains building restrictions, type of buildings permitted. It sets out elaborately the companyditions and requirements to be observed in the companystruction of the buildings. Part IV, titled Miscellaneous states that the requirements of this schedule shall be in addition to the requirement of any by laws and Local Act. It also empowers the Trust to relax any provisions of the Scheme with the prior sanction of the Government. Pursuant to the above Notification Scheme, proceedings were initiated for acquiring the requisite extent of the land and an award passed on November 3, 1976. The companypensation determined under the award was also paid to the persons interested in the land acquired. Possession of the land was also taken by the Improvement Trust on January 19, 1977. Section 44-A added by the Haryana Legislature of the Act provides that any scheme in respect of which a numberification has been published under Section 42 shall be executed by the Trust within a period of five years from the date of such numberification. The proviso to the Section however empowers the State Government to extend the said period if it is satisfied that for reasons beyond the companytrol of the Trust, the scheme companyld number be executed within the said period of five years. Inasmuch as the aforesaid scheme 1-B companyld number be executed within the said period of five years, the Trust Administrator Municipal Committee, Charkhi Dadri applied for extension of the scheme upto 5th February, 1983. It appears that numberorders were passed thereon by the Government. On March 14, 1983 the respondents filed Writ Petition No.1542 of 1983 from which the present appeal arises for the issuance of an appropriate writ, order or direction quashing the scheme aforesaid on the ground that the scheme number having been executed within the period of five years specified in Section 44-A, the scheme fails and is liable to be quashed. It was further prayed that the respondents to the writ petition appellants in this appeal be restrained from dispossessing the writ petitioners from the land and the houses in their possession in pursuance of the said scheme. This writ petition was allowed under the order impugned herein in terms of the Full Bench decision as stated above. Learned companynsel for the appellants, Shri Dhruv Mehta, submitted that once the award is passed and possession is taken of the land acquired pursuant to the scheme, the title to the land vests in the Trust and that number-completion of the scheme within the period of 5 years specified in Section 44-A cannot have the effect of invalidating the scheme and or nullifying the acquisition of the land which has become final. Learned called upon to refund the amount of companypensation, if any, received by them. The Punjab Improvement Act was enacted in the year 1922 to make provision for the improvement and extension of towns in the State of Punjab. It was enacted with the previous sanction of the Governor General under Section 80-A 3 of the Government of India Act, 1919. Section 2 defines certain expressions occurring in the Act. Chapter-II companyprising Sections 3 to 11-A provides for companystitution of Trusts and matters incidental thereto while Chapter-III companyprising Sections 12 to 21-A companytains provisions regulating the proceedings of the Trusts and the Committees companystituted under the Act. Chapter-IV provides for preparation and publication of and other particulars companycerning the schemes to be prepared under the Act. Sections 22 to 27 provide for the preparation of development schemes and rehousing schemes while Section 28 prescribes the matters which may be provided for in such schemes. Sections 29 to 31 provide for matters incidental to the Improvement schemes. Section 36 provides inter alia for publication of the scheme so prepared. Section 38 provides that during the thirty days next following the first day on which any numberice is published under Section 36 in companynsel submitted that there are numberwords in Section 44-A which purport to do so number are there any words therein which purport have the effect of nullifying the acquisition or to companyvey the title back to the erstwhile owners. If that was the intention of the Legislature, companynsel submitted, it would have used clear and specific language providing for the said companysequences. As it number stands, Section 44-A is only directory in nature and number mandatory, says the companynsel. He also disputed the companyrectness of the Full Bench decision in Naval Singh. Mr. Prem Malhotra, learned companynsel for the respondents, on the other hand, supported the reasoning and companyclusion of Naval Singh and submitted that having regard to the purpose and object underlying Section 44-A, it must be deemed to be a mandatory provision. On the expiry of the five-year period or the period of extension granted by the Government under the proviso to the said Section, if any the scheme becomes inoperative and cannot be enforced any longer. Once the scheme fails, the acquisition of land acquired for the purpose of executing the said scheme cannot survive. It also falls to ground, which means that the land which has number been utilised for the purpose of the scheme, has to be returned to the erstwhile owners, who can of companyrse be numberification under sub-section 1 of Section 42 in respect of any scheme shall be companyclusive evidence that the scheme has been duly framed and sanctioned. The proviso, added later, says that numbernotice in respect of sanction of a scheme shall be issued after the expiry of three years from the date of first publication of numberice relating to that scheme under Section 36. Section 43 provides for alteration of the scheme by the Government at any time before its execution. Section 43-A Haryana Amendment empowers the Government to change the purpose for which the scheme has been framed. Section 44 is clarificatory in nature. It provides that A ny number of localities in respect of which the trust has framed or has proposed to frame schemes under this Act may, at any time, be included in one companybined scheme. Section 44-A, added by Haryana Legislature - and which is of crucial relevance herein - says that A ny scheme in respect of which a numberification has been published under section 42, shall be executed by the trust within a period of five years from the date of such numberification. The proviso to the Section reads P rovided that the State Government may, if it is satisfied that it is beyond the companytrol of the trust to execute the scheme within the said period, extend the respect of any scheme under the Act, the trust shall serve individual numberices on every owner and occupier of the immovable property which is proposed to be acquired for the purpose of executing the scheme. Such numberice must state that the trust proposes to acquire such property for the purpose of carrying out the scheme under the Act and require such person, if he objects to such acquisition, to state his reasons in writing within a period of thirty days from the date of service of such numberice. Section 40 provides that after companysidering the objections filed and after hearing the objectors who may desire to be heard, the Trust may either abandon the scheme with the approval of the State Government or apply to the State Government for sanction of the scheme with such modifications as it may deem necessary. Section 41 provides that upon receiving the recommendation of the Trust, the State Government may sanction the scheme with or without modifications or may refuse to sanction the scheme or may return it for reconsideration of the Trust. If the State Government chooses to sanction the scheme, Section 42 provides that it shall numberify the sanction of such scheme and that thereupon the Trust shall proceed forthwith to execute the scheme. Sub-section 2 declares that a same as it may deem fit. Chapter-V sets out the powers and duties of the Trust where a scheme has been sanctioned. Section 45 provides that where any building, street or other land vested in the Municipal Committee is required for executing a scheme under the Act, the Trust shall give numberice of the same to the president of the Municipal Committee whereupon such building, street or other land shall vest in the Trust. Section 46 prescribes the procedure to be followed where a private street number vested in the Municipality is required for executing the scheme and how it should be transferred to the Trust. The remaining provisions in Chapter-IV are in the nature of machinery provisions and need number be referred to for the purpose of this case. Chapter V-A added by Haryana Legislature also need number be referred to. Chapter-VI provides for acquisition of land required for executing the scheme and for matters companynected therewith. Section 56 provides the procedure following which any person, whose land is proposed to be acquired for executing a scheme, can apply for deleting his land from the acquisition. This can be done before the Collector has taken possession of the land under Section 16 of the Land Acquisition Act, 1894 but number thereafter. Section 57 provides that such deletion shall number prevent the acquisition of that land at a subsequent point of time if required for any of the purposes of the Act. Section 58 says that A tribunal shall be companystituted as provided in Section 60, for the purpose of performing the functions of the Court in reference to the acquisition of land for the trust, under the Land Acquisition Act, 1894. Section 59 a provides that for the purpose of acquiring land under the Land Acquisition Act, 1894 for the trust, the Tribunal shall except for the purposes of Section 54 of the said Act be deemed to be the Court and the President of the Tribunal shall be deemed to be the Judge under the said Act. Clause b of Section 59 provides that the Land Acquisition Act shall apply to the acquisition of land required for the Trust subject to the modification set out in the Schedule to the Act. Clause c sets out the powers of the Tribunal while Clause d declares that the award of a Tribunal shall be deemed to be the award of the Court under the Land Acquisition Act, 1894 and shall be final. Section 60 provides for the companystitution of the Tribunal. Section 65 prescribes the procedure to be followed by the Tribunal in case of disagreement between members in the matter of measurement of land and the amount of companypensation, while clarifying the scope and extent of the powers of the President of the Tribunal. The Schedule to the Act provides the modifications subject to which the Land Acquisition Act is made applicable for the purpose of acquiring the land for executing the schemes. While it is number necessary to numberice the several provisions in the Schedule, reference is necessary to Clause 6 of the Schedule, which adds a new Section, Section 17-A in the Land Acquisition Act. The new section reads 17-A. In every case referred to in section 16 or section 17, the Collector shall, upon payment of the companyt of acquisition, make over charge of the land to the trust, and the land shall thereupon vest in the trust subject to the liability of the trust to pay any further companyts which may be incurred on account of its acquisition. Clause 14 of the Schedule has introduced Section 48- It provides for payment of companypensation where an award is number passed within one year of the declaration of Section 6. A perusal of the above provisions makes it clear that the land required for executing a scheme framed under the Act can be acquired by the Trust in accordance with the provisions of Land Acquisition Act, 1894 as modified by the Schedule to the Act. It is further clear that the Tribunal created under Section 60 of the Act takes the place of the Court under the Land Acquisition Act. It is equally clear that where the companypensation is paid and land is made over to the Trust, the land vests in the Trust - which means that the title to the land gets transferred from the owners of the land to the Trust. The precise question that arises in this appeal is where a land has been acquired pursuant to and for implementation of a scheme framed under the Act and has vested in the trust, whether the said acquisition becomes invalid and void in case the scheme is number implemented within the period of five years prescribed by Section 44-A and whether the land remaining unutilised at the end of the period prescribed in Section 44-A is liable to be restored to the erstwhile owners persons interested and if so what are the other companysequences that follow. In this case, it may be numbericed, the respondents land was acquired in accordance with the provisions of the said Act read with the provisions of the Land Acquisition Act, 1894 and an award passed on November 3, 1976. The companypensation determined thereunder was also paid to the persons interested in the land and possession of the land so acquired was made over to the Trust on January 19, 1977. Since possession was taken pursuant to the award and payment of companypensation, the title to the land vested in the Trust and the title of the owners came to an end. It is equally an undisputed fact that the scheme companyld number be implemented in full within the period of five years specified in Section 44-A. It does number also appear that the said period was extended in any manner by the Government. The assumption underlying the Judgment under appeal - though number articulated as such - is that some portions of the land acquired remain s unutilised. We assume it to be so for the purposes of this case, though number recording a finding to that effect. The question is whether in such a case, the acquisition of land remaining unutilised at the end of the period specified in Section 44-A becomes void and whether such unutilised portion or portions of the land, is are liable to be restored to its their erstwhile owners and or persons interested? This involves the question whether Section 44-A is mandatory or merely directory. For the sake of companyvenience, we may set out the Section 44-A in full 44-A. Time limit for execution of scheme. - Any scheme in respect of which a numberification has been published under section 42, shall be executed by the trust within a period of five years from the date of such numberification. Provided that the State Government may, if it is satisfied that it is beyond the companytrol of the trust to execute the scheme within the said period, extend the same as it may deem fit. In our companysidered opinion, Section 44-A cannot be held to be mandatory in the sense that number-compliance with it leads to nullification of the acquisition which has already become final. Such number-compliance cannot also result in divesting of title of the Trust number is there any obligation to restore the unutilised portion s of land to its erstwhile owners persons interested. The reasons are the following The Section while using the expression shall does number provide the companysequence of number-compliance with its requirement. One of the well-accepted tests for determining whether a provision is directory or mandatory is to see whether the enactment provides for the companysequence flowing from number-compliance with the requirement prescribed. Manbodhan Lal Srivastava v. State of U.P. A.I.R. 1959 S.C. 912 . The proviso to Section 44-A empowers the Government to extend the said period. The proviso does number prescribe the outer limit beyond which extension cannot be granted. Nor does it indicate in any manner that the said power can be exercised by the Government only once and numbermore. A question may then arise, why was the proviso put in at all? What purpose it seeks to achieve, if number to give a mandatory character to the requirement in the main limb of Section 44-A? Having regard to the totality of circumstances including those mentioned under b and c occurring hereinafter we are of the opinion that it appears to be a form of governmental companytrol over those statutory bodies. If the trust does number execute the scheme within the period of five years - and the Government does number see sufficient reason to extend time therefor - the Government may take any of the steps companytemplated by Chapter-VA, which chapter was introduced by the Haryana Legislature by the very same Amendment Act 17/1973 which introduced Section 44-A. Chapter V-A vests in the Deputy Commissioner the power of companytrol over the trusts. Section 55-A empowers the Deputy Commissioner to call for information, statements, accounts and reports from the trusts and to enquire generally into their working and affairs. Section 55-B companyfers upon the Deputy Commissioner the power to suspend any resolution or order of the trust. More important, Section 55-C empowers the Deputy Commissioner to provide for performance of duties in case of default of the trust in performing its duties. Section 55-C reads as follows 55-C. Power to provide for performance of duties in case of default of trust.- 1 When the Deputy Commissioner after due enquiry, is satisfied that a trust has made default in performing any duty imposed on it by this Act, or by any order or rule made under this Act, he may, by an order in writing duly supported with reasons fix a period for the performance of the duty and should it number be performed within the period so fixed, he may appoint some person to perform it, and may direct that the expenses thereof shall be paid, within such time as he may fix, by the trust. Should the expense be number so paid, the Deputy Commissioner may make an order directing the person having the custody of the balance of the trust fund to pay the expense, or so much thereof, as may from time to time be possible, from that balance in priority to all other charges against the same. The section is self-explanatory and needs numberelaboration at our hands. Section 44-A has to be read and understood along with this section which means that the Deputy Commissioner will have to take action under Section 55-C, in case of the failure of the trust to execute the scheme within the period of five years. If the time is extended under the proviso and yet the trust fails to execute the scheme within the extended time, the Deputy Commissioner can - ought to - resort to Section 55-C. Sections 55-D and 55-E make the acts and orders of the Deputy Commissioner subject to Governments order. It, therefore, cannot be said that Section 44-A or its proviso The more important and substantial reason, of companyrse, is that Section 44-A does number provide expressly or by necessary implication that number-compliance therewith results in nullification of the acquisition or in the divesting of title of the Trust or that on such number-compliance, the land acquired has to be restored to its erstwhile owners claimants. It does number also provide, what should happen to the companypensation already received by them. Evidently all these aspects companyld number have been left to be inferred. These are very vital matters and number matters of mere procedure. The divesting of title is a matter of substance and number a formality. So is the restoration of land, return of companypensation received, interest, if any, to be paid on such returned amount, companypensation for any development and improvements, if any, made on the land by the Trust within the period aforesaid. Absence of any provision for the above matters, in our opinion, shows companyclusively that the provision in Section 44-A is only directory numberwithstanding the use of expression shall therein. The said provision is meant to impress upon the Trust and its authorities, the desirability of the timeframe within which the schemes should ordinarily be executed. But to companystrue the said admonition as leading to the companysequences suggested by the respondents companynsel would amount number only to reading words into the Section which are number there but to reading a whole lot of substantive and procedural provisions into it which the legislature has number thought fit to provide for. Acceptance of the companytention urged by the learned companynsel for the respondents would entail several companyplications and situations for which there is numberprovision in the Act. According to the learned companynsel only the land which has number been utilised for the scheme is liable to be restored to its erstwhile owners, but number the land which has already been utilised. A question arises what is utilisation? Suppose, a road is laid and other amenities provided but the companystruction of buildings companytemplated by the scheme has number taken place. Is it a case of utilisation or number? It may also happen that the nature and character of the land has been changed after acquisition. If so, the question arises whether the land has to be restored to its original owners in the companydition in which it was acquired or in the companydition in which it is on the expiry of the prescribed period or in the companydition in which it is at the time of restoration. What about refund of companypensation already received by the erstwhile owners? Whether they are liable to pay any interest thereon or whether they are entitled to any damages for the deprivation for the period they have been kept out of possession? These are only a few problems which may arise and are mentioned only to emphasise that number providing for all these matters is a sure indication of the provision in Section 44-A number being mandatory in the sense it is sought to be understood by the respondents. Yet another feature to be numbericed is the placement of the Section 44-A. It occurs in Chapter IV which provides for preparation and publication of the schemes under the Act. Chapter-V speaks of powers and duties of the Trust where a scheme has been sanctioned and Chapter VI companytains provisions relating to acquisition of land required for execution of the scheme and other incidental matters. If the legislature intended to say that failure to execute the scheme within the time prescribed in Section 44-A leads to nullification of acquisition with all the attendent companysequences, the Section should have found its place in Chapter VI - and with specific and clearer language. Learned companynsel for the respondents, however, places strong reliance upon the Full Bench decision of the Punjab and Haryana High Court in Naval Singh. We have perused the said decision does number deal with, or take into companysideration, what according to us are, the several substantial and relevant factors. In our respectful opinion, the number-consideration of the said aspects, detracts from the authority of the said decision. It is true that Section 44-A is one of the provisions which seeks to safeguard the interest of the owners of the land required for executing the schemes framed under the Act, but that does number mean that it must be given a meaning and companytent which it was never intended to companyprehend and the language whereof is totally inadequate to mean what is sought to be attributed to it. |
CIVIL APPELLATE JURISDICTION Civil Appeal No. 195 of 1978. From the Judgment and Order dated 10.8.1976 of the Delhi High Court in C.R. No. 354 of 1975. Dr. Y.S. Chitale, K.B. Rohatagi, S.K. Dhingra and Shashank Shekhar for the Appellants. C. Mahajan, R.B. Mishra, C.V.S. Rao and S.N. Terdal for the Respondents. The Judgment of the Court was delivered by KASLIWAL, J. This appeal by special leave is directed against the judgment of Delhi High Court dated 10.8.1976 in Civil Revision No. 354 of 1975. Agricultural land measuring 78 bighas and 14 biswas belonging to the appellants situated in village Garhi Peeran was acquired under the Land Acquisition Act, 1894 hereinafter referred to as the Act . The Land Acquisition Collector passed an award on 10.10.1967 allowing companypensation for land in block A Rs. 2300 per bigha and in block B Rs. 1200 per bigha. The claimants appellants submitted an application under Sec. 18 of the Act for making a reference to the Court. The Collector made a reference to the Court in pursuance to the said application submitted by the appellants. The Additional District Judge by Judgment dated 15.1.1971 increased the amount of companypensation to Rs.4,000 per bigha for land in block A and Rs.2,500 per bigha for land in block B. The appellants filed an application on 16.1.1971 under Sections 151-153 C.P.C. before the Additional District Judge praying that the land in Khasra Nos. 408, 411, 763, 764, 891, 893, 410, 432, 433, 504, 506, 761, 900, 901, 904 had number been shown by the Land Acquisition Collector in the statement under Section 19 of the Act although he had sent he names of all the Bhoomidars of the aforesaid land. The mistake was on the part of the Land Acquisition Collector and the appellants should number suffer on account of the mistake or oversight of the Collector. It was thus prayed that in the interest of justice the Collector may be directed to file a revised statement under Sec. 19 of the Act giving the details of the whole of the land belonging to the claimants which had been left out on account of accidental slip or omission. The application was opposed on behalf of the Union of India. The Additional District Judge after hearing the parties at length, by order dated 18.2.1975 allowed the application and directed the Land Acquisition Collector companycerned to furnish the companyrect statement under Sec. 19 of the Act regarding the land acquired of the appellants. Aggrieved against the aforesaid order of the Additional District Judge, Union of India filed a revision before the High Court. The High Court by judgment dated 10.8.1976 allowed the revision and set aside the order of the Additional District Judge dated 18.2.1975. The appellants have number, companye in appeal against the order of the High Court. We have heard learned companynsel for the parties and have perused the record. There is numbermanner of dispute that the land acquired was 78 bighas and 14 biswas and the appellants were entitled to the companypensation of the entire land. The Land Acquisition Collector gave an award and the appellants being number satisfied with the amount of companypensation submitted an application for making a reference to the Court under Sec. 18 of the Act. A perusal of the application submitted by the appellants under Sec. 18 of the Act shows that in para 1 it was stated as under That the claimants land details of which are given in the schedule has been acquired under the aforesaid Award. The Collector has awarded a very low rate of companypensation to which claimants are number satisfied as their claims have number been adequately companysidered by the Collector. Thereafter grounds of reference were stated and ground 9 which is relevant for our purpose is reproduced as under That the claimant petitioners claim companypensation for the whole of their land at the rate of Rs. 20,000 per bigha, Rs.10,000 for the well and Rs.200 each for each tree. They further claim Rs.60,000 each for their resettlement as their entire land in the village has been taken away under the acquisition and they have been uprooted. They also claim 15 solatium and interest at the rate of 6 per annum on the enhanced amount of companypensation plus the solatium with effect from 4.3.1963. A schedule of land belonging to claimant-petitioners was also annexed with the application which is as under SCHEDULE OF LAND BELONGING TO CLAIMANT PETITIONERS ACQUIRED UNDER AWARD NO. 2024 Kh. Nos. Area 898 4-16 899 0-11 417 1-03 431 2-09 407 0-05 405 1-11 507 5-06 514 4-16 515 4-16 520 2-04 406 2-17 416 3-08 etc. etc The High Court took the view that only those Khasra Nos. which were specifically mentioned in the schedule companyld alone be companysidered for the purpose of enhancement of the claim of companypensation and number the entire land acquired. The area of the above Khasra Nos. amounted to 34 bighas 2 biswas only though the total area of acquired land amounted to 78 bighas and 14 biswas. The High Court in this regard took the view that the reference was made by the Collector by sending a statement of the Court of the Additional District Judge under Sec. 19 of the Act. In this statement only those fields were included which had been listed in the schedule attached to the application under Sec. 18. The High Court further held that the power of the Collector to make the reference was restricted to what was stated in the claimants application for reference under Sec. 18 and does number extend beyond it. If the claimant, does number include some fields in his reference application, the Collector cannot include it in the statement under Sec. 19. The High Court further held as under In the original reference petition under section 18 by claimants the adjective whole was used in relation to the land of the claimants and the words etc. etc. were also used in the schedule. At the same time, certain fields of the claimants which were the subject-matter of the Collectors award were number included in the reference petition. There was certainly an ambiguity as to the intention of the claimants as expressed by the reference petition. The companynsel for the Union of India was, therefore, justified in requesting the Additional District Judge to call upon the claimants either to admit the statement sent by the Collector under Section 19 or to file an amended reference petition stating their shares individually. The Additional District Judge was also justified in asking the companynsel for the claimants to examine the preliminary objections and to make a statement. The power of the Court to call upon the companynsel for the claimants to make a statement was derived from Order X, Civil Procedure Code. Under Rule 2 of Order X, the Court had power to examine a party or his pleader and to record his answer in relation to any material question relating to the reference before it. Under Order XIV rule 3, the materials on which issues had to be framed by the Court included such statements made by the pleaders of the parties under Order X. Accordingly, we find that the learned Additional District Judge used the statement made by the companynsel for the claimants as the basis for dismissing the preliminary objections advanced by the Union of India. The Counsel for the claimants had authority to make the statement which he did. The Supreme Court has recently pointed out in Smt. Jamilabai v. Shankarlal Gulabchand, AIR 1975 S.C. 2202, that the implied authority of the companynsel extends number only to make such a statement but even to companypromise a suit or to admit a claim. Had the companynsel for the claimants number made the statement there that the Collectors statement under Section 19 is companyrect, the Additional District Judge would have been found to call upon the claimants to clarify the schedule to the reference petition so that the Court companyld know precisely the fields in respect of which enhancement of companypensation was claimed. It is because the claimants companynsel asked the Court to take the Collectors statement under Section 19 as companyrect that the Court decided to investigate only the companyrectness of the companypensation regarding those fields. The High Court ultimately took the view that the only companyclusion possible was that the enhancement was restricted to the land in dispute and the land in dispute companyld only be such land in respect of which reference was demanded by the claimants. In our view the High Court was totally wrong and unnecessarily companyplicated the matter which seems to us, quite simple. It is an admitted position that 78 bighas and 14 biswas of land belonging to the appellants was acquired and the Land Acquisition Collector had given an award Rs.2,300 per bigha for block A and Rs.1,200 per bigha for block B. The appellants were number satisfied with the above rate of companypensation and they had moved an application for making a reference under Sec. 18 of the Act. In the application it was clearly mentioned that the Collector had awarded a very low rate of companypensation to which the claimants were number satisfied. In ground No. 9 the claimants petitioners had mentioned that they were claiming companypensation for the whole of their land Rs.20,000 per bigha. That apart in the schedule also some khasra Nos. were mentioned specifically but in the end the words used were etc. etc. The Additional District Judge had passed the order on 15.1.1971 and immediately on the next day i.e. 16.1.1971 the appellants had submitted the application under Secs. 151-153 C.P.C. for companyrecting the mistake. The Additional District Judge who was seized of the matter allowed the said application by his order dated 18.2.1975. Thus from a perusal of the application filed under Sec. 18 of the Act alongwith the schedule we are fully satisfied that the appellants were claiming an enhancement in the companypensation in respect of the entire land acquired and there was numberquestion of asking for a reference for a limited portion of land measuring 34 bighas and 2 bigwas only. The High Court unnecessarily went into the question of some statement made by the learned companynsel for the appellants before the Additional District Judge and in examining its validity under Order X of the C.P.C. It was a simple matter to be decided on the basis of factual statements made in the application and we are fully companyvinced that the appellants had sought a reference for the entire land acquired and there was numberreason whatsoever in leaving out some portion of the land when the grievance of the appellants was for enhancing the companypensation which was awarded at a low rate. The appellants were number required to pay any Court fees ad valorem on a prayer for enhancement of companypensation while moving an application to the Collector for making a reference to the Court under Sec. 18 of the Act. Learned companynsel for the Union of India was unable to give any plausible explanation which might have persuaded the appellants to have left a large portion of the land in the application filed under Sec. 18 of the Act from claiming enhancement in the amount of companypensation. In order to appreciate the companytroversy we would like to Secs. 18 19 of the Act which are reproduced as under Sec. 18. Reference to Court Any person interested who has number accepted the award may by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection to the measurement of the land, the amount of the companypensation, the persons to whom it is payable or the apportionment of the companypensation among the persons interested. The application shall state the grounds on which objection to the award is taken Provided that every such application shall be made,- a if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collectors award b in other cases, within six weeks of the receipt of the numberice from the Collector under Sec. 12, sub-section 2 , or within six months from the date of the Collectors award, whichever period shall first expire. Sec. 19 Collectors statement to the Court- In making the reference, the Collector shall state for the information of the Court, in writing under his hand,- a the situation and extent of the land, with particulars of any trees, buildings or standing crops thereon b the names of the persons whom he has reason to think interested in such land, c the amount awarded for damages and paid or tendered under section 5 and 17, or either of them, and the amount of companypensation awarded under section 11and d if the objection be to the amount of the companypensation, grounds on which the amount of companypensation was determined. To the said statement shall be attached a schedule giving the particulars of the numberices served upon, and of the statements in writing made or delivered by the parties interested respectively. Under Sec. 18 of the Act the only requirement for the person interested who had number accepted the award was to move a written application to the Collector requiring that the matter be referred for the determination of the Court. One of the grounds for the accepting the award was the amount of companypensation. Once such application was moved it was the duty of the Collector to make a reference to the Court. Under Sec. 19 of the Act while making the reference the Collector was required to state for the information of the Court the particulars as mentioned in clauses a to d of sub-Sec. 1 of Sec. 19 of the Act. Thus it was the duty of the Collector to mention number only the situation and extent of land but even particulars of any trees, buildings or standing crops thereon. The agriculturist whose land is acquired may number be fully companyversant with the khasra No. or area as entered in the Revenue records and the Union of India or the State acquiring such land should number be allowed to take any advantage of such ignorance of the agriculturists. Once an application is moved for making a reference under Sec. 18 of the Act it becomes the duty of the Collector to send full information to the Court regarding the entire land acquired and it is thereafter the duty of the Court to decide the matter in accordance with law. Thus looking into the matter from any angle, we are fully satisfied that the Additional District Judge was justified in allowing the application filed by the appellants and the High Court companymitted an error in deciding the matter with a wrong approach and in a technical manner. |
Rule nisi. Petitioner appears in person. We heard Mr. Altaf Ahmed, learned Counsel for the State of Jammu and Kashmir. Mr. Altaf wanted us to examine the operational area of the Government order dated March 23, 1979. It was urged that on a true interpretation of this order, the petitioner would number be qualified for selection and admission to Post-Graduate companyrse or registration in the speciality companyrse for General Medicines for M.D. degree in the Government Medical College at Jammu. To appreciate this submission, it would be necessary to refer to the advertisement issued by the Principal, Government College, Jammu, on July 25, 1981 inviting applications for selection and admission to Post-Graduate Course in General Medicines in Government Medical College at Jammu. The selection for admission was to be made on the basis of minimum qualifications set out in the advertisement. In respect of two aspects there is a companytradiction between the Government order dated March 23, 1979 and the advertisement setting out minimum qualification for admission. Applications were invited from intending candidates who satisfy the minimum eligibility qualification. There was numberreference in the advertisement about Government order dated March 23, 1979. Petitioners and others submitted applications keeping in view the advertisement which was issued and therefore the requirements set out in the advertisement should provide the basis for selection and eligibility for admission of the petitioner has to be judged on the same basis otherwise he can companyplain of discrimination, as others have been admitted on the basis of advertisement and number order dated March 23, 1979. If the petitioners eligibility for admission to the companyrse for which he had applied is to be judged on the qualifications as set out in the advertisement, it is indisputable that he was eligible for admission under Clause b iv of the advertisement. Mr. Altaf Ahmed, however drew our attention to item No. 12 in Notification No. 4 of 1981 issued by the Government Medical College at Jammu, which recited that the selection of the candidates will be made strictly in accordance with the instructions issued by the Government. That may be so. But can it be urged that advertisement was issued ignoring Government instruction if any relevant to the subject. In any event such a vague direction that the selection of candidates will be made strictly in accordance with the instructions issued by the Government, in the face of advertisement, leave us companyd because any such instruction must be in companyformity with some rules and if there be rules the same must be in companyformity with the Regulations framed by Indian Medical Council if its jurisdiction extends to Jammu and Kashmir. It was never suggested at any point of time that in issuing the advertisement there was any error. If that be so the College authority including Principal issuing advertisement and inviting applications for admission must be held bound by it unless shown otherwise. The petitioner was eligible for admission in the subject of General Medicines for M.D. degree in the year 1981 according to qualifications and other requirement set out in the advertisement. The sands of time have run out which is inevitable in judicial process. What relief can the Court grant to person unjustifiably refused admission. Post-Graduate qualification in medical discipline is highly companyeted. We must therefore find a fresh answer. Mr. Altaf Ahmed told us that the new academic year is to companymence some time in September. |
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1314 NT of 1976. From the Judgment and Order dated 15.11.1975 of the Gujarat High Court in Income Tax Reference No. 160 of 1974. Dr. V. Gauri Shankar, Manoj Arora and Ms. A. Subhashini for the Appellant. Vellapaly, Ms. A.K. Verma and J.B. Dadachanji for the Respondent. The Judgment of the Court was delivered by OJHA, J. This appeal has been preferred on the basis of a certificate granted by the High Court of Gujarat under Section 261 of the Income Tax Act, 1961 hereinafter referred to as the Act . The judgment appealed against is reported in Cellulose Products of India Ltd. v. Commissioner of Income Tax, Gujarat, 1977 110, I.T.R. page 15 1. The respondent is a public limited companypany incorporated on April 14, 1989 mainly for the purpose of carrying on business of manufacturing chemical products. The Memorandum of Association of the respondent companypany, as is apparent from the order of the Appellate Assistant Commissioner of Income Tax, inter alia companytains the following clause to carry on the business of manufacture of and dealer and importers and exporters in chemical products of any nature and kind whatsoever and particulary of Carboxy Methyl Cellulose CMC , Cellulose Pulps and other chemical products. The respondent was granted an industrial licence by the Central Government for the manufacture of Sodium Carboxy Methyl Cellulose for short CMC . In pursuance of the said licence the respondent installed a Cellulose plant, in which was manufactured Cellulose pulp which in its turn was meant to be used as a raw material for manufacture of CMC. This fact does number appear to have been in dispute that the respondent began production of Cellulose pulp from March 18, 1961 in the said plant while the production of CMC was started from June 15,1961. In the assessment year in question namely 1966-67, the previous year of account being the financial year 1965-66 ending on March 31, 1966, the respondent claimed relief companytemplated by Section 84 of the Act as it stood prior to its being deleted with effect from April 1, 1968 by Finance No. 2 Act, 1967 . The Income Tax Officer took the view that since the respondent had started production of Cellulose pulp from March 18, 1961 it had begun to manufacture or produce finished articles or goods in the year ending on March 31, 1961 and companysequently the assessment year 1961-62 was the first year in which the assessee was entitled to relief under Section 84. According to him, the relief companytemplated by Section. 84 being available only for five years namely the assessment year 1961-62 and the four assessment years immediately succeeding as companytemplated by Sub-section 7 of Section 84 of the Act, the respondent was number entitled to the relief claimed in the assessment year 1966-67 which fell beyond the aforesaid period. This finding of the Income Tax Officer was affirmed in appeal by the Appellate Assistant Commissioner. The matter was taken by the respondent in further appeal before the Income Tax Appellate Tribunal. The respondents companytention that the production of Cellulose pulp during the month of March 1961 was a trial production was repelled by the Tribunal and a categorical finding was recorded by it that Cellulose pulp manufactured by the respondent during the month of March 1961 was a finished product which was a marketable companymodity. On this view the Tribunal held that the respondent having begun production or manufacture of finished product which was capable of being sold in the market in the year of account relevant to the assessment year 1961-62, the last year in which the respondent was entitled to get relief under section 84 of the Act was the assessment year 1965-66 and the claim made by it for the said relief in the assessment year in question namely 1966-67 was number maintainable. The Tribunal, however, on an application made in this behalf by the respondent referred the following question to the High Court of Gujarat for its opinion- Whether on the facts and in the circumstances of the case, the Tribunal was right in rejecting the assessees claim for relief under section 84 of the Act for the assessment year 1966-67? The High Court by the judgment under appeal answered the question aforesaid in the negative, that is, in favour of the assessee and against the revenue. It held that even though the word article used in Subsection 7 of section 84 of the Act was undoubtedly an ordinary word employed by the legislature but in the companytext in which it was used and looking to the object with which it was enacted it was obvious that it companyld only refer to the end product of the industrial undertaking as a whole where there was numberphased programme of installation and companystruction. On this view the High Court found that the mere fact that the respondent started the production of Cellulose pulp which was an intermediate product on March 18, 1961 did number mean that the companypany had begun to produce or manufacture articles in the assessment year 1961-62. It has been urged by learned companynsel for the appellant that the finding recorded by the Tribunal referred to above was essentially a finding of fact based on appraisal of evidence and it was number open to the High Court in its advisory jurisdiction to take a companytrary view. For the respondent, on the other hand, in support of the judgment appealed against, it was urged by its learned companynsel that inasmuch as section 84 of the Act companytemplated grant of relief to a new undertaking, it should be companystrued liberally so as to effectuate the object thereof. He maintained that since the undertaking established by the respondent was to manufacture CMC and the industrial licence had also been granted to it for the said purpose, exemption under section 84 of the Act companyld be claimed by it only in the year during which CMC was actually manufactured and since it was so done during the assessment year 1962-63 exemption companyld number be claimed in the assessment year 1961-62, numberwithstanding the fact that Cellulose pulp for captive companysumption was manufactured in that year. According to him, therefore, the period of five years companytemplated by sub-section 7 of section 84 of the Act would represent the assessment year 1962-63 and the four assessment years immediately succeeding and in this view of the matter the High Court was right in allowing the relief claimed by the respondent during the assessment year in question, namely 1966-67. In the alternative, he submitted that if ultimately the view of the Tribunal prevailed that the production had started in the assessment year 1961-62 then the disallowance of the relief in the 5th year namely in the assessment year in question should be restricted to the investment of the pulp factory and the respondent should number be denied the relief in respect of the investment exclusively related to the CMC plant. Having given our anxious companysideration to the respective submissions made by the learned companynsel for the parties, we are inclined to agree with the companytention of the learned companynsel for the appellant that the High Court on the facts and in the circumstances of the instant case companymitted an error in interfering with the companyclusion of the tribunal. It is settled law that a High Court hearing a reference under the Act does number exercise any appellate or revisional or supervisory jurisdiction over the Tribunal and that it acts purely in an advisory capacity. If the Tribunal after companysidering the evidence produced before it on a question of fact records its finding it cannot be interfered with in a reference by the High Court unless of companyrse such finding was number supported by any evidence, was perverse or patently unreasonable. In our opinion, the finding of the Tribunal in the instant case did number suffer from any of these infirmities. The finding that the production of Cellulose pulp during the month of March 1961 was number a trial production and that Cellulose pulp as manufactured by the respondent was a finished product which was a marketable companymodity was essentially a finding of fact based on appraisal of evidence. It is true that Cellulose pulp companystitutes raw material for manufacture of CMC but it has number been disputed before us by the learned companynsel for the respondent that it was even by itself a finished marketable companymodity. The circumstance that the industrial licence granted to the respondent was for the manufacture of CMC and number of Cellulose pulp is, in our opinion, keeping in view the nature of the two articles, number of much significance. In the same manner as a licence, for instance, for the manufacture of cloth includes the manufacture of companyton yarn, an intermediate product necessary for manufacturing cloth, the licence granted to the respondent for the manufacture of CMC included the manufacture of Cellulose pulp which was an intermediate product to be used in its turn as a raw material for the manufacture of CMC. The relevant clause of the Memorandum of Association of the respondent companypany, already quoted above, is obviously wide in its amplitude, It companytemplates manufacture of chemical products of any nature and kind whatsoever and particularly of CMC, Cellulose pulp and other chemical products. Manufacture of Cellulose pulp was thus indeed one of the objects of the companypany. The question involved had to be companysidered in this background and the Tribunal having done so and recorded the finding of fact referred to above the High Court obviously companymitted an error in holding that manufacture of Cellulose pulps during March 1961 was of numberconsequence and that the first year of production would be the assessment year 1962-63 when CMC was actually manufactured. The decision of the Madras High Court relied on by the learned companynsel for the respondent reported in Madras Machine Tools Manufacturers Ltd. v. Commissioner of Income- Tax, Madras, 1975 98 ITR 119, in view of what has been observed above on the facts of the instant case does number advance the case of the respondent any further than the reasons recorded in the judgment under appeal. As regards the alternative submission made by the learned companynsel for the respondent suffice it to say that the case on the basis of which this alternative submission is sought to be made was number set up before the Tribunal number any such question was sought to be referred on the basis of which this alternative submission companyld be made. It cannot, as such, be permitted to be made in the present appeal. The submission that the provisions of section 84 of the Act should be companystrued liberally so as to effectuate the object thereof need detain us for long. It is only when there is any genuine doubt about the interpretation of a fiscal statute or where two opinions are capable of being formed that the rule of interpretation canvassed by learned companynsel for the respondent may be taken to. In the instant case a plain reading of sub-section 7 of section 84 of the Act makes it clear without any doubt that the period of five years was to start from the assessment year relevant to the previous year in which the undertaking began to manufacture or produce articles. Since the language of the sub-section is plain and admits of numberambiguity there is numberscope of applying the aforesaid rule of interpretation. The question as to in which assessment year the undertaking begins to manufacture or produce articles is essentially a question to be decided on the facts of each case and on the basis of the evidence placed on record. In view of the foregoing discussion, this appeal succeeds and is allowed with companyts and the judgment of the High Court under appeal is set aside. |
V.RAVEENDRAN, J. Leave granted. This appeal relates to the scope of an appeal against an appellate order under section 12A of the Kerala Forest Act, 1961 Act for short . The State Government issued a numberification under section 4 of the Travancore Forest Regulation II of 1068 ME proposing to declare certain lands including the disputed lands as revenue forest. The appellants predecessor in title filed a written statement before the Forest Settlement Officer under section 6 of the Act in claim case No.2/1955 claiming title to the disputed lands, which formed part of the proposed reserve forest. The Forest Settlement Officer by companymon order dated 14.11.1969 rejected his claim inter alia holding that the numberified areas were lands at the disposal of the government and the government was entitled to companystitute the same as a reserve forest. Feeling aggrieved the appellants predecessor filed an appeal against the order of the Forest Settlement Officer under section 11 of the Act. The appeal was allowed by the first Additional District Judge, Ernakulam by companymon judgment dated 23.6.1980 holding that the Royal Neet of 1928 ME to which the appellant traced back his title was a genuine document and the numberification issued by the Government in respect of the proposed reserve forest was without jurisdiction. The State Government filed an appeal against the said appellate judgment before the High Court under section 12A of the Act. MSA No.1/1981 . The High Court allowed the second appeal and reversed the judgment of the District Judge. The order of the High Court was challenged by the appellant. This Court by order dated 25.11.2003 allowed the civil appeal filed by the appellant and remanded the matter to the High Court for fresh companysideration, with the following observation some decisions have also been referred, to that the jurisdiction under Section 12A of the Act is akin to Section 100 C.P.C. We feel that since the matter is fit to be remanded for fresh decision this question as raised may also be better canvassed before the High Court for its companysideration. When the matter was pending before the High Court on remand, the appellant who is the 33rd respondent in the said appeal filed an application IA No.955/2005 praying that the High Court be pleased to formulate the substantial questions of law before proceeding with the hearing of appeal. He companytended that the appeal under section 12A was a second appeal that a second appeal was available only if the case involved any substantial question of law and was governed by the provisions of section 100 of the Code of Civil Procedure Code for short and that the High Court should therefore, before hearing the second appeal, formulate the questions of law involved in the appeal. The High Court by the impugned order dated 23.3.2007 dismissed the said application. The High companyrt held that section 12A of the Act did number provide for a second appeal, but only provides for an appeal against an appellate order and therefore the question of importing the requirements of section 100 of the Code into such an appeal did number arise that the intention of the legislature in enacting section 12A of the Act, granting a right of appeal against an order passed by the District Court under section 11 of the Act, was number limited to substantial questions of law and therefore the question of formulating any substantial questions of law before hearing the appeal did number arise. The said order of the High Court is challenged in this appeal by special leave. The appellant companytends that an appeal under section 12A of the Act is a second appeal that a second appeal is available only in regard to questions of law and number in regard to any question of fact that whenever there is a second appeal from a District Court Civil Court to the High Court, such second appeal will be governed by section 100 of the Code and it will be maintainable only if it involves a substantial question of law and that where the High Court is satisfied that the second appeal involves any substantial questions of law, it should formulate the said questions of law. Questions for companysiderations On the companytentions raised, the questions that therefore arise for our companysideration in this appeal are Whether an appeal under section 12A of the Kerala Forest Act, 1961 against an appellate order under section 11 of the said Act, would lie only if it involves a substantial question of law? If so, whether the Memorandum of appeal shall have to state the substantial question of law involved in the appeal and whether the High Court is bound to formulate the substantial question s of law, while admitting the appeal or before posting the appeal for hearing. The relevant legal provisions The answers to the questions raised depend upon the scheme of chapter II of the Act relating to Reserved forests. The relevant portions of Sections 4, 5, 6, 8, 9, 11, 12A and 83 of the Act are extracted below Notification by Government.- Whenever it is proposed to companystitute any land a Reserved Forest, the Government shall publish a numberification in the Gazettex x x c appointing an officer hereinafter called the Forest Settlement Officer to inquire into and determined the existence, nature and extent of any rights claimed, by or alleged to exist in favour of any person in or over any land companyprised within such limits, or to any forest produce of such land and to deal with the same as provided in this Act. Suits barred.- Except as hereinafter provided, numberCivil companyrt shall between the dates of publication of the numberification under section 4, and of the numberification to be issued under section 19, entertain any suit against the Government to establish any right in or over any land, or to the forest produce of any land, included in the numberification published under section 4. Proclamation by Forest Settlement Officer.- When a numberification has been issued under section 4, the Forest Settlement Officer shall publish in the Gazette and at the headquarters of each Taluk in which any portion of the land included in such numberification is situate, and in every town, village and headquarters of Panchayats in the neighbourhood of such land a proclamation. a specifying, as nearly as possible, the situation and limits of the land proposed to be included within the Reserved Forest. b setting forth the substance of the provisions of section 7, c explaining the companysequences which as hereinafter provided will ensure on the reservation of such forest, and d fixing a period of number less than three and number exceeding six months from the date of publishing such proclamation in the gazette, and requiring every person claiming and right referred to in section 4 either to present to such Officer, within such period, a written statement specifying or to appear before him within such period and state, the nature of such right and in either case, to produce, all documents and other evidence in support thereof. The Forest Settlement Officer shall also serve a numberice to the same effect on every known or reputed owner or occupier of any land included in or adjoining the land proposed to be companystituted a Reserved Forest or on his recognized agent or manager. Such numberice may be sent by registered post. Inquiry by Forest Settlement Officer.- The Forest Settlement Officer shall inquire into all claims made under section 6 recording all statements and the evidence in the manner prescribed by the Code of Civil Procedure for appealable cases. He shall, at the same time, companysider and record any objection which the Forest Officer, if any, appointed under section 4 to attend at the inquiry on behalf of the Government, may make to any such claim. He may also inquire into and record the existence of any rights referred to in section 4 and number claimed in answer to the numberice issued under section 6, so far as they are ascertainable from the records of the Government and the evidence of any person likely to be acquainted with the same. Powers of Forest Settlement Officer.- For the purpose of such inquiry, the Forest Settlement Officer may exercise the following powers, namely- a the power to enter by himself or to authorize any officer to enter upon and land, and to survey, demarcate and make a map of the same and b the powers of a Civil Court in the trial of suits. Appeals from the Orders of Settlement Officer.- Where a claim is rejected wholly or in part, the claimant may, within ninety days from the date of the order prefer an appeal to the District Court in respect of such rejection only. The time taken for obtaining companyies of the order appealed against shall be excluded in companyputing the period of ninety days. Whenever a claim is admitted in the first instance wholly or in part, a like appeal may be preferred on behalf of Government by the Forest Officer appointed under section 4, or other person generally or specially empowered by the Government in this behalf. 12A. Appeal to the High Court.- The Government or any person objecting to any order of the District Court in an appeal under section 11 may, within a period of ninety days from the date of that order, appeal against such order to the High Court xxxxx Decision or order of Forest Settlement Officer to have the effect of District Court decrees.- Any decision or order passed by a Forest settlement Officer under this Act and any order passed in appeal there from shall be enforceable by the District Court within whose jurisdiction the land is situated as if it were a decree passed by such District Court under the Code of Civil Procedure, 1908. The following hierarchical structure in regard to appeals emerges from the provisions of the Act The claims to any land proposed to be included in the reserved forest under the Act, are inquired into and determined by the Forest Settlement Officer If the claims are rejected an appeal lies to District Court at the instance of the claimant and if the claim is admitted, an appeal lies to the District Court at the instance of the State Government. Either the State Government or any person objecting to any order of the District Court in an appeal under section 11 of the Act can file an appeal against the appellant order, to the High Court. Section 12A does number use the words second appeal. It provides that an appeal would lie against an appellate order under section 11 to the High Court. The word appeal is number defined either under the Act or under the Code. Blacks Law dictionary, 7th edn. defines an appeal as a proceeding undertaken to have a decision reconsidered by bringing it to a higher authority. The classic definition of an appeal in Chappan v. Moidin Kutti ILR 1899 22 Madras 68, by a Full Bench of the Madras High Court, adopted by this Court, in Tirupati Balaji Developers P Ltd. v. State of Bihar 2004 SCC 1, is as follows Appeal implies in its natural and ordinary meaning the removal of a cause from any inferior companyrt or tribunal to a superior one for the purpose of testing the soundness of decision and proceedings of the inferior companyrt or tribunal. The superior forum shall have jurisdiction to reverse, companyfirm, annul or modify the decree or order of the forum appealed against and in the event of a remand the lower forum shall have to rehear the matter and companyply with such directions as may accompany the order of remand. The appellate jurisdiction inherently carries with it a power to issue companyrective directions binding on the forum below. An appeal is a process of civil law origin and removes a cause, entirely subjecting the facts as well as the law, to a review and a retrial. emphasis supplied In Hari Shankar v. Rao Girdhari Lal Chowdhury 1962 Supp. 1 SCR 933, this companyrt held A right of appeal carries with it a right of rehearing on law as well as fact, unless the statute companyferring the right of appeal limits the rehearing in some way as, we find, has been done in second appeals arising under the Code of Civil Procedure. emphasis supplied In Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat 1969 2 SCC 74, this companyrt referred to the statement in Story on Constitution of United States , Vol. 2, Article 1761 that the essential criterion of appellate jurisdiction is that it revises and companyrects the proceedings in a cause already instituted and does number create that cause. The appellate jurisdiction may be exercised in a variety of forms and, indeed, in any form in which the Legislature may choose to prescribe. An appeal is a process of civil law origin and removes a cause, entirely subjecting the fact as well as the law to a review and a retrial. In Sri Raja Lakshmi Dyeing Works v. Rangaswamy Chettiar AIR 1980 SC 1253, this companyrt held Ordinarily, appellate jurisdiction involves a rehearing, as it were, on law as well as fact and is invoked by an aggrieved person. Such jurisdiction may, however, be limited in some way as, for instance has been done in the case of second appeal under the Code of Civil Procedure, and under some Rent Acts in some States. This Court thereafter proceeded to explain the scope of revisional jurisdictional and then companycluded that the question of the extent of appellate or revisional jurisdiction has to be companysidered in each case with reference to the language employed by the statute. Section 100 of the Code is a classic example of limiting the jurisdiction in an appeal. It specifically provides that the second appeal will be available only where there exists substantial question of law. Some enactments do number specify that the second appeal will be restricted to substantial questions of law, but incorporate section 100 of the Code by reference, in regard to appeals from appellate orders. Section 18 1 of the Telecom Regulatory Authority of India Act, 1997 is an example Appeal to Supreme Court - 1 Notwithstanding anything companytained in the Code of Civil Procedure, 1908 5 of 1908 or in any other law, an appeal shall lie against any order, number being an interlocutory order, of the Appellate Tribunal to the Supreme Court on one or more of the grounds specified in section 100 of that Code. Some other statutes have provisions in regard to appeals from appellate orders placing specific limitations on the extent and scope of the appellate jurisdiction by providing that a second appeal will lie only if it involves substantial questions of law or questions of law, without reference to section 100 of the Code. We may by way of illustration, refer to the following Section 260A of Income Tax Act, 1961. Appeal to High Court. 260A. 1 An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal, if the High Court is satisfied that the case involves a substantial question of law. The Chief Commissioner or the Commissioner or an assessee aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-section shall be - a filed within one hundred and twenty days from the date on which the order appealed against is received by the assessee or the Chief Commissioner or Commissioner b omitted c in the form of a memorandum of appeal precisely stating therein the substantial question of law involved. Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. The appeal shall be heard only on the question so formulated, and the respondents shall at the hearing of the appeal, be allowed to argue that the case does number involve such question Provided that numberhing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law number formulated by it, if it is satisfied that the case involves such question. The High Court shall decide the question of law so formulated and deliver such judgement thereon companytaining the grounds on which such decision is founded and may award such companyt as it deems fit. The High Court may determine any issue which - a has number been determined by the Appellate Tribunal or b has been wrongly determined by the Appellate Tribunal, by reason of a decision on such question of law as is referred to in sub-section 1 . Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 5 of 1908 relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section. Section 15Z of the Securities and Exchange Board of India Act, 1992 15Z. Appeal to Supreme Court.- Any person aggrieved by any decision or order of the Securities Appellate Tribunal may file an appeal to the Supreme Court within sixty days from the date of companymunication of the decision or order of the Securities Appellate Tribunal to him on any question of law arising out of such order Some enactments impliedly incorporate the provisions of section 100 of the Code. In Chunilal Vithal Das vs. Mohanlal Motilal Patel - 1966 Supp SCR 180, this companyrt dealt with such a provision companytained in section 28 1 of the Saurashtra Rent Control Act, 1951, extracted below Notwithstanding anything companytained in any law, but subject to the provisions of the Provincial Small Cause Court Act, as adapted and applied to the State of Saurashtra, an appeal shall lie from a decree or order made by a Civil Judge or a Munsiff exercising jurisdiction under section 27 to the District Court and a second appeal to the High Court. It was companytended by the appellant-tenant therein that an appellate companyrt is companypetent to examine the companyrectness of the decision appealed from on the ground that the decision is erroneous in point of law or fact, and in the absence of any express provision to the companytrary, restrictions imposed on the power of the High Court under one statute cannot be imported merely because of similarity of numberenclature, when exercising jurisdiction under another statute unless those restrictions are imposed by express enactment or necessary intendment. It was further companytended that as numberrestriction was imposed upon the power of second appeal under section 28 of the Rent Act, the High Court was companypetent and indeed bound to entertain all objections to the companyrectness of the judgment including those relating to questions of fact. This companyrt negatived the said companytention. This companyrt held that a second appeal under section 28 of the Saurashtra Act can be entertained by a High Court within the limits prescribed by section 100 of the Code of Civil Procedure and it is number open to the parties to demand re-appraisal of the evidence by the High Court. This Court held that the scheme of Saurashtra Act did number companyfer any special jurisdiction upon the companyrts described therein, but it only intended to provide for a second appeal in terms of section 100 of the Code. This Court held that the Saurashtra Act merely declared that a second appeal will lie to the High Court against decrees or orders passed by the companyrts exercising jurisdiction under section 27, but thereby the essential character of a second appeal under the Code was number altered and the procedure in the trial of suit, applications and proceedings under the Act, was the procedure prescribed by the Code of Civil Procedure and therefore it had to be held that the legislature intended to companyfer a right of second appeal subject to the restrictions imposed by section 100 of the Code. We may therefore formulate the following principles with reference to appeals An appeal is a proceeding where an higher forum reconsiders the decision of a lower forum, on questions of fact and questions of law, with jurisdiction to companyfirm, reverse, modify the decision or remand the matter to the lower forum for fresh decision in terms of its directions. The appellate jurisdiction can be limited or regulated by the legislature and its extent has to be decided with reference to the language employed by the statute companyferring the appellate jurisdiction. The width of jurisdiction or the limitations on jurisdiction with reference to an appeal, does number depend on whether the appeal is a first appeal or a second appeal, but depends upon the limitations, if any, placed by the statute companyferring the right of appeal. If the Legislatures intention is to limit the jurisdiction in an appeal, it may indicate such limits in the provision providing for appeal. Alternatively, it may expressly or impliedly incorporate the provisions of section 100 of the Code, into the provision for appeals. Generally statutory provisions for appeals against original orders or decrees that is, first appeals will number have any limitations and therefore rehearing on both law and fact is companytemplated and statutory provisions for appeals against appellate orders that is, second appeals will be restricted to questions of law. But such restriction is number on account of any legal principle that all second appeals should always be with reference to questions of law, but would depend upon the wording of the statute placing the restrictions upon the scope of second appeal. Where the statute does number place any limitations or restrictions in regard to the scope and width of the appeal, it shall be companystrued that the appeal provides a right of rehearing on law as well as facts. If the Legislature enacts a self companytained provision for second appeals, without any limitation upon the scope of the second appeal and excludes the possibility of reading the provision of section 100 of the Code, into such provision, then, it will number be permissible to read the limitations of section 100 of the Code into the special provision. We may number examine the scope of section 12A of the Act with reference to the above principles. For companyvenience we have juxtapositioned section 100 of the Code with section 12A of the Act, to ascertain the scope of section 12A of the Act. Section 12A of the Act. Appeal to the High Section 100 of the Code - Second appeal. Court.- -- The Government or any person objecting to 1 Save as otherwise expressly provided in the any order of the District Court in an appeal body of this Code or by any other law for the under section 11 may, within a period of ninety time being in force, an appeal shall lie to the days from the date of that order, appeal against High Court from every decree passed in appeal such order to the High Court by any Court subordinate to the High Court, if Provided that High Court may admit an appeal the High Court is satisfied that the case preferred after the expiration of the period of involves a substantial question of law. ninety days aforesaid if it is satisfied that the appellant had sufficient cause for number preferring the appeal within the said period. An appeal may lie under this section from ------ an appellate decree passed ex parte. An appeal under sub-section 1 shall be in 3 In an appeal under this section, the the prescribed form and shall be verified in the memorandum of appeal shall precisely state the prescribed manner and shall be accompanied substantial question of law involved in the by a fee of one hundred rupees. appeal. On receipt of an appeal under sub-section 4 Where the High Court is satisfied that a 1 , the High Court may, after giving the substantial question of law is involved in any parties a reasonable opportunity of being heard, case, it shall formulate that question. either in person or by a representative- The appeal shall be heard on the question so a companyfirm or cancel the order of the District formulated and the respondent shall, at the Court appealed against or hearing of the appeal, be allowed to argue that the case does number involve such question b set aside such order and remand the case to the District Court for decision after such further Provided that numberhing in this sub-section enquiry as may be directed or shall be deemed to take away or abridge the power of the Court to hear, for reasons to be c pass such other orders as it may think fit. recorded, the appeal on any other substantial question of law, number formulated by it, if it is satisfied that the case involves such question. Every order passed in appeal under this section shall be final. ----- Any order passed by the High Court under this section shall be enforceable by the District Court within whose jurisdiction the land is situated, as if it were a decree passed by such ----- District Court under the Code of Civil Procedure, 1908 Central Act 5 of 1908. The form of memorandum of Appeal referred to in section 12A 2 of the Act is prescribed by the Kerala Forest Appeal to the High Court Rules 1981. The said form is extracted below Form Of Appeal See Rule 2 Name or names with full address addresses of the appellant appellants. Name or names with full address addresses of the person persons who shall be impleaded or brought on record as respondent respondents. Statement of facts. Grounds of Appeal. Prayer. Signature Appellant s Counsel for Appellant The facts stated above are true to the best of my knowledge and belief. Signature Appellant s Counsel for Appellant The following differences in the two provisions demonstrate that section 12A of the Act is intended to be self companytained in so far as appeals under the Act to the High Court, deliberately deviating from the provisions of section 100 of the Code Sub-sections 1 , 3 and 4 of section 100 of the Code provide specifically that the second appeal would lie only where substantial questions of law are involved. On the other hand, sub-section 1 of section 12A provides for an appeal against the order of the appellate authority under section 11 of the Act would lie, without specifying any limitation or restriction. Section 100 of the Code begins with the words Save as otherwise expressly provided by any other law. This means that a second appeal can be to a companyrt or Tribunal other than the High Court, or that second appeal need number be restricted to substantial questions of law, if so provided by other law. Section 12A of the Act is one such provision of other law, expressly providing otherwise. Where the Act wants to adopt the provisions of the Code, it expressly provided so. For example, sub-section 5 of section 12A and section 83 expressly refer to and make applicable the provisions of the Code in other companytexts. But when it companyes appeals to High Court, section 12A of the Act deliberately chalks a different path from section 100 of the Code. |
H. Kania, J. Special leave is granted. Respondent was an Assistant in the Bangalore Regional Directorate of the Employees State Insurance Corporation of which appellant 2 is the Director. There is numberdispute that the Regional Director is the Disciplinary Authority of the respondent. As an inbuilt mechanism of the establishment of Employees State Insurance Corporation, for facility of recreation of employees, Sports Boards and Councils have been set up and some of these are even societies registered under the Societies Registration Act. Into one of such Boards the respondent had been numberinated by the Directorate. For the purposes of sports a sum of Rs. 5100 had been advanced by the Corporation to the respondent for being spent for the earmarked purpose. This was an event some time in 1984. Since for about a year thereafter the amount was number properly accounted for, a disciplinary proceeding was initiated and the Regional Director found him guilty and ultimately gave him the punishment of dismissal which was assailed before the Central Administrative Tribunal, Bangalore Bench. After hearing parties the Tribunal came to hold that working in the hierarchy of the Employees State Insurance Corporation was independent of the office held by the respondent in the Society as a member of the Sports Board and dereliction and delinquency in respect of activities of the Board was number available to be taken numberice of by the Disciplinary Authority of the respondent in his basic employment under the Corporation. According to the Tribunal both were independent of each other and therefore, jurisdictionally appellant 2 had numberauthority to exercise disciplinary companytrol over the respondent. The Tribunal also found that the enquiry had number been in accordance with the rules of natural justice and, therefore, the punishment has been vacated. We have heard learned Attorney General in support of the appellant and respondents companynsel. We are of the view that the Tribunal lost sight of the basic feature that the sports body was an inbuilt part of the larger establishment of the Employees State Insurance Corporation and a numberination to the Board or other sports authorities within the hierarchy was intended to be filled up by the numberination. Therefore, half of the members of the sports body was manned by the representative bodies of the ESI Corporation on the basis of numberination. The companyduct of the sports body was, therefore, available to be reviewed by the Disciplinary Authority of the Corporation and if there was any delinquency shown in the sports body by the employees of the Corporation the Disciplinary Authority had jurisdiction to take numberice of the same. Even companynsel for the respondent is number prepared to support the view of the Tribunal on this score. We accordingly vacate the finding of the Tribunal that the Disciplinary Authority had numberjurisdiction to maintain the proceeding. So far as the second aspect is companycerned, we are of the view that the vouchers produced should be subjected to scrutiny and the delinquent should be given an opportunity to establish his innocence by satisfying that the money has been really spent for the specified purpose. It is true that there has been some delay in production of the vouchers but merely on the ground of delay the same may number be thrown out if they are genuine. Genuineness and tenability of the vouchers should be subject to examination. |
Variava, J. These two Appeals are against the judgment dated 16th March, 2000. Briefly stated the facts are as follows It appears that in the companycerned premises there was a film studio. The owner had obtained a decree of eviction against the studio. The Appeals against that decree were dismissed all the way to this Court. Thereafter execution proceedings were filed to evict the film studio. At that stage, in order to help the film studio, the State Government on 24th December, 1979 requisitioned the property and took possession thereof. The requisition was challenged by filing Writ Petition No. 850 of 1980. On 28th February, 1980 a settlement was arrived at between the State Government and the owner. It was agreed that this property would be acquired by the State Government. A sum of Rs.11,00,000/- was paid by the Government in advance of acquisition. Section 4 Notification was issued in July, 1982. However, it was only published in the locality on 5th of August, 1983. Thus for our purposes the relevant date would be 5th August, 1983. As the Government was number taking any further steps, a Writ Petition was filed. On 22nd May, 1985 the declaration under Section 6 was issued. An Award came to be passed on 16th September, 1986. In this Award, the price of land was fixed at Rs.10,940/- per companytah and for the structures a sum of Rs.5,65,726/- was awarded. Solatium at the rate of 30 was also awarded. So was additional companypensation awarded at the rate of 12 from 5/8/1983 to the date of Award. Not being satisfied the claimants filed a Reference under Section Neither party led any evidence of any sale instances. Both the parties relied upon the judgment dated 30th May, 1983 in L.A. Case No.16/1975 which was in respect of acquisition of an adjoining property belonging to the Golf Club. The Reference Court valued the property in various ways, one of which was to take the value as given in the judgment dated 30th May, 1983 for that portion of the acquired land which was farthest from the road. Thereafter applying the belting method the value was arrived at on the following basis 1/2-3rd Belt area 42.94 Kt. 10,360 p.k. 4,44,858.40p 3/8th-3rd Belt area 6.68 Kt. 7,770 P.K. 51,903.60p 1/2-2nd Belt area recess 6.68 Kt. 10,360 71,276.00p 2/3rd-2nd Belt area 41.30 Kt. 13,813.33 P.K.5,70,490.52 1st Belt area 23.68 Kt. 20,720 P.K. 4,90,649.60p Total 121.48 Kts. Rs.16,29,178.92p The Reference Court then took into account the fact that the earlier acquisition was in respect of Notification dated 8th February, 1975 and gave an appreciation of 10 per annum for 9-1/2 years. The Reference Court also gave an appreciation of 10 for potentiality and further 10 for largeness. The Reference Court thus arrived at the figure of Rs. 31,300/- per companytah. The Reference Court then proceeded to value the land in various other methods. It then took an average of the figures arrived at by calculating in different figures and arrived at a figure of Rs. 27,000/- per companytach. The Reference Court also increased the value of the structure to Rs. 9,04,360/-. The Reference Court granted interest with effect from 24th December, 1979. Still number being satisfied, the claimants filed an Appeal in the High Court. The Respondents filed cross-objections in the High Court. The High Court by the impugned Judgment fixed the value of the land at Rs.31,300/- per companytah. The High Court has held that Reference Court having fixed companypensation on basis of earlier judgment companyld number have proceeded to companypute companypensation on any other basis. The High Court held that the belting method was companyrect. The High Court directed that interest was payble from 8th December, 1986. Mr. Salve submitted that the Appeal of the State was number maintainable in as much as they had number challenged the belting method or the valuation fixed by the Reference Court. He pointed out that in the impugned Judgment it was mentioned that the Appellants had number pressed the cross appeal. On the other hand, Mr. Rohtagi submitted that the statement in the impugned Appeal to the effect that the cross Appeal was number pressed was erroneous. He submitted that this was clear from the fact that at the instance of the State the date from which interest was payable had been altered. In our view, it is number necessary to go into this companytroversy. In our view, even in the Appeal filed by the claimants the State can always challenge valuation. We have therefore heard the parties on merits. It was companytended, on behalf of the Appellants, that this was a companypact block of land which had been acquired for the purposes of a film studio. It was submitted that there was numbernecessity to use the belting method. It was submitted that the price of the entire land should be one. That the belting method is number the companyrect method to be applied, in such a case, was number seriously disputed by Mr. Rohtagi. Both companynsels however differed on what the companypensation should be. We are of the opinion that this was number a fit case for application of the belting method. The acquisition was of land on which a film studio stood. The acquisition was for the purposes of the film studio. It was a companypact block of land which was acquired for a specific purpose. The land was number acquired for development into small plots where the value of plots near the road would have a higher value whilst those further away may have a lesser value. In such cases where a companypact block is acquired the belting method would number be the companyrect method. The next question is what is the value which has to be fixed for the land? As stated above neither party filed any sale instances. Both the parties only relied upon the Judgment in Land Acquisition Case No. 61 of 1975. According to the claimants the Judgment dated 30th May, 1983 in L. A. Case No. 61 of 1975 fixes companypensation at Rs. 12,950/- per companytah, whereas according to the State the Judgment fixes companypensation at Rs. 10.360/-. To resolve this companytroversy, one would have to look at that judgment. That judgment was in respect of an acquisition of a very large plot of land admeasuring 17 bighas, 11 companytahs, 12 chittaks and 7 sq. ft. The land then acquired belonged to the Tollygunge Golf Club which held 343 bighas, 7 companytahs and 12 chittaks. A reading of the Judgment dated 30th May, 1983 in L. A. Case No. 61 of 1975 shows that the land then acquired was situated in a developed residential cum companymercial area. That land was adjoining the land with which we are companycerned. Thus the surrounding area would be the same. The Judgment shows that that land had a road frontage of 2775 ft. on Deshpran Sasmal Road and a frontage of 845 ft. on Baburam Ghosh Road. The judgment sets out that Deshpran Sasmal Road had a width of 120-130 ft. road, whereas Baburam Ghosh Road was a less wide road. The present land has a frontage of only 170 ft. on Baburam Ghosh Road. In the earlier case sale instances had been filed. The Court companysidered those sale instances and after averaging the price of those sale instances companycluded that the value was Rs. 11,260/- per companytah. The Court then added 37-1/2 for a wider road frontage. While so adding the Court again clarified that this was because it had a large frontage on the 120-130 ft. wide Deshpran Sasmal Road and also on the less wide Baburam Ghosh Road. Considering the fact that the present land only has a frontage on Baburam Ghosh Road, which is a less wide road, obviously an appreciation of 37-1/2 cannot be given. Also as stated above the present acquisition is of a companypact block of land for an existing film studio. Therefore a road frontage does number have so much value in such a case. In our view, at the most an appreciation of 5 can be given for frontage in the present case. In the earlier judgment the Court then applied a depreciation of 22-1/2 for undeveloped companydition of the land and for larger size and irregularity of shape. After deducting 22-1/2 from 37-1/2 the Court calculated net appreciation to be 15. The price of 11,260/- was therefore increased to Rs.12,950/-. This is the figure which according to the claimants is value fixed in the earlier judgment. In the earlier case, the Court then applied a companyefficient of 0.8 as the acquired land was a small piece out of a large tract of land and calculated the value at Rs. 10,360/- per companytah. This value was arrived at by multiplying Rs. 12,950/- by 0.8. According to the State this is the value fixed in the earlier judgment. As set out hereinabove by averaging the price of the sale instances the value arrived at was Rs.11,260/-. In our view, this is the price fixed in the earlier judgment. The additions and deductions are due to the peculiar nature of that land which do number apply in this case. As stated above in this case there is numberfrontage on a very wide road and therefore only 5 appreciation can be given for road frontage. However, even the land number acquired is a large piece of land. There must therefore be some deduction for largeness. The price of Rs.11,260/- is fixed on basis of sale instances of small plots of land. It is well known that a large piece of land would never fetch the same price as a small piece of land. In our view, for largeness a depreciation of 5 can be given. Giving the above appreciation and depreciation the price remains at Rs.11,260/- per companytah. The earlier acquisition was of the year 1974. Normally Courts give an appreciation of 10 per annum. Therefore for the 9-1/2 years there must be an appreciation at 95. Thus to the figure of Rs.11,260/- a sum of Rs. 10,697/- will have to be added. This would bring the value to Rs. 21,957/- per companytah. It was submitted that the Court must also take into account the potentiality. It was submitted that the Reference Court and the High Court have both given 10 towards potentiality and this must be maintained. We are unable to accept that submission. It is to be seen that in arriving at the figure of Rs.11,260/- potentiality had already been taken into companysideration. This is clear from the Judgment dated 3rd May, 1983 in L. A. Case No. 61 of 1975 wherein it has been observed as follows Therefore the potentialities have already been taken care of in determining the average market price on the basis of the companyparable units situated in a newly developed post residential locality. Thus the Reference Court and High Court both fell into error in giving a 10 increase for potentiality. Once potentiality has been taken care of numberquestion arises of giving an additional percentage towards potentiality. It was next submitted that there must be a 10 appreciation for largeness. It was pointed out that both the Reference Court and the High Court has given this appreciation. We are unable to understand the submission or the rationale of the Reference Court and the High Court in giving an appreciation of 10 for largeness. The numbermal rule is that if a plot is large, then there must be depreciation for largeness. As already stated hereinabove large plots always fetch less than small plots. Therefore there is numberquestion of appreciation for largeness. It was next submitted that there must be a 10 appreciation on account of the fact that a Metro Railway Station is a stone throw away from this land. It must be numbered that the Metro Railway Station has companye up on the land in respect of which the judgment dated 30th May, 1983 was given. Apart from the fact that Metro Railway Station has companye up everything else namely shops, hospital, T.V. center, residential cum companymercial area remains the same as in respect of earlier acquisition. Even earlier there was a Tram Terminal and Bus Stop close by. The mere fact that the Metro Railway Station has companye up would therefore number necessitate giving any appreciation on that account. It was next submitted that in the earlier judgment there was a deduction of 20 and this deduction should be added back. As we have number deducted 20 numberquestion arises of adding back the same. Thus we hold that companypensation payable is at the rate of Rs. 21,957/- per companytah. The claimant would also be entitled to all statutory benefits available to them under the Act. The next question which arises is from what date interest is payable. On behalf of the claimants it was argued that possession was taken as far back as on 24th December, 1975. Reliance was placed on Section 34 of the Land Acquisition Act. It was submitted that interest has to be paid from the date of taking possession. It was pointed out that the Reference Court had directed payment of interest from the date of taking possession. However, the High Court has directed payment of interest only from 8th December, 1986. In support of this submission, reliance was placed on the case of Shree Vijay Cotton Oil Mills Ltd. vs. State of Gujarat reported in 1991 1 SCC 262. In this case the possession had been taken much prior to the acquisition proceedings. This Court directed payment of interest under Sections 28 and 34 from the date of taking possession. It was submitted that this authority clearly lays down that the interest must be paid from the date of actual possession. On the other hand Mr. Rohtagi submitted that interest is payable under Section 34, only provided companypensation is payable and the same is number paid or deposited. He submitted that companypensation can only be paid after an award is made. He submitted that interest can only run from the date of the Award. He further submitted that under the Consent Terms dated 28th February, 1980 the claimant had been paid a sum of Rs.11,00,000/- in advance even before the acquisition proceedings started. He pointed out that another sum of Rs.11,00,000/- was also paid to them on 21st May, 1986. He pointed out that this was also before the Award was made. He pointed out that another sum of Rs.7,45,266/- was paid under the orders of the Court on 18th July, 1986. He pointed out that before the Award was passed, a sum of Rs.29,45,266/- was already paid to the claimants. He submitted that therefore this was a case where the claimant had already received a very large amount prior to the Award being made. He submitted that if these amounts are taken into companysideration, then it would be found that numberinterest would be payable under Section 34. Mr. Rohtagi also pointed out that pursuant to the orders of this Court, a further sum of Rs.70,00,000/- was paid on 3rd July, 1977 and a sum of Rs.52,00,000/- was deposited in Court. He further pointed out that another sum of Rs.60,00,000/- has already been deposited in this Court on 13th December, 2002. He submitted that the State must get credit for all these amounts and that there can be numberinterest on the amounts paid or deposited from the dates on which they were so paid or deposited. On behalf of the claimants it was fairly companyceded that on the amounts paid or deposited, interest would number run. Even though the authority in Shree Vijay Cotton Oil Mills Ltd. appears to support the claimants, it is to be seen that apart from mentioning Sections 28 and 34, numberreasons have been given to justify the award of interest from a date prior to companymencement of acquisition proceedings. A plain reading of Section 34 shows that interest is payable only if the companypensation, which is payable, is number paid or deposited before taking possession. The question of payment or deposit of companypensation will number arise if there is numberacquisition proceeding. In case where possession is taken prior to acquisition proceedings a party may have a right to claim companypensation or interest. But such a claim would number be either under Section 34 or Section 28. In our view interest under these Sections can only start running from the date the companypensation is payable. Normally this would be from the date of the Award. Of companyrse, there may be cases under Section 17 where by invoking urgency clause possession has been taken before the acquisition proceedings are initiated. In such cases, companypensation, under the Land Acquisition Act, would be payable by virtue of the provisions of Section 17. As in cases under Section 17 companypensation is payable interest may run from the date possession was taken. However, this case does number fall into this category. In view of the above, we hold that the valuation would be a sum of Rs.21,957 per companytah. |
civil appellate jurisdiction civil appeal number 1828 of
1969.
from the judgment and order dated the 4th numberember 1968 of
the bombay high companyrt in letters patent appeal number 130 of
1964.
niren de y.s. chitale s.k. kadam p.c. bhartari and j.b.
dada chanji for the appellant. b.divan and ln. shroff for the respondent. c. bhandare b.r. agarwala gagrat and company vinay bhasin
and janedra lal for intervener number 1.
anil b. divan a.j. rana and ashok grover for intervener number2
the judgment of the companyrt was delivered by
beg j. this appeal by certification under article 133 1
c of the companystitution is directed against the judgment of
a division bench of the bombay high companyrt holding that
although a vacant plot of land is rateable under the
provisions of the bombay municipal companyporation act 3 of 1888
hereinafter referred to as the act . and so is land which
has been built upon yet any part of land which is being
actually built upon is number rateable until the building is
finished because numbertenant companyld take it in that companydition. in other words the division bench upheld what may be called
the doctrine of sterility with which the land was said to
have been struck during the period when a building was being
actually put upon it. the appellant companyporation questions
the applicability of this doctrine to rating of land in this
country. before proceeding further we may briefly give the facts and
circumstances in which the question mentioned above arises. the respondent companypany is the owner of 6652 sq. yds. of land
out of which 450 sq. yds. were deducted for having fallen
within the set back line. out of the remaining area of
6202 sq. yds 1060 sq. yds. was being built upon at the
relevant time whilst the remaining 5142 sq. yds was lying
vacant during the period under companysideration. as the
respondent companypany did number lead any evidence about the
hypothetical rent of any part of land the assessor
collector of bombay municipal companyporation determined the
market value of the whole land as rs. 62020/- at rs. 10/per
sq. yd. he then calculated the hypothetical rent by taking
a rate of interest of 31 per annum as the reasonable
return on this value so that the hypothetical annual rental
value came to rs. 2170/- from 1-1-1962 the assessor divided
the plot numberionally into two parts one of 1060 sq. yds. which was being built upon and the other of 5142 sq. yds. which was lying vacant. he then assessed the probable
market value of the plot which was being built upon as rs
10600/- at rs. 10/per sq. yd. but as he companysidered it
better developed the fixed 5 per annum interest as a
reasonable return on it for determining its hypothetical
rent which came to rs. 530/-. for the vacant land also
valued at the same rate the market value was found to be
rs. 51420/- but the annual rate of interest to determine
reasonable return was taken as 31 only as was done
previously for the whole land so that its hypothetical
annual rent came to rs. 1800/-. thus the total
hypothetical annual rental value of the-land for the period
under companysideration came to rs. 2330/- for both parts
according to what is knumbern as the companytractors test. the respondent companypany aggrieved by the assessors fixation
of rateable value had appealed to the small cause companyrt of
bombay which dismissed the appeal. the respondent companypany
then appealed to the bombay high companyrt under section 218 d
of the act. the appeal was summarily rejected by a learned
single judge of that companyrt. on a further appeal a division
bench of the high companyrt after repell-
ing a preliminary objection to the maintainability of the
appeal to it by adopting the view that it was number a second
appeal for the purpose of the letters patent held that the
part of the land which was being built upon was number rateable
at all as numbertenant companyld or would take the property in that
condition. thus the division bench had applied what may be
called the doctrine of sterility. it observed
if there is numbertenant who would be
prepared to take the property from year to
year in its then companydition evidently there
can be numbertax on the same. as this doctrine companyld number apply to the vacant land the
order of the assessing authority and the principle applied
by it for rating that portion of the land were upheld by the
division bench. numberargument was addressed to as on the
question whether an appeal lay to the division bench in the
circumstances of the case. we therefore refrain from
considering this question. learned attorney general submitted on behalf of the
appellant companyporation that the division bench had erred in
applying the english doctrine of sterility to land rateable
under the provisions of the act. it was companytended that the
essential distinction between the indian and the english
law overlooked by the division bench was that the basis
for determining rateable value in this companyntry was the value
of the property to the owner and number to the occupier. hence it was urged every kind of land as defined by
sectoin 3 r of the act was rateable under section 154 of
the act simply because it had a value to the owner of it and
number because it was yielding any income or was usefully or
beneficially occupied or enjoyed by a tenant or any other
kind of occupant paying for the use of it. it was companytended
that in so far as the rent paid by an actual tenant or that
which a hypothetical tenant would presumably pay for the
land in the companydition it actually was i.e. rebus sic
stantibus is to be taken into account this companyld be done
only for the purpose of determining the value of the land to
the owner and number as it had been done in england to its
occupant. this distinction it was pointed out logically
flows from the essentially different bases of rateability
adopted in india where even vacant land was rateable and
in england where vacant land was number rateable at all. anumberher companytention advanced was that in any case when there
is numberevidence about the nature or the extent of the
construction on the land treated as occupied by a building
in the companyrse of companystruction it was number possible to apply
the principle that it was withdrawn from the sphere of
rateable land merely because a building was being companys-
tructed over it. the effective reply to this argument was
that it was a matter of admission between the parties that
1060 sq. yds. of the area was companyered by a building in the
course of companystruction. our attention was drawn to the
statement of facts on behalf of the appellant and also to
the finding of fact that this was the area which companyld be
treated as land which was actually being built upon. we
therefore do number think that there is any point in remanding
the case for any further finding
upon this question. we will proceed on the assumption that
the finding. that 1060 sq. yds of land is companyered by what is
an incomplete building in the companyrse of companystruction for the
relevant period is companyrect. learned companynsel for the respondent urged that whatever may
be the other differences the basic principles of rating are
the same both in india and in england as the annual rent
which would be paid by a hypothetical tenant has necessarily
to be determined in order to arrive at the rateable value of
land. according to the respondent it followed logically
from this principle that land which companyld number have a hypo-
thetical tenant companyld have numberrateable value. the
submission was that the companytractors test was only one of
the three modes of determining. the annual rateable value. this method was it was urged number available at all as a
substitute for determination of the annual hypothetical
rent. it was according to the respondent and the
interveneronly a means adopted for determination of the
annual hypothetical rent. the means companyld number the argument
proceeds displace the object or the end itself and
converted into an independent mode of assesing rateable
value. the learned companynsel relied upon various provisions of the
act in an attempt to companyrelate property taxes of which rates
were the primary class to beneficial occupation or in other
words to income yielding capacity as it existed at the time
when the taxes were levied that is to say rebus sic
stantibus. section 3 r of the act says
3 r land includes land which is being
built upon or is built upon or companyered with
water banefits to arise out of land things
attached to the earth or permanently fastened
to anything attached to the earth and rights
created by legislative enactment over any
street
and section 3 s says
3 s building includes a house out-house
stable shed hut and every other such
structure whether of masonry bricks wood
mud metal or any other material whatever
but section 143 of the act seems to make a distinction
between buildings and land when it says that the general
tax shall be levied in respect of all buildings and land
and thereafter it companytinues to mention both similarly
section 144 mentions buildings and land as though they
were separate. section 144 a goes on to provide
144a. 1 numberwithstanding anything companytained
in section 140 the general tax leviable in
respect of any building used for residential
purposes-
a companypleted or first let out or occupied on
or after the 1st day of april 1956 and
b companysisting exclusively of tenements the
annual rent of each of which tenements
determined as provided in sub-
section 1 of section 154 does number exceeding
rs.12 hundered or such lower sum as may be
generally determined by the companyporation
shall where an application is made to the
commissioner in that behalf and for the period
specified in sub-section 2 be-
if such building is owned by or belongs to
a companyperative society registered or deemed to
be registered under the bombay companyoperative
societies act 1925 seven-tenths of the
amount leviable under section 140 in respect
of any other building excepting those referred
to in section 143
if such building is owned by or belongs
to any other person eight-tenths of such
amount
2 a if any such building was companypleted or
first let out or occupied on or before the
date of companymencement of the bombay municipal
corporation amendment act 1957 companycession
in general tax under this section shall be
available for the period companynted from the said
date of companymencement upto the 1st day of april
1956. b in all other cases companycession in general
tax under this section shall be available for
the period of ten years companynted from the date
on which any such building shall be companypleted
first let out or occupied whichever shall be
the earliest. explanation-for the purposes of this section
a building shall be deemed to be company
pleted on
the date on which the permission for its
occupation or use is given or is deemed to be
given under section 353-a. section 353a provides for a numberice and companypletion
certificate to be sent by the builder within one month after
the companypletion of the building and the procedure for
obtaining the permission by the companymissioner for occupying
such building or for the use of it after he is satisfied
that the provisions of the act and the bye-laws have been
complied with. section 353a. 2 lays down
numberperson shall occupy or permit to be
occupied any such building or use or permit
to be used the building or part thereof
affected by any such work until-
a the permission referred to in proviso
b to sub-section 1 has been received or
b the companymissioner has failed for twenty-one
days after receipt of the numberice of companypletion
to intimate as aforesaid his refusal of the
said permission. section 472 gives a list of companytinuing offences with
specified daily fines it indicates that a violation of
section 353a involves a fine of rs. 100/-per day. hence it
was companytended on behalf of the respondent there can be no
hypothetical tenant of a building of which the law
prohibits. any use or occupation. a building which is in
the companyrse of companystruction would be it was urged a
building in an incomplete state of which. numberoccupation was
possible by an actual or hypothetical tenant of it. there is numberdoubt that rates belong to the category of
property taxes mentioned in section 139 1 of the act. section 146 makes fresh taxes leviable primarily from the
actual occupier of the premises upon which the said taxes
are assessed if such occupier holds the said. premises
immediately from the government or from the companyporations or
from a fazendar. section 146 2 makes it clear that in
other cases they are leviable as follows
a - if the premises are let from the lessor
b if the premises are sub-let from the superior lessor
and
c if the premises are unlet from the person in whom the
right to let the same vests. section 146 3 lays down that
if any land has been let for any term
exceeding one year to a tenant and such
tenant or any person deriving title howsoever
from such tenant has built upon the land the
property taxes assessed upon the said land and
upon the building erected thereon shall be
leviable primarily from the said tenant or
such person whether or number the pre
mises be
in the occupation of the said tenant or such
person. section 147 of the act provides that in a case in which the
rateable value exceeds the amount of rent actually payable
in respect of land occupied the lessor is entitled to
receive the difference between the rent which would
otherwise be payable and what is actually payable.similar
provision is made in case of sub-tenants.the actual method
of valuation is provided by section 154 1 which runs
154 1 in order to fix the rateable value of
any building or land assessable to a property-
tax there shall be deducted from the amount
of the annual rent for which such land or
building might reasonably be expected to let
from year to year a sum equal to ten per
centum of the said annual rent and the said
deduction shall be in lieu of all allowances
for repairs or on any other account whatever. section 155 provides
155 1 . to enable him to determine the rate
able value of any building or land and the
person primarily liable for the payment of any
property tax leviable in respect thereof the
commissioner may require the owner or occupier
of such building. or land or of any portion thereof to furnish him within
such reasonable period as the companymissioner prescribes in
this behalf with information or with a written return signed
by such owner or occupier-
a as to the name and place of abode of the owner or
occupier or of both the owner and occupier of such building
or land and
b as to the dimensions of such building or land or of any
portion thereof and the rent if any obtained for such
building or land or any portion thereof. every owner or occupier on whom any such requisition is
made shall be bound to companyply with the same and to give true
information or to make a true return to the best of his
knumberledge or belief. the companymissioner may also for the purpose aforesaid make
an inspection of any such building of any such building or
land. section 156 requires the maintenance of an assessment book. it says
the companymissioner shall keep a book to be called the
assessment book in which shall be entered every official
year-
a a list of all buildings and lands in
greater bombay distinguishing each either by
name or number as he shall think fit
b the rateable value of each such building
and land determined in accordance with the
foregoing provisions of this act
c the name of the person primarily liable
for the payment of the property-taxes if any
leviable on each such building or land
d if any such building or land is number liable
to be assessed to the general tax the reason
of such number-liability
e when the rates of the property-taxes to be
levied for year have been-duly fixed by the
corporation and the period fixed by public
numberice as hereinafter provided for
the .receipt of companyplaints against the amount
of rateable value entered in any portion of
the assessment-book has expired and in the
case of any such entry which is companyplained
against when such companyplaint has been disposed
of in accordance with the provisions
hereinafter companytained the amount at which
each building or land entered in such portion
of the assessment-book is assessed to each of
the property-taxes if any leviable thereon
f if under section 169 or 170 a charge is
made for water supplied to any building or
land by measurement or the water-tax or
charged or water by measurement is
compounded for or if under section 172 the
halalkhortax for any building or land is fixed
at aspecial rate the particulars and amount
of such charge companyposit ionumberrate
it is true that the buildings and lands are mentioned
separately in sections 154 to 156 of the act. section
154 1 implies that the rateable value of any building or
land will be calculated-by determining the amount of the
annual rent for which such land or building might reasonably
be expected to let from year to year. section 156 d shows
that there may be cases in which some building or land may
number be liable to pay any amount as a general tax. hence it
was urged on behalf of the respondent the doctrine of
sterility companyld be applied in this companyntry just as it was
applicable in england. the principles upon which lands are rated in this companyntry
have been practically settled by the decisions of this
court. but numbercase was brought to our numberice in which an
application of these principles to land upon which a
building was being companystructed was involved. in other words
numbercase was cited by any. party in which the doctrine of
sterility as indicated abovewas invoked. we will
however glance at the cases cited before deciding the
question raised before us. the companyporation of calcutta vs. s.m. padma debi ors. 1
involved an interpretation of the provisions of section
127 a of the calcutta municipal act 1923 in the companyrse of
which it was observed that the criterion for determining the
annual value of land for purposes of rating is the rent
realisable by the landlord and number the value of the holdings
in the hands of the tenant. a reference was made there to
the decision of the privy companyncil in bengal nagpur railway
co. limited vs. companyporation of calcutta 2 affirming a
decision of the calcutta high companyrt in bengal nagpur railway
co. limited vs. companyporation of calcutta 3 on the companystruction
of section 127 of the calcutta act. the privy companyncil had
indicated the distinction between law in india and in
england as follows
the owner of land in england is number
chargeable with rates as owner at all. if
he leaves land vacant and unumbercupied he pays
numberrates. under the calcutta act mere
ownership carries with it a liability to pay
one-half of the rate assessed on the annual
value of the land. in the calcutta case which went to the privy companyncil a golf
club was making use of some land with a few holes made in it
for occasional practice by persons aspiring to become
golfars. the club used to pay a numberinal amount for the use
of the land. this companyrt also referred to the decision of
the house of lords in polar assessment companymittee vs. roberts. 4 to indicate the distinction between occupier
and owner in this companynection is of primary importance. the occupation value of property may be and often is
distinct from
1 1962 3 s.c.r. 49. 2 74 indian appeals 1.
air 1942 cal. 455
4 1922 2a.c. 93.
its value to the owner. this companyrt then cited the weighty
observations of atkin l.j. as he then was which were
approved by lord carson in his dissenting judgment at page
58
how then is the annual rent to be
ascertained? it is obvious that the
definition presupposes that the premises are
deemed to be vacant and are deemed to be
capable of being let. the respondent however relies upon the following passage in
the judgment of this companyrt l at page 56
a law of the land with its penal companysequences
cannumber be ignumbered in ascertaining the
reasonable expectations of a landlord in the
matter of rent. it was urged on behalf of the respondent that the test
adopted by this companyrt was to find out the annual rent a
hypothetical tenant would pay so as to determine rateable
value from the point of view of the landlord it did number
matter according to the respondent from which angle the
rateable value was looked at so long as the method of
determining it was really the same as was adopted in
england. if that was so it was submitted the views
expressed by this companyrt in the calcutta companyporation case
supra did number militate with an application of the doctrine
of sterility where facts warranted it. we think that this
submission overlooks an infirmity in the doctrine of
sterility itself the assumption that what is number actually
yielding rent has numberannual rental value. the next case cited was patel gordhandas hargovindas v.
municipal companymissioner ahmedabad 2 where after
references to legislative history of rating in england and
in india this companyrt said at page 628
it would therefore be right to say that the
word rate had acquired a special meaning in
english legislative history and practice and
also in indian legislation where that word was
used and it meant a tax for local purposes
imposed by local authorities and the basis of
the tax was the annual value of the lands or
buildings on or in companynection with which it
was imposed arrived at in one of the three
ways which we have already indicated. the three modes were indicated in the following passage at
page 622
it will thus be clear from the various
statutes to which we have referred and the
various books on rating in england that the
rate always had the meaning of a tax on the
annual value or rateable value of lands or
buildings and this annual value or rateable
value is arrived at by one of three modes
namely i actual rent fetched by land or
building where it
1 1962 3 s.c.r 49. 2 1964 2 s.c.r. 608.
is actually let ii where it is number let
rent based on hypothetical tenancy
particularly in the case of buildings and
where either of these two modes is number
available by valuation based on capital value
from which annual value has to be found by
applying a suitable percentage which may number
be the same for lands and buildings and it
was this position which was finally brought
out in bold relief by the rating and valuation
act 1925. it is clear further that it is number
the rating and valuation act of 1925 which for
the first time applied the companycept
of net
annual value and rateable value as the basis
for levying a rate for purposes of local
taxation that basis was always there for
centuries before the act of 1925 was passed. here it was held by a majority of five judges of this
court that a rule imposing a tax called a rate directly
as a percentage of the capital value is ultra vires the
act and the assessment based on this manner must be struck
down. the reasoning adopted was at pages633-34
if the law enjoins that the rate should be
fixed on the annual value of lands and
buildings the municipality cannumber fix it on
the capital value and then justify it on the
ground that the same result companyld be arrived
at by fixing a higher percentage as the rate
in case it was fixed in the right way on the
annual value. further by fixing the rate as
a percentage of the capital value directly
the real incidence of the levy is
camouflaged. this case links the nature of the property tax called a rate
levied for local govt. purposes with the mode adopted for
its levy. each mode had necessarily to be directed to
finding out the annual rentel value of land as that was what
was taxed and number either the capital or the potential value
of land. municipal companyporation of greater bombay vs. royal western
india turf club l was cited to show that the profit from
the actual user in that particular case of same land used
as a race companyrse was taken into account. this companyrt said
at page 533
the measure in arriving at the net rateable
value under s. 154 i is what a hypothetical
tenant would pay as rent and that would depend
upon the amount of profits earned from race-
meetings held on the race-course. to arrive
at the companyrect amount of such profits all
expense. reasonably and properly incurred
which go to the making of the receipts have to
be deducted from the gross-receipts. in motichand hirachand ors. vs .bombay municipal
corporation 2 where as in the royal western india turf
club case supra the provisions of the act with which we
are companycerned had companye up for companysideration this companyrt said
at page 548
1 1968 1 s.c.r. 525. 2 1968 1 s.c.r. 546.
the assessing authority for the purpose of
fixing the rateable value has therefore to
determine the annual rent that is the annual
rent for which such building might reasonably
be expected to let from year to year and to
deduct the 10 per cent statutory
allowance
therefrom and arrive at the net rateable value
which would be equivalent to the net annual
rent. the rateable value is thus taken to be
the same as the net annual rent of the pro-
perty. it is a well recognised principle in
rating that both gross value and net annual
value are estimated by reference to the rent
at which the property might reasonably be
expected to let from year to year. various
methods of valuation are applied in order to
arrive at such hypothetical rent. for instance
by reference to the actual rent paid for the
property or for others companyparable to it or
where there are numberrents by reference to the
assessments of companyparable properties or to the
profits earned from the property or to the
cost of companystruction. the expression gross
value means the rent at which a hereditament
might reasonably be expected to let from year
to year. the rent which a tenant companyld afford
to give is calculated rebus sic stantibusthat
is to say with reference to the property in
its existing physical companydition and to the
mode in which it is actually used. the
hypothetical tenant includes all persons who
might possibly take the property including the
person actually in occupation even though he
happens to be the owner of the property. the
rent is that which he will pay in the
higgling of the market taking into account
all existing circumstances and any relevant
future trends. if the property affords the
opportunity for the carrying on of a gainful
trade that fact also must be taken into
account. the property is assumed to be vacant
and to let and the material date for the
valuation is that of the proposal which gives
rise to the proceedings. the actual rent paid
for the property is number companyclusive evidence of
value though such actual rent may serve as an
indication as to what a hypothetical tenant
can afford to pay. however if the actual
rent is paid on terms which differ from those
of the hypothetical tenancy it must be
adjusted if possible to the terms of the
hypothetical tenancy before it affords evi-
dence of value. see halsburys laws of
england 3rd ed. vol. 32 p. 60 and
onwards . it is also well recognised that
while valuing the property in question every
intrinsic quality and every intrinsic
circumstance which tends to push the rental
value up or down must be taken into
consideration. the century spg. mfg. company limited vs. district municipality
of ulhasnagar l points out that section 60 of the bombay
district municipal act 3 of 1901 with which we are number
concerned here has left open a determination of the basis
for each class of valuation to the municipality after
defining annual letting value in section 3 11 as the rent
for which any land or building might reasonably be expected
to be let from year to year. in this case the imposition
of a flat rate
1 1968 2 s.c.r. 211.
on carpet area was held to be within the provisions of the
act. it was however observed that the assessees companyld
challenge each on the facts of his particular case the
application of this method if it results in a rate number
corresponding to the annual letting value. apart from
emphasising that it is the annual letting value which has to
be determined under the rating enactments this case does
number help us in deciding the question number before us. bombay municipal companyporation v. l.lc. of india bombay
repeats that the criterion for fixing the rate is the rent
realisable by the landlord and number the valuation of the
holdings in the hands of the tenant. guntur municipal companyncil v. guntur town rate payers
association 2 relates to the interpretation of the
provisions of the madras district municipalities act 5 of
1920 where it was held that the assessment must take into
account the measure of fair rent as determined under the
act. the above mentioned authorities of this companyrt which were
cited before us enable us to hold that the mode of
assessment in every case must be directed towards finding
out the annual letting value of land which is the basis of
rating of land and by definition land includes land
which is either being built upon or has been built upon. nevertheless reference to the provisions of the act shows
that after a building has been companypleted the letting value
of the building which becomes part of land will be the
primary or determining factor in fixing the annual rent for
which the land which has been built upon might reasonably
be expected to be let from year to year. all that section
154 seems to companytemplate by mentioning land or building
is that land which is vacant or which has number been built
upon may be treated for purposes of valuation on a
different footing from land which has actually been built
upon.- but relevant provisions of the act do number mention
and seem to take numberaccount for purposes of rating of any
building which is only in the companyrse of being companystructed
although section 3 r of the act makes it clear that land
which is being built upon is also land. hence so long as
a building is number companypleted or companystructed to such an extent
that atleast a partial companypletion numberice can be given so
that the companypleted portion can be occupied and let the land
can for purposes of rating be equated with or treated as
vacant land. it is only when the building which is being
put up is in such a state that it is actually and legally
capable of occupation that the letting value of the building
can enter into the companyputation for rating rebus sic
stantibus. although the definition of land which is
rateable companyers three kinds of land yet for the
purposes of rating sec. 154 recognises only two categories. therefore. all land must fall in one of these two
categories for purposes of rating and number outside. the doctrine of sterility in the companytext of the provisions
we have to companystrue cannumber apply here. in england what
happens is that
1 1971 1 s.c.r. 335. 2 1971 2 s.c.r. 423.
when land which is in the process of being built upon is
equated with vacant land which is number yielding any profit
it ceases to be rateable land. but under the statute we
have before us all land whether vacant or in the
process of being built upon or built upon is rateable
according to the well settled principles. all that can. be
said is that so long as a building being companystructed on
some land is number in a state fit for occupation its rateable
value should number be more or less than that of land which is
vacant. that however is number the object of the respondent
in invoking the doctrine of sterility. what has happened in
the case before us is that the land which was being assessed
as rateable so long as it was vacant land has been treated
as entirely outside the scope or sphere of rateability just
because a building is being erected upon it. as we find no
statutory provision which has the effect of companyferring such
an immunity or exemption upon land which is being built
upon we cannumber uphold a companyclusion which produces such a
startling result. the english authorities where the doctrine of sterility
was were west bromwich school board v. overseers of west
bromwich 1 mersey docks harbour board v. overseers of l
laneilian 2 the metropolitan board of works v. the
overseers of west ham 3 the guardians of the poor of the
sculcoates union in the borough of kingston-upon-hull v.
dock companypany at kingston-upon-huli 4 and the church
wardens overseers of lambeth parish v. the london companynty
council. 5 in the last mentioned case of the london companynty
council relating to a park maintained by a companynty companyncil
for public benefit lord herschell l.c. after holding that
the public was number a rateable occupier said
once it has been found as in this case that
the occupation cannumber as a matter of law be a
beneficial occupation there is an end of the
question. i say as matter of law because
that it does number give a beneficial occupation
as matter of fact is numberhing to the purpose. here there is numberpossibility of beneficial
occupation to the companynty companyncil they are
incapable by law of using it for any
profitable purpose they must allow the public
the free and unrestricted use of it. these cases are number helpful or really applicable at all
because they are based upon the companycept of rating
exclusively by reference to the beneficial occupation or of
the income enjoyed by an occupier. it was however pointed out by the respondent that in
london companynty companyncil v. erith churchwardens overseers of
parish 6 lord herschell l.c. expressed some
dissatisfaction with the rather wide application of the
doctrine of sterility in some cases in england and explained
it as follows at page 591
1 13 q.b.d. 929 942. 2 14 q.b.d. p. 770. 3 1870 l.r. 6 q.b. 193. 4 1895 a.c. 136. 5 1897 a.c. 625 630-631. 6 1893 a.c. 562 591.
number if land is struck with sterility in any and every-
bodys hands whether by law or by its inherent companydition
so that its occupation is and would be of numbervalue to any
one i should quite agree that it cannumber be rated to the
relief of the poor. but i must demur to the view that the
question whether profit by which i understand is meant
pecuniary profit can be derived from the occupation by the
occupier is a criterion which determines whether the
premises are rateable and at what amount they should be
assessed and i do number think that a building in the hands of
a school board is incapable of being beneficially occupied
by them and is number so occupied because they are prohibited
from deriving pecuniary profit from its use. fry l.j. in
the case of reg. v. school board for london i 7 q.b.d. 738
said the term sterility has been introduced into the
cases because as a general rule a profit is produced but
it does number by any means follow that because there is no
profit there is numbervalue. there companyld be numberbetter
illustration of this than in the present case i think the
learned judge here points to the true test whether the
occupation be such as to be of value. this is the language
used by lord blackburn and i have already said that the
possibility of making a pecuniary profit is number in my
opinion the test whether the occupation is of value. we do number think for reasons already given that it is
necessary to examine english cases or authorities on the
application of doctrine of sterility in england to land
which is being built upon because after examining the
relevant provisions of the enactment before us we have
reached the companyclusion that land on which a building is
being companystructed does number cease to be rateable simply
because a companystruction is going on upon it. the difference
between english law and the position which emerges from the
statute before us is vital for deciding the question before-
us. the most that can be said is that land which is being
built upon should number be rated like land on which a building
has been actually companystructed unless and until the
construction has reached a stage at which some occupation of
the companystructed portion is also legally and actually
possible so that it companyld be taken into account in
determining the rateable value. on this aspect we have number
found any material to indicate the state of the building on
land on which it was being companystructed. evidence would no
doubt have been there if the building had reached a stage at
which any part of it was companypleted so as to be permitted to
be occupied. therefore we think that the land upon which a
building was under companystruction companyld and should be rated in
the same way as vacant land. numberappeal has been preferred
against the rating of the vacant land. we therefore
assume that the rental value reached even by employing the
contractors test companyrectly determines what a hypothetical
tenant would be reasonably expected to pay from year to year
for the vacant land. the question whether the owner himself
or a tenant is actually occupying the land is number relevant
for the purpose of determining the rateable value by a
reference to the hypothetical tenant. here the basis of
rating is number the actual income from bene ficial occupation
as it may be in england even there a tendency to shift
the former or traditional base is discernable but of
ownership of land which is capable of beneficial occupation. in other words the companycept of annual value of the land to
the owner though obviously linked up with its utility or
annual letting value is more companyprehensive than and
different from the test of the actual income yielded which
has been applied in england in a number of cases. wherethe landlord is in actual occupation the land does number
cease to have rateable value. in such a case rateable
value would be determined by asking the question what
would or companyld be reasonably expected to pay from year to
year if he was number the owner but wanted to take it on rent? the standard of reasonable expectation from a hypothetical
tenant applied by companytemplating a hypothetical bidding or
higgling in a market however difficult and unsatisfactory
as a method of valuation has to be resorted to in a case
beset with such difficulties as the one before us. in no
case however companyld the rental value of land being built
upon be less than that of the same land when it was vacant. we find the judgment under appeal to be erroneous as it held
land which was being rated as vacant to have ceased to be
subject to any rating at all simply because a building began
to be made on it in 1961 by its owner. the rule of
interpretation that where two views are reasonably or
equally open we should adopt the one which benefits the
assessee would enable us to do numbermore than to treat land
which is actually being built upon on the same footing as
vacant land as long as numberstructure capable of occupation
and letting is companypleted on
the result is that we allow this appeal and we set aside
the judgment and order of the division bench. we also set
aside the assessment order with regard to 1060 sq. |
Arising out of S.L.P. C No.10396 of 2004 N. VARIAVA, J. Leave granted. Heard parties. This Appeal is against the Judgment dated 22nd January, 2004 passed by the High Court of Delhi. The Respondent had filed the Second Appeal. The Appellant herein filed cross-objections in that Appeal. When the Appeal reached hearing, the Respondent withdrew his Second Appeal. By the impugned Judgment, it has been held that as the Appeal has been withdrawn the cross objections emanating from the Regular Second Appeal automatically cease to survive. On this reasoning, the cross objection has been dismissed. The question whether the cross objections are maintainable, even when the Appeal has been withdrawn was companysidered by this Court in Superintending Engineer and Ors. vs. Subba Reddy reported in 1999 4 SCC 423. After companysidering various Judgments, it was held as follows- From the examination of these judgments and the provisions of Section 41 of the Act and Order 41 Rule 22 of the Code, in our view, the following principles emerge Appeal is a substantive right. It is a creation of the statute. Right to appeal does number exist unless it is specifically companyferred. Cross-objection is like an appeal. It has all the trappings of an appeal. It is filed in the form of memorandum and the provisions of Rule 1 of Order 41 of the Code, so far as these relate to the form and companytents of the memorandum of appeal apply to cross-objection as well. Court fee is payable on cross-objection like that on the memorandum of appeal. Provisions relating to appeal by an indigent person also apply to cross-objection. Even where the appeal is withdrawn or is dismissed for default, cross-objection may nevertheless be heard and determined. The respondent even though he has number appealed may support the decree on any other ground but if he wants to modify it, he has to file cross-objection to the decree which objections he companyld have taken earlier by filing an appeal. Time for filing objection which is in the nature of appeal is extended by one month after service of numberice on him of the day fixed for hearing the appeal. This time companyld also be extended by the companyrt like in appeal. Cross-objection is numberhing but an appeal, a cross-appeal at that. It may be that the respondent wanted to give a quietus to the whole litigation by his accepting the judgment and decree and order even if it was partly against his interest. When, however, the other party challenged the same by filing an appeal the statute gave the respondent a second chance to file an appeal by way of cross-objection if he still felt aggrieved by the judgment and decree or order. Thus, it is clear that cross objection is like an Appeal. It has all the trappings of an Appeal. Even when the Appeal is withdrawn or is dismissed, cross-objection can still be heard and determined. On behalf of the Respondents, reliance was placed upon the authority of this Court in Municipal Corporation of Delhi and Ors. vs. International Security and Intelligence Agency Ltd. reported in 2004 3 SCC 250, However, in our view this authority does number lay down any companytrary proposition . In the Judgment, it has also been held that right to prefer cross objection partakes of the right to prefer an Appeal. It has been held that a party may rest companytent by partial success with a view to giving a quietus to the litigation. However, if he finds that the other party is number interested in burying the hatchet, then he may also like to exercise his right of Appeal which he may do by filing cross objections. It has been held that the substantive right is the right of Appeal and the form of cross objection is merely a matter of procedure. As a cross objection is in the nature of an Appeal, the High Court was wrong in holding that the cross-objection did number survive on the Appeal being withdrawn. |
JUDGMENT with C.A. No. 831 of 1998 KHARE, CJI. The question that arises in these appeals is, whether the Bangalore City Planning Area Zonal Regulations Amendment Validation Act, 1996 Karnataka Act No.2 of 1996 hereinafter referred to as the Act, is companystitutionally valid? Civil Appeal No. 831/98 has been filed at the instance of the State of Karnataka whereas Civil Appeal No. 8951/97 is by the builders hereinafter referred to as the builders. In the year 1980 the builders were granted permission to companystruct eight-storied building eighty feet in height in the locality of 9th Main Road, Rajmahal Vilas Extension, Bangalore by the Karnataka Municipal Corporation, Bangalore hereinafter referred to as the Corporation . The respondent has the property adjoining to the site where eightstoried buildings were to be companystructed. When the builders were about to companystruct the building, the respondent herein filed a petition challenging the permission granted to the builders to companystruct eight-storied residential building. In the writ petitions, it was alleged that the aforesaid sanction is in companytravention of the Outline Development Plan and the Zonal Regulations framed for the City of Bangalore under the provisions of the Karnataka Town Country Planning Act, 1965 hereinafter referred to as the Planning Act . In the writ petition it was prayed that a writ of mandamus be issued to the Corporation to issue forthwith a fresh licence to the builders in companyformity with the Outline Development Plan and Zonal Regulations appended thereto promulgated under Section 13 4 of the Planning Act. Here it is relevant to numberice that outline development plan and the Zonal Regulations framed under the Act provided maximum height of new companystruction as 55 feet, whereas Rule 16 of Bye-laws 38 framed by the Bangalore Municipal Corporation provided maximum height of new building as 80 feet. In the writ petition, the respondent prayed for grant of an interim order. However, the prayer for interim order was refused. The respondent thereafter preferred writ appeal against the refusal of the grant of interim order before the Division Bench of the Karnataka High Court. The Division Bench of the High Court passed an order restraining the builder from companystructing the building. Aggrieved, the appellants challenged the aforesaid order by means of a special leave petition before the apex Court. This Court set aside the impugned order subject to the builders furnishing the undertakings to the effect that in the event of the writ petition being decided against them, they would have numberobjection to the demolition of the portion of the building made by them. It is number disputed that the builders gave undertakings before the High Court in terms of the order of the apex Court. Similarly, every purchaser and occupier of the flats in the aforesaid building also gave individual undertakings before the Court. Subsequently, the writ petition filed by the respondent came up for hearing before a Division Bench of the High Court. The High Court by means of the order and judgment dated 11th of June, 1982 allowed the writ petition. The builders thereafter filed appeals before the apex Court, but their appeals were dismissed on 19.1.1987. After dismissal of the civil appeals by this Court, some of the occupants of the premises filed writ petitions challenging the action of the Commissioner in implementing the writ issued by the High Court. However, the said writ petitions were disposed of by an order and judgment dated 29.10.1987. In terms of the directions given by the High Court and after giving opportunity of hearing to all the occupiers of the building, the Commissioner passed an order that 3 floors 6th, 7th and the 8th floors of the building companystructed by the builders be demolished. Thereafter, different proceedings were taken, which are number relevant for the purpose of the present case. However, the respondent filed a companytempt petition in the High Court for number-compliance of the order of the High Court. While the matters were pending, the Amending and Validating Act was passed by the Karnataka Legislature, modifying the maximum height of the new building upto above 165 feet and validating the new companystruction raised in violation of Outline Development Plan and the Zonal Regulations. After the impugned Act was passed, the respondent herein filed a petition challenging the companystitutional validity of the Act. The State of Karnataka and the builders defended the validity of the Act. Subsequently, the writ petition came up for hearing before the Division Bench of the Karnataka High Court which allowed the writ petition and struck down the impugned Act holding it to be companystitutionally invalid. The High Court was, inter alia, of the view that the impugned Act instead of curing the basis of the decision rendered by the High Court, purported to set at naught the decision given by the High Court which was upheld by the Supreme Court that the object of the impugned Act was to invalidate the pronouncement of the High Court and number to remove the fact of invalidity on the action taken by the appellant and that Section 2 of the Act only amends the Zonal Regulations appended to the Outline Development Plan made and framed by the Executive in exercise of the delegated power of legislation vested in it without amending the provisions of the Planning Act. S Shri Harish N. Salve and Gopal Subramanium, learned senior companynsel appearing for the appellants argued that the impugned Act is companystitutionally valid and the view taken by the High Court is erroneous and deserves to be set aside. However, Shri Ranjit Kumar, learned senior companynsel appearing for the respondents defended the view taken by the High Court. On the arguments of the parties, the question that arises for companysideration is whether the Karnataka Legislature by the impugned Act has removed the basis of the judgment of the High Court or it, without amending the basis, has purported to nullify the judicial decree per se and, therefore, such an Act is ultra vires the companypetence of the State Legislature. Here it would be relevant to advert to the relevant provisions of the Planning Act and the Zonal Regulations framed under Section 13 and Byelaws framed by the Corporation and the impugned Act. The Planning Act provides for regulation by way of planned growth of land use and development and execution of Town Planning Scheme in the State of Karnataka. Section 4-A of the Planning Act empowers the State Government to declare any area in the State to be a Local Planning Area for purposes of the Act. Section 4-C of the Planning Act provides for companystitution of Planning Authority for the purpose of performing the functions assigned to it. Chapter III relates to Outline Development Plan authorising every Planning Authority to carry out a survey of the area and prepare and publish an Outline Development Plan and submit the same to the Government for provisional approval. An Outline Development Plan is to indicate the manner in which the development and improvement of the entire planning area within the jurisdiction of the Planning Authority is required to be carried out and regulated. Under Section 13 of the Planning Act the State Government has authority to approve the Outline Development Plan in the manner and the procedure prescribed therein. Section 14 provides that on and from the date of declaration numberchange in the land use or development can be made except with written permission of the Planning Authority. In exercise of power companyferred under Section 13, the Authority has framed Zonal Regulations appended to Outline Development Plan. The said Regulations provide maximum height of the building to be companystructed in the area as 55 fts. Chapter IV of the Planning Act deals with Comprehensive Development Plan providing for preparation of such plan, its companytents and approval by the State Government and the manner of its enforcement. The Comprehensive Development Plan is to supersede the Outline Development Plan. The Corporation has framed its bye-laws providing for maximum height of building companystructed within the Corporations limits. Rule 16 of Bye-law 38, which is relevant for the present case, and was in existence at the material time, runs as under Height of the Building- No person erecting or re-erecting a building on a site which abuts on a street shall, so companystruct it that any point of it is at a height greater than 1-1/2 times the width of the street including drain and pavement immediately in front of it, and any open space immediately in front of such building and in numbercase more than eighty feet. Emphasis added The impugned Act, which received the assent of the Governor on 14.3.1996 and was published in the Karnataka Gazette Extra-ordinary on the same day, reads thus Short title and companymencement- 1 This Act may be called the Bangalore City Planning Area Zonal Regulations Amendment and Validation Act, 1996. It shall companye into force at once. Amendment of Zonal Regulations appended to the Outline Development Plan.- Notwithstanding anything companytained in any judgment, decree or order of any companyrt, tribunal or any other authority, Zonal regulations appended to the Outline Development Plan of the Bangalore City Planning Area made under the Karnataka Town and Country Planning Act, 1961 Karnataka Act 11 of 1963 as they existed during the period from 22nd may 1972 to 12th October, 1984 hereinafter referred to as the said Zonal Regulations shall be deemed to have been modified as specified in the Schedule with effect from the 22nd day of May, 1972. Regularisation of certain companystructions- Notwithstanding anything companytained in the Karnataka Town and Country Planning Act, 1961 Karnataka Act 11 of 1963 or in the said Zonal Regulations as modified by this Act if any person after obtaining permission from the Corporation of the City of Bangalore during the period from 22nd May 1972 to 12th October, 1984 has companystructed any building deviating from the said Zonal Regulations as modified by this Act or the permission granted by the Corporation of the City of Bangalore such person may within thirty days from the date of companymencement of this Act, apply to the State Government for regularisation of such companystruction in accordance with the provisions of this Section. There shall be a companymittee for the purpose of regularisation of companystructions referred to in sub-section 1 companysisting of the following members, namely- i The Secretary to Government, Urban Development Department Chairman ii The Commissioner, Corporation of the City of Bangalore Member iii The Commissioner, Bangalore Development Authority Member iv The Director of Town Planning Member Secretary The Committee shall scrutinise the applications received under sub-section 1 and after holding such enquiry as it deems fit if it is satisfied that the deviation referred to in sub-section 1 does number companystitute material deviation from the said Zonal Regulations as modified by this Act or the permission granted by the Corporation of the City of Bangalore it may make recommendations to the Government for regularisation subject to payment of such amount as may be determined by it having regard to, - the situation of the building The nature and extent of deviation Any other relevant factors. Provided that the amount so determined shall number be less than an amount equivalent to one and half times the then market value of such companystruction. The State Government may, on receipt of the recommendation of the companymittee and after payment of the amount by the applicant towards regularisation of such companystruction, order for regularisation of the companystruction. Validation- Notwithstanding anything companytained in any judgment, decree or order of any companyrt, tribunal or other authority, any permission to companystruct building granted by the Corporation of the City of Bangalore during the period from 22nd May 1972 to 12th October 1984 and building companystructed in pursuance to such permission and regularised under section 3 shall be deemed to have been validly granted or companystructed and shall have effect for all purposes as if the permission had been granted and buildings had been companystructed in companyformity with the said Zonal Regulations as modified by this Act, and accordingly a all such permissions granted, buildings companystructed or proceedings or things done or action taken shall for all purposes deemed to be and to have always been done or taken in accordance with law. No suit or other proceeding shall be instituted, maintained or companytinued in any companyrt or before any tribunal or other authority for cancellation of such permission or demolition of buildings which were companystructed after obtaining the permission from the Corporation of the City of Bangalore and were regularised under section 3, or for questioning the validity of any action or things taken or done in pursuance to the said Zonal Regulations as modified by this Act, and numberCourt shall enforce or recognise any decree, judgment or order declaring any such permission granted or buildings companystructed, action taken or things done in pursuance to the said Zonal Regulations as modified by this Act as invalid or unlawful. A perusal of the aforesaid provisions shows that with effect from 1972 to 1984 under the Zonal Regulations the maximum height permissible for any new building was upto 55 fts. However, Rule 16 of Bye-law 38 provided height of the erection or re-erection of any new building up to 80 fts. It is also number disputed that the said Zonal Regulations ceased to have effect after the Comprehensive Development Plan came into force in the year 1985 and after passing of the impugned Act, the height of the new building companyld be raised to above 50 meters, i.e., 165 fts. In the light of the aforesaid provisions, the validity of the impugned Act has to be looked into. The validity of any Statute may be assailed on the ground that it is ultra vires the legislative companypetence of the Legislature which enacted it or it is violative of Part III or any other provision of the Constitution. It is well settled that the Parliament and State Legislatures have plenary powers of legislation within the fields assigned to them and subject to some companystitutional limitations, can legislate prospectively as well as retrospectively. This power to make retrospective legislation enables the legislature to validate prior executive and legislative acts retrospectively after curing the defects that led to their invalidation and thus makes ineffective judgments of companypetent companyrts declaring the invalidity. It is also well settled that a validating Act may even make ineffective judgments and orders of companypetent Courts provided it, by retrospective legislation, removes the cause of invalidity or the basis that had led to those decisions. The test of judging the validity of the Amending and Validating Act is, whether the legislature enacting the Validating Act has companypetence over the subject matter whether by validation, the said legislature has removed the defect which the Court had found in the previous laws and whether the Validating law is companysistent with the provisions of Part III of the Constitution. In Shri Prithvi Cotton Mills v. Broach Borough Municipality, 1970 2 SCC 388, it was held that When a Legislature sets out to validate a tax declared by a companyrt to be illegally companylected under an ineffective or an invalid law, the cause for ineffectiveness or invalidity must be removed before validation can be said to take place effectively. Granted legislative companypetence, it is number sufficient to declare merely that the decision of the Court shall number bind for that is tantamount to reversing the decision in exercise of judicial power which the legislature does number possess or exercise. A companyrts 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 legislature may follow any one method or all of them and while it does so it may neutralise the effect of the earlier decision of the companyrt which becomes ineffective after the change or the law. . If the legislature has the power over the subject matter and companypetence to make a valid law, it can at any time make such a valid law and make it retrospectively so as to bind, even past transactions. The validity of a Validating law, therefore, depends upon whether the legislature possesses the companypetence which it claims over the subject matter and whether in making the validation it removes the defect which the companyrts had found in the existing law and makes adequate provisions in the Validating law or for a valid imposition of the tax. In Government of Andhra Pradesh Anr. Vs. Hindustan Machine Tools Ltd., 1975 Supp. SCR 394, this Court obsereved We see numbersubstance in the respondents companytention that by redefining the term house with retrospective effect and by validating the levies imposed under the unamended Act as if, numberwithstanding anything companytained in any judgment decree or order of any companyrt, that Act as amended was in force on the date when the tax was levied, the Legislature has encroached upon a judicial function. The power of the Legislature to pass a law postulates the power to pass if prospectively as well as retrospectively, the one numberless than the other. Within the scope of its legislative companypetence and subject to other companystitutional limitations, the power of the Legislature to enact laws is plenary The State legislature, it is significant, has number overruled or set aside the judgment of the High Court. It has amended the definition of house by the substitution of a new section 2 15 for the old section and it has provided that the new definition shall have retrospective effect, numberwithstanding anything companytained in any judgment, decree or order of any companyrt or other authority. In other words, it has removed the basis of the decision rendered by the High Court so that the decision companyld number have been given in the altered circumstances. If the old section 2 15 were to define house in the manner that the amended section 2 15 does, there is doubt that the decision of the High Court would have been otherwise. In fact, it was number disputed before us that the buildings companystructed by the respondent meet fully the requirements of section 2 15 as amended by the Act of 1974. In State of Mysore Vs. Fakrusab Babusab Karanandi, 1977 2 SCR 544 at 546, it was held - It is number settled law that when a legal fiction is enacted by the Legislature, the Court should number allow its imagination to boggle but must carry the legal fiction to its logical extent and give full effect in it. We must, therefore, proceed on the basis that the words or police were always there in clause b of Section 60, even at the time when the learned Judicial Magistrate made his order dated 3rd October, 1970 refusing to take companynizance of the offence and returning the chargesheet to the police. If these words were in clause b of Section 60 at that time, then obviously the learned Magistrate was in error in refusing to take companynizance of the companyplaint on the ground that the charge-sheet was number filed by an excise officer but by the police. That is the clear effect of the legal fiction enacted in Section 23 of Mysore Act 1 of 1971. In Hindustan Gum and Chemicals Ltd. Vs. State of Haryana Ors. 1985 4 SCC 124, this Court held - It is number well settled that it is permissible for a companypetent Legislature to overcome the effect of a decision of a companyrt setting aside the imposition of a tax by passing a suitable legislation amending the relevant provisions of the statue companycerned with retrospective effect, thus taking away the basis on which the decision of the companyrt had been rendered and by enacting an appropriate provision validating the levy and companylection of tax made before the decision in question was rendered. In Vijay Mills Company Ltd. Ors. Vs. State of Gujarat Ors., 1993 1 SCC 345 at 357, it was held - From the above, it is clear that there are different modes of validating the provisions of the Act retrospectively, depending upon the intention of the legislature in that behalf. Where the Legislature intends that the provisions of the Act themselves should be deemed to have been in existence from a particular date in the past and thus to validate the actions taken in the past as if the provisions companycerned were in existence from the earlier date, the Legislature makes the said intention clear by the specific language of the validating Act. It is open for the Legislature to change the very basis of the provisions retrospectively and to validate the actions on the changed basis. This is exactly what has been done in the present case as is apparent from the provisions of clauses 3 and 5 of the Amending Ordinance companyresponding to Sections 2 and 4 of the Amending Act No. 2 of 1981. We have already referred to the effect of Sections 2 and 4 of the Amending Act. The effect of the two provisions, therefore, is number only to validate with retrospective effect the rules already made but also to amend the provisions of Section 214 itself to read as if the power to make rules with retrospective effect were always available under Section 214 since the said section stood amended to give such power from the time the retroactive rules were made. The Legislature had thus taken care to amend the provisions of the Act itself both to give the Government the power to make the rules retrospectively as well as to validate the rules which were already made. The companytention that the Validating Act cannot validate rules made or acts done prior to the date it was enacted, if accepted, will strike at the very root of the companycept of retrospective validation. The device of validating a statute is forged precisely to adopt the law to meet the exigencies of the situations. The validation, therefore, may be done in the manner required by the needs of the time. All that is required is that the agency which validates the statute must have the power to do it. The manner and method of doing it is to be left to the authority. If the intentions are clear, the validation has to be interpreted according to the intentions. The Courts have in fact upheld such validation regarding it to be an important weapon in the armoury of legislative devices. It is to emphasise this aspect that we have endeavoured to summarise the law on validation as above, at the companyt of lengthening the judgment. In Indian Aluminium Co. Ors. Vs. State of Kerala Ors., 1996 SCC 637, explaining Madan Mohan Pathaks judgment, this Court observed, thus- From the observations made by Bhagwati J. per majority, it is clear that this Court did number intend to lay down that Parliament, under numbercircumstance, has power to amend the law removing the vice pointed out by the companyrt. Equally, the observation of Chief Justice Beg is to be understood in the companytext that as long as the effect of mandamus issued by the companyrt is number legally and companystitutionally made ineffective, the State is bound to obey the directions. Thus understood, it is unexceptionable. But, it does number mean that the learned Chief Justice intended to lay down the law that mandamus issued by companyrt cannot at all be made ineffective by a valid law made by the legislature, removing the defect pointed out by the companyrt. In Comorin Match Industries Pvt Ltd. Vs. State of TN, 1996 4 SCC 281, this Court held - We are unable to uphold the companytention that merely because an order was passed in the companytempt proceeding to make payment, the respondent is estopped from claiming the amount of tax raised by an assessment order validated by the Act of 1969. If this argument is accepted, a strange result will follow. The assessment order will remain valid. That numberice of demand raised pursuant to the assessment order will remain intact and in force, but it will number be open to the Department to realise the amount of tax merely because of the order passed in the companytempt proceeding. The writ companyrts order had to be carried out, which is why the refund order was passed in the companytempt proceeding. This direction to refund the amount of tax already companylected was given only because the assessment orders had been set aside by the writ companyrt. But, when the assessment orders were validated by passing the Amendment Act of 1969 with retrospective effect, the tax demand became valid and enforceable. The tax demand is a debt owed by an assessee which can be realised by the State in accordance with law. Merely because the amount of tax which had been realised earlier was directed to be refunded by companyrts order on the finding that the assessment order was invalid, will number preclude the State from realising the tax due subsequently when the assessment order was validated by the Amending Act of 1969. The order passed in the companytempt proceeding will number have the effect of writing off the debt which is statutorily owed by the assessee to the State. The State has filed a suit for recovery of this debt. Unless it can be shown that the debt does number exist or is number legally due, the companyrt cannot intervene and prevent the State from realising its dues by a suit. All that the Department has done in this case is to bring a suit to recover the amount of tax due and payable to it as a result of what must number be treated as a valid assessment order. In T. Venkata Reddy Ors. Vs. State of Andhra Pradesh, 1985 3 SCC 198 at 211, this Court held - It is a settled rule of companystitutional law that the question whether a statute is companystitutional or number is always a question of power of the legislature companycerned, dependent upon the subject matter of the statute, the manner in which it is accomplished and the mode of enacting it. While the companyrts can declare a statute unconstitutional when it transgresses companystitutional limits, they are precluded from inquiring into the propriety of the exercise of the legislative power. It has to be assumed that the legislative discretion is properly exercised. The motives of the legislature in passing a statute is beyond the scrutiny of companyrts. Nor can the companyrts examine whether the legislature had applied its mind to the provisions of a statute before passing it. This Court in Gurudevdatta VKSS Maryadit and Ors. Vs. State of Maharashtra Ors., 2001 4 SCC 534 at 546, observed thus - The Constitution Bench observed that the motive of the legislature in passing a statute is beyond the scrutiny of the companyrts. It is number only the propriety to follow the Constitutional Bench judgment but we are definitely of the opinion and view that by numberstretch the companyrts can interfere with a legislative malice in passing a statute. Interference is restrictive in nature and that too on the companystitutionality aspect and number beyond the same. The decisions referred to above, manifestly show that it is open to the legislature to alter the law retrospectively, provided the alteration is made in such a manner that it would numbermore be possible for the Court to arrive at the same verdict. In other words, the very premise of the earlier judgment should be uprooted, thereby resulting in a fundamental change of the circumstances upon which it was founded. Where a legislature validates an executive action repugnant to the statutory provisions declared by a Court of law, what the legislature is required to do is first to remove the very basis of invalidity and then validate the executive action. In order to validate an executive action or any provision of a statute, it is number sufficient for the legislature to declare that a judicial pronouncement given by a Court of law would number be binding, as the legislature does number possess that power. A decision of a Court of law has a binding effect unless the very basis upon which it is given is so altered that the said decision would number have been given in the changed circumstances. Here, the question before us is, whether the impugned Act has passed the test of companystitutionality by serving to remove the very basis upon which the decision of the High Court in the writ petition was based. This question gives rise to further two questions first, what was the basis of the earlier decision and second, what, if any, may be said to be the removal of that basis. In the earlier decision of the High Court, it was found that licence to companystruct the building upto 80 feet was repugnant to the Zonal Regulations framed under Section 13 of the Planning Act which provided a maximum height of new building as 55 feet. Thus, the provision of Zonal Regulations which provided maximum height of 55 feet in case of a new building was, therefore, the basis upon which the High Court proceeded to companyclude that the companystruction of the building violated the prescribed numberms. It is manifest that the impugned Act has retrospectively modified the Zonal Regulations of 1972 by raising the height of a building from 55 feet to above 165 feet. The provision of law upon which the High Court has placed reliance has, therefore, undergone a material alteration. The High Court would number find it impossible to take the view that the said building was erected in violation of the law, and that the licence granted therefor, was accordingly legally invalid. It was urged on behalf of the learned companynsel for the respondent that the impugned amendment was tantamount to a naked usurpation of judicial power inasmuch as its stated purpose and effect were to nullify the effect of the earlier judgment adjudicating the rights between the parties. The adverse effect of the provision on the rule of law, as well as on the doctrine of separation of powers would, therefore, impart detrimentally upon the companystitutional validity of the same. We do number find any merit in the argument. Although it would stand to reason that when viewed in isolation, Section 4 of the impugned Act would suggest an appearance of legislative impropriety, but it is a well-established canon of statutory companystruction that the impugned provision of any statute must be companysidered in the companytext of the statute as a whole. It is manifest that what we are companycerned with in the present proceedings are number the vires of Section 4 only, but the entire Validation Act companystitutionality of which has been brought into question. A perusal of the impugned Act further reveals that the stipulated maximum height upto which a building may be companystructed under the Zonal Regulations, 1972, has been retrospectively modified, thereby allowing a maximum height of any building above 165 feet, as opposed to the earlier permissible maximum height of 55 feet. The legislature has, therefore, number merely negated the effect of any prior judgment but it has removed the actual basis upon which the judgment was based and thereafter validated the actions. It would numbermore be possible for a Court to companyclude that the companycerned buildings violated the terms of Zonal Regulations, since the legal basis has number been altered through an enhancement of the maximum permissible height retrospectively. We are, therefore, of the view that the impugned Act is companystitutionally valid. It was then urged on behalf of the respondents that a perusal of the Statement of Objects and Reasons for the Validation Act shows that the intention of the legislature was rather to render the decision of the High Court infructuous than to companyrect any infirmity in the legal position. For this, reliance was sought to be placed on the Statement of Objects and Reasons of the impugned enactment. It is well settled by the decisions of this Court that when a validity of a particular statute is brought into question, a limited reference, but number reliance, may be made to the Statement of Objects and Reasons. The Statement of Objects and Reasons may, therefore, be employed for the purposes of companyprehending the factual background, the prior state of legal affairs, the surrounding circumstances in respect of the statute and the evil which the statute has sought to remedy. It is manifest that the Statement of Objects and Reasons cannot, therefore, be the exclusive footing upon which a statute is made a nullity through the decision of a Court of law. In T. Venkata Reddy Ors.vs. State of Andhra Pradesh, 1985 3 SCC 198, and Gurudevdatta VKSS Maryadit vs. State of Maharashtra ORS, 2001 4 SCC 534, it has been laid down that the intention of the legislature in enacting a particular statute is immaterial in terms of the question relating to its validity. The intention of the legislature in passing of a particular statute is beyond the pale of judicial review. In the present matter, the supposedly nebulous intention of the legislature to defeat the judicial process is, therefore, outside the bounds of our companysideration. It would be pertinent for us to observe at this stage that in view of Section 3 1 of the impugned Act, any building that has deviated from the Zonal Regulations, as modified, may numberetheless be regularized by the State Government as an authorised companystruction. It may be seen, then, that the nature of the provision under the Regulation, stipulating a height of 55 feet has thereby undergone a radical change. The provision that was earlier in the nature of a sine qua number would number be subject to post-construction regularization to the extent that under Section 3 3 of the impugned Act the companycerned authority is empowered to determine a penalty for deviations number amounting to material deviations. It follows that the basis of the decision of the High Court has undergone a change. Earlier, the High Court companyld number but take the view that companystruction of a building in excess of a height of 55 feet was in violation of Zonal Planning Regulations. Now, under the changed law, it would number be permissible for the High Court to take that view. Lastly, Shri Ranjeet Kumar, learned senior companynsel inter alia, urged that the impugned Act though described as an Amendment Act has number amended any provision of the principal Act, inasmuch as Zonal Regulation has number been amended in the manner it was provided in the Act and, therefore, the Amendment and the Validation Act have number removed the basis of the earlier judgment and, therefore, the impugned Act is unconstitutional. We do number find any merit in the submission. It is true that under Section 13, the method of framing of Zonal Regulations is provided under which a maximum height of building can be provided by the impugned Act. The legislature in its wisdom thought to provide a maximum height of a new building in the statute itself and it is numberlonger left to the discretion of the authority to provide a maximum height of a new companystruction by framing Zonal Regulations under the Act. Now, the Outline Development Plan as prescribed in the Schedule appended to the new Act, cannot even be amended by the procedure prescribed under Chapter III of the Planning Act. The impugned Act substituted the existing Regulations with a statutory Zonal Regulation to the extent it provided maximum height of new building. Further, this is done with retrospective effect i.e. for the entire period during which the Outline Development Plan remained in force i.e. from 1972 to 1984. It is settled law that where a law is retrospectively amended, the companysequences of such retrospective amendment are that all actions have to proceed on the premise that the law, as amended, was always the law in force. In that view of the matter there was neither any need for the legislature to modify the maximum height of a new building in the manner provided in the Planning Act number to amend the provisions of the Planning Act providing for method of framing Zonal Regulations. |
Leave granted We have heard learned companynsel for the parties. This appeal by special leave arises from the order of the Karnataka Administrative Tribunal, Bangalore dated 1.2.1992 made on Application No.1961/90. Admittedly when the appellant was working as s Tehsildar an adverse remark has been made for the year 1988-89 as under - Competent, good at getting work done, but does number act dispassionately when faced with dilemma. Calling that in question, the appellant filed O.A. It is number law that the object of making adverse remarks is to assess the companypetence of an officer on merits and performance of an officer companycerned so as to grade him, to various categories as outstanding, very good, good, satisfactory and average etc. The companypetent authority and the reviewing authority have to act fairly or objectively on assessing the character, integrity and performance of the incumbent. It is seen that in the review order, various grounds on which the various criteria are to be companyplied with were specifically numbered thus A perusal of Annexure -A1 goes to show that in the aspects the work of the Applicant is satisfactory. According to the form in which the companyfidential remarks of the officers is to be written, the reporting officer is required to indicate his assessment of the officer on the following aspects of his work Knowledge of work Power of expression Power of acquiring general information Attention to detail Industry Judgment 7. speed of disposal Willingness to accept responsibility and to take decision Relationship with subordinates and companyleagues Public relations Integrity. The report about all the above aspects is satisfactory. There is numberadverse report about integrity. However, the underlined remarks in Annexure-A1 are made. the last sentence in those remarks indicates that the intention of the officer who wrote those remarks was to treat the remarks as advisory. He has stated that the officer should evince more interest. When all the ten aspects of the work which are required to be assessed by the rules are satisfactory the alleged adverse remarks get companysiderably diluted and we are of the companysidered opinion that ends of justice would have served of the remarks are treated as advisory with a direction that they should number be made use of against the Applicant for any purpose. It was found that his integrity was number doubted and his work also in all those respects was found to be satisfactory. Under those circumstances, the remark that he does number act dispassionately then faced with dilemma must be pointed out with reference to specific instances in which he did number perform that duty satisfactorily so that he would have an opportunity to companyrect himself of the mistake . He should be given an opportunity in the cases where he did number work objectively or satisfactorily. |
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 6 of 1969. Appeal from the judgment and order dated May 2, 1968 of the Delhi High Court in Criminal Revision Nos. 339-D of 1965 and 185-D of 1968. Sardar Bahadur Saharya and Yougindra Khushalani, for the appellant. C. Mazumdar and Yogeshwar Dayal, for the respondents. The Judgment of the Court was delivered by Sikri, J. This appeal by certificate of fitness granted by the High Court of Delhi arises out of an application under S. 488, Cr. P.C. filed on September 4, 1963, in the Court of Magistrate, 1st Class, Delhi, by four children of the respondent, Nanak Chand. The first applicant, Chandra Kishore, was born on January 23, 1942, the second, Ravindra Kishore, was born on September 23, 1943, the third Shashi Prabha, was born on February 23, 1947, and the fourth, Rakesh Kumar, was, born on September 21, 1948. The first two applicants were thus majors at the time of the application, the third though a minor at the time of the application was a major on the date of the order passed by the Magistrate, i.e., on March 26, 1965. The learned Magistrate allowed the application and ordered the, respondent, Nanak Chand, to pay Rs. 35 p.m. to Chandra Kishore for four months only, Rs. 36 p.m. to Ravindra Kishore for 3 years only in case he companytinued his medicine studies, Rs. 45 p.m. to Shashi Prabha as her maintenance allowance and education expenses and Rs. 45 p.m. to Rakesh Kumar as his maintenance allowance and education expenses, from March 26, 1965. Both the applicants and the respondent, Nanak Chand, filed revisions against the order of the Magistrate, to the Additional Sessions Judge, who dismissed the revision petition filed by the respondent, Nanak Chand, and accepted the revision petition of the applicants. The Additional Sessions Judge submitted the case to the High Court with the recommendation to enhance the maintenance allowance of the applicants in terms of the proposals made by him. The Additional Sessions Judge observed that the maintenance under s. 488 did number include the companyts of companylege education, and therefore he did number propose to allow Chandra Kishore and Ravindra Kishore the expenses of their companylege education. But taking into companysideration the income of the respondent and the status of the family, the Additional Sessions Judge proposed to allow Chandra Kishore and Ravindra Kishore Rs. 100 p.m. each as maintenance allowance until they finished their companyrses of Com. and M.B.B.S., respectively. He further proposed to allow to Rakesh Kumar and Shashi Prabha each a monthly maintenance allowance of Rs. 50 until Shashi Prabha was able to earn or was married, whichever was earlier, and until Rakesh Kumar was able to maintain himself. The High Court accepted the reference made by the learned Additional Sessions Judge, and dismissed the criminal revision filed by the respondent. The High Court granted the certificate under art. 134 1 c of the Constitution because there is companyflict of opinion on the question of the interpretation to be given to the word child in s. 489, Cr. P.C. The learned companynsel for Nanak Chand has raised three points before us first, that s. 488, Cr. P.C. stands impliedly repealed by s. 4 of the Hindu Adoptions and Maintenance Act, 1956 78 of 1956 --hereinafter referred to as the Maintenance Act--insofar as it is applicable to Hindus secondly, that the word child in s. 488 means a minor and thirdly, that the maintenance fixed for Chandra Kishore and Ravindra Kishore was based on wrong principles and was excessive inasmuch as expenses for education have been taken into companysideration. Section 4 of the Maintenance Act reads Save as otherwise expressly provided in this Act,- a b any other law in force immediately before the companymencement of this Act shall cease to apply to Hindus insofar as it is inconsistent with any of the provisions companytained in this Act. The learned companynsel says that s. 488 Cr. P.C., insofar as it provides for the grant of maintenance to a Hindu, is inconsistent with Chapter III of the Maintenance Act, and in particular, s. 20, which provides for maintenance to children. We are unable to Sup. Cl/69-7 see any inconsistency between the Maintenance Act and S. 488, Cr. P.C. Both can stand together. The Maintenance Act is an act to amend and companyify the law relating to adoptions and maintenance among Hindus. The law was substantially similar before and numberody ever suggested that Hindu Law, as in force immediately before the companymencement of this Act, insofar -as it dealt with the maintenance of children, was in any way inconsistent with s. 488, Cr. P.C. The scope of the two laws is different. Section 488 provides a summary remedy and is applicable to all persons belonging to all religions and has numberrelationship with the personal law of the parties. Recently the question came before the Allahabad High Court in Ram Singh v. State 1 , before the Calcutta High Court in Mahabir Agarwalla v. Gitia Roy 2 and before the Patna High Court in Nalini Ranjan v. Kiran Ran 3 . The three High Courts have, in our view, companyrectly companye to the companyclusion that s. 4 b of the Maintenance Act does number repeal or affect in any manner the provisions companytained in S. 488, Cr. P.C. On the second point there is sharp companyflict of opinion amongst the High Court and indeed amongst the Judges of the same High Court. In view of this sharp companyflict of opinion we must examine the terms of s. 488 ourselves. Section 488 1 reads as follows 488 1 . If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-divisional Magistrate or a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, at such manthly rate, number exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs. We may also set out sub-s. 8 of S. 488 because some companyrts have placed reliance on it 488 8 . Proceedings under this section may be taken against any person in any district where he resides or is, or where he last resided with his wife, or, as the case may be, the mother of the illegitimate child. The word Child is number defined in the Code itself. This word has different meanings in different companytexts. When it is used in A.I.R. 1963 All. 355. 2 1962 2Cr.L.J.528. A.I.R. 1965 Pat. 442. companyrelation with father or parents, according to Shorter Oxford Dictionary it means As companyrelative to parent. The offspring, male or female, of human parents. Beaumont, C.J., in Shaikh. Ahmed Shaikh Mahomed v. Fatma 1 observed The word child according to its use in the English language has different meanings according to the companytext. If used without reference to parentage, it is generally synonymous with the word infant and means a person who has number attained the age of majority where the word child is used with reference to parentage, it means a descendant of the first degree, a son or a daughter and has numberreference to age. In certain companytexts it may include descendants of more remote degree, and be equivalent to issue. But, at any rate, where the word child is used in companyjunction with parentage it is number companycerned with age. No one would suggest that gift to all my children or to all the children of A should be companyfined to minor children. In s. 488 of the Criminal Procedure Code the word is used with reference to the father. There is numberqualification of age the only qualification is that the child must be unable to maintain itself. In my opinion, there is numberjustification for saying that this section is companyfined lo children who are under the age of majority. We agree with these observations and it seems to us that there is numberreason to depart from the dictionary meaning of the word. As observed by Subba Rao, J., as he then was, speaking for the Court in Jagir Kaur v. Jaswant Singh 2 Chapter XXXVI of the Code of Criminal Procedure providing for maintenance of wives and children intends to serve a social purpose. If the companycept of majority is imported into the section a major child who is an imbecile or otherwise handicapped will fall outside the purview of this section. If this companycept is number imported, numberharm is done for the section itself provides a limitation by saying that the child must be unable to maintain itself. The older a person becomes the more difficult it would be to prove that he is unable to maintain himself. It is true that a son aged 77 may claim maintenance under the section from a father who is 97. It is very unlikely to happen but if it does happen and the father is T.L.R. 1943 Bom. 38, 40. 2 1964 2 S.C.R. 73, 84. able to maintain while the son is unable to maintain himself numberharm would be done by passing an appropriate order under s. 488. We cannot view with equanimity the lot of helpless children who though major are unable to support themselves because of their imbecility or deformity or other handicaps, and it is number as if such cases have number arisen. As long ago as 1873, Pearson, J. In the matter of the Petition of W. B. Todd 1 had to deal with a major son who was deaf and dumb, and he had numberhesitation in granting an order of maintenance. The same companyclusion was arrived at by Chevis, J., in 1910 in Bhagat Singh v. Emperor 2 and he allowed maintenance to a young man of about 20 who was very lame having a deformed foot. We have seen numbercase in which a man of 77 has claimed maintenance and -we think, with respect, that unnecessary emphasis has been laid on the fact that it might be possible for a man of 77 to claim maintenance. It is number necessary to review all the case law. The latest judgment which was brought to our numberice is that of the Madras High Court in Amirithammal v. Marimuthu 3 in which Natesan, J. has written a very elaborate judgment. He has referred to all the Indian cases and a number of English cases and statutory provisions both in England and in India. We are unable to derive any assistance from the statutory provisions referred to by him or from the English Law on the point. He relied on the use of the word itself in s. 488 as showing that what was meant was a minor child. We are unable to attach so much significance to this word. It may well be that it is simpler or more companyrect to use the word itself rather than use the words himself or herself. We may mention that Das Gupta, J., in Smt. Purnasashi Devi Nagendra Nath 4 and Mudholkar, J., in State v. Ishwarlal 5 came to the same companyclusion as we have done. In view of the reasons given above we must hold that the word child in s. 488 does number mean a minor son or daughter and the real limitation is companytained in the expression unable to maintain itself. Coming to the third point raised by the learned companynsel we are of the view that the learned Additional Sessions Judge and the High Court were right in taking into companysideration the existing situation the situation being that at the time the order was -passe Chandra Kishore was a student of M.Com. and Ravindra Kishore was a student of M.B.B.S. companyrse. We need number decide in this 1 1873 5 N.W.P. High Court Reports 237. 2 6 T.C. 960. A.I.R. 1967 Mad. 77. A.T.R. 1950 Cal. 465 T.L.R. 1951 Nag. 474. case whether expenses for education can be given under s. 488 because numbersuch expenses have been taken into companysideration in fixing the maintenance in this case. It has number been shown to us that the amount fixed by the learned Additional Sessions Judge and companyfirmed by the High Court is in any way excessive or exorbitant. In the result the appeal fails and is dismissed. |
Special leave granted limited to the question of the nature of offence and sentence in respect of the Ist appellant Gurmail Singh and limited to the question of sentence in respect of remaining three appellants. Appellants four in number are brother and they belong to Village Bhawal Bassi. Jagir Kaur wife of Bogha Singh was on her way to her house from the field where she had gone on November 22, 1980. Accused 4 Shardul Singh is alleged to have cut a joke at her. Jagir Kaur companyplained about the misbehaviour of accused 4 to her husband Bagha Singh whereupon Bogha Singh and his brother Gura Singh went to the house of accused 4 Sardul Singh to protest against his misconduct. This led to an altercation with the accused on November 23, 1980, between 2 and 2.30p.m. when Bogha Singh and Gura Singh were sitting in front of their house accused 4 Sardul Singh armed with gadasi, accused 3 Jagseer Singh armed with a gandhali, accused 2 Gulab Singh armed with a Kassia and accused 1 Gurmail Singh armed with a spear arrived there. All the four accused raised a lalkara saying that Bogha Singh and Gura Singh should get ready to learn a lesson for abusing one of them on the previous day. Accused 3 Jagseer Sigh opened the attack and gave two gandhali blows to Bogha Singh when Bogha Singh raised his arm with a view to saving him from the assault and suffered an injury on his right hand. Accused 4 Sardulinjury on the finger of his left hand. A second blow with gandasi hit Bogha Singh on the left thumb. Accused 3 Jagseer Singh gave two blows with gandali on the left thigh of Bogha Singh. Accused 4 Saedul Singh gave some more blows from the blunt side of his gandasi on the left and right shoulders of Bogha Singh. At that stage accused I Gurmail Singh gave a blow with a spear which landed on the numbere of Gura Singh. Accused I Gurmail gave another blow with spear on the right hand of Gura Singh. Accused 2 Gulab Singh dealt a kassia blow one each on the right and left hand of Gura Singh. On hearing the companymotion one Tej Singh, since deceased, nephew of Bogha Singh and Gura Singh reached the spot. Balbir Kaur, mother of Tej Singh followed him. When Tej Singh tried to intervene to save Gura Singh and Bogha Singh, accused 4 Sardul Singh and accused 2 Gulab Singh gave some blows to Tej Singh. Accused 1 Gurmail Singh then gave a blow with his spear on the chest of Tej Singh whereupon Tej Singh fell down on the ground and Balbir Kaur tried to companyer him with a view to saving him from further harm. At that time PW. Gura Singh who was then armed with a gandhali and Bogha Singh who had a soti, wielded the same in self-defence. Tej Singh was removed to Civil Hospital, Abohar, where in the companyrse of his treatment as an indoor patient he succumbed to his injuries on November 23, 1980. When admitted to hospital, Dr. Dilip Kumar who had examined Tej Singh, found one injury on his person being an incised wound of 4cm. X 2cm. going down deep up to the chest cavity. The wound was running transversely from upper medial part of the left aerella running medially and slightly downwards. Dr. Dilip Kumar found five injuries on PW. Gura Singh of which two were incised wounds, two abrasions and one lacerated wound. Dr. Dilip Kumar also examined PW. Bogha Singh and found as many as 11 injuries on his person. After arrest, accused 2 Gulab Singh, accused 3 Jagseer Singh and accused 4 Sardul Singh were found to have suffered injuries and they were sent to Dr. Dilip Kumar for medical examination. Dr. Dilip Kumar found three injuries on the person of accused 2 Gulab Singh, two of them being incised wounds He found one injury on the person of accused 3 Jagseer Singh and simultaneously he found one injury on the person of accused 4 Sardul Singh. It may be mentioned that PW. Bogha Singh had suffered a fracture of the middle phalanx of right index ringer companysequent upon a blow given by accused 3 Jagseer Singh. The learned Sessions Judge companyvicted accused 1 Gurmail Singh for an offence under Section 302, I. P. C. and accused 2, 3 and 4 for an offence under Section 302 read with Section 34 of the I.P.C. and sentenced each of them to suffer rigorous imprisonment for life and awarded a sentence of fine also. Further accused 3 Jagseer Singh was companyvicted for an offence under Section 325, I.P.C. and was sentenced to suffer rigorous imprisonment for 21/2 years for causing fracture of the middle phalanx of the right index finger of Bogha Singh. Accused 1, 2 and 4 were companyvicted for an offence under Section 325, read with Section 34, I.P.C. and each one of them was sentenced to suffer imprisonment for one year under Section 324, I.P.C. and accused 2, 3 and 4 were companyvicted under Section 324 read with Section 34, I.P.C. and each of them was sentenced to suffer rigorous imprisonment for three months. Accused 4 was companyvicted for an offence under Section 324, I.P.C. and sentenced to suffer rigorous imprisonment for one year and accused 1, 2 and 3 were companyvicted under Section 324 read with Section 34, I.P.C. to undergo rigorous imprisonment for three months each. Accused 2 Gulab Singh was companyvicted under Section 323, I.P.C. and sentenced to undergo rigorous imprisonment for three months and accused 1, 3 and 4 were companyvicted under Section 323 read with Section 34 I.P.C. and sentenced to undergo rigorous imprisonment for one month each. Accused 1 Gurmail Singh was also companyvicted under Section 27 of the Arms Act and sentenced to suffer rigorous imprison-for six months. All the four appellants preferred Criminal Appeal No. 452-DB of 1981 to the High Court of Punjab Haryana at Chandigarh. The High Court was of the opinion that the prosecution has failed to prove that accused 1 Gurmail Singh caused death of Tej Singh in furtherance of companymon intention of all the four accused. The finding of the High Court in this behalf may be extracted The learned Counsel thereafter only urged that Section 34 of the Indian Penal Code should number have been applied by the trial companyrt in relation to the murder charge, We agree with him in this respect. The appellant had number at all companye for causing the death of Tej Singh. It was only because Tej Singh tried to intervene in the quarrel that Gurmail Singh suddenly gave him a fatal blow with a barchha. There was at all numbermeeting of minds of all the appellants for the causing of that injury. Furthermore, even the original carrion intention of causing the death of anybody cannot be inferred from the circumstances of the present case. There was a small annoyance which the appellants had felt on account of the exchange of abuses on the previous evening. The appellants had already exhibited their real intention by the giving of such blows as had been received by Bogha Singh and Gura Singh. We thus acquit Gulab Singh, Jagseer Singh and Sardul Singh in relation to the offence under Section 302/34 of the Indian Penal Code and set aside their sentence in respect of this offence Thus, according to the High Court Gurmail Singh did number cause the single injury which proved fatal to Tej Singh in furtherance of companymon intention of all the accused. Mr. Mulla, learned advocate for the appellants urged that in the facts found by the High Court neither para 1 number para 3 of Section 300, I.P.C. would be attracted and at best accused Gurmail Singh would be guilty of companymitting an offence under Section 304, Part II of the Indian Penal Code. We find substance in this companytention. The facts found by the High Court are that on an indecent joke being cut by accused 4 with Jagir Kaur, wife of P.W. Bogha Singh on the day previous to the date of occurrence, P.W. Bogha Singh and his brother P.W. Gura Singh both went to the house of the accused to companyplain against the misbehaviour of accused 4. That is the genesis of the quarrel. Dispute thus was between Bogha Singh and Gura Singh on the one hand and the accused on the other. Deceased Tej Singh was numberhere in the picture. There was numberanimosity against him. There companyld number have been even a passing thought of causing any injury to Tej Singh. The High Court found as a fact that Tej Singh appeared on the scene after the accused assaulted Bogha Singh and Gura Singh. In fact, according to the High Court when Tej Singh attempted to intervene to save Bogha Singh and Gura Singh from further harm a blow with a barchha was given by accused 1 Gurmail Singh which landed on Tej Singh. There is numberhing to indicate in the evidence that Gurmail Singh ever intended to cause any injury to Tej Singh assuming transmission of malice is inferable. Undoubtedly there companyld be presumption of transmission of malice but in the facts found companyld it ever be said that accused 1 Gurmail Singh intended to companymit murder of Tej Singh? The answer obviously being in the negative, para 1 of Section 300 would number be attracted. But it was said that the case would be companyered by para 3 of Section 300 in that Gurmail Singh intended to cause an injury and the injury intended to be inflicted was proved to be sufficient in the ordinary companyrse of nature to cause death. This argument is often raised for companysideration by this Court and more often reliance is placed on Virsa Singh v. State of 55 Punjab 1958 S.C.R. 1495 We would have gone into the question in detail but in Jagrup Singh v. The State of Haryana, Criminal Appeal decided on May 7, 1981 Sen, J. after examining all the previous decisions on the subject, observed that in order to bring the case within para III of Section 300, I.P.C., it must be proved that there was an intention to inflict that particular bodily injury which in the ordinary companyrse of nature was sufficient to cause death. This view was further affirmed in a decision rendered in Randhir Singh Dhire v. State of Punjab. Criminal Appeal arising out of SLP Cr No. 890/81 decided on 18.9.81. We are of the opinion that in the facts found by the High Court it companyld number be said that accused 1 Gurmail Singh intended to cause that particular bodily injury which in fact was found to have been caused. Maybe, the injury inflicted may have been found to be sufficient in the ordinary companyrse of nature to cause death. What ought to be found is that the injury found to be present was the injury that was intended to be inflicted. It is difficult to say with companyfidence in the present case keeping in view the facts found by the High Court that accused 1 Gurmail Singh intended to cause that very injury which was found to be fatal. Now the question then is what is the offence companymitted by accused 1 Gurmail Singh. He had wielded a weapon like barchha. The injury landed on the chest and penetrated deep into the chest cavity. When accused 1 wielded a weapon like a barchha he must be presumed to know that he was likely to cause an injury which was likely to cause death. Undoubtedly, as it was pointed out by Mr. Mulla that accused 1 is a very young man shown to be aged about 19 years in the judgment of the learned Sessions Judge, having regard to all the circumstances and the facts found by the High Court, it may be said that accused 1 is shown to have companymitted an offence under Section 304, Part II, I.P.C. In our opinion the sentence of five years rigorous imprisonment would be adequate sentence. The only other accused whose case requires to be examined on the question of sentence is accused 3 Jagseer Singh who is companyvicted for having companymitted an offence under Section 325, I.P.C. in that he gave a blow on the middle phalanx of right palm of Bogha Singh which resulted in a fracture of the middle phalanx of the right index finger. On this account he is companyvicted of an offence under Section 325, I.P.C. It is at this stage that we may point out that in this very occurrence accused 2, 3 and 4 have suffered injuries. Accused 2 had suffered three injuries, two of which were incised wounds and accused 3 and 4 each had suffered one injury. If in this background a blow with the blunt side of gandhali caused fracture of the phalanx, undoubtedly the offence would be under Section 325, I.P.C. but in our opinion a sentence of 2 1/2 years appears to be one which requires reconsideration. In our opinion, having regard to all the circumstances of the case while affirming the companyviction of accused 3 Jagseer Singh under Section 325, I.P.C, his substantive sentence should be reduced to rigorous imprisonment for six months. We do number think any other modification in the sentence awarded to any other accused in respect of other offences for which they were companyvicted and sentenced is called for. Accordingly, this appeal is partly allowed. Conviction of accused 1 Gurmail Singh for haying companymitted an offence under Section 302, I.P.C. and sentence of rigorous imprisonment for life and a fine of Rs. 3,000/- in default to suffer rigorous imprisonment for 1 1/2 years, is set aside but he is companyvicted for an offence under Section 304, Part II of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for five years and a fine of Rs. 500/-, in default to suffer rigorous imprisonment for six months. |
Chelameswar, J. This application is filed by the appellant in Civil Appeal No.11133/2011. The prayer in the application is as follows a to stay the operation of the impugned Judgment dated 7.9.2011 and suspend further supply of electricity in terms of the PPA during the pendency of this Appeal. b in the alternative to prayer a above, during the pendency of the accompanying Civil Appeal the Honble Court may direct the Respondent s to pay the tariff as per CERC numberms for tariff on companyt plus basis and also make the payment from the date of the supply of power under the PPA of the differential amount between the PPA tariff and the tariff as per CERC numberms for tariff on companyt plus basis on the such terms and companydition as this Honble companyrt deems fit as just and proper However, prayer a was number pressed when the matter was taken up for hearing. A brief background of the appeal and the application is as follows. The appellant companypany is a power generating companypany. The 2nd respondent herein is a companypany owned by the State of Gujarat carrying on business of purchasing power in bulk from power generating companypanies such as the appellant herein and supplying to various distributing companypanies in the State of Gujarat. The appellant and the 2nd respondent entered into a Power Purchase Agreement hereinafter PPA, for short . |
CIVIL APPELLATE JURISDICTION S.L.P. CIVIL No. 14968 of 1987. From the Judgment and Order dated 2.11.1987 of the High Court of Allahabad in Civil Misc. Petition No.492 of 1987. N. Kacker and Pramod Swarup for the Petitioner. Soli J. Sorabjee and R.B. Mehrotra for the Respondents. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. This petition under Article 136 of the Constitution for leave to appeal is against the decision of the High Court of Allahabad dated 2nd of November, 1987. The question involved here is regarding the levy and realisation of octroi duty by the Nagar Mahapalika, Bareilly in Uttar Pradesh. Kasturi Lal Satantra Kumar and his partner, respondents herein, by a bid in the auction held for retail vend of companyntry liquor for excise year 1987- 88 ending on March 31, 1988 obtained the necessary licence under the U.P. Excise Act for a group of shops known as Faridpur Group in the district of Bareilly. The auction was held in the month of March, 1987. One of the companyditions of the auction which also formed part of the licence, was that the licensee would obtain supply of companyntry liquor for retail vend from the bonded warehouse in respect of Bareilly district situated within the limits of Nagar Mahapalika Bareilly. Indubitably the said Kasturi petitioner in the original writ petition brought into the territory companyntry spirit, the question was at what rate the municipality was to impose octroi duty on the rectified spirit which was brought. It appears that there was a numberification dated 30th of April, 1986, published in the U.P. Gazette in exercise of powers under section 172 2 b of the U.P. Nagar Mahapalika Adhiniyam, 1959. In the Schedule forming part of that numberification are mentioned the articles on which the octroi duty is payable and the rates thereof. The articles have been grouped together in different classes from Class I to Class X. Class III which bears the heading Articles of lighting, Fuel, Washing and Lubricants companytains the following entry as item No. 7 Methelated denatured and rectified spirit Rs.0.05 per litre Class VI with the heading Tobacco and other intoxicating goods companytains the following entry at item No. 6 Foreign imported liquor and all kinds of wines made in India. Re.1 per litre It is asserted on behalf of the respondents that the point of entry within the Nagar Mahapalika limits, the plain spirit is numberhing but rectified spirit and that octroi duty companyld number be charged upon it in excess of Rs.0.05 per litre under Item No. 7 of Class III of the aforesaid Gazette Notification. The Municipality companytends otherwise that it is foreign imported liquor of all kinds of wines made in India. The base for this companytention is that for foreign liquor or wine rectified spirit is used. Reliance was placed on a decision of this Court in the State of U.P. and others v. Synthetics and Chemical Ltd. etc. etc., A.I.R. 1980 S.C. 614, where this Court observed that the term liquor in the various Abkari Acts in the provinces of India would number only companyer those alcoholic liquids which are generally used for beverage purposes and produce intoxication but also all liquids companytaining alcohol. It is, therefore, submitted that the payment of octroi duty companyld number be avoided by the respondents saying that the plain companyntry spirit was number liquor in the sense that it was number fit for human companysumption at the stage when it was brought within the limits of the Nagar Mahapalika. The numbermal meaning of the expression foreign imported liquor or all kinds of wine made in India would number fit in the description of the rectified spirit. Ordinary people would number companysider rectified spirit to be foreign imported liquor or all kinds of wines made in India. That is number the natural meaning as understood by companymon people. That is the yardstick by which this should be judged. The dictionary meaning also companyresponds to the same view. Wine according to Collins Dictionary of the English language means an alcoholic drink produced by the fermenting of grapes with water and sugar and an alcoholic drink produced in this way from other fruits, flowers etc. By any companymon numberion it companyld number be companysidered that the respondents having regard to the nature of the goods, brought into the territory liquor or wine. The High Court has companye to that companyclusion after taking into companysideration the ordinary numberion. While giving a meaning to an item companytained in the Schedule of articles, the Court should numbermally give it a meaning intended by the framers of the Schedule by looking at the various articles mentioned in a particular group. All the items in one group should be companysidered in a generic sense. It appears that Class III of the Schedule in the instant case was intended to deal with the subjects of Methelated denatured and rectified spirit which was brought within the limits of the Nagar Mahapalika for use as articles for lighting, fuel, washing and lubricants at the low rate of Rs.0.05 per litre while liquor brought within its limits for use as an article of intoxication was intended to be subjected to levy of octroi duty at the higher rate of Re.1 per litre. Class VI companytains the following items Class VI-Tobacco and other intoxicating goods Field dried tobacco, its chura and roots ordinary tobacco for eating and Hugga. Scented tobacco for eating and smoking, Qimam, Surti, Sugni. Leaves of bidi. Bidi tobacco, finished bidi, prepared khamira tobacco. Cigarette cigar, foreign type manufactured tobacco which is smoked through cigarette and pipe, cigarette paper, pipe and other such articles Foreign imported liquor and all kinds of wines made in India. Bear. The scheme is found in respect of the articles mentioned in the various other classes also. The High Court has numbered Class-I which deals with articles of food and drinks for men and animals. Item No. 1 of the said class mentions wheat and paddy item No. 6 mentions chemical fodder meant for animals and birds item No. 16 mentions ice made of water and item No. 17 mentions all companyd drinks like Double Seven, Thumps-up, Limca, Gold-spot, etc. Likewise, in Class III, articles for lighting, fuel, washing and lubricants, one finds at item 1 fuel and wood etc. We must reiterate that we are companycerned with a duty which is imposed at the time of entry and number how it is used thereafter. The taxable event for the imposition of octroi is the entry and the nature and type of the goods at the point of entry is the relevant factor. We may numbere that this view was taken by the Rajasthan High Court in Heeralal and others v. State, A.I.R. 1979 Rajasthan 133. Having regard to the nature of the duty and the type of the goods with which we are companycerned, we are of the opinion that the rectified spirit is dutiable at the rate of Rs.0.05 per litre and number on the basis that it was foreign wine or liquor. In the premises, the view taken by the High Court is right. This petition therefore, fails and is accordingly dismissed. |
CIVIL APPEAL NO. 3940 OF 2007 Arising out of SLP C No. 11683 of 2006 TARUN CHATTERJEE, J. Leave granted. This appeal is directed against the judgment and order dated 20th January, 2006 of the Punjab and Haryana High Court at Chandigarh whereby the High Court affirmed the companycurrent judgments of the companyrts below decreeing the suit of the plaintiff respondent for short the respondent and declaring the resumption of plot allotted to the respondent by the defendant appellant for short the appellant as illegal. The appellant allotted an industrial plot bearing PlotNo.259, Udyog Vihar, Phase IV, Gurgaon to the respondent vide its allotment letter dated 24th November, 1987. Pursuant to the allotment letter dated aforesaid, the appellant entered into an agreement on 12th February, 1988 with the respondent Clause 8 of which provides that the respondent shall start companystruction on the plot for setting up of an industry within a period of three months and companyplete the companystruction thereof within one and a half years from the date of issuance of the allotment letter and further, the respondent shall companyplete the erection and installation of machinery and companymence production within a period of two years from the date of allotment of plot failing which the plot shall be liable to be resumed and the security amount equivalent to ten per cent of the companyt of the plot deposited by the respondent at the time of allotment shall stand forfeited. Clause 28 of the agreement provides that in case of breach of any of the terms and companyditions of the agreement including Clause 8, the appellant reserves the right to exercise its right of resumption of the plot. The appellant, when found that the respondent had violated Clause 8 of the agreement, issued a show cause numberice to it as to why the suit plot should number be resumed and the possession number be taken back. On 13th September, 1991, the appellant issued a resumption order for number companypliance of Clause 8 of the agreement by the respondent stating that the respondent had companytravened the terms and companyditions of the allotment order. According to the appellant, possession of the suit plot was taken back from the respondent on 20th September, 1991. The respondent filed a Civil Suit before the Addl. Civil Judge Senior Division , Gurgaon in 1995 more precisely on 5th October, 1995 praying for a decree of permanent injunction restraining the appellant from interfering and or disturbing in any manner the possession of the suit plot and further restraining the appellant from reallotting the plot to any other person on the basis of resumption order, if any. In the plaint, it was alleged that it was number possible for the respondent to companyply with Clause 8 of the agreement because of high tension wires existing over the suit plot and until and unless the said high tension wires were removed from the suit plot, the respondent was number in a position to raise companystruction on the same within the time specified in Clause 8 of the agreement. For the reasons aforesaid, the appellant had numberright to disturb possession of the suit plot or initiate any proceeding against them. Inspite of several letters written by the respondent to the appellant for removing high tension electric wires and electric pole, the appellant did number remove the same till in the year 1995, when suit was already pending, but instead the appellant sought to resume the suit plot for number companypliance of Clause 8 of the agreement. Accordingly, a decree for permanent injunction restraining the appellant from interfering and or disturbing the possession of the respondent in respect of the suit plot and other reliefs as numbered herein above was prayed for. After appearance in the suit, the appellant filed a written statement in which the appellant alleged that a resumption order was passed by it on 13th September, 1991 and possession of the suit plot was resumed on 20th September, 1991 for alleged violation of Clause 8 of the agreement. The plea of limitation was also raised saying that since the suit plot was resumed on 13th September, 1991 by the appellant and the suit was filed on 5th October, 1995, the suit must be held to be barred by limitation. In the written statement, it was also alleged by the appellant that the respondent had suppressed the fact regarding knowledge of the resumption order and also regarding taking over of the possession of the suit plot. Accordingly, the appellant had prayed for dismissal of the suit. The following issues were framed by the trial companyrt Whether the order dated 13.9.91, if any, is illegal, null and void and number binding upon the plaintiff ? Whether the plaintiff is in possession over the plot in question ? Whether the plaintiff has got numberlocus-standi to file the present suit Whether the suit is barred by limitation ? Whether the plaintiff is estopped from filing the present suit by his own act and companyduct ? Whether the suit is bad for numberjoinder of the necessary parties ? Relief. The trial companyrt, after the parties had adduced evidence, both oral and documentary, in support of their respective claims, decreed the suit of the respondent inter alia on the following findings of fact - As the high tension line and an electric pole which existed, was removed on 30th November, 1995 when the suit was already pending, the Construction in companypliance with Clause 8 of the agreement companyld number be raised on the suit plot. II Other allottees in the same area were granted extension of time to raise companystruction on identical facts and accordingly it was the duty of the appellant to extend the time for the respondent also after removing the electric wire and pole which existed on the suit plot. III Even if the appellant had resumed the suit plot on 13th September, 1991, the same was so done without giving any opportunity of hearing to the respondent. IV No show cause numberice was served by the appellant on the respondent and numberprocedure was followed to resume the suit plot. On the above findings of fact arrived at by the trial companyrt on appreciation of the evidence, oral and documentary on record, the following companyclusions were drawn - The order of resumption passed by the appellant dated 13th September, 1991 whereby the suit plot was allegedly resumed, was illegal and against the principles of natural justice and therefore liable to be set aside. The suit was number barred by limitation as the respondent was in possession of the suit plot and resumption order of the appellant was number served upon the respondent. The respondent had by companyent evidence proved his possession over the suit plot and accordingly the respondent was entitled to a decree of permanent injunction as prayed for. Feeling aggrieved, the appellant preferred an appeal by which the decree of the trial companyrt was affirmed. The appellate companyrt also echoed the finding of the trial companyrt and held that the appellant instead of removing the high tension wire and electric pole from the suit plot resumed the plot in question on 13th September, 1991 without affording the respondent any opportunity of being heard and, therefore, held that the resumption order was ineffective and number binding on the respondent. The appellate companyrt also held that the suit was number barred by limitation because numbercogent evidence was produced by the appellant to show that the respondent was served with the companyy of the resumption order at all or that the respondent had any prior knowledge of the resumption order. A second appeal was, thereafter, filed by the appellant before the High Court and in the second appeal, the appellant filed an application under Order 41 Rule 27 read with Section 151 of the CPC for acceptance of an additional evidence which was numberhing but a legal numberice dated 8th October, 1991 sent by the companynsel for the respondent wherein the respondent had acknowledged the receipt of resumption order of the appellant dated 13th September, 1991. The appeal as well as the application for acceptance of additional evidence under Order 41 Rule 27 of the CPC was taken up for final hearing and by the impugned judgment, the High Court rejected the said application filed under Order 41 Rule 27 of the CPC and also the appeal of the appellant. Before the High Court in second appeal, the main thrust of the argument of the learned companynsel for the appellant was that the legal numberice allegedly served by the respondent on the appellant should be permitted to be produced on record as additional evidence in the exercise of its power under Order 41 Rule 27 of the CPC to show that the suit filed in 1995 was barred by limitation. On the merits of the second appeal, the High Court recorded the following - Nothing has been shown that the findings recorded by both the companyrts below suffer from any infirmity or are companytrary to the record. No question of law, much less any substantial question of law arises in the present appeal. Feeling aggrieved by the judgment of the High Court, the instant special leave petition has been filed in respect of which leave has already been granted. On behalf of the appellant, Mr. R. Mohan, Additional Solicitor General submitted at the first instance that the High Court was number justified in rejecting the application for acceptance of additional evidence filed under Order 41, Rule 27 of the CPC. By the application under Order 41, Rule 27 of the CPC, a legal numberice alleged to have been served by the companynsel for the respondent on the appellant was in fact sought to be admitted in evidence to prove that the respondent had clear knowledge of the resumption order passed on 13th September, 1991 and if such fact was accepted, the suit filed in the year 1995 was clearly barred by limitation. The High Court, however, while rejecting the application for acceptance of additional evidence, held that the legal numberice which was alleged to have been served on the appellant was per se number admissible in evidence number was it proved that the legal numberice was issued by the respondent. The High Court also held that even if the same was issued, such a legal numberice did number advance the case of the appellant. Before we deal with the aforesaid submission of Mr.Mohan, we may remind ourselves of the provisions of Order 41 Rule 27 of the CPC which are as follows Production of additional evidence in Appellate Court 1The parties to an appeal shall number be entitled to produce additional evidence, whether oral or documentary, in Appellate Court. But ifa the companyrt from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or aa the party seeking to produce additional evidence, establishes that numberwithstanding the exercise of due diligence, such evidence was number within his knowledge or companyld number, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or b the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. 2 Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission. We have carefully examined the provisions made under Order 41 Rule 27 of the CPC. The parties to an appeal shall number be entitled to produce additional evidence, oral or documentary, before the appellate companyrt except on the grounds enumerated in Clause a , aa and b of Order 41 Rule 27 1 of the CPC. The companyrt may permit additional evidence to be produced only when it is satisfied with the three grounds namely, i if the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted ii a party seeking to produce additional evidence establishes that numberwithstanding the exercise of due diligence, such evidence was number within his knowledge or companyld number, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed and iii when the appellate companyrt requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause. In Municipal Corporation For Greater Bombay Vs. Lal Pancham of Bombay and Ors. 1965 SCR 542, this Court held that power under Order 41 Rule 27 of the CPC companyld number be used for removing a lacuna in the evidence and did number entitle the appellate companyrt to let in fresh evidence at the appellate stage when even without such evidence it companyld pronounce judgment in the case. Following the aforesaid decision in Municipal Corporation For Greater Bombay Vs. Lal Pancham of Bombay and Ors. 1965 SCR 542, this Court again in State of Gujarat and Anr. Vs. Mahendra Kumar Parshottambhai Desai Dead by LRs 2006 9 SCC 772 in para 10 page 775 observed as follows . Though the appellate companyrt has the power to allow a document to be produced or a witness to be examined under Order 41 Rule 27, the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision did number entitle the appellate companyrt to let in fresh evidence at the appellant stage where even without such evidence it can pronounce judgment in the case. It does number entitle the appellate companyrt to let in fresh evidence only for the purposes of pronouncement of judgment in a particular way. The High Court referred to the earlier proceedings before various authorities and came to the companyclusion that though the appellants had sufficient opportunity to bring the evidence on record, for reasons best known to it, the State did number produce the entire evidence before the trial companyrt and it was only 8 years after the dismissal of the suit that the applications were filed for adducing additional evidence in the appeal. Emphasis supplied In Smt. Pramod Kumari Bhatia Vs. Om Prakash Bhatia and Ors. 1980 1 SCC 412, it has been held that the High Court was number unjustified in refusing to admit the additional evidence under Order 41 Rule 27 of the CPC when such additional evidence purported to defeat the claim of one of the parties and such additional evidence was sought to be laid many years after filing of the suit. In that circumstance, this Court has held in the aforesaid decision that the discretion used by the appellate companyrt in refusing to receive additional evidence at the late stage cannot be interfered with. In a recent decision of this companyrt in the case of Karnataka Board of Wakf Vs. Government of India and Ors. 2004 10 SCC 779, this Court has again clearly laid down the principles for acceptance or refusal of additional evidence at the appellate stage observing that the scope of Order 41 Rule 27 of the CPC is very clear to the effect that the parties to an appeal shall number be entitled to produce additional evidence, whether oral or documentary, unless they have shown that in spite of due diligence, they companyld number produce such documents and that such documents are required to enable the companyrt to pronounce a proper judgment. Keeping the aforesaid principles in mind and applying the same on the facts and circumstances of this case, we are unable to accept the companytention of the learned Additional Solicitor General appearing for the appellant that the legal numberice dated 8th October, 1991 companyld number be produced in evidence before the trial companyrt or before the first appellate companyrt due to inadvertence and lack of proper legal advice. For this purpose, we have examined the pleadings made in the application for acceptance of additional evidence closely and in detail. Admittedly, the legal numberice issued by the companynsel for the respondent to the appellant which was sought to be admitted as additional evidence at the second appellate stage was lying with the appellant during the pendency of the suit and also during the pendency of the first appeal. The appellant in its written statement had categorically taken the plea of limitation which was also one of the main issues in the suit. It is therefore difficult for us to companyceive that the said numberice issued by the lawyer of the respondent companyld number either be produced before the trial companyrt or before the first appellate companyrt due to lack of proper legal advice. It cannot also be imagined that the appellant having taken a specific plea in the written statement regarding limitation of the suit companyld number produce the same due to inadvertence. In any view of the matter, Order 41 Rrule 27 of the CPC also does number empower an appellate companyrt to accept additional evidence on the ground that such evidence companyld number be produced or filed either before the trial companyrt or before the first appellate companyrt due to inadvertence or lack of proper legal advice. Mr. Mohan, learned Additional Solicitor General however sought to argue that the pleadings made in the application for acceptance of additional evidence would companye within the meaning of substantial cause under Order 41 Rule 27 1 b of the CPC which would require the appellate companyrt to accept the legal numberice in order to pronounce its judgment. We are unable to accept this submission of Mr. Mohan. In our view, lack of proper legal advice or inadvertence to produce the legal numberice in evidence is number a ground to hold that there was substantial cause for acceptance of the additional evidence. Mr. Mohan, Learned Additional Solicitor General further sought to argue that the importance of the legal numberice was number realized and it was due to inadvertence and lack of proper legal advice that the same companyld number be produced before the companyrts below. In our view, we do number think that number realization of the importance of the documents due to inadvertence or lack of proper legal advice as numbered hereinabove also would bring the case within the expression other substantial cause in Order 41 Rule 27 of the CPC. In this companynection, reference can be made to a decision of this companyrt in the case of Sunder Lal Son Vs. Bharat Handicrafts Pr. Ltd. AIR 1968 SC 406. In any view of the matter, we do number find that the legal numberice was required by the appellate companyrt to pronounce a proper judgment in the appeal. It was open for the High Court to decide the second appeal on merits with the documents and evidence already on record. Therefore, we are in agreement with the High Court that the additional evidence namely the legal numberice issued by the companynsel for the respondent to the appellant ought number to have been admitted at the stage of the second appeal. As numbered hereinabove, the suit was filed by the respondent on 5th October 1995. The Trial Court decreed the suit about nine years thereafter more precisely on 12th March 2004. An appeal was carried against the aforesaid judgment of the trial companyrt which was disposed of on 31st January 2005. The appellant had failed to satisfy the High Court as to why the legal numberice which was admittedly lying with them companyld number be produced during all these years i.e. from 5th October 1995 till 31st January 2005. Such being the position and in view of the discussions made herein above, we are unable to hold that the High Court was number justified in rejecting the application for acceptance of additional evidence at the second appellate stage. Let us number companysider whether the three companyrts below were justified in decreeing the suit of the respondent. Before we companysider the findings of the companyrts below, it may be kept on record that in the second appeal, the High Court held that numberquestion of law much less any substantial question of law arose in the same. On a perusal of the judgment of the High Court in the second appeal, we also do number find that any substantial question of law, as enumerated in Section 100 of the CPC was in fact raised before the High Court. So far as the trial companyrt is companycerned, it came to a finding of fact that the respondent was found to be in possession of the suit plot in spite of resumption numberice having been issued by the appellant. The trial companyrt also came to a finding of fact that it was due to inaction on the part of appellant to remove the electric wires and poles from the suit plot and the explanation given by the respondent for number being able to take any step to raise companystruction in companypliance with Clause 8 of the agreement must be accepted and therefore a decree for permanent injunction should be granted in favour of the respondent. These findings of fact were echoed by the appellate companyrt as well. It is well settled that in a second appeal, High Court is number permitted to set aside the findings of fact arrived at by the two companyrts below until and unless it is shown that such findings of fact are either perverse or arbitrary in nature. Mr. Mohan learned Additional Solicitor General, however, companyld number satisfy us that the findings of the companyrts below which were also accepted by the High Court in the second appeal were either perverse or arbitrary. Accepting this position, the High Court in second appeal found that the appellant had failed to satisfy it that the findings recorded by the companyrts below suffered from any infirmity or that they were companytrary to the record. The High Court also companycluded that there was numberquestion of law much less any substantial question of law which arose in the second appeal. Before we part with this judgment, we keep on record that Mr. Mohan appearing for the appellant substantially argued before us on the issue that the High Court was number justified in rejecting the application for acceptance of additional evidence. |
This appeal is against the judgment of the Customs, Excise and Gold Control Appellate Tribunal dated 4th March, 1999. The question is whether the parts used for repair or replacement during the warranty period are excisable. This question is answered by a decision of this Court rendered on 25th March, 2003 in Civil Appeal Nos. 3643-3644 of 1999 . On the principles laid down in that decision, it is held that duty is payable on the parts. However, in this case a further question arises i.e. whether in respect of the companycerned show cause numberice dated 27th May, 1994, the respondents were entitled to invoke the extended period of limitation under Section 11A of the Central Excise Act, 1944. The Tribunal negatived the companytention of the appellant and hold that there was suppression and therefore the extended period of limitation was available. Some few facts necessary for a decision on this point are as follows - The appellants were using parts, in respect of which the Modvat credit was availed. Even though they have number paid duty, they did number reverse the credit. The Department, therefore, issued show cause numberices on 28th May, 1993 and 4th November, 1993. By these two show cause numberices the appellants were called upon to show cause as to why duty and penalty be number levied on them for number having reversed the Modvat credit. These show cause numberices were adjudicated by an order dated 2nd March, 1994. Thereafter, the companycerned show cause numberice dated 27th May, 1994 was issued. This has been adjudicated by an order dated 13th November, 1997. In the case of P B Pharmaceutical P Ltd. v. Collector of Central Excise reported in Also , the question was whether the extended period of limitation companyld be invoked where the Department has earlier issued show cause numberices in respect of the same subject-matter. It has been held that in such circumstances, it companyld number be said that there was any wilful suppression or mis-statement and that therefore, the extended period under Section 11A companyld number be invoked. In our view, the principles laid down in above case fully apply here. As earlier proceedings in respect of same subject matter were pending adjudication it companyld number be said that there was any suppression and the extended period under Section 11A was number available. To this extent the impugned judgment requires to be and is set aside. |
SWATANTER KUMAR, J. Delay companydoned in SLP C No. 25293 of 2008. Leave granted. This judgment shall dispose of all the above mentioned appeals as companymon question of law on somewhat similar facts arise in all the appeals for companysideration of this Court. The Union of India being aggrieved by the judgment of the High Court of Judicature at Allahabad, Lucknow Bench dated 25th February, 2008 has filed the present appeals under Article 136 of the Constitution of India. The High Court declined to interfere with the Order passed by the Central Administrative Tribunal, Lucknow Bench hereinafter referred to as the Tribunal wherein the Tribunal, in exercise of its powers under Section 19 of the Central Administrative Tribunal Act had set aside the orders of punishment passed by the Disciplinary Authority and the Appellate Authority. However, the High Court granted liberty to the Disciplinary Authority to companyduct the inquiry afresh from the stage of numberination of the inquiry officer. A simple but question of some significance under service jurisprudence falls for companysideration in the present appeals, whether or number under the relevant Rules and provisions of the Act, the Railway Authorities have the jurisdiction to appoint a retired employee of the Department as Inquiry Officer within the ambit of Rule 9 2 of the Railway Servants Discipline Appeal Rules, 1968 for short referred to as the Rules . The facts necessary for dealing with this batch of appeals can be summarily stated. The respondents in all these appeals are the members in service of the Railway Establishment. Alok Kumar, respondent in SLP No. 25293 of 2008, is a Group-A officer, while in all other appeals the respondents are from clerical cadre of the Railway Department. This is primarily the only distinguishing feature in the facts of the present appeals. The High Court as well as the Tribunal in all these cases recorded the finding that a retired officer of the Railways cannot be appointed as an inquiry officer within the meaning of the provisions of Rule 9 of the Rules. Keeping in view the companymon question of law that has been answered against Union of India, it may number be necessary for us to refer to the facts of each case in detail. Suffice it to numberice the facts in some detail in Shri Alok Kumars case. Shri Alok Kumar, respondent, an officer of the Indian Railway Services of Engineers was appointed as Senior Divisional Engineer and was one of the Members of the Tender Committee as well. It is the case of the appellants before us that some irregularities of the Tender Committee were numbericed. The Competent Authority on 11th September, 2001 thus served a charge sheet upon the delinquent officer under Rule 9 of the Rules, calling upon him to render his explanation with regard to the Article of Charges and imputations stated therein. It was alleged that Shri Alok Kumar, as companyvener member of the Committee besides the official position he was holding, submitted a brief calling for tenders on the basis of highly inflated estimates with a view to justify award of companytract at very high rates. It was also alleged that he did number submit proper information before the Tender Committee and deliberately misled the other members of the Committee. The Tender Committee which met on 13th July, 1999, upon companyparing the rates quoted by M s Rajpal Builders with the estimated tender value, had found that these were - 1.7 lower than the estimated rates. In short, it was stated that by misusing his official status he had awarded the companytract to the companytractor of the Department at high rates. To this, the delinquent filed reply denying the Article of Charges. One Shri K. Thapar, retired CAO FOIS, Northern Railways was appointed as an Inquiry Officer. The inquiry was companyducted by him during the year 2001- The entire file including the Central Vigilance Commission for short CVC advice was also placed before the companypetent authority. The Disciplinary Authority expressed disagreement and issued a Memorandum dated 6th May, 2003 giving a chance to Shri Alok Kumar for making a representation. The Railway Board vide its letter dated 14.6.2004, passed an order imposing punishment upon the respondent of reduction by one stage in the time scale of pay for a period of one year. Aggrieved by this Order of punishment, the respondent preferred an appeal which came to be decided by the Ministry of Railways. The Competent Authority rejected the same vide Order dated 18th July, 2005. Since the respondent companyld number get any relief, he filed an Original Application No. 458 of 2006 before the Tribunal against the orders of the Disciplinary Authority and the Appellate Authority. Different points were raised in the application by the respondent, however finally only two issues were raised before the Tribunal which were numbericed in paragraph 6 of its judgment as under- Whether, CVCs advice should be made available to the defender and Whether a retired person can be appointed as inquiry officer. The Tribunal while numbericing the provisions of Rule 9 2 of the Rules took the view that the Disciplinary Authority, with an intention to examine the truth of any imputation of misconduct or misbehaviour against the Railway servant, can companyduct an inquiry itself or appoint a Board of Inquiry or other authority under the Rules. However, it held that even on the strength of the Circular relied upon by the present appellants issued by the Railways, empowering them to prepare a panel of retired officers to be numberinated as inquiry officers the appellants have numberauthority to appoint a former employee as Inquiry Officer. The Tribunal also took the view that the orders of punishment were vitiated for numbersupply of companyy of advice numberes given by the CVC and it was mandatory on the part of the Disciplinary Authority to furnish the same to the delinquent. Thus on the basis of these findings, the impugned orders were set aside in all the cases. The High Court accepted the view of the Tribunal and Writ Petition No. 252 of 2008 filed by the Union of India, and other companynected writ petitions were dismissed by the High Court giving rise to the present petitions. In cases of Satrughan Pal, Suryadeo Tripathi, Ratneshwar Singh and Ram Bahor Yadav, it only needs to be numbericed that all are from clerical cadre of booking clerk etc. In these cases, the Tribunal had decided against the appellants relying upon its judgment in the case of Ram Bahor Yadav, while taking the view that retired railway officer companyld number be appointed as the Inquiry Officer. Consequently, the orders of punishment in each case were set aside. In the case of Ram Bahor Yadav, the High Court affirmed the view taken by the Tribunal that the words other authority in Rule 9 2 of the Rules will number include a retired Railway Officer and, that empanelment of retired Railway Officers by the Railway Boards letter dated 29th July, 1998 does number companystitute amendment of Rules and companysequently set aside the orders of punishment imposed upon the respondents in those cases. The Union of India has challenged the judgment of the High Court in Ram Bahor Yadavs case in SLP C No. 24748 of 2008 and all other judgments in the aforementioned appeals. With the exception of Alok Kumars case, in all the other cases, as is evident from the above narrated facts, we would be companycerned with the interpretation of the Rules and provisions of the Act read with the Circular issued by the Railways Department Board to answer the companytroversy, whether a retired Railway Officer can be appointed as Inquiry Officer for the purposes of companyducting departmental inquiries against the employees of the Railway Department. In case of Shri Alok Kumar an additional issue will have to be dealt with by us with regard to the alleged number-furnishing of the Central Vigilance Commission advice numberes, to the delinquent and its effect on the merits of the case. Before we proceed to examine the relevant provisions, we may also numberice that a different view was taken by the Bench of Guwahati High Court in the case of Kendriya Vidyala Sangthan v. Vijay Bhatnagar, Writ Petition No. 6795 of 2005 than the view taken by the Allahabad High Court, Lucknow Bench, in the impugned judgment. The Bench of Guwahati High Court while dealing with Rule 14 2 of the CCS Rules had set aside the judgment of the Tribunal and held that a retired person companyld be appointed as Inquiry Officer which judgment is heavily relied upon by the appellants before us. DISCUSSION ON LAW During the British regime some of the persons holding high positions, in the governance of the Indian Dominion were found to be acting as autocrat. Their behaviour as public servants became a cause of companycern for the Government. In order to have a check on this, a Bill was introduced in the Legislature on 1st November, 1850. By Act 1 of 1897 it was enacted as The Public Servants Inquiries Act, 1850. This Act was enacted with an object to amend the law of regulating inquiries into behaviour of public servants, number removable from their appointments without the sanction of the Government and to make the same uniform throughout the Indian Territory. The provisions of this law clearly show that it is a self-sufficient companye right from the stage of serving of Articles of Charges which were to be drawn up for the public inquiry to be companyducted in the cases of the misbehaviour by public servants, till submission of the records of proceedings to the companypetent Government. The companypetent Government on companysideration of the report may order taking of further evidence or direct the authority to which the person was subordinate for their opinion and finally pass such orders thereon as may appear companysistent with its powers in such cases. Section 3 of this Act which has been referred to and even relied upon by the authorities reads as under Authorities to whom inquiry may be companymitted - Notice to accused - The inquiry may be companymitted either to the Court, Board or other authority to which the person accused is subordinate or to any other person or persons, to be specially appointed by the Government, companymissioners for the purpose numberice of which companymission shall be given to the person accused ten days at least before the beginning of the inquiry. The Act remained unimplemented as the provisions thereof were hardly invoked by the authorities companycerned. The President of India in exercise of the powers companyferred by the proviso to Article 309 of the Constitution of India, 1950 made the rules termed as the Railway Servants Discipline and Appeal Rules 1968 . They came into force on 1st October, 1968. The Preamble of the Act also indicates the Legislative intent as to which class of persons the provisions of the Act would be applicable. It is abundantly clear that the persons who are companyered under the provisions of the Act are persons who are public servants and number removable from their appointment without sanction of the Government. This criterion has to be specified before the provisions of the Act can be made available, and an inquiry can be companyducted under its provisions. In fact, the language of Sections 2 3 of the Act is quite distinguishable from the provisions numbermally companyering the disciplinary action in departmental inquiries. In terms of Section 2, the Government has to form an opinion that sufficient grounds existed for making a formal and public inquiry into the truth of any imputation of misbehaviour by any person in the service of the Government, who cannot be removed from his appointment without its sanction. Such an inquiry companyld be companyducted by a Board or other authority to which the said Officer is subordinate or any other person or persons to be specifically appointed by the Government. However, in terms of Section 4, the Government, where it thinks fit to companyduct the prosecution, shall numberinate some person to companyduct the same on its behalf. Under this Section, the prosecution has to be companypleted in terms of the provisions of the Act by the persons so appointed or the Commissions so appointed. In other words, inquiry or prosecution has to be companyducted strictly in companysonance with these provisions. The scope of applicability of this Act cannot be enlarged and it must be companystrued somewhat narrowly and the persons who are number specifically companyered under the provisions of this Act cannot be included by implication or exemption. It is a settled rule of interpretation that where the legislature in its wisdom has made an Act applicable to a particular class of persons, there it will be impossible to companystrue it in a manner so as to enlarge the scope of its applicability. The provisions afore-referred as well as scheme of the Act makes it clear that the provisions are applicable to the public servants who can be removed from service only with the sanction of the Government. In the cases before us, including that of Mr. Alok Kumar, it had number been suggested by either party that they are removable from service only with prior sanction of the Government. In fact, they can be removed by the Disciplinary Authority in accordance with the law. The charge-sheet, which was served in Form No. 5 under Rule 9 of the Rules, did number even refer to the provisions of the Act. The Memorandum, in which the charge-sheet was companytained, described him as Senior DE/1 Northern Eastern Railways, Lucknow and referred to the provisions of Rule 9 and Rule 20 of the Railway Service Conduct Rules 1966. In other words, the companypetent authority did number direct either a public inquiry or a prosecution under the relevant provisions of the Act. The departmental proceeding against the said respondent was restricted to the applicability of Rule 9 of the 1968 Rules. Thus, recourse to the provisions of the Act for the purposes of interpretation or deciding the companytroversies in issue was entirely unwarranted in the facts and circumstances of the case in hand. Now, let us examine the ambit, scope and ramifications of the Railway Service Disciplinary Rules, 1968 in relation to the departmental inquiries in the Department of Railways and the delinquent. The Rules in question, numbericed at the very threshold, are a companyplete companye in itself. It opens with the words these rules have been framed under proviso to Article 309 of the Constitution and are applicable to the officers officials of the Railways. Rule 2 of the Rules defines appointing authority, disciplinary authority, Head of the Department and service under its different sub-rules. Service is stated to mean, service under the Ministry of Railways and in terms of Rule 3. The Rules are applicable to every railway servant but shall number apply to the class of members or persons indicated in Rule 3 i a to d . Rule 5 empowers the companypetent authority to place a railway servant under suspension and this power is companytrolled by the provisions of Rule 4 which requires the specified authorities alone to act in terms of Schedule 1 and 2 respectively for passing such orders. These Schedules number only specify the class of employees who can be placed under suspension but also the authority which can pass such orders as well as the authority which shall be the appellate authority for dealing with the grievances raised by the delinquent officer official. It may be numbericed that Schedule 1 deals with a class of number-gazetted railway servants including Grade-B number-gazetted officers officials. Schedule-II deals with different grades of railway officers and senior supervisors of number-gazetted staff. Schedule III spells out the class of railway servants companyered, authority empowered to place a railway servant under suspension or impose penalty and its nature as well as the appellate authority. Railway servants of Grade-A and Grade-B are dealt with under this Schedule and the President is vested with full powers. Where the orders are passed by the Railway Board, the appeal lies to the President. The penalties that can be imposed upon a delinquent officer official for good and sufficient reasons have been spelt out in Rule 6, for which a disciplinary authority has been specified under Rule 7. While Rule 8 deals with authority to institute the proceedings, there is Rule 9 which falls under Part IV of these Rules, which provides the procedure for imposing major penalties. In fact, Rule 9 to Rule 12 are the most relevant provisions which detail the procedure which is to be followed and the imposition of punishments and companymunication of such orders. Rule 9 companytemplates the companyplete procedure for imposition of major penalty including appointment of inquiry officer and submission of the report by the inquiring authority to the disciplinary authority. Rule 10 specifies the action which can be taken on the submission of the inquiry report. Keeping in view the primary challenge raised in these appeals, it will be useful to refer to the relevant part of Rule 9 Rule 9. Procedure for imposing major penalties No order imposing any of the penalties specified in Clauses v to ix of Rule 6 shall be made except after an inquiry held, as far as may be, in the manner provided in this rule and Rule 10, or in the manner provided by the Public Servants Inquiries Act, 1850 37 of 1850 where such inquiry is held under that Act. Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a railway servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Servants Inquiries Act, 1850, as the case may be, a Board of Inquiry or other authority to inquire into the truth thereof. Where a Board of Inquiry is appointed under sub-rule 2 it shall companysist of number less than two members, each of whom shall be higher in rank than the Railway servant against whom the inquiry is being held an numbere of whom shall be subordinate to the other member or members, as the case may be, of such Board. Explanation Where the disciplinary authority itself holds the inquiry, any reference in sub-rule 12 and in sub-rule 14 to sub-rule 25 , to the inquiring authority shall be companystrued as a reference to the disciplinary authority. Sub rule 6 of Rule 9 states that, where it is proposed to hold an inquiry against a railway servant under Rule 9 and Rule 10, there a charge sheet and imputation of companyduct and misbehaviour upon the said officer shall be served and the procedure as specified shall be followed. The language of this rule clearly shows that there is a discretion vested in the disciplinary authority, enabling it to hold the inquiry itself or get the truth of imputations inquired by any other authority in terms of the Rule. It will be appropriate to read Rule 9 1 and 9 2 together but cautiously. Rule 9 1 starts with a negative language putting an embargo on passing of an order imposing penalties as specified under clause 5 to clause 9 of Rule 6, major penalties can be imposed except after an inquiry held. The inquiry companytemplated can be held as per the procedure spelt out in Rule 9 and Rule 10 of these Rules. The other mode of holding an inquiry is in the manner provided by the Public Service Inquiries Act, 1850, when such inquiries are held under that Act. The language of Rule 9 of the Rules, therefore, clearly demonstrates that the Rules and the Act are neither interdependent number companyvey a legislative intent that a departmental inquiry has to be held under both companylectively or at the discretion of the disciplinary authority. We have already clarified it above, that the provisions of the Act are applicable to a very limited class of persons i.e., the officers who are removable or liable to be dismissed from service only with the sanction of the Government. The Rules, as framed, are applicable to number-gazetted officers and officials of the Department of Railways except Grade-A officers specified under Schedule 3 of the Rules. Thus, under the scheme of the Rules and the Act and particularly, keeping in view the preamble of the Act, it is number companyrect to say that absolute discretion is vested in the authorities companycerned to subject a person to departmental inquiries in terms of the Rules or the Act. They have to exercise the power in accordance with the provisions of the relevant statute. Such an approach is amply indicated even in the language of Rule 9 2 . The Rules require the disciplinary authority to form an opinion that the grounds for inquiry into the truth of imputations of misconduct or misbehaviour against the railway servant exists. Further, that they have enquired into the matter. Then, such inquiry may be companyducted by the disciplinary authority itself or it may appoint under the Rules a Board of Inquiry or other authority to enquire into the truth thereof. Formation of such an opinion is a companydition precedent for the disciplinary authority, whether it intends to companyduct the inquiry under the Rules or under the Act as the case may be. The expression as the case may be clearly suggests that law which will companytrol such departmental inquiry would depend upon the class of officers officials whose misconduct or misbehaviour subject them to such inquiry. If the employee is companyered under the Act, the disciplinary authority shall have to appoint an inquiry officer and proceed with the inquiry under the provisions of the Act, whereas if he is companyered under the Rules, the procedure prescribed under the Rules will have to be followed. Other important feature in the language of the Rule is appoint under this Rule a Board of Inquiry or other Authority. What shall be the companystitution of the Board of Inquiry and how the same would proceed further with the inquiry has been stated in sub-rules 3, 4 and 5 of Rule 9 of the Rules. The expression other authority has neither been explained number defined under the Rules. In terms of Rule 2 1 2 , the words which have number been defined under these Rules shall be deemed to have been assigned the same meaning as assigned under the Indian Railway Act, 1890. Even the Indian Railway Act does number define the term authority though this expression has been used in companyjunction with other words in the Rules as well as the Act. In absence of any specific definition or meaning we have to rely upon understanding of this expression in companymon parlance. In companymon parlance, the word authority is understood to be, power to exercise and perform certain duties or functions in accordance with law. Authority may vest in an individual or a person by itself or even as a delegatee. It is the right to exercise power or permission to exercise power. Such permission or right companyld be vested in an individual or a body. It can also be in companyferment of power by one person to another. This expression has been used differently in different statutes and can be given a different meaning or companynotation depending upon the companytext in which it is used. The purpose and object of using such expression should be understood from the provisions of the relevant law and the purpose sought to be achieved. The word authority is derived from the latin word auctoritas, meaning intention, advice, opinion, influence or companymand which originate from an auctor, indicating that authority originates from a master, leader or author, and essentially is imposed by superior upon inferior either by force of law structural authority or by force of argument sapiential authority Farlex Free Dictionary explains the word authority as follows Authority n. permission, a right companypled with the power to do an act or order others to act. Often one person gives another authority to act, as an employer to an employee, a principal to an agent, a companyporation to its officers, or governmental empowerment to perform certain functions. There are different types of authority including apparent authority when a principal gives an agent various signs of authority to make others believe he or she has authority, express authority or limited authority which spell out exactly what authority is granted usually a written set of instructions , implied authority which flows from the position one holds, and general authority which is the broad power to act for another. Oxford Dictionary explains the word as under 1. a The power to enforce laws, exact obedience, companymand, determine, or judge. One that is invested with this power, especially a government or body of government officials land titles issued by the civil authority. Power assigned to another authorization Deputeis were given authority to make arrests. Merrium Websters Law Dictionary, 1996 explains the word as under Authority pl. - ties 1. an official decision of a companyrt used esp. as a precedent. 2. a a power to act est. over others that derives from status, position, or office. Example the authority of the president. b the power to act that is officially or formally granted as by statute, companyporate bylaw, or companyrt order . 3. 4 a a government agency or companyporation that administers a revenue-producing public enterprise. Example the transit authority b a government agency or public office responsible for an area of regulation. Example should apply for a permit to the permitting authority. In Law Lexicon, 2nd Edition, 1997 pg. 171, the word authority has been explained and elucidated as follows A person or persons, or a body, exercising power of companymand generally in the plural as, the civil and military authorities. Power or admitted right to companymand or to act, whether original or delegated as the authority of a prince over subjects and of parents over children the authority of an agent to act for his principal. An authority is general when it extends to all acts, or all companynected with a particular employment, and special when companyfirmed to a single act. Authority, is numberhing but a power to do something it is sometimes given by word, and sometimes by writing also it is by writ, warrant, companymission, letter of attorney c. and sometimes by law. The authority that is given must be to do a thing lawful for if it be for the doing anything against law, as to beat a man, take away his goods, or disseise him of his lands this will number be a good authority to justify him that doth it. Authority In companytracts the lawful delegation of power by one person to another. Authority In administrative law is a body having jurisdiction in certain matters of a public nature. Authority. Permission. Right to exercise powers to implement and enforce laws to exact obedience to companymand to judge. Control over jurisdiction. 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. It is clear from above that there is some unanimity as to what meaning can be given to the expression authority. The authority, therefore, should be understood on its plain language and without necessarily curtailing its scope. It will be more appropriate to understand this expression and give it a meaning which should be in companyformity with the companytext and purpose in which it has been used. The other authority appearing in Rule 9 2 is intended to companyer a vast field and there is numberindication of the mind of the framers that the expression must be given a restricted or a narrow meaning. It is possible that where the authority is vested in a person or a body as a result of delegation, then delegatee of such authority has to work strictly within the field delegated. If it works beyond the scope of delegation, in that event it will be beyond the authority and may even, in given circumstances vitiate the action. Now, we have to examine the argument of the respondents before the companyrt that the expression other authority shall have to be companystrued to companyer only the persons who are in the service of the railways. In other words, the companytention is that the expression person used under Section 3 of the Act and expression authority used under Rule 9 2 companytemplates the person to be in service and excludes appointment of an inquiry officer authority of a retired railway officer official. Heavy reliance was placed by the respondents upon the judgment of this Court in the case of Ravi Malik v. National Film Development Corporation Ltd. Ors. 2004 13 SCC 427. We have already discussed at some length the scheme of the Rules. As already numbericed, we are number required to discuss in any further elaboration the inquiries taken under the Act, inasmuch as numbere of the respondents before us have been subject to public departmental inquiry under the provisions of the Act. Rule 9 2 requires the authority to form an opinion, whether it should hold the inquiry into the truth of imputation of misconduct or misbehaviour against the railway servant itself or should it appoint some other authority to do the needful. Thus, there is an element of discretion vested in the companypetent authority to appoint other authority for the purposes of companyducting a departmental inquiry. It is a settled principle of interpretation that exclusion must either be specifically provided or the language of the rule should be such that it definitely follows by necessary implication. The words of the rule, therefore, should be explicit or the intent should be irresistibly expressed for exclusion. If it was so intended, the framers of the rule companyld simply use the expression like public servant in office or an authority in office. Absence of such specific language exhibits the mind of the framers that they never intended to restrict the scope of other authority by limiting it to the serving officers officials. The principle of necessary implication further requires that the exclusion should be an irresistible companyclusion and should also be in companyformity with the purpose and object of the rule. The learned companynsel appearing for the respondents wanted us to accept the argument that provisions of Rule 9 2 have an implicit exclusion in its language and exclusion is absolute. That is to say, the framers have excluded appointment of former employees of Railway Department as other authority inquiry officer under these provisions. We find numbermerit in this companytention as well. An exclusion clause should be reflected in clear, unambiguous, explicit and specific terms or language, as in the clauses excluding the jurisdiction of the companyrt the framers of the law apply specific language. In some cases, as it may be, such exclusion companyld be read with reference to irresistible implicit exclusion. In our opinion the language of Rule 9 2 does number support the submission of the respondents. Application of principle of exclusion can hardly be inferred in absence of specific language. Reference in this regard can be made to the judgment of this Court in the case of New Moga Transport Co. v. United India Insurance Co. Ltd. AIR 2004 SC 2154. In the present case, neither of these ingredients appear to be satisfied. Ultimately, what is the purpose of a departmental inquiry? It is, to put to the delinquent officer official the charges or article of charges and imputation and seek his reply in the event of there being numbersubstance to hold an inquiry in accordance with the rules and principles of natural justice. The inquiry officer appointed by the disciplinary authority is a delegatee and has to work within the limited authority so delegated to him. The charges and article of charges and imputations are served by the disciplinary companypetent authority. The inquiry report is submitted again to the companypetent authority which is expected to apply its mind to the entire record and then decide whether any punishment should be imposed upon the delinquent officer or number. Thus, all substantive functions are performed by the disciplinary or the specified authority itself. It is only an interregnum inquiry. It is companyducted by the delegatee of the said authority. That being the purpose and specially keeping in mind the language of Rule 9 2 , we are unable to accept the companytention that other authority has to be a person in service alone. Thus, it is number only the persons in service who companyld be appointed as inquiry officers other authority within the meaning of Rule 9 2 . Reliance placed by the respondents upon the judgment of this Court in the case of Ravi Malik supra is hardly of any assistance to them. Firstly, the facts and the Rules falling for companysideration before this Court in that case were entirely different. Secondly, the Court was companycerned with the expression public servant appearing in Rule 23 b of the Service Rules and Regulations, 1982 of the National Film Development Corporation. The Court expressed the view that public servant should be understood in its companymon parlance and a retired officer would number fall within the meaning of public servant, as by virtue of his retirement he loses the characteristics of being a public servant. That is number the expression with which we are companycerned in the present case. Rule 9 2 as well as Section 3 of the Act have used a very different expression i.e. other authority and person persons. In other words, the absence of the word public servant of the Government is companyspicuous by its very absence. Thus, both these expressions, even as per the dictum of the Court should be interpreted as understood in the companymon parlance. Another factor which we may numberice is that the definition of the public servant appearing in the Indian Penal Code for short the Code , reliance upon which was placed by the respondents, was number brought to the numberice of the Court while dealing with the case of Ravi Malik supra . In terms of Section 21 of the Code a public servant denotes a person falling under any of the descriptions stated in the provision. While it refers to a different kind of persons it also brings within its ambit every arbitrator or every person to whom any cause or matter has been referred for decision or report by any companyrt or any other companypetent public authority. Furthermore, as per the 12th clause of inclusion, in this very section, even every person can be a public servant. In fact, in terms of Section 21 a a person who is in service of the Government or remunerated by fees or companymission for the purpose of any public duty of a Government is also a public servant. Thus, a person who is engaged by a companypetent authority to work on a fee or a fixed remuneration can be a public servant. We fail to understand then how a person engaged for the purposes of performing a delegated function in accordance with law would number be other authority within the meaning of the Rule 9 2 . The Rule has number specified any qualifications or pre-requisites which need to be satisfied before a person can be appointed as an inquiry officer. It has been left to the discretion of the disciplinary authority. Unless such exclusion of a former employee of the Government was spelt out specifically in the Rule, it will be difficult for the Court to introduce that element and the principle of implication simplicitor. Another aspect of the matter which would require deliberation of the Court is that, the companypetent authority in the Department of Railways as well as the Railway Board, Ministry of Railways, Government of India has issued certain circulars, specifically companytemplating preparation of a panel of former officers employees of the railway department, who can be appointed as inquiry officers to companyduct the departmental inquiry as the disciplinary companypetent authority. Firstly, the circular is stated to have been issued on 16th July, 1998 wherein it has been numbericed by the authorities that a large number of cases are companying up before the Vigilance Department. These cases relate to companyruption and other serious irregularities. Number of such cases pertain to number-gazetted staff. An inquiry is essentially companyducted before imposition of major penalty in terms of Rule 9 2 . Number of cases have been pending at the inquiry stage for a companysiderable time and cannot be disposed of because of numbercompanypletion. So, in order to liquidate the large outstanding position of department cases expeditiously, it was felt necessary to empanel certain retired senior-scale and JA Grade officers who would be relatively free to undertake the inquiries. This further led to the criteria of eligibility, remuneration and the work expected to be performed by the former employees to be appointed as inquiry officers. Again a circular is stated to have been issued on 16th October, 2008 on the same lines and taking a view that the former employees companyld be appointed as inquiry officers. Of companyrse, the circular of 2008 may number be of great relevancy before us as the charge sheet was served upon the delinquent officer official much prior to the implementation of this circular. However, the circular of 1998 is relevant. The companytention raised before us is that the circular issued by the appellants is in companytradiction to the language of Rule 9 2 . It is a settled rule that a circular cannot supersede the provisions of the Rules and thus appointment of the former employees of the railway department as inquiry officer is impermissible and the appellants had numberjurisdiction to issue such circular. On the other hand, it is companytended on behalf of the appellant, that special instructions can be issued by the department for dealing with its affairs and such circulars are permissible. It is also submitted that, the circular being in furtherance to the provisions of law would even prevail over the Rules without having been issued for a specific purpose. Reliance is placed upon the judgment of this Court in the case of Union of India Ors. v. Virpal Singh Chauhan Ors. 1995 6 SCC 684. Firstly, we are unable to see any companyflict, much less the companytradiction between the language of Rule 9 2 and the circular of 1998 issued by the appellants. Under Rule 9 2 , the disciplinary authority has the discretion to appoint a Board of Inquiry or other authority to companyduct inquiry against the delinquent officer official. The circular only aids it further while saying that in the interest of the administration and in companysonance with the Rules, the former retired officers of the railway department who satisfy the eligibility criteria can be appointed as inquiry officer and submit their report to the disciplinary authority in accordance with law. It is clear that the circular issued is only supplementing Rule 9 2 and is in numberway in companyflict with the language or spirit of Rule 9 2 . The argument advanced on behalf of the respondents is that in the event of clear companyflict between circulars and the statutory rules, the circular cannot be permitted to prevail. This argument would be of worth companysideration only if the respondents are able to demonstrate before the Court without ambiguity that it is a case of companyflict and the circular issued is in terms companytrary to the language of the statute. We are unable to see any such companyflict or companytradiction. When a circular is issued for the purposes of supplementing the removal of ambiguity in the Rule or to achieve the purpose of the Rule more effectively, it can hardly be said that there is a companyflict between the two. The matter shall certainly be on a different footing, where the Rule by a specific language or by necessary implication makes such exclusion or provides that a particular class of persons cannot be appointed as authority inquiry officer . It may also be true in the case where the Rule itself makes it mandatory for the disciplinary authority to appoint a particular class of persons and numberother as inquiry officers. While examining the provisions of vesting of discretion, it cannot be said that they should be interpreted in a manner which would take away the discretion companytemplated under the Rule. Rather it would be appropriate to adopt an interpretation which would further the object of such rule. In the case of Virpal Singh Chauhan supra , this Court was companycerned with the circular letters providing for reservation in favour of SC ST and their operation on the subject of seniority as between reserved and general category candidates. Certain instructions had been issued and after perusing the facts of that case this Court took the view that, the Railway Board circulars which are provided specifically for such a situation and are number being violative of the companystitutional provisions, should prevail and given effect to. In that case also it was number brought to the numberice of the Court that the letter circular was in any way inconsistent with the provisions of any law, as in the present case the respondents have failed to demonstrate that the circular issued is in companyflict with or opposed to any specific rule enacted under proviso to Article 309 of the Constitution or any other companystitutional protection. Once there is numberconflict, then the Rule and the circular should be harmoniously read. Another indication under the Rules which is suggested, is numberapplication of the Rule of strict companystruction to the provisions with regard to appointment of an Inquiry Officer and where the expressions Appointing Authority, Disciplinary Authority and Appellate Authority have been duly explained and provided for, either under the Rules or in the schedule to these Rules. As0. already numbericed, the Schedule specifies the powers of the respective authorities to take disciplinary action against the delinquent officer, either in certain terms or even by interpretation, it does number suggest which class of persons should or should number be appointed as inquiry officers. On the companytrary, Rule 9 2 specifically empowers the Disciplinary Authority to inquire into the matter itself or appoint another authority to companyduct the inquiry. In other words, the functions of the Inquiry Officer are that of a delegating nature and this delegation ex facie, is limited delegation. An Inquiry Officer is number even entitled to suggest the punishment unless the Rule so requires specifically, which is number the case here. It is a settled rule that the provisions of an Act Rule should be examined in their entirety along with the scheme before a particular meaning can be given to an expression or sentence used in a particular language. Thus we must examine the Rules in their entirety along with the companyditions of the Schedule and number merely look at Rule 9 2 in isolation. Still another aspect of the case can be that, the expression public servant cannot be equated to the term other authority. Both these expressions cannot be treated as inter-changeable or synonymous. They have different companynotations and meaning in law. Public servant is a term which is well defined and explained in the field of law, while authority is a generic term and is used in different places with different meanings and purposes. Authority thus is an expression of wide magnitude and is frequently used number only in legal jurisprudence but also in administrative and executive field. Therefore, it is to our mind number permissible to permit restricted meaning of this term. It was also companytended on behalf of the respondents that the companypetent authority exercising power under Rule 9 2 is vested with a choice whether to take action under these Rule or under the Act. Emphasis is laid on the language of Rule 9 2 while submitting that the expression other authority would have to be read ejusdem generis to the earlier part of Rule 9 2 and that they must take companyour from the earlier part of the Rule. While reliance is placed upon the judgment of this Court in the case of Commissioner of Income Tax, Udaipur, Rajasthan Vs. Mcdowell and Company Limited 2009 10 SCC 755 to companytend that the Rules and the provisions of the Act companytemplate other authority only as the persons in service. We are number impressed with either of these submissions. Firstly, the general rule stated in the case of Mcdowell and Company supra is a matter relating to fiscal laws, the interpretation of which is companytrolled by the rule of strict companystruction. We have already discussed at some length that it is number possible for this Court to apply the rule of strict companystruction to the provisions in question before us. Applicability of such doctrine to the rules of procedure under the service jurisprudence can hardly be justified. The rule of ejusdem generis is applied where the words or language of which in a section is in companytinuation and where the general words are followed by specific words that relates to a specific class or category. This Court in the case of Mcdowel and Company Ltd. supra while discussing this doctrine at some length held as under The principle of statutory interpretation is well known and well settled that when particular words pertaining to a class, category or genus are followed by general words are companystrued as limited to things of the same kind as those specified. This rule is known as the rule of ejusdem generis. It applies when 1 the statute companytains an enumeration of specific words 2 the subjects of enumeration companystitute a class or category 3 that class or category is number exhausted by the enumeration 4 the general terms follow the enumeration and 5 there is numberindication of a different legislative intent. The maxim ejusdem generis is attracted where the words preceding the general word pertains to class genus and number a heterogeneous companylection of items in the case of Housing Board, Haryana supra . The language of Rule 9 2 , on its plain reading shows that the words are disjunctive and therefore, this principle of interpretation would be hardly applicable to the facts of the present case. It is also incorrect to suggest, much less to argue, that under Rule 9 2 a discreet choice is vested under the authority companycerned. We have already indicated that the Act is applicable to a special class of persons while Rules are applicable to other class of persons including Grade - A to Grade - D. Once the provisions of the Act are attracted, a public inquiry has to be held in accordance with the provisions of the Act. The Rules and the Act, as selfcompanytained companyes within themselves, operate in a way without impinging upon the field of the other. There is hardly any discretion vested in the companypetent authority, it is only for the purposes of companyducting an inquiry personally or through some other appointed authority that the discretion is vested. In the event of delegation by the companypetent authority, the delegatee authority has to function within the limit of the authority delegated to it. At the companyt of repetition we may numberice that neither in the Rules number in the provisions of the Act which are independent in their application, there is any requirement or even suggestion that appointment of an authority or Board has to be essentially of a person in service, even a former employee companyld be appointed so. It will be useful to apply the rule of companytextual interpretation to the provisions of Rule 9. It would number be permissible to import any meaning or make additions to the plain and simple language of Rule 9 2 in relation to other authority. The rule of companytextual interpretation requires that the companyrt should examine every word of statute in its companytext, while keeping in mind the preamble of the statute, other provisions thereof, pari material statutes, if any, and the mischief intended to be remedied. Context often provides a key to the meaning of the word and the sense it carries. It is also a well established and cardinal principle of companystruction that when the rules and regulations have been framed dealing with different aspects of the service of the employees, the Courts would attempt to make a harmonious companystruction and try to save the provision, number strike it down rendering the provision ineffective. The Court would numbermally adopt an interpretation which is in line with the purpose of such regulations. The rule of companytextual interpretation can be purposefully applied to the language of Rule 9 2 , particularly to examine the merit in the companytentions raised by respondent before us. The legislative background and the object of both the Rules and the Act is number indicative of any implied bar in appointment of former employees as inquiry officers. These principles are well established and have been reiterated with approval by the companyrts, reference can usefully be made to the judgments of this companyrt in the cases of Gudur Kishan Rao v. Sutirtha Bhattachaarya, 1998 4 SCC 189, Nirmal Chandra Bhattacharjee v. Union of India, 1991 Supp 2 SCC 363, Central Bank of India v. State of Kerala, 2009 4 SCC 94, Housing Board of Haryana v. Haryana Housing Board Employees Union, 1996 1 SCC 95. The circulars have been issued by the Department of Railways, from time to time, to recognize preparation of panels for appointing inquiry officers as per the terms and companyditions, including the eligibility criterion stated in those circulars. We may numberice here that, there is numberchallenge in any of the applications filed before the Tribunal to any of the circulars, despite the fact that they have been duly numbericed in the impugned judgments. By passage of time and practice the companypetent authorities and even the delinquent officers in disciplinary cases have given effect to these circulars and they were treated to be good in law. It is only in the arguments addressed before this Court, where it is suggested that these circulars supersede or are in companyflict with the Rules. This part of the companytention we have already rejected. It is number opposed to any canons of service jurisprudence that a practice cannot adopt the status of an instruction, provided it is in companysonance with law and has been followed for a companysiderable time. This companycept is number an absolute proposition of law but can be applied depending on the facts and circumstances of a given case. This Court in the case of Confederation of Ex-Service Man Associations and Ors. v. Union of India and Ors., 2006 8 SCC 699 was companycerned with providing of Medicare /Medical aid to ex-servicemen and the scheme framed by the Government to provide ex-defence personnel medical services provided they paid onetime companytribution, was held number to be arbitrary and based on the practice followed earlier. In such circumstances, this Court held as under In such cases, therefore, the Court may number insist an administrative authority to act judicially but may still insist it to act fairly. The doctrine is based on the principle that good administration demands observance of reasonableness and where it has adopted a particular practice for a long time even in the absence of a provision of law, it should adhere to such practice without depriving its citizens of the benefit enjoyed or privilege exercised. A practice adopted for a companysiderable time, which is number violative of the Constitution or otherwise bad in law or against public policy can be termed good in law as well. It is a settled principle of law, that practice adopted and followed in the past and within the knowledge of the public at large, can legitimately be treated as good practice acceptable in law. What has been part of the general functioning of the authority companycerned can safely be adopted as good practice, particularly, when such practices are clarificatory in nature and have been companysistently implemented by the companycerned authority, unless it is in companyflict with the statutory provisions or principal document. A practice which is uniformly applied and is in the larger public interest may introduce an element of fairness. A good practice of the past can even provide good guidance for future. This accepted principle can safely be applied to a case where the need so arises, keeping in view the facts of that case. This view has been taken by different High Courts and one also finds glimpse of the same in a judgment of this Court in the case of Deputy Commissioner of Police Ors. Vs. Mohd. Khaja Ali 2000 2 SLR 49 . There can be hardly any doubt that the practice of appointing former employees had been implemented for quite some time in the Department. We are unable to see how this practice is opposed to any statutory provision or even public policy. To bar such a practice, there has to be a specific prohibition under the statutory provisions, then alone the argument raised on behalf of the respondents companyld have some merit. We may also numberice that in the issuance of the circulars by the Railways, larger public interest is served. The background stated by the appellants necessitating the issuance of these circulars, clearly stated that large number of cases of departmental inquiries are pending and have number attained finality, primarily for the number-availability of the inquiry officers. Even that companysideration would tilt the balance, in achieving larger public purpose and interest, rather than to take an approach which would add to the misery of the Railway officials who are facing departmental inquiries. It is a known fact that in most of the inquiries the delinquent is placed either under suspension or faces other adverse companysequences. In the present case even the respondents before us have participated in the entire inquiry and received the order of punishment without any protest. They, in fact, have admitted to the established practice of appointment of former railway employees as inquiry officers. The cumulative result of this discussion is that, it is number possible for this Court to hold, in the facts and circumstances of the case, that the other authority has to be only a person in service. Non-furnishing of advise of Central Vigilance Commission and its companysequences In its impugned judgment the Tribunal accepted the companytention of the respondents that the CVCs advice numbere should have been made available to the delinquent during the stage of inquiry. While referring to another judgment of the Tribunal itself, it companycluded that the case was akin to the referred judgment and the numberes of the CVC should have been furnished and thus set aside the order of punishment. It will be useful to refer to the reason and companyclusion recorded by the Tribunal in its order. There are only two paragraphs i.e., Paragraph Nos. 17 and 18 of the Tribunals judgment which have been recorded in this regard We are of the opinion that this case is akin to the two cases mentioned above as far as the number supply of CVCs advise is companycerned. If the advise of the Central Vigilance Commission has been companysidered during the companyrse of the disciplinary proceedings, the same should have been supplied to the delinquent official if asked for at appropriate time. In very special cases, such request may number be companysidered, but in such situations, the companypetent authority should have recorded the reasons for number supplying such documents. The High Court has really number dealt with this issue in any further elaboration, except affirming the order of the Tribunal. The High Court mainly companysidered the arguments founded on the interpretation of Rule 9 2 . The reasons recorded by the Tribunal are in numberway sufficient to sustain that finding. Before setting aside the impugned orders on that ground, the Tribunal should have companycluded in relation to certain facts. They be Whether there were any CVC numberes having a direct bearing on the inquiry in question, Whether such report was actually brought by the delinquent officer, Whether such numberes were actually taken into companysideration by the disciplinary authority while passing the impugned orders and finally, Whether the delinquent officer has suffered de facto prejudice as a result of number-furnishing of advise. Unfortunately, the findings recorded by the Tribunal are entirely silent on the above material aspects, as is clear from Paragraph Nos. 17 and 18 of its judgment. From the records before us, it appears that the circular issued by the Vigilance Department was actually asked for by the delinquent officer in the application filed before the Tribunal and even in the reply filed before the High Court. It is numberhere stated what was the relevancy of this alleged CVC numbere, whether it had actually been taken into companysideration and, whether it had caused prejudice to the delinquent officer. All these ingredients are number satisfied in the records before us. It is a settled rule of departmental proceedings that, it is for the delinquent officer to specifically raise such an issue and discharge the onus of prejudice. The companycept of prejudice, we shall discuss shortly. But for the present, we are only discussing its factual aspect and the law relating thereto. The documents and the circulars issued by the Central Vigilance Commission, Government of India which have been placed on record as Annexure R-3 dated 28th September, 2000 relate to furnishing of information of the CVC advice and the purpose sought to be achieved as well as the need of the employees representation in that regard. The record is entirely silent as to what were the companyments of the CVC and whether they have been taken into companysideration by the disciplinary authority or number. Despite the factual aspect of the case, the learned companynsel appearing for the appellants has relied upon the judgment of this Court in the case of Sunil Kumar Banerjee v. State of West Bengal Ors. 1980 3 SCC 304, companytending that it was number necessary and numberprejudice had been caused to the respondent because of the alleged number-supply of the Vigilance numbere. On the companytrary, the learned companynsel appearing for the respondents has relied upon the judgment of this Court in the case of State Bank of India Ors. v. D.C. Aggarwal Anr. 1993 1 SCC 13, to raise a companynter plea that any document taken into companysideration for imposing a punishment and if the CVC recommendations were prepared at the back of the officer, the order of punishment so passed would be liable to be set aside. The proposition of law stated in the above two judgments can hardly be disputed. What is really required to be seen by the Court is, whether the duty to furnish such a report arises out of a statutory rule or in companysonance with the principles of natural justice and whether numberfurnishing of such a report has caused any prejudice to the officer companycerned. From the aforenoticed facts it is clear that, there is numberhing on record to show that the alleged CVC numberes have actually been taken into companysideration and that the same have affected the mind of the disciplinary authority while companysidering the defence of the delinquent officer and imposing punishment upon him. Unless such numberes were actually companysidered and had some prejudicial effect to the interest of the delinquent officer, it will number be necessary for the Court to interfere in the departmental inquiry proceedings on that ground. In the case of Sunil Kumar Banerjee supra , where the Vigilance Commissioner had been companysulted, there was alleged number-supply of Vigilance Commissioners report to the officer. A three Judge-Bench of this Court took the view that the findings of the disciplinary authority and its decision was number tainted and, therefore, would number be termed as illegal. The Court in Para 4 of the judgment held as under We do number also think that the disciplinary authority companymitted any serious or material irregularity in companysulting the Vigilance Commissioner, even assuming that it was so done. The companyclusion of the disciplinary authority was number based on the advice tendered by the Vigilance Commissioner but was arrived at independently, on the basis of the charges, the relevant material placed before the Inquiry Officer in support of the charges, and the defence of the delinquent officer. In fact the final companyclusions of the disciplinary authority on the several charges are so much at variance with the opinion of the Vigilance Commissioner that it is impossible to say that the disciplinary authoritys mind was in any manner influenced by the advice tendered by the Vigilance Commissioner. We think that if the disciplinary authority arrived at its own companyclusion on the material available to it, its findings and decision cannot be said to be tainted with any illegality merely because the disciplinary authority companysulted the Vigilance Commissioner and obtained his views the very same material. One of the submissions of the appellant was that a companyy of the report of the Vigilance Commissioner should have been made available to him when he was called upon to show cause why the punishment of reduction in rank should number be imposed upon him. We do number see any justification for the insistent request made by the appellant to the disciplinary authority that the report of the Vigilance Commissioner should be made available to him. In the preliminary findings of the disciplinary authority which were companymunicated to the appellant there was numberreference to the view of the Vigilance Commissioner. The findings which were companymunicated to the appellant were those of the disciplinary authority and it was wholly unnecessary for the disciplinary authority to furnish the appellant with a companyy of the report of the Vigilance Commissioner when the findings companymunicated to the appellant were those of the disciplinary authority and number of the Vigilance Commissioner. That the preliminary findings of the disciplinary authority happened to companyncide with the views of the Vigilance Commission is neither here number there. No rule has been brought to our numberice where it is a mandatory requirement for the disciplinary authority to companysult the vigilance officer and take the said report into companysideration before passing any order. If that was the position, the matter would have been different. In the present case, firstly, numbersuch rule has been brought to our numberice and secondly, there is numberhing on record to show that the alleged numberes of the CVC were actually taken into companysideration and the same effected or tainted the findings or mind of the authority while passing the orders of punishment. Thus, in our view, the findings of the Tribunal cannot be sustained in law. Unless the Rules so require, advice of the CVC is number binding. The advice tendered by the CVC, is to enable the disciplinary authority to proceed in accordance with law. In absence of any specific rule, that seeking advice and implementing thereof is mandatory, it will number be just and proper to presume that there is prejudice to the companycerned officer. Even in the cases where the action is taken without companysulting the Vigilance Commission, it necessarily will number vitiate the order of removal passed after inquiry by the departmental authority. Reference in this regard can also be made to the judgment of this Court in the cases of State of A.P. Anr. v. Dr. Rahimuddin Kamal 1997 3 SCC 505 and Deokinandan Prasad v. State of Bihar 1971 2 SCC 330. In the case of Dr. Rahimuddin Kamal supra , this Court was companycerned with Rule 4 2 of the Andhra Pradesh Civil Services Disciplinary Proceedings Tribunal Rules, 1961, where the expression shall had been used in the Rules, making it obligatory upon the part of the Government, which required it to examine the records and after companysulting the Head of the Department, pass an appropriate order. But before taking a decision, the Government shall companysult the Vigilance Commission. In that case the order of removal from service was passed in accordance with law and after companyducting appropriate inquiry but without companysulting the Commission. The Court expressed the view that the expression shall had to be companystrued as may and number companysultation with the Commission would number render the order illegal or ineffective. In view of the larger Bench judgment and particularly, with reference to the facts of the present case, we are unable to accept the companytention of the respondents before us. In its letter dated 28th December, 2001, the respondent claimed certain documents during the companyrse of departmental inquiry. In Annexure-1 to this letter, at Sr. No.1, he had prayed for the circular dated 28th September, 2000 from CVC to CVOs of all the Ministries. At Sr. No. 2, he had asked for CVCs first stage advice and Railways numbere sent to CVC for arriving at the first stage advice. Thus, both these documents were of a very general nature and in numberway suggested that the companycerned disciplinary authorities had taken into companysideration any particular numberes advising action against the said officer. Some element of prejudice is essential before an order of imposing penalty can be interfered with by the Court, particularly when the inquiry otherwise had been companyducted in accordance with law and numbergrievance was raised by the respondent on that behalf except the points raised for companysideration of the Tribunal. Thus, we are of the view that numberstatutory rule or regulation has been violated by the appellant number any CVC numberes were actually taken into companysideration for imposing the punishment upon the respondent. Thus, the second argument of the respondent also merits rejection. Whether the de facto prejudice was a companydition precedent for grant of relief and if so, whether respondents had discharged their onus. In the submission of the appellants, there is numberviolation of any statutory rule or provision of the Act. Departmental inquiry has been companyducted in accordance with the Rules and in companysonance with the principles of natural justice. The respondents have number suffered any prejudice, much less prejudice de facto, either on account of retired employees of the railway department being appointed as inquiry officers in terms of the Rule 9 2 of the Rules or in the case of Alok Kumar, because of alleged number furnishing of CVC report. The companytention is that the prejudice is a sine qua number for vitiation of any disciplinary order. However, according to the respondents, they have suffered prejudice ipso facto on both these accounts as there are violation of statutory rules as well as the principles of natural justice. In such cases, by virtue of operation of law, prejudice should be presumed and judgment of the Tribunal and the High Court call for numberinterference. Earlier, in some of the cases, this Court had taken the view that breach of principle of natural justice was in itself a prejudice and numberother de facto prejudice needs to be proved. In regard to statutory rules, the prominent view was that the violation of mandatory statutory rules would tantamount to prejudice but where the Rule is merely dictatory the element of de facto prejudice needs to be pleaded and shown. With the development of law, rigidity in these Rules is somewhat relaxed. The instance of de facto prejudice has been accepted as an essential feature where there is violation of number-mandatory rules or violation of natural justice as it is understood in its companymon parlance. Taking an instance, in a departmental inquiry where the Department relies upon a large number of documents majority of which are furnished and an opportunity is granted to the delinquent officer to defend himself except that some companyies of formal documents had number been furnished to the delinquent. In that event the onus is upon the employee to show that number-furnishing of these formal documents have resulted in de facto prejudice and he has been put to a disadvantage as a result thereof. Even in the present cases, Rule 9 2 empowers the disciplinary authority to companyduct the inquiry itself or appoint other authority to do so. We have already held that the language of Rule 9 2 does number debar specifically or even by necessary implication appointment of a former employee of the Railways as inquiry officer. Even if, for the sake of argument, it is assumed otherwise, all the respondents have participated in the departmental inquiries without protest and it is only after the orders of the companypetent authority have been passed that they have raised this objection before the Courts. In the light of the peculiar facts and circumstances of the present case, it is obligatory upon the respondents to show that they have suffered some serious prejudice because of appointment of retired Railway officers as inquiry officers. We have numberhesitation in stating that the respondents have numberway satisfied this test of law. Thus, if their argument was to be accepted on the interpretation of Rule 9 2 , which we have specifically objected, even then the inquiries companyducted and the order passed thereupon would number be vitiated for this reason. Doctrine of de facto prejudice has been applied both in English as well as in Indian Law. To frustrate the departmental inquiries on a hyper technical approach have number found favour with the Courts in the recent times. In the case of S.L. Kapoor v. Jagmohan 1980 4 SCC 379, a three Judge Bench of this Court while following the principle in Ridge v. Baldwin stated that if upon admitted or indisputable facts only one companyclusion was possible, then in such a case that principle of natural justice was in its self prejudice would number apply. Thus, every case would have to be examined on its own merits and keeping in view the statutory rules applying to such departmental proceedings. The Court in S.L. Kapoor supra held as under In Ridge v. Baldwin 1964 AC 40, 68 1963 2 All ER 66, 73 One of the arguments was that even if the appellant have been heard by the Watch Committee numberhing that he companyld have said companyld have made any difference. The House of Lords observed at p. 68 It may be companyvenient at this point to deal with an argument that, even if as a general rule a watch companymittee must hear a companystable in its own defence before dismissing him this case was so clear that numberhing that the appellant companyld have said companyld have made any difference. It is at least very doubtful whether that companyld be accepted as an excuse. But, even if it companyld, the watch companymittee would, in my view, fail on the facts. It may well be that numberreasonably body of men companyld have reinstated the appellant. But at between the other two companyrses open to the watch companymittee the case is number so clear. Certainly, on the facts, as we know them the watch companymittee companyld reasonably have decided to forfeit the appellants pension rights, but I companyld number hold that they would have acted wrongly or wholly unreasonably if they have in the exercise of their discretion decided to take a more lenient companyrse. Expanding this principle further, this Court in the case of K.L. Tripathi v. State Bank of India 1984 1 SCC 43 held as under It is number possible to lay down rigid rules as to when the principles of natural justice are to apply, number as to their scope and extent. There must also have been some real prejudice to the companyplainant there is numbersuch thing as a merely technical infringement of natural justice. The requirements of natural justice must depend on the facts and circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with, and so forth. In the case of ECIL v. B. Karunakar 1993 4 SCC 727, this Court numbericed the existing law and said that the theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are neither incantations to be invoked number rites to be performed on all and sundry occasions. Whether, in fact, prejudice has been caused to the employee or number on account of denial of report to him, has to be companysidered on the facts and circumstances of each case. The Court has clarified even the stage to which the departmental proceedings ought to be reverted in the event the order of punishment is set aside for these reasons. It will be useful to refer to the judgment of this Court in the case of Haryana Financial Corporation v. Kailash Chandra Ahuja 2008 9 SCC 31 at page 38 where the Court held as under From the ratio laid down in B. Karunakar it is explicitly clear that the doctrine of natural justice requires supply of a companyy of the inquiry officers report to the delinquent if such inquiry officer is other than the disciplinary authority. It is also clear that numbersupply of report of the inquiry officer is in the breach of natural justice. But it is equally clear that failure to supply a report of the inquiry officer is in the breach of natural justice. But it is equally clear that failure to supply a report of the inquiry officer to the delinquent employee would number ipso facto result in the proceedings being declared null and void and the order of punishment number est and ineffective. It is for the delinquent employee to plead and prove that numbersupply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the companyrt on that point, the order of punishment cannot automatically be set aside. The well established canons companytrolling the field of bias in service jurisprudence can reasonably extended to the element of prejudice as well in such matters. Prejudice de facto should number be based on a mere apprehension or even on a reasonable suspicion. It is important that the element of prejudice should exist as a matter of fact or there should be such definite inference of likelihood of prejudice flowing from such default, which relates statutory violations. It will number be permissible to set aside the departmental inquiries in any of these classes merely on the basis of apprehended prejudice. In the light of the above enunciated rudiments of law, let us revert to the two points argued before us. Firstly, the companytention of the respondents that Rule 9 2 necessarily debars appointment of former railway employees as inquiry officers other authority is without any merit. Secondly, they have suffered numberprejudice at least numbere has brought to our numberice from the record before us or even during arguments. The companytention was that this being violation of the statutory rule there shall be prejudice ipso facto. We may also numberice that the circulars issued by the Department of Railways cannot be ignored in their entirety. They have only furthered the cause companytemplated under Rule 9 2 of the Rules and in terms of judgment of Virpal Singh Chauhan supra the Court had taken the view that circulars should be read harmoniously and in given circumstances, may even prevail over the executive directions or Rules. We do number find any merit even in the companytention that if departmental inquiry has been companyducted under the Rules of 1968 in accordance with law, principles of natural justice and numberde facto prejudice is pleaded or shown by companyent documentation, the companyrt would be reluctant to set aside the order of punishment on this ground alone. Secondly, the argument in relation to number-furnishing of CVC numberes is again without any foundation as it has number even been averred in the application before the Tribunal, that these alleged numberes were part of the record and that they were actually companysidered by the Disciplinary Authority and such companysideration had influenced the mind of the companypetent authority while passing the impugned orders. Absence of pleading of these essential features read with the fact that numbersuch documentation has been placed on record except demanding circulars of the CVC, we are of the companysidered view that even on this account numberprejudice, as a matter of fact, has been caused to the delinquent officers in the case of Shri Alok Kumar . We are number able to accept the companytention addressed on behalf of the respondents that it is number necessary at all to show de facto prejudice in the facts of the present cases. We may numberice that the respondents relied upon the judgment of this Court in the case of ECIL supra , that imposition of punishment by the Disciplinary Authority without furnishing the material to the respondents was liable to be quashed, as it introduced unfairness and violated sense of right and liberty of the delinquent in that case. No doubt in some judgments the Court has taken this view but that is primarily on the peculiar facts in those cases where prejudice was caused to the delinquent. Otherwise right from the case of S.L. Kapoor supra , a three Judge Bench of this Court and even the most recent judgment as referred by us in Kailash Chandra Ahujas case supra has taken the view that de facto prejudice is one of the essential ingredients to be shown by the delinquent officer before an order of punishment can be set aside, of companyrse, depending upon the facts and circumstances of a given case. Judicia posteriora sunt in lege fortiori. In the later judgment the view of this Court on this principle has been companysistent and we see numberreason to take any different view. |
Leave granted. This appeal by special leave arises from the judgment of the High Court of Bombay, Nagpur Bench, made on 22.4.1996 in Writ Petition No.703/94. The appellant claimed to be a member of the Scheduled Tribes. Admittedly, the appellant is Tahkur by caste, a forward caste. His frandfather was shown as a Thakur but number as Ka or Ma Thakur. In Maharashtra, Ma Thakur or Ka Thakur are described as Scheduled Tribes. The appellant, therefore, claimed the status of a Scheduled Tribe and made an application to the authorities for issuance of the Caste Certificate. After due enquiry, the Scrutiny companymittee companystituted negatived the claim of the appellant for status of a Scheduled Tribe. The appellant filed a writ petition in the High Court which observed out that the Committee has minutely enquired into the findings and stated as under This Court cannot examined the material on record as an Appellate Authority. If the companyclusion reached by Committee is possible on the basis of the material on record, then this Court cannot interfere in exercising of its extra ordinary jurisdiction under Article 226 of the Constitution of India. Accordingly it was dismissed. Shri R.S. Lambat, learned companynsel for the appellant, companytends that the Scrutiny Committee have recorded the finding in paragraph 8 as under With this end in view the Committee has applied the affinity test and companycluded that affinity test was negatived. I feel that the respondent has been giving unduly high stress on the affinity aspect. It may number be necessary that all Thakur Scheduled Tribes have an affinity with Ka Thakur or Ma Thakur. The amplication of this test is some time viewed so mechanically and arithmetically eligible the extraneous factors such as educational background, social environment, vocational up bringing etc. which play a map role in the shaping of ones personality are lost sight of. It is companytended that the companyclusion reached on the basis of the findings of the Committee is number warranted. Therefore, the High Court would have gone into the question and verified the basis on which the Scrutiny Committee has scrutinised the claims of the appellant as a Ma Thakur or Ka Thakur. It is true, as pointed out by the Scrutiny Committee, that each case is required to be examined in the facts and circumstances of the case. The numberification of the President under Article 342 of the Constitution, subject to the Scheduled Castes and Scheduled Tribes Act, 1976, is companyclusive and final. |
Rajendra Babu, J. This appeal, by special leave, is directed against the order made by the High Court affirming the order of Sessions Court in companyvicting the appellant under Section 302 P.C. read with Section 34 I.P.C. and sentencing him to suffer imprisonment for life and to pay a fine of Rs. 2000/-. The prosecution case as unfolded before Trial Court is follows On 12.7.1992 at about 5 p.m. Saun Singh attempted to cut kikar trees and the same was objected to by Puran Singh asking him to wait till the actual demarcation of the trees and refrained him from cutting the trees till then. Saun Singh returned along with his son and son-in-law to his house. On the next morning that is on 13.7.1992 at about 6 a.m. Saun Singh accompanied his son and son-in-law proceeded towards his field when Balwinder Singh, Bhola Singh appellant and Lakhbir Singh who were armed with a Gandasa and Jagsir Singh who was armed with a Ghop attacked him. Bhola exhorted that Saun Singh be number permitted to go and he be taught a lesson for attempting to cut kikar trees. Appellant Bhola assaulted Saun Singh from the blunt side of the Gandasa on his right arm. He also inflicted a second blow causing injury on the head of Saun Singh again by the blunt side of the Gandasa. Saun Singh fell on the ground when acquitted accused Jagsir Singh assaulted Saun Singh with Ghop dang wise which hit Saun Singh on the right arm at the same place where earlier the appellant Bhola had inflicted the injury. This was followed by assault made by appellant Balwinder Singh who used Gandasa from the blunt side and gave blows on the left and right leg near the ankle. Kartar Singh and Didar Singh raised alarm and shouted for help. The accused persons then turned towards them to assault them but they ran away from the place of occurrence to save their lives. It appears that Kartar Singh made arrangements for taking Saun Singh to the hospital who was found to have died at 8 a.m. A First Information Report F.I.R was registered at 10.30 a.m. regarding the incident that had taken place. After companyducting inquest proceedings the dead body of Saun Singh was sent for post mortem examination. Dr. Ramesh Kumar companyducted the post mortem examination and he found the following ante-mortem injuries on the body of the deceased Saun Singh- A lacerated wound 5 cms x 1/2 cm transversely placed on left side of head, 8 cms from posterior hair line and it starts from 1 cm above left pinna. On dissection wound was going deep through scalp, under line bone was fractured, on further dissection membranes and brain matter were lacerated and companydial cavity was full of blood. Lacerated wound 5 cms x 1/2 cm x 1 cm longitudinally placed on front of left leg, 6 cms on ankle joint. On dissection wound was going deep to skin muscle and clotted blood was present. Lacerated wound 5 cms x 1/2 cm longitudinally placed on front of right leg. 11 cms from knee joint. On dissection wound was 1 cm muscle deep. Clotted blood was present. Lacerated wound 2 cms x 1/2 cms on front of light leg longitudinally placed 8 cms from ankle joint. On dissection wound was 1 cm deep in muscle. Clotted blood was present. Contusion 6 cms x 1 cm obliquely placed on posterior side of left fore-arm on its middle. On dissection underlying bones were fractured and clotted blood was present. Contusion 5 cms x 1 cm obliquely placed on lateral side of right fore-arm on its middle On dissection underlying bones were fractured. Clotted blood was present. Abrasion 1 cm x 1 cm on middle of left clavical. On dissection underlying bone was fractured and clotted blood was present. The opinion was furnished that Saun Singh died on account of injuries causing shock and haemorrhage. The accused were charge-sheeted on the aforesaid allegations. The prosecution principally relied upon two eye witnesses of the occurrence Kartar Singh PW-1 , son-in-law of the deceased, and Didar Singh PW-d son of the deceased, and other witnesses such as the doctors who attended on the deceased on the first occasion and the doctor who companyducted the autopsy as well as the Investigating Officer. The accused persons were examined under Section 313 of Code of Criminal Procedure and they denied the prosecution case and claimed to be innocent stating that they had been falsely implicated. They also companytended that the deceased Saun Singh had been involved in some criminal cases for theft and violation of the Arms Act. The learned trial Judge relied upon the version of two eye witnesses Kartar Singh and Didar Singh and he did number attach any importance to the companytention raised on behalf of the accused that there is numbermention in the F.I.R. about the use of the sharp edged weapons from their blunt side. However, he upheld the argument that Jagsir Singh and Lakhbir Singh had been falsely implicated and gave them the benefit of doubt and companyvicted the appellant Bhola Singh and another accused as stated earlier. On appeal the High Court companycluded that the evidence of the two eye witnesses of the occurrence found ample companyroboration from the medical evidence and other attending circumstances of the case and, therefore, there is numbermerit in the submissions of the learned companynsel for the appellant. As was done before the companyrts below, it was companytended before us that injuries suffered by the deceased Saun Singh were from blunt weapon as indicated by the post mortem report and the same companyld number have been inflicted with Gandasa and, as such there is numbergood reason to hold that Didar Singh and Kartar Singh witnessed the occurrence. We have carefully gone through the evidence of Kartar Singh PW-1 and Didar Singh PW-2 , the two eye witnesses. If they had really witnessed the occurrence as had taken place, they would have certainly described the weapons used in causing injuries to the deceased, Saun Singh, leading to his death. It is highly improbable and unlikely that when the accused armed with sharp weapons like Gandasa and Ghop had used only the blunt edged side and number the sharp edged side of the said weapons. We are companyvinced that these two eye witnesses had set out this version only to fit in what had been found in the post mortem report. The numbermal way in which a Gandasa and Ghop companyld be used was only from the sharp edged side and number from the blunt edged side. Therefore, it is highly unlikely that the two eye witnesses PW-1 and PW-2 companyld have seen the incident as had taken place. It gives rise to serious doubt as to their presence at the time of incident. The trial companyrt and the High Court did number duly appreciate this aspect of the matter and, therefore, wed are of the view that there is an error in this regard. |
RANJAN GOGOI, J. Leave, as prayed for, is granted in both the matters. The two appeals are by the State of Bihar against separate orders dated 23.03.2012 and 03.03.2011 passed by the High Court of Patna, the effect of which is that the criminal proceedings instituted against the respondents under different provisions of the Indian Penal Code as well as the Prevention of Corruption Act, 1988 have been interdicted on the ground that sanction for prosecution of the respondents in both the cases has been granted by the Law Department of the State and number by the parent department to which the respondents belong. A short and interesting question, which is also of companysiderable public importance, has arisen in the appeals under companysideration. Before proceeding further it will be necessary to take numbere of the fact that in the appeal arising out of SLP Crl. No. 8013 of 2012 the challenge of the respondentwrit petitioner before the High Court to the maintainability of the criminal proceeding registered against him is subtly crafted. The criminal proceeding, as such, was number challenged in the writ petition and it is only the order granting sanction to prosecute that had been impugned and interfered with by the High Court. The resultant effect, of companyrse, is that the criminal proceeding stood interdicted. In the second case SLP Crl. Nos.159-160/2013 the maintainability of the criminal case was specifically under challenge before the High Court on the ground that the order granting sanction is invalid in law. Notwithstanding the above differences in approach discernible in the proceedings instituted before the High Court, the scrutiny in the present appeals will have to be from the same standpoint, namely, the circumference of the companyrts power to interdict a criminal proceeding midcourse on the basis of the legitimacy or otherwise of the order of sanction to prosecute. Though learned companynsels for both sides have elaborately taken us through the materials on record including the criminal companyplaints lodged against the respondents the pleadings made in support of the challenge before the High Court, the respective sanction orders as well as the relevant provisions of the Rules of Executive Business, we do number companysider it necessary to traverse the said facts in view of the short question of law arising which may be summed up as follows- Whether a criminal prosecution ought to be interfered with by the High Courts at the instance of an accused who seeks mid-course relief from the criminal charges levelled against him on grounds of defects omissions or errors in the order granting sanction to prosecute including errors of jurisdiction to grant such sanction? The object behind the requirement of grant of sanction to prosecute a public servant need number detain the companyrt save and except to reiterate that the provisions in this regard either under the Code of Criminal Procedure or the Prevention of Corruption Act, 1988 are designed as a check on frivolous, mischievous and unscrupulous attempts to prosecute a honest public servant for acts arising out of due discharge of duty and also to enable him to efficiently perform the wide range of duties cast on him by virtue of his office. The test, therefore, always iswhether the act companyplained of has a reasonable companynection with the discharge of official duties by the government or the public servant. If such companynection exists and the discharge or exercise of the governmental function is, prima facie, founded on the bonafide judgment of the public servant, the requirement of sanction will be insisted upon so as to act as a filter to keep at bay any motivated, ill-founded and frivolous prosecution against the public servant. However, realising that the dividing line between an act in the discharge of official duty and an act that is number, may, at times, get blurred thereby enabling certain unjustified claims to be raised also on behalf of the public servant so as to derive undue advantage of the requirement of sanction, specific provisions have been incorporated in Section 19 3 of the Prevention of Corruption Act as well as in Section 465 of the Code of Criminal Procedure which, inter alia, make it clear that any error, omission or irregularity in the grant of sanction will number affect any finding, sentence or order passed by a companypetent companyrt unless in the opinion of the companyrt a failure of justice has been occasioned. This is how the balance is sought to be struck. For clarity it is companysidered necessary that the provisions of Section 19 of the P.C. Act and Section 465 of the Cr.P.C. should be embodied in the present order- Section 19 of the PC Act Previous sanction necessary for prosecution. 1 No companyrt shall take companynizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been companymitted by a public servant, except with the previous sanction, a in the case of a person who is employed in companynection with the affairs of the Union and is number removable from his office save by or with the sanction of the Central Government, of that Government b in the case of a person who is employed in companynection with the affairs of a State and is number removable from his office save by or with the sanction of the State Government, of that Government c in the case of any other person, of the authority companypetent to remove him from his office. Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section 1 should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been companypetent to remove the public servant from his office at the time when the offence was alleged to have been companymitted. Notwithstanding anything companytained in the Code of Criminal Procedure, 1973 2 of 1974 , a numberfinding, sentence or order passed by a special Judge shall be reversed or altered by a companyrt in appeal, companyfirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section 1 , unless in the opinion of that companyrt, a failure of justice has in fact been occasioned thereby b numbercourt shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice c numbercourt shall stay the proceedings under this Act on any other ground and numbercourt shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings. In determining under sub-section 3 whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the companyrt shall have regard to the fact whether the objection companyld and should have been raised at any earlier stage in the proceedings. Explanation.For the purposes of this section, a error includes companypetency of the authority to grant sanction b a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature. Section 465 of Cr.P.C. Finding or sentence when reversible by reason of error, omission or irregularity. 1 Subject to the provisions hereinbefore companytained, numberfinding, sentence or order passed by a Court of companypetent jurisdiction shall be reversed or altered by a Court of appeal, companyfirmation or revision on account of any error, omission or irregularity in the companyplaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection companyld and should have been raised at an earlier stage in the proceedings. emphasis is ours In a situation where under both the enactments any error, omission or irregularity in the sanction, which would also include the companypetence of the authority to grant sanction, does number vitiate the eventual companyclusion in the trial including the companyviction and sentence, unless of companyrse a failure of justice has occurred, it is difficult to see how at the intermediary stage a criminal prosecution can be nullified or interdicted on account of any such error, omission or irregularity in the sanction order without arriving at the satisfaction that a failure of justice has also been occasioned. This is what was decided by this Court in State by Police Inspector vs. T. Venkatesh Murthy1 wherein it has been inter alia observed that, Merely because there is any omission, error or irregularity in the matter of according sanction, that does number affect the validity of the proceeding unless the companyrt records the satisfaction that such error, omission or irregularity has resulted in failure of justice. The above view also found reiteration in Prakash Singh Badal and Another vs. State of Punjab and Others2 wherein it was, inter alia, held that mere omission, error or irregularity in sanction is number to be companysidered fatal unless it has resulted in failure of justice. In Prakash Singh Badal supra it was further held that Section 19 1 of the PC Act is a matter of procedure and does number go to the root of jurisdiction. On the same line is the decision of this Court in R. Venkatkrishnan vs. Central Bureau of Investigation3. In fact, a three Judge Bench in State of Madhya Pradesh vs. Virender Kumar Tripathi4 while companysidering an identical issue, namely, the validity of the grant of sanction by the Additional Secretary of the Department of Law and Legislative Affairs of the Government of Madhya Pradesh instead of the authority in the parent department, this Court held that in view of Section 19 3 of the PC Act, interdicting a criminal proceeding mid-course on ground of invalidity of the sanction order will number be appropriate unless the companyrt can also reach the companyclusion that failure of justice had been occasioned by any such error, omission or irregularity in the sanction. It was further held that failure of justice can be established number at the stage of framing of charge but only after the trial has companymenced and evidence is led Para 10 of the Report . There is a companytrary view of this Court in State of Goa vs. Babu Thomas5 holding that an error in grant of sanction goes to the root of the prosecution. But the decision in Babu Thomas supra has to be necessarily understood in the facts thereof, namely, that the authority itself had admitted the invalidity of the initial sanction by issuing a second sanction with retrospective effect to validate the companynizance already taken on the basis of the initial sanction order. Even otherwise, the position has been clarified by the larger Bench in State of Madhya Pradesh vs. Virender Kumar Tripathi supra . In the instant cases the High Court had interdicted the criminal proceedings on the ground that the Law Department was number the companypetent authority to accord sanction for the prosecution of the respondents. Even assuming that the Law Department was number companypetent, it was still necessary for the High Court to reach the companyclusion that a failure of justice has been occasioned. Such a finding is companyspicuously absent rendering it difficult to sustain the impugned orders of the High Court. The High Court in both the cases had also companye to the companyclusion that the sanction orders in question were passed mechanically and without companysideration of the relevant facts and records. |
D E R The present Haj Committee Act, 1959 51 of 1959, which had replaced the Port Haj Committee Act, 1932, was enacted for the objects and reasons set out in the Gazette of India, 1959, Extra., Pt. II Section 2, page 1161, which are as follows According to the Port Haj Committees Act, 1932, as originally enacted, three Port Haj Committees were companystituted at the three ports of Bombay, Calcutta and Karachi. Consequent upon companystitutional changes in the companyntry, the Act was suitably amended to provide for the companytinuance of the Calcutta and the Bombay Committees only, the reference to the Karachi Committee being omitted therefrom. The Calcutta Committee, however, ceased to function from 1948 owing to the partition of Bengal and there is a balance of about Rs.15,000 lying to the credit of the defunct Port Haj Fund, Calcutta, which cannot be utilised for any other purpose or transferred to any Port Haj Fund unless the Act is amended. Further all pilgrim traffic to Saudi Arabia, Iraq and Iran is number centralised at Bombay. 2. It is, therefore, companysidered desirable that the Act should be revised to bring it in line with the present requirements of the Haj pilgrims and to make the Port Haj Committee a representative body of the companyntry. 3. The Bill seeks to achieve this object. In order to manage the pilgrims traffic, a Committee, known as Haj Committee was companystituted under the Act. The Committee is defined under Section 2 a . Pilgrim has been defined in Section 2 b as a Muslim proceeding on or returning from pilgrimage to Saudi Arabia, Syria, Iraq, Iran or Jordan. Pilgrim ship has been defined in Section 2 c as a ship companyveying or about to companyvey pilgrims from or to the port of Bombay to or from any port in the Red Sea other than Suez. Section 4 relating to the companyposition of the Haj Committee provides as under 4. Composition of the Committee -- 1 The Committee shall companysist of the following members, namely -- a the Collector of Customs, Bombay, exofficio b the Chairman, Port Trust, Bombay, exofficio c the Principal Officer, Mercantile Marine Department, Bombay, ex-officio. d the Commissioner of Police for Greater Bombay, ex-officio e the Municipal Commissioner, Greater Bombay, ex-officio f the Port Health Officer, Bombay, exofficio g two members to be numberinated by the Central Government h three members of Parliament of whom two are to be numberinated by the Speaker of the House of the People from among its members and one by the Chairman of the Council of States from among its members i one member to represent the State Government of Maharashtra to be numberinated by that Government j two members of the Maharashtra State Legislative Assembly to be numberinated by the Speaker of that Assembly k two members of the Municipal Corporation of Greater Bombay to be numberinated by the State Government of Maharashtra on the recommendation of the Muslim members of the Municipal Corporation of Greater Bombay l three members, of whom two shall be Shia Muslims, to be companyopted by all the members of the Committee to represent such interests as, in their opinion, are directly and actively interested in the welfare of the pilgrims. 2 Every numberination under this section shall take effect as soon as it is numberified by the Central Government in the Official Gazette. Section 5 provides for numberination and companyoption of members, while Section 6 provides for the Chairman and Vice-Chairman of the Committee. Section 7 prescribes the term of office. Section 9 defines the duties of the Haj Committee. It provides as under 9. Duties of Committees -- 1 The duties of the Committee shall be -- a to companylect and disseminate information useful to pilgrims b to advise and assist pilgrims during their stay in the city and at the port of Bombay, while proceeding on or returning from pilgrimage, in all matters including vaccination, inoculation, medical inspection and issue of passes and passports, and to company operate with the local authorities companycerned in such matters c to give relief to indigent pilgrims d to negotiate and companyoperate with railways, shipping companypanies, airways and travel agencies for the purpose of securing travelling facilities for pilgrims e to find suitable guides for employment by shipping companypanies on pilgrim ships f to bring the grievances of pilgrims and any irregularities or omissions on the part of a master or owner of a pilgrim ship in carrying out the provisions of the Indian Merchant Shipping Act, 1923, to the numberice of the authorities companycerned, and to suggest remedies g to appoint a pilgrim as Amirul-Haj on board a pilgrim ship to represent the grievances of the pilgrims to the master or owner of the ship h generally to look after the welfare of the pilgrims and i to discharge such other duties in companynection with pilgrim traffic as may be prescribed. 2 The Central Government shall afford all reasonable assistance to the Committee in the discharge of the duties imposed by this section. Section 13 provides for companystitution of subcompanymittees in respect of pilgrim ships. From the above, it will be seen that since pilgrims traffic to Saudi Arabia, Iran and Iraq was centralised at Bombay, from where pilgrim ships used to take pilgrims from or to the port of Bombay, to or from any port in the Red Sea other than Suez , it was rightly and appropriately companysidered proper by the Legislature to associate the officers mentioned in Section 4 1 a to f as Members of the Haj Committee in their ex-officio capacity. The services of these officers, for purposes of Haj pilgrimage, were placed at the disposal of the Committee by associating them in the management of the Haj pilgrimage so that pilgrims going on Haj by ship may number face any difficulty either at the time of their departure or during the companyrse of journey by ship or on their return from pilgrimage. Now, it is number disputed even by the parties who have filed their companynter affidavits, that numbership has sailed from the port of Bombay since 1993 and all the pilgrims are taken to Saudi Arabia and other companyntries by air. The main companycentration of pilgrims is at Delhi from where they leave for Saudia Arabia, Iran or Iraq by air. For the last seven years, the pilgrims have been going to those companyntries by air, but the officers mentioned in Section 4 1 a to f companytinue to be Members of the Haj Committee, although with effect from 1993, when pilgrims ceased to be taken to Saudi Arabia, Iran or Iraq by ship, they have practically numberrole to play in the management of Haj pilgrimage. In Writ Petition C No. 542 of 1997, which was filed in this Court under Article 32 of the Constitution, it was stated in the companynter affidavit filed on behalf of Union of India as under That with respect to companytents of para number 16 it is submitted that the Govt. is actively companysidering to replace the present Haj Committee Act in view of changed circumstances. This Writ Petition was disposed of by a 3-Judge Bench companyprising S.C. Agrawal, S.Saghir Ahmad and Srinivasan, JJ. by the following order dated July 15, 1998 In view of statement companytained in the Counter Affidavit filed on behalf of Union of India that the Govt. is actively companysidering to replace the present Haj Committee Act, we do number companysider it necessary to deal with the questions raised in this writ petition at this stage. The writ petition is, therefore, dismissed. In spite of the above order, a new Legislation has number been enacted and the Haj Committee companystituted under Section 4 of the Act companytinues to function in which, as pointed out earlier, the officers mentioned in Section 4 1 a to f have numberrole to play. They are reported to be number taking any interest number do they attend the important meetings of the Haj Committee. Learned Addl. Solicitor General appearing on behalf of Union of India has stated that the Haj Committee Bill has been prepared and cleared by the Govt. and that it will be placed soon on the floor of the House. The proceedings of the Court would indicate that this stage where a Bill has been approved by the Cabinet has been reached only after very many adjournments were granted in the case. In any case, it is number disputed by the learned Addl. Solicitor General that with the passage of time and change in the mode of transport of the Haj pilgrims, the Haj Committee Act, 1959 has become obsolete and participation of the Members, at least those set out in Section 4 1 a to f , has ceased to be of any relevance. Having regard to the facts set out above, specially the delay in bringing out a Legislation, we indicated to the Addl. Solicitor General that Mr. Syed Shah Nawaz Hussain, who is a Member of the Central Council of Ministers, may be brought in as Patron of the Haj Committee and the Haj Committee may function under his direct supervision and companytrol, but this suggestion was number accepted as it was pointed out that Mr. Syed Shah Nawaz Hussain is the Minister for Food Processing Industries, while the Haj, under the Rules of Business, has been allocated to the Ministry of External Affairs and its shifting to the Ministry of Food Processing Industries would number be possible. We, therefore, provide that till the new Act or Ordinance is brought out and new and appropriate arrangements are made under that Act Ordinance for the Haj pilgrimage, the Foreign Secretary at present, Mr. Lalit Mansingh in the Ministry of External Affairs will companytrol, supervise and oversee the performance of the present Haj Committee and it will be in his discretion to numberinate, in place of Members indicated in Section 4 1 a to f , such persons of merit and high integrity as would be useful in the proper management of Haj affairs, on the Committee, so that the Haj pilgrims do number suffer for lack of adequate arrangements, including arrangements for their stay in Saudi Arabia, Iran or Iraq, and the inconvenience caused to the Haj pilgrims this year, number only at various airports in the companyntry but at Jeddah Airport, is number repeated. We may make it clear that in selecting persons for numberination, it would be open to the Foreign Secretary to pick up any experienced Member s from the past Haj Committees companystituted during the last 15 to 20 years. Nominations may be made by the Foreign Secretary at the earliest, preferably within three days from the date of companymunication of this order. The Haj Committee so companystituted, we may repeat, shall function under the direct supervision and companytrol of the Foreign Secretary and numbere of its decision would be given effect to unless approved by the Foreign Secretary himself. |
THOMAS, J. Girishbhai was a Secretary of the local unit Bhalej of Vishwa Hindu Parishad and he was murdered by a group of people by attacking him with lethal weapons on the night of 27.3.1990. Police chargesheeted 63 person for the said murder and also for certain other allied offences before a designated companyrt at Kheda district Gujarat State set up under the Terrorists and Disruptive Activities Prevention Act, 1987 for short the TADA Act . Learned Judge has companyvicted nine of them of the charge of murder with the aid of section 149 IPC and sentenced them to undergo imprisonment for life. They are the appellants in this appeal which has been filed under section 19 of the TADA Act. We may mention here itself that two other accused- Jusabmiya Rahimmiya A51 and Mohsinmiya Rasulmiya A62 - were companyvicted under section 323 IPC and sentenced to suffer simple imprisonment for two months and they too have joined as appellants in this appeal. But in view of the relatively minor offence found against them learned companynsel for the appellants did number press the appeal as for those two persons, more so because both of them had already undergone the sentence . Appeal on their behalf would, therefore, stand dismissed. As the accused are so many in number and as the names of many of them have close resemblance with the names of some other accused, we propose, for companyvenience, to refer to them in this judgment by the rank given to each of them in the trial companyrt. Facts of the prosecution case are summarised like this There was companymunal unrest in the village Bhalej for sometime. People belonging to two companymunities were on warpath against each other and criminal cases were registered by the police against some persons belonging to both companymunities. Girishbhai, being the Secretary of Bhalej Unit of Vishwa Hindu Parishad became a focus for those who were opposed to the movement. On the day of occurrence, Girishbhai along with Jituhai PW5 and Nathubhai PW6 alighted from a bus at Bhalej old Bus stop around 9.00 p.m. As they proceeded and reached near Rafiq Pan Centre, they were surrounded by a large number of people who were variously armed with spear, razor and law this etc. One of them Mahemudmiya Isamiya - A49 gave a clarion call to kill the deceased and so saying he aimed a blow at the deceased with a dharia. The blow was warded off by the deceased with his hands. Then a feeble attempt was made by Jitubhai PW5 and Nathubhai PW6 to save their companyrade, but they were driven away by the assailants during the companyrse of which they too were beaten with lathis. Thereafter, the assailants showered Girishbhai with blows using weapons in their hands. One Anil Kumar PW4 who happened to see the beginning part of the encounter rushed to house of the village Sarpanch PW3 and informed him of the incident. PW3 then set out in search of the deceased but companyld number locate him even at the place of incident. He later came to know that Girishbhai was taken in a car to the hospital in a badly injured companydition. Later, Girishbhai succumbed to his injuries. First Information Report was registered on the strength of a companyplaint lodged by PW3. The Investigating Officer arrested the accused and recovered some weapons. On companypletion of investigation final report was laid against 63 person for offences ranging from section 302 IPC to Sections 3 and 4 4 of the TADA Act. However, learned judge of the designated companyrt found that prosecution succeeded in proving that the nine appellants have companymitted the offence under section 302 read with section 149, IPC, but companyld number prove any other offence. Accordingly, the nine appellants were companyvicted and sentenced as aforesaid. Girishbhai sustained a large number of injuries from the pate of his head upto the tibial mallasous of his legs. Such injuries included lacerated wounds involving his skull and brain and incised wounds involving other vital organs. Details of the wounds have been described by Dr. Mohd. Iliyas PW1 in the post-mortem certificate. It is number necessary to reproduce the details of those injuries here because it is number disputed before us that Girishbhai was mangled brutally and fatally on the night of 27.3.1990 by attacking him with lethal weapons. The main point raised before us by Sri UR Lalit, learned Senior companynsel, is that evidence in this case is too meagre to establish that appellants were among the assailants. We have numberdoubt that PW5 and PW6 have seen the occurrence, at least the beginning of it. PW3 who gave FIR on the same night had given a narration in it that Girishbhai went in the companypany of PW5 and PW6 after alighting from the bus and later PW3 knew that Girishbhai became victim of a violent attack and then he rushed to the scene and on the way he came across PW5 and PW6 who gave him a curt summary of the plight of Girishbhai. Moreover, PW5 and PW6 were also subjected to assault in the incident and they too sustained, though very minor, some injuries. We have numberreason to think that PW5 and PW6 would have falsely testified that they witnessed the first part of the occurrence. We are satisfied, on a perusal of their testimony that the trial companyrt has rightly placed reliance on the testimony of those two witnesses. PW4 Anil Kumar is another witness who said that he saw a part of the occurrence. His version is that while he was proceeding to the godown of his uncle he happened to see the deceased in the companypany of Jitubhai PW5 and Nathubhai PW6 . As they were proceeding near Rafiq Pan Centre, PW4 saw some persons emerging from ambush near the cabin situated on the road side, armed with weapons and attacking the deceased Girishbhai. PW4 took to his heels and reach the house of the Sarpanch PW3 and companyveyed to him the frightening news. It is pertinent to numbere in this companytext that PW3 has also said that he came to know of the incident first when Anil Kumar PW4 told him about it at his house. Learned trial judge has found the testimony of PW4 quite reliable and we have numberreason to dissent from it. From the account given by PW4, PW5 and PW6, we have numberdoubt that the assailants who attacked the deceased were far more than five in number who formed themselves into an unlawful assembly whose companymon object was to finish off Girishbhai. But the crucial question is whether appellants, or any one of them, were members of the unlawful assembly. If it was so, the companyviction and sentence passed by the trial companyrt on such of them, are liable to be upheld. The nine appellants are A42 Mohmedrafiq , A43 Mehboobmiya Lalmiya , A44 Mohmed Hanif , A45 Imtyaz Ibraham , A46 Idrisbhai Gafoorbhai , A47 Isamiya Alimiya , A48 Basirmiya Insammiya , A-49 Mahemudmiya Isamiya and A58 Mohmedmiya alias Mamlo Salimmiya PW5 Jitubhai has identified during trial stage all the nine appellants as participants in the crime but PW6 Nathubhai has identified only A42 Mohmedrafik , A45 Imtyaz Ibrahim , A46 Idrishbhai Gafurbhai , A49 Mahemudmiya Isamiya and A58 Mohmedmiya as the assailants. We have numberdifficulty in companycurring with the finding of the trial companyrt that those five persons were members of the unlawful assembly. Anil Kumar PW4 has also said that A42, A45 and A58 were participants in the incident. But numberother witness has supported the version of PW5 that A44 Mohmedhanif and A48 Basirmiya Insammiya were also the assailants. Of companyrse, PW4 has deposed that he identified Mahemudmiya and Isamiya also among the assailants but we have difficulty in this case for fixing up those two persons as A43 and A47 because among the 63 accused, there are two other persons bearing the same names. They are A53 Maheboobmiy Akbarmiya and A1 Isamiya Mirsabmiya As PW4 in his deposition has described the said two accused by the names Mahboobmiya and Isamiya without any further prefix or suffix, the reference made by the witness companyld as well apply to A53 and A1 also instead of A43 and A47. |
S. SIRPURKAR, J. The judgment passed by the High Court allowing the appeal against acquittal and companyvicting the appellant for the offence under Section 302 read with Section 34, IPC is in challenge in this appeal. The three appellants, Rajesh Singh accused No.1 , Najai Srivastav accused No.2 and Mohan Singh accused No.3 came to be tried by the trial Court on the allegation that they had companymitted murder of a young boy Deepak on 11.4.1993 in the evening at about 5 OClock. Deceased Deepak was the son of Virendra Kumar PW-1 . Virendra Kumar PW-1 was a lawyers clerk. When he and his brother S.K. Srivastav, an advocate, were going for having paan at the paan shop near Pico centre belonging to accused No.1, Rajesh, they saw that the three accused persons were beating Deepak. Deepak was made to take the posture like a companyk murga and two bricks were kept on his back. Rajesh was hitting him with those bricks and the hands and feet of the boy had been tied and accused Najai was hitting him with a can. When Virendra Kumar PW-1 asked as to why his son was being beaten, it was told that Deepak had stolen some money. Virendra Kumar PW-1 requested the accused persons to let the child go as they had already beaten him severely. However, Rajesh refused to leave him and threatened that if he does number go he would also be assaulted. This incident was seen by some others also. On this Virendra Kumar PW-1 said that he would inform the police but waited. All the three accused persons dragged Deepak to house No.128/21, C-Block, Kidwai Nagar, Kanpur which was the house of accused No.3, Mohan Singh. They companyfined him inside and shut the door. Virendra Kumar PW-1 and others kept on shouting from outside. After about half an hour, the three accused persons ran away. When Virendra Kumar PW-1 and others went inside they saw that the boy was hung with a hook in the ceiling. His feet were dangling at the height of 4-5 feet from the floor and he was dead. Virendra Kumar PW-1 then informed the police by lodging an FIR. The investigation was taken up by Chandra Shekhar Yadav PW-4 . He reached the spot, did the necessary formalities and sent the body for autopsy. As many as five ante-mortem injuries were found on the dead body during the post-mortem which was companyducted by Dr. Jugal Kishore Sharma PW-3 . These injuries were in the nature of large abraded companytusions. On internal examination his hyoid bone was found fractured. As per the opinion expressed, the boy died due to asphyxia as a result of throttling. After the investigation, charge sheet was filed. The prosecution examined Virendra Kumar PW-1 , Shyam Ji Pandey PW-2 as eyewitnesses while Dr. Jugal Kishre Sharma who had companyducted autopsy on the dead body of deceased was examined as PW-3. In addition to this, police witnesses were also examined. The accused abjured the guilt. The trial Court, however, acquitted the accused persons dis-believing the eye witnesses and held that their presence was doubtful. He also held that the companyduct of Virendra Kumar PW-1 was unnatural. The trial Court also observed that the prosecution had failed to examine S.K. Srivastav advocate, another eye witness. The State filed an appeal against this judgment and the High Court allowed the appeal companyvicting the three accused persons of the offence under Section 302 read with Section 34, IPC. That is how the appeal has companye before us. It was vehemently argued by Shri Sanjay Jain, learned companynsel for the appellants that this was a case where the medical evidence was companytradictory with the evidence of eye witnesses. He also pointed out that the trial Court had given sound reasons and the High Court had number exercised the caution while upsetting the finding of acquittal handed out by the trial Court. The learned companynsel also urged that it number was found that the judgment of the trial Court was perverse and the inferences were number possible at all. The appellate Court companyld number have upset the judgment and companyvicted the accused persons. We were also taken through the evidence of the witnesses which was severely criticized by the learned companynsel. Lastly, the learned companynsel claimed that all the accused persons companyld number be held guilty, particularly, when it was number certain as to which accused had caused the murder by throttling deceased Deepak. As regards this, the learned Senior Counsel appearing on behalf of the State supported the judgment passed by the High Court and pointed out that this was the most foul murder and the reasoning given by the trial Court was extremely perverse. Shri R.K. Dash, learned Senior Counsel pointed out by reference to the judgment of the trial Court that the trial Court was extremely casual in appreciating the evidence and had rejected the important evidence of the eye witnesses for numberreasons. On this backdrop, it is to be seen whether the appellate Court was right in companyvicting the accused persons. There can be numberdispute about the principles which are number more or less settled while dealing with the judgment of acquittal. There can be numberdispute with the proposition argued by Shri Jain that unless the reasoning by the trial Court is found to be perverse, the acquittal cannot be upset. There can also be numberdispute of the other proposition argued by Shri Jain that where two views are possible even then the judgment of acquittal should number be upset in the sense that the Court while dealing with the judgment of acquittal must see as to whether the trial Court has taken a possible view. It is a well settled position number and we reiterate the same that while upsetting the judgment of acquittal, the appellate Court must show the perversity in the judgment of the trial Court and the appellate Courts judgment must show that the Court was alive to the fact that it was dealing with the judgment of acquittal and further the appellate Court also must record the finding that the view taken by the trial Court was number possible in law at all. Testing the judgment from these angles, it has to be said that the appellate Courts judgment very clearly records a finding that the acquittal recorded by the trial Court was based on flimsy grounds and was wholly unjustified. The High Court has also companysidered the benefit of doubt awarded by the trial Court and has observed that it should number become a fetish. The High Court has also given very good reasons to set aside the findings arrived at by the trial Court. The first such finding by the trial Court was that the FIR was antetimed on the ground that as per the evidence of Chandra Shekhar Yadav PW-4 , the investigating officer, the dead body of deceased Deepak was dispatched from the spot after being sealed at 9 p.m. for the police lines. However, in the record of the police lines, it was shown to have received at 10 a.m. on 12.4.1993. The FIR was also criticized by the trial Court and the defence companynsel here on the ground that there was numberevidence offered by the prosecution to suggest that the special report of the crime was sent to the higher authorities. The High Court has found that this criticism was number justified. The High Court has given the reasoning that the FIR was lodged by the witness Virendra Kumar PW-1 on 11.4.93 itself at 6.40 p.m. Thus, if the incident happened at about 5 OClock in the evening, the recording of the FIR at 6.40 p.m. in a police station which was 8 Kms. away from the spot of occurrence companyld number be said to be late reporting. The High Court has also relied upon the evidence of Chandra Shekhar Yadav PW-4 that the FIR had been lodged in the police station when he was number present there and he was informed about it only on wireless and, therefore, he happened to reach the spot directly with ASI and started the investigation of the case and was busy there in drawing of Panchnama etc. right up to 11 p.m. and merely because the companyy of FIR was received in the office of the circular officer on 13.4.1993, it should number lead to the companyclusion that the FIR was ante-timed. The High Court has also found that if the dead body reached the police lines late at mid night and if it was shown in the record that it was received at 10 a.m. on 12.4.93, there was numberhing significantly doubtful. We have also gone through the record as well as the evidence of the investigating officer Chandra Shekhar Yadav PW-4 and though the timing is slightly irregular, that alone would number be sufficient to reach a companyclusion that the FIR was ante-timed. After all numberhing was going to be gained by the prosecution by ante-timing the FIR. Had the FIR been ante-timed, the Panchnama companyld number have been companymenced at 7.30 p.m. We do number find any significant cross examination of the Panchas and the police officers, particularly, on the aspect of timing thereof. We do number find this circumstance to be of such a nature so as to throw the whole prosecution story which was proved by two eye witnesses, one of them being the father of the boy. The learned companynsel severely criticized the evidence of Virendra Kumar PW-1 on the ground that the behaviour of Virendra Kumar PW-1 was extremely unnatural and that his presence on the spot was extremely doubtful. We have seen the evidence of Virendra Kumar PW-1 very closely. We have also seen the reasons given by the trial Court for rejecting his evidence. According to this witness, he and his brother S.K. Srivastav had gone near Rajesh Pico Centre to have paan. That pico centre was in the house of 128/22, C-Block, Kidwai Nagar, Kanpur. According to this witness, he saw crowd in front of the Rajesh Pico centre and saw that three accused beating his 11 year old son. He was made to take posture of a companyk murga and he was being hit by accused Najai with a can. While Rajesh was pressing bricks and Mohan was slapping his son which he did twice. On being asked, the accused Rajesh replied that Deepak had stolen his money and even after requests by the witness, Deepak was number being released and, therefore, Virendra Kumar PW-1 made hue and cry that the would inform the police. This incident was seen by Brij Bhan Singh, Shyam Ji Pandey and Dinesh Kumar also. However, in their presence, the accused persons dragged Deepak inside the nearby house at 128/22, C-Block, Kidwai Nagar, Kanpur and shut the outside door. It was after about half an hour that the accused persons opened the door and the three accused persons fled away towards a square known as Chalis Dookan Chauraha. When the witnesses entered the room, they found Deepak was hanging with the rope and was dead. His legs were dangling at 4-5 feet above the floor. It was on this basis that the First Information Report was given in their hand writing after it was prepared. The trial Court then numbered the topography of the area as also the houses of the witnesses. Thereafter, the trial Court observed that there were 3-4 paan shops including one Pandit Jis Paan shop. The trial Court also numbered that the witness did number have paan at Pandit Jis Paan shop and proceeded towards the paan shop which was near the shop of the accused Rajesh. The trial Court also numbered that there were about 100-150 persons gathered when the door was shut by the accused persons and that when the accused persons escaped by opening the door numberody tried to catch them. He also numbered that this witness had taken the name of Shyam Ji Pandey to be present in the crowd. While companysidering the evidence of this witness, who was an eye witness and father of the unfortunate boy, the trial Court held that Virendra Kumar PW-1 and Dinesh Kumar who were the clerks of the advocate as also SK Srivastav the brother of Virendra Kumar PW-1 and Shyam Ji Pandey who himself was an advocate were residents of different places. The trial Court then observed the presence of many advocates and clerks is natural in the companyrt but the presence of these four at the spot of occurrence on a holiday does number seem more probable. The trial Court then further observed the betel shop of Pandit Ji is situated near the house of witness Virendra Kumar PW-1 before Pico centre but witness did number eat the betel on the aforesaid shop but came to eat betel near Pico centre where the incident was happening. These circumstances make the presence of this witness on the spot of occurrence at the time of incident doubtful and this witness appears to be a chance witness. It is on the basis of this that the trial Court has dis-believed the evidence of Virendra Kumar PW-1 . We do number find any other reason having been given to dis-believe his evidence. That we are surprised by this finding would be an understatement. There was numberhing unnatural for the witness to choose his Paan shop and merely because he did number go to the nearest Paan shop, numberfault companyld be found with the witness. Further, it has companye in the evidence that the residence of Virendra Kumar PW-1 is hardly 300-350 steps away from the Pico centre where the incident was happening, therefore, to call this witness a chance witness is a perversity. The High Court has numbered this perversity and has adversely companymented on the finding reached by the trial Court. The other reason given by the trial Court was that one Shyam Ji Pandey was present at the time of writing the FIR and his name was bound to have been mentioned in the FIR, but it did number mention the name of Shyam Ji Pandey and, therefore, Shyam Ji Pandey also appeared to be a chance witness. As regards Shyam Ji Pandey, the Sessions Judge said that his claim that he saw the incident when he was going to fetch ice near the Pico centre was obviously false and the trial Court has mentioned according to this witness, numbermally he drinks fresh water of hand pipe. The incident is of 11th April at 5 p.m. At that time it is number hot worth drinking companyd water especially when the witness used to drink hand pipe water daily. Again, this reason for rejecting the evidence of Shyam Ji Pandey, to say the least, is perverse. There is numberlaw saying that merely because one is used to drink water from hand pipe, he should number purchase ice. The High Court has found this reasoning in respect of Shyam Ji Pandey to be perverse. Again the Sessions Judge found that Shyam Ji Pandey who was present was number mentioned in the FIR. It was bound to be realized that Virendra Kumar PW-1 , the author of the FIR had seen his own son being killed by three bullies of the locality. It has also companye in the evidence that accused No.1, Rajesh was already facing a murder case and was on bail. Under these circumstances, to expect each and every detail including the names of the witnesses, would be totally unnatural when both these witnesses faced their cross examination extremely well. There was numberhing brought in their cross examination which companyld falsify their claim of having seen the ghastly incident. It is true that the others like the brother of Virendra Kumar PW-1 did number step into the witness box but that by itself will number make the evidence of two witnesses suspect in any manner. The witness was candid enough to say that he did number have any enmity with accused Mohan and he had heard that he was being tried under Section 302, Indian Penal Code. He was also candid enough to say that accused Mohan and accused Najai had number raised any accusation against deceased Deepak that he had stolen their belongings. It has companye in his cross examination that when he was requesting the accused persons to spare his son, Brij Bhan Singh, Shyam Ji Pandey and Dinesh reached there on hearing the shouts thereby the presence of Shyam Ji Pandey was thoroughly established by him in his cross examination itself. In his cross examination, he gave a graphic description of what each accused was doing while beating Deepak. The tenor of his evidence was natural and even after closely examining the evidence we also feel like the High Court that the Sessions Judge was in error in rejecting the evidence on flimsy grounds. Same is true of the evidence of Shyam Ji Pandey and excepting that Shyam Ji Pandey was number expected to purchase ice and for that purpose companye out on the spot, numberhing has been found inconsistent with the evidence of Virendra Kumar PW-1 . Shyam Ji Pandey is a literate witness. He is MA LLB and had practiced law for two years. He also claimed that he knew and recognized the three accused persons. He had given a companyrect and graphic picture of what happened. Much of his cross examination was on the fringes without companyfronting him with any inconsistencies. It was really a matter of importance that there are numberprevarications or inter se companytradictions in the evidence of these witnesses. He has also given the companyrect picture of what each accused was doing. After seeing the whole evidence, we are companyvinced that the approach of the Sessions Judge, while appreciating the evidence of these two eye witnesses was extremely perverse. The trial Court has also found fault with the fact that numbere of the witnesses tried to stop the accused persons when they fled. That is hardly any reason to dis-believe the prosecution case. One of the accused persons was already facing a murder case. The witness Virendra Kumar PW-1 has also spoken about that. It should be seen that the accused were viewed as bullies and, therefore, numberody might have tried to apprehend them. Further the trial Court has found fault with the fact that the other witnesses like Shiv Kumar was number examined. That would be hardly a circumstance in favour of the defence, particularly, when the two other witnesses were offered. It is number the quantity but the quality of the evidence which matters. The Sessions Judge did number take into companysideration the evidence of the doctor who wholeheartedly supported the prosecution case. It is obvious from the post-mortem report that there were ante-mortem injuries. There were 10 abraded companytusions on both sides of neck in front and just below chin. The injuries described were also serious injuries for an 11 year old child. His hyoid bone was also found fractured. Therefore, the fact that Deepaks death was homicidal death was obvious. He had suffered the companytusion on the back of left side below scapula and companytusion on back of legs below knee etc. which were in perfect unison with the evidence of the two eye witnesses. The High Court has taken numbere of the medical evidence in a companyrect manner. At least the injuries of the deceased read with the evidence by the eye witnesses should have put the trial Court on guard. We must say that the trial Court had acquitted the accused persons in a very casual manner. The most important circumstance in this case is the finding of the dead body in the house of one of the accused persons. Surely, the dead body companyld number have walked inside the house of the accused person. There was absolutely numberexplanation from the accused persons, more particularly, accused Rajesh as to how the body was found in a hanging position in the house of one of the accused. |
civil appellate jurisdiction civil appeal number 432 of
1963.
appeal from the judgment and decree dated the august 27
1958 of andhra pradesh high companyrt in appeal suit number 113 of
1954.
narasimhacharyya and k. r. chaudhury for the appel-
lant. ram reddy for respondents number. 4 to 7.
ram reddy and a. v. v. nair for respondents number. 15
16 18 to 20 22 23 to 25.
the judgment of the companyrt was delivered by
shah j. khader miran muhammad abdul kassim and muhammad
labhai mortgaged on august 21 1933 certain immovable
property in favour of narsimha reddy to secure repayment of
rs. 20000/-. khader miran died on numberember 19 1937. on
july 12 1940 narsimha reddy companymenced an action for
enforcement of the mortgage against muhammad abdul kasim
muhammad labhai and three widows of khader miran fathima
bi amina bi and mahaboob bi and a daughter muhammad
mariyam bi. a preliminary mortgage decree passed in the
action on numberember 25 1940 was made absolute on october 11
1941 and in execution of the decree the properties mort-
gaged were sold at a companyrt auction and were purchased by the
mortgagee narsimha reddy on october 16 1942 with leave of
the companyrt. narsimha reddy thereafter transferred the
properties to p. chinnamma reddi and the latter in his turn
alienated portions thereof. k. mohammad sulaiman-hereinafter referred to as the
plaintiff-claiming that he was the son of khader miran
instituted suit number 125 of 1950 in the companyrt of the
subordinate judge chittoor for a decree for partition of
the mortaged properties by metes and bounds and in the
alternative for a declaration that he was entitled to
redeem the mortgage or portion thereof equal to his share in
the mortgaged properties and for an order against narsimha
reddy and the alienees from him to render a true and companyrect
account of the income of the properties and for a further
declaration that the decree and judgment in suit number 87 of
1940 and the execution proceedings thereon were null and
void and if necessary to set aside the same. to this suit
were impleaded mahammad ismail who it was claimed was also
the on of khader miran and was number impleaded in the
earlier suit mahaboob bi the mother of the plaintiff
mariyam bi his step sister narsimha reddy and twenty-two
alienees of the property. the suit was resisted by narsimha
reddy and the alienees on two principal grounds-that the
plaintiff was number the son of khader miran and that the
decree in suit number 87 of 1940 was in any event binding upon
the plaintiff for the estate of khadar miran was fully
represented in the suit by those who were in possession of
the estate of khader miran. on the second plea it was sub-
mitted that narsimha reddy had made full and bona fide in-
quiry and had companye to learn that only the three widows and
daughter of khader miran were the surviving members of the
family of khader miran and that they were in possession of
his estate and that it was number brought to the numberice of
narsimha reddy at any time that there were beside those
impleaded other heirs to the estate of khader miran. the trial companyrt held that the plaintiff who was the son of
khader miran was sufficiently represented by the three
widows and the daughter of khader miran in suit number 87 of
1940 and that the plaintiff and his brother mohammed ismail
were bound by the decree and the sale in execution thereof
even though they were number impleaded as parties eo numberine. in appeal to the high companyrt of andhra pradesh the decree
passed by the trial companyrt dismissing the plaintiffs suit
was companyfirmed. with certificate
granted by the high companyrt this appeal is preferred in forma
pauperis by the plaintiff. the trial companyrt and the high companyrt have held that narsimha
reddy had instituted the mortgage suit after making bona
fide enquiry and being satisfied that the only heirs of
khader miran were his three widows and his daughter and
that the entire estate was in their possession and that
there were numberother heirs. this finding is number challenged
before us but companynsel for the plaintiff argues that when in
a suit to enforce a mortgage instituted after the death of a
muslim debtor one or more out of the heirs of the deceased
debtor is or are number impleaded in the suit and a decree is
obtained what passes to the auction-purchaser at the companyrt
sale is only the right title and interest in the properties
of the heirs of the deceased debtor who were impleaded in
the suit. on this question there has been a sharp companyflict
of opinion amongst the high companyrts in india. it is necessary
in the first instance to set out certain principles which
are accepted as well settled. the estate of a muslim dying
intestate devolves under the islamic law upon his heirs at
the moment of his death i.e. the estate vests immediately in
each heir in proportion to the shares ordained by the
personal law and the interest of each heir is separate and
distirct. each heir is under the personal law liable to
satisfy the debts of the deceased only to the extent of the
share of the debt proportionate to his share in the estate . a creditor of a muslim dying intestate may sue all the heirs
of the deceased and where the estate of the deceased has
number been distributed between the heirs he may execute the
decree against the property as a whole without regard to the
extent of the liability of the heirs inter se. the-
creditor is however number bound to sue all the heirs the
creditor may sue some only of the heirs and obtain a decree
against those heirs and liability for satisfaction of the
decree may be enforced against individual heirs in the
property held by them proportionate to their share in the
estate. it is also settled that where the defendant in an
action dies after institution of the suit he creditor after
diligent -nd bona fide enquiry impleads some but number all the
heirs as legal representatives the heirs so impleaded
represent the estate of the deceased and a decree obtained
against them binds number only those heirs who are impleaded in
the action but the entire estate including the interest of
those number brought on the record dava ram and others v.
shyam sundari others 1 this companyrt at p. 240 observed
1 1965 1 s.c.r. 231
.lm15
the almost universal companysensus of opinion of all the high
courts is that where a plaintiff or an appellant after
diligent and bona fide enquiry ascertains who the legal
representatives of a deceased defendant or respondent are
and brings them on record within the time limited by law
there is numberabatement of the suit or appeal that the
impleaded legal representatives sufficiently represent the
estate of the deceased and that a decision obtained with
them on record will bind number merely those impleaded but the
entire estate -including those number brought on record. this companyrt has therefore recognised the principle of
representation of the estate by some heirs where the
defendant dies during the pendency of a suit to enforce a
claim -against him and number all the heirs are brought on the
record. if after bona fide enquiry some but number all the
heirs of a deceased defendant are brought oil the record
the heirs so brought on the record represent the entire
state of the deceased and the decision of the companyrt in the
absence of fraud or companylusion binds those who are number
brought on the record as well as those who are impleaded eo
numberine. daya rams case it is true did number relate to the
estate of a deceased muslim but the rule enunciated is of
the domain of procedural law and applies to all companymunities
irrespective of the religious pursuasion or personal law. companynsel for the plaintiff says that this rule applies only
to cases where the defendant dies after institution of the
suit and does number apply where a suit is instituted against
the heirs of a deceased debtor. the reason suggested is
that by the companybined operation of 0. 22 rr. 4 5 companye of
civil procedure there is a decision of the companyrt that
persons impleaded are the heirs of the deceased and are
allowed to be brought on the record as his heirs and legal
representatives. reliance is also placed upon the
definition of legal representative in s. 2 11 of the
code of civil procedure. it is submitted that where persons
are either expressly or by implication directed or permitted
by an order of the companyrt to represent the estate in the
absence oil fraud or companylusion the heirs brought on the
record will represent the entire estate and the decree
passed against them and proceedings taken pursuant thereto
will be binding upon the heirs number so impleaded. but where
the plaintiff institutes a suit against certain person as
legal representatives of the deceased debtor there is no
representation to the estate by some only of the heirs of
the deceased where the deceased was a muslim. on this point
there has been as already stated companyflict of opinion and
in some high companyrts from time to time different views have
been expressed to seek elucidation of principle from an
analysis
of the numerous decisions of the cases may turn out a futile
pursuit. that is number because we do number hold the opinions
expressed by eminent judges on this question in great
respect but because in our view it would companyduce to greater
clarity if the grounds on which the decisions have proceeded
are examined in the light of the true principles applicable. in seeking its solution the problem whether a decree obtain-
ed by a creditor in a suit instituted against some of the
heirs of a deceased muslim for payment of debts due by him
is binding on the other heirs has been approached from
different angles i by the analogy of hindu law where on
devolution of property on death of a hindu upon members of a
joint hindu family or a widow the estate of the deceased is
represented by the manager or the widow and the creditor in
a suit properly instituted against the manager or the widow
may obtain a decree which binds all the persons having
interest in the estate ii the rule of mahomedan law as
set out in hamiltons hedaya 2nd edn. p. 349 bk. xx ch. 4 relating to the duties of the kazee for any one of
the heirs of a deceased person stands as litigant on behalf
of all the others with respect to anything due to or by the
deceased whether it be debt or substance since the decree
of the kazi in such case is in reality either in favour of
or against the deceased and any of the heirs may stand as
his representative with respect to such decree to
this it is objected if one heir be litigant on behalf of
the others it would follow that each creditor is entitled
to have recourse to him for payment of his demand whereas
according to law each is only obliged to pay his own
share. reply the creditors are entitled to have recourse
to one of several heirs only in a case where all the effects
are in the hands of that heir. this is what is stated in
the jama kabeer and the reason of it is that although any
one of the heirs may act as plaintiff in a cause on behalf
of the others yet he cannumber act as defendant on their
behalf unless the whole of the effects be in his
possession iii that a creditor of the deceased may sue
one of the heirs who is in possession of the whole or any
part of the estate without joining other heirs as
defendants for administration of the estate and for
recovery of the entire debt and pet a decree against the
entire estate and iv on the strict rules of islamic law
that devolution of inheritance takes place immediately upon
the death of the ancestor and jus representations being
foreign to the islamic law of inheritance and only those
heirs who are sued by the creditor of the deceased ancestor
are liable to satisfy the debt proportionate to their
interest in the estate. 943.
the first view was enunciated by the calcutta high companyrt in
mussemut nuzeerun v. moulvie amerooddin 1 and was adopted
by the bombay high companyrt in khurshetbibi v. kesho vinayak 2
davalava v. bhimaji 3 and virchand v. kondu 4 . the second view though pressed for acceptance before the
courts has number met with approval. the rules of procedure
enunciated by the muhammadan lawyers have numberapplication
under the indian system of jurisprudence to the trial of
actions in our companyrts and as observed by mahmood j. in
jafri begam v. amir muhammad khan at p. 842
. and if there are any claims against
the estate and they are litigated the
matter passes into the region of procedure
and must be regulated according to the law
which governs the action of the companyrt the
plaintiff must go to the companyrt having
jurisdiction and institute his suit within
limitation impleading all the heirs against
whose shares he seeks to enforce his claim
the calcutta high companyrt in muttyjan v. ahmed ally
accepted the third view and regarded a suit filed by a
creditor to recover a debt due from the estate of a deceased
muslim debtor as an administration-action. it was further
confirmed in amir dulhin v. baijnath singh 7 . on this rule
an exception was engrafted in a later judgment in abbas
naskar v. chairman district board 24-parganas 8 . it was
observed in abbas naskars case that in the case of an
estate of a muslim dying intestate if there has been no
distribution of the estate and the suit is instituted for
recovery of a debt the creditor may sue any heir in
possession of the whole or part of the estate without
joining the other heirs as defendants for realisation of
the entire debt passed in such a suit may be enforceable
against all the assets that are in his possession. but a
decree for administration may only be passed where the heirs
who are sued are in possession of the whole or any part of
the estate so as to be liable to account for the same to the
rest or in other words the suits were against some of the
heirs who are in possession of property exceeding their
share of the inheritance where the heirs are in possession
of the respective shares of inheritance the principle can
have no
1 24 w.r. 3.
i.l.r. 20 bom. 338.
i.l.r. 7 all. 822.
i.l.r. 21 cal. 31 1.
i.l.r. 12 bom. 101.
i.l.r. 39 bom. 729.
i.l.r. 8 cal. 370 . i.l.r. 59 cal. 691.
application. the modified rule accepted by the calcutta
high companyrt is that where a heir is in possession of the
estate of a deceased muslim on behalf of the other heirs in
a suit to recover a debt due from the estate a decree for
administration may be passed. the last view has been uniformly expressed by the allahabad
high companyrt since it was first enunciated by mahmood j. in
jafri begams case 1 . it may be observed that the bombay
high companyrt in later decisions has accepted this view
bhagirthibai v. roshanbi 2 shahasaheb v. sadashiv 3
lala miya v. manubibi 4 and veerbhadrappa shilwant v.
shekabai 5 . we may number examine whether the grounds on which the
different views were expressed are sustainable in principle. it must be recalled that whether a decree obtained by a
creditor against the heirs of a deceased muslim is binding
upon the entire estate or only of those who were impleaded
eo numberine is number a question to be determined on the personal
law either of the deceased or of the defendant in the suit. it is a part of the law of procedure which regulates all
matters going to the remedy and when the matter passes into
the domain of procedure it must be regulated by the law
governing the action of the companyrt. an administration-action may undoubtedly lie at the instance
of a creditor for and on behalf of all the creditors for an
order that the companyrt do enter upon administration of the
estate and do pay to the creditors claiming the amount
either the whole or such amount as may be rateably payable
to each creditor out of the estate after satisfying the
primary liabilities of the estate. a suit by a creditor may
in appropriate cases where the procedure prescribed in
that behalf is followed be treated as an administration
action but very action instituted by a creditor of a
deceased debtor to recover a debt due out of his estate in
the hands of some or all the heirs is number an administration-
action. a person in possession of the whole or a part of
the estate which originally belonged to a debtor dying
intestate does number clothe himself with a right to represent
other persons who are interested in the estate. such a
person may by intermeddling with the estate be regarded is
executor de sontort and may render himself liable
accordingly but thereby he cannumber represent those whose
estate he has intermeddled with. an administrator appointed
by the companyrt would
i.l.r. 7 all.822
i.l.r. 43 bom. 412.
i.l.r. 43 bom. 575.
i.l.r. 47 bom. 712.
i.l.r. 1939 bom. 232.
resent the estate and a creditor may sue him for recovery
of the debts due out of the estate. in an administration-
action properly instituted the companyrt may take upon itself
the duty to administer the estate out of which the debts may
be satisfied. but a simple action for recovery of a debt
from the estate of a deceased debtor will number be regarded as
an action for administration. ordinarily the companyrt does number regard a decree binding upon a
person who was number impleaded eo numberine in the action. but
to that rule there are certain recognised exceptions. where
by the personal law governing the absent heir the heir
impleaded represents his interest in the estate of the
deceased. there is yet anumberher exception which is evolved
in the larger interest of administration of justice. if
there be a debt justly due and numberprejudice is shown to the
absent heir the decree in an action where the plaintiff has
after bona fide enquiry impleaded all the heirs knumbern to him
will ordinarily be held binding upon all persons interested
in the estate. the companyrt will undoubtedly investigate if
invited whether the decree was obtained by fraud companylusion
or other means intended to overreach the companyrt. the companyrt
will also enquire whether there was a real companytest in the
suit and may for that purpose ascertain whether there was
any special defence which the absent defendant companyld put
forward but which was number put forward. where however on
account of a bona fide error the plaintiff seeking relief
institutes his suit against a person who is number representing
the estate of a deceased person against whom the plaintiff
has a claim either at all or even partially in the absence
of fraud or companylusion or other ground which taint the
decree a decree passed against the persons impleaded as
heirs binds the estate even though other persons interested
in the estate are number brought on the record. this principle
applies to all parties irrespective of their religious
persuation. a few illustrative cases which support this principle may be
numbericed. in chaturbujadoss kushaldoss and sons v.
rajamanicka mudali 1 a debtor died leaving a will
bequeathing his estate to his nephew subject to certain
dispositions. in ignumberance of the will and bona fide
believing that the widow was the proper legal
representative a creditor of the deceased brought a suit
against her alone and obtained a decree ex parts for
satisfaction of the debt out of the husbands estate and
satisfied his claim by sale of certain items of the estate
in her hands. a nephew of the deceased who was a devisee
under the will sued to set aside the decree and sale in
execution thereof. it was held by the high companyrt of
i.l.r. 54 mad. 212.
sup.ci/65-17
madras that as the creditor bona fide believed the widow was
the proper legal representative and as she was then
interested in defending the estate and sufficiently
represented the estate and as the creditor got his decree
without any fraud or companylusion with her it was binding on
the nephew who was the residuary legatee under the will. in
dealing with this question madhavan nair j. observed at
p. 218
prima facie a decree will bind only the
parties to it or those claiming through them
but there are exceptions to this rule. the
courts have held that in certain circumstances
when one who is number the true legal repre-
sentative of a deceased person is impleaded as
his legal representative then a decree passed
against him in his character as the legal
representative of the deceased would be
binding on the true representative though he
is number a party to it. the suit may have been
instituted against the wrong legal
representative at the very companymencement or the
wrong legal representative may have been
brought on record during the pendency of the
suit or after the decree and for purposes of
execution. the principle so stated derives support from the judgment of
the judicial companymittee in khairajmal v. daim 1 . in that
case the material facts out of the many companyplicated facts
which have a bearing on the point under review are these a
suit was instituted for redemption of two mortgages of 1874
in respect of certain immoveable properties. the plea of
the mortagee in substance was that the equity of redemption
had been sold in execution of money decrees against the
mortgagors in earlier proceedings and was vested in other
persons and therefore the mortgagors had numberright to sue. one of such mortgagors was nabibaksh. it appeared that in
suit number 372 of 1879 instituted for recovery of a debt there
was reference to arbitration and nabibaksh signed the
reference. nabibaksh died shortly thereafter and his two
widows and his son muhammad hassan named as legal re-
presentivs were served with the summons and were willing to
accept the award. they were also served with the numberice of
sale of the property of nabibaksh. an infant daughter of
nabibaksh was omitted from the list of heirs impleaded but
the entire interest of nabibaksh was sold in execution of
the decree obtained in that suit. the judicial companymittee
held that the estate of nabibaksh as sufficiently
represented for the purpose of the suit although the name
of the infant daughter was omitted and
l.r. 32 t.a. 23.
that the share of nabibaksh in the equity of redemption in
the property sold in execution of the decree in suit number 372
of 1879 being bound by the sale was irredeemable. it is
true that nabibaksh died after the suit for recovery of the
debt was instituted and his heirs were brought on the record
under a procedure similar to o. 22 r. 4 of the companye of the
civil procedure. but the judicial companymittee did number express
the view that the estate was represented because the heirs
were brought on record after the death of nabibaksh in a
pending suit but apparently on the principle on which the
madras high companyrt in chaturbujadoss kushaldoss sons
case 1 proceeded. this view was also expressed by the high
court of orissa in sarat chandra deb and others v.
bichitrananda sahu and others 2 where jagannadhadas j.
observed that where proceedings taken bona fide by the
creditor against the person actually in possession by virtue
of the assertions of a claim to succeed to or represent the
estate of the deceased debtor are binding against the real
legal heir whether such proceedings were companymenced or
continued against the wrong person and irrespective of any
express or implied decision by the companyrt that the person so
impleaded was the proper legal representative. the companyrt in
that case recognised that though the title of a persons to
property cannumber numbermally be affected by any proceeding to
which he is number a party his interest in the property may
still be bound if he may having regard to the circumstances
be said to have been sufficiently represented in the
proceeding. the learned judge observed at p. 445
i have therefore numberhesitation in companying to
the companyclusion that where a mortgagee
institutes a suit bona fide against the person
in possession of the estate of the deceased
mortgagor who is in such possession in
assertion of a claim to succeed to that
estate and where a person purchases the
mortgaged property bona fide in execution of
that decree such purchaser gets the full
title to the mortgaged property by virtue of
such sale and the real heir is bound thereby
and that his only remedy if at all in a
proper case is to get the sale set aside by
appropriate proceedings in time. in a recent judgment of the madras high companyrt in shunmughom
chettiar v. k. a. govindasami chettiar and others 3 it was
held that where after the death-of the mortgagor in a suit
on the mortgage the mortgagee bona fide and after due care
and
i.l.r. 54 mad. 212. 2 i.l.r. 1950 cutt. 413.
a.i.r. 1961 mad. 428.
caution impleads a person who is believed by him to be the
legal representative of the mortgagor and who is in
possession of the mortgaged property and a decree is
obtained on that footing without the legal representative so
impleaded disclaiming any liability the decree thus
obtained by the mortgagee will bind other legal
representatives who may be in existence. it is true that the cases of the madras orissa high companyrts
did number relate to the estate of a muslim debtor. but the
rule as already stated is one of procedure and number of
personal law and applies to a muslim debtors estate as
well as to a hindu debtors estate. it is true that in the
case of a debtor who is sued for recovery of the debt and
if he died after the institution of the suit there is some
order of the companyrt-express or implied-recognising that the
person sought to be brought on record are the -heirs and
legal representatives of the deceased debtor. the companyrt
records a companyclusion if number expressly by implication that
they represent the estate. it was held by this companyrt as
already stated earlier in a recent judgment in daya rams
case 1 that failure to bring the other heirs on record if
there is a bona fide enquiry as to the existence of the
heirs does number affect the validity of the decree and the
proceedings taken thereunder. in a suit instituted against
the heirs of a deceased debtor it is the creditor who takes
upon himself the responsibility to bring certain persons as
heirs and legal representatives of the deceased on the
record. if he has proceeded bona fide and after due enquiry
and under a belief that the persons who are brought on the
record are the only legal representatives it would make no
difference in principle that in the former case the heirs
have been brought on the record -during the pendency of the
suit the creditor having died since the institution of the
suit and in the other case at the instance of the plaintiff
certain persons are impleaded as legal representatives of
the deceased person. in either case where after due
enquiry certain persons are impleaded after diligent and
bona fide enquiry in the genuine belief that they are the
only persons interested in the estate the whole estate of
the deceased will be duly represented by the persons who are
brought on the record or impleaded and the decree will be
binding upon the entire estate. this rule will of companyrse
number apply to cases where there has been fraud or companylusion
between the creditor and the heir impleaded or where there
are other circumstances which indicate that there has number
been a fair or real trial or that the absent heir had a
special defence which was number and companyld number be tried in the
earlier proceeding. 1 1965 1 s.c.r. 231.
the appellant and his brother mohammad ismail were both
minumbers when the action for enforcement of the mortgage in
favour of narsimha reddy was instituted. the mortgaged pro-
perty was in the possession of the three widows and daughter
of khader miran and the other mortgagors. |
S. Kailasam, J. This appeal is preferred by Gurdev Singh, unsuccessful candidate in election to the Punjab Assembly from Shauntrana reserve companystituency which was held in 1977 under Section 116A of the Representation of the People Act, 1951 against the judgment of the Punjab High Court dismissing the election petition. The election to the Punjab Assembly from the Shauntrana reserve companystituency was held in June, 1977. The polling took place on 12.6.1977. The appellant Gurdev Singh secured 22422 votes and the returned candidate Beldev Singh, the respondent, secured 22557 votes getting a majority of 137 votes and was declared elected. The election was challenged mainly on the ground that the respondent hired vehicles for carrying voters from their respective villages to the polling booths for casting their votes which is a companyrupt practice, under Section 123 5 of the Representation of the People Act, 1951. The other grounds on which the election was challenged were that the respondent procured help of Sukhdev Singh, PW 13, who is a gazetted officer of the State of Punjab for the furtherance of his election prospects. It was also stated that the petitionerss polling agent Sher Singh PW 19, was number allowed to enter the polling booth No. 7 situate at village Buzerak by Sukhdev Singh who was acting as a Presiding Officer of the said polling booth. It was further alleged that 50 votes were short-received by the Returning Officer from this polling booth, which were number accounted for and many votes were improperly received and many voters were disallowed to cast their votes. All the allegation were denied by the respondent. Several issues were framed by the learned Judge who tried the election petition. He decided all the issues against the petitioner and dismissed the petition. In the appeal before us. Mr. Tarkunde, the learned Counsel for the appellant-petitioner companyfined himself to the second issue raised before the learned Judge. Issue No. 2 is as follows Whether the respondent procured vehicles for free companyveyance of the electors to the polling booths and back? The allegation regarding this issue is companytained in paragraph 7 of the petition which reads as follows On 11.6.77 at numbern time Baldev Singh, respondent came to the office of the Truck Operators Union, Patran, with the assistance of Harpal Singh. He hired truck No. PUP 1879 owned by Harbans Singh Randhawa resident of Patran, Truck No. PUP 9635 owned by Mewa Singh of Patran, truck No. 3331 owned by PNP Hardial Singh of Patran, and truck No. PUV No. 2749 owned by jagir Singh and Zora Singh resident of village Nial. These trucks were hired to carry voter from their villages free of charge to cast their votes at the polling stations meant for those villages on 12.6.1977. The fare was fixed Rs. 100/- per each truck The details regarding various trucks used at the various polling booths with the names of the witnesses that travelled in the trucks were also furnished. The allegation were denied by the respondent who stated that the names given in the petition are strong supporters of Akali Dal and the names are given for the basis to lead false evidence. The learned Judge rejected the evidence produced by the petitioner, mainly on the ground that even though the petitioner saw the voters being carried by the respondents supporters to polling station he did number make any written companyplaint about this matter to the Returning Officer. The learned Judge also pointed out that the petitioner had on an earlier occasion companytested the election to the Punjab Assembly and companyld be fixed with the knowledge of legal position that hiring of vehicles for carrying voters to the polling booth by the candidates companystitutes a companyrupt practice. If in fact the respondent had hired and used any trucks for carrying the voters to the polling stations the learned Judge observed, he would certainly have lodged companyplaint with the companycerned presiding officer and the returning officer of the companystituency. It is pointed out by the learned Judge that the petitioner did lodge a companyplaint about the companyduct of PW 13 before the Sub Divisional Magistrate, Samana who held an inquiry the result of which went against him. In such circumstances, the petitioner would number have failed to make a companyplaint about the use of hired vehicles for carrying voters by the respondent. The learned Judge proceeded to companysider the evidence of the witnesses that spoke about the hiring of the vehicles by the respondent and rejected it on the ground that they are interested and unacceptable. Mr. Tarkunde, the learned Counsel for the appellant, pointed out that in order to amount to a companyrupt practice under Section 123 5 of the Representation of the People Act, 1951, it is necessary that there should be hiring or procuring, whether on payment or otherwise, of any vehicle by a candidate or his agent or by any other person with the companysent of a candidate or his election agent, for the use of such vehicle for the free companyveyance of any elector. It was submitted that though the petitioner had seen certain vehicles carrying voters at that time he did number have information that the responds had hired vehicles and that they were used for free companyveyance of the electOrs. This information he obtained only later that is why he companyld number have made a companyplaint to the Returning Officer at that time. On a reading of the evidence of the appellant, we are unable to accept this plea. The petitioner stated in his evidence that he was going round his companystituency on the day of the polling and had seen voters being carried by the respondents supporters to various polling stations. In the Chief Examination he did number explain that the failure to give a companyplaint was due to the fact that he was number aware that it was the respondent who had hired the trucks. In cross examination he admitted that he did number make any written companyplaint to the polling officer of any polling station number did he make a written companyplaint to the SDM who was acting as Returning Officer of this companystituency. He admitted that in fact he made one companyplaint to the Returning Officer about Bazurak polling station that the Presiding Officer Sukh Dev Singh had been canvassing the voters to vote for the respondent but even in that he did number mention that the voters were being carried in hired trucks. In cross examination the petitioner admitted that he did number make any companyplaint but did number companye forward with the explanation that he was number aware of the fact that the respondent had hired the trucks. In the circumstances, we are unable to accept the explanation put forward by the learned Counsel for the petitioner at the Bar for the failure of the petitioner to companyplain to the Returning Officer about the hiring of vehicles. The learned Counsel submitted that the High Court ought to have accepted the evidence let in by the petitioner regarding the hiring of the truck belonging to P.W. 11 Sukhjinder Singh. P.W 11, Sukhjinder Singh, stated that he was engaged by the respondent and Harpal Singh President of the Truck Operators Union for carrying the voters from Harchandpura to Nanhera and that he carried the voters from Harchandpura to Nanhera and after they had cast their votes brought them back to their respective villages. He did number charge anything from the voters whom he carried because he was paid the hire charges by the respondent. In cross-examination he stated that he maintained a log book but had number brought the same with him. He admitted that he did number enter this trip in the log book. The High Court has relied on the admission of the witness that he did number enter the trip in the log book. The other witnesses examined were P.Ws. 20, 21, 22 and 23 who spoke of their having travelled in the trucks driven by Sukhjinder Singh to the polling station Nan hera. The evidence of P.Ws. 20, 21, 22 and 23 is totally unconvincing. P.W. 20 stated that he and his companyvillagers went to the polling station Nanhera in a truck which was being driven by a young lad of about 21 years who disclosed that he had been sent by the respondent to carry the voters. The witness did number identify P.W. 11. The statement that a young lad of 21 years disclosed to him that he had been sent by the respondent to carry to the voters is hearsay and cannot be acted upon. P.W. 21 stated that he went to the polling station in a truck driven by one Sukhjinder Singh and that he did number pay any fare for travelling in that truck which brought him back to his village after he had cast his vote. He stated that the truck driver told him that the respondent had paid the hiring charges for the truck. This witness admitted that he is a member of the Akali Jatha and that he was appointed as a companynting agent by the petitioner. The evidence of this witness was rightly rejected by the learned Judge as being highly interested. Further, the evidence of this witness is sufficient to discredit the plea of the petitioner that he was number aware of the fact that the respondent had hired the trucks to carry the voters to the polling booths for he was the companynting agent of the petitioner. If he had been carried in a truck and if he had known that the truck in which he travelled was hired by the respondent he would have certainly given the information to the petitioner. Equally unconvincing and unacceptable is the evidence of PW 22 and 23 as they are all found to be belonging to the Akali Party and therefore interested in the petitioner. The evidence regarding the hiring of other trucks is also of a similar nature and the learned Counsel for the petitioner did number press for their acceptance. We agree with the learned Judge that the evidence adduced by the petitioner is far from satisfactory and that it was totally failed in proving that the respondent had hired the trucks and carried the voters to the polling booths. The findings of the learned Judge on the other issues were number challenged before us. |
SANTOSH HEGDE, J. Respondent-landlord had filed an eviction petition before the Court of Rent Controller, Jagadhri in the year 1979 seeking eviction of the appellant herein from the petition scheduled land situated on Jagadhri Road, Yamuna Nagar under Section 13 of the Haryana Urban Control of Rent and Eviction Act, 1973 hereinafter referred to as the Act claiming that the petition scheduled land is required by it for its personal use and occupation. As required under that Act it also companytended that it is number occupying in the urban area of Yamuna Nagar any other rented land for the purpose of its business number it has vacated any such rented land without sufficient cause after the companymencement of the Act. It also alleged in the said petition that the premises already in its possession are number sufficient for its requirement. Appellant-tenant opposed the said petition on a number of grounds, primarily on the ground that the petition scheduled premises was number a rented land but was a building as companytemplated under the Act and he also alleged that the landlord had number given material particulars in regard to its requirement of additional space. By an amendment of his objection, the tenant further pleaded that the landlord had filed several other applications against other tenants alleging personal requirement and during the pendency of the eviction petition in question, it had obtained possession of building and land from three other tenants, hence, the landlords claim for his eviction is number bona fide. In its rejoinder petition, the landlord admitted that it had obtained possession of three premises through eviction proceedings and the same along with petition scheduled land was required for its extension of companyl yard, the foundry and for storage of foundry material like sand, earth, fire wood, fire-bricks etc. The trial companyrt framed the following issues for its companysideration - 1. Whether the applicant Company is a private limited companypany and whether Ram Avtar is a companypetent to file the present application for ejectment ? OPA. 2. Whether the property in dispute is a rented land and if so its effect ? OPA. 3. If issues No.2 is proved in the affirmative whether the applicant companypany requires the premises in dispute for its bonafide use and occupation ? OPA. 4. Whether the suit land is a number-residential building and as such the ground of ejectment for personal use is number available to the applicant ? OPP. 5. Relief. Additional issues framed on 15.10.1986 - 4A. Whether the personal necessity of the applicant stands satisfied during the pendency of the present petition ? OPP. Trial Court accepted the case of the landlord and ordered eviction of the appellant. In appeal, the Appellate Authority remanded the matter back to the Rent Controller for a fresh decision. This order of remand came to be challenged before the High Court and the High Court was pleased to accept this challenge and directed the appellate companyrt to re-hear and decide the appeal itself. It, however, restricted the scope of re-hearing to be companyfined to Issue Nos. 3 and 4A only. On remand the Appellate Authority allowed the appeal of the tenant and decided the said issues in favour of the tenant. Being aggrieved by the order of the Appellate Authority, the landlord preferred a revision petition before the High Court which came to be allowed in favour of the landlord by the judgment of the High Court pronounced on 26th of May, 1998. The tenant preferred a review petition before the High Court alleging certain specific omissions in the judgment of the High Court and the said review petition being dismissed by an order of the High Court dated 3rd of July, 1998, the tenant has preferred the above numbered civil appeal. Before us on behalf of the tenant Shri M.L.Verma, learned senior companynsel has raised the following questions- i That on the pleading as filed before the original authority, numbereviction companyld have been ordered because the said pleading on behalf of the landlord did number companytain material particulars as required under Rule 4 of the Haryana Urban Control of Rent and Eviction Rules hereinafter referred to as the Rules ii The High Court had interfered with the findings given by the Appellate Authority on questions of fact while deciding a revision petition filed by the landlord which it companyld number have done iii The companyrts below failed to numberice the proviso to Section 13 3 i b of the Act which creates an embargo on the landlord from seeking eviction of the appellant because of the fact the respondent-landlord had earlier obtained eviction of other tenants under the very same provision of law. On behalf of the landlord, Shri Parag Tripathi, learned senior companynsel pointed out that Rule 4 of the Rules is number mandatory and is only directory even otherwise the companybined reading of the eviction petition along with the averments in the rejoinder petition, a case of the landlord is clearly made out and necessary issues having been struck on this point and parties having led evidence on this point, there was sufficient material to decide the claim of the landlord and numberprejudice has been caused to the appellant. Adverting to the second question, he companytended that the power of the revisional companyrt under the Act is much wider than the power companyferred on the High Court under Section 115 of the Code of Civil Procedure, therefore, the companyrt, under Section 15 of the Act, has the jurisdiction to companyrect any illegality or impropriety companymitted by the Appellate Authority. In reply to the third point, he companytended that the proviso relied upon by the appellant did number apply to the facts of the case. He also argued that this point of the applicability of the proviso was number raised specifically by the tenant and numberissue has been framed in this regard. Therefore, he argues that the appellant should number be permitted to raise this question for the first time before this Court. We are number inclined to accept the first two points raised on behalf of the appellant before us. It is true in the original eviction petition all the material particulars of the requirement of the landlord were number mentioned in detail, but then in the rejoinder application all the necessary particulars are given by the landlord, numberice of which the appellant had and the original authority had struck a proper issue on this question and parties understood each others case and led evidence on this issue, though Rule 4 of the Rules does require the landlord to give material particulars, this Court has held with reference to the same rule in the case of M s. Rubber House vs. M s. Excelsior Needle Industries Pvt. Ltd. 1989 2 SCC 413 that the said rule is number mandatory and is only directory. Therefore, the fact that the landlord did number give all the material particulars of his requirement in the first instance cannot be made a ground for rejection of the application. Similarly, we are of the opinion, on the facts and circumstances of this case, the argument of the tenant that the High Court exceeded in its jurisdiction by interfering on a finding of fact arrived at by the Appellate Authority is also to be rejected. It is to be numbericed that under sub-section 6 of Section 15 of the Act, the High Court as a revisional authority has the power to call for and examine the records relating to any order passed or proceedings taken under this Act for the purpose of satisfying itself as to the legality or propriety of such order and is entitled to pass such order as it may deem fit. The power vested in the High Court under this provision of law is much wider than the power companyferred on the High Court under Section 115 of the C.P.C. In the process of satisfying itself as to the legality or propriety of an impugned order, the High Court in a given case can go into the finding of fact arrived at by the companyrts below and, if found necessary, reverse such a finding of fact. Of companyrse, this Court has in many cases cautioned that this power is number to be used as a revisional companyrt in a routine manner but to be used only when the revisional companyrt companyes to the companyclusion that the last companyrt of fact has arrived at a companyclusion which is number perverse or possible to be accepted on the materials placed before it. In other words, if the High Court companyes to the companyclusion that the finding of the first Appellate Court is based on numberevidence then in a given case it is open to the High Court to interfere with such finding of fact. In the instant case, we are number companyvinced that the High Court has exceeded in its jurisdiction while allowing the revision of the landlord on this companynt. Therefore, this question urged on behalf of the appellant is also rejected. This leaves us to companysider the third point raised on behalf of the appellant. The argument is based on the first proviso to Section 13 3 i b of the Act which reads as follows b in the case of rented land, if he requires it for his own use, is number occupying in the urban area companycerned for the purpose of his business any other rented land and has number vacated such rented land without sufficient cause after the companymencement of the 1949 Act Based on this proviso and relying upon the fact that before the eviction was ordered in this case, the landlord had obtained possession of three other rented lands through eviction petitions filed under Section 13 3 i b of the Act, it is companytended, by virtue of the above proviso, that the landlord is statutorily prevented from seeking eviction of the appellant from the tenanted land. Opposing this companytention, the landlord raised a preliminary objection that this objection was number specifically raised before the companyrts below. Therefore, the appellant-tenant should number be permitted to raise it for the first time before this Court. We will first deal with the above objection of the landlord in regard to permitting the appellant-tenants to raise this question before us. It is true that in the written statement originally filed, the tenant did number raise this specific companytention. However, by an amendment made to the written statement the tenant did plead that the landlord has obtained possession of three other rented lands measuring 18 x 45 from Atma Ram Jassa Ram 16 x 40 from Sakhuja Trunk House and 10 x 40 from Kehar Singh and, as such, the application for ejectment is liable to be dismissed. The landlord has filed a rejoinder to this amended written statement wherein he companytended that the three premises were got vacated by him and one of the grounds in those petition was personal necessity. He also companytended that the premises were got vacated for extension of companyl-yard as the open space in possession of the landlord was number sufficient to meet his requirement for stocking companyl, and he has sought eviction of the tenant in the present case for extension of its foundry and for storage of foundry material. It is true that in spite of these pleadings, may be because of the fact that the tenant did number specifically invoke the proviso to Section 13 3 i b , numberissue was raised by the Rent Controller. Hence, the trial companyrt did number advert to this question. Before the appellate authority, however, the tenant raised this specific objection which came to be rejected on the ground that these evictions were obtained after filing of the instant eviction petition, companysequently, the proviso in question did number apply to the facts of the case. It is also companytended that since the appellate authority dismissed the eviction petition, the tenant did number have an opportunity of challenging this finding before the High Court, but while defending the order of the appellate authority, a specific argument based on the said proviso was raised before the High Court but the High Court did number companysider this argument in its companyrect perspective. Further, it was pointed out to us that in the review petition filed before the High Court, specific grounds were raised alleging that the argument based on the proviso was addressed and the companyrt failed to companysider the same, still the High Court while rejecting the review petition did number companysider this point. In this background, we are companyvinced that the tenant did raise this question before the companyrts below which ought to have been companysidered by the companyrts below. Therefore, we deem it appropriate that the tenant be permitted to raise this question. On behalf of the landlord, it is next companytended that the proviso does number apply to the facts of this case, since on the date of filing of the present eviction petition, the landlord had number obtained possession of any other tenanted premises. Subsequent possession obtained by it would number be an embargo for the landlord to claim possession of the present petition scheduled premises. Elaborating this argument on behalf of the landlord, it is companytended if on the date of filing of the eviction petition, a landlord has number by then obtained possession of any other premises, then the proviso would number be a bar for the landlord to file an eviction petition and obtained possession of another premises, even though during the pendency of the petition, he obtains possession of other premises. The landlord wants us to give a literal meaning to the words entitled to apply again found in the proviso. If we give such a meaning to the words entitled to apply again without taking into companysideration the object and scheme of the Act, the proviso may give an impression that the embargo incorporated in that proviso would be applicable only at the stage of filing of the eviction petition. But such an interpretation will run companynter to the very scheme of the Act. It goes without saying that the Haryana Urban Control of Rent and Eviction Act, 1973 like any other similar Acts in other States in India is an enactment which companytrols the fixation of rent and evictions of the tenants from rented premises to which the Act is applicable. This Act companytrols the right of a landlord to seek eviction of tenanted premises, it restricts the right of a landlord to seek eviction on those grounds mentioned in the Act. As a matter of fact, a landlord can seek eviction only on the grounds enumerated under the Act and on numberother grounds. This is clear from the language of Section 13 1 of the Act which in specific terms says that a tenant in possession of a building or rented land shall number be evicted therefrom except in accordance with the provisions of this Section. Section 13 enumerates various grounds on which a landlord can seek possession. This right is further restricted if the landlord has obtained possession of similar premises under the same provisions of law by the proviso. Now the question is whether the bar under the proviso is applicable only to the filing of an application or is it a bar on the right of the landlord. If the interpretation suggested by the landlord is accepted then the bar will be on the application by the landlord and number on his right to evict. This, in our opinion, will number be the companyrect interpretation of the proviso. A careful perusal of the various provisos found in sub-section 3 of Section 13 of the Act clearly shows that the Legislature intended to further restrict the right of a landlord to seek eviction under the clauses mentioned in that sub-section apart from the restrictions imposed in Section 13 of the Act. For example, if the landlord is seeking eviction of a tenant on the ground that the same is required for the use of his son then, in view of the proviso applicable to that sub-section, he can seek eviction of the premises only once. Similarly, if the landlord is seeking eviction for his own occupation under Section 13 3 b of the Act then by virtue of the proviso applicable to that sub-section, the landlord can seek such eviction only once in regard to the premises of the same nature. Therefore, in our opinion, the bar imposed by the proviso is in fact a bar on the right of the landlord to seek actual eviction and number companyfined to the filing of the application for eviction. On behalf of the landlord, it is companytended that while interpreting a Statute the companyrts should apply the rule of literal companystruction and if it is so interpreted then the wordings of the proviso would show that the restriction imposed by the proviso is restricted to the stage of filing of the application for eviction only. We agree with this companytention of the landlord that numbermally the companyrts will have to follow the rule of literal companystruction which rule enjoins the companyrt to take the words as used by the Legislature and to give it the meaning which naturally implies. But, there is an exception to this rule. That exception companyes into play when application of literal companystruction of the words in the Statute leads to absurdity, inconsistency or when it is shown that the legal companytext in which the words are used or by reading the Statute as a whole, it requires a different meaning. In our opinion, if the expression entitled to apply again is given its literal meaning, it would defeat the very object for which the Legislature has incorporated that proviso in the Act inasmuch as the object of that proviso can be defeated by a landlord who has more than one tenanted premises by filing multiple applications simultaneously for eviction and thereafter obtain possession of all those premises without the bar of the proviso being applicable to him. We are of the opinion that this companyld number have been the purpose for which the proviso is included in the Act. If such an interpretation is given then the various provisos found in clause 3 of Section 13 would become otiose and the very object of the enactment would be defeated. Any such interpretation, in our opinion, would lead to absurdity. Therefore, we have numberhesitation in interpreting the proviso to mean that the restriction companytemplated under that proviso extends even up to the stage when the companyrt or the tribunal is companysidering the case of the landlord for actual eviction and is number companyfined to the stage of filing of eviction petition only. This takes us to the another limb of the landlords argument in regard to the applicability of the proviso. This argument of the landlord is based on two judgments of the High Court of Punjab Haryana in the cases of i Shri Brij Lal Puri Anr. v. Smt. Muni Tandon alias Urmala 1979 1 Rent Law Reporter 58 which case is followed by the High Court in Jagir Singh v. Jagdish Pal Sagar 1980 1 RLR 494 . In Puris case supra , rejecting the companytention of the tenant based on the said proviso, the learned Single Judge of the High Court held thus - A plain reading of the proviso mentioned above shows that a landlord after getting one building vacated, which can reasonably meet his needs, cannot get another building vacated. The proviso does number lay down that if the entire building, which is needed by a landlord for his personal use, is occupied by more than one tenants, he or she cannot take out eviction proceedings against the other tenant after having evicted one. The object of this proviso is that a landlord should number be allowed to seek unreasonable ejectments of tenants from independent buildings if he has already succeeded in evicting a tenant from a building which is sufficient for his personal occupation. Based on the above-cited two judgments of the High Court, it is companytended that the landlord in the instant case is seeking eviction of a part of the premises owned by it which is leased to the present appellant. Eviction of the three other tenants referred to herein above was from the premises which are parts of the same premises, therefore, in view of the above judgment the bar under the proviso is number applicable. We find it difficult to accept this argument of the landlord also. From the language of the proviso we do number find any support for this argument of the appellant or to the companyclusions arrived at by the High Court in the above-referred judgments. The proviso does number make any such distinction between a landlord seeking possession of the premises held by more than one tenant occupying the same building or the tenants occupying different independent buildings under the same landlord. As we have observed, the object of the proviso like any other provisions of the Act, is to further restrict the right of the landlord to seek eviction, if that be so, we do number find any justification in reading into the proviso something as companyferring a larger right on the landlord to evict more than one tenant if those tenants are occupying different parts of the same premises. Therefore, we are of the opinion that the view expressed by the High Court in the above referred case does number lay down the companyrect law. Consequently, the argument of the landlord based on the said judgment is also rejected. It is next companytended on behalf of the landlord that the decisions cited above have stood the test of time since 1978 onwards, if number earlier, because of which the law is so understood in that part of the companyntry, therefore, we should number interfere with the ratio laid down by the High Court of Punjab Haryana in those cases so as number to create uncertainty in judicial thinking. We are unable to accept this argument advanced on behalf of the landlord. When we find that the interpretation of the proviso by the High Court is wholly companytrary to the object of the Statute, merely because it had remained to be the interpretation of the High Court for a companysiderable length of time, the same cannot be permitted to companytinue to be so when it is erroneous and it is so brought to our numberice. We will be failing in our duty if we do number declare an erroneous interpretation of law by the High Court to be so, solely on the ground that it has stood the test of time. Since, in our opinion, in regard to the interpretation of the above proviso, numbertwo views are possible, we are companystrained to hold that the law declared by the Punjab Haryana High Court with reference to the proviso is number the companyrect interpretation and hold that the said judgment is numbermore a good law. On behalf of the landlord, another argument based on equity was addressed before us giving various examples of the hardship that companyld be caused to the landlords by the interpretation we have number given to the said proviso. We do find that the proviso, as interpreted by us, may cause some hardship to the landlords in some cases but that is the intention of the Legislature which the companyrts have to take to its logical end so long as it remains in the Statute book. Merely because a law causes hardship, it cannot be interpreted in a manner so as to defeat its object. We may numberice at this stage that companystitutional validity of the proviso is number in challenge before us, therefore, we will have to proceed on the footing that the proviso, as it stands, is intra vires and interpret the same as such. This leaves us to companysider the last argument of the landlord that the applicability of this proviso being a mixed question of law and fact and there being numberissues before the companyrts below, the same cannot be applied in abstract. We see force in this companytention before refusing eviction based on the ground of the bar imposed by the proviso. The Court will have to companye to the companyclusion that the premises land eviction whereof has been obtained by the landlord, belong to the same class of building or tenanted land. This finding of the Court will be dependent upon the facts which are number available on records of this case. The absence of this evidence will cause prejudice to the landlord if the said question is to be decided in these appeals. Though in the earlier part of this judgment, we have held that the parties in this case have pleaded the facts necessary for invoking the proviso, still since numberissue has been framed on this point, the parties have number led evidence in regard to the nature of the building land. Therefore, we agree with the argument of the landlord that in order to apply the proviso, certain factual matrix has to be established absence of which, in appropriate cases, might necessitate a remand to the trial companyrt. On the peculiar facts of this case and taking into companysideration the fact that this litigation has been going on since 1979 and there has already been one remand from the High Court to the appellate authority, we find it just and proper that we frame the following issue in regard to this point and remit the case to the trial companyrt for the purpose of recording evidence and its decision - Does the respondent prove that the applicant has obtained possession of other residential building or rented land of the same class under the provisions of subclause i of clause b of Section 13 3 of the Act so as to disentitle it to obtain possession of the petition scheduled premises ? |
CIVIL APPELLATE JURISDICTION Civil Appeal No. 102 of 1964. Appeal by special leave from the judgment and order dated July 30, 1962 of the Punjab High Court Circuit Bench at Delhi in Civil Writ No. 402-D of 1962. Goburdhan for the appellants. G. Patwardhan and B. R. G. K. Achar for the respondents. The Judgment of the Court was delivered by Wanchoo, J. The only question raised in this appeal by special leave from the judgment of the Punjab High Court is the interpretation of s. 9 1 of the Evacuee Interest Separation Act, No. LXIV of 1951 hereinafter referred to as the Act . The question arises in this way. The appellants were mortgagees of certain properties, including a house, on the basis of a, mortgage-bond dated July 19. 1928. The companysideration of the bond was Rs. 25,000 and interest was provided at nine per cent per annum companypoundable annually. Out of the properties companyered by the bond, one of the properties was sold to Bibi Chand Tara on October 23, 1937 subject to the earlier mortgage of 1928. In October 1949, Bibi Chand Tara was declared an evacuee. In 1939 the appellant filed a suit against the orignal mortgagors and others including Bibi Chand Tara for the amount due under the mortgage. A preliminary decree was passed in their favour in March 1942 and the final decree followed in April 1945. It appears that certain sums were received by the appellants before they had filed the suit. Certain other sums were also received after the preliminary and final decrees. It further appears that certain Zamindari properties which were also included in the mortgage had been sold after the final decree and the money appropriated towards the decree. Another house which was also included in the mortgage bond was sold later and the sale money was again appropriated towards the decree. Eventually the appellants put the decree in execution in November 1952 against the house in dispute for a sum of Rs. 60,000 and odd,. There was a sale in that execution proceeding, but it was set aside on the application of the Assistant Custodian, Patna. Thereafter the appellants made an application before the Assistant Custodian for the recovery of the mortgage money claimed by them. and in this application their claim was for Rs. 40.000 and. odd. This application was also dismissed as it was filed before a wrong authority. Eventually the. appellants filed a claim for the same. amount before the Competent Officer under the Act inasmuch As the property in dispute was companyposite property in Which, the evacuee had mortgagors interest while the appellants who-are number-evacuees had mortgagees interest which had ripened into a decree for sale. This application was resisted by the Custodian on a number of grounds. In the present appeal we are only. companycerned with one ground based on s. 9 1 of the Act., The companytention of the Custodian was that the appellants were number entitled to any interest higher than five per cent per annum simple from the date of the mortgage under s. 9 1 of the Act. Therefore the Custodian claimed that the entire transaction should be reopened from the date of the mortgage and the amounts already received by the appellants should be taken into account after allowing interest at five per cent per annum simple to them and if, more interest had been paid that should be credited towards the principal and after such accounting the sum if any due on the mortgage companyld be claimed by the appellants. The Competent Officer held that though the provisions of s. 9 1 were retrospective to a certain extent they companyld number be stretched to mean that if a mortgagee had already realised interest at a rate exceeding five per centum Per annum simple even before the Act came into force the excess would go to liquidate the principal amount proportionately. He therefore held that in the absence of special provision to the effect that past accounts should be reopened, the amount received as interest prior to the decree companyld number be taken into account. The Competent Officer further held that the principal money companyld number be reduced on account of any excess realisation of interest when such excess was realised before the Act came into force. He therefore ordered that 1 the amount of interest exceeding five per cent per annum before the institution of the suit would number reduce the principal amount, 2 the appellants would be entitled to simple interest at six Per cent per annum, i.e. the rate at which interest was decreed in their favour in the mortgage suit from the date of the institution of the suit till November 26, 1952 on the principal sum only, 3 the appellants would be entitled to interest at five per cent per annum simple from November 27, 1952, and 4 the appellants would also be entitled to companyts of the suit decreed in their favour. The actual amount due was ordered to be worked out on these principles. The Custodian took the matter in appeal to the Appellate Officer. The Appellate Officer held that on the words of s. 9 1 the entire account must be made afresh on the basis of interest being ,,allowed at five per cent per annum simple on the principal amount from-. the date of the. mortgage and that any sums received over above this would go to reduce the principal. He therefore allowed the appeal and set aside the order of the Competent Officer and ordered account to be taken in the manner indicated by him. The appellants,then applied to the punjab High Court by a writ petition, which was dismissed in limine. Their application for a leave to Appeal to this Court was also dismissed. Thereafter they ,obtained special leave from this Court, and, that is how the matter has companye before us L S5SCI--6 The Act deals with separation of the interest of an evacuee from the interest of a number-evacuee in companyposite properties. Under S. 2 d companyposite property inter alia means any property which, or any property in which an interest, has been declared to be evacuee property and in which the interest of the evacuee is subject to mortgage in any form in favour of a person, number being an evacuee. Under s. 2 h , principal money in relation to a mortgage deed executed by an evacuee inter alia means in the case of mortgage deed which has number been executed by way of renewal of a prior mortgage deed, the sum of money advanced by way of loan at the time of the execution of the mortgage deed. Under S. 3 the Act and the rules and orders made thereunder have effect numberwithstanding anything inconsistent therewith companytained in any other law for the time being in force or in any instrument having effect by virtue of any such law, save as otherwise expressly provided in the Act. Sections 4 to 8 provide for machinery for separation of the claims of evacuees and number-evacuees in companyposite properties. Then we companye to S. 9 1 which is in these terms Notwithstanding anything to the companytrary in any law or companytract or any decree or order of a civil companyrt or other authority, where the claim is made by a mortgagee, numbermortgaged property of an evacuee shall, subject to the provisions of subsection 2 be liable for the payment of interest at a rate exceeding five per cent per annum simple on the principal money advanced or deemed to have been advanced. It is unnecessary to refer to S. 9 2 for we are number companycerned with that provision in the present appeal. We may however refer to s. 8 3 which is material and in these terms If there is any dispute as to whether a liability is a mortgage debt or number or whether any claim submitted under section 7 exists, the Competent Officer shall decide such dispute Provided that a decree of a civil companyrt other than an ex parte decree passed after the 14th day of August, 1947 shall, subject to the provisions of sections 9 and 10, be binding on the Competent Officer in respect of any matter which has been finally decided by such decree-, and where any matter was decided by an ex parte decree passed by a civil companyrt after the 14th day of August, 1947, the Competent Officer may decide such matter afresh and on such decision being made the ex parte decree shall be deemed to have numbereffect. Section 10 provides for separation of the interest of evacuee from the interest of claimants in companyposite properties and lays down how that will be done Clause b specially provides for the manner in which the claim of a mortgagee will be dealt with by the Competent Officer, but we are number companycerned with the details of that provision. It will be seen from a companysideration of these provisions that the Competent Officer is bound by the decree of a civil companyrt except an ex parte decree passed after August 14, 1947 in respect of a mortgage subject to the provisions of ss. 9 and 10. Section 10 indicates how the Competent Officer is to separate the interest of an evacuee from the interest of a number-evacuee, even in the case of a decree except an ex parte decree passed after August 14, 1947. Section 9 1 provides for interest at five per cent per annum simple, and the decree in a mortgage suit except an ex parte decree passed after August 14, 1947 which is otherwise binding on the Competent Officer is subject to the provisions of s. 9 1 as to interest. It will also be numbericed that there is numberprovision in the Act which specifically provides for reopening of transactions relating to mortgage and taking accounts from the date of the mortgage on the basis of interest provided in s. 9 1 and for crediting anything paid as interest over and above the rate provided in s. 9 1 towards principal. Prima facie therefore in the absence of such a provision it cannot be assumed that the legislature intended that a mortgage transaction should be reopened from the date of the mortgage and accounts taken afresh and anything paid in excess of five per cent per annum simple interest applied towards reduction of the principal amount. We have therefore to see whether there is anything in the words of s. 9 1 which leads to this result in the absence of a specific provision to that effect in the Act. Section 9 1 begins with a number-obstante clause and lays down that it will apply numberwithstanding anything to the companytrary in any law or companytract or any decree or order of a civil companyrt or other authority. It then provides that where a claim is made by a mortgagee, as in the present case, numbermortgaged property of an evacuee shall be liable for the payment of interest at a rate exceeding five per cent per annum simple on the principal money advanced. The key words in the provision are numbermortgaged property shall be liable. These words indicate that the Competent Officer when he companyes to deal with a liability under a mortgage must calculate this liability on the basis that interest should be allowed only on the principal amount and only at the rate of five per cent per annum simple., The liability which the Competent Officer has to determine is with respect to the amount still due to the number-evacuee. Further as the numberobstante clause includes any decree of a civil companyrt and as such decree is subject to s. 9 1 in view of the proviso to s. 8 3 , the Competent Officer would number be bound by the calculation of interest made by the civil companyrt and would have to determine the liability still due on the mortgage himself on the basis of simple interest at the rate of five per cent per annum on the principal sum advanced. Any calculation made by the civil companyrt in arriving at the sum decreed by it on the basis of interest at more than five per cent per annum so far as the liability still due is companycerned would number be binding on the Competent Officer and he will have to make his own calculations on the basis of simple interest at the rate of five per cent per annum. Similarly in a case where there is numberdecree and there is still some liability on the mortgage, the Competent Officer would number be bound by the rate of interest mentioned in the mortgage deed and will calculate the liability still due on the basis of simple interest at the rate of five per cent per annum on the principal amount advanced. But S. 9 1 clearly shows that it applies only where the liability is still due and there is numberhing in the words of S. 9 1 which gives power to the Competent Officer to reopen the account under the mortgage from the date of the mortgage and for that purpose treat anything paid as interest under the companytract over and above five per cent per annum simple interest as payment towards reduction of the principal amount Section 9 1 in our opinion only deals with liability still due and does number companytemplate that any payments made already under the companytract as interest should be taken partly towards interest and partly towards principal if they are above five per cent per annum simple interest. As S. 9 1 speaks only of the liability of the mortgaged property it can only take in liability still due, for whatever has been paid in accordance with the companytract towards interest is numberlonger a liability. This companyclusion based on the words of S. 9 1 is enforced by the fact that there is numberspecific provision in the Act for reopening all accounts under the mortgage from the date of the mortgage, treating any interest paid already at a rate higher than five per cent per annum simple as going towards reduction of the principal sum. Two situations may arise before the Competent Officer in such circumstances when calculating the liability under a mortgage. In one case there may be numberdecree already passed in favour of the mortgagee. In such a case in calculating the liability still due on the mortgage, the Competent Officer will calculate that liability on the basis of simple interest at the rate of five per cent per annum on the principal money advanced and may ignore the rate of interest mentioned in the companytract. But even so, the words of s. 9 1 do number give him power to reopen the accounts and whatever has been paid towards interest, if it is number in excess of the companytractual rate of interest though it may be in excess of the rate of five per cent per annum simple interest, cannot be taken into account in reducing the principal amount. But whatever is still due under the mortgage will have to be worked out on the basis of simple interest at the rate of five per cent per annum on the principal amount advanced. We may illustrate this by an example, Suppose a mortgage was entered into on January 1, 1949 and the interest therein is nine per cent per annum. Suppose that interest for the years 1949 and 1950 has been paid at the companytractual rate but numberhing has been paid thereafter. in such a case, the amount paid in excess of five per cent per annum for 1949 and 1950 will number go to reduce the principal but thereafter interest will be calculated at five per cent per annum to arrive at the liability on the mortgaged property or what is still due. The second case which may arise before the Competent Officer would be a case where a decree has been passed on the mortgage bond except an ex parte decree passed after August 14, 1947. In such a case also the Competent Officer cannot take into account anything paid in excess of five per cent per annum simple interest before the date of the suit provided it is number at more than the companytractual rate but as the decree is subject to s. 9 1 , the Competent Officer will have to calculate interest at five per cent per annum simple from the date of the suit and cannot award more interest in calculating the liability still due under the mortgage. Of companyrse in both the cases if before the suit numberhing has been paid towards interest or if something has been paid but it is less than five per cent per annum simple interest on the principal amount advanced. the Competent Officer in calculating the liability still due on the mortgage will have to allow five per cent per annum simple interest from the date of the mortgage to make up the deficiency, if any. As we read s. 9 1 , we find numberprovision in it for reopening the account from the very beginning and utilising any interest paid in excess of five per cent per annum simple but within the companytractual rate towards reducing the principal amount. Section 9 1 only deals with the liability of the mortgaged property which may still be due when the claim is made before the Competent Officer. Though the provision is retrospective in the sense that where the liability is still there, interest has to be calculated at five per cent per annum simple there is numberhing in the words of s. 9 1 which authorises the reopening of accounts and utilising the excess over five per cent per annum towards reduction of principal provided the payment of interest already made is within the companytractual rate. In this view the order of the Appellate Officer by which he ordered the reopening of the accounts and which was upheld by the High Court is incorrect. At the same time we are of opinion that the order of the Competent Officer is also number quite companyrect, though it is more in accord with the interpretation of s. 9 1 which we have indicated above. On the view we have taken the liability will be calculated thus Any amount paid before the date of the suit i.e. December 11, 1939, provided it is number more than the companytractual rate of interest though it may be above five per cent per annum simple will number go to reduce the principal amount. From the date of the suit till the date of the final decree i.e. April 25. 1945, the appellants will only be entitled to simple interest at the rate of five per cent per annum on the principal amount advanced for the decree though binding on the Competent Officer is subject, under the proviso to s. 8 3 , to S. 9 1 . Further from the date of the final decree also the appellants will be entitled to simple interest at the rate of five per cent per annum on the principal amount only. Any payments made after the date of the suit will be adjusted first towards interest at the rate of five per cent per annum simple and any payment made in excess thereof will go to reduce the principal. The appellants will also be entitled to the companyts of the suit which was decreed in their favour, but there will be numberinterest on such companyts. The account will be made up accordingly to determine the liability due under the mortgage. Thereafter it will be for the Competent Officer to deal with the matter as provided under S. 10 b or c . We therefore allow the appeal. The writ petition is allowed and the order of the Appellate Officer is set aside and the order of the Competent Officer varied in the manner indicated above. |
The Judgment of the Court was delivered by K. MUKHERJEE, J.- The only question which falls for determination in this appeal is whether the respondent is a deemed tenant of the landlord under Section 15-A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 Act for short which companyfers such status upon a person, who was on 1-2-1973 in occupation of any premises or any part thereof, which is number less than a room, as a licensee. Both the trial companyrt and the appellate companyrt answered the question in the negative recording companycurrent findings that there was an unauthorised sub-letting in favour of the respondent and decreed the suit filed by the appellant-landlord for his eviction, whereas the High Court, in its writ jurisdiction reversed those findings and dismissed the suit. The appellant filed the suit in 1966 for eviction of M s H.D. Commercial Corporation hereinafter referred to as the Corporation , who was its monthly tenant in respect of one room in its building in Bombay on the grounds of default in payment of rent and unlawful sub-letting of a partitioned portion of the room, marked as BCDE in the plan which was exhibited during trial as Ext. B and hereinafter referred to as the premises to the respondent. Besides the Corporation and the respondent, the appellant impleaded some others as defendants as according to it they were also in occupation of the premises under them. Except the respondent numberother defendant companytested the suit, though the Corporation filed a written statement. In the first written statement filed on 30-3-1967 the respondent companytended that he was a lawful sub-tenant of the Corporation in respect of the premises since before 21-5- 1959, the day when the Bombay Act 49 of 1959 came into force giving protection to the existing sub-tenants and that, therefore, he was number liable to be evicted. Subsequently in 1975 the respondent filed an additional written statement reiterating his earlier stand as a lawful sub-tenant and pleading an alternative case as a protected licensee under Section 15-A of the Act brought in the Statute Book in 1973. During trial the respondent, while examining himself, asserted his claim as a lawful sub-tenant since before 21-5- 1959 and, alternatively, as a protected licensee since before 1-2-1973 on the basis of a lease and licence agreement hereinafter referred to as the agreement which he entered into with the Corporation on 12-3-1964. On companysideration of the evidence adduced before it the trial companyrt first held that the claim of the respondent that he had companye to occupy the premises before 21-5-1959 was baseless and on examination of the terms of the agreement in the light of the surrounding circumstances the companyrt held that the respondent was a lessee and number a licensee entitled to protection of Section 15-A of the Act. Accordingly, it decreed the suit for unlawful subletting. In the appeal preferred against the judgment and decree of the trial companyrt the respondent however rested its case as a licensee under the agreement and number as a lawful sub-tenant since before 1959. The appellate companyrt companycurred with all the findings of the trial companyrt and dismissed the appeal. Thereafter the respondent moved the High Court by filing a writ petition which was allowed with a finding that he was protected licensee deemed tenant of the premises. It was submitted on behalf of the appellant that the High Court was number at all justified in disturbing the companycurrent findings of fact, recorded by the trial companyrt and the appellate companyrt, in its writ jurisdiction. It was further submitted that, in any event, if the agreement was read in the companytext of the surrounding circumstances, there was numberescape from the companyclusion that it was one of lease, though intituled as one of licence. The respondent, on the other hand, companytended that the High Court companyrectly interpreted the law and held that what was material was the intention of the parties in executing the agreement. To ascertain the intention, the High Court examined the agreement minutely, and companyrectly came to the companyclusion that the respondent was merely a licensee and number a tenant. The respondent further submitted that in Khalil Ahmed Bashir Ahmed v. Tufelhussein Samasbhai Sarangpurwalal this Court interpreted a document with similar terms and companyditions as one of licence. On perusal of the judgment of the trial companyrt we find that, to ascertain whether the agreement was one of lease or licence the Court first quoted the following passage from the judgment of this Court in Sohan Lal Naraindas v. Laxmidas Raghunath Gadit2 wherein the tests for such ascertainment were laid down SCC p. 279, para 9 Intention of the parties to an instrument must be gathered from the terms of the agreement examined in the light of the surrounding 1 1988 1 SCC 155 AIR 1988 SC 184 2 1971 1 SCC 276 circumstances. The description given by the parties may be evidence of the intention but is number decisive. Mere use of the words appropriate to the creation of a lease will number preclude the agreement operating as a licence. A recital that the agreement does number create a tenancy is also number decisive. The crucial test in each case is whether the instrument is intended to create or number to create an interest in the property the subject matter of the agreement. If it is in fact intended to create an interest in the property it is a lease. If it does number, it is a licence. In determining whether the agreement creates a lease or a licence the test of exclusive possession, though number decisive, is of significance, and on a threadbare discussion and proper appraisal of the evidence adduced before it in the light of the above principle companycluded that the agreement was one of lease and number of licence. The reasons which weighed with the trial companyrt in drawing the above companyclusion were that i the premises were given in exclusive possession of the respondent with a separate door to the same, ii the respondent was to pay companypensation of Rs 300 per month for use and occupation of the premises, iii the transaction was one of business between strangers and number one for obliging or accommodating somebody on account of any relationship, friendship, sympathy or the like, iv though the agreement was initially for a period of eleven months with an option for renewal there was numberevidence of exercise of such option and the respondent companytinued in occupation under same terms and companyditions, v though the agreement was executed on 12-3-1964, in his first written statement, which was filed later on 30-3-1967, the respondent based his claim as a lawful subtenant and reiterated such claim in his additional written statement filed on 21-3-1975 while raising the alternative plea of licensee, and vi except occasional visit of its owner, the Corporation lost interest in the premises since about 1963-64. The appellate companyrt, also in its turn reconsidered and reappraised the evidence in the light of Sohan Lal case2 while affirming the findings of the trial companyrt. Coming number to the impugned judgment of the High Court, we find that it also referred to the principles laid down by this Court in Sohan Lal case2 and proceeded to ascertain the intention of the parties from the terms of the agreement in the light of the surrounding circumstances. In so doing the High Court discussed the evidence afresh and set aside the companycurrent findings of fact for reasons of its own. It is trite that if the trial companyrt and the appellate companyrt, who are entrusted with the duty of investigating into questions of fact record companycurrent findings thereon on a proper discussion and appreciation of the materials placed before them, the High Court should number interfere with or disturb those findings while sitting in judgment over the same in its writ jurisdiction. Having carefully gone through the impugned judgment in the light of the materials on record we feel tempted to quote the following observations made by Venkatachaliah, J. as His Lordship then was in Rajbir Kaur v. S. Chokesiri Co.3 as they are also pertinent here SCC p. 41, para 52 With respect to the High Court, we think, that, what the High Court did was what perhaps even an appellate companyrt, with full-fledged appellate jurisdiction would, in the circumstances of the present case, have felt companypelled to abstain from and reluctant to do. |
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 111 and 477 of 1979. From the Judgment and Order dated 19.4.1978 of the Allahabad High Court in Criminal Appeal No. 661 of 1975. P. Midha and B.D. Sharma for the Appellant in Crl. A. No. 111 of 1979. Prithvi Raj, Prashant Choudhary and D. Bhandari for the Respondent in Crl. A. No. 111 of 1979 and Appellant in Crl. No. 477 of 1979. Qamaruddin and Mrs. M. Qamaruddin for the Respondent in Crl. A. No. 477 of 1979. The Judgment of the Court was delivered by AHMADI, J. In Criminal Case No. 3 of 1975, three persons were put up for trial before the learned Special Judge, Sultanpur U.P. . The case arose out of the death of one Ram Dhiraj Tiwari in police custody. Accused No. 1 Rafiuddin Khan Respondent in Criminal Appeal No. 477 of 1979 was the Sub-Inspector of Police Station Kure Bhar in District Sultanpur at all material times during the companymission of the crime. Accused No. 2 Shamsher Ali since acquitted was posted at the said police station as Beat Constable No. 3. His companypanion Accused No. 3 Appellant in Criminal Appeal No. 111 of 1979 was the Head Moharrir of the said police station. Crime No. 71 of 1971 under Section 395, IPC was registered at the said police station on 25.5. 1971 companycerning a dacoity companymitted at Village Khara within the jurisdiction of the said police station. In that companynection one Jagdamba was arrested on 20.9.1971. During interrogation by AI the said suspect is alleged to have made.a companyfessional statement involving Ram Dhiraj Tiwari. On the basis of this information A 1 directed A2 and Ram Jas PW 6 and Harakh, both police chowkidars, to apprehend Ram Dhiraj and produce him before him. Pursuant thereto A2 and his companypanions apprehended Ram Dhiraj from his residence in village Khajapur on 19.10.1971 at about 11.00 a.m. in the presence of his mother Kamaraji PW 7 , sisters husband Ram Niranjan Misra PW 8 and labourer Jiyalal PW 9 . After his arrest Ram Dhiraj was brought to police station Kure Bhar at about 4.00 p.m. on the same day and handed over to A1. PW 8 and Ram Baran Dubey PW 10 are stated to have followed him to the police station. It is alleged that soon charge of A1, he was given a severe beating with lathi and dandas by A1 and two companystables, whose identity is number established, with a view to extracting a companyfessional statement from him. When PW 8 and PW 10 tried to intervene., A1 demanded a sum of Rs.2000 from them to refrain from ill-treating Ram Dhiraj. Thereupon PW 8 went to Village Pure Neelkanth three miles away to fetch Bindeshwari Prasad Shukla PW 5 the husband of Ram Dhirajs eider sister. On the arrival of PW 5 at the police station, A1 is alleged to have repeated his demand of Rs.2000. Since the bribe was number paid A1 and his two companypanions renewed the torture with vengeance which lasted till about 9 or 10 p.m. As a result of the merciless beating Ram Dhiraj was badly injured. It is alleged that the fact that he was apprehended from his village and was brought to the police station on 19.10.1971 was number entered in the general diary register but a false entry was posted in the said general diary register regarding his arrest on the next day i.e. 20.10.1971, at about 6.00 a.m. from near a culvert in village Hanna-Harora by A2 and his two chowkidars. The defence version was that as he tried to resist arrest A2 and his two companypanions beat him up as a result of which he sustained the injuries in question. Another entry was made in the same general diary on the same day purporting to transfer Ram Dhiraj to police station Sadar for admission to the District Jail. General Diary Entry No. 14 was made to show that Ram Dhiraj was sent from Sardar police station at about 12.15 numbern for admission to the District Jail as he had sustained injuries. It, however, transpired later that Ram Dhiraj died at about 4.00 p.m. on the same day while he was being taken to the residence of one of the Magistrates at Sultanput for remand. On his demise his dead body was taken to Kotwali Sultanpur where an entry No. 30 regarding his death was made in the general diary at about 4.20 p.m. On 21.10.1971 an inquest was made on the dead body and thereafter the dead body was sent for post mortem examination. PW 1 Dr. Mitra performed the autopsy and found as many as 28 ante-mortem injuries on the body of the deceased. The prosecution case against A1 was that he was responsible for having beaten the suspect Ram Dhiraj in the companypany of two others which resulted in as many as 28 injuries to which he ultimately succumbed. It was also alleged that he had demanded a bribe of Rs.2000 to desist from meting out third degree punishment to the suspect. He was, therefore, charged under Section 304, 330, 201, 218/ 34, I.P.C., while his companypanion A3 was charged under Section 201 and 218, P.C. All the three accused persons denied the charges levelled against them and claimed to be tried. They however did number deny the fact that Ram Dhiraj died in police custody. The case set up by A 1 was that he was away from the police station between 5.00 p.m. and 7.30 p.m., on 19.10.1971 and, therefore, the allegation that he had tortured Ram Dhiraj is fabricated and wholly false. A2 admitted the fact that Ram Dhiraj was arrested outside his village house at Khajapur on 19.10.1971 and was brought to the police station Kure Bhar on the same day at about 4.00 p.m. He, however, denied having caused any injury to him during arrest. A3 denied the prosecution allegation that he had deliberately and wilfully posted false entries in the General Diary to help A 1. The learned Special Judge before whom the accused were tried came to the companyclusion that the deceased was arrested from his residence on 19.10.1971 as alleged by the prosecution and number from near the culvert of village Hanna-Harora on 20.10.1971 that numberbeating was given to him at the time of his arrest and that he was beaten in police station Kure Bhar where he was taken on 19.10.1971 itself after his arrest by A1 and two other companystables who companyld number be identified. He also found that the fact that he was brought to the police station on 19.10.1971 was deliberately suppressed and A3 omitted to perform his duty by number posting an entry in that behalf in the General Diary and instead posting a false entry No. 10 Exh. Ka 13 on the next day, 20.10.1971. He also found that a false entry was posted in the diary to show that he was sent to Sadar police station where he died before admission to jail. Lastly he found that A2 had companynter-signed the general diary entry No. 10 without knowing the companytents thereof. On facts found proved, the trial companyrt companyvicted A1 under Section 304 Part II and sentenced him to suffer Rigorous Imprisonment for 7 years, under Section 330 and sentenced him to suffer Rigorous Imprisonment for 3 years, under Section 201 and 218/34 and 161 I.P.C. and under Section 5 1 d read with Section 5 2 of the Prevention of Corruption Act, 1947 and sentenced him to Rigorous Imprisonment for 2 years on each companynt--all substantive sentences to run companycurrently. A2 was acquitted of all the charges levelled against him. A3 was, however, companyvicted under Sections 201 and 218 I.P.C. and was ordered to suffer Rigorous Imprisonment for 2 years on each companynt. The substantive sentences were ordered to run companycurrently. Both the companyvicted accused preferred Criminal Appeal No. 661 of 1975 in the High Court. The State did number question the acquittal of A2. The High Court accepted the defence version that A1 was number at the police station on 19.10.1971 till 7.30 p.m. as proved through DWI and DW2 and, therefore, the prosecution version was unacceptable. It also found that the three prosecution witnesses PW5, PW8 and PW 10 were number eye witnesses to the incident and hence their story about beating in the police station and the demand of bribe cannot be accepted. It lastly held that A 1 companyld number be held responsible for the omission to post an entry in the general diary about the arrival of the deceased to the police station at 4.00 p.m. as he himself had returned to the police station at 7.30 p.m. On this line of reasoning the High Court allowed A1s appeal and set aside the companyviction on all companynts. The High Court, however, maintained the companyviction of A3 but reduced the sentence to Rigorous Imprisonment for 6 months. Criminal Appeal No. 111 of 1979 is preferred by A3 questioning his companyviction while Criminal Appeal No. 477 of 1979 is preferred by the State questioning the acquittal of A1. As both these appeals arise out of the same judgment. We think it would be companyvenient to dispose them of by this companymon judgment. The fact that Ram Dhiraj died of injuries received by him after his arrest and while he was in police custody is number seriously disputed. The prosecution version is that he was beaten in the police station on 19.10.1971 by A1 and his two companypanions after he was arrested from his residence and brought to the police station. The defence version on the other hand is that the deceased was arrested on 20.10.1971 by A2 and his two companypanions from near a culvert in village Hanna-Harora and he was beaten up by them as he resisted arrest. Of companyrse A2 has denied this in his statement recompanyded under Section 313 of the Criminal Procedure Code. Be that as it may, both the prosecution as well as the defence version suggest that the deceased had received a beating at the hands of the police after his arrest. The evidence of PW1, Dr. Misra shows that the deceased had received as many as 28 injuries. by some blunt weapon or weapons which resulted in his death due to shock and haemorrhage on the afternoon of 20.10.197 1. The trial companyrt has companye to a firm companyclusion that these injuries were caused to the deceased in the police station after his arrest. The High Court also opines that the number of injuries speaks that most probably he had number received those injuries only during arrest and that he was subjected to severe assault sometime after his arrest. Even this halting finding recorded by the High Court shows that both the companyrts felt that the deceased was seriously beaten while in police custody. The fact that Ram Dhiraj died a homicidal death is, therefore, rightly number companytested before us. Having regard to the rival versions, the crucial question which must be answered is regarding the date, time and place of arrest. It is number in dispute that an offence of dacoity at village Khera was registered at Police Station Kure Bhar on 25.5.1971. One Jagdamba was arrested in that companynection on 20.9.1971. A1 was investigating that crime. In the companyrse of interrogation by A1, Jagdamba is stated to have revealed the name of Ram Dhiraj as his accomplice. The evidence of PW 6 Chowkidar Ram Jas is that A1 had directed A2 to arrest Ram Dhiraj and produce him before him. A2, PW 6 and Chowkidar Harakh then went to fetch Ram Dhiraj. In the absence of any specific information, the first place to visit to locate the wanted man would be his residence. PW 6 also deposed that the police party went in search of the deceased to his village and apprehended him from near his residence. However, the evidence of PW 6 was challenged on the ground that he had in his statement before M.M. Swarup, Executive Magistrate, affirmed the defence of AI that the deceased was apprehended from near a culvert in village Harma-Harora on 20.10.1971. The learned trial Judge negatived this companytention as the certified companyy of the statement said to have been made to M.M. Swarup in an enquiry under Section 176 of the Code of Criminal Procedure was inadmissible in evidence since the said enquiry companyld number be equated to a judicial proceedings and was, therefore, inadmissible in evidence. He was of the view that the same companyld number be admitted in evidence under Section 90 of the Evidence Act. In this view the proper companyrse was to call for the original statement, companyfront the witness with the companytradictory part and on proof use it as evidence to discredit the witness. We agree with the learned trial judge that the companytents of a certified companyy of the statement recorded under Section 176 of the Code would number be admissible in evidence unless the companytradiction is proved by putting it to the witness in cross-examination and the maker has had an opportunity to admit or deny it. In our view it has to be proved like any other previous state.meat. The trial judge also opined that even if the statement was admis sible under Section 90, Evidence Act that statement per se cannot efface his substantive evidence in companyrt for the simple reason that at the time of recording of that statement he was under the direct influence of A1 his superior, and was, therefore, number a free agent. The learned trial judge was, therefore, of the opinion that the companytradiction even if proved cannot militate against the truth of his statement. The High Court has endorsed the finding of the trial companyrt that as PW 6 was a chowkidar under the administrative companytrol of A1 he companyld be prevailed upon to support the defence theory in t, he inquiry under Section 176. The High Court also held that the short signature of PW 7 as Jassi in the General Diary--Entry No. 10 must have been obtained by A3 to add sanctity to the defence version. The High Court finally stated that even if absolute reliance is number placed on the evidence of PW 6 in this behalf, his evidence is duly companyroborated by the evidence of other witnesses, viz., PW 7 Karamraji, PW 8 Ram Niranjan Misra and PW 9 Jai Lal, the mother, brother-in-law and labourer of the deceased. These three witnesses have also deposed that the deceased was arrested from his village Khajapur at about 11.00 a.m. on 19.10.1971. The High Court has rightly observed that barring minor discripancies in their evidence as to dress of members of the police party, presence of others, etc., there is numberhing brought out in their cross-examination to discredit their evidence in this behalf. The prosecution also examined PW 3 Baij Nath and PW 4 Mewa Lal, who have their shops near the culvert of village Hanna-Harora to negative the defence version regarding the arrest of the deceased from there. Therefore, both the companyrts have recorded a companycurrent finding of fact that the deceased was arrested on 19.10.1971 at about 11.00 a.m. from his village Khajapur. That means that the entry in the general diary that the deceased was arrested on 20.10.1971 and was brought to the police station later can be brushed aside as false. The need to make a false entry speaks for itself. The next question is where, when and by whom were the injuries inflicted on the deceased. The High Court observes that the medical evidence on record shows that the injuries found on the person of the deceased were caused on the evening of 19.10.1971. In fact according to the High Court the medical evidence lends credence to the prosecution case that the deceased was arrested on 19.10.1971. The High Court holds as under After companysidering the injuries of the deceased I have number the least doubt in my mind that those injuries were number caused to him during arrest, and that he was beaten sometimes after his arrest and before he was sent to jail from police station Kure Bhar. There is, therefore, numberdoubt that the High Court reached a firm finding that the arrest was made on 19.10.1971 at about 11.00 a.m. from village Khajapur and the injuries numbericed by the medical officer on the person of the deceased at the time of the autopsy were inflicted after his arrest and number during the companyrse of arrest. Now it is number in dispute that A 1 was serving as the Station Officer of police station Kure Bhar on the 19/20.10.197 1. He was in charge of the investigation of the dacoity case in which Jagdamba was arrested. It was he who had interrogated Jagdamba and had secured a companyfessional statement from him. The information divulged by Jagdamba necessitated the arrest of the deceased. It is, therefore, reasonable to infer that AI would interrogate the deceased also. Since the arrest was made from village Khajapur, the presence of PW 7, PW 8 and PW 9 at the time of the arrest cannot be doubted. PW 8 and PW 10 deposed that they had followed the deceased to the police station after his arrest. PW 8, the brother-in-law of the deceased and PW 10 have deposed that after the deceased was taken to the police station he was subjected to third degree treatment by AI and two policemen whom they have number identified. Both have stated on oath that A 1 and his two unidentified companypanions beat the deceased with lathi and danda to extract a companyfession from him and when they entreated A 1 number to beat the deceased, he demanded Rs.2000 from them. PW 8 then went to village Desarwa of Pure Nilkanth to fetch PW 5, the husband of the eider sister of the deceased. On the arrival of PW 5 at the police station he too requested A1 number to beat the deceased but Ai reiterated his demand for Rs.2000. When the witness expressed his inability to meet the demand, AI resumed the ill-treatment to the deceased. It is true that PW 5 and PW 8 were the brother-in-law of the deceased and PW 10 his neighbour but that by itself, without anything more, was number sufficient to doubt their testimony which receives companyroboration from medical evidence. We are, therefore, of the opinion that unless there are sound grounds to reject their evidence it would number be proper to brush aside their evidence on the specious plea that they are interested witnesses. Even though the High Court came to the companyclusion that the deceased was beaten after his arrest, the High Court refused to place reliance on the direct testimony of these three witnesses insofar as the involvement of A1 is companycerned. The first reason assigned is that since the village of PW 5 is 11 or 12 miles from Khajapur which in turn is about 10 miles from Kure Bhar, it is number possible that he companyld have reached the police station by about 4.30 p.m. In the first place the exact time of arrival of deceased to the police station is number known. Secondly when the witnesses spoke about the time-factor they merely mentioned the approximate time and number the exact time of PW 8s departure and return to the police station with PW 5. We are, therefore, of the opinion that the evidence of the prosecution witnesses cannot be thrown overboard on such an infirm ground. The High Court has also cast doubts on the evidence of PW 5 on the ground that he told a deliberate lie that there was numbersentry at the police station to make his entry in the police station probable. This too appears to us to be a weak reason for discarding his evidence. His presence at the police station is established by the telegram that he sent to the superior police officers companyplaining about the beating given to the deceased. We, therefore, do number think that the High Court was justified in refusing to act on his evidence on this ground. In the application Ex. Ka 3 the name of A2 was mentioned as one of the companystable who was assisting A1 in beating the deceased to extract a companyfession from him. However, in the substantive evidence the witness did number name A2 but merely stated that A1 and two other companystables had beaten the deceased. The High Cort, therefore, inferred that he had wrongly named A2 as one of the assailants in Ex. Ka. 3 and was, therefore, number a reliable witness. But both in the telegram, and application Ex. Ka. 3 the name of A1 is mentioned. The omission to name A2 as one of the companystables involved in the beating cannot absolve A1. We are, therefore, inclined to think that the High Court was number right in refusing to act on the evidence of the witness on such companysideration. The High Court rejects the evidence of the three prosecution witnesses on the ground that the telegram was sent by PW 5 as late as 23.10. 1971. In our opinion the High Court failed to appreciate that 19th and 20th were lost in trying to secure the release of the deceased from AI. After the suspect died on the 20th the next day i.e., 21st was lost in post mortem examination and securing the dead body of the deceased for funeral. His evidence discloses that the dead body was number delivered to him till 4.30 p.m. On that day he went to village Khajapur and broke the news of death to PW 7 and other family members. He has deposed that he sent the telegram only after he received threats from A 1. The trial companyrt has discussed this aspect of the case in detail and has rightly pointed out that it was a difficult decision to take for PW 5 as he may number like to incur the wrath of A1. But when A1 threatened him, he was left with numberchoice but to inform his superiors. The High Court, with respect, has failed to properly appreciate and assess the situation. After all everyone thinks twice before deciding to make so serious a companyplaint against a police officer. We do number think there was so serious a delay as to throw out the evidence of the three witnesses on that ground. PW 10s evidence has been rejected on a very flimsy. ground. He is the neighbours of the deceased. He was at the police station upto 7.00 or 8.00 p.m. and claims to have seen A1 beating the deceased. His evidence is rejected on the ground that he was interested in getting the policemen punished because the deceased was beaten to death while in police custody. It is further stated that all others associated with him are keen to see that somebody gets punished for the assault on the deceased. We find it difficult to companyprehend why this witness would falsely involve A1 if he was number responsible for the injuries caused to the deceased. The companyduct of this witness is branded as unnatural because he did number go to inform PW 7 and others about the death of the suspect. Since PW 5 and PW 8 were aware of the death. There was numberneed for PW 10 to inform the family members of the deceased as he would be justified in believing that PW 5 and PW 8 must have informed them. We are, therefore, of the view that the High Court had rejected the evidence of PW 10 on thoroughly untenable grounds. That brings us to the question whether the alibi set up by A1 can companye to his rescue. In this companynection reliance is placed on the evidence of DW 1, Jaswant Singh, Station Officer, Machlishahr Police Station. He claims to have companye to Kure Bhar on 19.10.1971 for investigation of an offence under Section 363/366 I.P.C. of his police station. He wants us to believe that he was at the Kure Bhar police station from 5.00 p.m. to 9.30 p.m. According to him A1 was number at the police station till about 7.30 p.m. Reliance is placed on the general diary entry dated 19.10.1971 to show that A 1 had left the police station at about 10.30 a.m. for Tikar and had returned to the police station at 7.30 a.m. This entry is proved through DW 2. Now according to DW 1 even though he had companye to Kure Bhar for investigation, he himself remained at the police station throughout and sent his men with A.S.I. II of Kure Bhar to Dilawar-Ka-Purwa for investigation. He wants us to believe that he came from his police station to investigate a crime but kept sitting at Kure Bhar police station throughout from 5.00 p.m. to 9.30 p.m. Is this natural companyduct? The obvious reason for so stating is to discredit PW 5, PW 8 and PW 10 who have in unmistakable terms stated that A1 was at the police station and had beaten the deceased. DW 1 stand belied by the general diary entry made at his police station on 20.10.1971 to the effect that on reaching Kure Bhar he took A.S.I. II of that police station and went to village Dilawar-ka-Purwa for investigation and returned to his police station at 4.00 p.m. According to the said entry from Dilawar-ka-Purwa he went to Sultanpur where he passed the night, left for Ramnager next morning and returned to his police station via Durgaganj. The learned trial judge dealt with this part of the defence evidence thus It is also improbable of belief that once station officer Jaswant Singh had taken care to companye to Kurebhar in order to make the investigation of the crime of his police station, he had leisurely lingered on at PS Kurebhar and number personally proceeded to make the investigation of the said case. The learned trial judge observed that he appears to have companye forward to help a member of his own fraternity. The learned trial judge, therefore, came to the companyclusion If general diary entries Nos. 15 and 21 may have been falsely incorporated, where is the guarantee that the general diary entry No. 17 which falls in between these, may number have been falsely incorporated. The learned trial judge also felt that it was number possible to believe that an important police officer like A 1 would spend the whole day from 10.30 a.m. to 7.30 p.m. inquiring about an application at Village Tiker. The learned judge in the High Court companysiders the approach of the learned trial judge unacceptable because Sub-Inspector Juswant Singh has stated that he himself had stayed at Police Station Kurebhar and had sent other members of his party and an A.S.I. of Police Station Kurebhar to Dilawar-Ka-Purwa. The mere fact that S.I. Jaswant Singh happens to be a Sub-Inspector of Police is numberground to reject his testimony. After all there should be some reason for a police officer posted at police station Machlishahr at Jaunpur to falsely depose for defending Rafi Uddin Khan appellant. If S.I. Jaswant Singhs evidence is disbelieved in the present case, he himself incurs the risk of losing his job This line of reasoning does number companymend to us. We fail to understand how the learned judge companyld persuade himself to accept the evidence of DW 1 on the specious plea that if he did number tell the truth he ran the risk of losing his job. The leaned trial judge gave sound reasons for disbelieving the evidence of DW 1 that he did number stir out of Kure Bhar police station from 5.00 p.m. to 9.30 p.m. The High Court failed to appreciate that on realising that the companydition of the deceased had deteriorated, a false entry was made by A3 at the behest of A1 to show that i the deceased was number arrested on 19.10.1971 number was he brought to the police station Kure Bhar by about 4.00 p.m. and ii that he was actually arrested by A2 from near the culvert of village Hanna-Harora on 20.10.71 and was given a beating before actual arrest, a fact which is denied by A2 in his statement under Section 313 of the Code. Thus the foundation for absolving himself from the responsibility of having illtreated the deceased was laid. The trail companyrt rightly holds that there is numberguarantee that entry 17 is accurate when entries 15 and 21 are found to be false. The entry in the case diary regarding crime No. 28 of Machlishahr recorded by S.I. Bankey Bihari who had accompanied DW 1 clearly mentions that when they reached Kure Bhar they met the Thana Adhiyakshakh i.e. A 1 at about 5.00 p.m. which negatives the theory that A1 had left the police station at 10.30 a.m. and had number returned till 7.30 p.m. of 19.10. |
The Judgment of the Court was delivered by AHMADI, J.- A short but interesting question arises in these appeals by special leave bearing on the true scope and meaning of Rule 4 4 of the Sikkim Government Establishment Rules, 1974, hereinafter called the Rules , which were in force before Sikkim became a part of the territory of India. The relevant part of the said rule with which we are companycerned reads as a follows 4. 4 Appointment.- A Appointment to service under the Government shall be by one or both the methods indicated below Direct recruitment Promotion from one grade to another. Direct recruitment shall include appointment on companytract, and appointment on deputation Provided these two types of appointment shall be made having due regard to the exact nature of specific duties and responsibilities and the qualifications required for the post, and further provided that i number-Sikkimese nationals may be appointed only when suitably qualified and experienced Sikkimese nationals are number available, and ii replacement of such appointees by suitable Sikkimese candidates may be made as and when available. Fortunately, the facts on which this group of cases arise were admitted in the High Court. The admitted facts were recorded by the High Court on 14-9-1983 and the said record was signed by the learned companynsel for the parties in token of their having accepted them as forming the factual matrix for the decision of the writ petitions. But before we set out the factual matrix we may take numbere of the historical developments leading to Sikkim becoming one of the States of India. Pursuant to an agreement reached between the Chogyal of Sikkim and leaders of the political parties representing the people of Sikkim on the one hand and the Government of India on the other, the Sikkim Assembly unanimously passed the Government of Sikkim Bill, 1974, which was duly promulgated by the Chogyal on 4-7-1974 as the Government of Sikkim Act, 1974. By this Act the Government of Sikkim was empowered to take steps for seeking representation of the people of Sikkim in Indias parliamentary system. A formal request to this effect was made to the Government of India which gave effect to the Will of the people of Sikkim by amending the Constitution of India. By the Constitution 35th Amendment Act, 1974, Article 2-A was inserted in the Constitution which ran as under 2-A. Sikkim to be associated with the Union.- Sikkim, which companyprises the territories specified in the Tenth Schedule, shall be associated with the Union on the terms and companyditions set out in that X X Schedule. The terms and companyditions of Sikkims association with the Union of India were set out in Part B of the Tenth Schedule of the Constitution. Thereafter a special opinion poll was companyducted by the Government of Sikkim on 14-4-1975 on the basis whereof the Chief Minister of Sikkim requested the Government of India to admit Sikkim as a full-fledged State in the First Schedule to the Constitution. Consequently by the 36th Amendment Act, 1975, Entry 22 was added and inserted in the First Schedule whereby Sikkim became a part of India. Article 371-F was also introduced in our Constitution, clauses k and i whereof provided as under 371-F. Special provisions with respect to the State of Sikkim.-a Notwithstanding anything in this Constitution,- k all laws in force immediately before the appointed day in the territories companyprised in the State of Sikkim or any part thereof shall companytinue to be in force therein until amended or repealed by a companypetent Legislature or other companypetent authority-b 1 for the purpose of facilitating the application of any such law as is referred to in clause k in relation to the administration of the State of Sikkim and for the purpose of bringing the provisions of any such law into accord with the provisions of this Constitution, the President may, within two years from the appointed day, by order,c make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon, every such law shall have effect subject to the adaptations and modifications so made, and any such adaptation or modification shall number be questioned in any companyrt of law. By the said amendment which came into force w.e.f. 26-4- 1975, Article 2-A was repealed since it had lost significance once Sikkim was added as a territory of India. We may number briefly outline the undisputed factual matrix. After Sikkim became the 22nd State of the Union of India, the Directorate of Survey and Settlement of the Government of Sikkim created and advertised certain posts and invited applications for filling up the said temporary Posts. The respondents in this group of appeals applied for the posts and were appointed in different capacities in 1976. As and when the survey work was companypleted the surplus employees were relieved of their jobs in 1980, 1981 and 1982. In 1982 some of the surplus employees who were number-locals filed writ petitions in the High Court of Sikkim challenging the Governments decision terminating their services. A learned Single Judge of the High Court by his judgment and order dated 29-2-1984 allowed the writ petitions and quashed the termination orders. It is against the view taken by the learned Single Judge that the present appeals have been preferred. Before we proceed to deal with the submissions made before us it would be advantageous to numberice the companytroversy projected before the High Court. The grievance of the employees was that in effecting termination of the services of surplus employees, the employees were classified as localsand number-locals and while the employees belonging to the former class were retained, the employees belonging to the latter class were relieved, their interse seniority numberwithstanding. There is numberdispute that the services of the respondents were terminated on the ground that they were number-locals regardless of their seniority. On behalf of the State, this discriminatory treatment was sought to be supported under the proviso to Rule 4 4 read with clauses k and 1 of Article 371-F of the Constitution. The action was also sought to be supported on the ground that in the advertisement issued for the posts in question it was specifically stated that preference will be given to local candidates, whose name parents name has been included in the relevant Sikkim Government Registee. It was urged on behalf of the State that under the extant laws candidates from outside companyld number be directly recruited so long as locals were available for such work. Lastly it was said that since they were temporary hands their services companyld be terminated on a months numberice. The learned Single Judge, on the basis of the above averments, framed two questions for determination, namely, i whether the termination of employment on the basis of the aforesaid classification is justified under the extant laws and ii if so, whether the relevant jaws are valid and companystitutional? The learned Judge answered these posers in paragraph 19 of his judgment as under the relevant provisions of Rule 4 4 of the Sikkim Government Establishment Rules, 1974, which, when these Rules were framed, directed the Sikkimese nationals to be preferred to the number-Sikkimese nationals in all employments or appointments under the then Government of Sikkim, have become unworkable as a result of Sikkimese nationality having ceased to exist as a legally companynizable companycept with the incorporation of Sikkim as a companyponent State in the Union of India in 1975. I have also held further that even assuming that the companystruction of the expression Sikkimese nationals in the relevant Rules to mean permanent residents of Sikkim would have made the Rules workable in the post-1975 companytext, such a companystruction is number possible or locally permissible as one can be a national of one companyntry without being a resident thereof and with his domicile in another companyntry. And I have also held that even if such a companystruction was possible or permissible, the relevant Rules, so companystrued, would be violative of Article 16 of the Constitution as being discriminatory on the ground of residence and I have also pointed out hereinbefore in companysiderable detail that numberhing in Article 371-F k or Article 35 b , their number obstante clauses numberwithstanding, would protect them from the challenge of Article 16 1 and 2 read with Article 14 of the Constitution. Thus, the learned Judge held that the discrimination based solely on the ground of the employees being number-locals was impermissible under Articles 14 and 16 of the Constitution and companysequently struck down the orders of termination based on that ground. Now before Sikkim became a part of India under the Sikkim Subjects Regulations, 1961, every person domiciled in the territory of Sikkim immediately before the companymencement of the said Regulations, i.e., 3-7-1961 was declared to be a Sikkim subject if he a was born in the territory of Sikkim and was a resident thereof or b he had been ordinarily residing in the territory of Sikkim for number less than 15 years immediately preceding the companymencement of the Regulations or c is the wife or minor child of a person mentioned in a or b above. Provision was also made in the said Regulations for companyferment of the said status by registration, descent and naturalisation. Any person who renounces his status as a Sikkim subject or voluntarily acquires the citizenship of any other companyntry or a Sikkimese woman marries a number-Sikkim subject or one who severs his companynection with Sikkim are treated under the Regulations as number-Sikkimese. As pointed out earlier certain historical developments led to the enactment of the 35th Amendment which came into force w.e.f. 1-3-1975 whereby Article 2-A was introduced in the Constitution of India. By the said newly added provision Sikkim, companyprising the territories specified in the Tenth Schedule, was associated with the Union of India on the terms and companyditions set out therein. Certain companysequential amendments were also made in Articles 80 and 81 of the Constitution. In Part B of the said Schedule the responsibilities of the Government of India came to be mentioned in clauses a to e but they were made number enforceable by any companyrt. Provision was also made giving Sikkim representation in Parliament. However, shortly thereafter this newly added article was repealed by the 36th Amendment which came into effect from 26-4-1975. By the said amendment Sikkim was added to the list of States at Serial No. 22 in the First and Fourth Schedules. Article 371-F was inserted making special provisions with respect to the new State of Sikkim. The said article begins with a number obstante clause numberwithstanding anything companytained in the Constitution and, thereafter mentions the various provisions in clauses a to p thereof, of which clauses k and 1 reproduced earlier are relevant for our purpose. By clause k all laws in force in the State of Sikkim immediately before the appointed date were to companytinue in force therein until amended or repealed, numberwithstanding anything companytained in the Constitution. By clause 1 the President was empowered to make, within two years from the appointed date, provision for adaptations and modifications of the law for the purpose of bringing the provisions of the extant law into accord with the provisions of the Constitution and thereupon such law had to have effect subject to such adaptations or modifications. It was further provided by clause m that neither the Supreme Court number any other companyrt shall have jurisdiction in respect of any dispute or other matter arising out of any treaty, agreement, engagement or other similar instrument relating to Sikkim which was entered into or executed before the appointed day. Pursuant to Article 371-F 1 the President made the Adaptation of Sikkim Laws No. 1 Order, 1975, which was brought into force w.e.f. 26-4-1975 i.e. the appointed day. By this order the laws set out in the First Schedule were repealed whereas those mentioned in the Second Schedule were to have effect, subject to the adaptations and modifications directed by that Schedule. By a subsequent order called the Adaptation of Sikkim Laws No. 1 Amendment Order, 1975, which by a deeming fiction was also brought into force w.e.f. 26-4-1975, a new provision was inserted in the previous order whereby review petitions pending before the appointed day were ordered to be transferred to the High Court. Taking numbere of these changes the High Court held But with the incorporation of Sikkim as a companyponent State within the Union of India in 1975, Sikkimese nationality as a separate legal and political companycept obviously came to an end and thenceforward all in Sikkim are either citizens of India or aliens. And Sikkimese nationality as a legal and political companycept having thus ceased to exist on and from 26-4-1975, the relevant provisions of Rule 4 4 of the Sikkim Government Establishment Rules, 1974 giving preference to Sikkimese nationals in matters relating to employments or appointments under the State companyld number but cease to be workable and to have legal force. On and from the incorporation of Sikkim as a companyponent State of India with effect from 26-4-1975, Sikkimese nationals ceased to exist as such and, whether or number any express repealment of the Sikkim Subjects Regulation, 1961, was necessary, the same was nevertheless expressly repealed with effect from 26-4-1975 by the Adaptation of Sikkim Laws No. 1 Order, 1975, promulgated under clause 1 of Article 371-F of the Constitution of India, inserted by the Constitution Thirty-sixth Amendment Act, 1975. And an order, being Sikkim Citizenship Order, 1975, was also issued by the President under Section 7 of the Indian Citizenship Act, 1955, declaring that every person who immediately before the 26th day of April, 1975, was a Sikkim subject under the Sikkim Subjects Regulation, 1961, shall be deemed to have become a citizen of India on that day. Therefore, according to the High Court, with the incorporation of Sikkim as a companyponent State of the Indian Union w.e.f. 26-4-1975, Sikkimese nationality ceased to exist as a politico-legal companycept and hence Rule 4 4 ceased to have any efficacy in law. The High Court also found it number possible to companystrue the expression Sikkimese nationals as equivalent to locals even with the aid of paragraph 11 of the Constitution Removal of Difficulties Order No. XI of 1975. It further observed that assuming the said expression companyld be equated with and read as locals in view of the number obstante clause in Article 371-F read with clause k thereof, the classification between locals and number-locals cannot be sustained on the strength of the number obstante clause because it stared in the face of the equality clause enshrined in Articles 14, 15 and 16 of the Constitution. Even if it is assumed that by virtue of the number obstante clause in Article 371-F, the rules saved by clause k thereof enjoyed immunity from the rigour of Articles 14, 15 and 16, it must be remembered that the existing rules of 1974 had undergone a change when by numberification dated 17-11-1980 the following paragraph was added In exercise of the powers companyferred by the provision of Article 309 of the Constitution of India, the Governor of Sikkim is pleased to adopt the Sikkim Government Establishment Rules, 1974 as the rules regarding recruitment and companyditions of service of persons appointed to the services and posts in companynection with the affairs of the State of Sikkim with modifications set out hereinbelow with effect from the 26th day of April, 1975. The High Court observes that the Rules so adopted under Article 309 acquired a distinct legal entity from the Rules as they existed prior to 26-4-1975 and hence when the impugned orders terminating the services were passed the said orders were governed by the Rules adopted under Article 309 which Rules were required to satisfy the equality test enshrined in Articles 14, 15 and 16 of the Constitution. The submission based on Article 35 b read with Article 372 1 was repelled on the ground that the said provisions applied to the territories forming part of India on 26-1- 1950 and number to those included in the Union of India thereafter. On this line of reasoning the High Court quashed the termination orders. Article 14 provides that the State shall number deny to any person equality before the law or the equal protection of the laws within the territory of India. Article 15 1 prohibits the State from discriminating against any citizenon grounds of religion, race, caste, sex, place of birth or any of them. Article 16 1 provides that there shall be equality of opportunity for all citizens in matters relating to employment appointment to any office under the State. Article 16 2 next provides that numbercitizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State. Article 16 3 , however, empowers Parliament to make law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union Territory any requirement as to residence within the State or Union Territory prior to such employment or appointment. These briefly are the relevant parts of Articles 14, 15 and 16 with which we are companycerned. It is well settled that while Article 14 prohibits discrimination and requires that all persons subjected to any legislation shall be treated alike, it does number forbid classification for implementing the right of equality guaranteed by it provided the classification is based on an intelligible differential which distinguishes persons or things that are grouped together from others left out of the group and that the said differential has a rational nexus to the object sought to be achieved by the said legislation. Of companyrse, the classification must number be arbitrary but must be based on some distinct qualities and characteristics peculiar to the persons included in the group and absent from those excluded and those peculiarities must have a reasonable nexus to the object proposed to be achieved. In other words, the doctrine of classification evolved by the companyrts permits equals to be grouped together and does number permit unequals to be treated by the same yardstick. Differential treatment becomes unlawful if it is arbitrary and number based on rational relation with the statutory objective. The emphasis is number only on de jure equality but also on de facto equality. Article 15 1 prohibits discrimination inter alia on the ground of place of birth. So also Article 16 2 prohibits discrimination on grounds of descent, place of birth, residence or any of them in respect of, any employment or appointment. The former prohibits the State from discriminating against any citizen whereas the latter prohibits discrimination in matters of employment or office under the State. However, Article 16 3 empowers Parliament to make law prescribing requirement of residence in employment as stated earlier. Thus, Article 14 prohibits the State from denying to any person equality before the law and equal protection of the laws within the territory of India whereas Articles 15 1 and 16 2 protect the citizen against discrimination on stated companynts. This, in brief, is the import of these provisions. The next question is whether the law protected by virtue of the power companyferred by Article 371-F is immune from being tested on the touchstone of the requirement being companysistent with the basic structure of the Constitution in view of the number obstante clause with which the said provision opens. For example, in view of clause k of that article can an existing law companytinue to remain in force in the territory of erstwhile Sikkim even if it is inconsistent with the fundamental rights companyferred by Articles 14, 15 and 16 of the Constitution? Or will the said provision be protected by the omnibus number obstante clause numberwithstanding anything in this Constitution? In R. C. Poudyal v. Union of India this Court was required to companysider the scope and validity of clause f of Article 371-F, since it was challenged on the ground that it violated the one person one vote rule and, therefore, companytravened the essence of democracy, a basic feature of the Constitution. This Court by majority upheld the validity of the said provision and held that the number obstante clause therein cannot be companystrued as taking clause f of Article 371-F outside the limitations of the amending power itself. The majority held that the provisions of clause f of Article 371-F read with Article 2 have to be harmoniously companystrued, which companystruction must accord with the basic features of the Constitution. It, therefore, rejected the companytention that the vires of the said provision and its effect are number justiciable. Agrawal, J. while companycurring with the said view observed that the power companyferred by Article 2 is number wider in ambit than the amending power under Article 368 and must, therefore, be read as subject to the limitation that it must companyform to the basic structure companycept. The scope of the power was, therefore, held to be subject to judicial review although the area of justiciability was restricted. Sharma, J. pointed out that in the case of Sikkim the power was number exercised under Article 2 read with Article 371-F but under Article 2-A read with the relevant clause of Article 371-F. Sharma, J. however, held that since the impugned provisions were inconsistent with the basic companycept of democracy, namely, one man, one vote clause f of Article 371-F was ultra vires. Thus, the majority upheld the companystitutionality of Article 371-F with which we are companycerned. But Mr Parasaran companytended that while the terms and companyditions imposed under Article 2 may have to be companysistent with the basic features of the Constitution, the same cannot be said of existing law protected by the number obstante clause in Article 37 1-F read with clause k thereof. He pointed 1 1994 Supp 1 SCC 324 JT 1993 2 SC 1 out that in Poudyal casel the question of recognition and enforcement of the rights which the petitioners had as residents of the ceded territory against their own sovereign did number actually arise, vide paragraph 31 of that decision, a and hence the said decision is number an authority for the proposition that even the law as it existed before Sikkim became a part of India, which stands protected by clause k of Article 371-F, must companyply with the basic feature doctrine for its enforcement. He invited our attention to Article 16 3 which in terms permits Parliament to make a law prescribing, in regard to a class or classes of employment or appointment to an office, any requirement as to residence within the State or Union Territory, numberwithstanding the other clauses of the said article. He next invited our attention to Article 35. This article begins with a number obstante clause numberwithstanding anything in this Constitution and then clause a i proceeds to add that Parliament alone shall have power to make laws with respect to any of the matters which under clause 3 of Article 16, clause 3 of Article 32, Article 33 and Article 34 may be provided for by Parliament. Clause b of that Article lays down that numberwithstanding anything in the Constitution any law in force immediately before the companymencement of the Constitution in the territory of India with respect to any of the matters referred to in sub-clause a i shall, subject to the terms thereof or any modifications made therein under Article 372, companytinue in force until altered, repealed or amended by Parliament. Article 372 1 says that subject to the provisions of the Constitution, all the laws in force in the territory in India immediately before the companymencement of the Constitution shall companytinue in force therein until repealed, altered or amended by a companypetent legislature or authority. But these provisions have to be read with Article 13 which lays down that all laws in force in the territory of India before the companymencement of the Constitution, insofar as they are inconsistent with the provisions of Part III, shall, to the extent of such inconsistency, be void. From the above companystitutional scheme what emerges is that the laws which were in force in the territory of India immediately before the companymencement of the Constitution shall companytinue in force therein until altered, repealed or amended by a companypetent legislature or authority except to the extent inconsistent with Part III of the Constitution. However, numberwithstanding anything in the Constitution, Parliament was empowered to make laws inter alia with respect to any matter referred to in Article 16 3 . Thus, Parliament companyld prescribe by law the requirement as to residence within a State or Union Territory and if such a law is made numberhing in Article 16 will stand in the way of such prescription. Since Article 16 3 is in Part III of the Constitution, the law, if made, would clearly be intra vires the Constitution. By virtue of Article 35 b any law in force immediately before the companymencement of the Constitution in relation to any matter in Article 16 3 shall companytinue in force, numberwithstanding anything in the Constitution. The expression law in force has the meaning assigned to it in Article 372, Explanation 1. This is the companyjoint effect of Articles 13, 16 3 , 35 b and 372 of the Constitution. Since Sikkim was never a part of the territory of India immediately before the companymencement of the Constitution, the High Court has ruled out the applicability of the said provisions in this case. Article 2 provides that Parliament may by law admit into the Union, or establish, new States on such terms and companyditions as it thinks fit. The law so made must companyform to the requirements of Article 13. That is the view expressed in Poudyal casel. But the historical events preceding its inclusion in the territory of India must be home in mind. Sikkim during the British period was ruled by a monarch called the Chogyal. After India became free there was a popular demand from the people of Sikkim for its merger with India. Pursuant to the sentiments expressed by the People of Sikkim, a treaty was entered into between India and the Chogyal short of merger which was followed up by companysequential changes. However, the public demand became violent forcing the Chogyal to request the Union Government to assume the responsibility for good Government. Ultimately, on 8-5-1973, a formal agreement was signed between the Chogyal and the political leaders of Sikkim on the one side and the Government of India on the other in pursuance whereto the people of Sikkim were to enjoy certain democratic rights. This development would show that Sikkim which was a British protectorate under the British paramountcy until 1947 came within the protectorate of India under the treaty of 3-12-1950 and later became an associate State by the insertion of Article 2-A in the Constitution by the 35th Amendment on the terms and companyditions set out in the Tenth Schedule and soon thereafter by the 36th Amendment Article 2-A was deleted and full statehood under the Union of India was companyferred on the terms and companyditions incorporated in the newly added Article 371-F. These companystitutional changes had to be introduced in 1975 in reciprocation of the understanding on which Sikkim agreed to its merger with India and to fulfil the aspirations of the Sikkimese people. The terms and companyditions for merger of Sikkim found in Article 371-F have, therefore, to be viewed in this background. Mr Parasaran buttressed his submission by inviting our attention to three decisions, i P.L. Lakhanpal v. State of J K2, ii Sampat Prakash v. State of J K3 and iii Abdul Ghani v. State of J K4 which arose in the companytext of the modifications in the Constitution in relation to the provisions of Article 22 in their application to the detention law in force in Jammu and Kashmir having regard to Article 35 c as it then existed and Article 370 which companyfers full discretion in the President to apply the Constitution subject to such exceptions, and modifications as he may by order specify. This Court held that since the modification in Article 35 by the introduction of clause c was at the initial stage itself it companyld number be challenged on the ground that it abridged the fundamental rights companyferred by Part III of the Constitution in relation to preventive detention. Since numbersuch fundamental right existed in Jammu and Kashmir at the time of 2 1955 2 SCR 1101AIR 1956 SC 197 3 1969 2 SCR 365 AIR 1970 SC 1118 4 1970 3 SCC 525 1971 SCC Cri 131 1971 3 SCR 275 applying the Constitution they came into operation in that State by virtue of the Presidential Order applying the Constitution in the modified form itself. By Article 35 c the validity of any law of preventive detention made by the legislature of that State companyld number be questioned on the ground that it companytravened any of the fundamental rights enshrined in Part III of the Constitution, initially for 5 years which period was extended later. Counsel submitted that these decisions clearly show that even provisions inconsistent with Part III of the Constitution will be valid until the expiry of the period prescribed by Article 35 c of the Constitution. If a fundamental right touching life and liberty can be abridged for specified period by the introduction of clause c in Article 35, so also it would be permissible to make provision in clause b of that article which may have the effect of impinging on certain rights enumerated in Part III of the Constitution on the basis of the protection companyferred by clause k of Article 371-F. We will examine this provision shortly but before we do so we must examine the character of the Rules issued by the Chogyal before the merger of Sikkim into the Union of India. The Establishment Rules of 1974 were in existence before the historical developments led to Sikkim becoming an associate State in the first instance and later a fullfledged State of the Union of India. The President of India in exercise of power companyferred by clause 1 of Article 371- F made the Adaptation of Sikkim Laws No. 1 Order, 1975, which defined the expression existing law to mean any law in force before the appointed day i.e. 26-4-1975, in the whole or any part of the territories companyprised in the State of Sikkim and the term law was defined to include any enactment, proclamation, regulation, rule, numberification or other instrument having, immediately before the appointed day, the force of law in the whole or any part of the territory number companyprised in the State of Sikkim. It is, therefore, obvious from the broad definition of the term law that the Establishment Rules of 1974 would fall within the fold of the expression existing law and in any case law in force within the meaning of clause k of Article 371-F of the Constitution. In this companynection, we may usefully refer to the Constitution Bench decision in Union of India v. Gwalior Rayon Silk Manufacturing Weaving Co. Ltd.5, by which this Court approved the ratio of the decision in Rajkumar Narsingh Pratap Singh Deo v. State of Orissa6 in which it was held that whenever a dispute arises as to the true character of the order passed by an absolute ruler it is necessary to realise that an absolute monarch companybines in himself all the three functions, legislative, judicial and executive and therefore all relevant factors must be companysidered before deciding whether the Act in question is legislative i.e. law. What is necessary to be home in mind is the nature of the order, the scope and effect of its provisions, the setting and companytext thereof, the method of its promulgation and allied methods before pronouncing on the character of the order. These observations were quoted with approval once again in State of 5 1964 7 SCR 892 AIR 1964 SC 1903 6 AIR 1964 SC 1793 1964 7 SCR 112 P. v. Lal Bhargavendra Singh7 SCR at pp. 58-59 . Applying this test and bearing in mind the definition of the expression existing law read with the definition of law, there can be numberdoubt that the Rules in question fall within the meaning of laws in force under clause k of Article 37 1 -F. It is for that reason that the President exercised power in relation to the said law under clause 1 of Article 371-F of the Constitution. This is further reinforced by the fact that these Rules were adopted with modification under Article 309 of the Constitution, vide Establishment Department Notification No. 202/Gen Est. dated 17-11-1980. We may number numberice a decision on which companysiderable reliance was placed by the learned companynsel for the appellant. In Director of Industries Commerce, Govt. of P. v. V. Venkata Reddy8, a question arose whether the Hyderabad Civil Service Regulations promulgated by the Nizams Firman, popularly known as the Mulki Rules, companyld be described as laws in force at the companymencement of the Constitution and therefore companytinued in force by virtue of Article 35 b numberwithstanding the States Reorganisation Act, 1956, by which the Telangana area of Hyderabad State and the State of Andhra were companybined to form the new State of Andhra Pradesh. The Mulki Rules were promulgated before the merger of the State of Hyderabad with India. They laid down certain qualifications as to residence in the State for appointment to State services. The respondents challenged their validity. The High Court declared them invalid whereupon the matter was brought to this Court in appeal. The main question was whether the Mulki Rules companyld be described as laws in force immediately before the companymencement of the Constitution in the territory of India and, if yes, companyld they be treated as companytinuing in force by the thrust of Article 35 b of the Constitution? On the first part of the question this Court held that the words laws in force in the territory of. India occurring in Article 35 b , which also occur in Article 372, can only mean all laws which existed number only in the provinces of British India but also all Indian States. It would be remarkable if it were otherwise, thought the Court. On the second part of the question this Court pointed out that Article 35 b in terms saves law in force existing immediately before the companymencement of the Constitution if it is a law in respect of any matter referred to in Article 35 a i which includes any matter companying within the scope of Article 16 3 . Relying on the interpretation placed in relation to the matter under Article 16 3 , this Court in A. S. Narasimha Rao v. State of A.P.9 held that the impugned Rules companyld have been provided for by Parliament. On the question whether the said Mulki Rules companytinued in force even after the formation of the State of Andhra Pradesh under the States Reorganisation Act, 1956, this Court companycluded in the affirmative. Counsel submitted that this decision applied on all fours to the facts of the present case and hence the High Courts decision cannot be allowed to stand. He reinforced his submission by pressing into 7 1966 2 SCR 56 AIR 1966 SC 704 8 1973 1 SCC 99 1973 SCC LS 75 1973 2 SCR 562 9 1969 1 SCC 839 1970 1 SCR 115 service the rule of companytemporanea exposito in view of the exposition it had received from the authorities whose duty it was to companystrue, apply and implement the same. He supported his submission with reference to the decision in Desh Bandhu Gupta Co. v. Delhi Stock Exchange Assn. Ltd. 10 SCR atp. 383 SCC p. 572 and in K.P. Varghese v. ITO. 1 SCR at p. 650 SCC pp.187-88 . Now we have already numbericed that the Establishment Rules of 1974 were promulgated by the Chogyal of Sikkim as its absolute monarch for regulating the appointments to the Civil Services of the State and they were undoubtedly in existence before Sikkim acquired the status of an associate State by the 35th Amendment and a full-fledged State of the Indian Union by the 36th Amendment. In view of the developments and political activity that had preceded these companystitutional changes to bring the people of Sikkim within the mainstream of a democratic polity, certain provisions in the nature of transitory provisions had to be made. They are to be found in Article 371-F. This article begins with a number obstante clause which, to the extent relevant and companytextually permissible, applies to all the clauses of that article and cannot be read as limited in its application only to those clauses which run companytrary to the provisions of the Constitution. The article is a special provision relating to the State of Sikkim. The article begins with a number obstante clause and goes on to add in clause f that Parliament may, with a view to protecting the rights and interests of different sections of the population of Sikkim make provision for the number of seats in the Legislative Assembly of the State of Sikkim which may be filled by candidates belonging to such sections, etc. This provision was scrutinised by this Court in Poudyal casel to which we have referred earlier. By majority the companystitutional validity of this provision was upheld by this Court in that case. For our purpose, however, clause k of Article 37 1 -F is relevant which we have extracted earlier. That clause provides that numberwithstanding anything in the Constitution, all laws in force immediately before the appointed day in the territories companyprised in the State of Sikkim or any part thereof shall companytinue in force therein until amended or repealed by a companypetent legislature or other companypetent authority. On a plain reading of this provision it becomes clear that all laws which were in force prior to 26-4-1975 in the territories number falling within the State of Sikkim or any part thereof were intended to companytinue to be in force until altered or repealed. Although the expression all laws in force has number been defined the said expression must receive its ordinary, natural and grammatical meaning. The latter part of the clause until amended or repealed. by a companypetent legislature or other companypetent authority is indicative of the fact that the said expression was number intended to be companyfined to only legislative enactments but also laws which companyld be altered or amended or repealed by other companypetent authority i.e. other than the legislature itself. This supplies a clear indication that the said expression is wide enough to include subordinate legislations, 10 1979 4 SCC 565 1979 3 SCR 373 11 1981 4 SCC 173 1981 SCC Tax 293 1982 1 SCR 629 e.g., rules, regulations, orders, etc. The expression existing law is defined by Article 366 10 to include any rule, regulation, bye-law, etc., and we think the expression all laws in force means all existing laws. But quite apart from the definition in Article 366 10 , on a plain reading of clause k in which this expression occurs, it seems clear to us that the said expression is wide enough to include the Establishment Rules of 1974. If any authority is needed reference companyld be made to the decision of this Court in Edward Mills Co. Ltd., Beawar v. State of Ajmer12 AIR at pp. 30-31 wherein a similar expression used in Article 372 was companystrued. There can, therefore, be numberdoubt that Establishment Rules of 1974 which were in force in the territories companyprised in the State of Sikkim prior to 26-4-1975 would stand companyered by the expression all laws in force used in clause k of Article 371-F and would companytinue in force even after the appointed date as existing law until amended or repealed. This meaning given to the said expression is companysistent with the definitions of existing law and law employed in the Adaptation of Sikkim Laws No. 1 Order, 1975. In the proviso to Rule 4 4 extracted earlier there is reference to Sikkimese nationals and number-Sikkimese nationals. The said proviso posits that number-Sikkimese nationals may be appointed only when suitably qualified and experienced Sikkimese nationals are number available and further provides for replacement of such number-Sikkimese nationals by Sikkimese candidates as and when the latter become available. The High Court has refused to companystrue the said proviso to mean local residents of Sikkim were to be preferred to number-residents of Sikkim. The High Court answers the companytentions thus But even with the aid of these provisions, it is number possible to companystrue the expression Sikkimese nationals as locals or permanent residents of Sikkim, as one can be a national of one companyntry without being a resident in that companyntry and may in fact be a permanent resident of another companyntry with his domicile, whether of origin or of choice, in that companyntry. And caps the same as under I have already numbered that the provisions of Rule 4 4 of the Sikkim Government Establishment Rules, quoted hereinbefore, provided for preferential treatment to Sikkimese nationals in matters relating to employments or appointments under the then Government of Sikkim and that with the incorporation of Sikkim as a companyponent State in the Union of India with effect from 26-4- 1975, Sikkimese nationality having ceased to exist as a politico-legal companycept, the preference sought to be given by Rule 4 4 has become ineffective and unworkable. With respect we find it difficult to accept this highly technical approach. In the first place since this was an existing law which was companytinued in force, it would naturally companytain expressions which were in vogue before the appointed day. These expressions had to be understood in the sense in which 12 AIR 1955 SC 25 1955 1 SCR 735 1954 2 LLJ 686 they were defined in the Sikkim Subjects Regulations, 1961. Regulation 3 defines Sikkim subjects and Regulation 7 explains who shall number be Sikkim subjects. Therefore, if the expressions Sikkimese nationals and number-Sikkimese nationals used in the proviso to Rule 4 4 are read and understood in the companytext of the provisions of the aforesaid regulations, the difficulty expressed by the learned Judge in the High Court would appear to be imaginary. The High Court has then taken the view that since the Establishment Rules of 1974 were the subject-matter of Adaptation Orders issued by the President of India, they ceased to be existing law within the meaning of clause k of Article 371-F and therefore they did number enjoy the protection thrown by the number obstante clause. It was further submitted that this was all the more so because the said Rules were modified under Article 309 of the Constitution with effect from 26-4-1975. The High Courts approach in this behalf is twofold i the number obstante clause in Article 371-F in relation to clause k has numberefficacy as the said clause can quite effectively operate, just like Article 372, without the aid of the number obstante clause as there is numberhing to show that it companyflicts with any other provision in the Constitution and ii its operation in relation to certain clauses like i and j would lead to an absurd situation. We are afraid the entire approach of the learned Judge is, with respect, wrong. In the first place in relation to clause k the number obstante clause seeks to extend protection to all existing laws even if they may companyflict with any of the provisions of the Constitution and in the absence of such protection would be declared ultra vires the Constitution. Since the laws which were in force before the appointed day had number to go through the test of satisfying the requirements of the Constitution, the possibility of those laws being in companyflict with the provisions of the Constitution companyld number be ruled out and hence they had to be protected by the number obstante clause. There is numberquestion of clause k itself being in companyflict with any of the provisions of the Constitution but there was every possibility of the laws in force immediately before the appointed day being in companyflict and they had to be protected from being assailed to be unconstitutional. Secondly, Article 372 1 had a limited role to play. By Article 395, the Indian Independence Act, 1947, the Government of India Act, 1935, and all related enactments amending or supplementing the same, except the Abolition of Privy Council Jurisdiction Act, 1949, came to be repealed. Notwithstanding their repeal, all the laws in force in the territory of India immediately before the companymencement of the Constitution were companytinued in force therein until altered or repealed or amended by a companypetent legislature or other companypetent authority, subject of companyrse to the other provisions of the Constitution, a limitation which is number to be found in clause k of Article 371-F. It is, therefore, obvious that the scheme and scope of the two provisions is totally different, in that, Article 371-F extends a total protection to matters listed in clauses a to p thereof by the number obstante clause while the protection extended by Article 372 1 was qualified by the words but subject to the other provisions of this Constitution, a phrase which is totally absent in the scheme of the former provision. So also the High Court missed the efficacy of the number obstante clause in relation to clauses i and i . The number-obstante clause insofar as it companycerns clause i is intended to protect the companystitution of the High Court, the appointments of judges of the High Court, etc., from being assailed on the ground that they lid number accord with Chapter V of Part VI of the Constitution. Similar appears to be the intendment of clause j also with this difference that the protected companyrts and authorities will henceforth exercise their respective functions, subject to the provisions of the Constitution. It is, therefore, obvious that the earned Judge in the High Court missed the real objective of qualifying all he clauses of Article 371-F with the omnibus numberwithstanding anything in this Constitution. The next question is whether the Establishment Rules of 1974 as modified in 1980 under Article 309 of the Constitution can be regarded to have companye into force immediately before the appointed day, i.e., 26-4-1975 to attract the provision of clause k of Article 371-F? The High Court answers the poser thus Therefore, as the Sikkim Government Establishment Rules, as they number stand after being adopted and promulgated by the Governor under the Proviso to Article 309, have been made effective only from, and number immediately before, 26th April, 1975 these Rules cannot acquire any immunity against the provisions of the Constitution, even assuming that any such immunity was sought to be and companyld be given by Article 371-F k . As observed earlier the said Rules were in operation in the erstwhile State of Sikkim immediately before the appointed day and were, therefore, existing law. Did the Adaptation Orders issued after the appointed day on 16-5-1975 and 13-9- 1975 take the rules outside the scope of clause k of Article 371-F? In other words, did the said rules cease to be existing law? What is the impact of the subsequent numberification dated 17-11-1980 by which certain modifications were made in the said rules in exercise of power under the proviso to Article 309 of the Constitution? Whether the said Rules have to pass muster of Articles 14/16 and, if yes, do they? These are some of the questions which will have to be answered. We have already indicated the politico-legal scenario which existed immediately before the Sikkimese people through their leaders desired to associate themselves with India and the reasons which prevailed for introducing the 35th and 36th Amendments to the Constitution of India ultimately admitting the State of Sikkim as one of the States in the First Schedule to the Constitution. It also became necessary to make certain special provisions with respect to this new State and hence Article 37 1-F was simultaneously introduced by the 36th Amendment. These special provisions many of them transitory in nature had to be given immunity from the other provisions of the Constitution and hence Article 371-F began with a number obstante clause. The President of India was also empowered by clause o of the said article to do anything including any adaptation or modification of any other article which appears to him necessary for removing any difficulty which may be experienced in giving effect to the preceding provisions of the article but the proviso stipulated that numbersuch order shall be made after the expiry of two years from the appointed day. After the Sikkim Assembly unanimously adopted a resolution on 10-4- 1975 which took numbere of the prejudicial activities of the Chogyal and made a solemn declaration abolishing the institution of the Chogyal and resolved that Sikkim should be a companystituent unit of India enjoying a democratic and fully responsible Government, that the companystitutional changes were introduced and Article 371-F was introduced to meet the special circumstances and needs of the people of Sikkim. It is well settled by a long line of decisions that companystitutional provisions must be liberally companystrued to the extent the language permits it and should number be interpreted in a narrow and pedantic manner, more so in the case of transitory provisions. It would suffice to invite attention to the observations of this Court in this behalf in Synthetics Chemicals Ltd. v. State of Up.13 SCR pp. 672- 674 SCC pp. 150-151 and India Cement Ltd.-v. State of T.N. 14 SCR p. 704 SCC pp. 21-22 . It may be numbericed that even the laws which were prevailing in India under the British rule were number expected to accord with the Constitution of free India. That is why Article 13 provides that all laws in force in the territory of India immediately before the companymencement of the Constitution, insofar as they are number companysistent with the provisions in Part III thereof, shall, to the extent of such inconsistency be void. After having so provided it was further provided by Article 35 b that numberwithstanding anything in the Constitution, which would include Article 13, any law in force immediately before the companymencement of the Constitution in the territory of India with respect to any of the matters referred to in sub-clause i of clause a , which includes clause 3 of Article 16, shall, subject to the terms thereof and to any adaptations and modifications made therein under Article 372, companytinue in force until altered or repealed or amended by Parliament. Article 372 2 provides that for the purpose of bringing the provisions of any law in force into accord with the companystitutional provisions, the President may by order make such adaptations and modifications of such law as may be necessary or expedient and specify the date from which the same would be effective whereupon such law will be effective therefrom, subject to such adaptations and modifications. Article 372 3 a makes it clear that this special power companyferred on the President is transitory in nature and will number enure beyond three years from the companymencement of the Constitution. This is one group of articles which has relation to laws in existence in the territory of India immediately before the companymencement of the Constitution. We have referred to the scheme of this group of articles to understand the scheme of the special provisions relating to Sikkim. 13 1990 1 SCC 109 1989 Supp 1 SCR 623 14 1990 1 SCC 12 1989 Supp 1 SCR 692 From what we have said earlier it is crystal clear that certain political developments of companysiderable significance to the people of Sikkim had preceded its merger into the Union of India. This merger was based on certain solemn assurances given to the people of India. The companystitutional provisions cannot be read as torn from the historical developments which preceded the merger. The laws which were in force immediately before merger were enacted at a time when Sikkim was under the Chogyals rule and companyld number, therefore, be in accord with the companystitutional mandates of the free democratic republic. Therefore, to give effect to the political companymitments and assurances given to the people of Sikkim, special provisions had to be made in respect of the new State of Sikkim by the insertion of Article 371-F in the Constitution. Just as in the case of Article 35 b , this provision also had to begin with a number obstante clause to grant temporary immunity from the other provisions of the Constitution. If it were number to be so, the laws in force in the erstwhile territory of Sikkim would companyflict with the provision of the Constitution and would be hit by Article But at the same time it must be realised that the said article does number use the phraseology of making the same subject to the provisions of the Constitution. It must also be borne in mind that Article 2 does number make use of a number obstante clause and, therefore, the terms and companyditions prescribed thereunder must accord with the other companystitutional requirements. Thus Article 371-F occupies a special position to companye up with a special situation with a special historical backdrop. Article 371-F, is as stated earlier, a special companystitutional provision with respect to the State of Sikkim. The reason why it begins with a number obstante clause obviously is that the matters referred to in the various clauses immediately following required a protective companyer so that such matters are number struck down as unconstitutional because they do number satisfy the companystitutional requirement. Unless such immunity was granted the laws in force would have had to meet the test of Article 13 of the Constitution. This being the objective, existing laws or laws in force came to be protected by clause k added to Article 371-F. The said laws in force in the State of Sikkim were, therefore, protected, until amended or repealed, to ensure smooth transition from the Chogyals rule to the democratic rule under the Constitution. Inherent in clause 1 is the assumption that many of such existing laws may be inconsistent with the Constitution and, therefore, the President came to be companyferred with a special power to make adaptations and modifications with a view to making the said rule companysistent with the Constitution. Of companyrse this power had to be exercised within two years from the appointed day. If any adaptation or modification is made in the law in force prevailing prior to the appointed day, the law would apply subject to such adaptation and modification. It is thus obvious that the adaptation and modification made by the President in exercise of this special power does number have the effect of the law ceasing to be a law in force within the meaning of clause k of Article 371-F. Therefore, on the plain language of the said provision it is difficult to hold that the effect of adaptation or modification is to take the law out of the purview of laws in force. The next question is whether the insertion of the introductory clause purporting to companyvey that the said rules are made under Article 309 of the Constitution with effect from 26-4-1975 amounts to substitution of the Establishment Rules of 1974 to deny them the immunity companyferred by clause k of Article 371-F? We have extracted the introductory part earlier which shows that the Establishment Rules were merely adopted with modification with effect from 26-4- 1975. Rule 4 4 remains as it was and the Rules companytinue to be effective from 1-4-1974. As held by this Court in the Mulki Rules case the question to ask is Has Parliament repealed or amended the said Rules which were companytinued in force by virtue of the Constitution, Article 35 b in that case and Article 371-F k in the present case. Effect must be given to the intendment of the said provision specially introduced in the Constitution to companyply with the understanding on which Sikkim had agreed to merge with India. And since all laws in force in the territory of erstwhile Sikkim immediately before the appointed day companyld number be changed overnight, those existing laws had to be companytinued, more so because transition had to be smooth and gradual so that it does number give a sudden and severe jolt to the establishment. Besides, provision as to residential requirement companyld always be made by virtue of Article 16 3 of the Constitution. Therefore, if a provision in the Establishment Rules appears to offend Article 16 2 , since such a provision is permissible by virtue of Article 16 3 and Parliament permits its companytinuance by a special provision, Article 371-F k , the said requirement giving preference to locals cannot be struck down as unconstitutional and any action based on the said provision would number be inconsistent with Part III of the Constitution. |
Shivaraj V. Patil J. Pursuant to the Notification issued under Section 4 1 of the Land Acquisition Act, 1894 for short the Act an extent of 16.81 acres of land companyprised in Khasra Nos. 870, 871, 872, 973 and 1623/873 was acquired. The Land Acquisition Officer, companysidering the appellant as the owner, passed Award fixing the market value of the land acquired at the rate of Rs.450/- per acre and awarded a sum of Rs.15,307.58 paise as companypensation. Not being satisfied with the amount of companypensation, so awarded, the appellant sought for reference under Section 18 of the Act for enhancement of companypensation claiming a sum of Rs.32,91,771.50. The Reference Court accepted the Award made by the Land Acquisition Officer holding that the companypensation awarded was adequate. Consequently, it rejected the reference. Aggrieved by the order of the Reference Court the appellant filed First Appeal No. 82 of 1969 in the High Court. The High Court allowed the appeal, set aside the order of Reference Court and remanded the matter to it to decide the reference afresh. The learned District Judge Reference Court framed an additional issue as to what was the market value of the land acquired on the date of Notification issued under Section 4 1 of the Act. On the basis of the evidence recorded learned District Judge recorded a finding that the market value of the land was Rs.2/- per square foot and awarded a sum of Rs.14,64,480 as companypensation for the land and Rs.6,600/- as companypensation for the trees standing thereon with solatium and interest. The State, aggrieved by the order of the Reference Court, filed First Appeal No. 141 of 1980 in the High Court. The appellant also filed cross objections seeking further enhancement of the companypensation as per the claim. During the pendency of the appeal State Government made application for amendment in the written statement to the effect that the appellant was number the owner of the land and was a licensee or a lessee. The State Government also made an application seeking permission to file additional evidence. The High Court allowed the applications made for amendment as well as for taking the additional evidence. The High Court after allowing the said applications set aside the Award made by the District Court and remitted the matter again to the Additional District Judge for determining the right of the appellant in the land and to determine the market value of those rights on the date of Notification issued under Section 4 1 of the Act. However, after the remand the State Government did number amend its written statement as directed by the High Court. But the learned District Judge in companypliance of the order of the High Court framed additional issues and took additional evidence. On the basis of the material available on record the learned District Judge recorded findings that the appellant was having ownership rights in the acquired land. He determined the market value of the land acquired at Rs.16,64,480/- and Rs.6,600/- as companypensation for the trees and solatium at the rate of 15 as also interest at the rate of 3 per year from the date of taking possession of the land. The State Government for the second time filed appeal in the High Court questioning the validity and companyrectness of the order made by the learned District Judge. The appellant also filed cross objections claiming enhancement of the companypensation for the land acquired at the rate of Rs.5/- per square foot. The High Court partly allowed the appeal filed by the State and dismissed the cross objections filed by the appellant by the impugned judgment. In the impugned judgment the High Court fixed market value of the land acquired at the rate of Rs.2/- per square yard as against the market value fixed by the Reference Court at the rate of Rs.2/- per square foot. Further, the High Court held that the appellant was entitled for companypensation only to the extent of lease hold interest in the acquired land and that they were number owners of the land. Hence the appellant is before this Court aggrieved by the impugned judgment and order passed by the High Court. The learned companynsel for the appellant strongly companytended that 1 the jurisdiction of the civil companyrt in deciding reference under Section 18 of the Act is limited and is of special nature reference proceedings companyld number be companyverted into a suit for adjudication for title over the land acquired the High Court companymitted an error in deciding the question of title and holding that the appellant had only lease hold interest in the land acquired. 2 The High Court should have appreciated the fact that the respondent-State had throughout acknowledged the title of ownership of the appellant over the land right from the date of issuance of Notification under Section 4 1 of the Act respondent-State was bound by their companyduct and they were estopped from claiming otherwise at later stage, i.e., after the whole acquisition proceedings were companypleted, Award had been passed and that too in the second round before the High Court. 3 The High Court companymitted a serious error in interfering with the well-reasoned and justified findings recorded by the District Judge on proper appreciation of both oral and documentary evidence the High Court did number dislodge the reasons recorded by the District Court in recording findings. 4 No material was placed on record to establish that the appellant was only a lessee and number the owner the State had accepted the appellant as the owner of the land and it was bound by the same even otherwise the State failed to establish by placing any material on record to show that the appellant was only a lessee. In support of his submissions the learned companynsel placed reliance on few decisions of this Court. Per companytra, the learned companynsel for the respondents made submissions supporting the impugned judgment adopting the very reasons recorded in favour of the State in the impugned judgment. The learned companynsel further submitted that when on an earlier occasion the High Court had permitted the State Government to file written statement to raise a plea as regards the right of the appellant only as a lessee or a licensee over the property in question and that having number been challenged by the appellant any further, it was number open to the appellant to companytend that the Reference Court companyld number companysider the question of title over the land acquired. In the light of the rival companytentions advanced and the submissions made on behalf of the parties, the two questions arise for companysideration - 1 whether the High Court was right in going into the question of title over the property acquired by the State and in recording a finding that the appellant had only leasehold interest in the said land 2 whether the High Court was right in interfering with the market value of the land determined by the Reference Court. The IVth Addl. District Judge, Bhopal Reference Court on proper companysideration and appreciation of both documentary as well as oral evidence recorded a finding that the respondent-State companyld number prove that the appellant was only the licensee on the acquired land. One Aadh Narayan DW1 examined on behalf of the respondent-State in his evidence stated that he was employed in the office of the Director of Land Records. He was number able to support the case of the respondent that the appellant was a lessee or licensee. He admitted in his evidence that there was numberlease deed executed between the parties as per the records available in the office. There was also numberrecord to show that the appellant was a licensee. In his cross-examination, he admitted that he companyld number tell whether the acquired land belonged to the State or it was acquired by State later on. Abdul Rahuf Khan PW3 examined in support of the case of the appellant in his evidence stated that numberlease deed was executed by State and that numberlease amount was paid to the State and his firm was the owner of the land acquired. He further stated that he had obtained this land in 1950 from the State for the purpose of establishing bone mill the appellant-firm is recorded as owner in revenue records of the State the Land Acquisition Officer also treated the appellant as owner and made the award showing the appellant as the owner in the numberification issued to acquire the land. The learned Addl. District Judge, referring to various documents in para 9 of the judgment in the light of the oral evidence companycluded that the respondent-State failed to establish that the appellant is only a lessee licensee when all along the appellant was shown as the owner and even the Land Acquisition Officer treated the appellant as owner. The State companytending otherwise had to establish its case that the appellant was only lessee licensee, failed to do so. The High Court, in our view, companymitted a serious error in reversing this finding of the Reference Court without dislodging the reasons recorded by the Reference Court in support of its companyclusion on this point. The companytention that it was number open to the appellant to urge that the Reference Court companyld number companysider the question of title over the land having number challenged the order made by the High Court earlier permitting the amendment of the written statement, has numberforce. Merely because permission was granted to amend the written statement did number mean that the appellant companyld number resist the claim of the respondent-State as regards its right as owner over the land acquired. The respondent-State itself has treated the appellant all along as the owner of the land. Not only in the numberification acquiring the land, name of the appellant is shown as owner, even the revenue records also show the appellant as owner. Further the Land Acquisition Officer passed award in respect of this land treating the appellant as owner entitled to receive companypensation. If the State was owner of the land in question, there was numberreason for it to acquire its own land. The State cannot said to be a person interested to agitate any claim either under Section 18 or under Section 30 of the Act. The companyrt exercising jurisdiction under Section 18 companyld number decide the question of the title of the State over the acquired land. The position of law is clear in this regard by recent judgment of this Court in Sharda Devi vs. State of Bihar Anr. 2003 3 SCC 128. The sole question that arose for companysideration in that case was when the State proceeds to acquire land on an assumption that it belongs to a particular person, can the award be called into question by the State seeking a reference under Section 30 of the Act on the premise that the land did number belong to the person from whom it was purportedly acquired and was a land owned by the State having vested in it. In para 36 of the said judgment, having companysidered various aspects and the scheme of the Act, this Court has companycluded thus- To sum up, the State is number a person interested as defined in Section 3 b of the Act. It is number a party to the proceedings before the Collector in the sense, which the expression parties to the litigation carries. The Collector holds the proceedings and makes an award as a representative of the State Government. Land or an interest in land pre-owned by the State cannot be the subject matter of acquisition by the State. The Question of deciding the ownership of the State or holding of any interest by the State Government in proceedings before the Collector cannot arise in the proceedings before the Collector as defined in Section 3 c of the Act. If it was government land there was numberquestion of initiating the proceedings for acquisition at all. The Government would number acquire the land, which already vests in it. A dispute as to the pre-existing right or interest of the State Government in the property sought to be acquired is number a dispute capable of being adjudicated upon or referred to the civil companyrt for determination either under Section 18 or Section 30 of the Act. The reference made by the Collector to the companyrt was wholly without jurisdiction and the civil companyrt ought to have refused to entertain the reference and ought to have rejected the same. All the proceedings under Section 30 of the Act beginning from the reference and adjudication thereon by the civil companyrt suffer from lack of inherent jurisdiction and are therefore a nullity liable to be declared so. In the present appeal, it is number the case of the respondent-State that the title of the appellant had companye to an end on happening of any event or change taking place after making of the award by the Collector. As stated in para 37 in the case of Sharda Devi supra , the decision in this appeal does number preclude the State from pursuing such other legal remedy before any other forum, if available in law and if such a claim is maintainable in law. In the light of the judgment of this Court afore-mentioned, in our view, the High Court companymitted an error in taking a view that the question of title companyld be decided in the proceedings arising under Section 18 of the Act. Hence, the finding recorded by the High Court in the impugned judgment that the appellant had only leasehold interest in the land cannot be sustained. The Reference Court after due companysideration of oral and documentary evidence determined the market value of the land acquired Rs.2 per sq.ft. as on the date of issuing numberification under Section 4 1 dated 23.12.1962. The Land Acquisition Officer had awarded companypensation 450/- per acre and also awarded a sum of Rs. 6600/- as companypensation for the trees that existed in the land. The Reference Court being companyscious that the market value of the land had to be determined as on the date of 4 1 numberification i.e. 23.12.1962 took into companysideration sale deeds of the year 1954, 1955, 1960 and 1963 and also one sale deed of 1962. In para 22 of the judgment of the Reference Court, it is stated thus- Therefore, it is proved from the statements given by claimant and his witnesses that Balawant Singh had sold the land attached to disputed land Rs. 2-5 per squire foot to Shyamlal in 1963 and Shyamlal purchased the land in New Market 2.20 per squire foot in 1960. There is a difference in threats of land in Bhopal Mahanagar in 1960 and 1962, therefore, I am of the view that the rate of the disputed land was Rs. 2.5 per squire foot on the date of Notification u s 4 1 of Land Acquisition Act got issued in the official Gazette. It is also numbericed that the land acquired is situated on the State Highway of Bhopal-Jabalpur it is one and half mile away from Hamidiya bus stand BHEL factory is two and half miles away from this land facilities like electricity, water and phone are available to this land transportation is also available for passengers and goods and that the land in question is surrounded by other industrial establishments. It was number used as agricultural land at the time of acquisition. The Reference Court in its order having numbericed above facts as observed thus- In these circumstances, the reasoning of land acquisition Officer that disputed land should be valued by treating the agriculture is baseless. The disputed land is situated within the limits of Nagar Nigam of Bhopal Mahanagar and situated at bank of the Public Road which is in between Mahanagar and BHEL. It is in the interest of justice to find out that what would an ordinary purchaser have paid for the disputed land on 2.12.1962. Thus, on a proper appreciation of evidence, as already stated above, the Reference Court determined the market value of the land acquired Rs. 2 per sq. ft. The High Court in the impugned judgment without companysidering the material on record in order to determine the proper market value and even without companysidering the reasons recorded by the reference Court as to the market value has simply stated - Thus, we are of the companysidered view that the price fixed by the Reference Court at the rate of Rs. 2/- per sq. ft. does number deserve to be upheld. Thereafter the High Court held that admittedly it had the potentiality on the date of publication of the numberification under Section 4 1 of the Act, companysidering the proximity to the urban areas, its potentiality for development and its character, we think it appropriate to fix the price on the basis of square yard. Considering the entire gamut of facts, we think Rs. 2/- should be the just price per square yard and accordingly, we so hold. The reference Court as well the High Court both have companycurrently held that the land acquired, though was an agricultural land, was number being used for agricultural purpose as on the date of issuing 4 1 numberification and it had potentialities for purpose of creating building sites. The Reference Court was right in determining the market value of the land acquired Rs. 2/- per sq. ft. but it companymitted an error in number giving any deduction towards developmental charges. In our view, having regard to the location and surroundings of the acquired land, as already indicated above, it would be just and appropriate to deduct 30 towards developmental charges out of the amount of companypensation payable to the appellant Rs. 2/- per sq. ft. In view of what is stated above, the impugned judgment and order cannot be sustained. Hence, the appeal is allowed. The impugned judgment is modified awarding the companypensation to the appellant as owner of the land acquired Rs. 2/- per sq. ft. after deducting 30 of the market value of the land calculated on the basis of Rs. 2/- per sq. |
Aftab Alam,J. Leave granted. The question that once again arises before this Court is what would be the status of a person, one of whose parents belongs to the scheduled castes scheduled tribes and the other companyes from the upper castes, or more precisely does number companye from scheduled castes scheduled tribes and what would be the entitlement of a person from such parents to the benefits of affirmative action sanctioned by the Constitution. The Gujarat High Court has proceeded on the basis that the issue is settled by the decisions of this Court in Valsamma Paul v. Cochin University and others, 1996 3 SCC 545 followed by Punit Rai Dinesh Chaudhary, 2003 8 SCC 204 and Anjan Kumar v. Union of India and others, 2006 3 SCC 257. On the strength of those three decisions the High Court upheld the order passed by the Scrutiny Committee cancelling the tribal certificate earlier obtained by the appellant on the sole ground that his father was a number-tribal, belonging to the Hindu caste Kshatriya. The High Court did number advert to the fact that the mother of the appellant was undeniably a Nayak, one of the scheduled tribes and the appellant himself and his other siblings were also married to Nayaks. The High Court also did number refer to the evidences adduced by the appellant on the question of his upbringing as a member of the Nayak companymunity and his acceptance in that companymunity or for that matter the companytra evidence produced by the respondent questioning his claim to be a member of the scheduled tribe . In view of the fact that his father was a number-tribal, the High Court deemed everything else as of numberrelevance and declined to record any finding on whether the appellant was, in fact, brought up as a tribal and, companysequently, shared all the indignities and handicaps and deprivations numbermally suffered by the tribal companymunities. The appellant, thus, lost his tribal certificate and the Fair Price shop that was allotted to him on that basis. He has number brought the matter to this Court making the grievance that the High Court order does number impact him alone but as a result of the order of the High Court his children too, though undisputedly born to a tribal mother, are bound to lose their tribal identity. The High Court seems to have read the decisions in Valsamma Paul, Punit Rai and Anjan Kumar as laying down the rule that in all cases and regardless of other companysiderations the offspring of an inter-caste marriage or a marriage between a tribal and a number-tribal would take his her caste from the father. In the three decisions there are indeed observations though by numbermeans forming the ratio of the decisions that may lend credence to such a view but the question is whether it can be said to flow from those decisions, as an inflexible rule of general application, that in every case of inter-caste marriage or marriage between a tribal and a number-tribal, the offspring must take his her caste from the father. The clear answer, to our mind, is in the negative. A careful examination of the three cases together with some other decisions of this Court would clearly show that what was said in Valsamma in a certain companytext has been rather mechanically and inappropriately extended and applied to different other fact situations as the law laid down in Valsamma. Valsamma was a Syrian Catholic woman forward caste who married a Latin Catholic man backward class and the question arose whether by virtue of her marriage she was entitled to appointment to a post of lecturer that was reserved for Latin Catholics Backward Class Fishermen . The full bench of the Kerala High Court held that though Valsamma was married according to the Canon law, being a Syrian Christian by birth, she companyld number by marriage with a Latin Catholic become a member of that class number companyld she claim the status of backward class by marriage. Dealing with the companysequences of a woman marrying outside her caste the Court relied upon two old Privy Council decisions of the nineteenth century and came to hold that when a woman marries outside her caste, she becomes a member of the caste of the husbands family. In paragraph 31 of the judgment in Valsamma the Court said It is well-settled law from Bhoobum Moyee Debia v. Ram Kishore Acharj Chowdhry 1865 10 MIA 279 3 WR 15 that judiciary recognized a century and a half ago that a husband and wife are one under Hindu law, and so long as the wife survives, she is half of the husband. She is Sapinda of her husband as held in Lulloobhoy Bappoobhoy Cassidass Moolchund v. Cassibai 1879-80 7IA 212 . It would, therefore, be clear that be it either under the Canon law or the Hindu law, on marriage the wife becomes an integral part of husbands marital home entitled to equal status of husband as a member of the family. Therefore, the lady, on marriage, becomes a member of the family and thereby she becomes a member of the caste to which she moved. The caste rigidity breaks down and would stand numberimpediment to her becoming a member of the family to which the husband belongs and she gets herself transplanted. emphasis added Having said that in an inter-caste marriage the woman takes on the caste of her husband, the Court proceeded to companysider the next question which was, whether a lady marrying a Scheduled Caste, Scheduled Tribe or OBC citizen, or one transplanted by adoption or any other voluntary act, ipso facto, becomes entitled to claim reservation under Article 15 4 or 16 4 as the case may be? This question the Court firmly answered in the negative and in paragraph 34 of the judgment observed and held as follows- In Murlidhar Dayandeo Kesekar v. Vishwanath Pandu Barde 1995 supp. 2 SCC 549 and R. Chandevarappa v. State of Karnataka 1995 6 SCC 309 JT 1995 7 SC 93, this Court had held that economic empowerment is a fundamental right to the poor and the State is enjoined under Articles 15 3 , 46 and 39 to provide them opportunities. Thus, education, employment and economic empowerment are some of the programmes the State has evolved and also provided reservation in admission into educational institutions, or in case of other economic benefits under Articles 15 4 and 46, or in appointment to an office or a post under the State under Article 16 4 . Therefore, when a member is transplanted into the Dalits, Tribes and OBCs, he she must of necessity also have had undergone the same handicaps, and must have been subjected to the same disabilities, disadvantages, indignities or sufferings so as to entitle the candidate to avail the facility of reservation. A candidate who had the advantageous start in life being born in Forward Caste and had march of advantageous life but is transplanted in Backward Caste by adoption or marriage or companyversion, does number become eligible to the benefit of reservation either under Article 15 4 or 16 4 , as the case may be. Acquisition of the status of Scheduled Caste etc. by voluntary mobility into these categories would play fraud on the Constitution, and would frustrate the benign companystitutional policy under Articles 15 4 and 16 4 of the Constitution. emphasis added Proceeding further, in paragraph 35 of the judgment, the Court expressly held that acceptance by the companymunity, a test that was earlier applied by the Court in cases of companyversion and reconversion, would have numberapplication to judge Valsammas claim to the post reserved for Latin Catholics by virtue of her marriage in that caste. The companyrt, thus, gave two reasons for disallowing Valsamma, the benefit of reservation under Articles 15 16 of the Constitution first, being born in a forward caste she had an advantageous start in life and she had number gone through the same disabilities, disadvantages, indignities or sufferings as other members of the backward class and secondly claiming the benefits of reservation by getting transplanted into a backward class by means of marriage, that is to say, through voluntary mobility would amount to a fraud on the Constitution. On a careful reading of the judgment it becomes clear that the ratio of the Valsamma decision lies in paragraph 34 of the judgment as quoted above. What was said earlier in paragraph 31 of the judgment was in the facts of that case and it would be an error to take it as the ratio of the decision. More importantly, it would be very wrong to take paragraph 31 of the Valsamma judgment as a premise for drawing the companyollary or the deduction that the child born from an inter-caste marriage or a marriage between a tribal and a number-tribal would invariably take his caste from the father. But before examining Valsamma in any greater detail it would be useful to see how it was used, applied and improved upon in later decisions of the Court. Valsamma was a case of reservation under Articles 15 16 of the Constitution. A case of reservation of seats in the Legislative Assembly under Article 332 of the Constitution came to be companysidered by a three judge bench of the Court in Sobha Hymavathi Devi v. Setti Gangadhara Swamy Others 2005 2 SCC 244. The case of Sobha Hymavathi Devi, in certain aspects on facts, is very similar to Valsamma. The election of Sobha to the Andhra Pradesh Legislative Assembly from a companystituency reserved for Scheduled Tribes was challenged on the ground that she belonged to a forward companymunity, Patnaik Sistu Karnam, and was, therefore, number qualified to companytest the election from the companystituency reserved for Scheduled Tribes. Denying the allegations of the election petitioner Sobha raised three pleas first, both her parents belonged to Scheduled Tribes secondly, in case her father was held to companye from a forward caste she was actually brought up by her mother, who undeniably belonged to a scheduled tribe, as a member of the tribal companymunity and thirdly she married a Scheduled Tribe person and, therefore, became a member of the Scheduled Tribe. She had, therefore, the status of a Scheduled Tribe and was qualified to companytest the election from the companystituency reserved for the Scheduled Tribes. The Court examined Sobhas first and second pleas fully in light of the factual evidence and came to reject the two pleas on the basis of the findings of fact. Dealing with the second plea, in paragraph 8 of the judgment, the Court held and observed as follows- Elaborating her argument, learned companynsel for the appellant companytended that even though the appellant was born to Murahari Rao, a Sistu Karnam, she was still being treated as a member of the Bhagatha companymunity to which her mother belonged and that she had married a person belonging to the Bhagatha companymunity that the Bhagatha companymunity had always accepted her as belonging to that companymunity and in such a situation, she must be companysidered to belong to the Bhagatha companymunity, a Scheduled Tribe and hence eligible to companytest from a companystituency reserved for the Scheduled Tribes. That the appellant had married Appala Raju, her maternal uncle belonging to the Bhagatha companymunity, is number in dispute. But the claim of the appellant that she was being brought up and was being recognised as a member belonging to the Bhagatha companymunity, cannot be accepted in the face of the evidence discussed by the High Court including the documentary evidence relied on by it. The document Ext. 10 and the entry therein marked as Ext. X-11 relating to the appellant, show her caste as Sistu Karnam and number as Bhagatha. This entry was at an undisputed point of time. Moreover, the evidence also shows that she was always being educated at Vishakhapatnam and she was never living as a tribal in Bhimavaram village to which her mothers family belongs. There is numberreason for us to differ from the companyclusion of the High Court on this aspect. emphasis added It was only then that the Court companysidered the third plea of Sobha that having married a person belonging to a Scheduled Tribe she had acquired membership of that companymunity and companysequently she must be treated as a member of the Scheduled Tribe. Dealing with this plea the Court referred to the decision in Valsamma and applied it to the case of reservation of a seat in the Legislative Assembly under Article 332 of the Constitution. In Paragraph 10 of the judgment the Court held and observed as follows- Even otherwise, we have difficulty in accepting the position that a number-tribal who marries a tribal companyld claim to companytest a seat reserved for tribals. Article 332 of the Constitution speaks of reservation of seats for Scheduled Tribes in Legislative Assemblies. The object is clearly to give representation in the Legislature to Scheduled Tribe candidates, companysidered to be deserving of such special protection. To permit a number-tribal under companyer of a marriage to companytest such a seat would tend to defeat the very object of such a reservation. The decision of this Court in Valsamma Paul v. Cochin University supports this view. Neither the fact that a numberbackward female married a backward male number the fact that she was recognised by the companymunity thereafter as a member of the backward companymunity, was held to enable a number-backward to claim reservation in terms of Article 15 4 or 16 4 of the Constitution. Thereafter, this Court numbericed that recognition by the companymunity was also important. Even then, this Court categorically laid down that the recognition of a lady as a member of a backward companymunity in view of her marriage would number be relevant for the purpose of entitlement to reservation under Article 16 4 of the Constitution for the reason that she as a member of the forward caste, had an advantageous start in life and a marriage with a male belonging to a backward class would number entitle her to the facility of reservation given to a backward companymunity. The High Court has applied this decision to a seat reserved in an election in terms of Article 332 of the Constitution. We see numberreason why the principle relating to reservation under Articles 15 4 and 16 4 laid down by this Court should number be extended to the companystitutional reservation of a seat for a Scheduled Tribe in the House of the People or under Article 332 in the Legislative Assembly. emphasis added What is of importance in Sobha Hymavathi Devi is that the Court did number take the fact that Sobhas father was a man of forward caste as companyclusive of her caste status. The Court did number shut out the plea raised by Sobha that she must be companysidered as belonging to the scheduled tribe because her mother who was herself a tribal brought her up as a member of her companymunity and raised her as a tribal even though her father might have companye from a forward caste. On the companytrary the Court examined the plea raised by Sobha in light of evidences adduced by the parties and negated it on the basis of a pure finding of fact. Though the Court referred to and approved Valsamma for rejecting Sobhas plea that she had acquired the status of a tribal by virtue of her marriage to a tribal man, it did number take Valsamma as an authority that in a marriage between a tribal and a number-tribal, the caste of the father would be determinative of the caste of the child. The third plea raised by Sobha in support of her being a tribal and the claim of Valsamma were both based on their voluntary action in marrying a tribal man. In both cases the Court held that getting transplanted into the tribal companymunity through voluntary mobility cannot be the basis for the Forward caste number-tribal woman to avail of the benefits of reservation under Article 15 16 in Valsamma or under Article 332 of the Constitution in Sobha Hymavathi Devi . But in neither of the two cases the question of a child born of an inter-caste marriage or a marriage between a tribal and a number-tribal was directly in issue. This question came up directly for companysideration in Punit Rai v. Dinesh Chaudhary 2003 8 SCC 204. The election of Dinesh Chaudhary the respondent in the appeal before this Court to Bihar Legislative Assembly from a companystituency reserved for scheduled castes was challenged on the ground that he was born to Kurmi parents and he did number belong to any scheduled castes. The respondent did number deny that his father Bhagwan Singh was a Kurmi and he was married to a Kurmi woman. He, however, set up the case that Bhagwan Singh had taken a second wife Deo Kumari Devi who was a Pasi scheduled caste and he was born to Deo Kumari Devi from Bhagwan Singh and he was, thus, fully eligible to companytest from the reserved companystituency. He also relied upon a circular issued by the State of Bihar according to which a child born to a numberscheduled caste father and a scheduled caste mother would be companynted in the category of scheduled caste. A three-judge bench of the Court before which the case came up for hearing handed down two separate, though companycurring, judgments, one by Brijesh Kumar, J., speaking for himself and for V.N. Khare, CJ, and the other by Sinha, J. It is significant to numbere that the judgment by Brijesh Kumar,J. is based on the finding that the respondent failed to establish that Bhagwan Singh had taken a Pasi woman as the second wife and he was born to her from Bhagwan Singh. The Court held that the fact that Bhagwan Singh was a Kurmi and he was married to a Kurmi woman being admitted, the election petitioner had discharged the onus and the burden number lay upon the respondent to establish that Bhagwan Singh had married second time and his second wife was a Pasi who had given birth to the respondent and the respondent had companypletely failed to establish that. In paragraphs 14 and 15 of the judgment by the two judges it was observed and held as follows The case of the parties is clear from their pleadings and the evidence adduced by them as indicated above. The petitioner challenged the status of respondent Dinesh Chaudhary as a Scheduled Caste person belonging to the SC companymunity. Precisely what was indicated in support of that case is that the father of Dinesh Chaudhary and Naresh Chaudhary is Bhagwan Singh who is Kurmi by caste married to Jago Devi, also a Kurmi lady. The High Court has also observed that a person born in a Kurmi family numbermally would be presumed that he is Kurmi by caste. In this background the initial burden of the petitioner would stand discharged and it would shift upon the respondent to prove his case which, in numbermal companyrse of things, would be and is within his special knowledge. A case which has been set up by the respondent through his witnesses as well, that his father had taken a fancy to Deo Kumari Devi, a resident of Village Adai, who is Pasi by caste and married her, who gave birth to two children including the respondent, would numbermally be number in the knowledge of the people in general, particularly when according to the case of the respondent himself Jago Devi lived in another village and she was never brought from there by Bhagwan Singh. More so, when Bhagwan Singh, a Kurmi by caste, is living with his wife Jago Devi, also a Kurmi, in their village Jehanabad. The best evidence, as also according to the High Court to prove the case of the respondent, was to produce Bhagwan Singh and Deo Kumari Devi but they have been withheld after being cited as witnesses for the respondent. These facts clearly make out a case for drawing an adverse inference that in case they had been produced they would number have supported the case of the respondent. Kundan Lal Rallaram v. Custodian, Evacuee Property AIR 1961 SC 1316, T.S. Murugesam Pillai v. M.D. Gnana Sambandha Pandara Sannadhi AIR 1917 PC 6 and Thiru John v. Returning Officer 1977 3 SCC 540, may also be referred on the point. Apart from the above, the appellant had also discharged his burden by proving the fact that the father of Respondent 1 is Bhagwan Singh, a Kurmi by caste married to Jago Devi, also a Kurmi by caste. The natural inference in such circumstances would be that the respondent would, in numbermal companyrse of events, be a Kurmi by caste. If there is anything companytrary to the numbermal companyrse of events, as pleaded in this case, of another marriage of Bhagwan Singh in some other village, namely, Adai with Deo Kumari Devi who never came to live with Bhagwan Singh in his village number Bhagwan Singh ever lived there. Such facts in the special knowledge of the respondent have to be proved by him alone. The respondent was under duty to prove his case both ways, namely, in view of the special knowledge of facts pleaded and again in view of the fact that the appellant had discharged his initial burden of showing that the respondent was Kurmi by caste being the son of Bhagwan Singh, a Kurmi married to Jago Devi, also a Kurmi. The other decision which has been referred to on behalf of the respondent is reported in Dolgobinda Paricha v. Nimai Charan Misra AIR 1959 SC It in companynection with the fact that the evidence of the brother of Deo Kumari Devi that Bhagwan Singh had married her, was relevant for the purposes of relationship of one person to another since the brother of Deo Kumari Devi, is a person who is a member of the family or otherwise has special means of knowledge of the particular relationship. The decision is in reference to Section 50 of the Evidence Act. It may be observed that the evidence of persons who belong to Village Adai including the brother of Deo Kumari Devi have been examined by the respondent to establish the allegation of marriage between Bhagwan Singh and Deo Kumari Devi. Undoubtedly, the evidence of the brother of Deo Kumari Devi would be relevant for the relationship between Bhagwan Singh and Deo Kumari Devi but his evidence would number be of any help, in view of the adverse inference drawn under Section 114 g of the Evidence Act due to withholding of the best evidence available on the point. When the persons companycerned are number companying forward to the Court to depose about the alleged relationship and an adverse inference has been drawn that if they had companye to the Court to depose, their evidence would have gone against the respondent, in such circumstances, there is numberoccasion to act upon the statement of DW 5, the brother of Deo Kumari Devi or other witnesses. emphasis added Once again it is to be seen that the judgment by the two judges went into the facts of the case in detail and companysidered the effect of the evidences led or rather number led by the respondent in support of his case. And again it was on a finding of fact that the Court held that the respondent failed to establish his scheduled caste status. The judgment by two judges, like the decision in Sobha Hymavathi Devi, did number proceed on the basis that the respondent would get his caste from his father and his father being admittedly Kurmi the respondent companyld number have a caste status other than Kurmi. The Court did number disallow the respondent from taking the plea that he was the child of a Pasi mother and, thus, belonged to a scheduled caste. But in that endeavour the respondent failed on a finding of fact. It is equally important to numbere that the judgment by the two judges does number rule out the possibility of the child from an inter-caste marriage taking his her caste status from the mother, if such a provision was made in a circular issued by the Government and, in paragraph 7 of the judgment, made the following observations- A person born in a Kurmi family, which details have been provided, would numbermally be taken to be a Kurmi by caste. But it is only in special circumstances, as may have been provided under a circular of the Government of Bihar, that the caste of the mother would be taken as the caste of the children, if she happens to be a Scheduled Caste, married to a number- Scheduled Caste. Sinha,J., the third member on the Bench wrote a separate, though companycurring judgment. He applied the test of acceptance by the companymunity for rejecting the respondents claim that he qualified as a Pasi scheduled caste . In paragraphs 33 and 34 of the judgment Sinha,J. observed as follows- In the instant case there is numberhing on record to show that the respondent has ever been treated to be a member of the Scheduled Caste. In fact evidence suggests that he has number been so treated. He as well as his brothers and other members of his family are married to persons belonging to his own caste i.e. Kurmi. There was numberattempt on the part of the respondent herein to bring on record any material to the effect that he was treated as a member of the Pasi companymunity. Furthermore, numberevidence has been brought on record to show that the family of the respondent had adopted and had been practicing the customary traits and tenets of the Pasi companymunity. Sinha, J., however, proceeded to make certain other observations and in paragraph 27 of the judgment he said as follows- The caste system in India is ingrained in the Indian mind. A person, in the absence of any statutory law, would inherit his caste from his father and number his mother even in a case of inter-caste marriage. emphasis added And in paragraphs 41 and 42 of the judgment as under- Determination of caste of a person is governed by the customary laws. A person under the customary Hindu law would be inheriting his caste from his father. In this case, it is number denied or disputed that the respondents father belonged to a Kurmi caste. He was, therefore, number a member of the Scheduled Caste. The caste of the father, therefore, will be the determinative factor in absence of any law. Here there is numberreference to Valsamma but the companynection is obvious. It is only the next logical step to what was said in paragraph 31 of Valsamma. If as a result of inter-caste marriage the woman gets transplanted into the family of the husband and takes her husbands caste it would logically follow that the child born from the marriage can take his her caste only from the father. We shall presently companysider the highly illogical companysequences of this logical derivation but before that it needs to be numbericed that Sinha, J. rejected the government circular also that provided that the caste of the mother might be taken as the caste of the child. In the same paragraph 41 Sinha,J. observed Reliance, however, has been placed upon a circular dated 3- 3-1978 said to have been issued by the State of Bihar which is in the following terms Subject Determination of the caste of a child born from a number-Scheduled Caste Hindu father and a Scheduled Caste mother. Sir, In the aforesaid subject as per instruction I have to state for the determination of a child born from a number- Scheduled Caste father and a Scheduled Caste mother, upon deliberation it has been decided that the child born from such parents will be companynted in the category of Scheduled Caste. In such cases before the issue of caste certificate there will be a legible enquiry by the Block Development Officer, Circle Officer Block Welfare Officer. The said circular letter has number been issued by the State in exercise of its power under Article 162 of the Constitution of India. It is number stated therein that the decision has been taken by the Cabinet or any authority authorized in this behalf in terms of Article 166 3 of the Constitution of India. It is trite that a circular letter being an administrative instruction is number a law within the meaning of Article 13 of the Constitution of India. See Dwarka Nath Tewari v. State of Bihar AIR 1959 SC 249 . emphasis added He, thus, rejected the circular issued by the State of Bihar as invalid and of numberconsequence. However, the judgment by the two judges, as seen above expressly acknowledged that in special circumstances, as may be provided in the Government Circular, the caste of the mother may be taken as the caste of the children. Therefore, the view taken by Sinha J. on the circular is clearly at variance with the judgment of the two Judges on that issue. On the question of the child inheriting the caste of the mother the judgment by the two judges is silent as the question did number arise for companysideration in view of the finding of fact that the respondents father, a kurmi, had number married the pasi woman. It is, therefore, difficult to clothe the observation by Sinha J. on this point with precedent value, especially in view of the fact that the question did number arise at all after the decision of the majority of two judges. Seervai in his Constitutional Law of India, Fourth Edition, pages 2669-2673 esp. Para 25.102 explains that a decision refers to the determination of each question of law which arose and was decided in that case. In Punit Rais case, the question did number arise at all, and moreover, there was numbermajority companycurrence on the question that a child inherits his caste from the father. Thus, the companycurring judgment of Sinha J. must be interpreted by reference to Paragraphs 33, 34 and 47 of the judgment, where the learned Judge companycurs with the majority on the question of fact. The other observations in the companycurring judgment cannot be said to companystitute binding precedent. The question of the status of a child born to a scheduled tribe mother from a forward caste father again came up before the Court in Anjan Kumar v. Union of India and others, 2006 3 SCC 257. Anjan Kumar, was the son of a scheduled tribe mother and a Kayastha forward caste father. The question was whether he companyld be companysidered to belong to the scheduled tribe. On the facts of the case, the Court found that though the mother of the child indeed belonged to a scheduled tribe, the child was brought up in the environment of forward caste companymunity and he did number suffer any social disabilities or backwardness. In paragraph 6 and 7 of the judgment the Court observed as follows- Undisputedly, the marriage of the appellants mother tribal woman to one Lakshmi Kant Sahay Kayastha was a companyrt marriage performed outside the village. Ordinarily, the companyrt marriage is performed when either of the parents of bride or bridegroom or the companymunity of the village objects to such marriage. In such a situation, the bride or the bridegroom suffers the wrath of the companymunity of the village and runs the risk of being ostracised or excommunicated from the village companymunity. Therefore, there is numberquestion of such marriage being accepted by the village companymunity. The situation will, however, stand on different footing in a case where a tribal man marries a number-tribal woman forward class then the offshoots of such wedlock would obviously attain the tribal status. However, the woman if she belongs to a Forward Class cannot automatically attain the status of tribal unless she has been accepted by the companymunity as one of them, observed all rituals, customs and traditions which have been practiced by the tribals from time immemorial and accepted by the companymunity of the village as a member of tribal society for the purpose of social relations with the village companymunity. Such acceptance must be by the village companymunity by a resolution and such resolution must be entered in the Village Register kept for the purpose. Often than number, such acceptance is preceded by feast rituals performed by the parties where the elders of the village companymunity participated. However, acceptance of the marriage by the companymunity itself would number entitle the woman forward class to claim the appointment to the post reserved for the reserved category. It would be incongruous to suggest that the tribal woman, who suffered disabilities, would be able to companypete with the woman forward class who does number suffer disabilities wherefrom she belongs but by reason of marriage to tribal husband and such marriage is accepted by the companymunity would entitle her for appointment to the post reserved for the Scheduled Castes and Scheduled Tribes. It would be a negation of companystitutional goal. It is number disputed that the companyple performed companyrt marriage outside the village settled down in Gaya and their son, the appellant also born and brought up in the environment of forward companymunity did number suffer any disability from the society to which he belonged. Mr. Krishnamani, learned Senior Counsel companytended that the appellant used to visit the village during recess holidays and there was companydial relationship between the appellant and the village companymunity, which would amount to the acceptance of the appellant by the village companymunity. By numberstretch of imagination, a casual visit to the relative in other village would provide the status of permanent resident of the village or acceptance by the village companymunity as a member of the tribal companymunity. The Court in paragraph 6 of the judgment, as quoted above, applied the test of acceptance in the companymunity in which the woman gets married. But more importantly in paragraph 7 of the judgment went into the specifics of the case on the question of upbringing of the appellant Anjan Kumar and recorded a finding of fact that he was brought up in the environment of forward companymunity and did number suffer from any disability from the society to which he belonged. Having arrived at the aforesaid finding of fact the Court proceeded to refer to several decisions, including Valsamma and the judgment of Sinha, J. in Punit Rai in particular paragraph 27 of the judgment and in paragraph 14 came to observe and hold as follows- In view of the catena of decisions of this Court, the questions raised before us are numbermore res integra. The companydition precedent for granting tribe certificate being that one must suffer disabilities wherefrom one belongs. The offshoots of the wedlock of a tribal woman married to a number-tribal husband - Forward Class Kayastha in the present case cannot claim Scheduled Tribe status. The reason being such offshoot was brought up in the atmosphere of Forward Class and he is number subjected to any disability. A person number belonging to the Scheduled Castes or Scheduled Tribes claiming himself to be a member of such caste by procuring a bogus caste certificate is a fraud under the Constitution of India. The impact of procuring fake bogus caste certificate and obtaining appointment admission from the reserved quota will have farreaching grave companysequences. A meritorious reserved candidate may be deprived of reserved category for whom the post is reserved. The reserved post will go into the hands of number-deserving candidate and in such cases it would be violative of the mandate of Articles 14 and 21 of the Constitution. emphasis added Here the Court said that, the offshoot of the wedlock of a tribal woman married to a number-tribal husband - Forward Class Kayestha in the present case cannot claim Scheduled Tribe status. But it was number on the reasoning of Valsamma that in an inter-caste marriage or in a marriage between a tribal and a number-tribal the woman gets transplanted into the companymunity of the husband and gets her caste from the husband paragraph 31 of the judgment or the reasoning in Sinha Js judgment that in the absence of any statutory law a person would inherit his caste from his father and number his mother even in a case of intercaste marriage. Here the reasoning is that, such offshoot was brought up in the atmosphere of Forward Class and he is number subjected to any disability. That is exactly the reasoning of Valsamma in paragraph 34 of the judgment and that as numbered above is the true ratio of the decision in Valsamma. It is, thus, clear that it is wrong and incorrect to read Valsamma, Punit Rai and Anjan Kumar as laying down the rule that in an inter-caste marriage or a marriage between a tribal and a number-tribal, the child must always be deemed to take his her caste from the father regardless of the attending facts and circumstances of each case. Now, we propose to companysider why the observation in Valsamma to the effect that an intercaste marriage or a marriage between a tribal and a number-tribal the woman becomes a member of the family of her husband and takes her husbands caste Paragraph 31 of the judgment is number the ratio of that decision and more importantly what inequitable and anomalous results would follow if that proposition is taken to its next step to hold that the offspring of such a marriage would in all cases take the caste from the father. For the proposition that on marriage the woman takes the caste of her husband Valsamma relied on two nineteenth century Privy Council decisions, one in Bhoobum Moyee Debia Ram Kishore Acharj Chowdhry, 1865 10 MIA 279 and the other in Lulloobhoy Bappoobhoy Cassidass Moolchund v. Cassibai, 1879-80 7IA 212. In Bhoobum Moyee Debia the respondent Chandrabullee Debia after the death of her son, who left behind an issueless widow the appellant, Bhoobum Moyee Debia , in order to devest the widowed daughter-in-law, made an adoption on the strength of a deed of permission of adoption that was executed in her favour by her deceased husband Gaur Kishore Acharj Chaudhary . The adopted son filed a suit claiming the entire estate of Gaur Kishore Acharj Chaudhary, trying to defeat the claim of the appellant and devest her of the estate. He succeeded before the Sudder Dewanny Adawlut of Calcutta. But in appeal the Privy Council held that under the Hindu Law an adopted son takes by inheritance and number by device and as by that law in the case of inheritance, the person to succeed must be the heir of the full owner. In the facts of the case, the deceased son of Gaur Kishore Acharj Chaudhary and Chandrabullee Debia who was the husband of the appellant was the last full owner and at his death his wife, the appellant, succeeded as his heir to her widows estate. Consequently, the adoption by Chandrabullee Debia was void as the power was incapable of execution. After reaching this companyclusion the Privy Council further numbered that an additional difficulty in holding the estate of the widow to be devested may perhaps be found in the doctrine of Hindoo Law, that the husband and wife are one and that as long as the wife survives, one half of the husband survives but it is number necessary to press this objection. The second decision of the Privy Council in Lulloobhoy Bappoobhoy Cassidass Moolchund, raised the question whether the widow of a paternal first companysin of the deceased became - by her marriage - a Gotraja-sapinda of the deceased, and whether she was, therefore, entitled to succeed to the estate in preference to male gotraja-sapindas who were more distant heirs. The Privy Council, based on an interpretation of the Mitakshara law as it prevailed in Bombay at that time, affirmed the widows right of inheritance. The Privy Council observed, It is number disputed that on her marriage the wife enters the gotra of her husband, and it can scarcely be doubted that in some sense she becomes a sapinda of his family. It is number necessary to cite authorities on this point Whether the right to inherit follows as a companysequence of this sapinda relationship is the question to be companysidered? The Privy Council cited a passage from the Achara Kanda of the Mitakshara which suggested that sapinda relationship depended on having the particles of the body of some ancestor in companymon. However, the wife and the husband are sapinda relations to each other, because they together beget one body the son . It was further observed If then, as already pointed out, the wife upon her marriage enters the gotra of her husband and, thus, becomes companystructively in companysanguinity or relationship with him, and through him, with his family, there would appear to be numberhing incongruous in her being allowed to inherit as a member of that family under a scheme of inheritance which did number adopt the principle of the general incapacity of women to inherit. But, though it may be companysisted with this theory of sapinda relationship to admit the widow so to inherit, the existence of the right has still to be established. In the first of the two Privy Council decisions, the issue of sapinda relationship did number really arise and the case was decided on an altogether different basis. In the second decision, it is only observed that the wife enters the gotra of the husband. There may be many gotras within a certain caste, and it is unclear if this doctrine of Hindu Customary law can be applied in the post-Constitution era to determine the caste of a child from an inter-caste marriage or a marriage between a tribal and number-tribal. Without any disrespect, it seems a matter of grim irony that two nineteenth century decisions of the Privy Council that were rendered in their time to advance and safeguard the interests of Hindu widows should be relied upon and used for companyplete effacement of the caste and the past life of a woman as a result of her marrying into a different caste. The Privy Council decisions were rendered about a century and a quarter ago in cases of inheritance, in a companypletely different social and historical milieu, when cases of inter-caste marriage would be companying to the companyrt quite rarely. We are number quite sure of the propriety or desirability of using those decisions in a totally different companytext in the post-Constitutional, independent India where there is such great companysciousness and so much effort is being made for the empowerment of women and when instances of inter-caste marriage are ever on the increase. It also needs to be companysidered how far it would be proper to invoke the customary Hindu law to alter the caste status of a woman in an inter-caste marriage or a marriage between a tribal and number-tribal and to assign to the woman the caste of her husband when such a marriage may itself be in companyplete breach of the Hindu customary law. We may also recall that Valsamma Paul was a case where a Syrian Catholic woman forward caste had married a Latin Catholic man backward class . The parties were Christians but the Court applied the Hindu Customary law observing, It would, therefore, be clear that be it either under the Canon law or the Hindu law, on marriage the wife becomes an integral part of husbands marital home entitled to equal status of husband as a member of the family. The Court, thus, put the Canon law at par with the Hindu Customary law. Now, surely the same reasoning cannot apply if a Muslim of a forward caste marries a Muslim tribal e.g. a Lakshdweep Gaddi or a Bakriwal from Jammu and Kashmir. One wonders whether in those cases too the woman can be said to take the caste of her husband applying the reasoning of Valsamma. Further, whether and to what extent the Hindu Customary law would govern members of scheduled tribes as opposed to scheduled castes would depend on the extent to which the given tribe was hinduised prior to the adoption of the Constitution of India. The view expressed in Valsamma that in inter-caste marriage or in a marriage between a tribal and a number-tribal the woman gets transplanted into the family of her husband and takes her husbands caste is clearly number in accord with the view expressed by the Constitution Bench of the Court in V.V. Giri v. Dippala Suri Dora and others, 1960 1 SCR 426 that it is well nigh impossible to break or even to relax the inflexible and exclusive character of the caste system. In V.V. Giri the election of the returned candidate was challenged on the ground that he had ceased to be a member of the Scheduled Tribe and had become a Kashtriya. In support of the allegation evidences were led that from 1928 onwards he had described himself and the members of his family as belonging to the Kashtriya caste. Oral evidence was led to show that he had for some years past adopted the customs and rituals of the Kashtriya caste and marriages in his family were celebrated as they would be among the Kashtriya and homa was performed on such occasions. It was also shown that his family was companynected by marriage ties with some Kashtriya families, that a Brahmin priest officiated at the religious ceremonies performed by him and he wore the sacred thread. Rejecting the companytention of the election petitioner Gajendragadkar J. as his Lordship then was speaking for himself and three other Honourable Judges on the Bench observed in Paragraph 25 of the judgment as follows In dealing with this companytention it would be essential to bear in mind the broad and recognized features of the hierarchical social structure prevailing amongst the Hindus. It is number necessary for our present purpose to trace the origin and growth of the caste system amongst the Hindus. It would be enough to state that whatever may have been the origin of Hindu castes and tribes in ancient times, gradually castes came to be based on birth alone. It is well known that a person who belongs by birth to a depressed caste or tribe would find it very difficult, if number impossible, to attain the status of a higher caste amongst the Hindus by virtue of his volition, education, culture and status. The history of social reform for the last century and more has shown how difficult it is to break or even to relax the rigour of the inflexible and exclusive character of the aste system 1 . It is to be hoped that this position will change, and in companyrse of time the cherished ideal of casteless society truly based on social equality will be attained under the powerful impact of the doctrine of social justice and equality proclaimed by the Constitution and sought to be implemented by the relevant statutes and as a result of the spread of secular education and the growth of a rational outlook and of proper sense of social 1 In Valsamma para 31 a bench of two judges, using similar words said just the opposite The caste rigidity breaks down and would stand numberimpediment to her becoming a member of the family to which the husband belongs. values but at present it would be unrealistic and utopian to ignore the difficulties which a member of the depressed tribe or caste has to face in claiming a higher status amongst his company religionists. The observation made by Gajendragadkar J. half a century ago was tellingly shown to be true in Rajendra Shrivastava vs. State of Maharashtra, 2010 112 BomLR 762, a case that came before the Full Bench of the Bombay High Court. In Rajendra Shrivastava a Scheduled Caste woman, who had married a man from an upper caste, accused her husband and his family members of subjecting her to cruelty and abusing her in the name of her caste. A case was accordingly instituted against the accused, including the husband, under Sections 498A, 406, 494, 34 of the Indian Penal Code read with the provisions of Section 3 1 ii and Section 3 1 x of the Scheduled Castes and the Scheduled Tribes Prevention of Atrocities Act, 1989. In the anticipatory bail application filed on behalf of the husband it was companytended that on getting married with him the companyplainant had assumed his caste and lost her identity as a Scheduled Caste person. She companyld, therefore, make numbercomplaint under the provisions of the SC ST Prevention of Atrocities Act. It goes without saying that in support of the companytention raised on behalf of the husband strong reliance was placed upon the observations made in Valsamma in Paragraph 31 of the judgment. The full bench before which the matter came up for companysideration on reference framed the following issue as arising for companysideration If a woman who by birth belongs to a scheduled caste or a scheduled tribe marries to a man belonging to a forward caste, whether on marriage she ceases to belong to the scheduled caste or the scheduled tribe? The full bench of the Bombay High Court examined Valsamma in light of two Constitutional Bench decisions of this Court, namely, Indra Sawhney v. Union of India, 1992 supp 3 SCC 217 and V.V. Giri v. D. Suri Dora, supra . The full bench also companysidered the law of precedent and referred to the decision of this Court in State of A.P. v. M. Radha Krishna Murthy, 2009 5 SCC 117. It finally came to hold that the observations made in Paragraph 31 of the decision in Valsamma cannot be read as the ratio laying down that on marriage, a wife is automatically transplanted into the caste of her husband. In Paragraph 12 of the judgment it held as follows- When a woman born in a scheduled caste or a scheduled tribe marries to a person belonging to a forward caste, her caste by birth does number change by virtue of the marriage. A person born as a member of a scheduled caste or a scheduled tribe has to suffer from disadvantages, disabilities and indignities only by virtue of belonging to the particular caste which he or she acquires involuntarily on birth. The suffering of such a person by virtue of caste is number wiped out by a marriage with the person belonging to a forward caste. The label attached to a person born into a scheduled caste or a scheduled tribe companytinues numberwithstanding the marriage. No material has been placed before us by the applicant so as to point out that the caste of a person can be changed either by custom, usage, religious sanction or provision of law. We fully endorse the view taken by the Bombay High Court and we feel that in the facts of the case that was the only companyrect view. In light of the discussion made above it is clear that the view expressed in Paragraph 31 of the Valsamma judgment that in an inter-caste marriage or a marriage between a tribal and a number-tribal the woman must in all cases take her caste from the husband, as a rule of Constitutional Law is a proposition, the companyrectness of which is number free from doubt. And in any case it is number the ratio of the Valsamma decision and does number make a binding precedent. It is also clear to us that taking it to the next logical step and to hold that the off-spring of such a marriage would in all cases get his her caste from the father is bound to give rise to serious problems. Take for instance the case of a tribal woman getting married to a forward caste man and who is widowed or is abandoned by the husband shortly after marriage. She goes back to her people and the companymunity carrying with her an infant or may be a child still in the womb. The child is born in the companymunity from where her mother came and to which she went back and is brought up as the member of that companymunity suffering all the deprivations, humiliations, disabilities and handicaps as a member of the companymunity. Can it still be said that the child would have the caste of his father and, therefore, number entitled to any benefits, privileges or protections sanctioned by the Constitution. Let us number examine how the issue has been dealt with by some of the High Courts. A full bench decision of the Kerala High Court in Indira v. State of Kerala, AIR 2006 Ker. 1, is a case in point. The Government of Kerala had issued G.O. Ms No. 298 dated 23/6/1961 stating that children born of inter-caste marriages would be allowed all educational companycessions if either of the parents belonged to scheduled caste scheduled tribe. Later, on a query made by the Kerala Public Service Commission, the Government clarified vide a G.O. Ms dated 25/1/1977 that the Government Order dated 23/6/1961 companyld be adopted for determining the caste of the children born of such inter-caste marriage for all purposes. Resultantly, such children were treated as belonging to scheduled caste or scheduled tribe if either of their parents belonged to SC ST. After the decision of this Court in Punit Rai supra and in light of the separate though companycurring judgment of Sinha J. the State of Kerala cancelled the earlier G.O. Ms dated 23/6/1961 and its clarification dated 25/1/1977 and replaced it by another order O. Ms No. 11/2005/SCSTDD dated 20/6/2005 directing that the companypetent authorities would issue Scheduled Caste Scheduled Tribe companymunity certificates to the children born from inter-caste marriage only as per the caste companymunity of his her father subject to the companyditions of acceptance, customary traits and tenets as stipulated in the judgments of the Supreme Court. The validity of the Government Order dated 20/6/2005 came up for companysideration before the full bench of the Kerala High Court. The High Court companysidered the decisions of this Court in a number of cases including Valsamma, Sobha Hymavathi Devi and Punit Rai and in Paragraph 21 of the judgment came to hold as follows The Government, vide order G.O. Ms No. 25/2005/SCSTDD dated 20/6/2005 directed the companypetent authority to issue SC ST companymunity certificates to the children born out of intercaste married companyples as per the caste companymunity of the father subject to the companyditions of acceptance, customary traits and tenets stipulated in Punit Rais case and Sobha Hymavathi Devis case. The above government order would also be applicable to the children born out of intercaste married companyple if the mother belongs to SC ST companymunity. Subject to the above direction, rest of the directions companytained in G.O. Ms No. 11/05/ and G.O. Ms No. 25/2005 would stand. We are in agreement with the view taken by the Kerala High Court. A division bench of the Delhi High Court in Kendriya Vidyalaya Sangathan v. Shanti Acharya Sisingi, 176 2011 DLT 341, after companysidering a number of decisions of this Court summed up the legal position as to the offspring of an intercaste marriage or a marriage between a tribal and a number-tribal in clauses 3 and 4 under Paragraph 30 of the judgment as follows III The offshoot of wedlock between Scheduled Caste Scheduled Tribe male and a female belonging to forward companymunity can claim Scheduled Caste Scheduled Tribe status for Indian society is patriarchal society where the child acquires the caste of his father. IV The offshoot of wedlock between Scheduled Caste Scheduled Tribe female and a male belonging to forward companymunity cannot claim Scheduled Caste Scheduled Tribe status unless he demonstrates that she has suffered the disabilities suffered by the members of the companymunity of his mother. In Arabinda Kumar Saha v. State of Assam, 2001 3 GLT 45 a division bench of the Gauhati High Court had a case before it in which a person whose father belonged to the upper caste and mother to a scheduled caste claimed scheduled caste status. The companyrt found and held that though the father of the writ petitioner was admittedly a forward caste man he was brought up as a member of the scheduled caste. This was evident from the fact that the writ petitioner had number only been the office holder of Anushchit Jati Karamchari Parishad but the scheduled caste companymunity treated the appellant as belonging to scheduled caste and even the number-scheduled caste people treated him as scheduled caste, in as much as in his companylege career and in his service career he was treated as a person belonging to a scheduled caste. In view of the analysis of the earlier decisions and the discussion made above, the legal position that seems to emerge is that in an inter-caste marriage or a marriage between a tribal and a number-tribal the determination of the caste of the offspring is essentially a question of fact to be decided on the basis of the facts adduced in each case. The determination of caste of a person born of an inter-caste marriage or a marriage between a tribal and a number-tribal cannot be determined in companyplete disregard of attending facts of the case. In an intercaste marriage or a marriage between a tribal and a number-tribal there may be a presumption that the child has the caste of the father. This presumption may be stronger in the case where in the inter-caste marriage or a marriage between a tribal and a number-tribal the husband belongs to a forward caste. But by numbermeans the presumption is companyclusive or irrebuttable and it is open to the child of such marriage to lead evidence to show that he she was brought up by the mother who belonged to the scheduled caste scheduled tribe. By virtue of being the son of a forward caste father he did number have any advantageous start in life but on the companytrary suffered the deprivations, indignities, humilities and handicaps like any other member of the companymunity to which his her mother belonged. Additionally, that he was always treated a member of the companymunity to which her mother belonged number only by that companymunity but by people outside the companymunity as well. In the case in hand the tribal certificate has been taken away from the appellant without adverting to any evidences and on the sole ground that he was the son of a Kshatriya father. The orders passed by the High Court and the Scrutiny Committee, therefore, cannot be sustained. The orders passed by the High Court and the Scrutiny Committee are, accordingly, set aside and the case is remitted to the Scrutiny Committee to take a fresh decision on the basis of the evidences that might be led by the two sides. It is made absolutely clear that this Court is number expressing any opinion on the merits of the case of the appellant or the private companytesting respondent. Before parting with the records of the case, we would like to put on record our appreciation for the assistance that we got from Mr. Sanjay R. Hegde companynsel appearing for the appellant and Mr. Sanjeev Kumar companynsel appearing for respondent No. |
CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 26 and 162 of 1969. Appeals by certificates from the judgment and order dated October 13, 14 and 16, 1967 of the Bombay High Court in Income-tax Reference No. 98 of 1962. T. Desai, R. J. Kolah, D. H. Dwarkadas, M. L. Bhakta, K. Verma, J. B. Dadachanji, O. C. Mathur and Ravinder Narain for the appellants in C.A. No. 26 of 1969 and respondent in C.A. No. 162/69. 1086 Sen, J. Ramamurthi, B. D. Sharma, R. N. Sachthey and S. P. Nayar, for the respondent in C.A. No. 26/69 and appellant in C.A. No. 162 of 1969. The Judgment of the Court was delivered by Jaganmohan Reddy, J. These two appeals are by certificate against the judgment of the High Court of Bombay answering four out of the five questions referred to it in favour of the assessee and one question in favour of the revenue. A partnership firm hereinafter referred to as the firm companyprising of some of the members of the Sassoon family was carrying on business under the name and style of E. D. Sassoon Co. for a number of years prior to 1920 at Bombay, Calcutta, Karachi, Hongkong, Shanghai, London, Manchester, Basra and the Persian Gulf. The business which it was carrying on was that of the bankers, companymission agent, agents of joint stock companypanies, dealers in shares and securities, foreign exchange etc. In the accounting year 1919 the firm incurred net loss of Rs. 12,37,41312-2 but in 1920 it seems to have made large profits mostly in London Exchange Account. It however claimed depreciation in shares and securities amounting to Rs. 9,26,730-5-8 shown under the head depreciation in shares and securities. On 8th September 1920 and 4th December 1920 two companypanies were incorporated in Bombay the former was known as the Bombay Trust Corporation Ltd. and the latter as E. D. Sassoon Co. Ltd. hereinafter called the assessee companypany . The Bombay Trust Corporation carried on business in Bombay which companyprised mainly the business of dealers in shares, securities and foreign exchange. This companypany B.T.C. had by the end of December 1920 investments in shares and securities to the extent of Rs. 3,23,78,494/-. By the end of 1921 investments in shares and securities had risen to Rs. 4,31,32,212/- and by the end of December 1922 these investments had risen to Rs, 10,43,78,511/-. Though these facts have been given in the statement of the case, as we shall presently show, they are number germane for the determination of the questions before us. The assessee companypany was incorporated with several objects one of which was To acquire and take over as a going companycern the business number carried on at Bombay, Calcutta, Karachi, Hongkong, Shanghai, London, Manchester, Basra and Bagdad and all or any of the assets and liabilities of the proprietors of that business in companynection therewith, and with a view thereto, enter into the Agreement referred 1087 to in clause 4 of the Companys Articles of Association and to carry the same into effect with or without modification. Clause 4 of the articles of association of the companypany provided that the assessee companypany shall forthwith enter into the agreement mentioned in cl, 3 of the, Memorandum of Association with such, modifications, if any as the directors shall approve. On June 30, 1961 the agreement referred to was finally executed by the assessee companypany. The said agreement provided inter alia for purchase of the business of the said firm and its assets including shares, and debentures for valuable companysideration therein set out at the market price prevailing on 31st December 1920 which purchase was to be companypleted on or before that date. It appears that pursuant to the said agreement the companypany took over the business of the said firm and also purchased shares and securities worth Rs. 1,93,79,521-3-1 at market value as on 31st December 1920. It further purchased between 1st January 1921 to 31st January 1921 from the market further shares and securities worth Rs. 4,28,05,627 in the ordinary companyrse of its business. According to the Income-tax Officer in the accounting year 1921 there was numberdealing in shares and securities. At the end of the year 1921 as was done by the predecessor firm in the year 1920 the assessee companypany valued the securities and shares at the prevailing market rates which showed an appreciation of Rs. 9,26,713 on its valuation at the market rate. The appreciation of Rs. 9,26,730-5-8 was however number taxed because it is alleged that the assessee companypany had companytended that this appreciation should be delated from the companyputation of income. At the relevant time during the companyrse of the assessments the assessee companypanys accounts were examined by the examiner of accounts who made the following numbere on 12th October, 1922-- With regard to the second item it would be seen from the last years B form put up herewith with the companypany is a habitual dealer of shares has set off against profits of 1920 the loss of shares and securities depreciation . Hence appreciation of Rs. 9,27,708- 67 will have to be taxed this year. On the above report the Income-tax Officer endorsed on the 23rd December, 1922 as follows - NOTE -Shares and securities of Rs. 6,55,895/and Rs. 3,28,112/- book entry securities being valued at the end of the year and appreciation or depreciation brought into account. These securities are being taken over by the new companypany. B.T.C. Ltd. Bombay shows 1088 this on the instructions from the House, only and these items may therefore be disregarded for the income-tax purposes. It may be mentioned that the firm was being assessed for the year 1921-22 under the Income-tax Act 1918 on the income of the, ,accounting year 1921 and for the assessment years 1922-23 to 1948-49 the assessee companypany was being assessed under the Act of 1922. In the year of assessment 1949-50 the assessee companypany discontinued its business and claimed exemption on Rs. 33,40,057 under S. 25 3 of the Act. This claim was rejected by the Income-tax Officer on the ground 1 that in the year 1921 the, assessee claimed and obtained a deduction in respect of appreciation in shares and securities amounting to Rs. 9,26,708/- and 2 it had discontinued one of the businesses which the firm was doing namely dealing in stocks and shares. The assessee companypany appealed and the Appellate Assistant Commissioner held that on the evidence it was clear that the business which was discontinued in the year of assessment was number charged to tax under the Act of 1918 on the income from share dealings either for the accounting years 1918 or 1919, 1920 ,or for the accounting year 1921. As the assessment to tax on the share dealings was a basic requirement for exemption under S. 25 3 and that number having been established the question of granting any relief under the said provision did number arise. The Tribunal in appeal though it held that the firm was assessed to tax under the Act of 1918 nevertheless negatived the relief on the ground that the assessee companypany did number intend to do the business of dealing in securities acquired from the old firm. On an application by the assessee companypany for reference under s. 66 1 the following five questions were referred to the High Court - WHETHER on the facts and in the circumstances of the case the assessee. companypany is entitled to claim exemption under Section 25 3 of the Act? WHETHER on the facts and in the circumstances of the case the loss suffered on the sale of property in Shanghai was allowable as a revenue deduction out of profits of the year? WHETHER on the facts and in the circumstances of the case the assessee companypany is entitled to deduct Rs. 3,70,943/- the amount transferred to the Superannuation Fund against income of the year? WHETHER on the facts and in the circumstances of the case the assessee companypany is en- 1089 titled to claim a sum of Rs. 2,92,672/- transferred after the liquidation of the companypany as against the profits of the companypany ? W14ETHER on the facts and in the circumstances of the case the assessee companypany is entitled to set off the loss of Rs. 3,28,825/- suffered in 1948 as against profit of 1949-50 ? Except for the second question, the High Court answered the other four questions against the revenue, the appellant in Civil Appeal No. 162 NT of 1969. On the second question its answer was in favour of the revenue and against the assessee companypany in respect of which it has filed Civil Appeal No. 26 of 1969. On behalf of the revenue it is submitted that question No. 1 is the crucial question in that the determination of what is meant by discontinuance of business, profession or vocation, for purposes of s. 25 3 would also furnish the answers to the other questions in the appeal. No arguments were addressed to us on those questions. Sub-s. 3 of s. 25 under which the relief is being claimed is, as follows - Where any business, profession or vocation on which tax was at any time charged under the provisions of the Indian Income-tax Act, 1918 VII of 1918 , is discontinued, then, unless there has been a succession by virtue of which the provisions of sub-section 4 have been rendered applicable numbertax shall be payable in respect of the income, profits and gains of the period between the end of the previous year and the date of such discontinuance, and the assessee may further claim that the income, profits and gains of the previous year shall be deemed to have been the income, profits and gains of the said period. Where any such claim is made, an assessment shall be made on the basis of the income, profits and gains of the said period, and if an amount of tax has already been paid in respect of the income, profits and gains of the previous year exceeding the amount payable on the basis of such assessment, a refund shall be given of the difference. This provision has been enacted to give relief to a tax payer upon whom extra burden had been imposed due to a change in the basis of assessment as a result of the Act of 1922. Under the 1918 Act the tax liability was imposed on the income accruing or arising in the year of assessment while under the 1922 Act the liability was in respect of income accruing or arising in the 1090 previous year. Thus when the Act came into force in 1922 it entailed two assessments in respect of the income of the same year, that is, the income of the, year 1921-22 which had been assessed during the currency of that year under the 1918 Act was subjected to tax once again under the Act as the income of the previous year for the assessment year 1922-23. In view of this hardship, sub-s. 3 provided that in the case of discontinuance of any business, profession or vocation which was at any time charged under the 1918 Actnumbertax is payable in respect of the period between the end of the previous year and the date of discontinuance. An assessee to obtain relief under the above sub-section has to satisfy three companyditions. Firstly, that the business, profession ,or vocation must be one on which tax was at any time charged under the 1918 Act. Secondly, the case must be one where there has number been a succession after the 1st April, 1939 attracting the application of sub-s. 4 . Thirdly, the business must be discontinued, such discontinuance amounting to a companyplete cessation of business and number merely a succession or change of owner-ship. In the case of Commissioner of Income-tax, Bombay v. P.E. Polson 1 which was also referred to by Patanjali Sastri, J. in Executors of Estate of Dubash v. Commissioner of Income-tax 2 the Privy Council has pointed out that the purpose and ,effect of sub-section 3 was clearly to give relief to a tax payer who but for it would in the aggregate be charged with tax once in respect of every years income and twice in respect of one years income. There is numberdispute in this case that the, assessee companypany had discontinued its business from the 28th December 1948 when it went into liquidation. The only dispute is, whether the assessee companypany carried on the business of the firm which was assessed to tax under the 1918 Act and whether the firm was charged to tax under the 1918 Act. It may be mentioned that in sub-s. 3 there is a clear reference to the business and number to the assessee and therefore that subsection applies even if the person claiming the relief was number himself charged under the 1918 Act but his predecessorin-interest was so charged. It is companytended on behalf of the Revenue that the assessee companypany did number carry on the same business as that carried on by the firm in that the business in dealing in shares and stocks which the firm was carrying on was number carried on by the companypany which merely held those shares as investment and did number deal in them. It has been numbericed earlier that the firm was carrying on several businesses one of which was dealing in shares, and stocks and when the assessee companypany took over the assets and liabilities of business, it is said relying on the observations of the Tribunal that all. those businesses except the business of dealing in shares and stocks was taken over and that the shares and stocks which it held 1 13 I.T.R. 384. 2 19 I.T.R. 182. 1091 were held for and on behalf of the B.T.C. It is accordingly companytended that the assessee companypany was number carrying on the same business. It may be mentioned that one of the principal objects of the assessee companypany as indicated in the memorandum of association was to acquire and take over as a going companycern the business carried on by the firm E. D. Sassoon Co. The assets of the firm were taken over even prior to the agreement which was entered into on the 30th June, 1921. The Income-tax Officer thought that the assessees treatment of its profit and loss arising out of the business of dealing in shares have number been uniform. He also companycluded that in respect of the successive years at least upto 1938 the department has been treating the transactions on its merits, but thereafter the assessee companypany was treated as a regular dealer in shares and security that. only a portion of the shares and security represent stock in trade that there was numberuniform valuation of the stocks and investments, that in the year 1921 the deletion of the item of appreciation of shares and security amounting to Rs. 9,76,708 which it was alleged was agreed to clearly on the assessees companytention that it was only an investor and that the business of dealing in shares and security of the assessee companypany had number in the aggregate been charged to income-tax in respect of every years income and twice in respect of one years income inasmuch as the number of assessments made on this business was far less than the number of assessment made during its life. That apart this business according to the Income-tax Officer was number in existence at all in 1921 as the assessee companypany was number dealing in shares and it was number at all charged to tax under the Act of 1918. The companyclusions of the Appellate Assistant Commissioner in respect of the accounting years 1918, 1919 and 1920 during which period the firm was in existence and during the year 1921, the assessee companypany was functioning are given as follows - 1918-There is numberevidence that any assessment was made on the firm and the appellant has failed to prove that any income of the firm was charged to tax. 1919-This was a year of huge loss and numbertax was charged. 1920-There was numberpositive. income from shares or share-dealings. It is also number necessary to companysider tax payments by the firm during these years because the entire stock-in-trade of the business in share-dealings and securities belonging to the firm was taken over by another Limited Company the B.T.C. Ltd., assessed separately and the appellant did number succeed to that business at all. 1092 1921-No income-tax was charged on the companypany at all there being a net loss of more than Rs. 12 lakhs. It may be, mentioned that the statement that numbertax was charged for the year 1918 is companytrary to the material on record number was the Assistant Appellate Commissioner justified in holding that the entire stock in trade of business in share dealings and security belonging to the firm was taken over by another limited companypany, the B.T.C. Limited because the Appellate Tribunal on both these points has number companyfirmed those findings. The Tribunal summarised its companyclusions as follows - For the assessment year 1918 E.D. Sassoon Co., a firm was assessed to tax under the Act of 1919 For the year 1919 as there was huge, loss numbertax was charged In 1919 however the said firm had included in the profit and loss account, profit and loss on securities and shares. For the year 1920 there was huge profit and the shares and securities were transferred to the assessee companypany at the then market value of the shares and securities Over Rs. 9,00,000/- of losses were claimed by the said firm as a result of revaluation and allowed by the Income-tax authorities in the assessment of the said firm for the year 1920 The said firm was being held by the Department to be a dealer in shares and securities and the profit was brought to tax. The applicant companypany neither intended originally to do the business, number took over the business of dealing in securities from the old firm. From the findings of the Tribunal given in ii , iii , iv and v , it is apparent that it did number accept the findings of the Appellate Assistant Commissioner that the tax was number charged under the Act of 1918 on the income from the dealings and shares for the accounting years 1919 and 1920. It numberetheless as numbericed earlier, affirmed the order of the tax authorities on the ground that the business the companypany took over from the firm, was number the same business, which the firm was doing at any rate, in the year in which the assessee companypany took it over inasmuch as the 1093 assessee companypany neither intended originally to do the business, number tookover the business of dealing in securities from the old firm. The only question is whether the Tribunal was justified in holding that the assessee companypany was number companytinuing the business which the firm was doing prior to the sale of its business to the assessee companypany. The companyclusions in item vii of the above summary seems to be somewhat companyflicting with those, in item iv , but this apparent companytradiction is sought to be reconciled by limiting the companyclusion in clause iv to only the transfer of shares and securities to the assessee companypany after which the assessee companypany did number intend to do any business of dealing in shares and stocks. But this attempt to reconcile and explain the aforesaid two findings is unconvincing for number only does the Tribunal number find that afterthe transferof shares and stock, to the assessee companypany by the firm that it did number hold these shares and stocks but also it did number hold that the assessee was number dealing in the business of stocks and shares. On the other hand, the Appellate Assistant Commissioner companysidering the claim of loss in respect of Shanghai Property sold by the assessee companypany observed - Ever since the incorporation of the companypany on 4-12-1920 as a Private Limited Company and till it went into liquidation on 29-12-1948, the assessees business activities companysisted of v Dealings in Shares and Securities. The High Court has taken into companysideration the assessment Orders for the years 1921-22 and 1922-23 dated 10th January, 1923 for the companyclusion that the assessee companypany was taxed on profits on dealings in shares and stocks in respect of those years which in its view showed beyond doubt that the companypany was trading in shares and securities for the year 1921 immediately after it took over from the firm. Even otherwise also there is sufficient material on the record to hold that the entire business of the firm which included dealing in shares and stocks was taken over by the assessee companypany as a going companycern that large holdings of stocks and shares were transferred to the assessee companypany and that there is numberevidence to show that for the years 1920-21, 1921-22 and also for subsequent years, the assessee companypany was number dealing in shares. On the other hand, the Statement of the case clearly discloses is stated earlier that the assessee companypany purchased in the market during the period 1st January, 1921 and 31st December 1921 shares and stocks worth Rs. 4,28,05,627/in the ordinary companyrse of its business. The logical inference 1094 which arises from the above circumstances is that the assessee companypany was carrying on the same business as that of the firm including dealing in shares and stocks. There is also numbermaterial on record which would justify the Income-tax Authorities or the Tribunal in companying to the companyclusion that the shares and stocks which were transferred to the assessees companypany were only intended to be held as investments. It was again companytended on behalf of the revenue that the recompanyds of assessments for the accounting year 1921 number only showed that the appreciation in shares and stocks of Rs. 9,76,708/- was excluded but income from dividend and securities amounting to Rs. 12,85,408/- was number taken into account, and was assessed in the hands of B.T.C. Limited. This is based on the order of the Income-tax Officer numberwithstanding the fact that the examiner of accounts had pointed out that the companypany is habitual dealer in ,,hares and stocks and that the appreciation will have to be taxed. On behalf of the assessee it is companytended that the question pertaining to this aspect was sought to be raised in the application under s. 66 1 and when it was number referred an application was made before the High Court for framing a question dealing with this aspect. The High Court, however, in the view it took, did number thinkthat that question need be framed. There is numberdoubt that the Income-tax Officer had omitted for some reason to include Rs. 9,76,708/- being the appreciation of shares and stocks for the accounting year 1921 for which the assessment year is 1922-23. but that is number to say that the assessee companypany did number deal in shares and stocks in that year, number is there any basis for the Income-tax Officer and, the Appellate Assistant Commissioner in holding that B.T.C. Ltd. took over the share holding from the firm and number the assessee companypany. The Tribunal on the other hand held that the shares were transferred to the assessee companypany. There is numbermention in its order that these shares were transferred to B.T.C. and number to the assessee companypany. The shares and securities were only transferred to the B.T.C. Ltd. in 1922. In any case, irrespective of the question whether the assessee companypany was dealing in shares after it had taken over the business from the firm, it is clear that the assessee companypany was carrying on several other businesses which it had taken over from the firm as going companycern. Even where one or two businesses activities are discontinued after the assesses companypany took over, numberetheless it would number justify us in holding that the business of the firm which was taken over has been discontinued, because under s. 25 3 there is numberrestriction to the applicability of the exemption only to income on which the tax was payable under any particular head. This is what was held by this Court in Commissioner of Income- 1095 tax, Bombay City-1 v. Chugandas Co. 1 Shah, J., after numbericing that what is to be regarded as income, profits and gains of business, profession or vocation within the meaning of section 25 3 for which exemption may be obtained on discontinuance had given rise to difficulties, observed at page 22 -- Now clause 3 of section 25 expressly provides that income of a business, profession or vocation which was charged at any time under Act 7 of 1918 to tax is. on discontinuance of that business, profession or vocation, exempt from liability to tax under Act II of 1922 for the period between the end of the previous year and the date of such discontinuance When, therefore, section 25 3 enacts that tax was charged at any time on any business, it is intended that the tax was at any time charged on the owner of any business. If that companydition be fulfiled in respect of the income of the business, under the Act of 1918, the owner or his successor-in-interest qua the business, will be entitled to get the benefit of the exemption under it if the business is discontinued. The section in terms refers to tax charged on any business, i.e tax charged on. any person in respect of income earned by carrying on the business, Undoubtedly, it is number all income carried by a person who companyducted any business, which is exem pt under sub-section 3 of section 25 number-business income will certainly number qualify for the privilege. But there is numberreason to restrict the companydition of the applicability of the exemption only to income on which the tax was payable under the head profit and gains of business, profession or vocation. The legislature has made numbersuch express reservation and there is numberwarrant for reading into subsection 3 it may be numbericed does number refer to chargeability of income to tax under a particular head as a companydition of obtaining the benefit of the exemption. . . . . But the exemption under section 25 3 is general, it is number restricted to income chargeable under section 10 of the Act. This case was referred to and followed in the case of O. R M. SP. SV. Firm v. Commissioner of Income-tax, Madras 2 . It appears to us that in any view of the matter the assessee companypany was entitled to relief under section 25 3 , as such, the judgement of the High Court has to be companyfirmed. The learned 1 55 I.T.R. 22. 2 63 I.T.R. 404. |
These are appeals by special leave and are directed against the dismissal of the writ petitions before the Allahabad High Court on the view that while alternate remedy under the Industrial Disputes Act was available and therefore jurisdiction under Article 226 of the Constitution was number invokable. At the time the High Court of Allahabad refused to entertain the writ petitions under Article 226 of the Constitution, the provision has an amendment to the effect that where alternate remedy was available, the High Court would number have jurisdiction to entertain an application under that Article. |
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 1 30 of 1975. Appeal by Special Leave from the Judgment and Order dated the 13th March, 1974 of the Kerala High Court in Criminal Misc. Petition No. 7 of 1974 with Crl. M.P. No. 967/73. T. Harindranath and T. T. Kunhikanan, for the appellant. S. Nambiar for respondent number 1. R. Nambiar, for respondent No. 2. The Judgment of the Court was delivered by SARKARIA, J.-This appeal by special leave is directed against a judgment of the Kerala High Court rejecting the appellants application under s. 561-A. Criminal Procedure Code for expunction of certain remarks made against him in the High Courts order, dated 20-11-1973, in Criminal Misc. Petition No. 967 of 1973. The appellant is a member of the Kerala Judicial Service, while the respondent herein is an Advocate practising at Ernakulam. On 14-8-1973, the appellant was working as District Magistrate Ernakulam. One Kamaleswaran, who was an accused in C.C. Nos. 216 and 217 of 1973 pending before him, was ordered to be released on bail on his executing a bond for Rs. 1,000/- with two sureties in the like amount. The two sureties were Kamaleswaran, the brother of the accused, and Sri Thankappan Nair. Thankappans address was given as businessman, son of Parameswaran Pillai, Thambanoor Trivandrum. The affidavit filed by Thankappan, while offering himself as surety, was attested by Sri A. K. Srinivasan Advocate stating solemnly affirmed at Ernakulam on this 14th day of August 1973 and signed before me who is personally known to me. The above cases stood posted for examination of the accused under s. 342 of the Code of Criminal Procedure. When on that date the cases were called for hearing, the accused was absent. His Counsel Shri Srinivasan appeared and represented that although he had numberinformation from the accused, who had to companye from Trivandrum. yet he was expecting him to reach the companyrt in time. The appellant District Magistrate thereupon ordered cancellation of the bail bonds and directed issue of numberices to the Surety under s. 514 of the Code of Criminal Procedure calling upon him to show cause before 16-10-1973 why the terms of the Surety bonds providing for forfeiture of the sum of Rs. 1,000/- be number enforced. The numberices issued to the Surety Thankappan Nair, were returned unserved whereupon on the 17th October, 1973. the appellant issued a number-bailable warrant for the arrest of the Surety. On the following day, the appellant issued a numberice to Sri A. K. Srinivasan, Advocate which ran as under Ernakulam District Magistrate Court No. M.C. 106 and M.C. 107 of 1973. Notice for Shri A. K. Srinivasan, Advocate. The above-mentioned cases are being fixed for hearing 3-11-1973 at 11 A.M. You are required to appear before the Court. By order Sd./ 18th October. 1973 SARISHADAR. It may be mentioned here that in the proceedings initiated under s. 514 of the Code of Criminal Procedure in the two cases . Mr. Srinivasan, Advocate was number the duly companystituted attorney or the Surety, Thankappan. On receipt of the aforesaid numberice, Mr. Srinivasan, Advocate filed Crl. M.P. 967 of 1973 before the High Court of Kerala under s. 561-A of the Code of criminal Procedure praying that the appellant be directed to withdraw the numberice, dated 18-10-1973, on the ground that the issue of numberice was arbitrary and amounted to an abuse of the process of the companyrt because- There is numberprovision in the Criminal Procedure Code empowering the Magistrate to issue such a numberice to companymand the Advocates appearance when he is number companynected either as a witness or a party or otherwise with the proceedings relating to cancellation of bailbonds The numberice was issued to humiliate him and the Bar since the latter had passed a resolution, on 21-7-1973, pro testing against the improper and discourteous treatment meted out by the Magistrate to the members of the Bar. The learned Judge of the High Court before whom this petition came up for hearing, by an order dated 2-11-1973, called for a report from the appellant by 5-11-1973 regarding the allegations companytained in, the Advocates petition and particularly as to under which provision of law and under what circumstances he had thought it fit to issue a numberice to the Advocate requiring him to appear before him on 3-11-1973. The appellant thereupon submitted the report to the High Court, the material part of which reads When numberice was sent to the surety Thankappan Nair whose address is given as, business-man, Thambanoor, Trivandrum, it was reported by the Police that there is numbersuch person, as far as they companyld gather, from the detailed enquiries made and therefore numberice companyld number be served. In the affidavits filed by Shri Thankappan Nair in these two cases when he offered himself as surety the signatures of the deponent were attested by Shri A. K. Sreenivasan, Advocate stating Solemnly affirmed at Ernakulam on this the 14th day of August 1973 and signed before me? who is personally, known to me. From the report of the Police Trivandrum it appeared that this might be a case of false personation. It is seen that in several cases the accused have been got re leased by false sureties. have already submitted a report about this to the Honble High Court as per my letter dated 31-10-1973. There are several other similar instances of false personation and filing false affidavits pending enquiry before this Court. Under the circumstances in this case also it appeared to the companyrt that a false affidavit has been filed by false personation. If it is false personation, the attestation by the advocate should necessarily be false. The offences under Sections 193, 196, 197, 199 and 205 of the Indian Penal Code appear to have been companymitted. These are some of the offences mentioned in Section 195 Cr. P.C. Under section 476 of the Cr. P.C. when any Civil, Revenue or Criminal Court is whether on application made to it in this behalf or otherwise, of opinion that it is expedient in the interest of justice that an enquiry should be made into any offence referred to in Section 195, Sub-section 1 , Cl. b or cl. c , which appears to have been companymitted in or in relation to a proceeding in that companyrt, such companyrt may, after such preliminary inquiry if any, as it thinks necessary, record a finding to that effect and make a companyplaint thereof in writing signed by the presiding officer of the Court To ascertain whether there is a person as described in the affidavits filed in the name of Shri Thankappan Nair numberice was issued as part of the preliminary enquiry companytemplated under Section 476 Cr. P.C. to Shri K. Sreenivasan who has attested the affidavits of the said Thankappan Nair stating that the deponent is personally known to him. This had to be done in view of the report of the police. Notice to Shri A K. Sreenivasan was issued to appear in companyrt on 3-11-1913 number in his capacity as Advocate appearing for the accused but as the person who has attested the affidavit of the said surety stating that he personally knows the surety. The companyrt can make the preliminary enquiry mentioned above, either through the police or to the accused or to the other surety or to the person who attested the affidavit. In this matter accused is absconding. the other surety companyld number be served and the police report is as stated above. So the only person to whom the inquiry under 476 companyld be made in the circumstances is the person who has attested the affidavit. On 8-11-1973, the Advocate filed an affidavit in which he inter alia averred I submit that the present explanation that the numberice was issued to me as a part of the preliminary enquiry companytemplated under sec. 476 of the Criminal Procedure Code is obviously an after-thought, since it is difficult that any reasonable man would have inferred from the Police Report dated 12-10-1973 that Sri Thankappan Nair one of the sureties was a numberexistent person and therefore the attestation mad by me on 14-8-1973 would have been false. He further reiterated with elaboration the allegations in his petition that the impugned action of the Magistrate lacked good faith and due care and had been issued to humiliate the bar generally and the petitioner particularly. After taking into companysideration the appellants report and other material on record, the High Court quashed the numberice holding that the action of the District Magistrate in issuing the impugned numberice to the appellant companystitutes grave misuse of his power and flagrant abuse of the process of the companyrt. The appellant then moved an application Cr. M.P. No. 7 of 1974 for expunction of the remarks made against him by the High Court in its order, dated 20-11-1973. The application was rejected. Against that order, dated 13-3-1974, refusing to expunge the adverse remarks, Shri Lakshmanan the District Magistrate has companye in appeal to this Court. 11l the reply affidavit, dated 21-3-1975, filed in this Court, the appellant has submitted that if this Court is prima In of the opinion that the passages requested to be expunged are too many and spread over throughout the order, at least these four passages be expunged from the order in question I cannot help remarking that the information furnished to this Court by the District Magistrate in his report dated 3-11-1973 regarding the companytents of the Police Report is grossly inaccurate and misleading. I make numbersecret of my opinion that the action taken by the District Magistrate, in the present case in issuing a numberice to the petitioner, who is a member of the bar, was most highly arbitrary and the very casual fashion in which the said action has been done renders it all the more objectionable. that the action taken against the petitioner by the District Magistrate is totally devoid of any legal sanction and highly arbitrary. l hold that the action of the District Magistrate in issuing the impugned numberice to the petitioner companystitutes a grave misuse of his power and also flagrant abuse of the process of his companyrt. The tests to be applied in companysidering the expunction of disparaging remarks against persons or authorities whose companyduct companyes in for companysideration before companyrts of law in cases to be decided by them, were neatly summed up by this Court, speaking through S. K. Das, J., in State of U.P. v. Muhammad Nain, 1 thus Whether the party whose companyduct is in question is before the companyrt or has an opportunity of explaining or defending himself Whether there is evidence on record bearing on that companyduct justifying the remarks and Whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that company duct. It has also been recognised that judicial pronouncements must be judicial in nature, and should n number numbermally depart from sobriety, moderation and reserve. Let us number apply these tests to the present case. In the petition filed under s. 561-A, Code of Criminal Procedure by the Advocate, the appellant was impleaded as the sole respondent. The appellant was called upon by the High Court to explain his companyduct in issuing the impugned numberice. In reply, the appellant submitted a detailed report. It is number companytroverted that before the High Court. the appellant was represented by a senior Public Prosecutor who had been directed to defend him by the State Government. The appellant had thus adequate opportunity of explaining his companyduct and defending the impugned action. Indeed, in his report submitted to the High Court, he did his best to justify his companyduct in that case. The appellant therefore, cannot companyplain that the remarks in question were passed by the High Court without affording him due opportunity to explain and defend his action. Nor can it be said that this is a case where there was numberevidence on record bearing on the companyduct of the appellant to which the re marks in question pertain. It is true that ex-facie, the numberice requiring the Advocate to attend the Court of the Appellant on 3-11-73, though companyched in curt and peremptory language, was number, by itself, a very offensive document. But the Advocates allegation was that it had number been issued in good faith and the sole purpose of issuing this numberice was to humilate the Advocate and the Bar who had earlier passed a resolution companyplaining to the High Court against the misbehaviour of the appellant towards the members of the Bar. Subsequently, on 8-11-1973 the Advocate field an affidavit setting forth full particulars of the circumstances which, according to him, showed how the numberice was illegal. arbitrary and tainted by bad faith. He annexed a companyy of the Bars resolution, to his affidavit. the report sent by the appellant to the High Court companyfirmed that the allegations made in the Advocates petition were number empty apprehensions. The report revealed that the numberice was number an innocuous request to the Counsel to furnish better k particulars of the Surety, but it was a preliminary step taken under companyer of s. 476, Criminal Procedure Code for possible prosecution of the Advocate. The appellant gave a clear clue to his ulterior intent, when in the report, he said Notice to Shri A. K. Sreenivasan was issuednot in his capacity as Advocate appearing for the accused but as the person who has attested the affidavit of the said Surety Thus there was ample material before the High Court bearing on the impugned companyduct of the appellant, justifying the adverse companyments in question. Again, the passages sought to be expunged companyld number be said to be irrelevant or alien to the subject matter of the case before the High Court. The numberice issued to the Surety had been returned by the police with an endorsement which, rendered into English, reads as under Notice companyld number be served on the person referred to in the numberice as he process server did number get any information about him after detailed enquiry made about him in Tampanoor from different businessmen. For want of sufficient information and more detailed particulars regarding the nature of the business companyducted at Tampanoor by the person referred to in the numberice, the service companyld number be effected. Submitted for orders. But in his report submitted to the High Court, the appellant stated that it was reported by the Police that there is numbersuch person as far as they companyld gather from the detailed inquiries made and therefore numberice companyld number be served. Manifestly, this statement did number present a faithful and companyrect picture of the endorsement of the process server. Evidently, this misleading stand was taken by the appellant to show that action under s. 476, Criminal Procedure Code against the Advocate would number be groundless. In these premises it cannot be said that the observations of the High Court that information furnished to this Court by the District Magistrate in his report dated 3-11-73 regarding the companytents of the Police Report is grossly inaccurate and misleading was unjustified. The substance of the other remarks in question is substantially the same, viz., that the issue of the impugned numberice to the Advocate by the appellant was illegal and arbitrary and amounted to a gross abuse of the process of the Court. These remarks were an integral part of the reasoning of the High Court. They were number irrelevant or foreign to the matter in issue. They were inextricably intertwined with the findings and the order recorded by the High Court in that case. Excision of these remarks would emasculate the order of the High Court, robbing it of its very rationale. Judged by the aforesaid tests, numbercase for interference by this Court has been made out. Accordingly, we dismiss the appeal, with numberorder as to companyts. |
CIVIL APPEAL NO. 4590 OF 2004 With Civil Appeal No.4606 of 2004 Dr. ARIJIT PASAYAT, J. These appeals are inter-linked and are directed against companymon judgment of the Allahabad High Court. By the impugned judgment the order passed by the learned Single Judge was set aside. Background facts in a nutshell are as follows Retrenched employees of Institute of Engineering and Rural Technology for short IERT , 105 in number, filed a writ petition against the State of U.P. and its functionaries as well as the IERT praying for quashing the order dated 24.3.1999 by which it was decided that the Training-cum-Production Centre of IERT was to be closed down w.e.f. 31.3.1999 and the workmen employed were to be retrenched after paying companypensation. While allowing the writ petition the learned Single Judge gave directions which essentially read as follow- The respondents are directed to prepare a list of the employees who were appointed prior to 1.10.1986 in the production-cum-training Centre of IERT, and were working companytinuously till the date of their retrenchment i.e. 31.3.1999 by excluding those who have retired, or have number given their option for absorption, to be absorbed in the vacancies in other polytechnics of the State of Government, which are recognized and funded or in any other technical institution, or any post which it may deem to be fit, in accordance with their eligibility and after relaxing age and other terms and companyditions of recruitment. As and when petitioners are offered absorption on any equivalent post, they will vacate the quarters occupies by some of them in the premises of IERT. Since petitioners have accepted retrenchment companypensation, numberdirection with regard to payment of salary is required to be given. The State Government is directed to draw the list, prepare the scheme and to offer appointment by absorption, preferably within a period of four months. There is numberorder as companyt. The present respondents questioned companyrectness of the order by filing special appeal before the High Court. By the impugned judgment the High Court allowed the special appeal. It held that IERT is number an instrumentality of the State and or companyld number be termed to be State Government or a public Corporation. It was held that the finding of learned Single Judge that IERT is wholly owned, companytrolled and managed by the State Government is number companyrect. Learned companynsel for the appellants submitted that the basic questions are as follows- Whether IERT was an instrumentality of the State. Whether the Uttar Pradesh Absorptions of Retrenched Employees of Government Corporations in Government Service Rules, 1991 in short the Absorption Rules is applicable to the writ petitioners-appellants. Whether after receiving companypensation, the companycerned employees companyld question the closure. It was submitted that IERT is registered under the Societies Registration Act, 1860 in short the Societies Act and in terms of the Absorption Rules the companycerned employees were entitled to be given protection of the Absorption Rules. It is submitted that the expression established means that the institution has companye into existence and, therefore, even though IERT has been registered under the Societies Act, that does number mean it is number established or companystituted under any Uttar Pradesh Act. In response, learned companynsel for the respondent submitted that the companycept of established or companystituted is different from a body registered under the Societies Act. The companytentions raised need companysideration. It has been accepted that there was numbermaterial placed before the High Court to establish that IERT is an instrumentality of the State. In Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and Ors. 2002 5 SCC 111 , it has been clearly stated that even if a society or institute is registered under the Societies Act and some functionaries of the State Government and other members of the institute, such an institute may number be termed as an instrumentality of the State, if deep and pervasive companytrol over the affairs of the institute was number with the State Government. Texts formulated in Ajay Hasia and Ors. v. Khalid Mujib Sehravardi and Ors. 1981 1 SCC 722 were highlighted. There is basic distinction between a society and a companyporation. In Board of Trustees, Ayurvedic and Unani Tibia College, Delhi v. State of Delhi Now Delhi Administration and another AIR 1962 SC 458 , it was inter alia held as follows The first and foremost question is whether the old Board was a companyporation in the legal sense of that word. What is a Corporation? Corporations may be divided into two main classes, namely, companyporations aggregate and companyporations sole. We are number companycerned in the present case with companyporation sole. A Corporation aggregate has been defined as a companylection of individuals united into one body under a special denomination, having perpetual succession under an artificial form, and vested by the policy of the law with the capacity of acting in several respects as an individual, particularly of taking and granting property, of companytracting obligations and of suing and being sued, of enjoying privileges and immunities in companymon, and of exercising a variety of political rights, more or less extensive, according to the design of its institution, or the powers companyferred upon it, either at the time of its creation or at any subsequent period of its existence. Halsburys Laws of England, 3rd Edn. Vol. 9, page 4. A companyporation aggregate has therefore only one capacity, namely, its companyporate capacity. A companyporation aggregate may be a trading companyporation or a number-trading companyporation. The usual examples of a trading companyporation are 1 charter companypanies, 2 companypanies incorporated by special acts of parliament, 3 companypanies registered under the Companies Act, etc. Nontrading companyporations are illustrated by 1 municipal companyporations, 2 district boards, 3 benevolent institutions, 4 universities etc. An essential element in the legal companyception of a companyporation is that its identity is companytinuous, that is, that the original member of members and his or their successors are one. In law the individual companyporators, or members, of which it is companyposed are something wholly different from the companyporation itself for a companyporation is a legal persona just as much as an individual. Thus, it has been held that a name is essential to a companyporation that a companyporation aggregate can, as a general rule, only act or express its will by deed under its companymon seal that at the present day in England a companyporation is created by one or other of two methods, namely, by Royal Charter of incorporation from the Crown or by the authority of Parliament that is to say, by or by virtue of statute. There is authority of long standing for saying that the essence of a companyporation companysists in 1 lawful authority of incorporation, 2 the persons to be incorporated, 3 a name by which the persons are incorporated, 4 a place, and 5 words sufficient in law to show incorporation. No particular words are necessary for the creation of a companyporation any expression showing an intention to incorporate will be sufficient. The learned Advocate for the petitioners has referred us to various provisions of the Societies Registration Act, 1860 and has companytended that the result of these provisions was to make the Board a companyporation on registration. It is necessary number to read some of the provisions of that Act. The Act is entitled an Act for the registration of literary, scientific and charitable societies and the preamble states that it was enacted for improving the legal companydition of societies established for the promotion of literature, science, or the fine arts, or for the diffusion of useful knowledge etc., or for charitable purposes. Section 1 of the Act states that any seven or more persons associated for any literary, scientific, or charitable purpose, or for any such purpose as is described in Section 20 of the Act may, by subscribing their names to a memorandum of association and filing the same with the Registrar or Joint-stock Companies form themselves into a society under the Act. Section 2 lays down that the memorandum of association shall companytain and one of the particulars it must companytain is the objects of the society. Section 3 deals with registration and the fees payable therefor. Sections 5 and 6 are important for our purposes and should be read in full. The property, movable and 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. Every society registered under this Act may sue or be sued in the name of the president, chairman, or principal secretary, or trustees, as shall be determined by the rules and regulations of the society, and, in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion Provided that it shall be companypetent for any person having a claim or demand against the society, to sue the president or chairman, or principal secretary of the trustees thereof, if on an application to the governing body some other officer or person be number numberinated to be the defendant. Section 7 provides for number-abatement of suits or proceedings and the companytinuance of such suits or proceedings in the name of or against the successor of the person by or against whom the suit was brought. Section 8 says that if a judgment is recovered against a person or officer named on behalf of the society, such judgment shall number be put in force against the property, movable or immovable, or against the body of such person or officer, but against the property of the society. Section 10 provides that in certain circumstances mentioned therein a member of the society may be sued by the society but if the defendant shall be successful in any such suit brought at the instance of the society and shall be adjudged to recover his companyts, he may elect to proceed to recover the same from the officer in whose name the suit was brought, or from the society. Sections 13 and 14 provide for dissolution of societies and the companysequences of such dissolution. These provisions have also an important bearing on the questions before us and are quoted in full. Any number number less than threefifths of the members of any society may determine that it shall be dissolved, and thereupon it shall be dissolved forthwith, or at the time then agreed upon, and all necessary steps shall be taken for the disposal and settlement of the property of the society, its claims and liabilities, according to the rules of the said society applicable thereto, if any, and, if number then as the governing body shall find expedient, provided that, in the event of any dispute arising among the said governing body or the members of the society, the adjustment of its affairs shall be referred to the principal companyrt of Original civil jurisdiction of the district in which the chief building of the society is situate, and the Court shall make such order in the matter as it shall deem requisite Provided that numbersociety shall be dissolved unless three-fifths of the members shall have expressed a wish for such dissolution by their votes delivered in person, or by proxy, at a general meeting companyvened for the purpose Provided that whenever any Government is a member of, or a companytributor to, or otherwise interested in any society registered under this Act, such society shall number be dissolved, without the companysent of the Government of the State of registration. If upon the dissolution of any society registered under this Act there shall remain, after the satisfaction of all its debts and liabilities, any property whatsoever, the same shall number be paid to or distributed among the members of the said society or any of them, but shall be given to some other society, to be determined by the votes of number less than threefifths of the members present personally or by proxy at the time of the dissolution, or, in default thereof, by such Court as aforesaid Provided, however, that this clause shall number apply to any society which shall have been founded or established by the companytributions of shareholders in the nature of a Joint Stock Company. The other crucial question is whether the Absorption Rules applied to IERT. The relevant provisions in the rules read as follows In exercise of the powers companyferred by the proviso to Article 309 of the Constitution, the Governor is pleased to make the following rules to provide for the absorption in Government Service of the retrenched employees of the Government or of Public Corporations. THE UTTAR PRADESH ABSORPTION OF RETRENCHED EMPLOYEES OF GOVERNMENT OR PUBLIC CORPORATIONS IN GOVERNMENT SERVICE RULES, 1991. xx xx xx xx 2 b Public Corporation means a body companyporate established or companystituted by or under any Uttar Pradesh Act expect a University of local authority companystituted for the purpose of Local Self Government and includes a government Company within the meaning of Section 617 of the Companies Act, 1956 in which the State Government has prepondering interest. 2 c Retrenched Employees means a person who was appointed on a post under the Government or a public companyporation on or before October 1, 1986 in accordance with the procedure laid down for recruitment to the post and was companytinuously working in any post under the Government or such companyporation up to date of his retrenchment due to reduction in, or winding up of, any establishment or the Government of the Public Corporation, as the case may be and in respect of whom a certificate of being retrenched employees has been issued by his appointing authority. A bare reading of the provisions makes the positions clear that in order to bring application of the Rules the public companyporation has to be a body companyporate established or companystituted by or under any Uttar Pradesh Act. The fundamental requirement is that the companyporation should have been companystituted by or under any Uttar Pradesh Act. Undisputedly, the Societies Act is a Central Act. |
The Judgment of the Court was delivered by MOHAN, J.- All these appeals can be dealt with under a companymon judgment since they arise out of one and the same order in all the companyrts. The first respondent landlady, Smt Kanta Bai Asawa, and her mother Smt From the Judgment and Order dated June 29, 1993 of the Andhra Pradesh High Court in C.R.P. Nos. 2658, 2941, 3122 and 3129 of 1990 Godavari Bai Rathi are the owners of mulgies bearing Municipal Nos. 3.2.840/6 and 3.2.840/7 situated at Veer Sawarkar Road, Kacheguda, Hyderabad. These two mulgies were let out to appellants-tenants under separate lease deeds marked as P-1 and P-2 respectively in the trial companyrt executed on September 23, 1978. Ex. P- 1 is in respect of mulgi bearing No. 3.2.840/6 and Ex. P-2 is in respect of mulgi bearing No. 3.2.840/7. Alleging that the tenants had companymitted wilful default in payment of rent as well as the taxes due to the Municipal Corporation in respect of the demised premises, the landladies filed four eviction petitions bearing R.C. Nos. 291 of 1984, 292 of 1984, 1972 of 1986 and 1973 of 1986 on the file of the First Additional Rent Controller at Hyderabad. The tenants companytended that they did number companymit wilful default either with regard to payment of rent or municipal taxes. All the petitions were clubbed together. Common evidence was adduced in R.C. No. 291 of 1984. The Rent Controller came to the companyclusion that the tenants had companymitted wilful default in payment of rent as well as the municipal taxes. Accordingly all the four eviction petitions were allowed. The tenants were directed to vacate the premises within a period of two months. Aggrieved by the order of eviction, appeals were preferred in R.A. Nos. 387-390 of 1989 to the learned Chief Judge, City Small Cause Court, Hyderabad. The appellate companyrt held that there was numberbasis for the trial companyrt to companyclude that the tenants had companymitted wilful default. For these reasons the appeals were allowed. Thereupon, revisions were preferred in Civil Revision Petition Nos. 2658, 2941, 3122 and 3129 of 1990 to the High Court. The learned Single Judge came to the companyclusion that the lower appellate companyrt was right in reversing the order of eviction on the ground of wilful default in payment of rent. Concerning the municipal taxes, he was of the view that it companyld number be said that the tenants had number companymitted any wilful default in payment of municipal taxes. It was found that the default had been companymitted by the tenant in respect of tax and the same amounts to wilful default in payment of rent which would entitle the landladies to evict the tenants. The revision petitions were allowed. The tenants were directed to vacate the premises and hand over vacant possession of the same to the landladies within three months from the date of the order. Thus, the present civil appeals. It is urged on behalf of the appellants that the High Court had gone wrong in its companyclusion that the tenants had companymitted wilful default. The parties are governed by a companytract which has been embodied in the rent deed dated September 23, 1978. That rent deed companytains several clauses which are beneficial to the tenants. Ignoring those clauses, the High Court had companye to an incorrect companyclusion on both the question of law and facts. Under clause 3 of the agreement, the tenant had deposited with the landladies a sum of Rs 10,000. That deposit was number to carry any interest. It companyld be adjusted at the termination of tenancy towards the rent, light bills and damages which may be found due. This deposit was to be returned to the tenants only at the time of the tenants vacating the premises. Under clause 5, it was stipulated that the number-payment of two months deposit as agreed will entitle the landladies to eject the tenants as wilful defaulters. The same is reiterated in clause 14. Under clause 22, it had been agreed that when the tenants vacate the shop, they companyld remove the changes made by them without permission of the landladies and restore to original companydition at their companyt. Under clause 24, the details of reconstruction through the landladies to be made at tenants companyt were detailed out. As regards municipal taxes, the obligation to pay the same would arise within one month from the date of intimation by the landladies as clearly stipulated in clause 2. In this case, admittedly, the tenants had number been intimated about the demand in relation to the municipal taxes. Therefore, the High Court is number companyrect in companycluding that there was a wilful default. It is number merely a question of default that will be material but such a default must be wilful. If rent includes municipal taxes as agreed to between the parties, the High Court ought to have examined the object of the tenants depositing a huge sum of Rs 10,000 with the landladies. The deposit was to be adjusted towards the rent also, in addition to the electricity charges or damages. Under Section 7 2 a of Andhra Pradesh Buildings Lease, Rent and Eviction Control Act, 1960 hereinafter referred to as the Act , the landlady is forbidden to receive any premium or other like sums in excess of the agreed rent. Even if the tenants fails to ask the landladies to make adjustment of an advanced amount, eviction on the ground of wilful default cannot be ordered. Bhoja alias Bhoja Ram Gupta v. Rameshwar Agarwal did number go into the question of wilful default. Again in Mohd. Salimuddin v. Misri Lal2 it was observed that the tenant companyld number be evicted on the ground of default in payment of rent for two months even if the tenant fails to ask the landlord to make adjustment of advanced amount. In view of all these, merely because a small sum by way of municipal taxes has number been paid, it does number mean that tenant is liable to be evicted. The judgment of the High Court requires to be reversed. In opposition to this, learned companynsel for the respondents would submit that numberdoubt there is deposit of Rs 10,000 with the landladies but that does number mean without a specific request by the tenants, it is bound to be adjusted. Even otherwise, as per clause 3 of the rent deed, numberadjustment is permissible during the tenancy. The agreement companytained in this clause requiring to defray the rent, electricity bills and other damages at the time of vacating the premises is number companyered by Section 7 2 a of the Act. The respondents rely upon the judgment in Bhoja case particularly paragraph 21 of the judgment. Besides, the appellant is in default as he had number companyplied 1 1993 2 SCC 443 2 1986 2 SCC 378 1986 1 SCR 622 with the order dated October 1, 1993 of this Court directing to pay the arrears of rent and taxes. In view of above arguments, the only question that arises for our determination is whether the appellantstenants companyld be deemed to have companymitted wilful default. The findings rendered by the High Court to which we have made a reference already, are There is numberwilful default in payment of rent. Wilful default in payment of municipal taxes. The plea of appellants-tenants that they were number informed of the demand, companyld number be accepted. In this companynection, we may numbere that clause 2 of the rent deed dated September 23, 1978 requires the payment of municipal taxes. However, what is stated is municipal taxes shall be paid by the tenants within one month from the date of intimation by landladies. We will proceed on the assumption that the tenants companytention in this regard is number companyrect. But, here is a case where a sum of Rs 10,000 is in deposit with the landladies. Clause 3 of the said rent deed reads as under The tenants would keep in deposit with the landladies a sum of Rs 10,000 Rupees Ten thousand only . This deposit would number carry any interest and would be adjusted at the termination of the tenancy towards the rent, light bills and damages which may be found due. The tenants have numberright to ask for any adjustment to the deposit. But the deposit amount will be returned to the tenants only at the time when the tenants vacate the premises and after deducting all kinds of dues. Though it is argued that this clause did number permit adjustment, yet we find that there is an obligation to adjust from out of it, otherwise the very purpose of keeping a deposit of Rs 10,000 for each shop is rendered nugatory. Is it necessary on the part of the tenants to require the landladies to adjust or to be precise, make a specific request in this behalf? Our answer should be in the negative? In Modem Hotel v. K. Radhakrishnaiah 3 this Court had occasion to deal with Section 7 2 of the Act. In that case, reference was made to Mohd. Salimuddin case2. It was observed at page 729 as under SCC pp. 690-91, paras 8 and 9 This Court in Mohd. Salimuddin v. Misri Lal2 had occasion to deal with a more or less similar situation arising under the Bihar Buildings Lease, Rent Eviction Control Act, 1947. There, a sum of Rs 2000 had been advanced by the tenant to the landlord stipulating adjustment of the loan amount against the rent which accrued subsequently. The landlord asked for eviction on the ground of arrears of rent by filing a suit. The trial companyrt had decreed the suit but the lower appellate companyrt reversed the decree by holding that the tenant was number in arrears of rent since the amount advanced by the tenant was sufficient to companyer the 3 1989 2 SCC 686 1989 2 SCR 725 landlords claim of arrears. The High Court, however, vacated the appellate judgment and restored that of the trial companyrt holding that the loan amount by the tenant was in violation of the prohibition companytained in Section 3 of the Bihar Act and the tenant was in arrears of rent and liable to be evicted. This Court set aside the judgment of the High Court by saying SCC pp. 380-8 1, para 4 The view taken by the High Court is unsustainable inasmuch as the High Court has lost sight of the fact that the parties to the companytract were unequal. The tenant was acting under companypulsion of circumstances and was obliged to succumb to the will of the landlord, who was in a dominating position. If the tenant had number agreed to advance the loan he would number have been able to secure the tenancy. The companyrt referred to the doctrine of pari delicto and held that the same was number applicable against the tenant. In Sarwan Kumar Onkar Nath v. Subhas Kumar Agarwalla4, Salimuddin case2 came for companysideration. This was also a dispute under the Bihar Act where two months rent had been paid in advance by the tenant to the landlord on the stipulation that the advance amount would be liable to be adjusted towards arrears of rent, whenever necessary or required. The companyrt held that the tenant companyld number be evicted on the ground of default in the payment of rent for two months even if the tenant failed to ask the landlord to make adjustment of the advance amount in the absence of any agreement requiring the tenant to inform the landlord as to when such adjustment is to be made. This Court said that when the Rent Act prohibited the landlord to claim such advance payment, the tenant companyld number be companysidered to be a defaulter and the doctrine of pari delicto was number attracted to such a fact situation. emphasis supplied These decisions squarely apply to the facts of the case. Yet, what is relied on by the learned companynsel for the respondent in Bhoja case paragraphs 19 and 21, it is observed at pages 451-453 as under of the Patna High Court in Gulab Chand Prasad Budhwanti5 which has received the seal of approval of this Court in Budhwanti v. Gulab Chand Prasad6 fully supports the case of the landlord. We are in broad agreement with the view of the Full Bench of the Patna High Court and the Madras High Court on the question of ,automatic adjustment and hold that a tenant cannot save himself from the companysequences of eviction under the Act on the ground of default in the payment of rent by claiming automatic adjustment of any excess rent 4 1987 4 SCC 546 1988 1 SCR 414 1987 1 Scale 501 5 AIR 1985 Pat 327 1985 Pat LJR 622 1985 BLJ 6 1987 2 SCC 153 paid companysequent upon mutual enhancement of rent, even if illegal unless there is an agreement between the parties for such an adjustment. The tenant may also in a given case seek adjustment of the excess rent in the hands of the landlord against the arrears by specifically asking the landlord for such an adjustment before filing of the suit or in response to the numberice to quit and even in the written statement by way of set-off within the period of limitation and by following the procedure for claiming such a set-off, while resisting the claim for eviction on the ground of default in payment of arrears of rent but he cannot claim ,automatic adjustment. Therefore, it is necessary on our part to refer to Budhwanti case6. At page 538, it was held as under SCC p. 158, para 10 In the view we propose taking of the matter we do number think it necessary to go into the question whether the appellants had companymitted default in payment of rent and secondly even if they had companymitted default, they are entitled to adjust the excess rent paid by them over a span of 30 years without reference to the rule of in pari delicto. emphasis in original Therefore, it is number companyrect to state that the ruling of the Patna High Court in Gulab Chand case5 got the approval of this Court in Budhwanti case6. As a matter of fact in Sarwan Kumar Onkar Nath v. Subhas Kumar Agarwalla4 there are observations to this effect which are apposite SCC pp. 549-50, para 4 The learned companynsel for the respondent, however, relied upon a Full Bench decision of the High Court of Patna in Gulab Chand Prasad Budhwanti5 in which it had been held that any excess rent paid by a tenant to his landlord in pursuance of a mutually agreed enhancement of rent which was illegal did number get automatically adjusted against all the subsequent defaults in the payment of the monthly rent under the Act. The decree for eviction passed by the High Court of Patna in the above case has numberdoubt been affirmed by this Court in Budhwanti v. Gulab Chand Prasad6. But this Court affirmed the judgment of the High Court number on the ground that the tenant in that case was a defaulter in payment of rent but on the ground that the landlord required the premises for his bona fide use and occupation. This Court in its judgment observed that SCC p. 158, para 10 In the view we propose to take we do number think it necessary to go into the question whether the appellants had companymitted default in payment of rent and secondly even if they had companymitted default, they are entitled to adjust the excess rent paid by them over a span of 30 years without reference to the rule of in pari delicto . The reason for our refraining to go into these questions is because we find the decree for eviction passed against the appellants can be sustained on the second ground, viz., bona fide requirement of the shop for the business requirements of the members of the joint family. It is number number necessary for us to companysider the companyrectness of the observation made by the Full Bench of Patna High Court on the question of default and the right of the tenant to claim adjustment because what was claimed by way of adjustment in the said case was a certain excess amount paid over a long period of 30 years as enhanced rent under a mutual agreement though such payment was companytrary to law. But in the case before us the amount of Rs 140 had number been paid as enhanced rent under any such agreement. It was, in fact, an amount which had been paid in advance which was liable to be adjusted whenever it was necessary or required. In our companysidered view the ratio of this judgment will apply to the facts of this case. Having regard to the fact that the municipal taxes per month are Rs 18 for each premises, we do number think that tenants companyld be evicted when companytrary to Section 7 2 a of the Act, the landlady has a deposit of Rs 10,000. |
CIVIL APPELLATE JURISDICTION Civil Appeal No. 2954 of 1977. Appeal by special leave from the Judgment and Order dated 1- 11-1976 of the Jammu and Kashmir High Court in Civil Second Appeal No. 46/75. Niren De and Altaf Ahmed for the Petitioner. Hardyal Hardy and R. P. Sharma for the Respondents. ORDER Delay companydoned and special leave granted on a point raised by the, appellant under the proviso to the Explanation to s. 1 1 1 h of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966 for short, the Act . The only ground which we companysider tenable and which has been urged by the appellant before us turns on the, failure of the companyrts of fact in recording a finding as companytemplated in the proviso to the Explanation to s. II 1 h of the Act. Obviously an error has been company-mitted by the, High Court in thinking that there is a companycurrent finding of fact under the proviso aforesaid. The trial companyrt and the first appellate companyrt have really number companysidered this question on the merits indeed evidence itself has number been taken on the score that there has been numberspecific plea in that behalf. We are satisfied that the proviso aforesaid mandates the, companyrt to companysider whether partial eviction as companytemplated the should be ordered or the entire holding should be directed to be evicted. This aspect, therefore, required judicial exploration after giving opportunity to both sides to lead evidence in this behalf. We direct the first appellate companyrt to go into the question as to whether the reasonable requirement of the landlord may be substantially ,satisfied by evicting the tenant from a part only of the premises as companytemplated in the proviso. If after taking evidence the companyrt is satisfied that the entire house or premises must be vacated to. fulfil the reasonable requirement of the landlord, the present order will stand. If, on the other hand the companyrt finds, as a fact, that partial eviction will meet the ends of justice as visualised in the proviso, an appropriate order will be passed on that footing. The companyrt will take up the case on file pursuant to this order of remand and companyfine itself to this limited issue, give opportunity to both to lead evidence on this sole question and dispose of the appeal in accordance with law within two months. The companyrt must proceed on the footing that the absence of a specific pleading under the said proviso does number stand in the way of the obligation of the companyrt to act in companypliance with the mandate of the statute. |
TARUN CHATTERJEE, J. Leave granted. In our view, the High Court had acted in excess of its jurisdiction by interfering with the companycurrent orders passed by the companyrts below allowing an application for injunction directing the respondent to restore the electric supply in the suit premises in favour of the appellant who is a divorcee residing in the same with her son. The suit that has been filed by the appellant is for declaration that she is a tenant in respect of the premises in question at a rental of Rs.150/- per month. The case made out in the plaint is, inter alia, to the effect that she has been paying the rent but numberrent receipts had been granted to her. Since the electric supply was disconnected by the respondent, she filed an application for injunction directing the respondent to restore the electric supply in her tenanted premises. Both the companyrts below companycurrently allowed the application and directed restoration of electric supply to the tenanted premises where the appellant is residing. Against these orders, a revision was moved by the respondent which was allowed by the High Court. Feeling aggrieved by the order of the High Court, the appellant has companye up before this Court by way of a special leave petition, which, on grant of leave, was heard in the presence of learned companynsel for the parties. In our view, as numbered herein earlier, the High Court was number justified in interfering with the companycurrent orders passed by the Courts below directing the landlord to restore the electric supply in the suit premises. The question whether the appellant is a tenant or number shall be gone into at the time of disposal of the suit when the evidence would be produced by the parties in support of their respective cases. Since there is numberdispute that the appellant is in possession of the suit premises claiming to be a tenant, the electric supply to the premises in question should be restored. Therefore, the High Court, in the exercise of its power under Article 227 of the Constitution ought number to have interfered with the companycurrent orders of the Courts below. See The Managing Director MIG Hindustan Aeronautics Ltd., Balanagar, Hyd. And Anr. |
K. JAIN, J. Leave granted. This appeal, by special leave, is directed against the judgment and order dated 7th October, 2005 rendered by the High Court of Orissa at Cuttack in W.P. C No.12860 of 2004. By the impugned order, the High Court has dismissed the writ petition, preferred by the appellant assailing the decision of the Election Tribunal-cum-District Judge, Balasore, passed under Section 38 of the Orissa Municipal Act, 1950 for short the Act . The appellant as well as respondent No.3 in this appeal, hereinafter referred to as the companyplainant, were elected as Councillors of two different municipal wards in the election held on 19th September, 2003 for the Notified Area Council. Subsequently, on 30th September, 2003, the appellant was also elected as the Chairperson of the Municipal Council. On 15th October, 2003, the companyplainant filed an Election Petition under Section 38 of the Act questioning the election of the appellant as Councillor and Chairperson, on the ground that being a leprosy patient, he had incurred disqualification under Sections 16 1 iv and 17 1 b of the Act and, therefore, companyld number companytinue as such. It was alleged that the fact of his being a leprosy patient even at the time of filing of numberination was also suppressed by the appellant. The appellant companytested the petition. Denying the said allegations, it was stated that as on the date of election as Councillor as also the Chairperson, he was fully cured of the ailment and was, thus, qualified to companytest the election. It was also pleaded that the Election Petition was barred by limitation. The Election Tribunal framed as many as five issues. The two main issues, with which we are companycerned, were i whether the petition was barred by limitation and ii whether the appellant is a leprosy patient and as such disqualified to companytest and hold the posts of a Councillor and Chairperson of the Municipality. Taking into companysideration the evidence led by both the sides and upon elaborate discussion on the provisions of the Act, the Tribunal came to the companyclusion that the petition was number barred by limitation and hence maintainable and that on the date of filing of his numberination and election to the office of Councillor, the appellant was a leprosy patient and his status as a patient still companytinues as there is numberfinality of the medical opinion that he has been fully cured of the disease. Thus, the appellant was declared to be disqualified under Sections 16 1 and 17 1 b of the Act, to be elected and to companytinue as Councillor of the Municipality. Aggrieved, the appellant unsuccessfully challenged the said decision in the High Court. The High Court, affirmed the order of the Election Tribunal-cum-District Judge on both the companynts, namely, i Section 19 of the Act, prescribing the period of limitation for presentation of the Election Petition was number applicable and ii that the appellant was still suffering from risk prone leprosy. Aggrieved thereby, the appellant has preferred this appeal. We have heard learned companynsel for the parties. Learned companynsel appearing on behalf of the appellant companytended that the High Court has companymitted manifest error of law in affirming the finding of the Election Tribunal that the appellant was still suffering from leprosy. It was urged that the said finding is patently perverse inasmuch as the Tribunal ignored the evidence adduced by the appellant, in particular the medical certificates issued by the doctors, certifying that the appellant was number suffering from leprosy on the date of filing of the numberination. It was urged that the High Court as well as the Election Tribunal have laid too much emphasis on the proceedings pending in this Court, which have numberrelevance to the companytroversy at issue. It was also asserted that the Election Petition was barred by limitation. Before examining the stand of the appellant, it would be necessary to refer to the relevant provisions of the Act. Chapter III of the Act deals with election of the Councillors to the Municipalities and the Election Petitions. Sections 16, 17, 18, 19 and 38 are material for our purpose and, therefore, for ready reference, the relevant parts thereof are extracted below Disqualification of Candidates for election-- 1 No person shall be qualified for election as a Councillor of a Municipality if such person-- xx xx xx xx has been adjudged by a companypetent Court to be of unsound mind or is a leprosy or a tuberculosis patient or xx xx xx xx Disqualification of Councillor-- 1 Subject to the provisions of Section 38, a Councillor shall cease to hold his office, if he-- xx xx xx xx b becomes of unsound mind, a leprosy or a tuberculosis patient or xx xx xx xx Power to question election by petition-- 1 The election of any person as a Councillor may be questioned by election petition on the ground. a xx xx xx xx b xx xx xx xx c that such person though enrolled as elector was disqualified for election under the provisions of Sections 15, 16 and 29. 2 xx xx xx xx Form and presentation of petition -- 1 The petition shall be presented before the District Judge, together with a deposit of two hundred rupees as security for companyt within fifteen days, after the day on which the result of the election was announced and shall specify the ground or grounds on which the election of the opposite party is questioned and shall companytain a summary of the circumstances alleged to justify the election being questioned on such grounds. The petition may be presented by any candidate in whose favour votes have been recorded and who claims to be declared elected in place of the person whose election is questioned, or by twenty five or more electors of the Ward. 3 xx xx xx xx District Judge to decide question of disqualification of Councillors-- 1 Whenever it is alleged that any person, who has been elected as Councillor is disqualified under Section 16 or 17 and such person does number admit the allegation or whenever any Councillor himself is in doubt, whether or number he has become qualified for office under Section 16 or 17, such Councillor or any other Councillor may, and the Chairperson at request of the Municipality shall apply to District Judge of the district in which the Municipal area is situated. The said Judge after making such inquiry as he deems necessary shall determine whether or number such person is disqualified under Section 16 or 17 and his decision shall be final Pending such decision, the Councillor shall be entitled to act as if he were number disqualified. Section 16 of the Act provides for disqualification of candidates for election as a Councillor of a Municipality. It enumerates the grounds on which a person shall be regarded as disqualified for election. Clause iv of Sub-section 1 of Section 16 of the Act envisages that numberperson shall be qualified for election as a Councillor of a Municipality if he has been adjudged by a Competent Court to be of unsound mind or is a leprosy or a tuberculosis patient. Similarly, like Section 16, Section 17 enumerates certain grounds on which a Councillor would become disqualified to hold office but the said provision has been made subject to the provisions of Section 38 of the Act. Section 17 1 b lays down that a Councillor shall cease to hold his office if he becomes of unsound mind, a leprosy or a tuberculosis patient. Section 18 stipulates that the validity of election of any person as a Councillor may be questioned by a petition on the ground enumerated therein, one of them being that he was disqualified for election under the provisions of Sections 15, 16 and 29. Section 19 lays down the procedure for presentation of the Election Petition before the District Judge. The Election Petition is required to be filed within 15 days after the date on which the result of the elections was announced. It can be presented either by a rival candidate in the same ward, who claims to be declared elected in place of the person whose election is questioned or by a group of 25 or more electors of the ward, which means that unless a candidate was a companytestant against the person whose election as a Councillor had been challenged, he cannot present the petition singularly. Section 38 of the Act, which is the pivotal provision, vests jurisdiction in the District Judge to decide the question whether the Councillor has incurred disqualification on any of the grounds mentioned in Sections 16 or 17 of the Act. But under Section 38, issue regarding disqualification of a Councillor can be raised only by a Councillor and by numberother person. A companyjoint reading of the aforenoted provisions of the Act makes it clear that Sections 18 and 38 operate in two independent fields. The scope of Section 18 is limited as companypared to Section 38. An election dispute under Section 18 of the Act can be raised only by a candidate who was companytesting against the Councillor whose election had been challenged or by a minimum of 25 electors of the same ward, within 15 days from the date of declaration of the result of the election whereas under Section 38 any elected Councillor of the Municipality, irrespective of his companystituency or the Chairperson, at the request of the Municipality can present a petition to the District Judge of the District to determine the question whether or number the person companyplained against has incurred disqualification on any of the grounds enumerated in Sections 16 or 17 of the Act. From a bare reading of Section 38, it is clear that the Section is wider in scope inasmuch as the issue of disqualification of a Councillor can be raised number only on the grounds mentioned in Section 17 i.e. on the grounds which companye into existence after the person is elected as a Councillor, but also on the grounds mentioned in Section 16, i.e. on the grounds which had made him ineligible for election while he was a candidate i.e. before he came to be elected as a Councillor. It is, therefore, manifest that when a question with regard to the validity of election of a Councillor arises, it has to be dealt with in accordance with the procedure prescribed under Section 19 of the Act. However, when the question raised is as to whether or number the Councillor has incurred any disqualification and thereby ceased to hold the office, it has to be referred and determined as per the procedure laid down in Section 38 of the Act. It is axiomatic that the question of disqualification to hold an office would arise at the stage posterior to the election i.e. after a person is elected as a Councillor. The provision appears to have been made to ensure that numberCouncillor, who has incurred disqualification on any of the grounds, mentioned in Sections 16 and 17 of the Act, either prior to the election or after the election at any time during the tenure for which he is elected should be allowed to hold the office. Precisely for this reason, unlike in Section 19, numberperiod of limitation has been prescribed for presentation of a petition under Section 38 of the Act to the District Judge. Having numbered the scheme of Chapter III of the Act, we may number advert to the facts at hand. As numbericed above, the Election Petition was filed by a Councillor elected from a different ward, for a declaration that the appellant has incurred disqualification under Sections 16 as well as 17 of the Act, on the ground that he was and is a leprosy patient. In our judgment, the petition clearly fell within the ambit of Section 38 of the Act and in the light of the legal position enunciated above, it was maintainable as such. We are, therefore, in companyplete agreement with the Courts below that the companyplainants petition was number barred by limitation. Now, companying to the merits of the Election Petition, it appears from the material on record that, unfortunately, the appellant did suffer from leprosy. Therefore, the question for adjudication before the Election Tribunal-cum-District Judge was whether the appellant is still a leprosy patient and is, thus, disqualified to hold the office as a Councillor? Leprosy is a chronic infectious disease affecting mainly the skin and the nerves and was among the first infection to be associated with a specific causative organism - Mycobacterium leprae. In Sloane-Dorland Annotated Medical-Legal Dictionary, published some time in the year 1987, the disease of leprosy has been explained thus Leprosy, which is also known as Hansens disease, is a mildly infectious degenerative disease caused by the micro-organism Mycobacterium leprae. The disease produces lesions in the skin, the mucous membranes, and the peripheral nervous system. In its more advanced stage, it affects internal organs and renders its sufferers vulnerable to other diseases such as diabetes and cancer. Leprosy has been a major health problem for man since time immemorial. Till recently it was companysidered to be an incurable disease. Moreover, it number only leaves behind a terrifying image of disfigurement, the patient and his family is ostracized from the society. It appears that the appellant was suffering from Multibacillary disease for short MB . According to the bulletin issued by the Indian Council of Medical Research for short ICMR , in February, 2002 MB patients when treated with Multi-drug therapy MDT - a three drug companybination, till smear negativity or for two years, the results have generally been very satisfactory. The MB patients treated and with regular follow up for over two to five years have responded well with very few relapses. It is numbered that the length of multi drug therapy required or to be administered depends upon the aim, resources, motivation of the individual and his availability for the follow up. Nevertheless, the bulletin says that a few studies have shown that despite two years of regular therapy almost 10 patients companytinue to harbour viable persisters. It is finally opined that it is essential that the patients be kept under follow up for varying periods as they were number sure of the long term effects of the multi drug therapy. Thus, it appears from the news report that despite various measures, at the relevant time, relapse reactivation of leprosy was number companypletely ruled out and it depended on various factors, numbericed above. It is, however, heartening to numbere that in a news bulletin issued by the World Health Organisation some time in the year 2006, it is claimed that India, which at one point of time had a prevalence rate of leprosy as high as 57 per ten thousand population, through its determined implementation of the National Leprosy Eradication Programmes, has achieved its set goal of Elimination of Leprosy as Health Problem perhaps short of Eradication. Bearing in mind the aforenoted facets of the leprosy disease and the advances made in its treatment therapies, we number proceed to examine, whether the findings of the District Judge, affirmed by the High Court, to the effect that the appellant has number been fully cured of leprosy and is still affected by the said disease, suffers from any apparent infirmity warranting interference. For the determination of this primarily factual issue, it would be necessary to delve a little deeply into the factual aspects of the matter which have weighed with the District Judge as well as the High Court in deciding the issue against the appellant. As numbered above, the stand of the companyplainant was that the appellant was a leprosy patient and his status as such has been companytinuing even prior to the date of election, which is evidently borne out from the fact that he had himself approached this Court, soliciting directions to the State Health Authorities to companyduct requisite medical investigations and tests on him and to issue him a certificate on finding him cured and fit so as to obviate his disability arising out of the disease and that the said matter is still pending. In the reply affidavit before the District Judge, the initial stand of the appellant was that he was never a leprosy patient. Accordingly, the District Judge framed issues and permitted the parties to lead evidence in support of their respective stands. On an elaborate analysis of the evidence, so led by both the sides, the District Judge came to the companyclusion that the appellant was still suffering from risk prone leprosy. In arriving at the said finding, the District Judge, has relied on the following material circumstances Once upon a time, the appellant was working as a para legal worker under the Government of West Bengal and being a leprosy patient he received treatment whereafter he remained bacteriologically negative for three companysecutive examinations and declared fit to resume his duties in Government service with a further advice to appear for further periodical check up at intervals of three months for one year and for further check up at intervals of six months for five years. However, since further periodical check ups were number companyducted, the appellant moved this Court for directions to the State Health Authorities to companyduct periodical investigations and tests of leprosy patients including the appellant. In his testimony, the appellant has stated that he has privately undergone tests under Dr. P.C. Rath, Cuttack and has also been examined by some doctors at Bhadrak who found numberleprosy in him. A certificate Ext.A dated 20th August, 2003 was also produced by him. In his crossexamination, he companyceded that he had filed petitions in this Court on behalf of a leprosy organisation, wherein he had filed an affidavit admitting to be a leper but only with a view to secure a job. Exhibit 11 is a letter dated 23rd May, 2003 issued by the Joint Director of Health Services Leprosy TB , Orissa to the Chief District Medical Officer, Balasore with a list of 46 leprosy patients for their bacteriological investigations and to submit progress report for onward transmission to this Court. This letter along with list of patients was produced by the Chief District Medical Officer, Balasore by order of this Court on the petition of the appellant. The list of patients accompanying the said letter includes the name of the appellant at serial No.3. On 7th April, 2003 the appellant had himself written to the Chief District Medical Officer for implementation of order dated 20th February, 2003 passed by this Court, inter alia, stating on affidavit that he had made a specific prayer before this Court for four time bacteriological investigations with subsequent follow up actions and that despite direction of this Court, numberinvestigations had been companyducted. In the affidavit accompanying the said petition, the appellant had stated that he had been identified as risk prone leprosy case with reversal reaction for nerve damage. It was stated that he was undergoing severe nerve and joint pains poly arthritis, accompanied by high sweat and fever. In the affidavit, the appellant had companyplained that the medical authorities have neither undertaken the required nerve function assessment number adopted specific Flow Chart and even life saving drugs were number being supplied to him to prevent occurrence of any leprosy disability and unnatural death. Accordingly, the District Judge held that the averments in the affidavit go to show that the appellant was still suffering from leprosy and that the order of this Court directing bacteriological and other tests etc. had number been companyducted on the appellant. The District Judge, accordingly, companycluded that at least by 20th March, 2004, on which date the State Government had filed an affidavit before this Court, companyplete investigations, tests and treatments in respect of the leprosy patients, including the appellant, had number been companyducted and, therefore, the patients included in the list filed before this Court, including the appellant, were number fully cured of leprosy. Having bestowed our anxious companysideration to the matter, we are of the opinion that numbere of the aforenoted circumstances taken into companysideration by the District Judge, can be said to be either irrelevant or number germane to the issue for determination so as to warrant interference of this Court. It is trite that under Article 136 of the Constitution this Court does number ordinarily re-appraise evidence for itself number determine whether or number the High companyrt has companye to a companyrect companyclusion on facts. It is only where the High Court has companypletely missed the real point requiring adjudication or has missed or ignored the relevant material this Court would be justified in going into the evidence for the purpose of satisfying itself that grave injustice has number resulted in the matter, which is number the case here. It is perceptible that on appellants own showing that he was having some doubts about at least the reactivation of the disease and had to approach this Court for appropriate directions to the companycerned authorities for providing adequate facilities for periodical check ups including bacteriological tests and issue of fitness certificate. Thus, the District Judge as also the High Court was justified in companying to the companyclusion that on facts obtaining at the relevant time, the appellant had number been fully cured of leprosy. We are unable to accept the stand of the appellant that his affidavit filed in this Court, detailing the past and present status of his health, was only meant for a limited purpose of securing a job. Such a plea deserves to be deprecated. We are, thus, of the opinion that the High Court was companyrect in law and on facts in affirming the decision of the District Judge. Before closing the case, we may mention that in this appeal, a new ground has been urged, namely, that the provisions of Section 16 and 17 of the Act are discriminatory and, thus, violative of Article 14 of the Constitution. During the companyrse of hearing, without much elaboration, learned companynsel for the appellant faintly referred to the said ground. In our opinion, this companytention is also untenable. It is well settled that Article 14 forbids class legislation it does number forbid reasonable classification for the purpose of legislation. Nonetheless, that classification should number be arbitrary but must rest upon some real and substantial distinction bearing reasonable and just relation to the things in respect of which the classification is made. To satisfy the Constitutional test of permissible classification, two companyditions must be satisfied, namely i that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and ii that such differentia must have a rational relation to the object sought to be achieved by the statute in question. See Shri Ram Krishna Dalmia Vs. Shri Justice S.R. Tendolkar Ors.1, Pathumma Ors. Vs. State of Kerala Ors.2, Javed Ors. Vs. State of Haryana Ors.3 In the instant case, the impugned classification is that those persons who have been or have become of unsound mind or leprosy or tuberculosis patients are disqualified from either companytesting for the post of a Councillor in the Municipality or companytinuing as such after election. The obvious object and the purpose sought to be achieved by the said restriction appears to be that being a companytagious disease, it 1959 1 S.C.R. 279 1978 2 SCC 1 2003 8 SCC 369 can be transmitted via droplets from the numbere and mouth during close and frequent companytacts with untreated infected persons, therefore, the other elected Councillors or the members of the public with whom they are required to have day-to-day close companytact as Municipal Councillors, may also get affected by the disease. It is true that number with aggressive medication a patient may be fully cured of the disease, yet the Legislature in its wisdom has thought it fit to retain such provisions in the statute in order to eliminate the danger of its being transmitted to other people from the person affected by the disease. Having regard to these circumstances, we are companyvinced that the said classification does bear a reasonable and just relation with the object sought to be achieved by the statute in question and cannot be said to be unreasonable or arbitrary. Accordingly, we hold that Sections 16 1 iv and 17 1 b of the Act are number violative of Article 14 of the Constitution. Before parting with this case, we deem it appropriate to point out that having regard to the changed companycept and knowledge gained about the disease of leprosy, on the recommendation of the Working Group on Eradication of Leprosy, appointed by the Government of India, many State Governments and Union Territories have repealed the antiquated Lepers Act, 1898 and subsequent similar State Acts, providing for the segregation and medical treatment of pauper lepers suffering from infectious type of disease. |
We have heard Mr.Y.Raja Gopala Rao, learned companynsel for the appellant and perused the order passed by the Disciplinary Committee of the Bar Council of India impugned in the present appeal under Section 38 of the Advocates Act. Mr.Y.Raja Gopala Rao, submits that a Civil Suit S.No.38/1996 was filed by the present appellant against the proprietor, Panthulu Hotel, No.14-60, New Bazar, Badepalli, Mahabubnagar District. The appellant did number instruct his advocate respondent herein number to press the Suit. Learned companynsel would submit that had the Memo Exh.R/1 been prepared on the instructions of the appellant, it would have been filed by the respondent before the Trial Court on February 16, 1996. He invited our attention to the deposition of the respondent before the Disciplinary Committee. The Disciplinary Committee, on companysideration of the evidence on record, companycluded that the respondent-advocate made endorsement on the plaint as number pressed on the basis of the Memo Exh.R/1 . The Disciplinary Committee found the explanation of the advocate natural. 2 We have numberjustifiable reason to take a view different from the Disciplinary Committee in this regard. If the Complainant is right in his allegation that the respondent obtained signatures on blank papers and used the same in preparing the Memo Exh.R/1 and in fact he did number give instructions to his advocate number to press the suit, he would number have waited for two years in filing the companyplaint. |
P. Thakkar, J. Learned Counsel for the appellant states that in view of the companysensus formula which has been evolved the appellant is number interested in pressing the appeal on merits. By companysent of all parties it is directed that the property in question in respect of which the appellant is a secured creditor and the income-tax Department has also levied attachment prior in point of time to the institution of the execution application as per the statement made by the learned Counsel for the Income-tax Department should be sold by public auction under the supervision of the learned Company Judge who is seized of the matter pertaining to the Company in question which is being wound up. The learned Company Judge is requested to issue appropriate directions and exercise necessary supervision in order to ensure that the property fetches a proper price. He is also requested to associate all parties, namely, the appellant-bank, Income-tax Department, the Official Liquidator and all companycerned in the matter of the sale of this property by public auction. |
This appeal by special leave has been preferred by the appellant against the judgment and order of the High Court of Karnataka at Bangalore dated 16th April, 1999 whereby the appellant has been found guilty of the offences under Section 498A of the Indian Penal Code I.P.C. and Sections 3, 4 and 6 of the Dowry Prohibition Act. He has been sentenced to undergo one year rigorous imprisonment on each companynt and to pay a fine of Rs.10,000/- under the Dowry Prohibition Act. The sentences have been directed to run companycurrently. The brief facts of the case may be numbericed - The appellant along with his wife and son was put up for trial before the Sessions Judge, Chikamagalur. They -2- were charged under Sections 302/34, 201, 203, 498A and 304B, I.P.C. as also under Sections 3, 4 and 6 of the Dowry Prohibition Act. The son of the appellant was accused No.1 hereinafter referred to as A-1 while his wife was accused No.3 hereinafter referred to as A-3 . The case of the prosecution is that A-1 was married to the deceased on 27.5.1990. On 4.10.1990 her dead body was found near a river. The next morning at about 10.00 A.M. A-1 lodged a report at the police station to the effect that on the earlier night the deceased had gone out of the house to clean utencils but did number return, and since it was raining, the search did number yield any result. In the morning they found her dead body near a river. On the basis of the report lodged by A-1, the police ought to have swung into action, but it appears from the judgments of the Courts below that the police did number act with promptitude as a result of which much of the evidence was lost. However the autopsy on the dead body of the deceased revealed the following injuries - Five irregular companytusion injuries present on the left shoulder, each measuring 1-1/2 cm x 2 cm. Contusion injury measuring 3 x 2 on the right hypothdrine region. -3- Heamotoma measuring 1 x 2 on the right frontal area present. Sub durral heamotoma measuring 2 x 1 on the right frontal area of brain. Intra companyebral heamorrage on the right frontal lobe. Haemoragic area found on the lower part of anterior part of liver. As numbericed earlier, A-1 the son, A-2 appellant and A-3 the wife of the appellant were put up for trial before the Sessions Court. By its judgment and order dated 14th February, 1995 the Trial Court found A-1 guilty of the offence under Section 498A, I.P.C. but acquitted him of all other charges. The appellant and A-3 were acquitted of all the charges levelled against them. The State of Karnataka preferred Criminal Appeal No.868 of 1995 against the acquittal of the three accused persons of the charges under Sections 302, 201 etc. while A-1 preferred Criminal Appeal No.125 of 1995 against his companyviction for the offence under Section 498A IPC. Both the appeals were heard together and were disposed of by a companymon judgment Only the appellant A-2 has impugned the judgment of the High Court companyvicting him for offences punishable under Section 498A IPC and Sections 3, 4 and 6 of the Dowry Prohibition Act. -4- We may numberice that the High Court allowed the States appeal so far the appellant is companycerned to the extent that it found him guilty of the offences under Sections 498A IPC and Sections 3, 4 and 6 of the Dowry Prohibition Act. The States appeal as against A-3 was dismissed by the High Court, and the appeal against acquittal of A-1 on other charges was also dismissed. Both A-1 and A-2 preferred a special leave petition before this Court, but the special leave petition in so far as it related to A-1 was dismissed at the admission stage itself. Shri S.N.Bhat, learned companynsel for the appellant submitted that there was numberjustification for the High Court to set aside the order of acquittal passed in favour of the appellant. He submitted that so far as the offence under Section 498A IPC is companycerned, there is numbermaterial on record to support the aforesaid charge. The evidence only disclosed that A-1 husband of the deceased entertained a suspicion about her chastity and that was the reason why she was harassed by him. There is numberevidence whatsoever to companynect the appellant with the offence under Section 498A IPC. He also submitted that so far as the offences under Sections 3,4 and 6 of the Dowry Prohibition Act are companycerned, the High Court was number justified in setting -5- aside the finding of fact recorded by the trial companyrt in favour of the appellant. We have, therefore, companysidered the evidence on record placed before us by companynsel for the parties. So far as charge under Section 498A IPC is companycerned, we are inclined to agree with the learned companynsel for the appellant that there is really numbermaterial to companynect the appellant with that offence. In fact the High Court has number even numbericed any such evidence which may justify the companyviction of the appellant under Section 498A IPC. We are, therefore, of the view that the appellant is entitled to acquittal so far the charge under Section 498A IPC is companycerned. This takes us to a companysideration of the evidence with regard to the offences under the Dowry Prohibition Act. Four witnesses have deposed in support of the prosecution. Pws 1, 2, 4 and 7 are the four witnesses whose evidence was companysidered by the Trial Court as also by the High Court. The High Court has companye to the companyclusion that the evidence of these witnesses companyclusively proves the offences under the Dowry Prohibition Act, and the Trial Court really gave numbercogent reason for disbelieving these witnesses and acquitting the appellant. The Trial Court has companysidered the evidence on this aspect of the matter in paragraph 18 of its judgment. It has -6- numbericed the evidence of PW-1, the step father of the deceased that there was a demand of Rs.20,000/- and some ornaments from the appellant at the time of marriage negotiations. He expressed his inability to pay such a big sum and therefore, the amount was reduced from Rs.20,000/- to Rs.10,000/-. As regards the ornaments, it was decided that only a kapali ring will be given to A-1 and a mangalsutra shall be given to the bride. In view of the agreement, PW-1 sent the amount to the appellant through his wife PW-2 and his nephews wife Yashoda PW-7. They paid the amount to the appellant. PW-2, the wife of PW- 1 companyroborated the testimony of PW-1 and stated that three days after the negotiations she had gone to pay Rs.10,000/- to the appellant along with PW-7 and paid the amount to the appellant. PW-4 has substantially companyroborated the testimony of PW-1 and PW-2. PW-4 is the husband of PW-7. He has however, number stated that his wife PW-7 went with PW-2 to pay the sum of Rs.10,000/- to the appellant. PW-7 Yashoda however, deposed the fact that the demand of Rs.20,000/- by way of dowry was reduced to Rs.10,000/- but she has also number stated anything about her going with PW-2 to pay the amount to the appellant. On the basis of such evidence on record the Trial Court companycluded that except the oral testimony of PW-1 and PW-2 there was numberother evidence on record to show that three days -7- after the marriage negotiations PW-1 had sent Rs.10,000/- through his wife and PW-7 to be paid to the appellant. In view of these circumstances, the Trial Court came to the companyclusion that neither there was any demand for dowry number was any amount paid to the appellant by way of dowry. Thus the prosecution had failed to establish that PW-1 paid to the appellant a sum of Rs.10,000/- by way of dowry. The High Court found that the reasoning of the Trial Court was unsustainable. We have also companysidered the evidence on record and we find that four witnesses have companysistently deposed about the manner in which the negotiations were held and how the demand of Rs.20,000/- was reduced to Rs.10,000/- and the further fact that the said amount of Rs.10,000/- was paid to the appellant through PW-2 and PW-7. The only deficiency in the evidence which the Trial Court found was that PW-7 did number state in her deposition that she had gone with PW-2 to hand over the amount to the appellant. In view of the other evidence on record this fact by itself did number justify the companyclusion that the prosecution had failed to prove its case. The evidence on record is quite companysistent and PW-2, in fact, stated that she had gone with PW-7 to pay the amount. It is number the case of the defence that PW-7 denied having gone to the appellant. Much was sought to be made of -8- the omission on her part to mention that she had gone with PW-7 to pay the amount to the appellant. |
CIVIL APPELLATE JURISDICTION Civil Appeal No. 672 of 1962. Appeal by special leave from the judgment and order dated December 10, 1958, of the Patna High Court in Appeal from Appellate Decree No. 716 of 1954. P. Varma, for the appellants. Sarjoo Prasad and Mohan Behari Lai, for the respondents. October 10, 1963. The Judgment of P.B. Gajendragadkar, Subba Rao, K.N. Wanchoo and J.C. Shah JJ., was delivered by Subba Rao J. Raghubar Dayal J. delivered a separate Opinion. SUBBA RAO J.--This appeal by special leave is directed against the judgment of the High Court of Judicature at Patna and raises mainly the question of the scope of the right of pre-emption under the Mohamedan law as applied by custom in Bihar. The facts lie in a small companypass. On June 17, 1930, Chathilal Sah of Sahebganj, who was the owner of a house and two golas bearing holdings Nos. 184 and 185 situated in mahalla Sahebganj, executed a will bequeathing the said property to his daughter Parbati Kuer and nephew Ram Swarup in equal shares. Under the said will Ram Swarup was to get the entire property in case Parbati Kuer died unmarried or issueless. On July 18, 1940, Ram Swarup sold one-half of the said property to the plaintiff-respondent 1. On July 27, 1942, the plaintiff-respondent 1 acquired under a patta some lands adjoining the said property. On October 10, 1949, defendant 3 respondent 3 herein , alleging to be the husband of the said Parbati Kuer, sold the remaining half of the disputed property to defendants 1 and 2. It may be mentioned at this stage that the land on which the said house and golas stand is Dih-Basgit Lagani rent-paying land. On December 10, 1949, respondent 1 filed Title Suit No. 214 of 1949 in the First Court of the Munsif at Chapra for a declaration that he has a right to pre-empt the property purchased by appellants 1 and 2 and for directing them to transfer the said property to him. To that suit, the first appellant and his two sons were made defendants 1, 2 and 2A and their vendor was made defendant 3. The defendants companytested the suit, inter alia, on the ground that the ceremonies of pre-emption were number performed and that under the Mohamedan, law the plaintiff was number entitled to pre-emption, as the land on which the said house and golas stood was rent-paying land. The learned Munsif dismissed the suit. But, on appeal the Subordinate Judge of Chapra allowed the appeal and granted a decree for pre-emption in favour of the plaintiff-respondent 1. On appeal, the High Court agreed with the Subordinate Judge and dismissed the appeal. Defendants 1, 2 and 2A have preferred the present appeal by special leave against the Judgment of the High Court. Mr. Varma, learned companynsel for the appellants, raised before us the following four points 1 the right of preemption infringes the fundamental right of a citizen under Art. 19 1 f of the Constitution and it is number saved by cl. 5 thereof 2 the first respondent failed to establish his title and, therefore, his suit should have been dismissed on that ground 3 the ceremonies of preemption were performed only on October 11, 1949 whereas the sale deed in favour of the appellants was executed and registered on October 20, 1949 and, as the said performance of the ceremonies was premature, they having been performed before the sale was companypleted, the right of pre-emption companyld number be enforced and 4 there is numberright of preemption in respect of leasehold interest and, therefore, there cannot be a right of pre-emption in respect of a house standing on such land, as Mohamedan law does number recognize a right of pre-emption in mere super-structure. Mr. Sarjoo Prasad, learned companynsel for the respondents companytroverts the companyrectness of the said propositions. We shall deal with his arguments in the companyrse of the judgment. To appreciate the first companytention, some dates may be recapitulated. Respondent 1 purchased one-half share of the property by a sale deed dated July 18, 1940. Appellants 1 and 2 purchased the other half of the property on October 10, 1949. The suit was filed on December 10, 1949. The Munsif dismissed the suit on April 14, 1953. The Constitution came into force on January 26, 1950. The appellants had numberfundamental right on the date when they purchased the property. But it is said that under the law of pre-emption a person who seeks the assistance of a companyrt with a view to enforce the right of pre-emption is bound to establish that the right existed on the date of the sale, on the date of the institution of the suit, and also on the date of the decree of the primary companyrt--See Nuri Mian v. Ambica Singh 1 and, therefore, the restriction on the appellants fundamental right to acquire the property was number finally imposed before the Constitution, but became crystallized into an irrevocable restriction only at the time of the passing of the decree which was subsequent to the companying into force of the Constitution. We need number express our opinion on this question, as it has been held by this Court in Bhau Ram v. Baij Nath 2 that a right of pre-emption vis-a-vis company sharers was number an unreasonable restriction on the fundamental right of a person to acquire, hold and dispose of property. But learned companynsel companytends that decision should be companyfined to a case of companysharers who are related to each other, and should number be extended to companysharers who are number related to each other. Reliance is placed upon the following observations in that judgment found at p. 1483 If an outsider is introduced as a company sharer in a property it will make companymon management extremely difficult and destroy the benefits of ownership in companymon. This sentence does number, in our view, sustain the distinction sought to be made by the learned companynsel between companysharers who are relatives and companysharers, who are number relatives. The word outsider in the said passage can only mean a person who is number a companysharer. The judgment of this Court finally settled the question as between companysharers. Following the decision we hold that the law of pre-emption vis-a-vis companysharers does number infringe the fundamental right companyferred under Art. 19 1 f of the Constitution. The second question, namely, that of the plaintiffs title does number call for companysideration by us. It was number raised in the companyrts below, and it being a pure question of fact, we cannot allow it to be raised for the first time before us. We, therefore, disallow it. 1 1917 I.L.R. 44 Cal. 47. 2 A.I.R. 1962 S.C. 1476. The next point raised by the learned companynsel is that the ceremonies of pre-emption performed in this case were premature, as the sale was companypleted only on October 20, 1949 whereas the ceremonies were performed on October 11, 1949. This Court, by a majority, held in Ram Saran v. Domini Kuer 1 that the registration under the Registration Act is number companyplete till the document to be registered has been companyied out in the records of the Registration Office as provided in s. 61 of that Act. Learned companynsel companytends that a perusal of the sale deed dated October 10, 1949, ex facie shows that it was companyied only on October 20, 1949. The question as to when a document was companyied out in the companycerned register is certainly a question of fact. The argument was number raised either before the trial companyrt or before the first appellate companyrt. No issue was framed on the point. It was raised for the first time before the High Court. The learned Judges of the High Court pointed out that if the appellants wanted to take advantage of the said point, it was their duty to have raised it either in the trial companyrt or in the first appellate companyrt and to have adduced evidence by calling for the register from the registration department to show on what date the actual companyying of the record was made under s. 61 of the Registration Act. In the circumstances, the learned Judges refused to allow the appellants to raise the point. The High Court, in our opinion, was certainly right in disallowing the appellants from raising the question of fact for the first time in second appeal. If the plea had been taken at the earliest point of time, the respondents might have had many defences and might have explained the various dates found on the documents. We cannot allow the appellants to raise the said plea. Now we companye to the substantial point raised in the appeal. The right of pre-emption is sought to be enforced in respect of a rent-paying land with a house thereon. Learned companynsel for the appellants companytends that the right of pre-emption does number arise A.I.R. 1961 S.C. 1747. on the sale of a leasehold interest in land and that in the absence of such a right there cannot be a right of preemption in respect of the super-structure alone. Learned companynsel for the respondents, on the other hand, companytends that under Mohamedan law the right of pre-emption exists in the case of akar i.e., a house or mansion, to enable the companysharer to have peaceful enjoyment thereof and that the fact that there is numberright of pre-emption in respect of a leasehold interest in land does number in any way detract from that right. He further companytends that whatever might have been the strict incidents of the right of pre-emption under Mohamedan law, this Court cannot ignore the modern evolution of law recognizing the transferability and heritability of leasehold interest in land. Before we companysider the problem thus presented for our decision, it would be companyvenient at the outset to numberice certain general principles relevant to the present enquiry. It has number been disputed that Hindus in the Province of Bihar came to adopt the Mohamedan law of pre-emption as a custom. This was because under the Muslim rule the law of pre-emption under the Mohamedan law was administered as a rule of companymon law of the land in those parts of the companyntry which came under their domination. We must, therefore,. look to Mohamedan law to ascertain the incidents of the right of pre-emption unless it is established in a particular case that by custom the said law has been modified to any extent. Being a customary law, it is number permissible for companyrts to extend the custom beyond the limits within which upto number it has been recognized. The companycept of rationalization is out of place in the ascertainment of the customary incidents of the right of pre-emption. This Court in Bishan Singh v. Khazan Singh 1 companysidered the law on the subject and laid down the propositions flowing from the discussion. The following propositions are relevant to the present enquiry 1 The right of pre-emption is simply a right of sub- 1 1959 S.C.R. 8 78. situation, but number of re-purchase i.e., the pre-emptor takes the entire bargain and steps into the shoes of the original vendee 2 it is a right to acquire the whole of the property sold and number a share of it and 3 the right being a very weak right, it can be defeated by all legitimate methods, such a.s the vendee allowing the claimant of a superior or equal right being substituted in his place. It is, therefore, settled law that the pre-emptor must take the entire bargain he cannot split up the bargain and claim to be substituted in respect of a portion of it either on the ground that he does number require a part of it or for the reason that he is entitled to claim pre-emption only in respect of a part of it. Further, the right being a weak one, a companyrt need number be astute to rationalize the doctrine so as to make it fit into modern trends of property law. Indeed, it should be reluctant to extend it beyond the incidents clearly recognized by Mohamedan law or by custom. With this background let us number turn to the question that arises in this case. The subject can companyveniently be companysidered under three heads the pre-emptor ii the vendor and iii the property in respect of which the right is claimed. In Baillies Digest of Moohummudan Law the following passage appears at p. 478 When it is said that akar such as mansions, vine-yards and other kinds of land are proper objects of the right of preemption, it is by virtue of a right of milk, or ownership, that they are so. Mahmood 3. in Gobind Dayal v. Inayatullah 1 observed at p. 779 thus pre-emption is a right which the owner of certain immovable property possesses, as such, for the quiet enjoyment of that immovable property, to obtain, in substitution for the buyer, proprietary possession of certain other immovable property, number his own, on such terms as these on which such latter immovable property is sold to another person. The same learned Judge in Sakina Bibi v. Amiran 1 states that in the pre-emptive tenement the tenement by the ownership of which the pre-emptor wants to exercise his right of pre-emption , the pre-emptor should have vested ownership and number a mere expectancy of inheritance or a reversionary right, or any other kind of companytingent right, or any interest which falls short of full ownership. Beaumont C.J. in Dashrathlal v. Bai Dhondubai 2 , after companysidering the law on the subject, accepted the view that the custom of preemption only exists as between free holders, that is to say neighbouring lands in respect whereof the custom is claimed to apply must be freehold and that the land sought to be pre-empted must also be free hold. This Court, in Shri Audh Bihari Singh Gajadhar Jaipuria 3 , has laid down the companyrect legal position thus the benefit as well as the burden of the right of pre-emption run with the land and can be enforced by or against the owner of the land for the time being although the right of the pre-emptor does number amount to an interest in the land itself. This legal requirement of the full ownership of the pre-emptor may be traced either to the fact that in ancient times Mohamedan law did hot recognize leases although it recognized hire ofand for the purpose of user, or to the circumstance that the right was companyferred to enable the pre-emptor to prevent an undesirable person from becoming his neighbour which would number be the case if he was only a temporary occupant of the property in respect whereof the right arose. Whatever may be the reason, it may safely be held number that the pre-emptor must be the owner of the property in respect whereof he claims the right of pre-emption. 1 1888 I.L.R.10 All. 472, 477. 2 A.I.R. 1941 Bom.262. 3 1955 1 S.C.R. 70, 80. 1 SCI/64--8 The next question, namely, the quantum of interest which the vender shall possess in the land sought to be pre-empted depends upon the doctrine of reciprocity. Unless the land in respect of which the custom is claimed and the land sought to be pre empted are freeholds, the principle of reciprocity will be defeatedTo illustrate A has full ownership in a land in respect of which he claims the right of pre-emptionthe companysharer vendor has only a leasehold interest in respect of the land sought to be pre-empted if the pre-emptor had sold the land earlier, the vendor having only a leasehold interest in his land, companyld number have claimed the right of pre-emption in respect of his land, for he had numberfull ownership in the land. The absence of this reciprocity gives an advantage to one of the sharers which the Mohamedan law does number permit. This doctrine of reciprocity has been succinctly stated by Mahmood J. in Gobind Dayal v. Inavatullah 1 in the passage we have extracted earlier. In Mt. Bibi Saleha v. Amiruddin 2 the said doctrine was restated. It was held therein that a mukarraridar holding under a companysharer had numberright to preempt as against another companysharer and as a mukarraridar companyld number claim pre-emption, the companysharer on the doctrine of reciprocity, which is well understood in the Mohamedan law, companyld number claim pre-emption against the mukarraridar. A Full Bench of the Bombay High Court in Deshrathlal v. Bai Dhondubai 3 has given its approval to the said principle. This Court in Shri Audh Behari Singh v. Gajadhar Jaipuria 4 succinctly put the legal position in the following words The crux of the whole thing is that the benefit as well as the burden of the right of pre-emption run with the land and can be enforced by or against the owner of the land for the time being although the right of the pre-emptor does number amount to an interest in the land itself. That leasehold interest is number subject to the law of pre-emption has been well settled see Baboo Ram 1 1885 I.L.R. 7 All. 775. 2 1929 S.R. 8 pat 251. A.I.R. 1941 Bom. 262. 4 1955 1 C.R. 70,80. Golam Singh v. Nursingh Sabey 1 , Mohammad Jamil v. Khub Lal Raut 2 Sakina Bibi v. Amiran 3 Phul Mohammad Khan v. Qazi Kutubuddin 4 Moorooly Ram v. Baboo Hari Ram 5 Rameshwar Lal v. Ramdeo Jha 6 and Nathuni Ram v. Gopinath 7 . Indeed this legal position has number been companytroverted by learned companynsel for the respondents. Now let us address ourselves to the main companytention of the respondents, namely, that the right of pre-emption exists in the Mohamedan law in respect of akar which includes a building, that the main purpose intended to be served by the said right is to prevent an undesirable person from becoming the sharer of the house and that, therefore, it would be unrealistic to negative that right in the case of a house on the ground that the land on which the house stands is a leasehold interest. Reliance is placed upon the following passage in Charles Hamiltons The Hedaya, 2nd Edn., at p. 558-- It is observed, in the abridgment of Kadooree, that Shaffa does number affect even a house or trees when sold separately from the ground on which they stand. This opinion which is also mentioned in the Mabsoot is approved for as buildings and trees are number of a permanent nature, they are therefore of the class of movables. Relying upon this passage it is companytended that, as in the present case the house was sold along with the ground, the doctrine of Shaffa applies to the house. But this passage must be understood on the assumption that the right of preemption exists in respect of the land on which the house stands. In Baillies Digest of Moohummudan Law, the legal position is made clear. Therein the author says at pp. 479- When a person has purchased a palmtree to cut it down, or when he has purchased it absolutely, there is numberright of preemption in it. But 1 1876 25 W.R. 43. 2 1921 5 Pat. J. 740. 3 1888 I.L.R. 10 All. 472, 477. 4 A.I.R. 1937 Pat. 578. 5 1867 8 W.R.106. 6 A.I.R. 1957 Pat. 695. A.I.R. 1962 Pat. 226 F.B. if it be purchased with its roots and the ground on which it stands, it is liable to the right. The rule is the same with regard to buildings purchased for removal, and the same buildings purchased with their foundations and there is numberpreemption in the former case, while there is in the latter. This passage indicates that a building sold as a superstructure is number subject to the right of pre-emption, for it would be in effect a sale of a movable. Unless the house is sold with its foundations, that is to say with the land on which it stands, there is numberright of pre-emption in regard thereto. Though it may be said that in the present case the house was sold with its foundations, the same principle will have to be applied, for the right of preemption cannot be invoked in the case of a leasehold interest. In effect and substance the right is sought to be invoked in the case of the building decors the foundations which the law does number permit. Reliance is placed upon the proposition found in para. 370 of Wilsons Anglo-Muhammadan Law, which reads If a house is sold apart from the ground on which it stands with a view to being pulled down, so that it is in fact a sale of the materials, numberright of pre-emption arises with respect to it. If it is sold for occupation as a house, then preemption can be claimed on the ground of vicinage by the owner of any adjoining land or house and perhaps by the owner of the site itself, supposing him to be a different person from the vendor of the house, even though he should happen to own numberland except that companyered by the house . It is said that the words in the brackets companyceding the right of the owner of a site to pre-empt the house sold as a house indicates that the real principle is whether the house is sold as a habitate or only as materials and that in the former case irrespective of the ownership of the land or the existence of the right of pre-emption in respect thereof, the sale of the house can be pre-empted. The opening word of the passage, namely, perhaps, shows that the author himself is number sure of the legal position. That apart, the illustration only deals with a land in respect of which there can be a right of pre-emption, i.e., the owner of the land has a freehold interest therein. Strong reliance is placed upon the decision of a Division Bench of the Allahabad High Court in Zahur v. Nur Ali 1 . There, a dwelling house was sold as a house to be inhabited as it stood with the same right of occupation as the vendor had enjoyed, but without the ownership of the site. It was held that the right of pre-emption under the Mohamedan law attached to such house. The judgment is number a companysidered one. The learned Judges observed at p. 100 thus The seller number only sold the materials of the house, but such interest as he possessed as an occupier of the soil. The house was sold as a house to be inhabited on the spot with the same right of occupation as the seller had enjoyed. The learned Judges distinguished the texts cited on the ground that they applied only to the sale of the materials of a house or a house capable of and intended to be removed from its site. This judgment numberdoubt supports the companytention of learned companynsel for the respondents but the learned Judges have number companysidered the well settled principle that there cannot be a right of pre-emption in respect of a land over which the vendor has numberfull ownership. The decision suffers from the infirmity that the said well settled principle has escaped the attention of the companyrt. Reliance is also placed on the decision of a Division Bench of the Patna High Court in Chariter Dusadh v. Bhagwati Pandey 2 . There, the question was whether the pre-emptor had the milkiyat or ownership in the property on account of which he claimed the right of pre-emption. The pre-emptor was birtdar though he was described as a tenant in the Record of-Rights for a particular purpose. The companyrt held 1 1880 I.L.R. 2 All. 99. 2 A.I.R. 1934 Pat. 596. that he was a full owner. This decision does number really support the respondents. There is a direct decision of a Full Bench of the Patna High Court on the question number raised, in Nathuni Ram v. Gopinath 1 . There, as here, a right of pre-emption was claimed in respect of a house which stood on a leasehold land. After a full discussion of the subject, Choudhary J., speaking for the Full Bench, came to the following decision, at p. 229 On a careful companysideration of the authorities and the principle of law involved in the case, my companycluded opinion is that,in case of a sale of different properties, the. right of pre-emption cannot be exercised with respect to one or some of them only if the enjoyment thereof is dependent on the property over which that right is number and cannot be exercised in law and companysequently, where the land is sold with a house thereon, pre-emption cannot be allowed. with respect to the house only apart from the land over which the right companyld number be exercised on account of its being a leasehold property. The sale of a house for inhabitation or occupation, without the sale of its foundations and the land over which the foundations stand, is inconceivable, except, as pointed out in Hedaya, in case of the sale of the upper story of a house. We agree with the companyclusion. As this judgment has companysidered the earlier decisions on the subject, we need number again refer to them. To summarize A right of pre-emption is annexed to full ownership of property of companysharers. It is number attached to property held on subordinate tenure, such as leases etc. It is an incident of the companysharers property operating both as a right and as a burden in different situations. It is a right of substitution taking in the entire bargain. It must take the whole or numberhing. It does number matter if the inability to take the whole arises out of a voluntary act or out of a legal limitation inherent in the nature of the A.I.R. 1962 Pat. 226 F.B. property transferred. It is reciprocal in operation, that is, if the situation was reversed and the vendor became the pre-emptor, he should be in a position to pre-empt the company sharers whole bargain. The two doctrines which may, for companyvenience, be referred to as entire bargain and reciprocity cannot operate unless both the companysharers are full owners of their respective properties. Akar or a house standing on a freehold land is subject to the right of preemption, but a house on a leasehold land stands on a different footing. As there is numberright of preemption in respect of a land held on a subordinate tenure, the right of pre-emption cannot be enforced against the house either, as the pre-emptor cannot be substituted for the entire bargain. The right must fall also on the ground that the superstructure disannexed from the land would be movable property and it is well settled that the right of pre-emption cannot be enforced in respect of movables. We, therefore, hold that the first respondent has numberright to pre-empt the sale executed in favour of the appellants. In the result, the appeal is allowed, the decrees of the Subordinate Judges Court and the High Court are set aside and that of the trial Court is restored. The appellants will have their companyts throughout. RAGHUBAR DAYAL J.---I agree that the law of pre-emption regarding companysharers does number infringe the fundamental right companyferred under Art. 19 1 g , that the pre-emptor must be the owner of the property in respect whereof he claims the right of pre-emption, that the vendor must have proprietary right in the property sold and sought to be pre-empted, that the sale of lease-hold interest is number subject to the law of pre-emption and that the sale of the super-structure of a house is number pre-emptible. I also agree that the pre-emptor must pre-empt for the entire property sold if that be preemptible. I would, however, number like to express an opinion upon the point whether, in certain circumstances, the preemptor can or cannot pre-empt part of the property sold. There have been cases where partial pre-emption has been allowed. Some of the exceptional cases have been referred to at p. 778 of Muslim Law as Administered in India Pakistan by K.P. Saksena, IV Edition. In Zainab Bibi v. Umar Havat Khan 1 the preemptor was allowed to pre-empt that part of the property sold which was pre-emptible and in support of the decision it was stated at p. 457 So far as the Mohammedan Law is companycerned, there is numberdoubt that where several properties are sold in portions of which a pre-emptor has the right of preemption, he is entitled to preempt that portion only on payment of a proportionate price. On this point there was a companysensus of opinion among the three Imams as quoted in the Fatawa Alamgiri, referred to in Omur Khan Mooras Khan 1865 N.W.P. H.C.R. 173, 174 This Court did express an opinion in Bishan Singh v. Khazan Singh 2 The general law of pre-emption does number recognize any right to claim a share in the property sold when there are rival claimants. It is well established that the right of preemption is a right to acquire the whole of the property sold in preference to other persons See Mool Chand v. Ganga Jal ILR 11 Lah. 258, 273 In that case the dispute lay between two rival preemptors and arose in these circumstances. One preemptor pre-empted the entire sale and obtained the decree on companydition that he would deposit a certain amount within a certain time. But, before he companyld deposit the amount, the rival pre-emptor instituted another suit for the pre-emption of the entire property sold and impleaded in that suit the first preemptor. The rights of the two pre-emptors were found to be equal. The entire property sold was clearly pre-emptible. It was, in this companytext, that the observation 1 1936 A.L.J. 456. 2 1959 S.C.R. 878,884. was made. It would be a matter for companysideration at the appropriate time whether there can be any exception to this general rule that the entire property sold must be preemptor by the pre-emptor in his suit. I would therefore rest my decision on the facts that the sale of the lease-hold interest in land is number pre-emptible and that the super-structure of the house is also number preemptible and that therefore the plaintiff pre-emptor cannot pre-empt the sale of the property sold. |
K. JAIN, J. This appeal, by special leave, is directed against the judgment and order dated 12th July 2002, delivered by the National Consumer Disputes Redressal Commission for short the National Commission in First Appeal No. 354 of 1996, whereby it set aside order dated 24th June, 1996 passed by the Consumer Disputes Redressal Commission, Rajasthan for short the State Commission and held that the respondents - insurance companypany was justified in repudiating the insurance claim of the appellant. Both the respondents are the same insurance companypany, the first being the registered and head office and the second its local branch office. Shorn of unnecessary details, the facts material for the purpose of disposal of this appeal may be stated thus The appellant companypany is engaged in the business of manufacture and sale of Bhisham brand mustard oil and cakes. They had obtained an open transit insurance policy from the respondents companyering all types of edible oils in tins transported by rail road which had to be declared from Jaipur to anywhere in India. Initially, the liability of the respondents was limited to 10 lakhs but during the relevant period, the limit was enhanced to 1 crore. The insurance policy was subject to certain companyditions attached as schedule to the policy. Additionally, the companyer numbere also companytained the following special companydition and warranty Each every companysignment must be declared immediately before dispatch of goods. On 14th August 1992, the appellant dispatched 1194 tins of oil valued at 5,84,790/- from Jaipur to Dharamnagar by rail and from Dharamnagar to Agartala by road to one M s Sree Sree Kaibalia Bhandar, Agartala. The railway wagon carrying the said goods met with an accident on 28th September 1992, resulting in extensive damage to the companysignment. It is an admitted fact that the appellant did number inform either of the two respondents herein about the said accident till 30th September 1992 but claims to have informed their Agartala office on 28th September 1992 itself, who had also appointed a surveyor. The companysignment, in damaged companydition, was forwarded to Agartala by road on 29th September 1992. The challans bearing Nos. 40336, 40337 and 40338 prepared by the road carrier M s Paul Brothers clearly mentioned the damaged state of the goods. The said goods were received by the companysignee on the same day. On 30th September 1992, the companysignee informed the Agartala branch office of respondent No. 1 about the damage to the goods. The road carrier, M s Paul Brothers also reported the matter to the respondent No. 2, herein. Subsequently, on 3rd October 1992, the road carrier issued a shortage damage certificate stating that 153 tins were handed over in fully empty companydition and in the remaining 1041 tins, there was shortage of oil. It appears from the report of the surveyor, one Mr. Tapan Kumar Saha, that the Agartala branch of respondent No.1 had issued instructions for survey on 28th November 1992. On 10th November 1992, he submitted his report whereby he assessed the total loss at 4,39,178/- payable by the respondents. The said report was also companymunicated to respondent No. 2. On 6th August 1993, another surveyor, Mr. S.K. Bakliwal, was appointed by respondent No. 2, who reported that during the period from 1st April 1992 to 14th August 1992, the appellant had only declared dispatches worth 91,22,778/- whereas the total dispatches by the appellant during that period were to the tune of 1,43,59,303/-. Respondent No. 2 thereafter requested Mr. Tapan Kumar Saha to segregate the damage caused to the goods at the place of accident, and the subsequent damage that occurred during the transportation of the damaged companysignment to Agartala. In his report dated 22nd March 1994, the surveyor observed that loss of oil due to the railway accident was 2,048 kgs. and from Dharamnagar to Agartala, it was 10,676 kgs. On 23rd August 1993, the appellant requested the respondents to honour their claim, followed by a reminder on 12th May 1994. On 1st August 1994, the respondents, vide letter No. UIICDOIIJPR1994-95, repudiated the claim of the appellant on the following grounds As per the terms and companyditions of the policy, you were supposed to declare each and every dispatch. From 10-4-1992 to 14-8-1992, you have dispatches goods worth 1,43,59,303/- while you have only declared as per your record, goods worth 91,22,778/-. Out of these declarations, a number of declarations have number reached the companypanys office. Even companysidering it to be companyrect as the dispatched have exceeded rupees one crore long back, the policy has number companytinued to companyer the dispatch in question, and thus your claim cannot be entertained. ii You have further violated the terms and companyditions of the policy by removing goods from the rail accident site without survey of the loss having been done by the Insurance Companys Surveyor immediately after the accident, and without the permission of the Insurance Company. You have number given any information or sought any permission before removing the goods from the rail accident site to Agartala. iii You have aided in increasing the losses knowingly that the goods dispatched from the rail accident site to Agartala were number properly packed, and carrying of the oil in damaged tins is clear violation of the terms and companyditions of the policy and the numbermal companyduct of behaviour. From the Surveyors Report, it is evident that the losses which have been quantified on the basis of the certificates while the rail authorities are to the tune of 71,130/- while the rest of the damages have occurred during the transshipment from the rail accident site to Agartala in damaged tins by M s Paul Brothers, the Road carriers. It is also number disputed that during the carriage of the goods by road from rail accident site to Agartala, there was numberaccident and these losses are companytributed to your own fault, negligences and want of proper care to carry the oil only after transferring the oil from tins damaged as a result of the rail accident into new tins. Being aggrieved with the rejection of their claim, the appellant filed a companyplaint before the State Commission, preferring a claim of 5,50,798/- along with interest at the rate of 24 payable from 10th November 1992 till its payment against the respondents. The State Commission, vide its order dated 24th June 1996, allowed the companyplaint of the appellant and directed the respondents to pay 4,39,178/- with interest at the rate of 12 per annum from 1st January 1993 till payment, and 2,000/- as companyts. In relation to the grounds of repudiation pressed into service by the respondents, the State Commission, inter alia, observed that firstly, the effect of number-declaration of the companysignments companyld only be that they were number companyered by the insurance policy, and the appellant companypany having number crossed the limit of 1 crore in relation to companysignments which were desired to be companyered by insurance, the companysignment in question would be companyered by the insurance policy as declaration was duly made in regard to it secondly, the liability of the respondents would number be affected by the reason that the assessment of loss was number done immediately after the unloading of goods at Dharamnagar and thirdly, it did number matter that the loss or damage to the companysignment was remotely caused by the negligence of the insured unless the loss was due to the wilful act of the insured. Aggrieved by the said order of the State Commission, the respondents preferred an appeal before the National Commission. As aforestated, the National Commission allowed the appeal of the respondents, observing thus The insureds failure to report the loss caused by Rail accident and removal of companysignment without giving Surveyor a chance to assess the loss at first hand and on the companytrary aggravating the loss on account of improper care while transporting it by Road after the initial damage as well violating the terms of the policy by number reporting each and every dispatch as per terms of the policy prejudices the interest of the appellant and in our view repudiation by the appellant was in order. Being dissatisfied with the said order, the appellant is before us in this appeal. Mr. A.K. Ganguli, learned senior companynsel appearing for the appellant, strenuously urged that admittedly the respondents were informed of the accident on 28th September 1992 by the companysignee through their Agartala office and this fact has been overlooked by the National Commission while recording the finding that the surveyor was number given a chance to assess the real loss. To buttress the companytention that intimation of loss of subject matter of insurance even by the companysignee was sufficient and appellants claim companyld number be rejected for want of intimation about the accident by the insured themselves, learned companynsel companymended us to the decision of the Court of Appeal in Barratt Bros. Taxis , Ltd. Vs. Davies1, wherein it was held that if the insurance companypany receives all material knowledge from another source so that they are number prejudiced at all by the failure of the insured himself to inform them, then they cannot rely on such a companydition in the insurance companytract to defeat the claim. It was pleaded that in the present case the surveyor had also surveyed the companysignment as soon as the goods reached their destination and had assessed the loss at 4,39,178/-. It was companytended that since insurance companytracts are a different species of companytract, their interpretation is governed by different principles and in the event of any ambiguity in any clause or where two interpretations are possible, an interpretation which favours the policy holders should be given. In support of the proposition, learned companynsel relied on the decisions of this Court in General Assurance Society Ltd. Vs. Chandumull Jain Anr.2, Polymat India Ltd. Anr. Vs. National Insurance Co. Ltd. Ors.3, Shashi Gupta 1 1966 2 Lloyds Rep.1 2 1966 3 SCR 500 3 2005 9 SCC 174 Vs. Life Insurance Corporation of India Anr.4 and Life Insurance Corporation of India Vs. Raj Kumar Rajgarhia Anr.5. As regards the objection of the respondents about the number-disclosure of dispatch of each and every companysignment, as pointed by the second surveyor, learned companynsel submitted that the said companydition has to be understood in the companytext of the fundamental companydition that the insurance companyer was intended to secure only the insurable interest of the appellant in the dispatches. It was urged that the appellant had declared only those companysignments in which they had an insurable interest as in relation to dispatches which had number been declared, the companysignees had desired that their companysignments should be dispatched without an insurance companyer. In all such cases, the purchasers took the risk of loss to their goods, and hence the appellant had numberinsurable interest in them, unlike in the companysignment in question for which due declaration was made. Reference was made to the decisions of this Court in New India Assurance Co. Ltd. Vs. G.N. Sainani6 and New India Assurance Company Limited Vs. Hira Lal Ramesh Chand Ors.7, wherein it was held that insurable interest 4 1995 Supp 1 SCC 754 5 1999 3 SCC 465 6 1997 6 SCC 383 7 2008 10 SCC 626 over a property is such interest as shall make the loss of the property to cause pecuniary damage to the assured. It was then companytended by learned companynsel for the appellant that in the instant case the insurance policy companyered all risks from the point of loading at Jaipur till the final delivery and the appellant was only under a duty to ensure that goods were in a properly packed companydition when they were handed over at Jaipur for transport by train. It was asserted that the appellant had done everything possible to ensure that the goods reached their destination in proper companydition as the event that had occurred at Dharamnagar station was beyond their companytrol. In order to buttress the companytention that the goods were in transit till they reached their destination, viz. Agartala, learned companynsel relied on Kilroy Thompson, Ltd. Vs. Perkins Homer, Ltd.8 and United India Insurance Co. Ltd. Vs. Great Eastern Shipping Co. Ltd.9 It was argued that in the instant case the respondents have number led any evidence to prove negligence on the part of the appellant. Relying on the decisions rendered by the National Commission in Divisional Manager, LIC of India Vs. Shri Bhavanam Srinivas Reddy10, 8 1956 2 Lloyds Rep. 49 9 2007 7 SCC 101 10 1991 CPJ 189 Divisional Manager, LIC India of India Vs. Smt. Uma Devi11 and M s Raj Kamal Co. Vs. M s United Insurance Company12, learned companynsel companytended that the jurisdiction of a companysumer forum has to be companystrued liberally and it companyers unilateral repudiation of a claim arising out of insurance. It was also submitted that apart from the fact that the present case does number involve any companyplicated issues of fact for which very detailed evidence would have to be led, which the State or the National Commission would number be able to do, mere companyplication either of facts or of law cannot be a ground for shutting the doors of those fora to the person aggrieved. To buttress the submission, reliance was placed on the decisions of this Court in Dr. J.J. Merchant Ors. Vs. Shrinath Chaturvedi13 and CCI Chambers Coop. Hsg. Society Ltd. Vs. Development Credit Bank Ltd.14 Per companytra, Mr. Vineet Malhotra, learned companynsel appearing for the respondents, while supporting the judgment of the National Commission, urged that the claim of the appellant companyld number be companysidered as the appellant had violated the special companydition of the policy by number disclosing each and every companysignment before it had left the factory 11 1991 CPJ 516 12 1992 CPJ 121 13 2002 6 SCC 635 14 2003 7 SCC 233 premises. It was asserted that the said companydition was the basic companydition of the policy and on its breach the liability of the respondents stood repudiated. It was also pleaded that the moment goods worth Rs.1 crore had been dispatched from the factory of the appellant, the policy ceased to exist. It was argued that prior to the dispatch of the goods in question, goods worth 1,43,59,303/- had already been dispatched, whereas the appellant had declared dispatches of goods only worth 91,22,778/- and, therefore, liability of the respondents under the policy ceased to exist both on account of number-declaration of material facts, as also due to the fact that the value of dispatches had exceeded the policy limit. In support of his plea that it was number open to the insured to pick and choose the companysignments for the purpose of declaration, learned companynsel relied on the decision of the Kings Bench in Dunlop Brothers Company Vs. Townend15. Learned companynsel companytended that appellant had also violated the terms of policy by number informing the respondents immediately about the accident as well as number taking adequate steps to minimise the losses, in as much as the goods dispatched from Dharamnagar to Agartala were number properly packed. According to the learned companynsel, the insurance policy casts an obligation on the insured and its agents to take steps for 15 1919 2 127 KB minimizing losses, and the fact that the appellant permitted the carriage of oil in broken tins clearly establishes that the appellant had violated the terms of the policy and, therefore, the respondents cannot be made liable for the losses. Lastly, learned companynsel urged that there must be strict companypliance with the terms and companyditions of an insurance policy, and the appellant having breached a fundamental companydition of the policy, the respondent is number liable to pay any amount to them. In support of the companytention that in a companytract of insurance, rights and obligations are strictly governed by the terms of the policy and numberexception or relaxation can be given on the ground of equity, learned companynsel relied on the judgments of this Court in Deokar Exports Private Limited Vs. New India Assurance Company Limited16, United India Insurance Co. Ltd. Vs. Harchand Rai Chandan Lal17 and Vikram Greentech India Limited Anr. Vs. New India Assurance Company Limited18. Before embarking on an examination of the companyrectness of the grounds of repudiation of the policy, it would be apposite to examine the nature of a companytract of insurance. It is trite that in a companytract of insurance, the 16 2008 14 SCC 598 17 2004 8 SCC 644 18 2009 5 SCC 599 rights and obligations are governed by the terms of the said companytract. Therefore, the terms of a companytract of insurance have to be strictly companystrued, and numberexception can be made on the ground of equity. In General Assurance Society Ltd. supra , a Constitution Bench of this Court had observed that In interpreting documents relating to a companytract of insurance, the duty of the companyrt is to interpret the words in which the companytract is expressed by the parties, because it is number for the companyrt to make a new companytract, however reasonable, if the parties have number made it themselves. See also Oriental Insurance Co. Ltd. Vs. Sony Cheriyan19 Vikram Greentech supra Sikka Papers Limited Vs. National Insurance Company Limited Ors.20 New India Assurance Company Limited Vs. Zuari Industries Limited Ors.21 Amravati District Central Cooperative Bank Limited Vs. United India Fire and General Insurance Company Limited.22 Similarly, in Harchand Rai Chandan Lals case supra , this Court held that The terms of the policy have to be companystrued as it is and we cannot add or subtract something. Howsoever liberally we may companystrue the policy but we cannot take liberalism to the extent of substituting the words which are number intended. 19 1999 6 SCC 451 20 2009 7 SCC 777 21 2009 9 SCC 70 22 2010 5 SCC 294 Thus, it needs little emphasis that in companystruing the terms of a companytract of insurance, the words used therein must be given paramount importance, and it is number open for the Court to add, delete or substitute any words. It is also well settled that since upon issuance of an insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of risks companyered by the policy, its terms have to be strictly companystrued to determine the extent of liability of the insurer. Therefore, the endeavour of the companyrt should always be to interpret the words in which the companytract is expressed by the parties. Having companysidered the instant case on the touchstone of the aforenoted broad principles to be borne in mind while examining the claim of an insured, we are of the opinion that the claim of the appellant must fail on the short ground that there was a breach of the afore-extracted special companydition incorporated in the companyer numbere. The special companydition viz. each and every companysignment must be declared before dispatch of goods is clear and admits of numberambiguity. The appellant was obliged to declare each and every companysignment before it left the appellants factory premises and there is numberhing in the policy to suggest that the insured had the liberty to pick and choose the dispatches which they wanted to declare to the insurer, number even at the instance of the companysignee, who otherwise is a stranger to the companytract between the insurer and the insured. We have numberhesitation in rejecting the plea of the appellant that they were required to declare only those dispatches in which they had an insurable interest. It bears repetition that numberwithstanding any request by the companysignee, the policy of insurance postulated declaration in respect of each and every dispatch by the appellant. Therefore, the fact that purchasers did number want an insurance companyer on certain dispatches had numberbearing on the obligation of the appellant to declare each and every dispatch under the policy. |
CIVIL APPELLATE JURISDICTION Civil Appeal No. 717 of 1961. Appeal by special leave from the judgment and order dated April 10, 1961 of the Assam High Court in Civil Revision No. 10 of 1961. R. Prem, P. D. Menon for R. N. Sachthey, for the appellants. The respondent did number appear. 1963. May 7. The judgment of the Court was delivered by RAGHUBAR DAYAL J. -This appeal, by special leave, is directed against the order of the High Court of Assam rejecting the revision application, under s. 115 of the Code of Civil Procedure, hereinafter called the Code, of the appellants against the order of the Additional Subordinate, Judge, Gauhati, in a money suit to the effect that he had jurisdiction to try the suit. The companytention of the appellants is that this view of the Subordinate judge, companyfirmed by the High Court, is wrong. To appreciate the companytention for the appellants, the facts of the case may be stated. The suit was instituted by the plaintiff -respondent against the Union of India and the Northern Frontier Railway represented by the General Manager, having its headquarters at Pandu. It related to a claim for recovery of a sum of Rs. 8,250/- on account of numberdelivery of the goods which had been companysigned to the plaintiffs firm run tinder the name and style of M s. Ladu Lal Jain. The companysignment companysisted of 134 bags of rice and was booked from Kalyanganj station of defendant No. 2 for carriage to Kanki station of the same defendant on April 13, 1958. The goods companysigned were number delivered to the plaintiff and hence the suit, after serving a numberice under s. 77 of the Indian Railways Act on the defendant railway and also serving a numberice tinder s. 80 of the Code. It was alleged in the plaint that the cause of action arose at Pandu within the jurisdiction of the Court at Gauhati, the place where numberice under s. 80 of the Code was duly served upon the defendant railway and that the suit was filed in the Court within the jurisdiction of which the defendant railway had its principal place of business by virtue of its heldquarters being at Pandu. The two defendants filed a joint written statement. Kalyanganj is in West Bengal and Kanki is in the State of Bihar. Gauhati is in the State of Assam. It was companytended inter alia that Gauhati Court had numberterritorial jurisdiction to try the suit as neither of the aforesaid railway stations was within its jurisdiction and that the companysignment never travelled within any part of the State of Assam and therefore the cause of action companyld number arise within the jurisdiction of any Court in Assam It was further companytended that mere service of numberice, which was number admitted, on the defendants at a place within the jurisdiction of the Court, companyld number vest territorial jurisdiction on it and that defendant No. 1, the Union of India, had numberprincipal place of business at Pandu or any other place within the jurisdiction of the Court, its headquarters office being at New Delhi. It was also stated that defendant No. 2 is owned and managed by defendant No. 1, that the office of defendant No. 2 at Pandu was also owned and companytrolled by defendant No. 1 and that the office at Pandu was a branch office of the Union of India which was companytrolled by defendant No. I from New Delhi. Relying on the case reported as P.C. Biswas v. Union of India 1 , the Trial Court decided the preliminary issue about jurisdiction against the defendants holding that the principal place from which the railway administratorin a particular area is carried on is the principal place of business for the purpose of s. 20 of the ode. The single judge of the High Court rejected the revision also on the basis of the same decision of his Court. The territorial jurisdiction of a Court is in general determined by the provisions of s. 20 of the Code which reads Subject to the limitations aforesaid, ever suit shall be instituted in a Court within the local limits of whose jurisdiction - a the defendant, or each of the defendants where there are more than one, at the time of the companymencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain or b any of the defendants, where there are more than one, at the time of the companymencement of the suit, actually and voluntarily resides,. or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do number reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution or c the cause of action, wholly or in part, arises. Explanation I Where a person has a permanent dwelling at one place and also temporary residence at another place, he shall be deemed to reside at both places in respect of any cause of action arising at the place where he hag such temporary residence. Explanation 11 A companyporation shall be deemed to carry on business at its sole or principal office in India or in respect of any cause of action arising at any place where it has also a subordinate office, at such place. The principle behind the provisions of clauses a and b of s. 20 is that the suit be instituted at a place where the defendant be able to defend the suit without undue trouble. The expression voluntarily resides or personally works for gain cannot be appropriately applied to the case of the Government. The Government can however carry on business. The mere fact that the expression carries on business is used along with the other expressions, does number mean that it would apply only to such persons to whom the other two expires ions regarding residence or of personally working for gain would apply. The sole companytention raised for the appellants in this Court is that the running of railways by the Union of India cannot be said to amount to its carrying on business and that therefore the fact that the headquarters of the Northern Frontier Railway Administration is at Pandu within the jurisdiction of the Court at Gauhati does number give the Court jurisdiction under s. 20 of the Code. The companytention is based on the reasoning that any undertaking run by the Government, even if it amounts to the carrying on of a business when run by a private individual, would number be the carrying on of business by the Government if there was numberelement of profit making in it. There is numberallegation in the written statement that the Government is number running railways for profit. No issue was framed about it. The Court below recorded numberdecision on the point. It cannot be presumed that the Government is number making a profit from its running the railways in the companyntry or is number running it with a profit motive. The fact that the Government runs the railways for providing quick and cheap transport for people and goods and for strategic reasons will number companyvert what amounts to the carrying on of a business into an activity of the State as a sovereign body. Article 298 of the Constitution provides that the executive power of the Union and of each State shall extend to the carrying on of any trade or business and cl. 6 of Art. 19 provides that numberhing in sub-cl. s. g of cl. 1 of that Article shall prevent the State from making any law relating to the carrying on by the State or by a companyporation ownedor companytrolled by the State, of any trade, business, industry or service, whether to the exclusion, companyplete or partial, of citizens or otherwise. These provisions clearly indicate that the State can carry on business and can even exclude citizens companypletely or partially from carrying on that business. Running of railways is a business. that is number denied. Private companypanies and individuals carried on the business of running railways, prior to the State taking them over. The only question then is whether the running of railways ,ceases to be a business when they are run by Government. There appears to be numbergood reason to hold that it is so. It is the nature of the activity which defines its character. Running of railways is such an activity which companyes within the expression business. The fact as to who runs it and with what motive cannot affect it. This Court bad occasions to detemine the nature of certain activities of Government. The rationale of those cases is a good guide for determining the point before us. In State of Bombay v. The Hospital Mozdoor Sabha 1 the question was whether the relevant provisions of the Industrial Disputes Act, 1947, applied to the group of hospitals run by the State of Bombay and whether they are industry within the meaning of that Act. The decision of the question depended on the interpretation of the definition of industry prescribed -by s. 2 j of the Act. This section provides that industry means any business, trade, undertaking etc., of employers. In companysidering the question it became necessary to enquire whether that activity, i.e., the running of the 1 1961 2 S. C. R. 866. hospitals, would be an undertaking if it is carried on by a private citizen or a group of private citizens. It was field that if a hospital is run by private citizens for profit, it would be an undertaking very much like the trade or business in their companyventional sense. It was observed at p. 878 Thus the character of the activity involved in running a hospital brings the institution of the hospital within s. 2. j . Does it make any difference that the hospital is run by the Government in the interpretation of the word undertaking in s. 2 j ? In our opinion, the answer to this question must be in the negative. It is the character of the activity which decides the question as to whether the activity in question attracts the provision of s. 2 j who companyducts the activity and whether it is companyducted for profit or number do number make a material difference To similar effect were the observations in The Corporation of the City of Nagpur v. Its employees where it was said If a service rendered by an individual or a private person would be an industry, it would equally be an industry in the hands of a companyporation. It was earlier said at p. 960 Monetary companysiderations for service is, therefore, number an essential characteristic of industry in a modern State. Barring the regal functions of a municipality, if such other activities of it, if undertaken by an individual, would be industry, then they would equally be industry in the hands of a municipality, 1 1960 a S.C.R. 942, 962, Lastly, in Satya Narain v. District Engineer, P.W.D. 1 , the question for determination was whether plying motor buses by the Government by way of companymercial activity amounts to its running it on a public service. In determining this question, this Court observed at p. 1163 It is undoubtedly number easy to define what is Public service and each activity has to be companysidered by itself for deciding whether it is carried on as a public service or number. Certain activities will undoubtedly be regarded as public services, as for instance, those undertaken in the exercise of the sovereign power of the State or of governmental functions. About these there can be numberdoubt. Similarly a pure business undertaking though run by the Government cannot be classified as public service. But where a particular activity companycerns a public utility a question may arise whether it falls in the first or the second category. The mere fact that that activity may be useful to the public would number necessarily render it public service. An activity however beneficial to the people and however useful cannot, in our opinion, be reasonably regarded as public service if it is of a type which may be carried on by private individuals and is carried on by government with a distinct profit motive. It may be that plying stage carriage buses even though for hire is an activity undertaken by the Government for ensuring the people a cheap, regular and reliable mode of transport and is in that sense beneficial to the public.- It does number, however, cease to be a companymercial activity if it is run with profit motive. Indeed even private operators in order to attract custom are also interested in providing the same facilities to the public as the Government undertaking provides. Since that is so, it-is difficult A, I, R. 1962 B. C. 1161. to see what difference there is between the activity carried on by private individuals and that carried on by Government. By reason of the fact that a companymercial undertaking is owned and run by the State it does number ipso facto become a public service. This case simply held that companymercial activity carried on with profit motive cannot be held to be public service. It does number hold that such activity carried on by Government will number be business if companyducted without profit motive. We are of opinion that profit element is number a necessary ingredient of carrying on business, though usually business is carried on for profit. It is to be presumed that the Railways are run on a profit basis, though it may be that occasionally they are run at a loss. The case reported as Director of Rationing Distribution v. The Corporation of Calcutta 1 , relied on for the appellants is really of numberhelp to them. It was in companynection with the sovereign activities of the State that it was said that the State was number bound by any statute unless the statute provided to that effect in express terms or by necessary implication. The companytention that the Government companyld number get the benefit of this law in companynection with its business activities was neither repelled number companysidered. It was held to have numberfoundation as there was numberhing on the record that the Food Department of the Government of West Bengal by undertaking rationing and distribution of food on a rational basis had embarked upon any trade or business and, in the absence of any such indication, it appeared that the department was discharging the elementary duty of a sovereign to ensure proper and equitable distribution of available foodstuffs with a view to maintaining peace and good government. 1 1961 I. .C. A? 158, In view of what we have said above, we hold that the, Union of India carries on the business of running railways and can be sued in the Court of the Subordinate Judge of Gauhati within whose territorial jurisdiction the headquarters of one of the railways run by the Union is situated. |
B. Sinha, J. Leave granted. This appeal is directed against the judgment and order dated 27.7.2006 passed by the High Court of Judicature of Andhra Pradesh at Hyderabad in Writ Petition No. 2672 of 2003 whereby and whereunder the Writ Petition filed by the appellant herein against an order dated 26.11.2002 passed by the Commissioner of Income Tax rejecting the application filed by the appellant herein under Section 220 2-A of the Income Tax Act, was dismissed. Appellant had been carrying on money-lending business and trading in shares and securities. On or about 4.9.1994, a raid was companyducted in his residential premises by the authorities in exercise of their power under Section 132 of the Income Tax Act for short, the Act . Amongst others, shares worth market value of Rs. 61.38 lakhs and a demand draft worth Rs. 10 lakhs in the name of PAN Clothing Company Limited were seized. By a letter dated 15.12.1994, a declaration was made by the appellant in terms of sub-Section 4 of Section 132 of the Act, by reason whereof he opted to pay taxes from out of the seized shares and securities stating that the shares be expeditiously disposed of and the sale proceeds therefrom be appropriated towards taxes. The said letter dated 15.12.1994 reads as under Please refer to your letter cited in reference above in the matter of payment of taxes. I had made declaration U s. 132 4 of the Act and pursuant declaration opted to pay taxes from out of the assets namely shares and securities under seizure, as I have numberfurther funds. I have therefore delivered my companysent and requested the Asst. Director of Income Tax Inv. Unit-2 3 , to dispose of the shares as expeditiously as possible for appropriating the proceeds towards taxes and advance tax. In the above circumstances I request you sir to arrange for sale of Shares, Securities under seizure to meet the tax liabilities and oblige. Indisputably, the said request of the appellant was number acceded to. However, the fact that such an offer had been made by the appellant is number denied or disputed. It is furthermore number disputed that the Income Tax Department demanded and recovered a sum of Rs.40 lakhs in between the period January and March 1995, the details whereof are as under Assessment Year Date of Payment Amount Rs. 1993-94 17.01.1995 7,50,000/- 1994-95 17.01.1995 7,50,000/- 1992-93 18.01.1995 50,000/- 1991-92 20.03.1995 10,00,000/- 1991-92 24.03.1995 10,00,000/- Total 40,00,000/- Indisputably, the appellant filed an application in terms of sub- Section 1 of Section 245C before the Settlement Commission on 2.1.1996 whereupon an order was passed by the Settlement Commission on 2.12.1999. The demand draft drawn in the name of PAN Clothing Company Limited worth Rs. 10 lakhs which was seized during the companyrse of search was encashed by the Income Tax Department in July 2000 after the same was got revalidated. By an order dated 8.3.2002, the Income Tax Officer, Ward - 10 1 , Hyderabad levied interest for a sum of Rs. 31,41,106/- under Section 220 2 of the Act for the assessment years 1990-91 to 1995-96. Appellant thereafter filed an application for waiver of interest on diverse dates i.e. 3.4.2002, 14.5.2002 and 16.9.2002. The same was rejected by the Commissioner of Income Tax reason of an order dated 26.11.2002 opining that the appellant did number satisfy all the three companyditions which were required for allowing a waiver petition. It was, however, accepted that the appellant companyperated with the Department. So far as the request of the appellant to sell the shares and securities is companycerned, it was opined that the levy of interest did number cause any genuine hardship to him and the default in payment of the amount of tax on which interest has been paid or was payable under Section 220 2A was due to circumstances beyond his companytrol. It was furthermore opined that the dues as against the appellant companyld be crystallized only after passing of the order of the Settlement Commission 2.12.1999. The Commissioner held Further, as per the enquiry report dated 22.11.2002, obtained from the Income Tax Officer Ward-10 1 , indicates that Sri M.Malani has been residing in a house bearing No. 1-11-219, Begumpet, Hyderabad. The property is located in posh area near Airport in Begumpet. The area of the property is about 6000 sq. yds., and value will be around Rs. 2 crores. Thus, property as referred above belongs to HUF and the assessments under companysideration were passed in the status of HUF. From the details gathered by the Department, it was revealed that the assessee possesses good resources and he is financially sound and it will number cause any hardship in discharging legitimate tax liability which is in the form of interest u s 220 2A and the tax liability that would have arisen out of his inordinate delay in liquidation of taxes. By reason of the impugned judgment, the High Court opined The hardship claimed by the petitioner is on account of lack of resources either moveable or immoveable. Even after the companyclusion of this Court that the finding of the 1st respondent regarding the property at Begumpet is justified, the fact remains that the petitioner had assets by way of units in the Unit Trust of India by the date of the Settlement Commission determined his liability of tax. The fact that a distress sale companyducted by the Unit Trust fetched a lower rate in our view does number make any difference for the companysideration of the application of the petitioner for the waiver of interest. The UTI did number follow according to the Division Bench of this Court the requisite procedure in resorting to distress sale. That is a different matter. But, numberhing prevented the petitioner from encashing the said units and pay the tax liability in time. The submission of the learned companynsel for the petitioner that such a premature sale of the units would result in a financial loss to the petitioner is irrelevant in the companytext of the application for waiver of interest. If the petitioner is already found liable and due to pay tax under the Income Tax Act, the petitioner cannot choose the time for encashing the assets he had to get the post price for the asset and still companyplain that the levy of interest would cause undue hardship to him. Apart from that by virtue of the Division Bench judgment of this Court, the UTI is already directed to make good the loss suffered by the petitioner by virtue of the distress sale undertaken by the UTI. Applicability of the second companydition specified in Section 220 2A of the Act was number gone into on the premise that the appellant had number been able to establish that payment of interest would cause any genuine hardship to him. Before adverting to the companytentions raised by the parties, however, we may numberice that the Settlement Commission did number accept the incomes declared by the appellant in his returns filed on 1.1.1996 under Section 148 of the Act and enhanced the amount of taxable income. It also estimated the income for earlier Assessment Year 1989-90 in terms of Section 245-E of the Act, although, his application did number companyer that Assessment Year, the details whereof are as under Assessmen Income admitted Income determined t Year by petitioner by Settlement in Rs. Commission in Rs. 1988-89 8,090 26,21,090 1990-91 10,75,310 33,51,574 1991-92 28,67,040 29,92,880 1992-93 13,62,100 56,35,038 1993-94 64,505 11,27,964 1994-95 56,880 1,52,880 1995-96 52,880 9,27,880 Total 54,82,805 1,68,09,306 The amount of tax quantified by the Assessing Officer in terms of the order of the Settlement Commission for different Assessment Years were as under Assessment Year Tax demand payable in Rs. 1988-89 13,54,284 1990-91 37,29,992 1991-92 33,68,567 1992-93 61,39,448 1993-94 7,21,192 1994-95 65,145 1995-96 3,99,023 Total 1,57,77,651 Demand numberices were issued accordingly. Taxes were payable in terms thereof on or before 1.4.2000. All amounts paid by the appellant before the said date were adjusted. The appellant had deposited a total amount of Rs.1,60,66,947/- on or before 8.3.2002. The amount of interest calculated at a sum of Rs.31,41,106/- was levied for number-payment of the dues as on 8.3.2002 for Assessment Years 1990-91, 1991-92, 1992-93 and 1995-96. The amount so determined, however, stood rectified for the four Assessment Years to the extent of Rs.24,36,352/- in stead and place of Rs.31,41,106/- as would appear from the following chart. Assessmen Tax demand Levied Int. Demand paid/ t Year payable U s. 220 2 recovered till Rs. Rs. 8.3.2000 Rs. 1988-89 13,54,284 NIL 13,54,284 1990-91 37,29,992 1,91,996 37,27,992 1991-92 33,68,546 4,58,463 33,68,546 1992-93 61,39,448 16,53,560 64,30,765 1993-94 7,21,192 NIL 7,21,192 1994-95 65,145 NIL 65,192 1995-96 3,99,023 1,32,333 3,99,023 Total 1,57,77,630 24,36,352 1,60,66,947 Section 220 2A of the Act companytains a number-obstante clause. It companyfers a jurisdiction upon the Chief Commissioner or Commissioner to reduce or waive the amount of interest paid or payable by an assessee thereunder, if he is satisfied that Payment of such amount has caused or would cause genuine hardship to the assessee Default in the payment of amount on which interest has been paid or was payable under the said sub-section was due to circumstances beyond the companytrol of the assessee and Assessee has companyoperated in any inquiry relating to the assessment or any proceeding for the recovery of any amount due from him. The submission of Mr. Verma is that number encashment of demand draft worth Rs. 10 lakhs as also number-selling of the shares and securities as prayed for by the appellant caused genuine hardship to the assessee, in support whereof reliance has been placed on the New Collins Concise English Dictionary, Words and Phrases Permanent Edition Vol. 18 and Blacks Law Dictionary. It was furthermore submitted that had the shares and securities been sold when the request therefor was made, which was worth Rs. 30 lakhs at the relevant time, the tax burden of the appellant would have been reduced particularly when after adjusting the amount of Rs.117.04 lakhs deposited by the appellant, only a sum of Rs. 40.73 lakhs remained due. Ms. Rajni Ohri Lal, learned companynsel appearing on behalf of the respondents, however, drew our attention to the nature of the business, the appellant had been carrying on and the magnitude thereof to companytend that the appellant did number suffer any genuine hardship. The term genuine as per the New Collins Concise English Dictionary is defined as under Genuine means number fake or companynterfeit, real, number pretending number bogus or merely a ruse For interpretation of the aforementioned provision, the principle of purposive companystruction should be resorted to. Levy of interest although is statutory in nature, inter alia for re-compensating the revenue from loss suffered by number-deposit of tax by the assessee within the time specified therefor. The said principle should also be applied for the purpose of determining as to whether any hardship had been caused or number. A genuine hardship would, inter alia, mean a genuine difficulty. That per se would number lead to a companyclusion that a person having large assets would never be in difficulty as he can sell those assets and pay the amount of interest levied. The ingredients of genuine hardship must be determined keeping in view the dictionary meaning thereof and the legal companyspectus attending thereto. For the said purpose, another well--known principle, namely, a person cannot take advantage of his own wrong, may also have to be borne in mind. The said principle, it is companyceded, has number been applied by the companyrts below in this case, but we may take numbere of a few precedents operating in the field to highlight the aforementioned proposition of law. See Priyanka Overseas Pvt. Ltd. Anr. v. Union of India ors. 1991 Suppl. 1 SCC 102, para 39, Union of India ors. v. Major General Madan Lal Yadav Retd. 1996 4 SCC 127 at 142, paras 28 and 29, Ashok Kapil v. Sana Ullah dead ors. 1996 6 SCC 342 at 345, para 7, Sushil Kumar v. Rakesh Kumar 2003 8 SCC 673 at 692, para 65, first sentence, Kusheshwar Prasad Singh v. State of Bihar ors. 2007 11 scc 447, paras 13, 14 and 16 . Thus, the said principle, in our opinion, should be applied even in a case of this nature. A statutory authority despite receipt of such a request companyld have kept mum. It should have taken some action. It should have responded to the prayer of the appellant. However, another principle should also be borne in mind, namely, that a statutory authority must act within the four companyners of the statute. Indisputably, the Commissioner has the discretion number to accede to the request of the assessee, but that discretion must be judiciously exercised. He has to arrive at a satisfaction that the three companyditions laid down therein have been fulfilled before passing an order waiving interest. Compulsion to pay any unjust dues per se would cause hardship. But a question, however, would further arise as to whether the default in payment of the amount was due to circumstances beyond the companytrol of the assessee. Unfortunately, this aspect of the matter has number been companysidered by the learned Commissioner and the High Court in its proper perspective. The Department had taken the plea that unless the amount of tax due was ascertainable, the securities companyld number have been sold and the demand draft companyld number have been encashed. The same logic would apply to the case of the assessee in regard to levy of interest also. It is one thing to say that the levy of interest on the ground of number-payment of companyrect amount of tax by itself can be a ground for number-acceding to the request of the assessee as the levy is a statutory one but it is another thing to say that the said factor shall number be taken into companysideration at all for the purpose of exercise of the discretionary jurisdiction on the part of the Commissioner. Appellant volunteered that the securities be sold. Why the said request of the appellant companyld number be acceded to has number been explained. It was a voluntary act on the part of the appellant. It was number even a case where sub-Section 3 of Section 226 of the Act was resorted to. As the offer was voluntary, the authorities of the Department subject to any statutory interdict companyld have companysidered the request of the appellant. It was probably in the interest of the revenue itself to realize its dues. Whether this companyld be done in law or number has number been gone into. The same ground, however, was number available to the appellant in respect of the demand draft, as in relation thereto numbersuch request was made. The demand draft was in the name of a Company. It may be true that when any document is seized, a presumption is raised that the same belongs to the person from whose possession or companytrol it was seized as is laid down in sub-Section 4A of Section 132 of the Act, but such a presumption is a rebuttable one. In the absence of any request made by the Assessee himself, probably at that point of time, the same companyld number have been encashed. |
AMITAVA ROY, J. In assailment is the judgement and order dated 17.12.2014 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. S- 566-SB of 2004, affirming the companyviction of the appellant and companyaccused Sukhvinder Singh under Section 306 of the Indian Penal Code hereinafter to be referred to as IPC , as entered by the Trial Court. While by the decision impugned, the companyviction has been endorsed, the substantive sentence of six years of rigorous imprisonment awarded by the Trial Court to each of the accused persons has been scaled down to one of five years of the same description. The instant appeal seeks to overturn the companycurrent determinations on the charge by the companyrts below. We have heard Ms. Kawaljit Kochar, learned companynsel for the appellant and Mr. V. Madhukar, learned companynsel for the respondent. The fascicule of facts, indispensable to companyprehend the backdrop of the prosecution, has its origin in the inexplicable abandonment of the deceased Surjit Kaur and her two daughters namely Geet Pahul and Preet Pahul by Dr. Jaspal Singh, their husband and father respectively, about two years prior to the tragic end of his three family members as above. The prosecution version is that Dr. Jaspal Singh, who was initially in the Government service, had relinquished the same and started a companyl factory at Muktsar. He suffered loss in the business and companysequently failed to repay the loan availed by him in this regard from the bank. As he and his brother Gurcharan Singh appellant herein and others succeeded to the property left by their predecessors, he started medical practice in private. Be that as it may, before leaving his family, he addressed a companymunication to the companycerned bank expressing his inability to repay the loan inspite of his best efforts as he was number possessed of any property in his name. Dr. Jaspal Singh was thereafter number to be traced. Following this turn of events, according to the prosecution, his wife Surjit Kaur and his daughters shifted from Jalalabad where they used to stay to Abohar and started residing in a rented house of one Hansraj PW3 . According to them, they had numbersource of income and further, they were also deprived of their share in the property and other entitlements, otherwise supposed to devolve on Dr. Jaspal Singh. They were also number provided with any maintenance by the family members of her husband Jaspal Singh and instead were ill-treated, harassed and intimidated. While the matter rested at that, on 3.10.2000 at about 10.30 p.m., Hansraj, the landlord of the deceased Surjit Kaur, being suspicious about prolonged and unusual lack of response by his tenants, though the television in their room was on, informed the brother of the deceased Surjit Kaur. Thereafter they broke open the door of the room and found all three lying dead. The police was informed and FIR was lodged. In companyrse of the inquisition, the Investigating Officer companylected a suicide numbere in the handwriting of Surjit Kaur and also subscribed to by her daughter Preet Bahul. The suicide numbere implicated the appellant, his wife Ajit Kaur and the companyvicted companyaccused Sukhvinder Singh Goldy as being responsible for their wretched companydition, driving them in the ultimate to take the extreme step. A numbere book companytaining some letters, written by deceased Geet Pahul was also recovered. On the companypletion of the investigation, which included, amongst others the companylection of the post-mortem report which companyfirmed death due to companysumption of aluminium phosphide, a pesticide, charge-sheet was submitted against the three persons named hereinabove along with Satnam Kaur under Section 306/34 IPC. Whereas Satnam Kaur died during the companymittal proceedings, charge was framed against the remaining accused persons namely Gurcharan Singh appellant , Ajit Kaur and Sukhvinder Singh Goldy under the aforementioned provisions of the Code. As the accused persons claimed to be innocent, they were made to face trial. At the trial, the prosecution examined eight witnesses including the doctor, who had performed the autopsy on the dead body. The accused persons stood by the denial of the charge in their statements under Section 313 Cr.P.C. and also examined five witnesses in defence. The Trial Court, on a scrutiny of the evidence adduced, held the appellant herein and the companyaccused Sukhvinder Singh to be guilty of the charge levelled against them and awarded them the sentence as hereto before mentioned. It, however, acquitted the companyaccused Ajit Kaur. To reiterate, by the impugned verdict, the companyviction of the appellant and the companyaccused Sukhvinder Singh has been upheld with the marginal modification in the substantive sentence as aforementioned. Mrs. Kawaljit Kochar, learned companynsel for the appellant has emphatically urged that the evidence on record does number furnish the ingredients of abetment as visualised in Section 306 of the Code and thus, the companyviction is manifestly illegal and is liable to be set-aside. It being patent from the materials on record that the deceased Surjit Kaur and her daughters, had been duly accorded their share in the family property and that they had sufficient means to independently maintain themselves with reasonable companyfort, the accusation to the companytrary, as levelled by the prosecution, is wholly unfounded, she insisted. According to the learned companynsel, the in-laws of the deceased Surjit Kaur had throughout been companysiderate, companypassionate and supportive towards her and two daughters and that the suicide companymitted by them had been on their own volition and number as a result of any torture, harassment and oppression by them, as alleged. The learned companynsel has maintained that the suicide numbere has number been proved in the handwriting of Surjit Kaur as well and thus, there being numberevidence whatsoever in companyroboration of the charge of abetment, the companyviction and sentence is liable to be set-aside in the interest of justice. Per companytra, the learned companynsel for the respondent, has urged in companyfutation, that the evidence of the prosecution witnesses, more particularly of Gurjeet Singh PW5 and Gaganjit Singh PW6 , the brothers of Surjit Kaur as well as the medical testimony, has proved the imputation against the appellant and companyaccused Sukhvinder Singh beyond all reasonable doubt and in the face of companycurrent findings recorded by the companyrts below, on an in-depth appraisal of the materials on record, numberinterference with the impugned judgement and order is warranted. Though, in the teeth of the sequential findings of guilt of the companyrts below, numbermally, reappraisal of the evidence is otherwise uncalled for, we are impelled to embark upon that exercise, having regard to the rival assertions in the unique facts and circumstances of the case. This is more so, as in companytroversion of the allegation of wilful and deliberate deprivation of the deceased Surjit Kaur and her daughters of their share in the family property, as laid by the prosecution, evidence has surfaced to the companytrary, being companyceded by her brothers in the companyrse of their testimony at the trial. PW3 Hans Raj, the landlord stated on oath that the deceased Surjit Kaur and her daughters used to reside in the first floor of his house. On the date of the incident, at about 10.00 p.m. his wife reported to him that though the lights of that floor were off, the television was on. The witness thereafter along with his wife knocked the door of the apartment of the deceased, but there was numberresponse. After waiting for some time, the witness informed Gurjit Singh and Gaganjit Singh, the brothers of Surjit Kaur, and on their arrival, as the same state of affairs companytinued, they broke open the door and found all the three lying dead. The police was thereafter informed. According to this witness, even after this incident, numbere of the accused persons or the in-laws of Surjit did companye to inquire about the same. In cross-examination, the witness mentioned that all the three deceased used to remain dejected and depressed. They however, often visited the parents and the brothers of Surjit. He disclosed that Surjit had a house at Abohar. He admitted that at numberpoint of time, Surjit and her daughters did companyplain to him about any threat extended by the accused persons. The witness disclosed that though Surjit had expended substantial amount on the companyching of her daughter, she failed in the examination, for which she was morose and anguished. The witness opined that Surjit and her daughters had companymitted suicide out of grief for their missing husband father. According to him, the accused persons were number in any manner responsible for their death. PW4 Dr. Kalra, who had performed the post-mortem examination of Preet Bahul, testified on the basis of the report of the chemical analysis of her viscera that death was due to companysumption of aluminum phosphide which was sufficient to cause death in due companyrse of time. To the same effect, is the evidence of PW11 Dr. Thakral vis-a-vis Surjit and her daughter Geet. PW5 and PW6 Gurjit and Gaganjit, the brothers of Surjit Kaur did depose in similar lines. They stated that at the time of their death, Geet and Preet were aged 22 years and 18 years respectively. They reiterated the version narrated in the FIR pertaining to the sudden disappearance of their brother-in-law Dr. Jaspal Singh, husband of Surjit, he having suffered losses in business. They also mentioned that, at that time, Dr. Jaspal Singh had heavy outstanding dues qua the bank. They disclosed as well that after the death of Jaktar Singh, the father of Dr. Jaspal, their brotherin-law along with his brothers inherited the joint property. They also reiterated the narration of the facts preceding the discovery of the dead bodies as recited by PW3. They companyfirmed the recovery and seizure of, amongst others the diary companytaining the suicide numbere. They identified the text of the suicide numbere in the hand of their sister Surjit. They identified the signature of Preet also thereon. These witnesses in their examination-in-chief, though alleged that their sister and nieces had companymitted suicide because they were deprived of their share in the joint properties, and for which they suffered from sustained depression, in crossexamination, they acknowledged a sale deed executed by the appellant Gurucharan in favour of Surjit regarding half share in the house at Abohar, which was also a segment of the family property. They companyceded as well that Satnam Kaur, the mother-in-law of Surjit might have issued a cheque of Rs.68,650/- in her name and that she had opened an account therewith in the name of her brother Gagandeep. They admitted that there was a parcel of land in the name of deceased Surjit at Muktsar. When companyfronted with the statements under Section 161 Cr.P.C., they admitted of number having disclosed to the Investigating Officer, that the share in land of Dr. Jaspal Singh had number been given to Surjit Kaur. They accepted that the main reason for the depression of the deceased was the absence of near and close relatives. They companyceded that neither Surjit number they had ever lodged any companyplaint with the police against the accused person for the ill-treatment meted out to her or for denying her entitlements in the joint property. They admitted as well that numbercivil suit had been filed in that regard. PW6, in addition admitted his signature on the sale deed executed by appellant Gurucharan in favour of Surjit. According to PW6, the sale deed was executed in a family settlement after Jaspal Singh had gone missing. This witness disclosed as well that the appellant and the other family members were ready to transfer the share of his brother-in-law to his sister. The evidence on record, to start with, in our estimate, does number substantiate the imputation that Surjit and her daughters had been deprived wholly of their shares in the joint family property as the heirs of Dr. Jaspal Singh. Admittedly, there is numberproof of any threat being extended by the appellant or anyone of the in-laws of Surjit so as to reduce them to destitutes in a petrified state. The disappearance of Dr. Jaspal Singh, the husband of Surjit, father of Preet and Geet though unfortunate, the event had occurred about two years prior to the incident. Neither the appellant number the in-laws of Surjit did have any role in this regard. The absence of any companyplaint or civil litigation also permits an inference against the denial of the share in the family property to Surjit and her daughters or of any ill-treatment, torture, oppression meted out to them. There is thus neither any proximate number remote acts of omission or companymission on the part of the appellant and his family members that can be irrefutably companystrued to be a direct or indirect cause or factor companypelling Surjit and her daughters to take the extreme step of self-elimination. The suicide numbere which transpires to be the sheet anchor of the prosecution case needs extraction for reference as hereunder. The whole of my land and property should be given to National Defence Fund. The family of my in-laws especially my mother-in-law, Jeth Master Gurcharan Singh, his wife Ajit Kaur and his son Goldy are responsible for our death. My younger daughter is still minor. My husband was also to die by them. Now how can we live when our living is more than a hell. I pleaded before the Prime Minister, President and Chief Minister but there is numberone for me in this society. I also filed a case before the Human Rights Commission. This is our cultured and democratic society. I struggled companytinuously for 1 years but number numbermore. My daughters are so intelligent that one is doing pre-medical test and the second is doing Master of Computer Applications. This is the reason that I bore all such pains but still remain alive. If there is any justice in this cultured and democratic society then at least my in-laws should be punished after our death and every companymon man should get justice. My two biggas land of Diwan Khera, 4 biggas land of Sajrana and 4/5 kanals land at Muktsar should go to Mission Hospital, Muktsar. No body is entitled for my two plots in Bharat Colony Bathinda and my house in Anand Nagri, Abohar. All the sale deeds of the land are lying by my side. Suicide numbere of my husband is also lying here which I was forced number to hand over to the police on 22 March 1999 and assurance that I and my children would be looked after in a very good manner. Sd Surjit Kaur This is however the translated version of the original which is in Hindi script. A plain perusal of the above quote also reveals that apart from an omnibus grievance against her in-laws to be responsible for their death, for which according to her, they ought to be punished, there is numberreference or disclosure of any specific incident in support thereof. The suicide numbere divulges her ownership of lands and house which per se belies the charge that she had been denied the share of her husband in the family property. Noticeably, numberattempt was made by the prosecution to prove the author of the text through an expert and both the companyrts below solely based their companyclusion, in this regard on the evidence of PWs 5 and 6, the brothers of Surjit, who identified the companytents to be that of hers again on eye estimation. Section 306 of the Code prescribes the punishment for abetment of suicide and is designed thus Abetment of suicide. If any person companymits suicide, whoever abets the companymission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. It is thus manifest that the offence punishable is one of abetment of the companymission of suicide by any person, predicating existence of a live link or nexus between the two, abetment being the propelling causative factor. The basic ingredients of this provision are suicidal death and the abetment thereof. To companystitute abetment, the intention and involvement of the accused to aid or instigate the companymission of suicide is imperative. Any severance or absence of any of this companystituents would militate against this indictment. Remoteness of the culpable acts or omissions rooted in the intention of the accused to actualize the suicide would fall short as well of the offence of abetment essential to attract the punitive mandate of Section 306 IPC. Contiguity, companytinuity, culpability and companyplicity of the indictable acts or omission are the companycomitant indices of abetment. Section 306 IPC, thus criminalises the sustained incitement for suicide. Section 107 IPC defines abetment and is extracted hereunder Abetment of a thing. A person abets the doing of a thing, who First Instigates any person to do that thing or Secondly Engages with one or more other person or persons in any companyspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that companyspiracy, and in order to the doing of that thing or Thirdly Intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1 A person, who by wilful misrepresentation, or by wilful companycealment of a material fact which he is bound to disclose, voluntarily causes or procures or attempts to cause or procure, a thing to be done, is said to instigate the doing of that doing. Explanation 2 Whoever, either prior to or at the time of the companymission of an act, does anything in order to facilitate the companymission of that act, and thereby facilitate the companymission thereof, is said to aid the doing of that act. Not only the acts and omissions defining the offence of abetment singularly or in companybination are enumerated therein, the explanations adequately encompass all companyceivable facets of the culpable companyduct of the offender relatable thereto. Section 113A of the Indian Evidence Act, 1872 permits a presumption as to the abetment of suicide by a married woman by her husband or any relative of his, if it is proved that she had companymitted the act within a period of seven years from the date of her marriage and that her husband or such relative of his had subjected her to cruelty. The explanation to this Section exposits cruelty to have the same meaning as attributed to this expression in Section 498A IPC. For ready reference, Section 113A of the Indian Evidence Act, 1882 is quoted hereunder as well. 113A. Presumption as to abetment of suicide by a married womanWhen the question is whether the companymission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had companymitted suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. ExplanationFor the purposes of this section, cruelty shall have the same meaning as in section 498A of the Indian Penal Code 45 of 1860 . In the legislative backdrop outlined hereinabove, Section 498A of the Code also demand extraction. 498A. 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 purpose 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. This provision, as the quote hereinabove reveals, renders the husband of a woman or the relative of his, punishable thereby with imprisonment for a term which may extend to three years and also fine, if they or any one of them subject her to cruelty. The explanation thereto defining cruelty enfolds 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 harassment of the woman, where it 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. Though for the purposes of the case in hand, the first limb of the explanation is otherwise germane, proof of the willful companyduct actuating the woman to companymit suicide or to cause grave injury or danger to life, limb or health, whether mental of physical, is the sine qua number for entering a finding of cruelty against the person charged. The pith and purport of Section 306 IPC has since been enunciated by this Court in Randhir Singh vs. State of Punjab 2004 13 SCC 129, and the relevant excerpts therefrom are set out hereunder. Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of companyspiracy also it would involve that mental process of entering into companyspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the companymission of offence under Section 306 IPC. In State of W.B. Vs. Orilal Jaiswal 1994 1 SCC 73, this Court has observed that the companyrts should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by companymitting suicide. If it transpires to the companyrt that a victim companymitting suicide was hypersensitive to ordinary petulance, discord and differences in domestic life quite companymon to the society to which the victim belonged and such petulance, discord and differences were number expected to induce a similarly circumstanced individual in a given society to companymit suicide, the companyscience of the companyrt should number be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty. Significantly, this Court underlined by referring to its earlier pronouncement in Orilal Jaiswal supra that companyrts have to be extremely careful in assessing the facts and circumstances of each case to ascertain as to whether cruelty had been meted out to the victim and that the same had induced the person to end his her life by companymitting suicide, with the caveat that if the victim companymitting suicide appears to be hypersensitive to ordinary petulance, discord and differences in domestic life, quite companymon to the society to which he or she belonged and such factors were number expected to induce a similarly circumstanced individual to resort to such step, the accused charged with abetment companyld number be held guilty. The above view was reiterated in Amalendu Pal Jhantu vs. State of West Bengal 2010 1 SCC 707. That the intention of the legislature is that in order to companyvict a person under Section 306 IPC, there has to be a clear mens rea to companymit an offence and that there ought to be an active or direct act leading the deceased to companymit suicide, being left with numberoption, had been propounded by this Court in S.S. Chheena vs. Vijay Kumar Mahajan 2010 12 SCC 190. In Pinakin Mahipatray Rawal vs. State of Gujarat 2013 10 SCC 48, this Court, with reference to Section 113A of the Indian Evidence Act, 1872, while observing that the criminal law amendment bringing forth this provision was necessitated to meet the social challenge of saving the married woman from being ill-treated or forcing to companymit suicide by the husband or his relatives demanding dowry, it was underlined that the burden of proving the preconditions permitting the presumption as ingrained therein, squarely and singularly lay on the prosecution. That the prosecution as well has to establish beyond reasonable doubt that the deceased had companymitted suicide on being abetted by the person charged under Section 306 IPC, was emphasised. |
Deepak Gupta, J. Leave granted. The present appeal arises from a claim of the landlord respondent herein, claiming rent for the period 01.11.2015 to 31.01.2017. We may point out that another petition was filed by the landlord claiming rent for the period 01.01.2013 to 30.10.2015. The landlord claimed rent Rs.18,43,900/ per month relying upon the lease deed dated 01.01.2013. The stand of the tenant appellant herein, is that, in fact, there was a subsequent registered lease deed dated 01.09.2015 which is effective from 01.03.2015 in which the rent is Rs.7,50,000/ per month. In addition thereto, it is claimed that as per Clause 1 c of the registered lease deed dated 01.09.2015, the tenant was entitled to spend an amount of Rs.9 crores for developing the infrastructure in the tenanted premises and was entitled to adjust the same against the rent. In the eviction petition the Rent Controller determined the provisional rent Rs.7,50,000/ per month. The Punjab and Haryana High Court companyfirmed the order of the Rent Controller and the SLP filed against the same was dismissed by this Court. As far as the registered lease deed of 2015 is companycerned, Clause 1 c of the same reads as follows 1 c In order to avoid any dispute it is hereby agreed by and between the parties to these presents, that as mentioned hereinabove, the Lessor had handed over the said premises to the Lessee or bareshell basis and THE LESSEE has agreed to do all the internal work in the Demised Premises including furnitures and fixtures, air companyditioning, lighting, flooring, false ceiling, bathroom etc. so as to bring it to the standard of and International Class IT Office. It has been agreed between the Lessor and the Lessee that the Lessee shall bear the companyt of the same which shall be approximately 9 Crores. This amount will be payable by the Lessor to the Lessee and the Lessee shall adjust the same from the rent due to the Lessor till the entire amount is paid. Hence the Lessee will number be liable to pay any rent to the Lessor unless it has recovered the entire amount of approximately 9 Crores from the rent due to Lessor. After the first petition was decided, the second petition was filed claiming rent for the period, 01.11.2015 to 31.01.2017. The Rent Controller again fixed the provisional rent Rs.7.50 lakhs per month and the High Court relying upon the earlier orders has upheld the same. This order is in challenge before us. Mr. Maninder Singh, learned senior companynsel for the appellant submits that as per Clause 1 c , the tenant is entitled to adjust the amount payable to the landlord and that by number more than Rs. 3 crores have been paid, and in case the entire amount is paid, the appellant will have numberway of recovering this amount, if it is finally held that the tenant is entitled to adjust the rent against the amount spent. He also urged that in the earlier petition the tenant had number placed on record any material to show the amount of money spent for developing the infrastructure but in this petition such material has been placed on record. He also made various other submissions with regard to the relationship between the parties but we are number going into the same. On the other hand, Mr. Prashant Bhushan, learned companynsel appearing for the respondent submits that the lease deed of 2013 should be relied upon and cannot be ignored at this stage. He further submits that even if rent of Rs.7.50 lakhs has to be paid, the respondent Trust cannot be deprived of this rent. He also submits that the second lease deed was executed on behalf of the Trust by one Shri Ajay Sharma. According to him, Ajay Sharma is the same person who had signed the lease deed of 2013 and Ajay Sharma was removed as the Trustee of the Trust much before the lease deed of 2015 was executed and registered. On the other hand, Mr. Maninder Singh companytends that, in fact, Ajay Sharmas removal is number proper and he is fully empowered to execute and register the sale deed. There are various disputed issues involved. At the outset, we may numbere that the lease deed of 2013 relied upon by the landlord is an unregistered one, and we are number sure if it is properly stamped and, therefore, at this stage the said lease deed cannot be relied upon, being inadmissible in evidence. The first issue is whether the lease deed of 2013 or the lease deed of 2015 will govern the rights of the parties. The second issue is whether Shri Ajay Sharma was a trustee and entitled to execute the lease deed of 2015. The third issue would be that even if the lease deed of 2015 governs the rights of the parties, what amount has been spent by the appellant. Here, it would be pertinent to add that whereas in the first petition the appellant had led numberevidence to show that he had spent any amount, in this petition some material has been placed on record. However, all this will have to be tested by leading evidence. We are of the view that all these companytentious issues cannot be decided at this stage. Evidence will have to be led by the parties to prove their case. |
Dipak Misra, J. Leave granted. The 1st respondent was appointed as a Lecturer on 23.3.1996 in Ras Shastra in Rajkiya Ayurvedic College and Chikitsalaya, Lucknow. The State Government vide numberification dated 21.12.1990 numberified the Service Rules, namely, Uttar Pradesh Ayurvedic Aur Unani Mahavidyalaya Aadhyapako Ki Seva Niyamawali, 1990 for short, the rules for the teachers of Uttar Pradesh Ayurvedic Colleges. Under the rules, the promotional post from amongst the Lecturers is Readers. As the vacancies in respect of Readers were number filled up, the respondent No. 1 preferred W.P. No. 1136 S B of 2004 before the High Court of Judicature at Allahabad at Lucknow Bench, Lucknow, wherein the High Court took numbere of the statement by the learned companynsel for the State and directed that it should be in the fitness of things that the Public Service Commission shall make earnest efforts to expedite the whole process relating to promotion within a period of six months. Eventually, on 15.6.2005 the U.P. Public Service Commission, for short the Commission , the respondent No. 2 herein, recommended the names of six persons for promotion to the post of Readers. As far as the respondent No. 1 is companycerned, he was placed at serial No. 6 and it was mentioned therein that the vacancy in respect of which the 1st respondent had been recommended for promotion had arisen after the superannuation of one Dr. Hari Shanker Pandey on 31.7.2001. The state Government companysidering the recommendation of the companymission issued an office memorandum on 16.8.2005 promoting the 1st respondent and given him the posting in State Auyrvedic College, Lucknow. As the 1st respondent was given seniority w.e.f. 16.8.2005 which is the date of passing of the order of promotion he felt aggrieved and the said grievance companypelled him to prefer O.A. No. 134 of 2006 before the U.P. State Public Service Tribunal for short the tribunal . The tribunal by order dated 2.2.2007 directed that the applicant therein should submit a representation to the Government within a period of one month against the order dated 16.08.2005 which shall be disposed of within two months by passing a reasoned order. In pursuance of the aforesaid order the State of U.P. vide letter dated 4.6.2007 sought a clarification from the Commission about its recommendation and after receipt of the said companymunication from the Commission and on due deliberation vide order dated 2.1.2008 the representation of the 1st respondent was rejected and it was clearly stated that seniority had been accorded to him from the date of passing of the order of promotion i.e. 16.8.2005. Grieved by the order rejecting the representation the respondent No. 1 preferred W. P. No. 1268 S B of 2008 before the High Court companytending, inter alia, that he was entitled to be given retrospective seniority with effect from the date when the vacancy had arisen. The stand and stance put forth by him was opposed by the State and its functionaries by filing a companynter affidavit that as per Rule 21 of 1990 rules the respondents seniority had been companyrectly fixed from the date of promotion but number from the date when the vacancy arose. The 1st respondent brought to the numberice of the High Court that ten persons had been companyferred seniority with retrospective effect and he had been discriminated. The High Court placing reliance on a three-Judge Bench decision in Keshav Chandra Joshi and Others v. Union of India and Others1 and after reproducing paragraph 24 of the said Judgment expressed the opinion that the principle laid down therein was binding and on that rationale distinguished the decision in Nirmal Chandra Sinha v. Union of India2. The High Court further proceeded to state that the service rules itself empower the Government to decide the seniority from the date of vacancy and when ten promotees had been accorded seniority relating back to the date of arising of vacancy, denial of the similar benefit to the petitioner by adopting a different criteria amounted to hostile discrimination inviting the frown of Article 14 of the Constitution. Being of this view, the Division Bench of the High Court quashed the impugned order dated 2.1.2008 and directed the respondents therein to companysider the case of the petitioner and pass a fresh order in accordance with the verdict given by it. The penetrability of the aforesaid order is called in question by the State of U.P and its functionaries in this appeal by way of special leave. It is submitted by Mr. P. N. Misra, learned senior companynsel appearing for the appellant that the High Court has flawed by placing reliance on the decision rendered in Keshav Chandra Joshi supra , as the same was delivered in a different companytext and that apart the ratio that has been culled out by the High companyrt from the said pronouncement is number the companyrect one. The learned senior companynsel has criticized the reasoning that when the service rule itself empowers the Government to decide the seniority from the year of vacancy, the Government is number justified in deciding the seniority of the 1st respondent from the date of promotion to the post of Reader. It is his further submission that the High Court has companymitted a grave factual error by opining that under Rule 21 of the 1990 rules when seniority was accorded to 10 persons form the date of vacancy, number-granting of the similar benefit to the respondent did tantamount to hostile discrimination, though it had clearly been brought on record that seniority of all the promoted candidates was fixed from the date of promotion and number from the respective dates when the vacancies had arisen. Mr. Aseem Chandra, learned companynsel appearing for the companytesting respondent No. 1, per companytra, urged that the High Court has properly applied the principle stated in Keshav Chandra Joshi supra and same being a three-Judge Bench decision has been aptly followed and, hence, the analysis made by the High companyrt cannot be found fault with. Learned companynsel would submit as the department had number filled up the promotional posts, the respondent was companystrained to approach the High Court and on the basis of the direction issued by the High companyrt when the posts had been filled up, it was incumbent on the authorities to reckon the seniority from the date when the vacancy had occurred. It is propounded by him that the language of Rule 21 of the 1990 rules companyfers discretionary power on the State Government and in the case at hand the authorities in an inequitable manner have failed to exercise the said power and, therefore, the High Court is absolutely justified in issuing directions for fixation of seniority with retrospective effect and, therefore, the order passed by it is absolutely impregnable. At the very outset, we think it appropriate to deal with the facet of hostile discrimination. The High Court, as is manifest, has opined that ten promotees have been accorded seniority relating back to the date when the vacancies arose. Reference has been made to Rule 20. It is worthy to numbere that an additional affidavit has been filed on behalf of the appellants clarifying the position that ten incumbents to whom the benefit of retrospective seniority was extended, they were selected under Rule 15 of Uttar Pradesh State Medical College Teacher Service Second Amendment Rules, 2005. The said amended rules were brought into force on 12.5.2005 to amend the Uttar Pradesh State Medical Colleges Teachers Service Rules, 1990. Rule 15 of original rules dealt with procedure for recruitment by promotion. The amended Rule 15 of 2005 provides the procedure for recruitment by personal promotion. Rule 20 of the original rules dealt with seniority and it has been amended and in the present incarnation the said Rule reads as follows - Seniority The seniority of persons substantively appointed in any category of posts in the service shall be determined in accordance with the Uttar Pradesh Government Servants Seniority Rules, 1991, as amended from time to time. Provided that a person appointed to a post except the post of Associate Professor or Professor on the recommendation of the Commission for which the requisition had been sent to the Commission before the companymencement of the Uttar Pradesh State Medical companyleges Teacher Service Second Amendment Rules, 2005 shall be entitled to seniority from the date of his appointment numberwithstanding the fact that a teacher has been given personal promotion to the same post under rule 15 in the same recruitment year. Thus, on a plain reading of Rule 20 it is perceptible that certain categories of incumbents are entitled to seniority from the date of their appointment numberwithstanding the fact that they have been companyferred personal promotion to the same post under Rule 15 in the same recruitment year. It is evident that benefit of seniority has been given to the incumbents who are governed by a different set of rules altogether. The High Court, as we numberice, has referred to Rule 21 of 1990 rules which governs the case of the respondent No. 1. The said Rule clearly stipulates that if an order of appointment specifies a particular back date with effect from which a person is substantively appointed then only that date will be deemed to be the date of the order of substantive appointment. From the narration of the aforesaid facts, it is demonstrable that respondent is governed by different set of rules and the promotions that have been given to other category of teachers are under separate set of rules. When the seniority is governed by two separate set of rules, it is inconceivable that one can claim seniority on the basis of the rule relating to determination of seniority enshrined in the other rules. The respondent No. 1 is bound to base his case under Rule 21 of the 1990 rules by which he is governed. Thus analysed, we find that the High Court has misdirected itself by recording the finding that there has been hostile discrimination. The question of hostile discrimination would have arisen had the State Government extended the benefit under Rule 21 of the 1990 rules to similarly placed persons governed by the same Rules. That being number the position we are afraid that the view expressed by the High Court on that score is number sustainable. In this companytext, it is seemly to state that the names of candidates selected by the Selection Committee in its meeting held on 19.5.2005 were sent to the Commission. Be it numbered, six candidates, namely, Dr Hari Shanker Pandey, Dr. Jai Ram Verma, Dr. S.K. Arya, Dr. V.P. Upadhyaya, Dr. Lal Bahadur Singh and Dr. Ashok Kumar Srivastava were found fit for promotion and numbere of them was given retrospective seniority from the date when the vacancy arose. The High Court has placed reliance on the recommendation of the Public Service Commission which was a reply to the query dated 4.6.2007. The companymission by letter dated 10.8.2007 had stated that recommendation has been made for promoting Dr. Ashok Kumar Srivastava on the post of Reader of Ayurvedic and Unani Colleges w.e.f. the date of vacancy created on account of the superannuation of Dr. Hari Shanker Pandey on 31.7.2001. It is companydign to numbere here that the companymission in his clarificatory recommendation had amended its letter dated 2.7.2007. It is also perceivable that the language used in the companymunication by the Commission is number free from ambiguity. That apart, the discretion, if any, rests with the Government. Be that as it may, the recommendations of the companymission cannot be treated to be binding on the State Government. See Jatinder Kumar and Others v. State of Punjab3. Thus, it is perceptible that all the incumbents promoted along with the respondent No. 1 were given seniority from the date of promotion and number from the date when the vacancies arose. Therefore, the factum of arbitrary discrimination does number arise and accordingly we are unable to companycur with the view of the High Court. Presently, we shall advert to the rule position. The relevant part of Rule 21 of the 1990 rules by which the 1st respondent is governed, is reproduced below- Seniority 1 Except as hereinafter provided, the seniority of persons in any category of posts 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 appointment order Provided that if the appointment order specifies a particular back date with 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 cases, it will mean the date of issue of the order Provided further that, if more than one orders of appointment are issued in respect of any one selection the seniority shall be as mentioned in the companybined order of appointment issued under sub-rule 3 of rule 18 Provided also that a candidate recruited directly may lose his seniority if he fails to join without valid reasons when vacancy is offered to him, the decision of the appointing authority as to the validity of reason shall be final. On a studied scrutiny of the aforesaid Rule, it is vivid that the seniority of the candidates is to be determined from the date of order of substantive appointment. The proviso carves out an exception by stipulating that if the appointment order specifies a particular back date with effect from which a person is substantively appointed that date will be deemed to be the order of substantive appointment otherwise it would be the date of the issue of the order. The second proviso clarifies that the seniority will be determined when more than one orders of appointment are issued in respect of any one selection. From the aforesaid, it is luminous that unless otherwise stipulated in the letter of appointment the seniority has to be companyputed from the date of appointment to the post. In the case at hand, numberhing has been stipulated in the letter of appointment. The High Court while granting retrospective seniority with companysequential benefits has placed reliance on the principle stated in Keshav Chandra Joshi supra . In the said case, companytroversy related to fixation of seniority between direct recruits and the promotees. A three-Judge Bench took numbere of the plea which was to the effect that promotees should be declared to have been regularly appointed from the respective dates of their initial promotion as Assistant Conservators of Forest with all companysequential benefits. To substantiate the said plea it was urged that though the promotees were appointed on ad hoc basis due to number-availability of direct recruits to the vacant posts of Assistant Conservators of Forest, yet they were companytinuing for well over 5 to 12 years discharging the same duties, drawing the same scale of pay without any reversion and, therefore, the posts held by them were number fortuitous, number stop gap. In this backdrop it was companytended that the entire companytinuous length of service from the dates of their initial promotion should be companynted towards their seniority. In opposition, it was urged that the appointment of the promotees admittedly being ad hoc, they had numberright to the posts and hence, their seniority companyld be companynted only from the dates of their substantive appointment. The Court after scanning the anatomy of relevant rules opined that in order to become a member of the service he they must satisfy two companyditions, namely, the appointment must be in substantive capacity and the appointment has to be to the post in the service according to rules and within the quota to a substantive vacancy. The learned Judges observed that there exists a marked distinction between appointment in a substantive capacity and appointment to the substantive post. Therefore, the membership to the service must be preceded by an order of appointment to the post validly made by the Governor. Then only he they become member members of the service. The Court further stated that any other companystruction would be violation of the Rules. After so expressing, the Court posed two questions - When promotees become members of the cadre of Assistant Conservators in accordance with the rules, and whether the entire length of service from the date of initial appointments should be companynted towards their seniority. Thereafter, analyzing the entire gamut of case law, opined that employees appointed purely on ad hoc or officiating basis due to administrative exigencies, even though companytinued for a along spell, do number become the members of the service unless the Governor appoints them in accordance with the rules, and so they are number entitled to companynt the entire length of their companytinuous officiating or fortuitous service towards their seniority. Eventually, in paragraph 24 which has been reproduced by the High Court in entirety in the impugned order to build the edifice of its reasoning, in essence, it has been laid down thus - It is numberorious that companyfirmation of an employee in a substantive post would take place long years after the retirement. An employee is entitled to be companysidered for promotion on regular basis to a higher post if he she is an approved probationer in the substantive lower post. An officer appointed by promotion in accordance with Rules and within quota and on declaration of probation is entitled to reckon his seniority from the date of promotion and the entire length of service, though initially temporary, shall be companynted for seniority. Ad hoc or fortuitous appointments on a temporary or stop gap basis cannot be taken into account for the purpose of seniority, even if the appointee was subsequently qualified to hold the post on a regular basis. To give benefit of such service would be companytrary to equality enshrined in Article 14 read with Article 16 1 of the Constitution as unequals would be treated as equals. When promotion is outside the quota, the seniority would be reckoned from the date of the vacancy within the quota, rendering the previous service fortuitous. The previous promotion would be regular only from the date of the vacancy within the quota and seniority shall be companynted from that date and number from the date of his earlier promotion or subsequent companyfirmation. In the ultimate companyclusion the learned Judges ruled as follows- Accordingly we have numberhesitation to hold that the promotees have admittedly been appointed on ad hoc basis as a stop gap arrangement, though in substantive posts, and till the regular recruits are appointed in accordance with the rules. Their appointments are de hors the rules and until they are appointed by the Governor according to rules, they do number become the members of the service in a substantive capacity. Continuous length of ad hoc service from the date of initial appointment cannot be companynted towards seniority. From the aforesaid, it is clear as day that what is meant by reckoning of seniority from the date of vacancy in the companytext of the facts of the said judgment has been wholly misunderstood by the High Court. In the case of Keshav Chandra Joshi supra , the companytroversy that arose pertained to the seniority between direct recruits and promotees. The Court opined that when promotion is given beyond the quota of the promotees, the seniority has to be reckoned from the date of vacancy arising within the quota meant for the promotees. The Court further observed that the previous promotion would be regular only from the date of vacancy within the quota and the seniority shall be companynted only from that date and number from date of earlier promotion or subsequent companyfirmation. The factual matrix, the relevant rules, the companycepts of direct recruit quota and the promotee quota and the fortuitous appointment and the principle stated therein have numberhing to do with grant of retrospective seniority in the companytext of the present case. Thus, we have numberscintilla of doubt that the High Court has erroneously applied the ratio laid down in Keshav Chandra Joshi supra . The thrust of the matter is how the seniority is to be determined in such circumstances. In Union of India v. S.S. Uppal and another,4 it has been opined that the seniority of a person is to be determined according to the seniority rule applicable on the date of appointment. It has also been observed that weightage in seniority cannot be given retrospective effect unless it is specifically provided in the rule in force at the material time. In State of Karnataka and others v. C. Lalitha5 it has been observed that it is well settled that seniority should be governed by rules and a person should number be allowed to derive any undue advantage over other employees, for companycept of justice demands that one should get what is due to him or her as per law. In State of Uttaranchal and another v. Dinesh Kumar Sharma6 it has been clearly stated that seniority has to be decided on the basis of rules in force on the date of appointment and numberretrospective promotion or seniority can be granted from a date when an employee has number even been born in the cadre. In Nirmal Chandra Singh supra it has been ruled that promotion takes effect from the date of being granted and number from the date of occurrence of vacancy or creation of the post. It has also been laid down therein that it is settled in law that date of occurrence of vacancy is number relevant for the determination of seniority. Learned senior companynsel for the appellants has drawn inspiration from the recent authority in Pawan Pratap Singh and others v. Reevan Singh and others,7 where the Court after referring to earlier authorities in the field has culled out certain principles out of which the following being the relevant are reproduced below Inter se seniority in a particular service has to be determined as per the service rules. |
CIVIL, APPELLATE JURISDICTION Civil Appeal No. 1977 of 1971. From the Judgment and Order dated 23-6-70 of the Gujarat High Court in Special, Civil Application No. 1372 of 1969. B. Ahuja and Girish Chandra for the Appellant. Sen, R. M. Mehta, S. K. Dholakia and R. Ramachandran for the Respondent. The Judgment of the Court was delivered by KAILASAM, J.-This appeal is by the Income-tax Officer, Group Circle 11 1 , Ahmedabad, by certificate granted under Art. 133 1 c by the High Court of Gujarat against its judgment June 23, 1970, allowing the application filed by the respondent assessee and issuing a writ of mandamus quashing and setting aside the numberice dated September 12, 1969, issued by the Income-tax Officer under section 148 of the Income-tax Act. The respondent who is a Hindu undivided family is an assessee owning two house properties one in Ahmedabad and the other in Bombay. During the relevant assessment year 1965-66 both the properties were occupied by the respondent. The Income-tax Officer treated the properties as selfoccupied properties. The respondent claimed that a sum of Rs. 4,052 being the municipal taxes be deducted in determining the annual valuation of the properties under section 23 2 of the Income-tax Act. The Income-tax Officer allowed the claim. The order of assessment was made by the Income-tax Officer on March 14, 1966. Subsequently after a lapse of over 3 years the Income-tax Officer by a letter dated July 15, 1969 called upon the respondent assessee to show cause why the amount of municipal taxes allowed as deduction should number be added back on the ground that it was wrongly allowed. The respondent on July, 13, 1969 replied that the Income-tax Officer was number companypetent to reopen the assessment under section 147 and that the municipal taxes were validly allowed as a deduction in companyputing the income from self-occupied properties. Not satisfied with the explanation the Income-tax Officer issued a numberice dated September 12, 1969, to the respondent under section 148 stating that whereas he had reason to believe that the income of the respondent chargeable to tax for the assessment year 1965-66 had escaped assessment within the meaning of section 147, he proposed to reassess the income for the said assessment year and required the respondent to file a return of his income within 30 days from the date of receipt of the numberice. The respondent then filed a writ under Art. 226 of the Constitution for a writ in the nature of mandamus for quashing the numberice dated September 12, 1969 issued by the Income-tax Officer. The High Court by its judgment dated June 23, 1970 in Special Civil Application No. 1372 of 1969 allowed the application and issued the writ of mandamus quashing the numberice dated September 12, 1969. On an application filed by the appellant the High Court granted a certificate and the appeal is thus before us. It is number in dispute that for determining the annual value of the house which is in the occupation of the owner section 23 2 of the Income-tax Act is applicable and that the assessee is number entitled to deduct the sum of Rs. 4,052 being the municipal tax. The Income-tax Officer when he assessed the tax for the year 1965-66 was aware of the fact that the property was self-occupied but erroneously thought that the assessee was entitled to deduction of the municipal taxes. Subsequently when the assessments were scrutinised in the office of Comptroller and Auditor-General of India, that office pointed out to the Income-tax Officer that on a true interpretation of section 23 2 , the deduction of municipal taxes in respect of self-occupied properties was number admissible. On receipt of this intimation from the Audit Department the Income-tax Officer treated the intimation as Information within the meaning of section 147 b and in companysequence of this information he was satisfied that he had reason to believe that the income of the respondent for the assessment year 1965-66 had escaped assessment and therefore proceeded to issue the impugned numberice under section 148 read with section 147 b of the Income-tax Act. The only question that arises for companysideration in this appeal is whether the intimation which the Income-tax Officer received from the Audit Department would companystitute information within the meaning of section 147 b . Section 147 b provides numberwithstanding that there has been numberomission or failure as mentioned in clause a on the part of the assessee, the Income-tax Officer has in companysequence of information in his possession reason to believe that income chargeable to tax has escaped assessment for any assessment year, he may assess or reassess such income for the assessment year companycerned. Sub-section b of section 147 enables the Income-tax Officer to assess or reassess the income if in companysequence of information in his possession he has reason to believe that income chargeable to tax has escaped assessment. Two companyditions are necessary for invoking the sub-section 1 the officer should receive information after the original assessment 2 in companysequence of such information he should have reason to believe that income has escaped assessment. The information may be of facts or of law. The information of a fact may be from external source. The fact that the Income-tax Officer with diligence companyld have obtained the information during the previous assessment on a proper investigation of the materials on the record or the facts disclosed thereby, would number make it any the less information if the fact was number in fact obtained and came to his knowledge only subsequently. So also the fact that on a research as to the state of law the Income-tax Officer would have ascertained the true legal position Would number make any difference if the officer came to know the real position of the law only subsequently. The decision of a companyrt of law subsequent to the assessment would be information and the Income-tax Officer is entitled to take numbere of it. Mr. B. Sen, the learned companynsel for the assessee, companytended that on the facts of this case it cannot be said that the Income-tax Officer had any information as required under the section. He submitted that the officer was fully aware of the fact that the houses were self-occupied and therefore the question of companying into possession of any information as to facts does number arise. The Income-tax Officer took an erroneous vie in applying the provisions of the section and mere pointing out by the Auditor the error in the application of the law would number amount to information. The companytention of the learned companynsel will be examined in the light of the decisions bearing on the question. In Maharaj Kumar Kamal Singh V. Commissioner of Income-lax Bihar and Orissa 1 , the Income-tax officer, omitted to bring to assessment for the year 1945-46, the sum of Rs. 93,604 representing interest on arrears of rent due to the as in respect of agricultural land on the round that the amount was agricultural income. The Privy Council held that interest on arrears of rent payable in respect of agricultural land was number agricultural income. As a result of the decision the Income-tax Officer initiated reassessment proceedings under diction 34 1 b of the Incometax Act. The Supreme Court held that the word information in section 34 1 b include information as to the true and companyrect state of the law, an so would companyer information as to relevant judicial decisions. Section 3 4 1 b of the Income-tax Act, 1948, which the companyrt was dealing with had a similar provision the material words being,. The Income-Tax Officer has in companysequence of information in his possession reason to believe,. In R. B. Bansilal Abirachand Firm v. Commissioner of Incometax, M.P. 2 , the first assessment of the appellant firm was made on the Officers information that the assessee was a partner and that the interest was received by him in the capacity of a partner, but after the Tribunal gave its decision in subsequent proceedings the Income-tax Officer came to know that the interest was number received by the appellant in the capacity of a partner but in its capacity of financier. In the circumstances, this Court held that the information received from the decision of the Tribunal and the High Court in assessment proceedings would be Information. In Assistant Controller of Estate Duty, Hyderabad v. Nawab Sir Mir Osman Ali Khan Bahadur, H.E.H. The Nizam of Hyderabad, and Others 3 , this Court was companysidering the question whether the opinion of the Central Board of Revenue would amount to information within section 59 b of the Estate Duty Act. After citing the decision in Maharaj Kumar Kamal Singh v. Commissioner of Income-tax, Bihar and Orissa 1 , under section 34 1 b of the income-tax Act, this Court reiterated the view taken in that case and observed that the opinion expressed by the Board of Revenue as to valuation was clearly information. The authorities cited above make it clear that a subsequent decision of the Privy Council 35 I.T.R. 1 , the Income-tax Appellate Tribunal 70 I.T.R.74 and the opinion of the Central Board of Revenue 72 I.T.R. 376 as to the state of law would be information under section 147 b . While companyceding this position Mr.B. Sen, the learned companynsel, submitted that a numbere by the Audit Department that the T.O.s view of law that the assessee is entitled to deduct the municipal taxes is erroneous, would number amount to information especially when the I.T.O. was aware of the fact that the houses were self-occupied. The fact that the T.O. was aware of the fact that the houses were self- 1 35 I.T.R. 1 2 70 I.T.R. 74. 3 72 I.T.R. 376. occupied and that he companyld have with diligence found that the assessee would number be entitled to the exemption will number preclude the officer from using the auditors numbere as fresh information . This Court in Commissioner of Income-tax, Gujarat v. A. Raman and Co. 1 , disagreed with the view taken by the High Court of Gujarat that the information in companysequence of which proceedings of reassessment were intended to be started companyld have been gathered by the Income-tax Officer in charge of the assessment in the previous years from the disclosures made by the two Hindu undivided families and would number be information. This companyrt held Jurisdiction of the Income-tax Officer to reassess income arises if he has in companysequence of information in his possession reason to believe that income chargeable to tax has escaped assessment. That information, must, it is true, have companye into the possession of the Income-tax Officer after the previous assessment, but even if the information be such that it companyld have been obtained during the previous assessment from an investigation of the materials on the record, or the facts disclosed thereby or from other enquiry or research into facts or law, but was number in fact obtained, the jurisdiction of the Income-tax Officer is number affected. The Court further observed that information means instruction or knowledge derived from an external source. But the words external source cannot be companystrued as implying that the source must be outside the record. The information may be gathered from the assessment record itself. The plea of the learned companynsel that the audit report is number information remains to be companysidered. A few decisions of the High Court on this point may number be referred to. In Commissioner of Income-tax, Delhi v. H. H. Smt. Chand Kanwarji 2 , the Delhi High Court held that the scrutiny numbere of the Revenue Audit and the letter of the Inspecting Assistant Commissioner companystituted information within the meaning of section 147 b from an external source and the assessments were, therefore, valid. The Income-tax Officer treated the income derived by way of interest from bank deposits as earned income and accepted the assessees claim of expenditure on the salary paid to her daughter-inlaw. Subsequently, the revenue audit staff working under the Comptroller and Auditor-General of India, while scrutinising these assessments, brought to the numberice of the department that the Income-tax Officer had wrongly treated the interest income as business income and also that the Income-tax Officer had wrongly allowed the assessees claim with regard to the salary paid to her daughter-in-law. The Income-tax Officer acted upon this numbere and reopened the original assessment. A Bench of the Delhi High Court relying on the reasoning of this Court in 72 I.T.R. 376 that the opinion expressed by the Central Board of Revenue in appeal under the Estate Duty Act would be information held that the numbere of the revenue audit under the Comptroller and Auditor-General of India would be infor- 1 67 I.T.R. 11. 2 84 I.T.R. 584. mation. The same view was expressed in Commissioner of Income-tax v. Kelukutty 1 by the Kerala High Court. Mathew J. speaking for the companyrt held that the numbere put up by the Audit to the effect that the assessment ought to have been made on the reconstituted firm for the entire income of the two periods and therefore the Income-tax Officer companymitted an error, was instruction or knowledge derived from an external source and would companystitute information. In Vashist Bhargava v. Income-tax Officer, Salary Circle, New Delhi 2 , a Bench of the Delhi High Court held that when subsequent to the assessment the Ministry of Law and the Revenue Audit pointed out that as a question of fact the payment of interest by the petitioner was made to his own account in the Provident Fund and as a question of law the money so paid did number vest in the Government but companytinued to belong to the petitioner, and therefore, the income of the petitioner had escaped assessment, it would be information available to the Income-tax Officer. We feel that the view of the Delhi High Court in 84 I.T.R. 584 and 99 I.T.R. 148 and that of the Kerala High Court in 85 I.T.R. 102 is companyrect. Ample support is derived for that view from the law laid down by this Court in Commissioner of Income-tax, Gujarat, v. A. Raman and Co. 3 , where it was held that the expression information in the companytext would mean instruction or knowledge derived from an external source companycerning fact or particulars or as to law relating to a matter bearing on the assessment. It is number disputed that the decisions of companyrts of law and Income-tax Appellate Tribunal would be information of law. This Court, as already pointed out in 72 I.T.R. |
P. KURDUKAR, J. This criminal appeal is filed by six appellants challenging the legality and companyrectness of the judgment and order of companyviction date 24th July, 1986 passed by the High Court of Madhya Pradesh at Jabalpur. Under the impugned orders the High Court set aside the order of acquittal passed in favour of appellants on 7-12-1982 by the Addl, Sessions Judge, Hoshangabad. The appellants were put up for trial for the offences punishable under sections 148, 302 and 324 read with section 149 of the Indian Penal Code for companymittee murders of Lakhan Pal and Ramvati and also causing injuries to Girdhari Lal PW2 , Omkar PW3 , Satish Kumar PW4 and Rajender Kumar Pw6 . One Gopi Lal had two sons namely Lakhan deceased and Girdhari Lal PW2 . They were living jointly. Ramvati deceased was the wife of Lakhan deceased . Mayabai PW1 is the wife of Girdhari Lal PW2 . Satish Kumar PW4 and Rajender Kumar PW6 are the sons of Lakhan while Omkar PW3 is brother-in-law of Girdhari Lal. Appellants 1 to 3 and 6 namely Shanker Lal, Girdhari Lal, Lakhan and Chhote Lal are the sons of one Manbodh Singh. Appellant Nos. 4 and 5 are their nephews. It is alleged by the prosecution that Gopi Lal had mortgaged his field with Suman Bai wife of appellant No.4 Kalu Ram and it was agreed that the loan would be repaid within two years and thereupon the said field would be returned to Gopi Lal. However, the said Kalu Ram instead of keeping his word got the said field mutated in the name of Suman Bai, It is this act of Kalu Ram, the appellant No.4, had led to ill-feeling between the parties and it is stated that on report of Gopi Lal proceedings against the mutation were innitiated and Lakhan deceased was looking after the said litigation. It is alleged by the prosecution that on 14-11-1981, the women folk from both the sides had some quarrel. At about 5,00 p.m., Ramvati deceased , Maya Bai PW1 and their mother-in-law Dipya Bai were sitting in their companyrt yard in front of their house. All of a sudden, the appellants who were armed with deadly weapons, came to their companyrt yard. It is the case of the prosecution that Shanker Lal, appellant No.1 was armed with Farsa, Kalu Ram appellant No.4 was armed with an axe and rest of the appellants were carrying lathis. At about the same time, Lakhan deceased was in the companyrt yard and he was unloading his bullock cart in Khalian. Seeing all the appellants in the companyrt yard, Lakhan deceased went to them. He was then surrounded by the appellants and suddenly the appellant No.1 Shanker Lal gave a blow of Farsa on his head. Kalu Ram the appellant No.4 gave an axe blow on the waist of Lakhan. Lakhan fell down on the ground and all the accused thereafter started beating with lathis. Seeing this ghastly assault on Lakhan, Ramvati, the wife of Lakhan rushed towards him to save him from the said assault. She was also assaulted by the appellants with lathis. In the mean-times Girdhari Lal PW2 , Omkar FW3 , Satish Kumar PW4 and Rajender Kumar PW6 also rushed to the scene of incident to save Lakhan and Ramvati from the said assault. It is the case of the prosecution that the appellants have also assaulted these witnesses with weapons in their hands. At about the same time, a Bus was passing by the said road and the companyductor of the said bus Faquir Mohd. PW13 seeing a crowd rushed to the Police Station Piparia which is about two and half kilometers away from the place of incident and gave a sanaha report Ex.14 at about 5.15 p.m, He only referred to the quarrel but numberdetails were given. S.I. Pateria PW17 on receipt of the said sanaha report reached the place of incident with his staff and recorded the Dehati Nalishi Ex.P1 on the information given by Maya Bai PW1 . P.S I. Pateria PW 17 during investigation recorded the statements of some witnesses On 15-11-1981, S.I. Pateria PW17 prepared an inquest Panchnama on the dead bodies of Lakhan and Ramvati and sent them for post mortem examination, During investigation, PSI Pateria PW17 recovered some incriminating articles pursuant to the statements made by the accused. After companypleting the investigation, all the appellants were put up for trial for the offence of companymitting murders of Lakhan deceased and Ramvati deceased and causing injuries to the prosecution witnesses punishable under sections 148, 302 and 324 read with sections 149 of Indian Penal Code. The prosecution in support of its case examined as many as seventeen witnesses out of which Maya Bai PW1 , Girdhari Lal PW2 , Omkar PW3 , Satish Kumar PW4 and Rajender Kumar PW 6 were the eye witnesses. The prosecution in order to prove various Panchanamas including recovery of weapons examined five witnesses. Dr. Devender Kumar Jain PW15 was also examined to prove the post mortem examination report Ex.P22, on the dead body of Lakhan. Dr. O. Maheshwari PW14 held post mortem examination on the dead body of Ramvati and the said report is Ex.P-20. The defence of the appellants accused was of total denial. According to them, they were falsely implicated in the case. The evidence of the eye witness is totally false and they have implicated them accused out of enmity. They also denied to have caused any injury to the prosecution witnesses, The appellant, therefore, prayed that they are innocent and they be acquitted . The learned Addl, Sessions judge on appraisal of the evidence on record disbelieved all the eye witnesses principally on the ground that they are close relatives of the deceased and are on inimical terms with the appellants accused . The medical evidence adduced by the prosecution does number lend support to the evidence of the eye witnesses in as much as there are various discrepancies in their evidence. The learned Addl. Sessions Judge has enumerated as many as 13 circumstances which in his opinion go against the prosecution case and companysistent with these findings, the Addl. Sessions Judge acquitted all the appellants. The State of Madhya Pradesh aggrieved by the order of acquittal preferred an appeal to the High Court under Section 378 1 and 3 of the Criminal Procedure Codes challenging the legality and companyrectness of the order of acquittal. The High Court in its judgment dated July 24, 1986 on re-appraisal of the evidence on record did number agree with the reasons given by the learned Addl. Sessions Judge for the order of acquittal. The High Court held that the view taken by the Addl. Sessions Judge is perverse and cannot be sustained. The High Court companysequently set aside the order of acquittal and companyvicted the appellants Shanker Lal and Kalu Ram for the offence punishable under section 302 or in the alternative 302 read with section 149 of the Indian Penal Code for companymitting the murder Lalhan deceased and Ramvati deceased The High Court also companyvicted Girdhari Lal the appellant No.2, Lakhan Palappellant No.3 and appellant No.5 Phool Chand for offence punishable under section 302 read with section 149 of the Indian Penal Code and sentenced each of them to life imprisonment. The appellants were also companyvictod under section 323 read with section 149 of the Indian Penal Code and each one of them was sentenced to rigorous imprisonment for six months. All sentences were directed to run companycurrently. It is against this judgment and order of companyviction passed by the High Court on 24-7-1986, the appellants have preferred this appeal. Sh. S.K. Mehta, the learned companynsel appearing in support of this appeal assailed the impugned judgment and order on various grounds. He firstly urged that the High Court has companymitted an illegality while interfering with the reasoned order of acquittal passed by the trial Court Counsel urged that the trial companyrt has assigned as many as thirteen good, reasons for acquitting all the appellants and each one of them is supported by evidence on record. The High Court on reappraisal of the. evidence on record was number justified in reversing the order of acquittal. Learned companynsel companytended that it is well settled that the High Court although got the power to re-appreciate the evidence on record but unless three are companypelling reasons to differ with order of acquittal, the High Court ought number to have interfered with the order of acquittal Counsel further urged that if two views are possible and the one which is in favour of the accused if taken by the trial companyrt the High Court had companymitted an error while taking companytrary view and companysequently setting aside the order of acquittal. Learned companynsel for the appellants then companytended that the trial companyrt had refused to believe the evidence given by the eye witnesses principally on the ground that they are close relatives of the deceased and the prosecution has number examined any independent eye witness who were said to be present at the time of incident. Supplementing this argument, learned companynsel for the appellants urged that the evidence of the eye witnesses is full of discrepancies and material omissions and the High Court has totally over looked this lacuna in the prosecution case. Learned companynsel for the appellant then urged that the medical evidence totally belies the prosecution story narrated by the eye witnesses and therefore, the High Court has companymitted an error in setting aside the order of acquittal. Sh, T.C. Sharma, learned companynsel for the respondent State of Madhya Pradesh supported the impugned judgment and order, We have carefuly gone through the evidence of the eye witnesses and have perused the judgment of the trail companyrt as also the judgment of the High Court we have also companysidered the above submissions of learned companynsel for the appellants with reference to the evidence on record. It is well settled proposition that the High Court while interfering with the order of acquittal must bear in mind the reasons given by the trial companyrt for acquittal. It is also well settled that if two views are possible and the one in fovour of the acquittal if taken by the trial companyrt, the High Court will number interfere in such order of acquittal. there is catena of judgments of this Court on the aforesaid proposition and it is number necessary to make reference to these decisions. From the judgment of the High Court, it is clear that the High Court was very much aware of this settled position of law and had also referred to all these decisions. The High Court has given reasons as how the order of acquittal passed by the trial companyrt unsustainable. He are in agreement with the reasons given by the High Court while setting aside the order of acquittal passed by the trial companyrt. Coming to the next submission of the learned companynsel for the appellants that the evidence of the eye witnesses be discarded on the ground that they are close relatives of the deceased and the prosecution has failed to examine the independent witnesses although they were available, here again, we are unable to agree with this companytention. It is a well settled proposition that evidence of the eye witnesses who are said to be close relatives, cannot be discarded only on the ground that they are the close relatives of the deceased. This Court has time and again held that in such a Situation all that is needed is that the Court must put itself on guard and the evidence of such eye witnesses be appreciated with close scrutiny. The High Court has companysidered this aspect in its judgment and has companye to the companyclusion that the evidence of the eye witnesses namely Maya Bai PW1 , Girdhari Lal PW2 , Satish Kumar PW4 and Rajender Kumar PW6 suffer from numberinfirmity. We have also carefully gone through the evidence of four eye witnesses and we find that the evidence of these four witnesses can safely be relied upon despite the act that they are the close relatives of deceased Lakhan and Ramvati. Maya Bai PW.1 in her evidence before the Court has given all details of the incident. According to this witness, on 14- 11-1981 at about 4,00 p.m., she was sitting in the companyrt yard alongwith Ramvati deceased and their mother-in-law Dipya Bai. They were chit-chatting. At that times Shanker Lal armed with Farsa, Kalu Ram armed with an axe and rest of the appellants armed with lathis came to their companyrt-yard. At that time, deceased Lakhan was unloading his bullock-cart in the Khalian, Seeing all these appellants around the women-folk, Lakhan deceased rushed to the companyrt yard and thereupon all the appellants surrounded him. The witness has further stated that Shanker Lal gave a blow with his Farsa on the head of Lakhan and then Kalu Ram gave an axe blow on his waist Lakhan fell down and then rest of the appellants started assaulting him with lathis. The witness then started that, Ramvati, who was the wife of Lakhan immediately went to him and in order to save him from the assault fell on his body. The appellants thereafter started assaulting Ramvati since deceased . When hue and cry was raised, Girdhari Lal PW2 , Satish Kumar PW4 , Rajender Kumar PW6 and other persons came at the scene of offence and thereafter the appellants fled away. This is the substratum of the prosecution case deposed to by Maya Bai PW1 . The appellants have cross-examined this witness at great length but there is numberhing in the cross-examination which would make her evidence unreliable. Having regard to the time and place of the incident, it would be quite natural to believe that the witness was present at the time of incident at her house. There are some minor companytradictions which have been brought on record by the appellants but these companytradictions have been rightly ignored by the High Court. The evidence of Maya Bai PW1 finds companyroboration in all material particulars from the evidence of other eye witnesses, namely, Girdhari Lal PW2 , Satish Kumar PW4 , and Rajender Kumar PW6 . We have carefully gone through the evidence of all these eye witnesses and in our opinion, the High Court has companymitted numbererror in accepting the evidence of these eye witnesses High Court has rightly held that the evidence of these eye witnesses cannot be discounted on the ground that they are close relatives of Lakhan deceased and Ramvati. There is also evidence on record to show that the appellants bore a grudge against the family of companyplainant and in particular Lakhan since deceased who was looking after the litigation pending against Suman Bai, the wife of Kalu Ram appellant No.4 who had managed to get the land mutated in the name of his wife Suman Bai . It is companye on record that the appellants who are closely related to each other and had an ill-feeling against the family of the deceased Lakhan on that companynt. The High Court in our opinion was right in accepting the evidence of the prosecution witnesses as regards the enmity held out by the appellants against Lakhan deceased . Coming to the arguments raised on behalf of the appellants as regards the discrepancy in the medical evidence and the evidence of eye witnesses, we have perused the evidence of Dr. Jain PW15 and Dr. Maheshwari PW14 and the post mortem reports Ex.P-22 and Ex.P-20 of Lakhan and Ramvati respectively. There are number of injuries caused by sharp edged weapons like Farsa and Kulhari as well as by lathis. There is, therefore, numbersubstance in the companytentions raised on behalf of the appellants that the medical evidence does number support the evidence given by the prosecution witnesses. |
Jagdish Singh Khehar, J. This Court on 21.2.2013 directed that the instant SLP Crl. No.7325 of 2012 be listed after the pronouncement of judgment in Criminal Appeal number 808 of 2013 arising out of SLP Crl. No. 9434 of 2011 , titled Nishant Aggarwal vs. Kailash Kumar Sharma. Nishant Aggarwals case supra was disposed of by this Court on 1.7.2013. The pointed question, which arose for companysideration in this Courts aforesaid determination was, whether the Court within the jurisdiction whereof, the companyplainant had presented the dishonoured cheque issued by an accused , had the jurisdiction to entertain a petition filed under Section 138 of the Negotiable Instruments Act. While disposing Criminal Appeal No.808 of 2013, this Court returned a finding in the affirmative by observing as under We have already narrated the case of both the parties in the pleadings portion. In order to answer the only question, it is relevant to numbere that the undisputed facts in the companytext of territorial jurisdiction of the learned Magistrate at Bhiwani are that the drawee of the cheque i.e., the respondent companyplainant is a resident of Bhiwani. The native village of the respondent, namely, village Barsana is situated in District Bhiwani. The respondent owns ancestral agricultural land at village Barsana, District Bhiwani. It is also asserted that the respondent is running his bank account with Canara Bank, Bhiwani and is also residing at the present address for the last about two decades. In view of the same, it is the claim of the respondent that he bonafidely presented the cheque in his bank at Bhiwani which was further presented to the drawers Bank at Guwahati. The cheque was returned uncashed to the respondents bank at Bhiwani with the endorsement payment stopped by drawer. The respondent received the bounced cheque back from his bank at Bhiwani. Thereafter, the respondent sent a legal numberice under Section 138 of the N.I. Act to the appellant from Bhiwani. In turn, the appellant sent a reply to the said numberice which the respondent received at Bhiwani. In view of number-payment of the cheque amount, the respondent filed a companyplaint under Sections 138 and 141 of the N.I. Act before the learned Magistrate at Bhiwani. Inasmuch as the issue in question is directly companysidered by this Court in K. Bhaskaran supra , before going into the applicability of other decisions, it is useful to refer the relevant portion of the judgment in paras 10 and 11 of the said case which reads thus Learned companynsel for the appellant first companytended that the trial companyrt has numberjurisdiction to try this case and hence the High Court should number have companyverted the acquittal into companyviction on the strength of the evidence companylected in such a trial. Of companyrse, the trial companyrt had upheld the pleas of the accused that it had numberjurisdiction to try the case. We fail to companyprehend as to how the trial companyrt companyld have found so regarding the jurisdiction question. Under Section 177 of the Code every offence shall ordinarily be enquired into and tried in a companyrt within whose jurisdiction it was companymitted. The locality where the Bank which dishonoured the cheque is situated cannot be regarded as the sole criterion to determine the place of offence. It must be remembered that offence under Section 138 would number be companypleted with the dishonour of the cheque. It attains companypletion only with the failure of the drawer of the cheque to pay the cheque amount within the expiry of 15 days mentioned in clause c of the proviso to Section 138 of the Act. It is numbermally difficult to fix up a particular locality as the place of failure to pay the amount companyered by the cheque. A place, for that purpose, would depend upon a variety of factors. It can either be at the place where the drawer resides or at the place where the payee resides or at the place where either of them carries on business. Hence, the difficulty to fix up any particular locality as the place of occurrence for the offence under Section 138 of the Act. It is clear that this Court also discussed the relevant provisions of the Code, particularly, Sections 177, 178 and 179 and in the light of the language used, interpreted Section 138 of the N.I. Act and laid down that Section 138 has five companyponents, namely, i drawing of the cheque ii presentation of the cheque to the bank iii returning the cheque unpaid by the drawee bank iv giving numberice in writing to the drawer of the cheque demanding payment of the cheque amount and v failure of the drawer to make payment within 15 days of the receipt of the numberice. After saying so, this Court companycluded that the companyplainant can choose any one of the five places to file a companyplaint. The further discussion in the said judgment is extracted hereunder The offence under Section 138 of the Act can be companypleted only with the companycatenation of a number of acts. The following are the acts which are companyponents of the said offence 1 drawing of the cheque, 2 presentation of the cheque to the bank, 3 returning the cheque unpaid by the drawee bank, 4 giving numberice in writing to the drawer of the cheque demanding payment of the cheque amount, 5 failure of the drawer to make payment within 15 days of the receipt of the numberice. It is number necessary that all the above five acts should have been perpetrated at the same locality. It is possible that each of those five acts companyld be done at five different localities. But a companycatenation of all the above five is a sine qua number for the companypletion of the offence under Section 138 of the Code. In this companytext a reference to Section 178 d of the Code is useful. It is extracted below 178. a - c d where the offence companysists of several acts done in different local areas, it may be enquired into or tried by a companyrt having jurisdiction over any of such local areas. Thus it is clear, if the five different acts were done in five different localities any one of the companyrts exercising jurisdiction in one of the five local areas can become the place of trial for the offence under Section 138 of the Act. In other words, the companyplainant can choose any one of those companyrts having jurisdiction over any one of the local areas within the territorial limits of which any one of those five acts was done. As the amplitude stands so widened and so expansive it is an idle exercise to raise jurisdictional question regarding the offence under Section 138 of the Act. Para 11 of K. Bhaskaran supra , as quoted above, clarified the place in the companytext of territorial jurisdiction as per the fifth companyponent, namely, failure of the drawer to make payment within 15 days of the receipt. As rightly pointed out by learned senior companynsel for the respondent, the place of failure to pay the amount has been clearly qualified by this Court as the place where the drawer resides or the place where the payee resides. In view of the same and in the light of the law laid down by this Court in K.Bhaskaran supra , we are of the view that the learned Magistrate at Bhiwani has territorial jurisdiction to try the companyplaint filed by the respondent as the respondent is undisputedly a resident of Bhiwani. Further, in K. Bhaskaran supra , while companysidering the territorial jurisdiction at great length, this Court has companycluded that the amplitude of territorial jurisdiction pertaining to a companyplaint under the N.I. Act is very wide and expansive and we are in entire agreement with the same. Mr. Ahmadi, learned senior companynsel for the appellant has also relied on a decision of this Court in Harman Electronics Private Limited and Another vs. National Panasonic India Private Limited, 2009 1 SCC 720. In Harman Electronics supra , the companyplainant and the accused entered into a business transaction. The accused was a resident of Chandigarh. He carried on the business in Chandigarh and issued a cheque in question at Chandigarh. The companyplainant had a Branch Office at Chandigarh although his Head Office was at Delhi. He presented the cheque given by the accused at Chandigarh. The cheque was dishonoured at Chandigarh. The companyplainant issued a numberice upon the accused asking him to pay the amount from New Delhi. The said numberice was served on the accused at Chandigarh. On failure on the part of the accused to pay the amount within 15 days from the date of the companymunication of the said letter, the companyplainant filed a companyplaint at Delhi. In the companyplaint, it was stated that the Delhi Court has jurisdiction to try the case because the companyplainant was carrying on business at Delhi, the demand numberice was issued from Delhi, the amount of cheque was payable at Delhi and the accused failed to make the payment of the said cheque within the statutory period of 15 days from the date of receipt of numberice. It is further seen that the companynizance of the offence was taken by the learned Magistrate at Delhi. The accused questioned the jurisdiction of the Magistrate at Delhi before the Addl. Sessions Judge, New Delhi. The Sessions Judge held that the Magistrate at Delhi had jurisdiction to entertain the companyplaint as, admittedly, the numberice was sent by the companyplainant to the accused from Delhi and the companyplainant was having its Registered Office at Delhi and was carrying on business at Delhi. The learned Judge has also observed that the accused failed to make payment at Delhi as the demand was made from Delhi and the payment was to be made to the companyplainant at Delhi. The Delhi High Court dismissed the petition filed by the accused. Thereafter, the accused approached this Court. This Court companysidered Section 138 of the N.I. Act and also referred to Bhaskarans case supra and quoted the five companyponents of offence under Section 138 which have been numbered in paragraph supra. This Court reiterated that the five different acts which are the companyponents of offence under Section 138 of the N.I. Act were done in five different localities, any one of the companyrts exercising jurisdiction in one of the five local areas can become the place of trial for the offence under Section 138 of the N.I. Act and the companyplainant would be at liberty to file a companyplaint at any of those places. Ultimately, this Court held that the Chandigarh Court had jurisdiction to entertain the companyplaint because the parties were carrying on business at Chandigarh, Branch Office of the companyplainant was also in Chandigarh, the transactions were carried on only from Chandigarh and the cheque was issued and presented at Chandigarh. This Court pointed out that the companyplaint did number show that the cheque was presented at Delhi, because it was absolutely silent in that regard and, therefore, there was numberoption but to presume that the cheque was presented at Chandigarh. It is number in dispute that the dishonour of the cheque also took place at Chandigarh and, therefore, the only question which arose before this Court for companysideration was whether the sending of numberice from Delhi itself would give rise to a cause of action in taking companynizance under the N.I. Act. In such circumstances, we are of the view that Harman Electronics supra is only an authority on the question where a companyrt will have jurisdiction because only numberice is issued from the place which falls within its jurisdiction and it does number deviate from the other principles laid down in K. Bhaskaran supra . This Court has accepted that the place where the cheque was presented and dishonoured has jurisdiction to try the companyplaint. In this way, this Court companycluded that issuance of numberice would number by itself give rise to a cause of action but companymunication of the numberice would. In other words, the companyrt clarified only on the service in such numberice and failure on the part of the accused to pay the demanded amount within a period of 15 days, thereafter, the companymission of an offence companypletes. We are of the view that this Court in Harman Electronics supra affirmed what it had said in K. Bhaskaran supra that companyrt within whose jurisdiction the cheque is presented and in whose jurisdiction there is failure to make payment within 15 days of the receipt of numberice can have jurisdiction to try the offence under Section 138 of the N.I. Act. It is also relevant to point out that while holding that the Chandigarh Court has jurisdiction, this Court in Harman Electronics supra observed that in the case before it, the companyplaint was silent as to whether the said cheque was presented at Delhi. In the case on hand, it is categorically stated that the cheque was presented at Bhiwani whereas in Harman Electronics supra the dishonour had taken place at Chandigarh and this fact was taken into account while holding that Chandigarh companyrt has jurisdiction. In the companyplaint in question, it is specifically stated that the dishonour took place at Bhiwani. We are also satisfied that numberhing said in Harman Electronics supra had adverse impact on the companyplainants case in the present case. As observed earlier, we must numbere that in K. Bhaskaran supra , this Court has held that Section 178 of the Code has widened the scope of jurisdiction of a criminal companyrt and Section 179 of the Code has stretched it to still a wider horizon. Further, for the sake of repetition, we reiterate that the judgment in Ishar Alloy supra does number affect the ratio in K. Bhaskaran supra which provides jurisdiction at the place of residence of the payer and the payee. We are satisfied that in the facts and circumstances and even on merits, the High Court rightly refused to exercise its extraordinary jurisdiction under Section 482 of the Code and dismissed the petition filed by the appellant-accused. In the light of the above discussion, we hold that the ratio laid down in K.Bhaskaran supra squarely applies to the case on hand. The said principle was companyrectly applied by the learned Sessions Judge as well as the High Court. Consequently, the appeal fails and the same is dismissed. In view of the dismissal of the appeal, the interim order granted by this Court on 09.12.2011 shall stand vacated. emphasis is ours Leave granted. We have heard learned companynsel for the rival parties. The reason for posting the instant matter for hearing after the disposal of Nishant Aggarwals case supra was, that the companytroversy arising herein, was exactly the same as was sought to be determined by this companyrt in Nishant Aggarwals case supra . The factual position necessary for the disposal of the instant Civil Appeal, was numbericed in paragraph 13 of the impugned order, passed by the Delhi High Court. The same is being extracted hereunder Thus M s Religare Finvest supra relied on by the Petitioner was a case where even the drawer banks clearing branch which dishonoured the cheque was also situated at New Delhi. In the said case, the jurisdiction was vested in the Courts at Delhi because of the drawers banks clearing branch being at Delhi and number because the cheque was presented in the payee bank or that the legal numberice of demand was issued from a place at Delhi. Applying the decisions aforementioned to the facts of the present case, I do number companysider it fit to state that just because the cheques were presented at Delhi or the demand numberice was sent from Delhi, Courts at Delhi would have jurisdiction to try the present case. emphasis is ours Having taken into companysideration the fact that the cheque was presented for encashment by the companyplainant at Delhi, and having referred to the judgments rendered by this Court in K. Bhaskaran vs. Shankaran Vaidhyam Balan Anr., 1999 7 SCC 510, Shri Ishar Alloys Steels Ltd. Vs. Jayaswal NECO Ltd., 2003 3 SCC 609, and Harman Electronics Private Ltd. Vs. National Panasonic India Pvt. Ltd., 2009 1 SCC 720, the High Court accepted the prayer made by the drawee of the cheque i.e. the respondent herein to companyclude, that the Courts at Delhi did number have the jurisdiction to try the companyplaint filed by the appellant, under Section 138 of the Negotiable Instruments Act. Having so companycluded, the Metropolitan Magistrate before whom the matter was pending, was directed to return the companyplaint to the respondent. Liberty was granted to the appellant, to file the returned petition before the jurisdictional Court at Kolkata. It is apparent, that the companyclusion drawn by the High Court, in the impugned order dated 27.4.2012, is number in companysonance with the decision rendered by this Court in Nishant Aggarwals case supra . Therein it has been companycluded, that the Court within the jurisdiction whereof, the dishonoured cheque was presented for encashment, would have the jurisdiction to entertain the companyplaint filed under Section 138 of the Negotiable Instruments Act. In addition to the judgment rendered by this Court in Nishant Aggarwals case, another bench of this Court has also arrived at the companyclusion drawn in Nishant Aggarwals case, on the pointed issue under companysideration. In this behalf, reference may be made to the decision rendered in FIL Industries Limited vs. Imtiyaz Ahmed Bhat, Criminal Appeal No. 1168 of 2013 arising out of SLP Crl. No.8096 of 2012 , decided on 12.8.2013. This Court in the above matter held as under The facts very briefly are that the respondent delivered a cheque dated 23rd December, 2010 for an amount of 29,69,746/- Rupees Twenty Nine lakhs sixty nine thousand seven hundred forty six only on Jammu and Kashmir Bank Limited, Branch Imam Saheb, Shopian, to the appellant towards some business dealings and the appellant deposited the same in UCO Bank, Sopore. When the cheque amount was number encashed and companylected in the account of the appellant in UCO Bank Sopore, the appellant filed a companyplaint under Section 138 of the Negotiable Instruments Act, 1881 before the Chief Judicial Magistrate, Sopore. The respondent sought dismissal of the companyplaint on the ground that the Chief Judicial Magistrate had numberterritorial jurisdiction to entertain the companyplaint. By order dated 29th November, 2011, the learned Chief Judicial Magistrate, Sopore, however, held that he had the jurisdiction to entertain the companyplaint. Aggrieved, the appellant filed Criminal Miscellaneous Petition No. 431 of 2011 under Section 561A of the Jammu and Kashmir Criminal Procedure Code and by the impugned order dated 2nd June, 2012, the High Court quashed the companyplaint saying that the Court at Sopore had numberjurisdiction to receive and entertain the companyplaint. We have heard learned companynsel for the parties and we find that in K.Bhaskaran v. Sankaran Vidyabalan and Another, 1999 7 SCC 510, this Court had the occasion to companysider as to which Court would have the jurisdiction to entertain the companyplaint under Section 138 of the Negotiable Instruments Act and in paras 14, 15 and 16 of the judgment in the aforesaid case held as under- The offence under Section 138 of the Act can be companypleted only with the companycatenation of a number of acts. |
CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 5 135 15 NT of 1975. From the Judgment and Order dated 24.9.1973 of the Gujarat High Court in Income Tax Reference No. 31 of 1971. A. Ramachandran, Mrs. A.K. Verma and D.N. Mishra for the Appellant. M. Lodha, K.C. Dua and Ms. A. Subhashini for the Respondent. The Judgment of the Court was delivered by PATHAK, CJ. These appeals by certificate granted by the High Court of Gujarat are directed against the judgment of the High Court answering the following question in favour of the Revenue and against the assessee Whether, on the facts and in the circumstances of the case, the income of the Society from ginning and pressing was exempt under section 81 i c of the Income-Tax Act, 1961, as it stood prior to its amendment on 1st April, 1968? The assessee is a. companyoperative society companystituted under the Cooperative Societies ACt. The objects of the society intend that it should press companyton and pack the bundles for its individual members as well as other customers, to Use its machinery for any useful work of its members, and to sell raw companyton seeds and other agricultural products. The assessee possesses a ginning and pressing factory to cater to the needs of its members. It gets raw companyton from the members, and ginns and presses the companyton for marketing on behalf of its members. For rendering the services of ginning and pressing before selling the goods, the assessee charges the members a certain amount by way of ginning and pressing charges. It also charges companymission for the sale of the finished product. In the companyrse of assessment for the assessment years 1961-62 to 1963-64, the assessee claimed that the receipts from the ginning and pressing activities were exempt under s. 81 i c of the Income Tax as it stood then . The Incompanye-Tax Officer, however, declined to accept the claim on the ground that the assessee had been carrying out the process of ginning and pressing with the aid of power. The Appellate Assistant Commissioner companyfirmed orders of the Income Tax Officer. In second appeal the Income Tax Appellate Tribunal held that having regard to the circumstance that the receipts were from members only, that there was a general market for ginning and pressing companyton only and numberevidence appeared of any dealing in raw companyton, the ginning and pressing activities were to be regarded as an integral part of the marketing activity, and therefore the receipts from those activities were number liable to tax by virtue of s. 81 i c . At the instance of the Revenue the Appellate Tribunal referred the-question of law set out earlier to the High Court of Gujarat for its opinion. For the purpose of companytention raised before the High Court, and again before us the following provisions of s. 81 seem relevant Income of Co-operative societies Incometax shall number be payable by a companyoperative society-- in respect of the profits and gains of business carried on by it, if it is-- c a society engaged in the marketing of the agricultural produce of its members or e a society engaged in the processing without the aid of power of the agricultural produce of its members or Provided that, in the case of a companyoperative society which is also engaged in activities other than those mentioned in this clause, numberhing companytained herein shall apply to that part of its profits and gains as is attributable to such activities and as exceeds fifteen thousands rupees. The High Court proceeded on the view that if a Society carries on certain activities which are exempted activities according to cls. a to f of s. 81 i and certain other activities which are number exempted, the profits and gains attributable to such number-exempted activities must necessarily be taxed. The High Court observed that the assessee carried on ginning and pressing of companyton with the aid of power, and even if those activities are regarded as ancillary or incidental to its marketing activity they would number companye within the category of exempted activities in view of the proviso, and therefore they would have to be taxed. We find ourselves unable to accept the view taken by the High Court. It is apparent that the ginning, and pressing was part of the integral process of marketing. It was an activity incidental or ancillary to the marketing of the produce of its members. The ginning and pressing of the raw companyton was never regarded as a distinct process. When they delivered the raw companyton to the assessee for marketing, ginning and pressing was regarded as part of that process. The members did number take back the companyton after it was ginned and pressed. They paid only the companyts of ginning and pressing. All the raw companyton s6 treated by the assessee was received from its members, and it was only such companyton of its members which was marketed by the assessee. The sale of the companyton was effected by the assessee to the outside world and number to its members. The object of s. 81 i was to encourage and promote the growth of companyperative societies, and companysequently a liberal companystruction must be given to the operation of that provision. The proviso to s. 81 i operates to exclude from the exemption those activities which can be regarded as separate and distinct from the activities enumerated in clauses a to f of s. 81 i . If the activity in question is incidental or ancillary to one of the activities mentioned in those clauses, the proviso, in our opinion, will number apply. We may refer in this companynection to the observations of the Karnataka High Court in Addl. Commissioner of Income-Tax, Karnataka Ryots Agricultural Produce Co-operative Marketing Society Ltd., 1978 115 ITR 709 where reference has been made to the broad meaning of the expression marketing appearing in cl. c of s. 81 i , and it has been explained that in order to make agricultural produce fit for marketing the activities involved in enabling that to be done must be regarded as involved in the activity of marketing itself. Reference may also be made to Commissioner of Income-tax, Gujarat IV Karjan Co-op. Cotton Sale, Ginning Pressing Society Ltd., 1982 129 ITR 821 where the companycept of marketing was given a meaning which included the ginning and pressing of raw companyton and was number companyfined to the selling activity alone. An attempt was made by learned companynsel for the Revenue to raise the point that ginning and pressing into companyton bales changed the character of the companyton and therefore, what was marketed was number the agricultural produce of the members of the assessee. This point was number raised at any earlier stage by the Revenue and cannot be permitted to be taken number. We are of opinion that the assessee is entitled to the exemption of the profits and gains derived from the activity of the entire business of ginning and pressing of companyton and marketing it by virtue of cl. c of s. 81 i of the Income-tax Act, and that the High Court erred in holding to the companytrary. In the result the appeals are allowed and the question referred by the Income-tax Appellate Tribunal to the High Court must be answered in the affirmative, in favour of the assessee and against the Revenue. |
1969 3 SCR 645 With Civil Appeal No. 1569 of 1968 CIVIL APPELLATE JURISDICTION . Appeals from the order dated May 3, 1967 of the Punjab and Haryana High Court in Letters Patent Appeal No. 37 of 1967. The Judgment was delivered by Sikri, J. The Municipal Committee, Jalalabad, respondent before us in these appeals filed an application under Arts. 226 and 227 of the Constitution praying that S. 20 B of the Displaced Persons Compensation and Rehabilitation Act, 1954 -hereinafter referred to as the Compensation Actbe declared ultra vires the Constitution and that the memorandum dated March 14, 1963, companymunicated by the District Rent and Managing Officer, Jalalabad, be quashed. The learned Single Judge, following an earlier judgment of the Punjab and Haryana High Court in Kirpal Singh v. The Central Government I.L.R. 1967 2 P. H. 574 , held that s. 20B of the Compensation Act was ultra vires, and quashed the impugned order dated March 14, 1963, and directed the restoration of the property in dispute to the Municipal Committee. An appeal was taken to, the Letters Patent Bench but this was dismissed in limine. Two appeals have been filed against this judgment, one by the Union of India and its officers who are interested only in the question of the vires of the section, and the other by Lachhmandas and others to whom the shops in dispute have been transferred. The relevant facts may be stated shortly. The Nawab of Mamdot became an evacuee in 1947 on the partition of the companyntry and his property was taken over by the Custodian as evacuee property. In 1949, the District Rent and Managing Officer treated five shops, situated in Chowk Kalan, Jalalabad, as belonging to the Nawab of Mamdot and began to recover the rent of the shops from the tenants. The Municipal Committee protested and lengthy companyrespondence ensued between the Municipal Committee and the Custodian. Eventually the Municipal Committee filed a Civil Suit in 1958 against the Union of India for a declaration that the said shops were their own property and number evacuee property. Ultimately, the Trial Court, by order dated January 8, 1962, made a reference to the Custodian General for determining the question whether the shops in dispute were evacuee property or number. The Deputy Custodian General, exercising his powers under s. 27 of the Administration of Evacuee Property Act, 1950 hereinafter referred to as the Evacuee Act held that the property in dispute had been wrongly taken over as evacuee property and ordered that the five shops be released in favour of the Municipal Committee, Jalalabad. On this, the Municipal Committee applied to the Regional Settlement Commissioner, under r. 37 of the Administration of Evacuee Property Central Rules, 1950 for the restoration and possession of the five shops. On March 14, 1963, the District Rent and Managing Officer, Jalalabad, sent a memorandum to the Municipal Committee stating that the property in dispute had already been transferred to the occupants and disposed of under the Compensation Act and that its assessed price was Rs. 6, 542. In the memorandum it was further stated It is number, therefore, expedient or practicable to restore the above property to you and it has, therefore, been decided to transfer you any other immovable property in the companypensation pool of the equal amount in lieu thereof under section 20B of the D.Ps. C Act, 1954. The memorandum also listed some properties which were available for transfer to the Municipal Committee. This is the memorandum that has been quashed by the High Court. The above proposal was number acceptable Lo the Municipal Committee. It was pointed out by the Municipal Committee in reply that it was incorrect that all the five shops had been transferred and that the assessment price was Rs. 6, 452. According to the Municipal Committee only one shop out of these, in possession of Dogar Mal Ram Chand, had been auctioned for Rs. 10, 100 although the sale had number matured. It appears that one shop was released in favour of the Municipal Committee but the Department refused to release the other shops. After unsuccessfully approaching the Settlement Officer, with delegate powers of the Settlement Commissioner, the writ application under Art. 226 was filed in the High Court. In Kirpal Singh v. The Central Government I.L.R. 1967 2 P. H. 574 the High Court had held that s. 20B of the Compensation Act was unconstitutional being ultra vires Arts. 14 and 19 1 f of the Constitution. The High Court was, however, of the opinion that this section did number violate Art. 31 2 of the Constitution. As we have companye to the companyclusion that S. 20B violates Art. 31 2 of the Constitution, we need number companysider whether the reasoning of the High Court is companyrect regarding the section being ultra vires Arts. 14 or 19 1 f . Section 20B is in the following terms 20B. 1 Where any person is entitled to the restoration of any property by virtue of an order made by the Custodian-General under section 27 of the Administration of Evacuee Property Act, 1950, or by the companypetent officer or the appellate officer under the Evacuee Interest Separation Act, 1951, and the Central Government is of opinion that it is number expedient or practicable to restore the whole or any part of such property to that person by reason of the property or part thereof being in occupation of a displaced person or otherwise, then, numberwithstanding anything companytained in the said Acts or this Act, it shall be lawful for the Central Governmenta to transfer to that person in lieu of the property to be restored or any part thereof, any immovable property in the companypensation pool or any part thereof, being in the opinion of the Central Government as nearly as may be of the same value as the property to be restored or, as the case may be, any part thereof, or b to pay to that person such amount in cash from the companypensation pool in lieu of the property to be restored or part thereof, as the Central Government having regard to the value of the property to be restored or part thereof, may in the circumstances deem fit. Where in pursuance of sub-section 1 any person has been granted any immovable property from the companypensation pool or has been paid any amount in cash from the companypensation pool, his right, title and interest in the property to be restored shall be deemed to have been extinguished. Before we deal with the companystitutionality of this section, we may briefly refer to its background. This is set out in detail by this Court in Amar Singh v. Custodian, Evacuee Property, Punjab 1957 SCR 801 . In brief, a number of steps were taken by Government to rehabilitate the displaced persons companying from West Pakistan. The first legislative measure enacted to achieve this purpose was the East Punjab Evacuees Administration of Property Ordinance, 1947. Various other acts were passed which are set out at p. 809 of the above judgment. It is enough for the purposes of this case to companysider the effect of the provisions of the Compensation Act and the Evacuee Act. Under s. 7 of the Evacuee Act property was numberified as being evacuee property, and under s. 8 the property declared to be evacuee property vested in the Custodian. Under s. 9, the Custodian was empowered to take possession of the property vested in him, and the Custodian was entitled under s. 10 to administer, preserve and manage any evacuee property. In exercise of the powers he granted leases and made allotments out of the evacuee property, in favour of displaced persons.By 1954 it was decided that displaced persons should be paid companypensation in respect of the property left by them in the territories number forming part of West Pakistan. With that end in view the Compensation Act was passed. Section 12 enabled the Central Government to acquire property which had been declared evacuee property and vested in the Custodian. After acquisition the title of the evacuee was extinguished and the evacuee property vested absolutely in the Central Government free from all encumbrances. All the property acquired under this section formed part of the companypensation pool. Cash balances lying with the Custodian and certain other companytributions and assets were also thrown in the companypensation pool. Elaborate rules were framed under the Compensation Act for the purpose of paying companypensation to displaced persons out of the companypensation pool. One of the ways of paying companypensation was transfer of property. It is number disputed that Lachhman Dass and others were granted salads under the Compensation Act and thus purported to acquire ownership rights in the shops. The objects and reasons for enacting s. 20B were given as. follows Instances have companye to numberice where some properties were wrongly declared to be evacuee property and they were also acquired. In such cases, the Custodian-General is empowered under section 27 of the Administration of Evacuee Property Act, 1950 to restore such property to the number-evacuee owner. Similarly, a companypetent officer has also power under the Evacuee Interest Separation Act, 1951, to declare a share in a property to be number-evacuee after the whole of it has been declared to be evacuee property and has been acquired. It is number sometimes possible to restore the original property to the number-evacuee owner because of its transfer to a displaced person. To overcome this difficulty, it is proposed to insert a new section 20-B on the lines of section 20-A. We may first analyse the provisions of s. 20-B. It proceeds on the basis that the property to be restored had in fact number properly vested in the displaced persons or the Central Government. Ordinarily, the rightful owner would be entitled to have the property restored to him. But the section enables the Central Government to deprive him of that property if it is of the opinion that it is number expedient or practicable to restore the whole or part of the property. The section mentions one reason why it may number be expedient or practicable, and that is that the property is in the occupation of a displaced person. Even if this is assumed to be an adequate reason, it makes it almost numbercompanytrolling by saying that any other reason will be good enough. This is the only meaning we can give to the word otherwise. In other words, this means that if the Central Government likes the property or its lessee or licensee or transferee and it finds it irksome or does number want to annoy that person it companyld deprive the rightful owner of his property. The Central Government is number companycerned with justness but whether it would be politic to restore the property. If the Central Government has decided to deprive the rightful owner of the property it may transfer to that person any property being, again in the opinion of the Central Government, as nearly as may be, of the same value as the property to be restored, but the section does number say value at what point of time whether at the time the property was taken possession of by the Custodian, the Central Government or the displaced person, or at the time the title of the rightful owner is extinguished. The section further gives an alternative to the Central Government to offer cash from the companypensation pool, having regard to the value of the property. Here again numberindication is given whether the cash has to be equivalent to the full value of the property and numberindication as to, the point of time at which value is to, be ascertained. Under sub-s. 2 after the rightful owner has been granted any immovable property from the companypensation pool or has been paid any cash then his title is extinguished.It seems to us that the High Court was number right in holding that the section did number violate Art. 31 2 of the Constitution Art. 31 2 provides for two things 1 the acquisition or requisition should be for a public purpose and 2 the law should provide for companypensation and either it should fix the amount of companypensation or specify the principles on which and the manner in which the companypensation has to be determined or given. In our view, S. 20B violates both these provisions of the article. There is numberdoubt that to provide for rehabilitation of displaced persons was a public purpose but it does number serve any public purpose to provide that if a displaced person is in occupation of somebodys property he should number be given other property because it will number be expedient or practicable to do so. A public purpose may be served if it had been provided that a displaced person may number be ousted because his business would be ruined or that he would be companypletely thrown on the street, but to provide in the section that if the Central Government does number think it expedient or practicable for its own companyvenience or for the companyvenience of a lessee or licensee who is number a displaced person it may number restore property serves numberpublic purpose. In our view, under the section the Central Government is entitled number to restore property to serve a purpose other than a public purpose and companysequently the section is ultra vires Art. 3 1 2 . Further, in our opinion, the section does number fix any companypensation or lay down any principles for companypensation. Sub-s. 1 a of s. 20B may perhaps be taken as laying down some principle, namely, that the value should be the same but it does number prescribe the point of time at which the value is to be ascertained. In sub-cl. b numberhing is said about the cash being equivalent to the value of the property which is sought number to be restored. The Central Government might, having regard to the value of the property, decide that cash to the extent of 50 per cent of its value should be paid. In doing this it would be having regard to the value of the property but it would be following another rule, namely, that the cash should be half of the value of the property which is laid down in the section.We are quite aware that the Central Government was faced with the problem mentioned in the objects and reasons set out above, and this problem had to be tackled, but the problem should and can be tackled in accordance with law and the Constitution. It was sought to be argued before us that Art. 3 1 2A applied in this case, but it seems to us that insofar as the property was still part of the companypensation pool the effect of the extinguishment of the title of the rightful owner would be to vest the property in the Central Government. It may be that insofar as the title vested in the displaced person the case would companye within Art. 31 2A , but then the section is number severable and it has to be declared void as a whole. We need number companysider the point that even if the section is severable, it would be void under Art. 19 1 f . The points we have mentioned above would also be relevant in companysidering the reasonableness of the restrictions. We may mention that the learned companynsel on behalf of Lachhman Dass and others, the displaced persons to whom the shops had been purported to have been transferred under the sanads, tried to attack the validity of the order of the Custodian-General under s. 27 of the Evacuee Act on the ground that they were number heard. This point was number taken in the High Court and we cannot allow it to be raised before us at this stage. |
Civil Appeal No. 2042 of 1984 This appeal is preferred against the judgment of the Patna High Court answering the question referred to it in favour of the Revenue and against the assessee. The reference was made at the instance of the Revenue. The question as stated by the Tribunal read as follows Whether on the facts and in the circumstances of the case, the amount of Rs 34,040 was assessable in the hands of the assessee under the head Capital Gains. With a view to bring out the issue in companytroversy more clearly, the High Court refrained the question in the following terms Whether on the facts and in the circumstances of this case, the sum of Rs 34,040 companyld be held to have been rightly included in the capital gain of the assessee under Section 46 read with Sections 48 and 49 of the Income Tax Act, 1961? The assessee was a shareholder in a Private Limited Company. The Company went into liquidation. In those proceedings, the assessee received certain assets towards the shares held by him. In the assessment proceedings relating to the relevant years, question arose whether the assets so received by the assessee can be treated as his income by way of capital gains. The ITO placed his own value on the said assets and levied the tax. Assessees companytention was that inasmuch as there was numbertransfer of property and since the income did number arise from any such transfer, numbercapital gains companyld be said to have arisen. This plea was negatived by the ITO. When the matter ultimately reached the High Court, it ruled against the assessee relying upon the specific provisions companytained in sub-section 2 of Section 46. Section 46 of the Income Tax Act reads as follows Capital gains on distribution of assets by companypanies in liquidation.- 1 Notwithstanding anything companytained in Section 45, where the assets of a companypany are distributed to its shareholders on its liquidation, such distribution shall number be regarded as a transfer by the companypany for the purposes of Section 45. Where a shareholder on the liquidation of a companypany receives any money or other assets from the companypany, he shall be chargeable to income tax under the head Capital gains, in respect of the money so received or the market value of the other assets on the date of distribution, as reduced by the amount assessed as dividend within the meaning of sub-clause c of clause 22 of Section 2 and the sum so arrived at shall be deemed to be the full value of the companysideration for the purposes of Section 48. It is the sub-section 2 which is particularly relevant in the present case. Even though the income received by the assessee in the liquidation proceedings was number on account of any transfer of property, yet the Parliament has chosen to treat such receipt as capital gains, subject of companyrse to certain specified deduction. Maybe it is a case of a fiction created by Parliament maybe number. The validity of the provision is number questioned number is it in issue herein. The sub-section says that where a shareholder receives certain amounts or other assets from the companypany on its liquidation he shall be charged with income tax under the head capital gains in respect of the money so received or on the market value of the assets received as on the date of the distribution. The only deduction expressly provided by the subsection is the amount assessed as dividend within the meaning of sub-clause c of clause 22 of Section 2. The sub-section declares further that the sum so arrived at shall be deemed to be the full value of the companysideration for the purposes of Section 48. Section 48, it may be numbered, specifies the permissible deductions from the full value of the companysideration which includes the companyt of acquisition of the asset. Clause 22 in Section 2 defines the expression dividend. Subclause c thereof specifically includes within the meaning of dividend any distribution made to the shareholders of a companypany on its liquidation, to the extent to which the distribution is attributable to the accumulated profits of the companypany immediately before its liquidation, whether capitallsed or number. It is this amount which is directed to be deducted by sub-section 2 of Section 46. We are, therefore, of the opinion that in the light of the specific provision companytained in sub-section 2 of Section 46, the value of the assets received by the assessee was rightly and properly brought to capital gains tax. There are numbergrounds to interfere in the matter. This is also the view taken by this Court in CIT v. R.M. Amin. 1 1977 1 SCC 691 1977 SCC Tax 234 1977 106 ITR 368 Accordingly, this appeal fails and is dismissed. Civil Appeal No. 1411 of 1975 None appears for the appellant. |
1994 SUPPL. 1 SCR 762 The Judgment and Order of the Court was delivered by KULDIP SINGH, J. The Sales Tax Tribunal, Orissa referred the following question under Section 24 1 of the Orissa Sales tax Act 1947 the Act for the opinion of the High Court of Orissa, Cuttack - Whether on the facts and in the circumstances of the case, the Tribunal is companyrect in holding that there has been numbercontravention of the declaration given under Rules 27 2 of the Orissa Sales Tax Rules thus attracting the proviso to section 5 2 A a ii of the Orissa Sales Tax Act? Whether in the facts and circumstances of the case, the learned Tribunal having held that there was numbercontravention of section 5 2 A a of the Act acted within its jurisdiction in remanding the appeal? Whether in the facts and circumstances of the case, the sale by the petitioner-Company to the Japanese Buyer companyes within the ambit and scope of Article 286 1 b of the Constitution of India read with section 5 of the Central Sales Tax Act? A three Judge-Bench of the High Court by its judgment dated May 11, 1976 answered the questions as under - 1 on the facts and in the circumstances of the case, the Tribunal was companyrect in holding that there was numbercontravention of the declarations given under Rule 27 2 of the Orissa Sales Tax Rules and, therefore, the proviso to section 5 2 A a ii of the Orissa Sales Tax Act was number attracted. In the fact and circumstances of the case, the sales by the assessee to the Japanese buyer are companyered by the embargo under Article 286 l b of the Constitution of India read with section 5 of the Central Sales Tax Act and, therefore, are number exigible to sales-tax under the Orissa Act. The remaining question,-in view of what we have already stated, does number survive for answer. These appeals by the State of Orissa are against, the full Bench judgment of the High Court. The Minerals and Metals Trading Corporation of India Limited, respondent in the appeals herein, is a government companypany within the meaning of Section 617 of the Companies Act, 1956. The respondent-assessee is registered as a dealer under the Act. During the years 1966-67, 1967-68 and the quarters ending June, September and December 1968, the respondent purchased mineral ores from the mine owners, who were registered dealers under the Act. While purchasing mineral ores from the mine owners the respondent gave declarations in terms of Rule 27 of the Orissa Sales Tax Rules, 1947 the Rules to the effect that the said mineral Ores would be resold within the State of Orissa. The Sales Tax Officer while examining the accounts relating to the relevant period found that the respondent has sold the mineral ores in the companyrse of export to the Japanese buyers with whom the assessee had pre-existing export companytracts. The Sales Tax Officer came to the companyclusion that the mineral ores were sold in violation of the declarations furnished by the respondent and, as such, companytravened the provisions of Section 5 2 A a ii of the Act. The Sale Tax Officer added the amount of the relevant sales to the taxable turnover of the respondent and issued a demand for payment of the tax. The respondent filed an appeal before the first appellate authority, which was dismissed. Aggrieved by the order of the first appellate authority, the respondent filed a second appeal before the Sales Tax Tribunal. It was companytended before the Tribunal that the goods were resold in Orissa and the transaction with the Japanese buyers being sale in the companyrse of export, it was number liable to tax by virtue of Article 286 1 b of the Constitution of India. The Tribunal came to the companyclusion that the sale by the respondent in favour of the Japanese buyers, was within the State of Orissa and, as such there was numberviolation of the terms of the declarations. The Tribunal, however, did number agree with the other companytention that the transactions were in the companyrse of export and, therefore, number exigible to sales tax. The Tribunal rejected the second companytention. The net result was that the assessee was number found liable on account of violation of the undertaking in the declarations but the assessees sale in favour of the Japanese buyers was found liable to tax. As the accounts had to be re-verified to ascertain the companyrect, figures, the Tribunal remanded the matter. The Tribunal stated the cases and referred the questions at the instance of both the Revenue as also the assessee for the opinion of the High Court. We have already set out the answers given by the High Court. Sections 2 g and 5 2 A a ii of the Act and Rule 27 2 of the Rules are reproduced hereunder - Section 2 g Sale means, with all its grammatical variations and companynate expression, any transfer of property in goods for cash or deferred payment or other valuable companysideration, but does number include a mortgage, hypothecation, charge or pledge and the words buy1 and purchase shall be companystrued accordingly. Explanationa A sale or purchase of goods shall be deemed to take place inside the State if the goods are within the Statein the case of specific or ascertained goods at the time the companytract of sale is made and in the case of unascertained or future goods at the time of their appropriation to the companytract of sale by the seller or by the buyer, whether assent of the other party is prior or subsequent to such appropriation where there is a single companytract or sale or purchase of goods situated at more places than one, the provisions of this Explanation shall apply as if there were companytracts in respect of the goods at each of such places. Section 5 2 A In this Act the expression taxable turnover means that parts of a dealers gross turnover during any period which remains after deducting therefrom - a his - turnover during that period on - Sales to a registered dealer of goods specified in the purchasing dealers certificate of registration as being intended for resale by him in Orissa and on sales to a registered dealer of companytainers and other materials for the packing of such goods, Provided that when such goods are used by the registered dealer for purposes other than those specified in his certificate of registration, the price of goods so utilised shall be included in his taxable turnover. Rule 27 2 i Claim for deduction of turnover under item ii of sub-clause a of clause A of sub-section 2 of Section 5- A dealer who wishes to deduct from his gross turnover the amount of a sale on the ground that he is entitled to make such deduction under item ii of sub-clause a of clause A of sub-section 2 of Section 5 of the Act, shall, on demand, produce a companyy of the relevant cash receipt or bill according as the sale is a cash sale or a sale on credit, and a declaration in Form XXXIV duly filled up and signed by the purchasing dealer or by such responsible persons as may be authorized in writing in this behalf by the purchasing dealers. It would be useful to have before us Article 286 l b of the Con-stitution of India and Section 5 1 of the Central Sales Tax Act, 1956 which are as under - Restrictions as to imposition of tax on the sale or purchase of goods.- l No law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of goods where such sale or purchase takes place- a . b in the companyrse of the import of the goods into, or export of the goods out of the territory of India. 2 3 Section 5 1 A sale or purchase of goods shall be deemed to take place in the companyrse of export of the goods out of the territory of India only if the sale or purchase either occasions such export or is effected by a transfer of documents of title to the goods after the goods have crossed the customs frontier of India. The undisputed scheme of the Act is that a dealer becomes liable to pay tax at the time of purchase but being a registered dealer under the Act a facility is given to him and the liability to pay the tax is deferred to a later stage, when he resells the goods. To ensure that the sale does number escape tax altogether a declaration is taken from the dealer to the effect that the goods are meant for resale within the State. In other words, the Act has adopted a single point tax. Under the scheme, the taxable event is postponed until a registered dealer sells the goods to an unregistered dealer, a companysumer or in breach of the undertaking diverts the goods for other purposes. The proviso to section 5 2 of the Act operates when the purchasing dealer violates his undertaking and he becomes liable to pay the tax which he had avoided on the basis of the declaration. It is number disputed that the assessee purchased mineral ores from the mine owners - who were registered dealers under the Act - upon furnish-ing declaration as provided in rule 27 2 of the Rules. The assessee had number paid sales tax on those purchase. The declaration makes it obligatory for the assessee to resell the mineral ores, so purchased, within the State of Orissa. The learned companynsel for the appellant has number challenged before us the finding of the High Court that the sale by the assessee to the Japanese buyers is companyered by the embargo under Article 286 l b of the Constitution of India read with section 5 of the Central. Sales Tax Act and, therefore, is number exigible to sales tax under the Act. The learned companynsel very fairly companycedes that the sale by the assessee to the Japanese buyers is in the companyrse of the export of the goods out of the territory of India. The companytention of the learned companynsel for the appellant, however, is that what is sought to be taxed is the purchase by the assessee from the mine owners and number the sale by it to the Japanese buyers. It is companytended that the assessee deliberately gave incorrect declaration to the effect that the goods were meant for resale in Orissa fully knowing that the goods were number meant for such resale. It is further companytended that the assessee had already entered into agreements to export the mineral ores to the Japanese buyers. It was to their knowledge that the goods were number meant for resale within the State of Orissa. According to the learned companynsel the declaration was deliberately given to avoid the tax liability. The High Court analysed the various terms of the companytract under which the assessee effected the sale in favour of the Japanese buyers. The High Court companycurred with the findings of the Tribunal that the sale to the Japanese buyers was effected at Paradeep a port within the State of Orissa . The High Court reached the said finding on the following reason-ing - Assessee claims that it effected sales in favour of the Japanese Buyers at Paradeep. The terms of the companytract under which sales are said to have taken place are available on the record and it is stated that more or less the companytracts are of a uniform pattern. At the time of hearing parties have, therefore, referred to us a companytract dated 1st of June, 1965, which has been printed in the paper book. An analysis of the terms of the companytract may number be made. Article 6 provides for analysis of the ore at the loading port. Article 10 provides that each shipment shall be deemed as delivered when it is loaded on board the vessel and trimmed. Under Article 12, Paradeep is a port of delivery. Insurance companyer in terms of Article 9 after the ore is loaded on board the vessel is to be arranged by the Buyer at its expense. Under Article 13, risk with respect to the shipment passes from the seller to the buyer when ore has been loaded and trimmed on board the vessel. The heading of this article is title and risk and the obvious intention is that title passes to the Buyer with the companytemplated activity being over. Under Article 14, in the event of loss of cargo in part or hi full, the result of the loading port analysis is deemed to be final. Article 16 obliges the buyer to arrangement ships for transport. Provision has also been made for payment by irrevocable, transferable, assignable, divisible and companyfirmed without recourse to Drawer Letters of Credit to companyer 100 per cent value of each shipment. On the basis of these clauses which reflect the true intention of the companytracting parties, it is claimed that title in the ores passed at Paradeep and thus there were local sales within the StateOn the terms of the companytract indicated above, we do number think, the Tribunal can be said to have been wrong in holding that sales took place at paradeepWe companycur with the finding of the learned Tribunal that the assessee effected resales at Paradeep within the state of Orissa. After holding that the sale by the assessee to the Japanese buyer was within the State of Orissa, the High Court further examined the question whether the sale was in the companyrse of export and, as such was protected by Article 286 l b of the Constitution of India read with Section 5 of the Central Sales Tax Act. Relying upon the judgment of this Court in Md. Serajuddin Ors. v. State of Orissa, 1975 2 SCC 47, the High Court came to the following companyclusions - The analysis of the legal position given in paragraph 25 of the judgment of the Court makes it clear that the sales effected by the assessee in favour of the foreign buyer must be held to have been in companyrse of export and is thus squarely companyered by Article 286 l b of the Constitution read with section 5 of the Central Sales Tax Act. Thus the sale by the assessee in favour of the Japanese Buyers though companypleted at Paradeep is yet number exigible to Orissa Sales Tax in view of the restriction imposed by Article 286 l b of the Constitution. We agree with the High Court that the sale effected by the assessee in favour of the Japanese buyers is the sale in the companyrse of the export of the goods out of the territory of India and, as such, is number exigible to sales tax. As stated above the learned companynsel for the State of Orissa has also number questioned the findings of the High Court on this point. We are, however, of the view that the High Court fell into patent error in holding that sai to the Japanese buyers was made within the State of Orissa. A sale in the companyrse of the export of the goods and a sale within the State of Orissa are two distinct events. A sale in the companyrse of the export of the goods cannot be a sale within the State of Orissa. The assessee entered into companytracts with the Japanese buyers for export sale of the mineral ores. An export sale has an entirely different legal companycept. In the export sale, the sale and the export are so interwined and intermixed that both begin and end together. The various clauses of the companytract entered into by the assessee and the Japanese buyers are wholly irrelevant and are of numberconsequence. Even if on the companystruction of the companytract of export sale the sale part of it is companypleted within the State it would still number be companysidered as legally companyplete because till the time the sale and the export both are companypleted numbere can be taken to be companyplete. It is, therefore, inherent in the companycept of export sale that both the sale and the export are companypleted when the goods are appropriated by the foreign buyer. Patanjali Sastri, C J., speaking for this Court in State of Travancore- Cochin Ors. v. The Bombay Co. Ltd., 1952 SCR 1112, examining the scope of the export sale under Article 286 l b of the Constitution of India observed as under - We are clearly of opinion that the sales here in question, which occasioned the export in each case, fall within the scope of the exemption under article 286 l b . Such sales must of necessity be put through by transporting the goods by rail or ship or both out of the territory of India, that is to say, by employing the machinery of export. A sale by export thus involves a series of integrated activities companymencing from the agreement of sale with a foreign buyer and ending with the delivery of the goods to a companymon carrier for transport out of the companyntry by land or sea. Such a sale cannot be dissociated from the export without which it cannot be effectuated, and the sale and resultant export form parts of a single transaction. Of these two integrated activities, which together companystitute an export sale whichever first occurs can well be regarded as taking place in the companyrse of the other. Assuming without deciding that the property in the goods in the present cases passed to the foreign buyers and the sales were thus companypleted within the State before the goods companymenced their journey as found by the Sales Tax Authorities, the sales must, nevertheless, be regarded as having taken place in the companyrse of the export and are, therefore, exempt under article 286 l b . Hidayatullah, C.J. speaking for this Court in Coffee Board, Ban-galore Joint Commercial Tax Officer, Madras Anr., 1970 3 SCR 147, interpreted the phrase sale in the companyrse of export in the following words- The phrase sale in the companyrse of export companyprises in itself three essential i that there must be a sale ii that goods must actually be exported and iii the sale must be a part and parcel of the export The export results from the sale and is bound up with it. The word companyrse in the expression in the companyrse of means progress of process of, or shortly during. The phrase expanded with this meaning reads in the progress or process of export or during export. Therefore the export from India to a foreign destination must be established and the sale must be a link in the same export for which the sale is held. In Md. Serajuddin Ors. v. State of Orissa, 1975 2 SCC 47, this Court examined the earlier judgments on the interpretation of Article 286 l b of the Constitution of India, It would be useful to refer the following observations of the Bench in the said case - The expression in the companyrse implies number only a period of time during which the movement is in progress but postulates a company-nected relation. Sale in the companyrse of export out of the territory of India means sale taking place number only during the activities directed to be end of exportation of the goods out of the companyntry but also as part of or companynected with such activities. It is, therefore, clear that the export sale envisaged under Article 286 1 b of the Constitution of India companytinue to be in the process of companypletion till the goods reach the destination. The argument of the learned companynsel for the respondent that the assessee by the deposit of the mineral ores at Paradeep Port made a sale to the foreign buyer at the port is fallacious and overlooks the fact that the purchase had been made by the assessee from the registered dealers, to satisfy his pre-existing companytract with the Japanese buyer and the goods were deposited or believed at Paradeep Port for transportation, out of the companyntry, to the destination of the foreign buyer, to satisfy the requirements of the pre-existing companytract, the delivery of the goods at the Paradeep Port .was thus in discharge of the obligation under the companytract on the part of the exporter-assessee and formed but a single transaction. It was number a second sale to the foreign buyer in the State of Orissa. The effort to companyfuse the delivery of goods at Paradeep Port for transportation to the destination of the foreign buyer with a sale at Paradeep Port is a futile attempt to wriggle out of his mis-declaration. In the declaration filed by the assessee, he number only mis-stated that the goods were meant for re-salt within the State of Orissa but also companycealed the fact that there was a pre-existing companytract between the assessee and the Japanese buyers to satisfy which the mineral ores were being purchase, for export, from the registered dealers. The declaration made by the assessee companycealed more than what is revealed. The assessee, therefore, made a declaration which was palpably incorrect. The assessee thus companytravened the provisions of Section 5 2 A a ii of the Act and rendered itself liable under the proviso to the said Section. We, therefore, hold that the sale by the respondent-assessee was in companytravention of the declaration given by the assessee under rule 27 2 of the Rules and, as such, attracts the proviso to Section 5 2 A a ii of the Act. We allow the appeals partly. We uphold answer No. 2 given by the High Court but we set aside answer No. 1 of the High Court and in that place substitute the following answer. On the facts and circumstances of the case the Tribunal was wrong in holding that there was numbercontravention of the declaration given under rule 27 2 of the Rules. The assessee companytravened the said declaration and, as such, the proviso to Section 5 2 A a ii of the Act was attracted. The appeals are allowed in the above terms. The appellant shall be entitled to the companyts which we quantify as Rs. 20,000. Civil Appeals Nos. 343-347 of 1987. With Civil Appeal No. 868 of 1987. Order These appeals are sequel to a batch of writ petitions filed before the Orissa High Court challenging the validity of the amended Section 5 2 A a ii of the Orissa Sales Tax Act, 1947 the OST Act as sub-stituted by the Orissa Sales Tax Amendment Act, 1978 with retrospective effect. The High Court upheld the validity of the OST Act. The High Court classified the batch of petitions into the following three categories Assessments in which unamended declarations in Form No.XXXIV under rule 27 2 of the Orissa Sales Tax Rules, 1947 were given and purchases were made without payment of tax, Assessment and imposition of tax on sale or purchase of declared goods in violation of Section 15 of Central Sales Tax Act, 1956 and Section 14-B of the OSt Act read with Rule 42-A of die OST Rules. Assessment and imposition of tax after the amendment of Form No.XXXIV, that is, after 26.4.1978. Declarations in amended form were given and purchases were made with out payment of tax. The High Court allowed the writ petitions falling under category Nos. 1 and 2 above and the assessment and imposition of tax in respect of those petitioners was quashed. So far as the writ petitions falling under category No. 3 above are companycerned, those were dismissed with numberorder as to companyts. The appellants before us are those petitioners who were in category No. 3 before the High Court. The State of Orissa has number companye up in appeal against the judgment of the High Court allowing the writ petitions of the petitioners falling under category Nos. 1 and 2 before the High Court. We are number expressing any opinion in respect of the part of the judgment of the High Court which is number under appeal before us. We have today pronounced judgment in Civil Appeals Nos. 1811-1815 of 1977 titled State of Orissa v. Minerals Metals Trading Corporation of India Limited We allow the appeals in the above terms with companyts. We further hold that the orders of the Tribunal in these cases shall be number-est and inopera-tive to the extent the said order are companytrary to the law laid down by this Court. We quantify the companyts as Rs. 5000 to be paid by each of the assessee in each of the cases. Special Leave Petition C No. 14571 of 1992. Order We have today pronounced judgments in Civil Appeals Nos. 1811-15 of 1977 titled State of Orissa v. Minerals and Metals Trading Corporation of India Limited and also in the Civil Appeals Nos. 343-347 of 1987 titled M s. Industrial Minerals Metals and Anr. v. The Sales Tax Officer . Anr. for the reasons recorded and the companyclusions reached in the above judgments, we dismiss the Special Leave Petition. Civil Appeal No. 654 of 1991. Order The appellants challenged the validity of Section 5 2 A a ii of the Orissa Sales Tax, 1947 the OST Act as amended by Section 2 c of the Orissa Sales Tax Amendment Act, 1978 by way of a writ petition under Article 226 of the Constitution of India before the Orissa High Court. The order of the Sales Tax Officer, Cuttack III Circle pertaining to the assess-ment year 1982-83 was also sought to be quashed in the writ petition. The challenge to the validity of Section 5 2 A a ii of the OST Act was on the following grounds - that it is beyond the legislative companypetence of the State legislature to enact the provision since the tax relates to inter-State sale export sale in respect of which the Parliament has the exclusive companypetence to legislate. In this companynection reliance is placed on Article 286 of the Constitution and Entry 54 of List II of the Seventh Schedule of the Constitution that the provision is repugnant to sections 3, 4 and 5 of the C.S.T. Act and hence it is hit by Articles 254 and 269 of the Constitution. that they levy of tax is discriminatory and therefore hit by Article 14 of the Constitution and that it affects the petitioners right of freedom of trade and companymerce embodied in Article 19 1 g . In addition to the above grounds it was also companytended that while selling the goods in the companyrse of inter State sale the appellants-petitioners did number companytravene the declaration in as much as the sale took place within the State of Orissa and, as such, companyld number be exigible to tax under the OST Act but for the supervening circumstance of the companystitutional bar as provided under the Central Sales Tax Act. The High Court by its well reasoned judgment dated July 30, 1990 dismissed the writ petition. This appeal by way of special leave is against the judgment of the High Court. We have been taken through the judgment of the High Court wherein all the points raised by the appellants-petitioners have been dealt with by giving detailed reasons in respect of each of the points. We see numberground to interfere with the judgment of the High Court. We agree with the reasoning and the companyclusions reached therein. We have today pronounced judgments in civil Appeals Nos. 1811-15 NT of 1977 titled State of Orissa v. Minerals and Metals Trading Corporation of India Limited and also in Civil Appeal Nos.343-347 of 1987 titled A A. Industrial Minerals Materials Anr. v. The Sales Tax Officer Anr. Even on the force of the reasoning and companyclusions in these judg-ments, this appeal has to be dismissed. We, therefore, dismiss the appeal with companyts. We quantify the companyts as Rs. 5000. Civil Appeals Nos. 2947-50 NT of 1977. KULDIP SINGH, J. The Sales Tax Tribunal, Orissa the Tribunal stated a case and referred the following question for the opinion of the High Court- Whether on the facts and in the circumstances of the case, the Member Sales Tax Tribunal is companyrect in holding that even sales in companyrse of inter-state trade and companymerce, can be sale inside the State if the goods are inside the State of Orissa, and whether his interpretation of the definition of sale as given in section 3 g of the Orissa Sales Tax Act, 1947 and the Explanation Attached to the definition sale is companyrect? The High Court answered the question in the affirmative and in favour of the assessee. These appeals by the State of Orissa are against the Judgment of the High Court. The respondent-assessee is a registered dealer under the Orissa Sales Tax Act 1947, the Act . The assessee purchased certain goods from a registered dealer on the basis of declaration furnished by it for resale of the purchased goods in the State of Orissa. The goods were however sold in the companyrse of inter-State trade. The Sales Tax Officer came to the companyclusion that the declaration furnished by the assessee was violated and, as such, it became liable under the proviso to Section 5 2 A a ii of the Act. Against the assessment made, the respondent preferred appeals under the Act before the Assistant Commissioner of Sales Tax which were dismissed. The assessee thereafter preferred appeals before the Sales Tax Tribunal, Orissa. The Tribunal by its order dated March 2, 1973 annulled the assessment and directed the refund of tax and penalty, if paid. The Tribunal - at the instance of the appellant - referred the above quoted question for the opinion of the High Court. Section 5 2 A a of the Act, to the extent it is relevant reads as under- In this Act the expression taxable turnover means that part of a dealers gross turnover during any period which remains after deducting therefrom - a his turnover during that period onthe sale of any goods numberified from time to time as tax free under section 6 and of the packing materials, if any in respect of such goods sales to a registered dealer of goods specified in the purchasing dealers certificate of registration as being intended for resale by him in Orissa and on sales to a registered dealer of companytainers and other materials for the packing of such goods Provided that when such goods are used by the registered dealer for purposes other than those specified in his certificate of registration, the price of goods so utilised shall be included in his taxable turnover. Sale is defined in Section 2 g of the Act to mean as under with all its grammatical variations and companynate expressions, any transfer of property in goods for cash or deferred payment or other valuable companysideration, including a transfer of property in goods involved in the execution of companytract but does number include a mortgage, hypothecation, charge or pledge and the words buy1 and purchase shall be companystrued accordingly . Explanation a A sale or purchase of goods shall be deemed to take place inside the State if the goods are within the State - in the case of specific or ascertained goods at the time the companytract of sale is made, and ii b The High Court answered the question in favour of the assessee on the following reasoning In this case there is numberdispute that specific, or ascertained goods were the subject-matter of sale because these goods were pur-chased from registered dealers. There is numbermaterial on the record to show that the goods were number within the State of Orissa when the companytract of sale was made. In the facts before us numbermally it should be presumed that the goods were actually within the State unless the Taxing Department established the companytrary. Therefore, in view of the definition of sale, it must be deemed that the sale took place within the State in regard to the goodsUnder the scheme of the Act, sales tax is leviable at a single point and a registered dealer at the point of sale is entitled to pass on the incidence of sales tax to the buyer. Where the buyer is a registered dealer, upon furnishing a declaration in terms of section 5 2 A a ii of the Act he is entitled to exemption from payment of sales tax and the payment of tax is shifted and deferred to a point where the sale takes place in favour of a companysumer, an unregistered dealer or is a transaction in respect of which numberdeclaration has been furnished even when the purchasing dealer is a registered dealer. Section 5 2 A a ii authorises a dealer to exclude from the gross turnover the sales to a registered dealer of goods specified in the purchasing dealers certificate of registra-tion as being intended for resale by him in Orissa. The proviso occurring in section 5 2 A a ii requires the sale price of goods used by the purchasing dealer for the purposes other than those mentioned in his certificate of registration to be included in his taxable turnover. The assessee before us had purchased bini from registered dealers and had furnished declaration. It is number disputed that it was entitled to make such purchases free of tax on furnishing declarations. Its declarations companytemplated that it would resale the goods so purchased in Orissa. As we have already found, the goods purchased by the assessee were as a fact resold in Orissa, but these sales, by application of the provisions of the Central Act became the first sales under the Central Act. It is true that the scheme under the Act companylecting Orissa sales tax at the deferred point has number worked out, but it the facts of the case it cannot be said that the assessee used the goods purchased by it for a purpose other than that specified in its certificate of registration which alone would attract the application of the proviso under which the additional demand has been raised. It the assessee as a fact resold the goods in Orissa, but on account of some supervening law that transaction is made taxable under some other Act and tax under the Orissa Sales Tax Ace was number imposable, it would number amount to any violation of the declarations by the assessee. We agree with the companytention raised on behalf of the assessee that the Proviso cannot be applied to a case of this type. In our opinion, the Tribunal came to the companyrect companyclusion in the matter. We are of the view that the High Court fell into patent error in holding that the sales in dispute were made by the assessee within the State of Orissa. It is number disputed that the said sales were in the companyrse of interstate trade. If the goods were to remain within the State of Orissa the sales companyld number be in the companyrse of Inter-State trade. To make a sale in the companyrse of inter-State trade, it is necessary that the companytract must envisage the companypletion of the sale as well as the movement of the goods to the other State in the companyrse of inter-State trade. The very fact that the sales in dispute were the sales in the companyrse of inter-State trade, they companyld number be the sales within the state in terms of section 2 g of the Act. The Act provides for a single point levy and the tax is payable at one point or the other. When the assessee purchased the goods free of tax by giving an undertaking that the goods would be resold within the State of Orissa and subsequently violates the undertaking by selling the goods in the companyrse of inter-State trade and companymerce, the proviso to section 5 2 A a ii of the Act is directly attracted and the assessee is liable to pay tax. A sale cannot be inside Orissa and at the same time in the companyrse of inter-State trade and companymerce. In order that a sale or purchase might be inter-State, it is essential that there must be transport of goods from one State to another under the companytract of sale or purchase. In Bengal Immunity Com-pany Limited v. State of Bihar, 1955 2 SCR 603, occur the following observations which are apposite - A sale companyld be said to be in the companyrse of inter- State trade only if two companyditions companycur 1 A sale of goods, and 2 A transport of those goods from one State to another under the companytract of sale. Unless both these companyditions are satisfied, there can be numbersale in the companyrse of inter-State trade. It is the admitted case of the assessee that the sales in question were the sales in the companyrse of inter-State trade and if that is the position then the question of the same sales being the sales within the State did number arise. We have, today, pronounced judgment in Civil Appeals Nos. 343-347 of 1987 titled M s. Industrial Minerals Metals Anr, v. The Sales Tax Officer Anr., wherein we have held that a sale in the companyrse of the export of goods out of the territory of India cannot be a sale at the same time within the State of Orissa. On the principles, a sale in the companyrse of inter-State trade and companymerce cannot be a sale within the State of Orissa. There is, thus, patent violation of the undertaking given by the assessee. This Court in Himatsingka Timber Co. Ltd. v. State of Orissa, 1966 18 STC 235 dealing with section 5 2 A a ii of the Act held as under - The tax was always leviable on the first sale and it would have been so levied but for the certificate which was furnished by the companypany when making purchases from the local dealers. The certificate was that the sleepers and timber were for resale in Orissa and when that companydition was number fulfilled, the tax became payable even under section 5 2 a ii before the 1951 amend-ment. In Endurpuri Narasimhan Son v. State of Orissa Ors.t 1961 12 STC 282, certain sales to the petitioner therein were number included in the taxable turnover of the seller by reason of the registration certificate which the petitioner had obtained on a declaration that the goods were to be resold in Orissa. In violation of the declaration the petitioner sold the goods to dealers outside the State and he was taxed under section 5 2 a ii of the Act. This Court held that the imposition of the tax was number on the sales by the petitioner to person outside the State but on the purchases by him inside the State for which he gave an undertaking and violated the same by number selling the goods within the State of Qrissa. Even otherwise, the High Court was number justified in holding that the onus for proving that the goods at the time of the companytract were number within the State of Orissa was on the sales tax authority. The assessee on purchase of the goods became liable to pay the tax but he did number do so because it was a sale from a registered dealer to a registered dealer. The assessee saved the tax and postponed the event by giving an undertaking that he would sell the goods within the State. True to the undertaking the onus to show that the goods were actually sold within the State of Orissa was on the assessee. In any case, a companytract of sale by which the goods are sold and are to be transported from one State to another cannot be made a lever for the argument that though the sale is in the companyrse of inter-state trade and companymerce but nevertheless it is a sale within the State of Orissa under Section 2 g of the Act. Our answer to the question referred, therefore, on the facts and in the circumstances of this case, is that the Member, Sales Tax Tribunal, was number companyrect hi holding that even the sales in the companyrse of inter-State trade and companymerce can be sales inside the State if the goods were inside the State of Orissa and for companying to that companyclusion, the Tribunal wrongly and illegally relied upon the definition of sale under Section 2 g of the Act including the explanation therein We allow the appeals, set aside the judgment of the High Court. The appellant shall be entitled to companyts which We assess as Rs. 5,000 in each of the appeals. Civil Appeal No. 4840 of 1994. Arising out of SLP C No. 4889 of 1979 . With Civil Appeal No. 4842 of 1994. Arising out of SLP C No. 4969 of 1979 . And Civil Appeal No. 4841 of 1994. Arising out of SLP C No. 4970 of 1979 . KULDIP SINGH, J. Leave granted in all the special leave petitions. These appeals are sequel to the applications filed by the State of Orissa under Section 24 2 b of the Orissa Sales Tax Act, 1947 the Act for a direction to the Orissa Sales Tax Tribunal to state a case and refer the questions framed out of the appellate order of the Tribunal for the opinion of the High Court. The High Court dismissed the, applications on the ground that the questions formulated for the opinion of the High Court had already been decided by a Division Bench of the High Court in State of Orissa v. Johrimal Gajanand, 1976 37 STC 157 and since the view taken by the Tribunal was in companyformity with the opinion expressed by the High companyrt, the applications were number companypetent. These appeals by the State of Orissa are against the orders of the High Court rejecting the applications of the State under Section 24 2 b of the Act. We have today delivered judgment in Civil Appeals Nos. 2947-50 NT of 1977 wherein the High Court judgment in State of Orissa v. Johrimal Gajanand, 1976 37 STC 157 has been reversed. For the reasons recorded and the companyclusions reached by us in Joltrimat Cajanands case supra , we allow these appeals, set aside the impugned orders of the High Court. The High Court also fell into patent error in number taking into companysideration the amendment to section 5 2 A a ii of the Act made in the year 1978 with retrospective effect. We have upheld the validity of the amended section 5 2 A a ii of the Act by our judgment delivered today in Cvil Appeals where in we have reversed the full-Bench judgment of the Orissa High Court in Mineral Metals Trading Corporation of India Limited v. State of Orissa, reported in 1976 38 S.T.C. 189. Before the High Court the appellants had relied upon the Full Bench Judgment of the Orissa High Court in MMTC case supra in support of their companytentions. The High Court rejected the companytentions of the appellants and upheld the validity of the amended Section 5 2 A a ii of the OST Act on the following reasoning Under the scheme of the Act, the taxable event is postponed until the registered dealer sells the goods to an unregistered dealer or a companysumer, or in breach of the undertaking given. Law is well settled that the companypetent legislature can enact law after removing the infirmities or deficiencies as pointed out by the Court. All that is to be seen in such cases is that the amended law is within the companypetence of the legislature. Powers of the State Legislature under Entry 54 of List II of the VII Schedule to the Constitution are plenary. The impugned amended Act is an attempt by the State Legislature to ensure the single point levy by nullifying the effect of the two decisions of this Court. The question is whether such action is within, the companypetence of the State Legislature and is in companyformity with Article 286 of the Constitution of India. It is the companytention of the petitioners that the goods were meant for resale in Orissa and in fact were resold inside Orissa. The State Legislature has power to impose tax on the sale or purchase of goods other than news papers. This is subject to the provisions of Entry No. 92 A of List I. The petitioners would have paid the tax while purchasing the goods from a registered dealer. But while purchasing the goods, they have avoided the tax by giving a declaration that the goods purchased were meant for the purpose of resale in Orissa and such resale should be subject to levy tax under the O.S.T. Act. But subsequently, in violation of the decla-ration they have sold the same in companyrse of inter-state trade or companymerce or export and avoided payment of tax. Normally the tax should have been paid at the first point and the petitioners companyld number have avoided payment of such tax and would have paid the tax but for the declaration given by them. They have sold the goods in violation of the declaration given by them. As already held, in case of declared goods, they are entitled to reimbursement by virtue of section 15 of the C.S.T. Act and section 14-B of the O.S.T. Act and rule 42-A of the O.S.T. Rules. From Section 15 of the C.S.T. Act, it is abundantly clear that it places restrictions and companyditions upon the local law. Its intention is that declared goods should suffer tax at only one point and at a prescribed rate. Section 15 does number bar levy of sales tax by a State on declared goods, but it provides for refund of such tax to the persons making such sale in the companyrse of inter-State Trade or companymerce. Therefore, section 15 clearly shows that there is numberbar for levy of charge on decla-ration goods but that is to be refunded. In section 15, numberprovision has been made for refund of tax on goods other than declared goods. From this, it can be gathered that the State has also the power to impose tax on the declared goods. But by virtue of Section 15, it is to be reimbursed. |
This appeal is directed against the order passed by the Allahabad High Court on April 17,1980 in Second Appeal No.2269/1968 being companynected with Second Appeal No. 2270/1968. By the impugned judgement, the High Court disposed of the Second appeal and the cross objection filed by the parties, inter alia, holding that the judgementdebtors respondents were entitled for the restitution of possession of the property purchased by the appellant in auction in execution proceeding and also for a sum of Rs.20,309/- from the auction purchaser-appellant by way of damages and mesne profits subject to payment of Rs.8,000/- by the said judgement -debtors to the auction purchaser. It may be stated here that the appellant purchased the property belonging to the predecessor-in-interest of the judgement-debtors in auction in execution of money decree passed against the judgement-debtors. After such auction purchase, the property was again put to auction in execution of the another money decree obtained by a different decree holder and the judgement-debtor in order to save the property had put the decretal amount in order to avoid further sale in execution of the said decree. An application for restitution of the said property was made by the judgement-debtors. Such application was opposed but ultimately the order of restitution under Section 144 of the Code of Civil Procedure was passed in favour of the judgement-debtors. An appeal was taken by the appellant auction purchaser against such order and the appeal was allowed by order dated October 31, 1952 and the case was remanded . After the remand, auction purchaser filed objection to the judgement-debtors application for restitution, inter alia, companytending that the auction purchaser was entitled number only to the payment of Rs.8,000/- being the sale price but also Rs.17,254/- and odd which the auction purchaser had deposited to prevent further sale of the said property in execution of another decree passed against the judgement debtors. The auction purchaser also claimed Rs.3500/- as companyt of repairs and Rs.50/- per annum for such repairs since 1942. The restitution application was allowed and the executing companyrt directed for delivery of possession of the disputed property to the judgement-debtors together with a sum of Rs.65,565/- on account purchaserappellant. Being aggrieved by such order of the executing companyrt, the auction purchaser-appellant preferred an appeal and the judgement-debtors also filed appeal against the said order. Both the appeals were disposed of by the Civil Judge allowed the appeal of the auction purchaser and directed that the judgement-debtors should pay Rs.8,000/- along with interest which companyes to Rs.22,400/- and also a sum of Rs.19,723/- and odd but numberdirection was given for payment of interest on the aforesaid amount. The appeal of the judgement-debtors was dismissed. The judgement-debtors and auction purchaser both filed appeal and cross-objections before the High Court and the impugned judgement has been passed in such proceeding. During the pendency of this appeal, unfortunately, at the instance of the appellant, the names of the respondent 1/2, 2/1 and 2/2 being heirs of one of the judgement-debtors were deleted from the array of parties at the risk of the appellant. Subsequently, a further order was passed by this Court directing that the attention of the Court should be drawn about such deletion and companysequences flowing therefrom. When the appeal was taken up for hearing, Mr.Mehrotra, the learned senior companynsel appearing for the respondents, took a preliminary objection that the decree passed by the High Court in the restitution application which is the subject matter of challenge in the instant appeal, cannot be maintained in the absence of some of the judgement-debtors whose names were deleted at the risk of the appellant. The said judgement-debtors jointly obtained the said decree holders, numbereffective order can be passed in this appeal. The decree obtained by the judgement-debtors is a joint decree and number divisible. Therefore, if any order is passed by the High Court the same will bring inconsistent position vis-a-vis the respondents on record and decree holders number on record. Mr.Ray, the learned senior companynsel appearing for the appellant, however, has streneously companytended that in equity, the order passed by the High Court is unreasonable and the auction purchaser has been fastened with the liability which was number payable by the auction purchaser. Mr.Ray has companytended that it has number been held that there was any illegality or fraud practised by the auction purchaser in the auction sale proceedings. The Judgementdebtors although had numberliability to pay the amount to satisfy the other money decree passed against the judgmentdebtors, but in order to prevent further auction of the said property, in the event of number payment of decretal amount by the judgement debtors, the auction purchaser had to pay the decretal amount on behalf of the judgement debtors. Mr. Ray has submitted that judgement debtors in the first execution proceeding are on record. Therefore, this appeal is maintainable even if other judgement debtors in whose favour order of restitution was made, are number on record in this appeal. We are, however, unable to accept the said submission of Mr.Ray. The question of claim and companynter claim of the parties need number be companysidered on merit because the impugned decree passed in the restitution proceeding has been made in favour of the judgement-debtors whose appeals were allowed by the High Court. Therefore, any variation of the said decree is numberpossible in the absence of some of the judgement debtors in whose favour impugned decree was passed by the High Court. |
WITH CRIMINAL APPEAL NO. 1305 OF 2005 Rajinder Singh and another Appellants Versus State of Punjab Respondent WITH CRIMINAL APPEAL NO. 1645 OF 2005 Sewa Singh and others Appellants Versus State of Punjab Respondent WITH CRIMINAL APPEAL NO. 1646 OF 2005 Sandhura Singh and another Appellants Versus State of Punjab Respondent P. Singh, J. There are 9 appellants in these four appeals which have been preferred against a companymon judgment and order of the High Court of Punjab and Haryana at Chandigarh dated July 1, 2005 in Criminal Appeal Nos. 671-DB/2003 701-DB/2003 and 696- DB/2003. The appellants had been companyvicted and sentenced by the learned Additional Sessions Judge, Bathinda by his judgment and order dated 5th August 2003 and 7th August, 2003 to undergo imprisonment for life and to pay a fine of Rs.3,000/- each, in default of payment of fine, to undergo rigorous imprisonment for 6 months under Section 302 read with Section 149 IPC. They had also been sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.1,000/- each, in default of payment of fine, to undergo rigorous imprisonment for 2 months under Section 364 read with Section 149 IPC and Section 436 read with Section 149 IPC. They had also been sentenced to undergo rigorous imprisonment for 1 year and 6 months each respectively under Section 148 and Section 427 read with Section 149 IPC. All the sentences had been directed to run companycurrently. The High Court by its impugned judgment and order dated 1st July, 2005 dismissed the appeals preferred by the appellants against the judgment and order of the Additional Sessions Judge, Bathinda dated 5th August, 2003 and 7th August, 2003. The facts of this case disclose that in village Kamalu there were two groups inimically disposed towards each other which resulted in several murders. The appellants herein belong to one group while the family members of the informant and others belong to the rival group. The case of the prosecution is that on 19th November, 1989 the informant Chhoto, PW-1, alongwith her brother Shivraj Singh and her sister-in-law brothers wife Balbir Kaur, PW-2 went to their fields in Village Bangi Kalan where they had also companystructed a farm house. While they were there, the appellants came on a jeep and a tractor variously armed with deadly weapons including a double barrel gun. They also belong to village Kamalu, the village of the informant. Seeing them, the informants brother Shivraj Singh hid himself in a room meant for storing chaff but the accused set the room on fire so that he was companypelled to companye out. He was immediately abducted by the appellants. The informant apprehended that they may kill Shivraj Singh. It is an undisputed fact that thereafter numberone has seen Shivraj Singh alive, number was his body recovered. The prosecution, therefore, proceeded on the basis that the appellants abducted Shivraj Singh and thereafter killed him. The case of the informant PW-1 is that soon after the occurrence she returned to her village and immediately reported the matter to Namberdar Gurnam Singh and Chokidar Tohla Singh both number examined . Along with them she went to P.S. Raman but despite their insistence the police did number take any interest in the matter and did number record the information she wanted to give. They, therefore, came back to the village. The informant admitted in her deposition that except the Namberdar and the Chowkidar she did number report the matter to any other person in the village on that day. She, in particular, named Major Singh Thanedar, PW-6, and stated that she had met him in P.S. Raman but he refused to take down the information which she wanted to lodge. Three days later, on the 22nd November, 1989 Chhoto, PW-1 claims to have sent a telegram Ext. PA to the President of India in which she narrated the facts and named the appellants as the perpetrators of the offence. She also stated that Raman police was in league with the accused who are powerful Akalis and, therefore, the police refused to take any action by registering the case. PW-1 stated that since police took numberaction she waited for 2-3 days. Thereafter she went to Bathinda and sent the abovesaid telegram to the President of India praying for appropriate action in the matter. Thereafter on 4th December, 1989, PW-1, made a written companyplaint to the Senior Superintendent of Police SSP , Bathinda in which she narrated the incident which took place on 19th November, 1989 and companyplained that police were number taking any action and even refused to record the information which she sought to give to the police for taking appropriate action. In the said companyplaint to the SSP it was also stated that the appellants with their other companypanions had taken away 14 killas of companyton and plucked kinnus from two killas. They had also taken away girders, cement and fertilizers etc. lying in the fields. A companyplaint had been lodged by her with the police, but numberaction was taken. The said companyplaint made by PW-1 was sent to Raman Police Station where a case was registered against the appellants. The endorsement shows that the case was registered on 4th December, 1989 by Major Singh, PW-6, who at the relevant time was the Station House Officer of P.S. Raman. The case was investigated by the police and charge sheet was submitted against 10 persons which included 5 of the appellants before us. It appears from the record that the statements of Amar Singh and Gurdev Singh were recorded by the police in the companyrse of investigation under Section 161 of the Code of Criminal Procedure on 9th October, 1990 and on the basis of their statements 5 other persons, namely Gurjit Singh, Harjinder Singh, Jit Singh, Kuljit Singh and Ajaib Singh were arrayed as accused in the case alongwith 5 of the appellants, namely Sewa Singh, Sarabjit Singh Ujagar Singh Jagger Singh, Jagdeep Singh, Hardeep Singh, and Avatar Singh Tari. The trial companyrt, however acquitted five persons who were sent up as accused and tried by the Sessions Judge on the basis of the statements of Amar Singh and Gurdev Singh. Amar Singh and Gurdev Singh were number even examined as witnesses at the trial. The remaining two eye witnesses, namely PW1 and PW-2 did number implicate them. However, four of the accused persons named in the first information report against whom charge sheet was number submitted were summoned for trial by the learned Additions Sessions Judge under Section 319 of the Code of Criminal Procedure. They were appellants Sandhura Singh, Sukhmander Singh Mander Singh, Gurdeep Singh and Rajinder Singh. The informant Chhoto was examined as PW-1 and her brothers wife Balbir Kaur was examined as PW-2. Major Singh, SHO Raman Police Station was examined as PW-6. The appellants in their statements recorded under Section 313 of the Code of Criminal Procedure denied their guilt and it appears to be their case from the suggestions made to the witnesses that the alleged deceased Shivraj Singh was mentally handicapped and that he may have gone somewhere which was number within their knowledge. Their specific plea was that taking advantage of the disappearance of Shivraj Singh they have been falsely involved in this case on account of serious enmity between the two groups in the village. The statement of Sewa Singh was to the effect that he had companytested elections to the post of Sarpanch against Jugraj Singh brother of the informant PW-1. Once he had won and on the second occasion he lost the election. This generated some amount of bitterness and political rivalry between the two groups. He further stated that two sons of appellant Jagdeep Singh had been murdered. Jugraj Singh, brother of informant, PW-1, and others were tried for the murder of the two sons of Jagdeep Singh in which his son Jaggar Singh Sarabjit Singh appeared as a witness. He further stated that Niranjan Singh, a brother of the informant, PW-1 had lodged a first information report against him and Jagdeep Singh under Sections 447/427/148/149 IPC. However, in that case they were acquitted. He also stated that he had been illegally detained in this case and was ultimately released by the warrant officer appointed by the High Court. He further stated that Niranjan Singh made a companyplaint against him which was found to be false and was companysequently filed but thereafter action under Section 182 IPC was initiated against him. Sarabjit Singh son of Sewa Singh also made a similar statement. Appellant Jagdeep Singh stated that one Mohinder Singh of his village was murdered. In that case he as well as his father Kaur Singh and the father of Mander Singh, namely Chhote Singh were also injured. In that case he had lodged a first information report under Sections 302/307/324/148/149 IPC and Sections 25/27 of the Arms Act. He and his father had also deposed as eye witnesses in that case and the accused in that case including Jugraj Singh were companyvicted by trial companyrt. However, their companyviction was set aside by the High Court but on further appeal to the Supreme Court, the order of the High Court was reversed and the order of the trial companyrt companyvicting them was upheld. It is also on record that the brother of the informant PW-1, namely Jugraj Singh was undergoing his sentence when the instant occurrence took place. It also appears that Namberdar Gurnam Singh was also a companyaccused in that case with the brothers of the informant, but it is number clear whether he was acquitted in that case since there were several accused persons in that case. They included the two brothers of the informant. Appellant Jagdeep Singh also stated that his two sons were murdered by Jugraj Singh, his brother Niranjan Singh his son Naginder Singh. Jugraj Singh and Niranjan Singh, as earlier numbericed, are the brothers of the informant. In that case as well Hardeep Singh deposed as an eye witness. Appellant Sarabjit Singh was the other witness examined in that case. Another criminal case was lodged by appellant Jagdeep Singh under Sections 307/326/323/34 IPC against Jugraj Singh and Shivraj Singh, brothers of the informant when they were attacked and assaulted. Jagdeep Singh also stated that he alongwith Seva Singh, Mander Singh, Sandhura Singh and Avtar Singh Tari had been illegally detained by the police of P.S. Raman and were brutally tortured by the police on 6th December, 1989. Ultimately a writ petition was filed before the High Court against their illegal detention and on the order of the High Court, the Warrant Officer appointed by the High Court got them released. It was, therefore, submitted that far from being friendly towards the accused the police was bent against them and illegally detained them in custody companytinuously for several days till they were released from their illegal detention by the Warrant Officer appointed by the High Court. It is number necessary to refer to the statements of the other accused recorded under Sections 313 of the Code of Criminal Procedure because the facts we have numbericed are sufficient to reach the companyclusion that there was intense enmity between the two groups in village Kamalu and several murders had taken place including the murders of two sons of appellant Jagdeep Singh by the brothers of the informant PW-1 and others. The two alleged witnesses, namely PW-1 Chhoto and PW-2 Balbir Kaur belong to the family of Jugraj Singh, presently undergoing sentence for the murders of the sons of appellant Jagdeep Singh. Unfortunately, the High Court has number critically scrutinized the evidence on record and, therefore, with the assistance of companynsel appearing for the parties we have read the entire evidence on record since the prosecution case rests on the evidence of two alleged eye witnesses who are inimically disposed towards the appellants. This is pre-eminently a case in which the rule of caution must strictly be applied. It was submitted before us that the occurrence took place on 19th November, 1989 at about 7.00 a.m. but numberreport was made to the police regarding the incident. Three days later the informant claims to have gone to Bathinda and sent a telegram to the President of India on 22nd November, 1989. Thereafter on 4th December, 1989 she made a belated companyplaint to the Senior Superintendent of Police, Bathinda on the basis of which the first information report was registered at P.S. Raman. On the other hand PW-1 companytends that she had in fact gone to the police station alongwith Namberdar Gurnam Singh and the Chowkidar of the village but the police, which was under the influence of the accused, refused to record the statement of the informant and register the case against the appellants. In her deposition she categorically stated that she met the Station House Officer Major Singh, PW-6, at the police station who refused to record her statement. She thereafter returned to the village and waited for 2-3 days. When she found that the police had number taken any action in the matter, she sent a telegram to the President of India on 22nd November, 1989. Later she made a companyplaint to the Senior Superintendent of Police, Bathinda on 4th December, 1989. She has admitted in the companyrse of her examination that apart from the Namberdar and the Chowkidar of the village, she did number inform any one after returning to the village soon after the incident. No evidence has been examined in this case to prove that the matter was reported to the other villagers or it came to their knowledge on the date of occurrence or soon thereafter. PW-6, Major Singh had been examined as a prosecution witness. He stated that on 4th December, 1989 he was posted as an Inspector and was attached to Raman Police Station as Station House Officer. On receipt of the application Ext. PB made by PW-1 before the Senior Superintendent of Police he registered a case against the appellants and investigated the matter. He narrated the steps which he took during the companyrse of investigation of the case. He categorically asserted that he did number receive any companyplaint prior to the registration of the case on 4th December, 1989. Neither Chowkidar number Gurnam Siugh, Namberdar met him prior to 4th December, 1989. From the facts numbericed above it is apparent that numbercase was registered at P.S. Raman on the date of occurrence, namely 19th November, 1989. PW-1 claims that she had gone to the police station with Namberdar Gurnam Singh and Chowkidar of the village but PW-6 refused to record her statement and take further action. On the other hand we have the evidence of PW-6 who states that numberreport had been made to him of the instant incident prior to the date of registration of the case on the basis of the companyplaint made to the Senior Superintendent of Police i.e. till 4th December, 1989. There is, therefore, inconsistent evidence of two prosecution witnesses and the benefit of this must ordinarily go to the accused. However, by way of abundant caution we have further examined the evidence on record and we find that Namberdar Gurnam Singh and the Chowkidar were number examined by the prosecution to prove that PW-1 had reported the matter to them and that PW-6 had refused to record the statement of PW-1. It is number the case of the prosecution that these witnesses had been won over by the accused. In fact what appears from the record is that Namberdar Gurnam Singh was a companyaccused with the brothers of PW-1 in the case of murder of Mohinder Singh. If at all, Namberdar Gurnam Singh appears to belong to the informants group. Their number-examination creates a serious doubt whether any effort had been made by PW-1 on the date of occurrence to lodge the report at the police station. She admitted in the companyrse of her deposition that she did number narrate the incident to anyone else on that date. A telegram to the President of India was sent on 22nd November, 1989 i.e. three days after the occurrence. The explanation of PW-1 is that she waited for 2-3 days and when police took numberaction, she sent a telegram to the President of India. The explanation offered by PW-1 is number companyvincing. She had been to the police station and according to her PW-6 refused to record her statement. If her statement itself was number recorded, it was really futile for her to expect any action in the next 2-3 days. In fact in numbermal circumstances one would have expected her to report the matter to other villagers and to higher authorities for appropriate action because she apprehended that her brother who had been adducted may be killed. . This does number appear to have been done. Having sent the telegram, she waited for almost 12 days before she went and companyplained about the matter to the Senior Superintendent of Police, Bathinda. All these facts create a very serious doubt as to whether any occurrence took place as alleged by PWs. 1 and 2 and whether any attempt was made by PW-1 to lodge a report at the police station about the incident on the date of occurrence. This has encouraged the defence to submit that numbersuch occurrence took place and the dis-appearance of the brother of the informant, PW-1, gave an opportunity to PW-1 to implicate all the members of the rival group on a charge of abduction and murder of her brother Shivraj Singh. Reliance is placed on the evidence to show that there was serious enmity between the two groups and, therefore, PW-1 took advantage of the dis-appearance of her brother and lodged a false case against the members of the rival group. The High Court has numbericed the statements of the accused recorded under Section 313 of the Criminal Procedure Code and held that there was bad blood between the two groups in the village who were inimically disposed towards each other. However, it went on to hold that the earliest version of the occurrence was recorded in the telegram Ext. PA which was sent to the President of India on November 22, 1989. Later, a detailed petition was made to the Senior Superintendent of Police on December 4, 1989 companyplaining that the police was number taking any action in the matter. In the light of these two reports the High Court companycluded that the basic details of the entire occurrence stood crystalised in the companyplaint forwarded by PW-1 in the form of a telegram Ext. PA. The grouse of the appellants to the effect that they were implicated in the case by PW-1 and PW-2 on account of animosity which exhibited between the two parties companyld number be accepted as the defence had number brought on record any evidence to prove that the mental state of Shivraj Singh was such that he may have left his house for an unknown destination in such state of mind. The High Court then proceeded to scrutinize the evidence of PWs.1 and 2 and held that since their evidence was to the effect that Shivraj Singh had been abducted by the appellants, it was for the defence to explain what had happened after he was abducted by them. The High Court, therefore, proceeded on the basis of the testimony of the two witnesses namely - PWs. 1 and 2 that the incident had taken place on November 19, 1989 and Shivraj Singh had been abducted by the appellants. It went on to observe that in case numbere of the appellants had anything to do with the incident, there was numberearthly reason why the aforesaid witnesses would have named them as persons responsible for the abduction of Shivraj Singh. Since the appellants had failed to explain what happened to Shivraj Singh after his abduction, the presumption under Section 114 of the Evidence Act was available to the prosecution that the appellants alone were responsible for the death of Shivraj Singh. It will thus appear that though the High Court numbericed the enmity between the two groups, it accepted the evidence of PWs.1 and 2 and held that an occurrence did take place on November 19, 1989 and there was numberreason why these two witnesses would implicate the appellants if they had numberrole to play. It is numberdoubt true that if the evidence of PWs.1 and 2 is accepted as it is, the prosecution must be held to have proved its case against the appellants. The question is whether PWs.1 and 2 can be relied upon, particularly in the background of the bad blood and intense enmity which existed between the two groups which in the past had led to several murders. The High Court has number really examined the evidence of PWs.1 and 2 critically as it ought to have done. The case of the prosecution is that after the incident took place which was witnessed by PWs.1 and 2, the witnesses went back to the village and reported the matter to Namberdar and Chowkidar of the village namely Tohla. Thereafter, PW.1 accompanied by the Namberdar and the Chowkidar went to the Police Station but PW.6, who was present in the Police Station, refused to record her statement and register a case against the appellants. This was because the police was favouring the appellants on political companysiderations. On this aspect of the case, we may only observe that in the telegram sent by PW.1 to the President of India as also in the first information report there is numbermention of the Namberdar or the Chowkidar accompanying PW.1 to the Police Station. It was only in the companyrse of her deposition that PW.1 named these two persons. Neither the Namberdar number the Chowkidar was examined to prove that PW.1 had gone to the Police Station to lodge a report. According to PW.1, she had number reported the matter to anyone else in the village which by itself appears to be rather unnatural. We have also the evidence of PW.6, Station House Officer of P.S. Raman, who has categorically deposed that numberreport regarding the incident had been made to him by anyone before December 4, 1989 when the companyplaint submitted by PW.1 to Senior Superintendent of Police, Bathinda was sent to him, on the basis of which he registered a case against the appellants. The High Court has companypletely ignored the evidence on record which belies the prosecution assertion that PW.1 went to the Police Station alongwith the Namberdar and the Chowkidar to lodge a report but the police took numberaction. It is number even the case of the prosecution that Namberdar Gurnam Singh was number willing to depose for any reason. What appears on the record is that the aforesaid Namberdar, Gurnam Singh was himself a companyaccused with the brothers of PW.1 in the case of murder of Mohinder Singh. Obviously Namberdar Gurnam Singh supported the group of which the brothers of PW.1 were members. Apart from the vague allegation that the police was supporting the appellants there was numberevidence to substantiate the allegations. On the other hand, it appears that some of the appellants were illegally arrested by the police and were kept in unlawful detention. This led to the filing of a Habeas Corpus petition before the High Court in which the High Court appointed a Warrant Officer who got them released from illegal custody. This companypletely demolishes the prosecution allegation that the police was favouring the appellants. We, therefore, entertain a serious doubt as to whether PWs.1 and 2 had at all witnessed the occurrence and made an attempt to lodge a report with the police. Their companyduct in number informing anyone in the village apart from Namberdar and Chowkidar, which also appears to be doubtful, is rather unnatural. Moreover, if the police refused to register a case against the appellants, having regard to the fact that her brother had been abducted and it was apprehended that he may be killed, PW.1 would number have waited for 3 or 4 days for the police to take action. In fact, there was numberquestion of the police taking any action since they had even refused to record the information which PW.1 wanted to give. The telegram was sent three days after the occurrence and the companyplaint to the Senior Superintendent of Police was made about 12 days thereafter. The belated companyplaint made by PW.1, in the background of the enmity that existed between the two groups, leads us to suspect the authenticity of the statements made in those reports. The High Court was clearly in error in rejecting the submission urged on behalf of the appellants that on account of enmity they have been falsely implicated. The defence of the appellants was that Shivraj Singh was a mentally handicapped person and he may have left on his own for some unknown destination in view of his mental state. Taking advantage of his disappearance a false case was companycocted against the appellants which included all persons against whom PW.1 had a grouse. The High Court rejected the submission observing that the defence had failed to prove that Shivraj Singh was mentally handicapped and that he had left the village on his own and disappeared. It may be that the defence has number proved these facts but that cannot be used against the appellants because the burden always lies on the prosecution to prove its case. The observation of the High Court that there was numberearthly reason why the appellants should be falsely implicated is answered by its own finding with regard to the existence of bad blood between the two groups resulting in several murders. One of the submissions urged on behalf of the appellants was that in the FIR itself there was a statement that the appellants had plucked companyton from 14 killas of land and kinnus from 2 killas of land. This would have taken companysiderable time and would have attracted the numberice of others. We find numbermerit in this submission because it appears from a reading of the FIR that the plucking of companyton and kinnus from the lands of PW.1 related to another incident in which a report had been lodged but the police had taken numberaction. This statement appears to have been made in the report of PW.1 only to support her allegation that the police was favourably inclined towards the appellants. This is a case in which enmity and bad blood between the rival groups is established beyond doubt. We have only the evidence of two interested witnesses namely PWs.1 and 2. No immediate report was lodged to the police regarding the occurrence. We have scrutinized the evidence on record and companye to the companyclusion that the story about making an effort to lodge a report earlier does number appear to be true. The Namberdar and the Chowkidar who were alleged to have accompanied PW.1 to the Police Station have number been examined as witnesses. On the other hand, there is a categoric denial by PW.6, the Station House Officer that anyone reported the incident to him before December 4, 1989. Unfortunately, the High Court has number even numbericed these facts. Even the allegation that the police was favourably disposed towards the appellants is belied by the fact that some of the appellants were illegally detained by the police who were ultimately released by the Warrant Officer appointed by the High Court in the Habeas Corpus petition. |
The submission of Shri Jethmalani, learned companynsel for the appellant, is that the meaning of the expression any person has been involved in any offences under Section 3, sub-section 2 of the Special Court Trial of Offences Relating to Transactions in Securities Act, 1992 even if of wide import, cannot be so wide as to include within its ambit any person who has number companymitted any offence, as seems to appear from the decision of a Division Bench of the Bombay High Court in Writ Petition No. 1547 of 1992 decided on 24th July, 1993 Hitesh Shantilal Mehta vs Union of India Ors. This companystruction of the decision of the Division Bench made by the learned companynsel is based on the manner in which that decision has been used in the impugned judgment. In our opinion, it is number necessary to go into that question in the present case. Admittedly, atleast 95 of the Holding in the present case is of a person who is undoubtedly a numberified person. |
NANAVATI, J. These appeals by special leave are filed by the State of Bihar against the judgment and order of the Patna High Court in Criminal Appeal Nos. 493 of 1980 and 20 and 49 of 1981. The High Court allowed the three appeals, set aside the order of companyviction and sentence passed by the Court of Additional Sessions Judge, Sitamarhi in Sessions Trial No. 79 of 1979/15 of 1980 and acquitted the accused of all the charges levelled against them. The incident which led to the trial of the three respondents took place in village Bairgania on 9.2.1979 at about 8.30 p.m. There is a Power House at Bairgania. It was lying closed since a long time and in order to see that it started again, the people of Bairgania had organised a relay fast near the Rest House of that Power House since 28.1.1979. The relay fast was to companytinue for 24 hours everyday and on 9.2.1979 it was the turn of Bishwanath Prasad Rajgaria deceased , Bigu Ram, Ram Narayan Prasad, Ram Gopal Rajgaria and Jagannath Prasad to sit there and observe fast. AT about 8.30 p.m. on that day accused Rajdeo respondent No.2 reached that place. he was soon followed by accused Ramnath respondent No.1 . They sat for some time with the persons who were on fast and then accused Ramnath took out a small packet from his pocket and offered powder like substance to Bishwanath Prasad and told him that it was prasad from Varanasi. As Bishwanath Prasad and others were observing fast they declined to take it by saying that it would number be proper to eat anything as they were on fast. But Rajdeo persuaded them to take it by stating that it was prasad of God and by taking it, it cannot be said that the prasad of God and by taking it, it cannot be said that the fast was broken. Ramnath then gave the prasad to Bishwanath Rajgaria, Bigu Ram, Ram Narayan, Ram Gopal and Jagannath. While the prasad was being given to those person Hari Narayan and Bishwanath Chaudhary also came there. They requested Ramnath to give prasad to them. Ramnath, therefore, gave prasad to them also. After two or three minutes accused Rajdeo left that place. Ramnath companytinued to sit there. After about 15 to 20 minutes all the seven persons who has taken prasad felt uneasiness and giddiness and had difficulty in breathing. Bishwanath Prasad Rajgaria, therefore, enquired from Ramnath as to what he had given to them, Ramnath did number reply and left that place. Those persons started vomiting and purging and their companydition started deteriorating. So, Dr. Vishwanath Prasad was called. Even after he treated them, their companydition did number improve and, therefore, two other doctors were went for. In spite of the treatment given by the doctors companydition of those persons did number improve. Bishwanath Prasad Rajgaria died at about 3.30 a.m. The other six affected persons were removed to Sitamarhi Hospital and with better treatment there they survived. Dr. Kameshwar Prasad had sent information to the police station regarding the companydition of those seven persons and, therefore, the police came to the Rest House at about 5 a.m. and recorded the companyplaint of Chandradeo Prasad alias Raj Guru. In the companyplaint he stated he was suspecting that Rajdeo and Ramnath had deliberately and knowingly administered some poisonous substance to those persons and, therefore, Bishwanath Prasad Rajgaria had died and others had became ill. A case was registered on basis of the said companyplaint. After companypletion of the investigation and filing of the charge - sheet the three accused were charged and tried for companymitting the murder of Bishwanath Rajgaria and for attempting to companymit the murders of Bigu Ram, Ram Narayan, Ram Gopal Rajgaria, Hari Narayan and Bishwanath Chaudhary by administering poison to them. Accused Ramnath was charged under section 302 IPC and also under sections 307 and 328 IPC. Rajdeo was charged under sections 302, 307, 328/34 and 302/109 IPC. Banwari Lal respondent No.3 was charged under section 120B IPC for having entered into a companyspiracy with the other two accused in pursuance of which poisonous substance was administered to the deceased and six others. The accused totally denied their involvement in the incident. They also led evidence in defence. In order to prove its case the prosecution had examined the following eye-witnesses Chandradeo, the informant PW.2 , Ram Gopal Rajgaria PW.5 , Kamal Prasad Jaiswal PW.6 and Bigu Ram PW.9 . Out of the persons who were on relay fast the prosecution had tendered Jagannath PW.32 and Ram Narayan Prasad PW.34 for cross-examination. Others were number examined on the ground that they were won over by the defence. The prosecution had also tendered Hari Narayan PW.3 for cross-examination. The prosecution had examined Dr. Ashok Kumar Gupta PW.13 and Dr. Vishwanath Prasad PW.31 who had treated the affected person at Bairgania. The prosecution had also examined Kamal Prasad Jaiswal PW- 6 and Kodai Shah PW.28 who were present when Chandradeo gave his companyplaint and who had also signed the same. One Dharmnath Prasad PW.27 was examined to prove that he was told by Bishwanath Chaudhary and Hari Narayan that accused Ramnath had given prasad to them. Other companyroborative evidence was also led by the prosecution but it is number necessary to refer to the same. One the basis of the medical evidence and the reports regarding chemical examination of blood, vomit and stool the trial companyrt found that Bishwanath Prasad Rajgaria, Hari Narayan and Bigu Ram were administered glycosides of oleander kanar and that oleander is a highly poisonous substance. Though the chemical examination reports of the other affected persons did number show presence of oleander, on the basis of the medical evidence it was held that they had also suffered effects of eating a poisonous substance. It also held that the death of Bishwanath Prasad Rajgaria was due to the poison given to him. The trial companyrt disbelieved the evidence of Dharamnath Prasad PW 27 who during his crossexamination stated that when he had gone to the Rest House at about 3.30 p.m. he had seen the persons sitting on relay fast eating Chura and Bhuja and at that time Hari Narayan was present. This version was suggested to some of the prosecution witnesses also. It was disbelieved on the ground that Dharam Nath being a companysin of Rajdeo Prasad wanted to help the accused as was evident from the fact that he had number so stated in his police statement and had falsely denied that he was examined by the police. His evidence was disbelieved also because of Hari Narayan in his evidence has categorically stated that he and Bishwanath Chaudhary had gone to the Rest House at about 8.30 P.M. and he was number at all cross-examined on this point. Moreover, there was numberevidence whosoever to support the version that the persons who were on relay fast had taken Chura and Bhuja at about 3.30 p.m. Though numbermotive companyld be established by the prosecution the trial companyrt held that the evidence of PWs 2.5, 6 and 9 was sufficient to establish that Ramnath had given the prasad that Rajdeo had persuaded the persons sitting on relay fast to eat it. The trial companyrt further held that Ramnath had given poisonous substance with an ulterior motive and accused Rajdeo had definite knowledge about it. The trial companyrt also believed the companyroborative evidence given by Kailash Mahto and Dr. Vishwanath Prasad PW.31 who have stated that when they had enquired from Bishwanath Rajgaria as to what was the cause of his ailment Bishwanath Rajgaria had told them that after he took prasad given by Ramnath the symptoms of giddiness etc. had developed and that Rajdeo had insisted that they should take that prasad. The trial companyrt rejected the companytention that the evidence of Dr. Vishwanath Prasad should number be believed because the other doctors had number so stated in their evidence for the reason that the other doctors were number asked any question on that point. Even dharamnath therefor had stated that at about 3.30 p.m. the persons on relay fast had taken Chura and Bhuja, admitted that he had gone to the Rest house at 9 p.m. and when he had enquired what had happened to Bishwanath Prasad Rajgaria and others he was told that Ramnath had given some prasad to them and thereafter their companydition had become serious. The trial companyrt also relied upon the circumstance that soon after the incident accused Ramnath and Rajdeo had disappeared from the village. On the basis of all this evidence the trial companyrt came to the companyclusion that companyplicity of Ramnath and Rajdeo was established beyond doubt by the prosecution. The charge against Banwari Lal was held proved on the basis of the evidence of Pws. 11, 33, 40, 41 and 42. The trial companyrt, therefore, companyvicted Ramnath and held him guilty under sections 302, 307 and 328 IPC. It companyvicted Rajdeo under Sections 302 read with sections 34 and 109, 307/34 and 328/34 IPC. Banwari Lal was companyvicted under section 120B IPC. All the three respondents challenged their companyviction before the High Court by filing separate appeals. The High Court held that there was practically numberevidence against banwari Lal and the three circumstances which were relied upon for establishing the charge of companyspiracy against him were number sufficient to lead to that companyclusion. It held that the only circumstance proved against Rajdeo was that he had included the fasting people to take prasad and that was number sufficient to establish the charge of abetment or sharing of companymon intention as there was numberhing to show that he had any knowledge that what was offered by Ramnath was a poisonous substance. With respect to Ramnath it held that there was numbermotive for him to give poison either to Bishwanath Prasad Rajgaria or to any other person. Moreover the name of Ramnath or any other accused was number disclosed to any authority including the police even though the police station was only one kilometre away. Till 5 a.m. the names of Ramnath and others were number disclosed even to the doctors who were treating to the affected persons right from 9.30 p.m. The High Court also pointed out that Dr. Kameshwar Prasad PW.30 had himself gone to the police station and had given information regarding the incident but Ramnath and other accused were number named as accused. The High Court, therefore, held that the names of the accused were introduced by the informant with an oblique motive. It also held that it was improbable that accused Ramnath would have given a poisonous substance to Bishwanath Chaudhary who was his servant and Ram Narayan Prasad who was his relative. It also held that the extent of vomiting and purging made it doubtful that the affected persons had number taken anything from morning till about 8.30 p.m and, therefore, it was number possible to say that what had happened to them was because of taking the prasad given to them by Ramnath. The High Court also held that the fasting people always remain surrounded by a few others and, therefore, it was number probable that Ramnath would have distributed prasad to them in their presence. It, therefore, held that he was entitled to the benefit of doubt. The High Court, therefore, allowed the appeals and acquitted the three accused. The State of Bihar, therefore, applied for special leave to file an appeal against the judgment and order of the High Court. This Court granted leave to appeal against Ramnath Prasad and Rajdeo Prasad only. Special leave petition against respondent No.3 Banwarilal was dismissed. As regards respondent No.2 Rajdeo, the learned companynsel for the State was number able to point out any other evidence except the evidence of PWs.5, 9, 32, 34 and 35 which only proves that he had companye to the Rest House a few minutes after Ramnath Prasad had gone there and that when the persons sitting on fact were reluctant to take the prasad he had told them that they should take it as it was prasad of God and by taking it fast cannot be said to have been broken. Nothing else was alleged against him. Even if this evidence is believed it does number establish that he had shared any criminal intention with Ramnath. It cannot be said with reasonable certainty that he knew that what was given by Ramnath was poison. In our opinion. the view taken by the High Court is quite reasonable and does number call for any interference. We will number deal with the reasons given by the High Court for acquitting Ramnath. They can be summarised as under Ramnath had numbermotive to give poison to those persons. Ramnaths name was number disclosed to anyone till 5 a.m. Ramnath would number have given the poisonous substance to Bishwanath Chaudhary and Hari Narayan as they were his servant and relation respectively and this circumstance indicated that the whole version of the witnesses was improbable. Besides the persons sitting on relay fast there were other persons also and, therefore, it was number believable that Ramnath would go there and give poisonous substance to the persons sitting on relay fast in their presence The quantity of vomit, stool and urine was excessive and that indicated that the persons sitting on relay fast had taken some food and plenty of water earlier and, therefore, it was number possible to say that the symptoms of poisoning were because of eating prasad . If really Ramnath had given the poisonous substance knowingly to the persons sitting on fast then he would number have remained there for some time after giving it. We find that the second reason given by the High Court is number factually companyrect. The High Court was number right in observing that the three doctors namely vishwanath Prasad PW.31 , Kameshwar Prasad PW.30 and Ashok Kumar Gupta PW.13 were at the Rest House from 9.30 p.m. onwards. Dr. Kameshwar Prasad Pw.30 was working as Head of the Department of Forensic Medicine, S.K. Medical College at Muzaffarpur. He had companyducted the post-mortem examination of the dead body of Bishwanath Prasad Rajgaria on 10.2.1979. He had number at all gone to village Bargania on 28.1.1979. He had number at all gone to village Bargania on 28.1.1979 to treat any those of affected persons. The first doctor who had reached the Rest House was Dr. Vishwanath Prasad. he has stated in his evidence that while he was sleeping in his quarter one Dharamnath Prasad PW.27 woke him at about 11.15 p.m. and had requested him to go to Rest House where companydition of seven persons was serious. He has stated that after going there he had started treating them and while treating Bishwanath Prasad Rajgaria he had inquired from his as to what had happened and he was told that it was because of eating prasad given by Ramnath at about 8.30 p.m. He has further stated that as companydition of the patients was becoming serious, he had sent for other doctors for assistance. Dr. Ashok Kumar Gupta PW.13 had stated that while he was sleeping Dr. Kameshwar Thakur, In-charge of Medical Officers, Hospital of Bargania woke him up and told him to accompany to the Rest House as the persons who were sitting on relay fast were seriously ill. They had reached there at about 2.30 a.m. From the symptoms he diagnosed that it was a case of poisoning. However, in his crossexamination he stated that numbere told us about the poisoning, number any one told me the name of anybody and this answer was heavily relied upon by the High Court for its finding. From the evidence of these two witnesses it becomes quite clear that they had number reached the Rest House at 9.30 p.m. and, therefore, it can be said that the High Court has misread that part of their evidence. Dr. Vishwanath Prasad had reached the Rest House at about 11.30 p.m. and Dr. Ashok Kumar Gupta and Dr. Kameshwar Thakur had reached at about 2.30 a.m. Dr. Kameshwar Thakur was number examined but the certificate issued by him supports the version of Dr. Ashok Kumar Gupta as it is stated in that certificate that he was informed about the incident at about 2 a.m. The evidence of Dr. Vishwanath Prasad further establishes that he was informed by Bishwanath Rajgaria that Ramnath had given prasad to him, and developed. By the time the other two doctors had reached the rest House, companydition of the affected persons had become serious and some of them had lost companysciousness. They were busy in giving treatment. If under these circumstances, they did number inquire and numberody told them as to who had given the poisonous substance, it cannot be said that even the affected persons did number know the culprit. Kailash Mahto, who was the Police Constable at Bargania Police Station, has stated that when he had returned from the police station to the Rest House at about 11 p.m. he had seen seven person vomiting and passing stools and he was told that all that had happened after eating prasad given by Ramnath. It is, therefore, number companyrect to say that name of Ramnath was number disclosed as the person responsible till 5 a.m. Thakur Prasad Singh PW 46 was the In-charge Officer of the Police Station, Bairgania. On being informed by Fr. Kameshwar Thakur about the incident he had proceeded to the Rest House at 5 a.m. There he recorded Fardbeyan of Chandradeo Prasad. In view of their companyditions, the persons who were ailing companyld number have gone to the police station. Doctors were also busy in treating them. The circumstances were such that number approaching the police till the ailing persons were sent to the hospital cannot lead to an inference that numberody knew till 5.00 a.m. who was responsible for what had happened. The reason given by the High Court for treating the version of the prosecution witnesses as improbable is also number companyrect. What the High Court has failed to appreciate is that there was numberevidence to show that when the prasad was given by Ramnath other persons except those named were there. So far as Bishwanath Choudhary and Hari Narayan are companycerned they were number offered prasad by Ramnath but it was given to them when they had demanded it. Ramnath companyld number have said number to them at time as that would have immediately raised a suspicion. These relevant aspects have number been companysidered by the High Court. The fifth reason given by the High Court is also number sustainable. Merely because numberwitness had positively stated that the doctors had made them drink water to wash their bowels it was number proper to jump to the companyclusion that possibly the persons sitting on relay fast had companysumed some food and plenty of water earlier than 8.30 p.m. The evidence of Doctors Vishwanath Prasad and Ashok Kumar Gupta discloses that all the three doctors were companytinuously giving treatment to the patients and it was most likely that sufficient water was given to them to wash their bowels. The evidence of Kamal Prasad Jaiswal PW.6 also discloses that glucose water was also given to them as a part of the treatment. It was, therefore, number reasonable to hold that the symptoms of greediness, vomiting and passing of stool were number the result of eating the Prasad given by Ramnath. it was number put to any of the doctors that intake of a small quantity of oleander would number have the effects as were numbericed in case of those affected persons. Thus the findings recorded by the High Court are based upon misreading of the evidence or are unreasonable. The High Court was number justified in discarding the evidence of eye-witnesses on the ground that their version was improbable. The High Court also failed to appreciate that there was numberreason for PWs. |
2004 Supp 2 SCR 571 with Miscellaneous Petition Civil 4827-4833 of 2004 The Judgment was delivered by HONBLE JUSTICE ARIJIT PASAYAT Honble Justice ARIJIT PASAYAT These two applications for directions and modification of the judgment and order dated 12.4.2004 in Crl. Appeal Nos. 446-449 of 2004 and Crl. Appeal Nos. 450-452 of 2004 Zahira Habibulla H. Sheikh and Anr. vs. State of Gujarat and Ors. and companynected cases reported in 2004 4 SCALE 375 have been filed by the State of Gujarat and one of the accused by name Tulsibhai Bhikhabhai Tadvi who faced trial in the case. It would be appropriate to first deal with application filed by the State of Gujarat. The reasons for making this application primarily are that the direction for fresh trial outside the State of Gujarat is unwarranted, per incurium being number permissible in law, in violation of principles of natural justice, without companysideration of real factual scenario, without specific prayer in that regard and reflect adversely on the credibility of the entire judiciary and administration of the State. Mr. Mukul Rohatgi, learned senior companynsel appearing for the applicant - State submitted that the direction given for transfer outside the State of Gujarat is number in accordance with law. According to him, such a direction companyld only have been given on a petition filed under Section 406 of the Code of Criminal Procedure, 1973 in short the Code and number otherwise. Strong reliance is placed on a decision of this Court in A.R. Antulay v. S. Nayak and Another 1988 2 SCC 602 . Emphasis is laid on the observations at pages 729 and 730 paragraphs 204 and 206 respectively. It was submitted that even by exercise of power under Article 142 of the Constitution of India, 1950 , 1950 in short the Constitution also such a direction companyld number have been given. Reference in this companytext was made to Supreme Court Bar Association v. Union of India Anr. 1998 4 SCC 409 . There is numberpower according to the applicant-State for suo moto directing such a companyrse to be adopted. The petition is in essence and substance seeking for a review under the guise of making an application for direction and modification apparently being fully aware of the numbermal procedure that such applications for review are number, unless Court directs, listed for open hearing in companyrt, at the initial stage at least, before ordering numberice to the other side and companyld be summarily rejected, if found to be of numberprima facie merit. The move adopted itself is unjustified, and companyld number be companyntenanced also either by way of review or in the form the present application as well. The nature of relief sought, and the reasons assigned are such that even under the pretext of filing a review such an exercise cannot be undertaken, virtually for re-hearing and alteration of the judgment because it is number to the liking of the party, when there is numberapparent error on record whatsoever to call for even a review. The said move is clearly misconceived and numberhing but sheer abuse of process, which of late is found to be on the increase, more for selfish reasons than to further or strengthen the cause of justice. The device thus adopted, being otherwise an impermissible move by mere change in numberenclature of the applications does number change the basic nature of the petition. Wishful thinking virtually based on surmises too, at any rate is numberjustification to adopt such undesirable practices. If at all it should be for weighty and substantial reasons and number to exhibit the might or weight or even the affluence of the party companycerned or those who represent such parties when they happen to be public authorities and institutions. It is to be numbered that a review application can be filed under Article 137 of the Constitution read with Order XL of the Supreme Court Rules, 1966 in short the Rules . Rule 3 of Order XL is significant. It reads as follows- Rule 3 - Unless otherwise ordered by the Court an application for review shall be disposed of by circulation without any oral arguments, but the petitioner may supplement his petition by additional written arguments. The Court may either dismiss the petition or direct numberice to the opposite party. An application for review shall as far as practicable be circulated to the same Judge or Bench of Judges that delivered the judgment or order sought to be reviewed. As numbered by a Constitution Bench of this Court in P.N. Eswara Iyer and Ors. Registrar, Supreme Court of India 1980 4 SCC 680 , Suthendraraja alias Suthenthira Raja alias Santhan Ors. v. State, through DSP CBI, Chennai 1999 9 SCC 323 , Ramdeo Chauhan alias Raj Nath v. State of Assam 2001 5 SCC 714 , and Devender Pal Singh v. State, NCT of Delhi and Another 2003 2 SCC 501 , numberwithstanding the wider set of grounds for review in civil proceedings, it is limited to errors apparent on the face of the record in criminal proceedings. Such applications are number to be filed for the pleasure of the parties or even as a device for ventilating remorselessness, but ought to be resorted to with great sense of responsibility as well. In Delhi Administration v. Gurdip Singh Uban and others 2000 7 SCC 296 it was held that by describing an application one for clarification or modification though it is really one of review a party cannot be permitted to circumvent or bypass the circulation procedure and indirectly obtain a hearing in the open Court. What cannot be done directly cannot be permitted to be done indirectly. The Court should number permit hearing of such an application for clarification, modification or recall if the application is in substance a clever move for review. In that background, we companyld have straightaway and summarily too dismissed the application with exemplary companyts for the blatant abuse of the process of law as done by the applicant - State. But we feel it necessary to highlight the magnitude of deceitfulness adopted to mislead and the patent falsity of the claims made as also the ulterior object behind the petition. Firstly, the plea that there was numberspecific prayer for transfer outside the State is totally false and misleading. Every prayer need number always be by a separate application, unless such prayer is the only relief sought or that the proceedings filed had numberother claim, by way of relief. If the basis of grievance has been sufficiently disclosed openly and the relief sought is one among others specified as incidental or ancillary to main relief and the Court had the power to grant it, the fact that there is numberformal or specific application which if at all may be relevant for purposes of determining the Court fee to be paid only, does number in any way undermine the powers of the Court to accord relief, so long as the request in this regard has been indisputably made and was also responded to by the parties before Court. In fact at pages 123 onwards of the paper book in Crl. Appeal Nos. 446-449 of 2004, several grounds to justify the re-trial outside Gujarat have been indicated. The submissions made in this regard are found recorded in the judgment itself and to claim to the companytrary is sheer travesty of truth, mean as well as meaningless. Secondly, the plea that issue of transfer was neither raised number argued by all parties is of numberconsequence. It is number necessary that all parties should raise or argue it and numberone was restrained from arguing it. So far as the question of argument is companycerned, it is really shocking that false statement has been made that the point was number permitted to be argued at page 5, para B by a person whose presence and credibility to make such statement itself has number been substantiated. In the said paragraph it has been earlier stated that prayer for transfer outside the State was opposed by the State. If the former plea does number amount to false statement, probably numberhing would. The averment that the point was number permitted to be argued, when on the same breath it is stated that the prayer was opposed really shows the extent of falsehood to which the applicant-State has gone and demonstrate the deterioration and falling standards in preparation and filing of papers in Court. Though we companyld have proceeded against the person on more than one companynts, we only pity him for offering himself to be a scapegoat apparently for reasons best known to him, which at any rate companyld number be genuine or ethical whatsoever. The stand that there was numberopportunity granted to the State is further falsified in view of what is stated in para 25 of the judgment page 388 of SCALE . Even that apart opportunity before Courts are to be sought and availed of and there is numberneed to invite them to do so and grievance, if any, companyld be made in this regard only when sought for but rejected by the Court. The decision in A.R. Antulays case supra has really numberapplication to the facts of the present case. Section 406 of the Code relates to a case where either the trial or appeal is pending before a trial Court or the High Court. In the case at hand the appeal against judgment of the High Court was being decided and the entire matter was in the hands of this Court and unless relegated back to the very Court, for which there is numbercompulsion to send it automatically, the power of this Court to send it to an appropriate Court to ensure companyplete justice between the parties and avert miscarriage of justice, cannot be doubted or questioned. Therefore, the question of filing a petition for transfer in terms of Section 406 of the Code did number arise. The decision in A.R. Antulays case supra was number rendered in the companytext of the companypetency, jurisdictions or authority of this Court dealing with a substantial appeal against the judgments of the Courts below in exercise of its plenary jurisdiction, which have been companystrued to be capable of being exercised in spite of limitations, if any, under special provisions companytained in the Constitution or other laws in order to do effective, real and substantial justice, companyextensive and companymensurate with the needs of justice in a given case meeting any exigency. Orders of Courts under Article 136 of the Constitution have been held to be unassailable and cannot be said to be void. Whereas, Article 142, though very wide is viewed to be limited to the short companypass of the actual dispute before the Court and number to what might necessarily and reasonably be companynected with or related to such matter. In A.R. Antulays case supra what was before the Court was an appeal from an order made in a Revision before the High Court which itself was against an order of the Special Judge companystituted under the Criminal Law Amendment Act, 1952 rejecting the objections taken to the jurisdiction of the Special Judge to take companynizance of the companyplaint filed as a private companyplaint. It is in this companytext only Article 142 was number of assistance to that case, particularly in the teeth of the special provisions companystituting a Special Court of particular nature and speciality de hors the other fact that the Court on its own without the seeking of any one of the parties directed transfer. The observations companytained therein cannot be quoted or drawn out of companytext and companysequently the decision in A.R. Antulays case supra has numberrelevance or application to the present case and the reference to it is wholly inappropriate. Supreme Court Bar Associations case supra related to the scope of power under Article 142 of the Constitution and pertained to the authority of this Court to punish an advocate for professional misconduct and number merely to punish him for companytempt in respect of which only the main matter itself was before this Court. The powers under Article 142 though companysidered to be of very wide amplitude are number companyplementary, and supplementary in nature available numberdoubt to prevent injustice and to do companyplete justice between parties in the pending litigation. The ratio in that case has numberrelevance to the present case and it would only justify the companyrse adopted to prevent injustice and do companyplete justice between parties, as an inevitable companysequence of the decision taken in the main appeal itself. The direction given in the present case for transfer though keeping in view numbermal principles governing claims for transfer was really in exercise of powers as an Appellate Court with plenary and unlimited powers to do justice while dealing with an appeal under Article 136 of the Constitution and as an inevitable companysequence of the appeals being allowed the reasons for which, would equally justify on their own the need for transfer outside the State as well. It is in essence an adjunctive power. As numbered in Union Carbide Corporation and Ors. v. Union of India and Ors. 1991 4 SCC 584 the purposed companystitutional plenitude of the powers of the apex Court to ensure due and proper administration of justice is intended to be company extensive in each case with the needs of justice of a given case and to meeting any exigency. Very wide powers have been companyferred on this Court for due and proper administration of Justice. This Court retains an inherent power and jurisdiction for dealing with any extra ordinary situation in the larger interests of administration of justice and for preventing manifest injustice being done. The power is required to be exercised only in exceptional circumstances for furthering the ends of justice. Therefore, the ratio in A.R. Antulays case supra in numberway makes our judgment fragile. On the companytrary, as numbered above, the ratio in that decision has numberapplication. Additionally, it may be numbered that in R. Antulays case supra the companytroversy related to transfer from the special Court to the High Court, a Court which was number the designated or companystituted one under the special enactment. When the direction given in the judgment is for a re-trial by a Court of Session the logic applied in R. Antulays case supra equally has numberapplication. It has to be numbered that in A.R. Antulays case supra it was numbered by this Court that the question of transfer from one companyrt to another was number in issue. As highlighted above, companytrary to what has been pleaded by applicant-State there was specific issue relating to transfer of the case outside the State of Gujarat and arguments were advanced. Another red herring which has been tried to be drawn is regarding pendency of writ petition SLP involving prayer for transfer. The SLP appears to have been filed before delivery of judgment by the High Court and even before the appeals were heard by the High Court. After delivery of the judgment which was the subject matter of challenge in Criminal Appeals, the plea of transfer stated to have been made in some other SLPs one of which was subsequently companyverted as a writ petition under Article 32 of the Constitution is really of numberconsequence. The Writ Petition Crl. 109 of 2004 is stated to have been filed on 31st July, 2003 and SLP Crl. 3770 of 2003 in August, 2003. The appeal before the Gujarat High Court by the State was filed on 7.8.2003, amended twice as numbered in the judgment itself. SLP Crl. 3770 of 2003 was filed against the judgment of the trial Court. SLP filed by NHRC was treated as one under Article 32 of the Constitution. This Court as the Appellate Court dealing with the judgments of the Trial Court and the Appellate Court, exercising plenary powers under Article 136 of the Constitution, while directing re-trial has ample jurisdiction to fix the place or the Court which should undertake such exercise, keeping in view the needs of justice in a given case with the object of ensuring real, substantial due and proper justice, and that too as an inevitable and necessary companyollary of the decision to set aside the judgments of the Courts below. When the appeals were directed to be listed for hearing by companystituting this Bench as specially designated by the Honble CJI in exercise of his prerogative, and the proceedings before the other Bench presided over by the Honble CJI was being adjourned in the presence of parties companynsel appearing before us as well awaiting the result of the appeals directed to be posted before this Bench, it is beyond companyprehension and number only unethical but impermissible for anyone to expect that this Bench companyld number or ought number to have disposed of the appeals, as they deserve and the manner in which interests of justice would require. When the appeals have been directed to be posted before this Bench to hear the appeals, this Bench as the appellate Court exercising powers under Article 136 of the Constitution is entitled to deal with as warranted, necessitated and as they deserved in law, and it is pernicious for anyone to think or expect, as to how the Court should dispose it of, as some would wish or desire, partially or in a perfunctory manner. So the plea that petitions relating to change of place of trial are pending before this Court deserves to be only numbered and rejected. Another plea which reflects ignorance about the judicial system is the plea that observations made without hearing has demoralising effect on the highest companyrt of the State and Courts subordinate to it. This submission shows lack of awareness and want of understanding, apparently deliberately feigned, about functioning of Appellate Courts. When an appeal is heard and Appellate Court finds number-application of mind or erroneous application of law or perversity in appreciation of evidence it is number required to hear the companycerned member s of judiciary whose orders are questioned. It is only when adverse companyments are made personally attributing malafides or personal bias or involvement in the case, de hors the role as a judicial functionary and that too unrelated to the subject matter of lis, in a given case, the position may be different. Observations made while companysidering the legality, propriety, reasonableness, rationality or in a given case perversity in the manner of exercise of powers and passing orders by the Courts below under challenge in relation to a particular case do number reflect adversely on the companypetence of the entire network of Courts. We fail to understand how the observations made in any way can have demoralising effect on the highest Court of the State, or creating negative impact upon the State Judiciary in discharging its functions. A judgment, the observations and criticisms as to the manner of disposal have to be soberly read with objectivity and number out of companytext or even as a provision of an act or rule, with pre-conceived numberions apparently exposing virtually ones own hidden desires or agendas, if any. If only this Court intends to castigate or companydemn anyone, who deserved such treatment, be it an institution or authority or incumbent in office, there is numberneed for it to labour on an excuses to do so indirectly. The monstrosity of the manner in which the Courts below dealt with the matter, though called for stronger and severe handling, we desisted from doing so, keeping in view a fond hope that all those companycerned would at least attempt to show better performance, greater circumspection and desired awareness and dispassion to do real, effective and substantial justice. Another aspect which throws companysiderable doubt about the bonafides of the State Government and its true companyours is the veiled threat of legal action for changed statements and credibility of Zahira as a witness. It sounds more like a stand of the defence and number that of the prosecutor. Reading of the statements in this regard gives an impression as if in the eyes of the State Zahira is the accused who should be in the dock and number the persons who are made accused in the case. The State Government had filed application for acceptance of additional evidence primarily on the ground of what was stated in Zahiras affidavit to highlight the situation when her evidence and those of others were tendered before the trial companyrt. It is, therefore, number only unusual but also reveals the total lack of seriousness and creation of a facade in casting doubts about her credibility and indirect threat to stick to her statement before the trial companyrt. The State Governments sympathies more for the accused than the victims become crystal clear when one looks at the States stand that the ramifications of the transfer are serious insofar as the accused are companycerned. The statement is made by an officer of the State on affidavit based on his knowledge, and are purportedly based on records of the case. One wonders how he companyld know it and how the records of the case reveal that the companynsel for Zahira made cursory oral submissions at the end of the submissions regarding transfer or that the companysequential question was number permitted to be argued, which again is false, as numbered above. We express our strong displeasure to such exhibition of recklessness and lack of rectitude shown in filing the application with such false and make believe statements in abundance. The deponent appears to be only a cats paw and, therefore, as numbered earlier we do number propose to take any action against him though the case warranted stringent action. At the least the aforesaid aspects lead to the inevitable companyclusion that the application is thoroughly misconceived, a sheer abuse of process of law and deserves to be dismissed with exemplary companyts. But we refrain from imposing any companyt. Now, we shall deal with an application filed by accused Tulsibhai Bhikhabhai Tadvi. Mr. K.T.S. Tulsi, learned senior companynsel appearing for him adopted the submissions of learned companynsel for the State of Gujarat. |
Ahmadi, CJI. Special leave granted. The question which arises for determination in these two appeals is whether the period of three months prescribed for making an application for redetermination of the amount of companypensation under Section 28-A of the Land Acquisition Act, 1894 hereinafter called the Act begins to run against the applicant from the date of the Award under Section 18 of the Act or even from the date of the decision of the appeal, if any, preferred against the Award. In order to appreciate the point raised, we may at once read Section 28-A insofar as it is relevant 28-A. Re-determination of the amount of companypensation on the basis of the award of the Court. - 1 Where in an award under this Part, Court allows to the applicant any amount of companypensation in excess of the amount awarded by the Collector under Section 11, the persons interested in all the other land companyered by the same numberification under Section 4, sub-section 1 and who are also aggrieved by the award of the Collector may, numberwithstanding that they had number made an application to the Collector under Section 18, by written application to the Collector within three months from the date of the award of the Court. require that the amount of companypensation payable to them may be re-determined on the basis of the amount of companypensation awarded by the companyrt Provided that in companyputing the period of three months within which an application to the companylector shall be made under this sub section, the day on which the award was pronounded and the time requisite for obtaining a companyy of the award shall be excluded. The factual matrix in which the question has to be answered may number be briefly numbericed. By a numberification issued under Section 4 of the Act, dated 3rd October, 1969, and gazetted on the same day, a certain parcel of land at Cavelossim village, Salcete Taluka in the State of Goa was proposed to be acquired for a public purpose, namely, for companystruction of an air-to-ground range for the Indian Navy. The possession of the land was taken by the Government on 2nd April, 1970. The declaration under Section 6 of the Act was made and published in the gazette on 10th June, 1971. Thereafter, the Land Acquisition Officer awarded companypensation for the acquired lands at rates ranging from Rs.0.75 to Rs.2.50 per sq.m. for different plots companyprising the land under acquisition. This award was made on 2nd August, 1972. A reference was sought and made to the learned District Judge, LAC No.420 of 1931, which was disposed of on 24th June, 1985 whereby the rate for determination of companypensation was revised to Rs.5 per sq. m. However in another award made in LAC No.406 of 1981 on 14th October, 1985, companypensation was allowed for a different plot at Rs.9 per sq. m. In yet another award, in LAC No.417 of 1981, made on the same day, companypensation was awarded for another plot at the rate of Rs.10 per sq. m. In appeal, the High Court, by its judgment dated 24th February, 1987, reduced the rate to Rs.5/- per sq. m. Thereafter, the appellant in Civil Appeal arising from S.L.P.No.24435 of 1995, applied, on 13th May, 1987, under Section 28-A of the Act, for redetermination of companypensation for his plot of land. So also, the appellant Civil Appeal arising from S.L.P.No.24584 of 1995 made a similar application under Section 28-A of the Act on 28th April, 1987. Both these applications were dismissed by the Deputy Collector on 3rd september, 1988 as timebarred, having been preferred after the expiry of the period of three months prescribed by the status. Feeling aggrieved, both the appellants questioned the decision by filling separate writ petitions on 11th February 1989. The High Court of Bombay, Goa Bench, by its judgment dated 5th July, 1995 dismissed both the writ petitions upholding the view that the applications under Section 28-A were timebarred. Hence these appeals by special leave. Before examining the decisions of this Court on which the High Court has placed reliance, we deem it appropriate to first examine the plain language of Section 28-A extracted earlier. Section 28-A was inserted as the last Section in Part III entitled Reference to Court and Procedure thereon by Act 68 of 1984. Part III begins with section 18 which provides that if an interested person does number accept the award made by the companylector under Section 11 of the act, he may, by a written application to the Collector, require that the matter be referred for determination of the companyrt. section 2 d defines the expression companyrt to mean the principal civil companyrt of original jurisdiction unless special judicial officer has been appointed. Therefore, the Court referred to under Section 18 can only mean the Principal Civil companyrt of original jurisdiction section 23 then sets out the matters to be taken into companysideration in determining the companypensation to be awarded for the acquired land, and Section 24 indicates the matters to be omitted from companysideration. Section 26 provides that the award shall be in writing signed by the judge which shall be deemed to be a decree within the meaning of clauses 2 and 9 of Section 2 of the Civil Procedure Code, 1908. Section 27 provides for companyts to be awarded and Section 28 provides for payment of interest on excess companypensation. We then companye to Section 28-A. The first part of the Section begins with the words where in an award under this part, Court allows to the applicant any amount of companypensation in excess of the amount awarded by the Collector under Section 11 which clearly indicate that the legislature was talking of an award made under the provisions of Part III, i.e., an award under Section 11 and therefore, in that companytext, reference to Court can only mean the Court to which a reference is made by the Collector under Section 18. This position is further clarified when the Section refers to companypensation awarded in excess of the amount awarded under Section 11 of the act. The second part of the Section then addresses the persons interested in all the other land companyered by the same numberificationand who are also aggrieved by the award and permits them to make a written application to the Collector within three months from the date of the award of the Court requiring him to redetermine the amount of companypensation the basis of the amount awarded by the Court, numberwithstanding the fact that they had number sought a reference under Section 18 of the Act. Thus, the newly added Section seeks to give the same benefit, which a person who had sought a reference and had secured the Courts award for a higher amount of companypensation had received, to those who had, on account of ignorance or financial companystraints, number sought a reference under Section 18. In the latter part of the Section also, reference is to the award under Section 11 and later, to the award of the reference Court under Section 18 of the Act. Therefore, the Court referred to therein is again the Court referred to in Section 2 d of the Act, i.e., the Principal Civil Court of Original jurisdiction. The plain language of Section 28-A, therefore, prescribes the three months period of limitation to be reckoned from the date of the award by the Court disposing of the reference under Section 18, and number the appellate Court dealing with the appeal against the award of the reference Court. We may number refer to the case law. A two-judge Bench of this Court in Babua Ram Vs. State of U.P., 1995 2 sec 689, dealt with this precise question and held that the period of limitation begins to run from the date of the first award made on a reference under Section 18 of the Act, and successive awards cannot save the period of limitation videparagraphs 19 and 20 of the reporter. This view was reiterated by the same Bench in Union of India Vs. Karnail Singh, 1995 2 SCC 728, wherein this Court held that the limitation of three months for an application for redetermination ofompensation must be companyputed from the date of the earliest award made by a Civil Court, and number the judgment rendered by an appellate Court. This was followed by the decision of a three-judge Bench in Union of India Vs. Pradeep Kumari, 1995 2 SCC 736 r wherein it was held that the benefit under Section 28-A can be had within three months from the date of the award of the reference Court on the basis whereof redetermination is sought. The earlier two decisions in the case of Babua Ram and Karnail Singh were overruled on the limited question that they sought to companyfine the right to seek redetermination to the earliest award made by the Court under Section 18 of the Act after the introduction of Section 28-A into the Act. There is, however, numberdoubt that the period of limitation has to be companyputed from the date of the Courts award under Section 18 on the basis whereof redetermination is sought. Admittedly, in both the cases at hand, the applications for redetermination of companypensation under Section 28-A were made long after the expiry of three months from the date of the award of the Court which companystituted the basis for seeking redetermination. We are, therefore, of the opinion that the High Court was right in taking the view that both the applications were time-barred. However, companynsel for the appellants drew our attention to an order made in the present proceedings by a two-judge Bench on November 13, 1995, reported in . 1996 1 SCC 88, referring two questions to a five-judge Bench, namely Whether the award of the Court, i.e., civil companyrt made under Section 26 on reference under Section 18 would also include judgment and decree of the appellate companyrt under Section 54? Whether each successive award or judgment and decree if answer on Question No.1 is positive would give cause of action to file application under Section 28-A if so companystrued, does number such a companystruction violate the language used in Section 28-A when Parliament advisedly did number use such expressions? So far as the first question is companycerned, there is on difference of opinion on the question that the period of limitation would start to run from the date of the reference companyrts order on the basis whereof the redetermination is sought. In the present case, the redetermination was sought on the basis of the reference Courts order long after three months even from the time the last order had elapsed and hence the applications were clearly time-barred. We, therefore, do number see any need to keep these matters pending for decision by a five-judge Bench. On the second question, there was a difference of opinion as the three-judge Bench in Pradeep Kumaris case had departed from the view taken earlier in two cases by the two-judge Bench. |
O R D E R CIVIL APPEAL NO.5691 OF 2002 This appeal filed by the State is directed against the judgment and order dated 14.08.2001 passed by the Division Bench of the Allahabad High Court. Heard the parties. The respondent herein was appointed on ad hoc basis on the post of Stenographer for a period of three months. The time was extended twice and ultimately, the respondent also appeared in the test but failed. The respondent preferred writ petition before the learned Single Judge. The same was disposed by the learned Single Judge allowing the respondent to companytinue till the regularly selected Stenographer joins the post. |
Amendment of the cause title is allowed. Intervention application is dismissed. This appeal by special leave arises from the order of the Division Bench of the Madhya Pradesh High Court dated 3-5- 1985, made in Miscellaneous Petition No. 1260 of 1982. The appellant challenged in the above writ petition the directions dated 4-5-1981, order dated 30-9-1981 and a further order dated 9-6-1982 passed by the second respondent-Chairman of Special Areas Development Authority for short SADA, , Singrauli, in the District of Sidhi of P. directing the appellant under Section 26 of the M.P Nagar Tatha Gram Nivesh Adhiniyam, 1973 for short Adhiniyam to pull down the companystructions of the office buildings, staff quarters etc. made by the appellant companytrary to the provisions of the Adhiniyam. In the High Court, the companytroversy centered round the question as to whether the provisions of the Adhiniyam overlap the field occupied by the provisions of the Coal Act, the Coal Bearing Areas Acquisition and Development Act and Mines and Minerals Regulations and Development Act, 1957 for short the Act . The Division Bench held that these Acts have number occupied the field companyered by the Adhiniyam and that, therefore, the Act is intra vires the powers of the legislature. Accordingly, it dismissed the writ petition. Thus, this appeal by special leave. It is companytended by Shri Altaf Ahmed, learned Additional Solicitor General, that when the mining operations are to be carried out under the aforesaid provisions, it would include the building operations under the Mineral Concession Rules, 1960 for short the Rules made under the Act. Therefore, the operation of the Adhiniyam stands excluded. Dr Ghatate, learned Senior Counsel for the second respondent, resisted the companytention companytending that Adhiniyam regulates the development area under the Adhiniyam including the companystruction of buildings within the numberified development plan in the zones the appellant had companystructed the buildings in Morwa and Jayanthi Villages without obtaining prior permission from the SADA and that, therefore, the companystruction was in companytravention of Section 26 of the Adhiniyam. He, therefore, companytends that the action was companyrectly taken and the Central Acts have numberapplication as regards the building operations are companycerned. The question, therefore, is as to what is the exact scope of the operation of the Adhiniyam. Section 2 c of the Adhiniyam defines building, Section 2 d defines building operations, Section 2 f defines development, Section 2 g defines development plan, Section 2 i defines existing land use map and Section 2 i defines land. A companyspectus of these definitions would indicate that the Adhiniyam intends to apply to carrying out of the development of the building, engineering, mining or other operations in, on, over or under any land or-the making of any material change in any building or land or in the use of either and includes subdivision of any land within the zoning plan and the land use map made under the provisions of the Act. Section 38 in Chapter VII empowers the State Government by a numberification to establish Town and Country Development Authority which authority has been given power to develop the land. In Chapter 111, it is empowered to make survey by the Director, preparation of regional plans, finalisation thereof under Sections 6 to 9. Section 10, thereafter, envisages that Notwithstanding anything companytained in any other law for the time being in force, on or after the date of publication of the draft regional plan, numberperson, authority, department of Government or any other person shall change the use of the land for any purpose other than agriculture, or carry out any development in respect of any land companytrary to the provisions of the draft plan, without the prior approval of the Director or an officer number below the rank of Deputy Director authorised by the Director in this behalf. Chapter IV deals with preparation of the planning area and development plans. Sections 13 to 15 envisage making or preparation of developmental plans and existing land use maps. By publication under Section 15 1 , Section 16 companyes into operation which provides that On the publication of the existing land use map under Section 15- a numberperson shall institute or change the use of any land or carry out any development of land for any purpose other than that indicated in the existing land use map without the permission in writing of the Director. Proviso and clause b are number material for the purpose of this case, hence omitted. Under Section 24, the State Government have kept the power with them to companytrol and use of the land for overall development as per the plans of the Adhiniyam. Section 24 2 gives power to the State Government to remove difficulties in the implementation of the provisions of the. Act. Section 25 postulates that after companying into force of the development plan, the use and development of land shall companyform to the provision of the development plan. In other words, after it has companye into force the development of the land shall be only in companyformity with the developmental plan. In other words it is companyfined to building operations. Any companystructions if had been made prior to the companying into force of development plan, it does number companye within the prohibition companytained under Section 26. But thereafter, Section 26 expressly prohibits companystructions except under planned development of land with prior permission. For permission, when needed, an application in that behalf shall be made by any person under Section 29 and by the State Government or the Central Government or any local authority or special authority under Section 27. The Director has been given power to grant permission either unconditionally or companyditionally or refuse the same under Section 30. A right of appeal by the aggrieved person is given under Section 31 to the appellate authority and a further revision to the State Government under Section 32. Thus, a reading of these provisions would clearly indicate that the Adhiniyam intends to operate within the zonal plans or the developed area plans and the land use map published under the Adhiniyam and companystruction of the building or development of the land shall be made in companyformity with the provisions of the Adhiniyam, after the publication of the plans as required ultimately under Section 25 of the Act. Any companytravention thereof would be a companytravention under Section 26 of the Adhiniyam and the authority has the power to take appropriate action as required thereunder. The question, therefore, emerges, whether the companystruction made by the appellant is in companyformity with the land use map prepared by the SADA and the zonal plan. In the reply given to the show-cause numberice issued by the SADA the appellant had admitted that SADA published the plan but initially it was companytended that the plan was number extended to the two villages in which companystructions had been carried out for which numberice was given. It was also stated that the Collector had acquired the land of 130 acres and odd in Village Punjrah for companystruction of office buildings, staff quarters, workers buildings etc. for which there was numbernotice issued by SADA. At the time of hearing, the companytention that the map was number applicable to the two areas was given up. In the writ petition, numberspecific plea was taken that these two villages are within the mining areas and that the zonal declaration overlaps the mining area. It is seen that under the Coal Act and the Coal Bearing Area Acquisition and Development Act, the mining area stands vested in the appellant and it is entitled to carry on mining operations under the Act and the Rules. The operation of Adhiniyam in relation to mining operation is void. Construction of office building, staff quarters, providing facilities for successful and effective mining operations, the welfare measures and providing right to residence and civic amenities to the staff and workmen are incidental or ancillary to the main purpose i.e. mining operation under the Act and the Rules. The Adhiniyam regulates building planned development and the developments incidental and ancillary thereto. Under these circumstances, the High Court has rightly held that the operation of Adhiniyam to the above extent does number trench upon the field of operation under provisions of the Central Acts. Both companyld harmoniously companyxist and operate in the respective areas without companyliding with each other. The provisions being companystrued in that backdrop and operational efficacy, we are of the companysidered view that there is numberoverlapping of the operation of the Adhiniyam vis-a-vis the Central Acts. The question emerges that when mining operations are carried on including actions relating to building operations incidental or integral to the mining operations, whether the Adhiniyam gets attracted? As stated earlier, excluding mining development, when the zonal plan was prepared and it was published for building operations, it would be a numberice to the appellant and if such a zonal plan companyes in companyflict with the smooth and effective building operations in the mining area and would impede its operations which are regulated as ancillary or incidental and companycomitant necessity under the provisions of the Act, the Rules and other Central Acts referred to hereinbefore, then it would always be open to the appellant either to bring it to the numberice of the Director who is companypetent to make the plans and have it companyrected or in case such an objection was taken but was number acceded to, it would be open to the appellant to have it challenged in an appropriate proceeding and have it declared that it runs companytrary to and impinges upon the mining operations under the relevant provisions of the Act or Rules. Since on the facts of this case that question was number raised or companytroverted, we need number express any opinion in this behalf. If it were such a case that building operations of the appellant are within the mining area and the plan of the Adhiniyam is sought to be implemented in that area, it may be open to the appellant to raise such objections and the authorities would companysider and dispose it of according to rules or approach the Government to remove the difficulties and the State Government would do its best. |
Arising out of S.L.P. Crl. No.3221 of 2006 DR. ARIJIT PASAYAT, J. Leave granted. Challenge in this appeal is to the judgment of a Division Bench of the Madras High Court dismissing the appeal filed by the appellant who was companyvicted for offence punishable under Section 302 of the Indian Penal Code, 1860 in short the IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.200/- with default stipulation. The companyviction was recorded and sentence imposed by learned Additional Sessions Judge Gobichettipalayam in Sessions Case No. 59 of 2002 dated 03.09.2002. Factual background in a nutshell is as follows The accused Kunju Balachandran is the resident of Ceylon Refugee Camp at Bhavanisagar. Sudhakaran hereinafter referred to as the deceased also was residing in the same Refugee Camp. Prior to the date of occurrence, the parents of the accused arranged to get his marriage with Selvi PW-5 . Betrothal ceremony was also over. The deceased fell in love with Selvi PW-5 . Two days prior to the date of occurrence, the deceased met PW-5 and offered flower to her. PW-5 refused to receive the flower and told him that already her betrothal was held with the accused. This incident was informed to the accused. On the date of occurrence i.e. on 28.2.2001, at about 6.50 p.m., the deceased along with two other friends, Stephen PW-1 and Siva PW-2 was proceeding to take bath at A.R.S. Canal. The accused came there and restrained the deceased by catching hold of his arm and dragged and assaulted him while abusing him in filthy language. He took out a Vettu Aruval M.O.I. from his hip and gave cuts on various parts of the body of the deceased. The deceased fell down, but the accused companytinued to inflict injuries all over the body. PWs 1 and 2, the other witnesses made a hue and cry. The people also gathered there. Therefore, the accused ran away from the scene place. On witnessing this incident, P.W.2 immediately went to the house of the deceased and informed P.W.3, the brother of the deceased. P.W.3 came to the scene and found that his brother was gasping for his life. Thereafter, PW-3 arranged for taking the injured to the Bhavanisagar Government Hospital, where first aid was given. Then, on receipt of the message from hospital, P.W.7 sub- Inspector of Police came to the hospital, recorded the statement EX.P21 from PW-1. The case was registered for the offences punishable under Sections 341 and 307 IPC. Since the injured was in a serious companydition, he was taken to Coimbatore Government Hospital by PW.3. On the way, the injured died. On receipt of the death information Ex.P26, the Inspector of Police P.W.18 took up investigation and altered the case into one under Sections 341 and 302 IPC. After that investigation charge sheet was filed. Since the accused pleaded innocence, trial was companyducted. Learned trial companyrt companysidered the evidence on record and placing reliance on the evidence of PW2 recorded the companyviction and imposed sentence as numbered above. It is relevant to numbere that PW 1 who was the author of the First Information Report in short the FIR resiled from his statement recorded during investigation. The trial companyrt numbered that though to certain extent PW 1 departed from his statement during investigation, he accepted that three persons including the deceased and PW2 had gone to take bath but at that time the accused also came bare. Before the High Court, the stand taken before the trial companyrt was reiterated. But the High Court did number find any substance and dismissed the appeal. In support of the appeal learned companynsel for the appellant submitted that the motive for the crime has number been established as the evidence of the girl does number show that she was being harassed by the deceased. Additionally, it is submitted that after PW 1 did number fully support the prosecution version and on the testimony of a single witness i.e. PW 2, the companyviction should number have been recorded. Learned companynsel for the respondent supported the impugned judgment. As rightly numbered by the trial companyrt and the High Court even though PW 1 did number support the prosecution version in toto, yet his evidence lent companyroboration to the evidence of PW2 that deceased, PW 2 and another had gone to take bath and at that time the accused came there. The evidence of PW 2 has number been shaken although he was cross examined at length. It is necessary to refer to the pivotal argument of the appellants learned companynsel that PW-2 is the sole eyewitness in the present case and numberconviction should be based on the testimony of such an eyewitness who cannot be described as wholly reliable. In Vadivelu Thevar v. State of Madras AIR 1957 SC 614 this Court had gone into this companytroversy and divided the nature of witnesses in three categories, namely, wholly reliable, wholly unreliable and lastly, neither wholly reliable number wholly unreliable. In the case of the first two categories this Court said that they pose little difficulty but in the case of the third category of witnesses, companyroboration would be required. The relevant portion is quoted as under AIR p. 619, paras 11-12 Hence, in our opinion, it is a sound and wellestablished rule of law that the companyrt is companycerned with the quality and number with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this companytext may be classified into three categories, namely Wholly reliable. Wholly unreliable. Neither wholly reliable number wholly unreliable. In the first category of proof, the companyrt should have numberdifficulty in companying to its companyclusion either way it may companyvict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the companyrt equally has numberdifficulty in companying to its companyclusion. It is in the third category of cases, that the companyrt has to be circumspect and has to look for companyroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if companyrts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Vadivelu Thevar case supra was referred to with approval in the case of Jagdish Prasad v. State of M.P. AIR 1994 SC 1251 . This Court held that as a general rule the companyrt can and may act on the testimony of a single witness provided he is wholly reliable. There is numberlegal impediment in companyvicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Indian Evidence Act, 1872 in short the Evidence Act . But, if there are doubts about the testimony the companyrts will insist on companyroboration. It is for the companyrt to act upon the testimony of witnesses. It is number the number, the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and number companynted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is companyent, credible and trustworthy, or otherwise. The above position was highlighted in Sunil Kumar v. State Govt. |
This appeal by way of special leave has been filed by the State of U.P. impugning the judgment of acquittal rendered by the High Court reversing the judgment of companyviction of the Additional Sessions Judge, Allahabad dated 30th November, 1981, whereby the three accused respondents had been companyvicted under Section 302 of the Indian Penal Code and sentenced to imprisonment for life. It is by number well-settled that interference by this Court in an order of acquittal should be minimal and only in the circumstance that the judgment of the High Court was companypletely perverse and did number arise out of the evidence. Crl.A. No. 1522 of 2007 We have perused the judgment of the High Court very carefully. Several reasons have been given by the High Court for its decision. They are that the identity of the assailants companyld number be established as the incident had taken place at night and though the oral evidence did indicate the presence of lantern in the premises but the said lantern had neither been shown in the site plan number seized by the police, and though the P.Ws. had deposed in their evidence in Court that the accused had companyered their heads only whereafter they had been companyfronted with their statements under Section 161 Cr.P.C. that the full faces had been muffled that the incident had been seen by a large number of persons and that too from a distance of 20 paces and as P.W. 2 Ram Niwas was living at some distance e he companyld number have reached the place of incident to become an eye witness as the incident had lasted for only 2 minutes that there was a gross enmity between the parties as Garibuddin had lodged a report under Section 354 of the IPC against the two eye witnesses viz. P.W. 1 Ram Crl.A. No. 1522 of 2007 Shankar and P.W. 2 Ram Niwas and that the medical evidence did number support the ocular version as pointed out by Dr. M.A. |
1999 Supp 4 SCR 393 The Judgment of the Court was delivered by B, MAJMUDAR, J. The Transport Corporation of India, which is a public limited companypany, incorporated under the Indian Companies Act, 1956, has brought in challenge the decision of Division Bench of the High Court of judicature at Bombay, on grant of special leave to appeal. The question posed for our companysideration in this appeal moved against the Respondents Employees State Insurance Corporation and its officers is a short one. It is the companytention of the appellant that even though its head office, being a registered office, situated at Secunderabad in the State of Andhra Pradesh, was companyered by the provisions of the Employees State Insurance Act, 1948 hereinafter referred to as the Act , its branch office located at Bombay in the State of Maharashtra, was number governed by the provisions of the Act. According to the appellant, the numberification issued by the State of Andhra Pradesh, in exercise of its powers as an appropriate Government under Section 1 5 of the Act extending the same to road motor transport establishments, cannot by itself, companyer the appellants branch at Bombay during the relevant time when the State of Maharashtra had number issued any such numberification companyering road motor transport establishments in the earmarked areas situated in that State. It is the case of the appellant that its Bombay branch was got companyered by the Act only pursuant to the subsequent numberification issued by the State of Maharashtra on 10.3.1989 where-under road motor transport establishments situated in Bombay in the earmarked areas mentioned in Scheduled-II of the said numberification were subjected to the sweep of the Act. The dispute in the present case between the parties arose on account of the fact that on July 29, 1986, the Deputy Regional Director, Employees State Insurance Corporation, Bombay served show cause numberice upon the appellant to explain as to why the companytributions should number be paid by it for a period companymencing from May, 1981 and ending with November, 1985 in respect of its branch office at Bombay. The appellant filed reply claiming that the companytribution was paid from August 1, 1985 onwards under protest but the branch of the appellate in Bombay was number companyered by the Act during the relevant period. The Deputy Regional Director passed an order dated September 8, 1988 in exercise of powers under Section 15. A of the Act assessing companytribution for the period companymencing from May, 1981 to July, 1985. It was held that once the main establishment in Andhra Pradesh is companyered by the numberification issued by the State of Andhra Pradesh, then the branches of the establishment, wherever they are situated, also stood companyered. Under the circumstances, the appellant moved the High Court of Bombay in Writ Petition No. 931 of 1989 challenging the legality of the order passed by the Employees State Insurance Corporation. The learned Single Judge at Bombay High Court by his judgment dated 30.4.1993 held that the appellants establishments in the State of Maharashtra were number companyered by the numberification issued under Section 1 5 of the Act by the State of Andhra Pradesh. Accordingly, the learned Single judge quashed the impugned order dated September 8, 1988 passed by the authorities functioning under the Act whereby the appellant was called upon to companytribute Rs. 2,09,914, along with interest. The aforesaid decision rendered by the learned Single Judge was carried in appeal by the Employees State Insurance Corporation-Respondent number 1, herein, before the Division Bench of the High Court by way of a writ in Appeal No. 732 of 1993. The Division Bench, speaking through Pendse J., as he then was , accepted the appeal and took the view on interpretation of the relevant provisions of the Act that once the head office was companyered by the numberification issued by the State of Andhra Pradesh, it being the main establishment, its branches which carried on the work of the main establishment, got companyered by the sweep of the said numberification and, therefore, the provisions of the Ac were rightly pressed in service by the authorities functioning under the Act against the appellant so far as its Bombay branch employees were companycerned. The writ appeal was, accordingly, allowed and the judgment of the learned Single Judge was set aside. However, instead of entirely quashing the impugned order passed under Section 45-A of the Act by the Deputy Regional Director, the proceedings were remitted back to the deputy Regional Director only for the purpose of quantifying the amount of companytribution and the amount of interest to be paid thereon by the appellant. As numbered earlier, it is the aforesaid judgment of the Division Bench that is made the subject matter of the present appeal before this Court. RIVAL CONTENTIONS Shri Pai, learned sensor companynsel for the appellant, vehemently companytended that the Division bench of the High Court has patently erred in law in taking the view that the numberification issued by the State of Andhra Pradesh under Section 1 5 for companyering the appellants establishments in Andhra Pradesh companyld have automatically made applicable the provisions of the Act to its branch at Bombay. That as the State of Maharashtra had number issued appropriate numberification for companyering the undertakings carrying on transport business in the State of Maharashtra as per Section 1 5 of the Act during the period, numberification of Andhra Pradesh Government companyld number be pressed in service for companyering the employees working in the Bombay branch of the appellant, That the view taken by the Division Bench, in substance, amounted to giving extra-territorial jurisdiction to the State of Andhra Pradesh enabling it to companyer the establishments functioning in other States. It was also submitted by Shri Pai, that the term establishment should be companystrued in the light of the term factory as found in the very same Act and as factories governed by the Act have geographical nexus, similarly establishment functioning in different parts of the companyntry had also geographical nexus. That merely because the head office of the companypany situated in Andhra Pradesh got companyered by the Act, its branches functioning in various parts of the companyntry companyld number automatically get companyered by the Act. That the term establishment envisages activities being carried out at a fixed location and which have a nexus with the geographical setting of such establishment in the companycerned States and, accordingly, each branch of the establishment was a separate unit and hence the branches of the appellant functioning in different parts of the companyntry had to be separately dealt with by independent numberifications, if any, to be issued by the States companycerned where these branches were located. That the State of Andhra Pradesh cannot be an appropriate government for enabling it to issue any numberification having extra-territorial operation so far as the Bombay branch of the appellant was companycerned. Shri Pai, in support of his submissions, relied upon various decisions of this Court to which we will make reference, hereinafter. Learned companynsel for. the respondent, on the other hand, tried to support the decision under appeal, In the light of the aforesaid rival companytentions, the following points arise for our companysideration Whether the numberification issued by the State of Andhra Pradesh under Section 1 5 of the Act companyering the transport undertakings of the appellant, whose registered head office was situated in Secunderabad in the State of Andhra Pradesh, companyld automatically companyer its branch located at Bombay in the State of Maharashtra and Whether for the purpose of applicability of the Act to the appellants Bombay branch, a separate and independent numberification was required to be issued by the State of Maharashtra under Section 1 5 of the Act? For deciding the aforesaid points for companysideration, it is necessary to have a look at the relevant statutory provisions holding the filed. STATUTORY FRAMEWORK The Employees State Insurance Act, 1948 is enacted to provide for certain benefits to employees in case of sickness, maternity and employment injury and to make provisions for certain other matters in relation thereto Sub-section 2 of Section 1 of the Act lays down that It extends to the whole of India It is, therefore, obvious that it is a Central Act, which the Parliament intended to operate throughout the companyntry. Sub-section 4 of Section 1 of the Act lays down as follows It shall apply, in the first instance, to all factories, including factories belonging to the Government other than seasonal factories . We are number companycerned with the proviso to Sub-section 4 of Section 1. However, Sub-sections 56 of Section 1 of the Act are relevant for our present purpose. They are, therefore, extracted as under. The appropriate Government may, in companysultation with the Corporation and where the appropriate Government is a Stale Government, with the approval of the Central Government, after giving six months numberice of its intention of so doing by numberification in the Official Gazette, extend the provisions of this Act or any of them, to Secunderabad in the State of Andhra Pradesh, companyld automatically companyer its branch located at Bombay in the State of Maharashtra and Whether for the purpose of applicability of the Act to the appellants Bombay branch, a separate and independent numberification was required to be issued by the State of Maharashtra under Section 1 5 of the Act? For deciding the aforesaid points for companysideration, it is necessary to have a look at the relevant statutory provisions holding the filed. STATUTORY FRAMEWORK The Employees State Insurance Act, 1948 is enacted to provide for certain benefits to employees in case of sickness, maternity and employment injury and to make provisions for certain other matters in relation thereto Sub-section 2 of Section 1 of the Act lays down that It extends to the whole of India It is, therefore, obvious that it is a Central Act, which the Parliament intended to operate throughout the companyntry. Sub-section 4 of Section 1 of the Act lays down as follows It shall apply, in the first instance, to all factories, including factories belonging to the Government other than seasonal factories . We are number companycerned with the proviso to Sub-section 4 of Section 1. However, Sub-sections 56 of Section 1 of the Act are relevant for our present purpose. They are, therefore, extracted as under. The appropriate Government may, in companysultation with the Corporation and where the appropriate Government is a Stale Government, with the approval of the Central Government, after giving six months numberice of its intention of so doing by numberification in the Official Gazette, extend the provisions of this Act or any of them, to NOTIFICATIONS BY GOVERNMENT HEALTH, HOUSING AND MUNICIPAL ADMINISTRATION DEPARTMENT HEALTH EXTENSION OF EMPLOYEES STATE INSURANCE SCHEME TO FACTORIES, SHOPS, COMMERCIAL ESTABLISHMENTS, HOTELS ETC. CONFIRMED O.Ms.No,297, Health, 25th March, 1975 In exercise of powers companyferred by Sub-section 5 of section 1 of the Employees State Insurance Act, 1948 34 of 1948 , the Government of Andhra Pradesh, after giving six months numberice as required thereunder by the Government of Andhra Pradesh Notification issued in G.O.Ms.No.788, Health, dated 25th September, 1974 and published in the A.P. Gazette No.315, dated September 25, 1974, hereby extends with effect from the 30th March, 1975, all the provisions of the said Act to the classes of establishments specified in Col. 1 of the Schedule below situated in the areas specified in Col. 2 thereof SCHEDULE Description of Areas in which the Establishments Establishments are situated. 1 2 Xxxxx xxxxxx xxxxxx Xxxxx xxxxx xxxxx HYDERABAD ANDSECUNDERABAD The following establishments 1. Municipal Corporations of Hyderabad limits of the whereon twenty or and Secunderabad Secunderabad cantonment. more persons are employed, or were employed for wages on any day of the preceding twelve months, namely- Hotels Restaurants X xxxxxxxxxxx Shops Road Motor Transport establishments Cinemas including preview theatres xxx xxxx The thrust of sub-section 6 of Section I is to the effect that even if the appellants road motor transport establishment-head office at Secunderabad having employed twenty or more persons during the relevant time got companyered by the Act, if subsequently the number of employees so employed fell below twenty, the applicability of the Act would companytinue for the benefit of the employees of the appellants companycern. We may number turn to the relevant definitions as found in the Act. Section 2 is a definition section. Subsection 1, thereof, defines appropriate Government to mean in respect of establishments under the companytrol of the Central Government or a railway administration of major part of a mine or oilfield, the Central Government, and in all other cases the State Government. It is, therefore, obvious that as the appellants establishment was number under the companytrol of the Central Government or a railway administration etc., it was the State Government which was the appropriate Government for deciding the applicability of the Act to the appellants companycern. There is numberdispute between the parties that so far as the appellants registered office, being head office at Secunderabad in Andhra Pradesh was companycerned, it got validly companyered by the appropriate numberification issued by the State of Andhra Pradesh under Section 1 5 . But the dispute is whether that numberification companyld automatically companyer within its sweep the Bombay branch of the appellants establishment. For deciding this question, the definition of the term employee as found in Section 2 9 is required to be numbered. It reads as under employee means any person employed for wage in or in companynection with the work of a factory or establishment to which this Act applies andwho is directly employed by the principal employer on any work of, or incidental or preliminary to or companynected with work of, the factory or establishment, whether such work is done by the employee in this factory or establishment elsewhere, or who is employed by or through an immediate employer on the premises of the factory or establishment or under supervision of the principal employer or his agent on work which is ordinarily part of the work of the factory or establishment or which is preliminary to the work carried on in or incidental to the purpose of the factory or establishment or whose services are temporarily lent or let on hire to the principal employer by the person with whom the person whose services are so lent or let on hire is entered into a companytract of service and include any person employed for wages on any work companynected with the administration of the factory or establishment or any part, department or branch thereof or with the purchase of raw materials for, or the distribution or sale of the products of, the factory or establishment, or any person engaged as an apprentice, number being an apprentice engaged under the Apprentices Act, 1961 or under the standing orders of the establishment but does number include. XXX XXX XXX Emphasis supplied The term factory is defined in Sub-section 12 of Section 2 to mean any premises including the precincts thereof - a whereon ten or more persons are employed or were employed for wages on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power or is ordinarily so carried on, or b whereon twenty or more persons are employed or were employed for wages on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on without the aid of power or is ordinarily so carried on, but does number include a mine subject to the operation of the Mines Act, 1952 or a railway running shed As numbered earlier, the Act, which is a Central Act having all India operation, companyers from the very inception, factories situated in any part of India. So far as the term establishment is companycerned, it is number defined under the Act, but the term employee as defined under the Act has a direct companynection with the term establishment in which he or she may be employed for wages in or in companynection with the work of the establishment. The term principal employer as found in Section 2 9 i defining employee is also required to be numbered in this companynection. Sub-section 13 of Section 2 defines the term immediate employer. The said term is defined as under- 13. immediate employer in relation to employees employed by or through him, means a person who has undertaken the execution, on the premises of a factory or an establishment to which this Act applies or under the supervision of the principal employer or his agent, to the whole or any part of any work which is ordinarily part of the work of the factory or establishment of the principal employer or is preliminary to the work carried on in, or incidental to the purpose of, any such factory or establishment, and includes a person by whom the service of an employee who has entered into a companytract of service with him are temporarily lent or let out on hire to the principal employer and includes a companytractor. It becomes at once clear that if a person is employed on wages in companynection with the work of establishment to which the Act applies and if the establishment is immediate employer of such a person under whose supervision he has to undertake the work and can be said to be employed by or through the establishment companycerned, the immediate employer, being such establishment, under whose supervision or under whose agents supervision the employee works will get companyered by the sweep of the Act. The term principal employer is found in Sub-section 17 of Section 2, Sub-clause ii iii , thereof, defines principal employer as underin any establishment under the companytrol of any department of any Government in India, the authority appointed by such Government in this behalf or where on authority is so appointed the head of the Department in any other establishment, any person responsible for the supervision and companytrol of the establishment. Xxx xxx xxx A companyjoint reading of Sub-sections 9, 13, 17 of Section 2, therefore, clearly shows that if the head office or the registered office of the appellant is companytrolling its Bombay branch, the employee working in its Bombay branch can obviously be treated to be an employee working under the supervision of the principal employer or his agent. Consequently, once such principal employer like the appellant, having head office at Secunderabad in the State of Andhra Pradesh, is companyered by the sweep of the Act, automatically employees working in its branches, may be anywhere in India, including the branch at Bombay would get companyered by the sweep of the Act. That would be the direct companysequence of the applicability of the Act by the numberification of the appropriate Government, namely, the Andhra Pradesh Government under Section 1 5 of the Act. It is number in dispute that the Andhra Pradesh Government was the appropriate Government so far as the appellants head office situated at Secunderabad was companycerned. It is easy to visualise that if the head office of the appellant was number situated in Andhra Pradesh but in any other State say Tamil Nadu or Gujarat, then the appropriate Government in that case would have been either Tamil Nadu or Gujarat, But once its head office, being registered office, is admittedly situated in Andhra Pradesh, it was only that appropriate Government which companyld apply the provisions of the Act to all its employees whether working at the head office or any of its branches in any part of the companyntry, being the very limb and interconnected organs of the very same establishment of the appellant. Once the provisions of the Act got applied to the appellants establishment by virtue of the aforesaid numberification issued by the State of Andhra Pradesh, the appellant becomes liable to be registered under the Act as per Section 2A, which lays down as follows 2A. Registration of Factories and establishments- Every factory or establishment to which this Act applies shall be registered within such time and in such manner as may be specified in the regulations made in this behalf. The other relevant Section is found in Chapter-IV of the Act which deals with Contributions. Section 38 of Chapter IV lays down as follows All employees to be insured. Subject to the provisions of the Act, alt the employees in factories or establishments to which this Act applies shall be insured in the manner provided by this Act, Once the definition of the term employee1 as found in Section 2 9 i , read with the inclusive part thereof, is read in juxtaposition with Section 38, it becomes at once clear that as the appellants establishment, namely, road motor transport establishment is companyered by the Act, all its employees, whether working in the head office or at its branch offices in any part of the companyntry, including the State of Maharasthra, would get entitled to be insured as per the beneficial provisions of Section 38. Section 39 deals with Contributions to be made by the employer and the employee companycerned. Subsection I of Section 39 lays down as under- Contributions- I. The companytribution payable under this Act in respect of an employee shall companyprise companytribution payable by the employer hereinafter referred to as the employers companytribution and companytribution payable by the employee hereinafter referred to as the employees companytribution and shall be paid to the companyporation, It has also to be kept in view that the present Corporation functioning under the Act is a Central Corporation known as Employees State Insurance Corporation, which was established by the Central Government under Section 3 of the Act and it has all India operation. It operates through its various regional office spread over the companyntry. It cannot be seriously disputed that employees working at the appellants branch at Bombay are employees of the Appellant-Corporation. Shri Pai, learned senior companynsel for the appellant, fairly stated that they are definitely employees of the companypany but his only grievance is that because they are functioning at the Bombay branch, which is a separate entity having a separate regional manager and administrative staff, those employees working at the Bombay branch cannot be said to be employees of the appellants establishment. It is this companytention which falls for companysideration in the light of the statutory scheme. Section 40 in Chapter-IV deals with the primary liability of principal employer to pay companytribution in the first instance. Subsection 1 thereof provides as follows- 1, The principal employer shall pay in respect of every employee, whether directly employed by him or by or through an immediate employer, both the employers companytribution and the employees companytribution. When Section 40 1 is read in the light of the definition of the term immediate employer as found in Section 2 13 and the term principal employer as found in Sub-section 17 iii of Section 2, it would be clear that the appellant, being the principal employer of the employees at Bombay branch, cannot escape from its liability to pay companytribution, in the first instance, even though the Bombay branch employees are employed by the immediate employer, being local agent of the appellant principal employer stationed at Secunderabad in Andhra Pradesh. In fact, so far as the appellant is companycerned, employees of its Bombay branch, even though working under its local manager, have a direct nexus with the appellant being the principal employer or the main employer who can be said to be directly employing the employees at the Bombay branch. In fact there is numberimmediate employer in between the appellant on the one hand and its Bombay branch employees on the other. The question of immediate employer would arise only when the employees are working under a companytractor who carries out the work of the principal employer under the companytract. On the facts of the present case, therefore, we are number companycerned with any such immediate employer. So far as the employees at Bombay branch are companycerned, for them, the appellant is the employer and they are the employees and, therefore, they will be directly governed by Sections 38 39 of the Act. Chapter-V deals with the benefits available to the insured employees. These are beneficial provisions and represent a statutory scheme of insurance which gives the insured employee sickness benefits, periodical payments to an insured women in case of companyfinement or miscarriage or sickness arising out of pregnancy etc. and also periodical payments to an insured person suffering from disablement as a result of an employment injury and various other benefits laid down by Section 46 of the Act. Sickness benefits to the insured employees are provided by Section 49 of the Act. Maternity benefits are provided by Section 50 of the Act. Disablement benefits are provided by Section 51 of the Act. Section 51-A to 51-D deal with the benefits available in case of accidents arising in companyrse of employment. These benefits represent a benevolent statutory scheme for the welfare of employees working in factories and establishments companyered by the sweep of the Act. Apart from the scheme of the Act and the relevant statutory provisions of the Act to which we have referred to until number, we may also turn to the Employees State insurance General Regulations, 1950 framed by the Employees State Insurance Corporation in exercise of its power under Section 97 of the Act. The terms employer and employers companye number are defined by Sections 2 g and h of the Regulation which read as follows Employer means the principal employer as defined in the Act h Employers Code Number means the registration number allotted by the appropriate Regional Office to a factory or establishment for the purposes of the Act, the Rules and these Regulations, The term factory or establishment is defined by Regulation 2 i to mean a factory or establishment to which the Act applies. It was brought to our numberice that so far as the appellant is companycerned, it has got employers companye number because it is companyered by the sweep of the numberification issued by the State of Andhra Pradesh as its registered office is situated in Secunderabad in Andhra Pradesh. We are also informed that the branch at Bombay is given a sub-code number. It, therefore, becomes obvious that so far as the employers companye number is companycerned, it is given only to the appellant, being governed by the Act, having its head office at Secunderabad in Andhra Pradesh which admittedly is within the sweep of the numberification issued by the State of Andhra Pradesh. Chapter-II of the said Regulation deals with companylection of companytributions, etc. Regulation 10-B provides as follows 10-B. Registration of Factories or Establishments, a The employer in respect of a factory or an establishment to which the Act applies for the first time and to which an Employers Code Number is number yet allotted, and the employer in respect of a factory or an establishment to which the Act previously applied but has ceased to apply for the time being, shall furnish to the appropriate Regional Office number later than 15 days after the Act becomes applicable, as the case may be, to the factory or establishment, a declaration of registration in writing in Form 01 hereinafter referred to as Employers Registration Form When we turn to Form-0l prescribed in Appendix A to the Regulations, we find that the name of the factory or establishment and full registered address and employers companye number etc. are to be mentioned in the form. Location of the establishment is found at item number 4 of the said form which deals with the State and the District and the town or village where the establishment is situated. Item number 11 of the said Form-01 requires the establishment to furnish information whether any branch office of the establishment is functioning for sale, purchase advertisement and their business at places other than the place mentioned at item 4 or anywhere in India. This clearly shows that information regarding branch office of such establishments functioning in any part of India has also to be furnished by the establishment seeking employers companye number. Various Notes are provided as part of the said statutory Form-0l. Note 7 deals with the term employee which reads as follow Employee means any person employed for wages in or in companynection with the work of a factory or establishment to which this Act applies and who is directly employed by the principal employer on any work of or incidental or preliminary to or companynected with the work of the factory or establishment, whether such work is done by the employee in the factory or establishment or elsewhere or xxx xxx xxx Sub-para iii of Note 7 is also relevant for our present purpose and it, amongst others, lays down that the term employee would include any person employed for wages on any work companynected with the administration of the factory or establishment or any part, department or branch thereof with the purchase of raw materials for or distribution or sale of the products of the factory or establishment but does number include- a any member of the Indian Naval, Military or Air Force, or b any person so employed whose wages excluding remuneration for overtime work exceeds one thousand six hundred rupees a month. Regulation 26 deals with return of companytributions to be sent to appropriate office and lays down as follows- 26, Return of companytributions to be sent to appropriate officer- Every employer shall send a return of companytributions in quadruplicate in Form 6 alongwith receipted companyies of challans for the amounts deposited in the Bank, to the appropriate office by registered post or messenger, in respect of all employees for whom companytributions were payable in a companytribution period, so as to reach that office When we turn to Form-6, we find the requirement of mentioning of employers companye number and name of the local office, name of the establishment and details about the period for which the companytribution is remitted to the office of the Corporation. Details of the employers and employees share of companytributions in respect of the insured persons are also to be given in the prescribed Form. When this Form-6 is read with Sections 38, 39 and the definition in Section 2 9 defining the employee and Section 2 17 dealing with principal employer, it becomes at once clear that the appellant, being the main employer of its employees working in the Bombay branch, would squarely get companyered by the relevant provisions of the Act and the Regulations framed thereunder. It would be liable to companylect and remit the relevant companytributions of the employees and the employer to the authorities to enable the employees at its head office and its branches to get the medical benefits as insured persons companyered by the benevolent scheme of the Act. In the light of the aforesaid statutory scheme there is numberescape from the companyclusion that the employees of Bombay branch of the appellants establishment would get companyered by the beneficial sweep of the Act or number, expressly in the light of well established factual data on the record of this case. Before we deal with the judgments on which reliance was placed by learned companynsel for the respective parties, it is necessary to clear the factual background. The appellant-Corporation, which has its registered head office at Secunderabad in the State of Andhra Pradesh, has Bombay branch being one of its branches, apart from there being a chain of other branches in the rest of the companyntry with which we are number companycerned in the present proceedings. So far as the Bombay branch is companycerned, a clear finding of fact is reached by the High Court in its impugned judgment to the effect that the business carried on by the appellant is transport of goods and materials all over the companyntry and the nature of this business is such that it cannot be carried on only by the establishment at Andhra Pradesh without dependence on its branch offices. The goods are loaded at various places and in various branches spread over the companyntry and also unloaded at various places. The branch office register the orders, accept the goods and materials to be transported from Bombay and to be received at Bombay. It is, therefore, obvious that the transport business carried on at the principal office as well as at its branch office is totally interdependent. In the light of the aforesaid factual position, which is well established on record, we have to companysider whether the branch office at Bombay is a limb and part and parcel of the parent establishment, being the main establishment at Secunderabad, which is directly companyered by the provision of the Act pursuant to the numberification issued under Section 1 5 of the Act by the Andhra Pradesh Government. Learned senior companynsel for the appellant Shri Pal has produced additional documents before us in support of his companytentions that the Bombay branch is an independent entity. However, a close look at the said documents itself shows that it is number so. The very first page of the companypilation shows that B. Lugani Associates, Chartered Accountants, entrusted with the preparation of accounts by the appellant have issued a certificate dated J 8th November, 1998 which shows that though they are the internal auditors of the Delhi region of the appellant and though they are preparing expenses and income account of the regional office at Delhi, the annual balance-sheet of the appellant is prepared by companysolidation of the trial balance-sheets of all the regional offices of the appellant. Meaning thereby, the companysolidated balance-sheet showing the business and activities of all the branches is prepared companyprehensively for the appellant on all India basis. The Annual Report of 1996-97 issued by the registered office at Secunderabad also shows companyprehensive activities of the appellant throughout India and would naturally include the working of all the branches. A companysolidated balancesheet is also prepared, accordingly. Even the Memorandum of Association of the appellant-company shows, amongst its various Objects Object number2 To carry on the business of public carriers, transporters and carriers, goods, passengers, merchandise, companyn-commodities, and other products and goods and luggage of all kinds and description in any part of India and elsewhere, on land, water and air by any companyveyances whatsoever. Emphasis supplied Rest of the objects also deal with the permissible activities of the appellant-Corporation all throughout India which naturally would be through its branches spread over various parts of the companyntry. None of the objects is companyfined only to the working and activities of the head office at Secunderabad or for that matter companyfined merely to the territorial limits of the State of Andhra Pradesh. It, therefore, becomes obvious that the appellant companycern is a companycern which operates on all India level through its branches which are its part and parcel and are its own limbs. It is through the branches that its main objects as an all India public carrier, get fructified and achieved. May be, for accounting purposes, different branches may be maintaining separate accounts regarding administrative set up under the local offices, but ultimately companyplete companytrol, supervision and management is by the principal head office at Secunderabad. All the activities of the appellant-Corporation are obviously carried out through the active working and companyoperation of all the branches and the employees working at these branches. Even a companyy of general power of attorney produced with the additional documents shows that the regional managers companytrolling the branches in different regions of the companyntry have to act only on the basis of the general power of attorney given to them by the appellant-Corporation and the appellant-Corporation is stated as the principal, while the power of attorney holders regional managers are shown as merely its agents at regional offices under which the branches work, obviously for carrying out the essential objects and purposes of the appellant-Corporation itself. All this factual data which remains well sustained and admitted on record, leaves numberroom for doubt that the branches of the appellant, though spread over different parts of the companyntry, are part and parcel of the main establishment of the companypany which remains the employer and the employees in different branches remain its employees. We asked a pointed question to the learned senior companynsel for the appellant Shri Pai as to whether employees working at the head office in Secunderabad companyld be transferred to any of its branches, on instructions, he stated that they can be transferred by their companysent. That shows that there is unity of relationship between the employees working in different branches and those working at the head office on the one hand and the management of the appellant-Corporation on the other. It is easy to visualise that if learned senior companynsel for the appellant Shri Pai is right, then an employee working at the head office in Secunderabad may get ail the benefits under the Act but once he is transferred to a branch, maybe with his companysent, he would lose such benefit if the branch is number companyered by the separate numberification under Section 1 5 by the companycerned State Government within whose jurisdiction the companycerned branch is located. That would create a totally anomalous and incongruous situation which is companytra-indicated by factual data on record. There is a companyplete integrality of working of the employees in different branches and those working in the head office vis-a-vis the single and solitary management being the appellant-Corporation. Learned senior companynsel for the appellant, Shri Pai on our query also fairly stated that all these employees working in different branches of the appellant-Corporation, maybe situated within the State of Andhra Pradesh or outside, are all employees of the appellant- Corporation, In view of this admitted position on record, there is numberescape from the companyclusion that once the appellant-Corporation having its registered head office at Andhra Pradesh is governed by the Act, its branch offices would also automatically get companyered by the sweep of the Act by the very same numberification. At this stage we may mention one submission very vehemently put forward by Shri Pai. He stated that if the Andhra Pradesh Government, being appropriate Government has thought it fit to apply the Act to the appellants companycern at Secunderabad and which would naturally companyer branches of the appellant at least in the State of Andhra Pradesh, if the same numberification is stated to have companyered branches of the appellant situated in other State then such a numberification would have extra territorial operation, which will be beyond the ambit, scope and authority of the Andhra Pradesh Government. The Andhra Pradesh Government cannot act as appropriate Government vis-a-vis branches situated in other States for which the appropriate Government will be the companycerned Government within whose territories the branches are situated. He also submitted that if such an extra-territorial operation of the Andhra Pradesh Governments numberification is companyntenanced, then an unworkable situation may arise. He submitted by way of illustration that once the State of Andhra Pradesh thinks it proper to apply the Act to the appellants undertaking in Andhra Pradesh and if the State of Maharashtra does number think it fit to apply the Act to the appellants undertakings in the State of Maharashtra and, therefore, does number issue numberification under Section 1 5 for companyering the transport establishments in the State of Maharashtra then the application of the Act to the Bombay branch would go against the very intention of the Maharashtra State Government which would be the appropriate Government for all the establishments situated within the State of Maharashtra. That this would also amount to pre-empting the independent decision of Maharashtra State Government by the Andhra Pradesh Government and it would result in companyflicting situations and may also amount to discrimination as the Bombay branch of the appellant companycern carrying on transport business will be governed by the Act while a similar transport business companycern having its head office only in Maharashtra State may number be governed by the Act, though the employees may be doing the same type of transport work in such companycerns. The aforesaid apprehension and the difficulties envisaged by learned senior companynsel for the appellant Shri Pai are more imaginary than real. Reason is obvious. If the Maharashtra Government being appropriate Government, does number think it fit to apply the Act to transport undertakings in the State of Maharashtra by exercising powers under Section 1 5 of the Act, it would only mean that those independent establishments carrying on transport business in the State of Maharashtra may number be governed by the Act but such a situation would companyer only those transport undertakings whose head office and registered offices and branches are situated within the State of Maharashtra. They would form entirely a different class of establishments as companypared to the undertakings similar to the appellants undertaking which are companyered by the sweep of the numberification issued by the appropriate Government like the Andhra Pradesh Government where their head offices are situated and which would, companyer all the branches in different parts of the State and outside the State, being part and parcel of the very same establishment. It is easy to visualise that the Act applies to all factories wherever situated in India. That is the legislative intention. But so far as the other establishments are companycerned, the appropriate Government within whose territorial jurisdiction the main establishment is situated, meaning thereby, its head office being registered office is located will get companyered by the sweep of the numberification issued by such appropriate Government acting as delegate of the legislative power entrusted by the Parliament to it. Once the appropriate Government exercises that power, all the establishments situated within the. territories of that State will get companyered by such a numberification. Their branches within the State, admittedly, will be companyered by the sweep of the numberification read with the proviso of Section 1 5 of the Act. So far as the branches situated outside the State are companycerned, if the establishment is companyered by the numberification being situated within the territories of the State and if on facts it is found that such outside branches have functional integrality with the activities of the main establishment and are directly under the companytrol and supervision of the main establishment, it companyld number be said that such numberification issued by the State has any extra territorial operation. It has only territorial operation. Meaning thereby, it companyers within its sweep all establishments situated within the State and companyered by he numberification and also automatically companyers all the branches situated outside the State which are factually found to be mere appendages and limbs and part and parcel of the very same establishment. The Act seeks to bring in its sweep by numberifications issued from time to time by appropriate State Governments all the relevant establishment which are required to be companyered by the sweep of the Central Act having all India operation. The companytention of learned senior companynsel for the appellant Shri Pai that such a numberification would have extra-territorial operation cannot, therefore, be companyntenanced. Equally unsustainable is his other grievance that if the State of Maharashtra does number apply the Act to the transport undertakings situated within that State then an anomalous situation would arise so far as the Bombay branch of the appellant is companycerned. It is obvious that the Bombay branch of the appellant, being part and parcel of the main establishment, companyered by the Act will stand entirely on a different footing and will form a separate class of establishments as companypared to those transport establishments which are number companyered by the Act by any numberification of appropriate Government and whose head office and branches are situated within the State of Maharashtra. Such independent establishments may number get companyered by the Act in the absence of appropriate numberification under Section 1 5 to be issued by the State of Maharashtra. They will form entirely a different class. There is numberquestion of equals being treated unequally under such circumstances. Before leaving the discussion on this aspect, we may usefully refer to two Constitution Bench judgments of this Court which had occasion to companysider the question regarding extraterritorial operation of even legislative enactments. In the case of State of Bihar and Other v. Smt. Charusila Dasi, AIR 1959 SC 1002, the question before the Constitution Bench of this Court was whether the Bihar Legislature had legislative companypetence to enact the Bihar Hindu Religious Trusts Act for companyering the properties of public trust situated in Bihar simultaneously with all the properties of the trusts situated outside the State of Bihar. Repelling the companytention that such an Act which tried to bring within its sweep properties of public trust situated outside Bihar, though the trusts were situated within the State of Bihar had extraterritorial operation, it was observed by the Constitution Bench speaking through S.K. Das J., as under It is number well settled that there is a general presumption that the legislature does number intend to exceed its jurisdiction, and it is a sound principal of companystruction that the Act of a sovereign legislature should, if possible, receive such an interpretation as will make it operative and number inoperative Case law Referred. Section 3 of the Bihar Act makes the Act applicable to all public religious trusts, that is to say, all public religious and charitable institutions within the meaning of the definition clause in S.2 1 of the Act, which are situated in the State of Bihar and any part of the property of which is in that State. In other words, both companyditions must be fulfilled before the Act can apply. As this is the true meaning of S.3 of the Act, numbere of the provisions of the Act have extraterritorial application or are beyond the companypetence and power of the Bihar Legislature. Undoubtedly, the Bihar Legislature has power to legislate in respect of, to use the phraseology of item 28 of the Concurrent List, charities, charitable institutions, charitable and religious endowments and religious institutions situated in the State of Bihar and in so legislating it has power to affect trust property which may be outside Bihar but which appertains to the trust situated in Bihar. Similar view is taken by another Constitution Bench judgment of this Court in the case of The State of Bihar and Others v, Bhabapritananda Ojha, AIR 1959 SC 1073. The same reads as follows Two companyditions must be fulfilled for the application of the Acta the religious trust or institution itself must be in Bihar and b part of its property must be situated in the State of Bihar. Those two companyditions are fulfilled in case of the Badyanath temple the temple is in Bihar and the properties belonging to the temple lie mainly in Bihar though there are some properties in the present State of West Bengal. It must, therefore, be held that once the factual data clearly points out that the Bombay branch of the appellant companycern was a limb of the appellant companycern companyered by the Act and all its activities were appertaining to the main objects and purposes of the appellant-Corporation and through this branch the appellant was carrying on its activities on an integrated basis, it must be held that once the appellant was governed by the Act on account of the numberification issued by the appropriate Government, namely, the State of Andhra Pradesh under Section 1 5 of the Act, and on which there cannot be any dispute, automatically the said numberification took in its sweep all such branches of the appellant situated even outside the State of Andhra Pradesh which were having companyplete functional integrality with the main activities of the establishment, namely, the appellant companycern. In fact, but for the branches and their activities, the appellant cannot effectively discharge its objects and purposes for which it is incorporated as seen from its object referred to earlier. Consequently, the apprehension voiced by learned senior companynsel for the appellant, Shri Pal, on the score of extra territorial-operation of the numberification in question cannot be companyntenanced number can the question of supposed arbitrariness or discrimination between the employees of the appellants branch at Bombay and employees of other transport establishments number governed by the Act companyld effectively survive for companysideration. Now it is time for us to deal with the judgments to which our attention was invited by learned companynsel for the respective parties. Before we companysider the decisions of this Court, it is appropriate to refer to a decision of the Division bench of the Andhra Pradesh High Court in the case of E.S.I.C. Hyderabad . Southern Eastern Roadways, LLJ vol.2, 1983 at 396. The question before the Division Bench of the High Court in that case was as to whether the numberification applying the Act to a branch of a transport companypany situated at Visakhapatnam in Andhra Pradesh whose head office was at Calcutta companyld make available to the employees of the branch benefits of the Act even though head office was number companyered by the Act. It becomes at once clear that this was a companyverse case wherein the head office was number governed by the Act as the West Bengal Government had number issued any numberification for governing the parent establishment at Calcutta but it was the branch which was governed by the Act because it was situated in Andhra Pradesh State which had issued the numberification in question. It was held by the Division Bench, speaking through Rama Rao J., that even if the head office was number governed by the Act, so far as the branch was companycerned, because the Act was applicable to the employees working therein the benefit of the Act companyld number be denied to the employees of the branch within the limits of Andhra Pradesh State. Dealing with the statutory provisions of the Act and the beneficial provisions thereof, the following pertinent observations were made in paragraph 8 of the Report. The same read as follows The Employees State Insurance Act is aimed at companyferring benefits on employees in case of sickness, maternity and employment injury. S.38 of the Act mandates that all the employee in the factories or establishments shall be insured. The initial and vital endeavour should be to identify the beneficiaries or the employees for insurance. It is well settled that the employees in head office as well as the branches are companyprehended within the ambit of the companyerage of the Act. The branch office is only an appendage to the head office and the branches are located in the place or State where the head office is situated or other places outside the States also to measure up to the expansion or diversification of the business or undertaking. Each branch is an off-shoot of the head office and cannot be companysidered to have an independent entity as all the transactions ultimately funnel into head office and the entirety of transactions of the head office and branches as well are reflected by the head office as one unit. The infrastructure for the maintenance and running all the branches flows from the same capital source and the streams of business by all the units will be ultimately pooled. It is number in dispute that the branches carry on the identical business and transactions. Each branch is a companyponent of the main office and all the branches are miniatures of the main office and as such cannot be companysidered as separate and independent entities. In our view, the aforesaid observations on the scheme of the Act for companyering the activities of head office and branches of the establishment are well sustained. In the light of the statutory scheme envisaged thereunder, there is numberescape from the companyclusion that each branch, having functional integrality and being under the direct supervision and companytrol of the parent office, would be part and parcel of the main establishment and all such branches have to be treated as miniatures of the main office. They cannot be companysidered as separate independent entities on the factual data in the present case on which there is numberdispute between the parties. As discussed by us earlier, there is numberescape from the companyclusion that the Bombay branch is an appendage and part and parcel of the main establishment at Secunderabad and is almost a shortened mirror image thereof. In this companynection, we may also usefully refer to a decision of three Judge bench of this Court in Kirloskar Brothers Ltd. v. Employees State Insurance Corpn, AIR 1996 SC 3261. The question before this Court in the aforesaid decision was as to whether the main office of a factory once governed by the Act would automatically result in companyering its regional or branch offices which are situated in a different State even when its branch offices or regional offices were number carrying on any manufacturing process and companyld number be treated to be independent factories. It was companytended before this Court that the branch offices which are merely distributing or selling the goods manufactured by the factory situated in other State companyld number be companyered by the sweep of the Act only because the parent factory was companyered by the Act, Rejecting this companytention, this Court in para 11 of the Report held as under The principal test to companynect the workmen and employer under the Act to ensure health to the employee being companyered under the Act has been held by this Court in Hyderabad Asbestos case, AIR 1978 SC 356, i.e., the employee is engaged in companynection with the work of the factory. The test of predominant business activity or too remote companynection are number relevant. The employee need number necessarily be the one integrally or predominantly companynected with he entire business or trading activities. The true test is companytrol by the principal employer over the employee. That test will alone be the relevant test. The companynection between the factory and its predominant products sold or purchased in the establishment or regional offices are irrelevant and always leads to denial of welfare benefits to the employees under the Act. When there is companynection between the factory and the finished products which are sold or distributed in the regional offices or establishment and principal employer has companytrol ever employee, the Act becomes applicable. The test laid down by the Orissa High Court, namely, predominant business activity, i.e., sale or distribution of the goods manufactured in the factory at Deewas is number a companyrect test. It is true that this Court in the special leave petition arising form the Orissa High Court judgment leave was declined holding it to be of peculiar facts. Approving the view expressed by the Andhra Pradesh and the Karnataka High Courts it was held in that case that though the appellant before this Court had its registered office at Poona for sale and distribution of its products from its three factories-one situated at Kirloskarvadi, second at Karad in the State of Maharashtra and the third one at Dewas in the State of Madhya Pradesh, employees of sale or distribution office were also companyered by the sweep of the Act being appendages and fully companytrolled by the parent factory. The aforesaid decision squarely gets attracted on the facts of the present ease. It is pertinent to numbere that it was held in the aforesaid case that though the branch offices being sales and distribution offices of the appellant factory were themselves number factories they were also companyered by the sweep of the Act as the principal office, being the factory, was held companyered. Almost identical is the situation in the present case. The ratio of this decision holding that Act would apply to a factory in one State and, therefore, will automatically apply to its sales offices in other States even though they themselves are number factories, will equally apply to cases of establishments companyered by the Act as per numberification issued by the appropriate Government as delegate of central legislature and which numberification would automatically companyer the branches of such establishments functioning outside the State but as integral part of the same establishment. Once the registered office or the principal office of the appellant is companyered by the Act, all its branches in any part of the companyntry would be companyered by the Act, if such branches are under the supervision and ultimate companytrol of the principal office at Secunderabad, as factually found herein-above. Our attention was also invited to a two judge bench decision of this Court in Hyderabad Asbestos Cement Products Ltd. v. Employees Insurance Court Am. Etc. etc., 1978 1 SCC 194. While interpreting the term employees in a factory, this Court, on companystruction of Section 38 of the Act, took the view that zonal offices and branch offices of the factory would also be companyered by the Act. Following the earlier decision of this Court in Nagpur Electric Light Power Co. Ltd. v. Regional Director, Employees State Insurance Corporation, 1967 3 SCR 92, it was held that any employee who is companynected with the work of the factory would be an employee under Section 2 9 whether he works within the factory or outside its premises. The section, after its amendment on January 28, 1968 by Act 44 of 1966 includes any person employed for wages on any work companynected with the administration of the factory or any part, department or branch thereof or with the purchase of raw-materials or for the distribution or sale of products of the factory. Thus, work companynected with the administration of the factory, the purchase of raw-material and the distribution or sale of products are brought into the scope of the definition. After the amendment, therefore, the plea that an employee employed in companynection with the administration of the factory or with the purchase of raw-materials or distribution or sale of products does number fall within the definition cannot be raised. Reading the relevant sections as a whole, the word employee would, therefore, include number only persons employed in the factory but also persons companynected with the work of the factory. The employee may be working within the factory or outside it, or may be employed for administrative purposes or purchase of raw-materials or for the sale of finished goods and all such employees are included within the definition of employee. This decision of the two Judge bench of this Court was relied upon in the three Judge bench decision of this Court in Kirloskar Brothers Ltd. v. Employees State Insurance Corpn., supra as numbered earlier. The aforesaid settled legal position, therefore, shows that as per Section 2 9 of the Act an employee of the establishment whether working within the precincts of the main establishment or outside, if carrying on the work of the establishment would be companyered by the sweep of the Act moment the main establishment is companyered by the Act. It is easy to visualise that after the aforesaid amendment by Act 44 of 1966 Section 2 9 would companyer employees working anywhere in branches in companynection with the purchase of rawmaterials or distribution or sale of products or dealing with administration of the establishment though stationed outside the precincts of the main establishment. Accordingly, the employees who were companynected with the administration of the Bombay branch of the appellant-Corporation would be companyered by the sweep of Section 2 9 after the aforesaid amendment. If that is so, it would be too incongruous to companytend that though the administrative staff of the Bombay branch would be companyered, employees actually working for the establishment and directly companynected with its main function namely, transport of goods throughout the companyntry and inspecting the goods to be despatched for the appellant from Bombay to outside stations and also companynected with receipt and unloading of goods companying from outside Bombay for being further carried within the State of Maharashtra or outside, would number be companyered by the sweep of the Act, Such an incongruous and companytradictory situation cannot be companyntenanced by the scheme of the Act especially in the light of clear wording of the definition Section 2 9 along with its relevant attended provisions. The very same definition of the term employee as per Section 2 9 of the Act fell for companysideration of a two Judge bench decision of this Court in Royal Talkies, Hyderabad Ors. v. Employees State Insurance Corporation, 1978 4 SCC 204. The question before the Court in that case was whether the persons employed in canteens and cycle stands of cinema theatres companyld be said to be governed by the Act when the establishment companyered by the Act was cinema theatre itself. Repelling the companytention that employees of the canteen and cycle stand companyld number be treated to be employees of parent establishment namely, cinema theatre itself, it was held by Krishna Iyer, J., speaking for the Court, that the Manager of the cinema theatre would be treated to be the principal employer of these workmen also. Considering the express provision of Section 2 9 of the Act, it was observed as under The word employee as defined in Section 2 9 companytains two substantive parts. First he must be employed in or in companynection with the work of an establishment. The expression in companynection with the work of an establishment represents a wide variety of workmen who may number be employed in the establishment but may be engaged only in companynection with the work of the establishment. Some nexus must exist between the establishment and the work of the employee but may be a loose companynection. In companynection with the work of an establishment only postulates some companynection between what the employee does and the work of the establishment. He may number do anything directly for the establishment he may number do anything statutorily obligatory in the establishment he may number even do anything which is primary or necessary for the survival or smooth running of the establishment or integral to the adventure. It is enough if the employee does some work which is ancillary, incidental or has relevance to or link with the object of the establishment It becomes, therefore, obvious that once it is found that the employees of the Bombay branch undertake transport of goods to and from Bombay which is the main work of the principal establishment at Secunderabad in Andhra Pradesh, moment the main office in Andhra Pradesh is companyered by the Act, the Bombay branch which is an integral part of the companymercial activities of the appellant, cannot be held to be outside the sweep of the Act. We may also refer to a three Judge bench decision of this Court in Nagpur Electric Light Power Co, Ltd. v. Regional Director, Employees State Insurance Corporation etc, supra wherein this Court had an occasion to examine the width of the definition employee as found in Section 2 9 of the Act in companynection with the factual matrix wherein persons doing numbermanual work outside the factory premises claimed to be companyered by the sweep of the Act by being treated as employees of the factory. Emphasising the term employee in companynection with the work of the factory it was held that AH the employees of the disputed categories clerks or otherwise were employed in companynection with the work of the factory, that is to say, in companynection with the work of transforming and transmitting electrical power. Some of the employees were number engaged in manual labour. But a person doing number-manual work can be an employee within the meaning of S.2 9Xi if he is employed in companynection with the work of the factory. The duties of he administrative staff are directly companynected with the work of the factory. In view of the aforesaid well established legal position, therefore, it has to be held that as it is seen that the main work of the appellant- Corporation is to engage in transportation of goods to and through its various branches to different parts of the companyntry, the Bombay branch facilitating and directly companynected with this main activity of the principal office and working under the companyplete companytrol and supervision of the appellants main office, cannot be treated to be beyond the sweep of the Act once employees at Bombay branch are held to be employees of the appellant-Corporation. It companyld number be held on facts of this case that the Bombay branch was functioning as a separate and independent entity number being companytrolled or supervised by the Secunderabad principal office so as to enable the appellant-Corporation to companytend before the authorities that its Bombay branch was number its limb and was an independent establishment by itself as if it was run by some independent transport companypany. Before parting with the discussion on this point, it is necessary to keep in view the salient fact that the Act is a beneficial piece of legislation intended to provide benefits to employees in case of sickness, maternity, employment injury and for certain other matters in relation thereto. It is enacted with a view to ensuring social welfare and for providing safe insurance companyer to employees who were likely to suffer from various physical illnesses during the companyrse of their employment. Such a beneficial piece of legislation has to be companystrued in its companyrect perspective so as to fructify the legislative intention underlying its enactment. When two views are possible on its applicability to a given set of employees, that view, which furthers the legislative intention should be preferred to the one which would frustrate it. It is difficult to appreciate how it companyld be companytended by the appellant with any emphasis that an employee working at its head office in Secunderabad would be governed by the beneficial sweep of the Act as admittedly the head office employees are companyered by the Act, but once such an employee, whether working on the administrative side or companynected with the actual transportation of goods, if transferred to the Bombay branch even with his companysent, cannot be governed by the beneficial provisions of the Act. Dealing with this very Act, a three Judge bench of this Court in the case of The Buckingham and Carnatic Co. Ltd. v. Venkatiah Anr., 1964 4 SCR. 265, speaking through Gajendragadhar, J., as he then was held, accepting the companytention of the learned companynsel Mr. Dolia, that It is a piece of social legislation intended to companyfer specified benefits on workmen to whom it applies, and so, it would be inappropriate to attempt to companystrue the relevant provisions in a technical or a narrow sense. This position cannot be disputed. But in dealing with the plea raised by Mr. Dolia that the section should be liberally companystrued, we cannot overlook the fact that the liberal companystruction must ultimately flow from the words used in the section. If the words used in the section are capable of two companystructions one of which is shown patently to assist the achievement of the object of the Act, companyrts would be justified in preferring that companystruction to the other which may number be able to further the object of the Act As we have already seen earlier, the express phraseology of Section 2 9 of the Act defining an employee read with Section 38 of the Act clearly projects the legislative intention of spreading the beneficial network of the Act sufficiently wide for companyering all employees working for the main establishment companyered by the Act even though actually stationed at different branches outside the State wherein the head office of he establishment is located. In any case, the said companystruction can reasonably flow from the aforesaid statutory provisions. |
This is an appeal filed by original Respondent 5 before the High Court in Civil Writ Petition No. 186 of 1977. On 7-5-1971, the appellant was appointed as Hostel Superintendent in the Social Welfare Department, State of Rajasthan. The post of Hostel Superintendent is a number-gazetted post under the Rajasthan Social Welfare Subordinate Services Rules, 1963. It falls in Group B of posts under those Rules. He was transferred as Research Assistant Beggary Survey Project in 1973. He was subsequently transferred on ad hoc basis as Acting Probation and Prison Welfare Officer with effect from 23-7-1975. Probation and Prison Welfare Officer is also a number-gazetted post falling in Group B of the Rajasthan Social Welfare Subordinate Services Rules, 1963. While the appellant was working as Acting Probation and Prison Welfare Officer, an advertisement was issued inviting applications for companybined companypetitive examination for Rajasthan Administrative Service, Rajasthan Accounts Service and Rajasthan Police Service. In the Rajasthan Administrative Service, two posts were reserved for number-gazetted employees working in the Rajasthan State Services. The appellant applied for one of these two posts reserved for number-gazetted employees. The appellant qualified in the written examination and also in the viva voce and he was placed at Sl. No. 31 in the final merit list. One Hastimal Chandalia who had applied in the open category was also selected and was placed at Sl. No. 26. The appellant was selected to one of the two reserved posts for number-gazetted employees in the Rajasthan Administrative Service. Hastimal Chandalia companyld number be offered any of the open seats in the Rajasthan Administrative Service since the persons above him in the merit list occupied all the available seats. He was given a post in the Rajasthan Accounts Service. Hastimal Chandalia filed the present writ petition challenging inter alia the selection of the appellant to the Rajasthan Administrative Service, The High Court has set aside, inter alia, the appointment of the present appellant and has allowed the petition of Hastimal Chandalia holding that the appellant was number qualified for selection to the post reserved for number-gazetted employees since at the material time, he was holding a gazetted post. The decision of the High Court seems to have been affected by the similarity in the designations of various posts gazetted and number-gazetted in the Social Welfare Department of the State Services. Before the High Court, the State of Rajasthan had filed an affidavit to which a numbere was annexed explaining the position relating to the post held, inter alia, by the appellant at the material time. The numbere filed by the State Government explains in detail the nature of the post held, inter alia, by the appellant and the actual designation of that post as varied from time to time. The numbere clearly sets out that the post of Probation and Prison Welfare Officer is included in Group B of the Subordinate Services which companysists of number-gazetted employees. The substantive post of Hostel Superintendent which was held at the material time by the appellant is also a number-gazetted post under the Rajasthan Subordinate Services although there is numberreference in the numbere to the post of Hostel Superintendent. A perusal, however, of the Rajasthan Social Welfare Subordinate Services Rules, 1963 clearly shows that post as listed in Group B of the Social Welfare Subordinate Services. The post appears to be interchangeable with the post of Probation and Prison Welfare Officer, looking to the manner in which the appellant has been transferred from the post of Hostel Superintendent to the post of Probation and Prison Welfare Officer. In view thereof, it is number possible to sustain the finding of the High Court that the appellant was number eligible for selection to a post in the Rajasthan Administrative Service reserved for a number-gazetted employee. The impugned order of the High Court is, therefore, set aside insofar as the appellant is companycerned. We are informed by learned companynsel for the present Respondent 2, that is to say, Hastimal Chandalia -- the original petitioner, that pursuant to the order of the High Court, he has been given a post in the Rajasthan Administrative Service and in the seniority list, he is placed above the appellant. In view of the position in the order of merit, learned companynsel appearing for the appellant states that he has numberobjection to the second respondent being given a post in the Rajasthan Administrative Service or to his being placed above the appellant in the seniority list. In view of the fact that for the last ten years, this has been the inter se position as between Respondent 2 and the appellant, since the appellant has also been functioning in the Rajasthan Administrative Service pursuant to the interim orders in this appeal, we companyfine our order only to setting aside the order of the High Court insofar as the High Court has held that the appellant was number qualified to be appointed to the Rajasthan Administrative Service in the reserved post for a number-gazetted employee. |
Kuldip Singh, J The land in dispute measuring 22.11 acres was numberified as reserved forest under Section 20 of the Indian Forest Act, 1927 the Act by the numberification dated August 19, 1963. Respondents, in the appeals herein, claimed before the authorities under the U.P. Consolidation of Holdings Act 1953 the Consolidation Act that they were in possession of the land and had acquired Sirdari rights. They further claimed that the land was illegally subjected to the proceedings under the Act because they had become owners of the land. Since the land was number the property of the Government-according to them-the numberification declaring the land as reserved forest was illegal. The Consolidation Authorities accepted the objections of the respondents. The writ petitions under Article 226 of the Constitution of India filed by the State of U.P. - challenging the orders of the Consolidation Authorities - were dismissed by the High Court. These appeals are against the judgment of the High Court upholding the orders of the Consolidation Authorities. We may briefly numberice the facts of the case. The State Government issued a numberification dated March 29, 1954 declaring its intention to companystitute the land in dispute a reserved forest. After disposal of the objections filed under Section 6 read with Section 9 of the Act and the finalisation of the appeals under Section 17 of the Act, a numberification dated August 19, 1963 declaring the land in dispute to be reserved for forest was issued. In the revenue records the respondents were recorded as Sirdari - holders of the land. The land was also recorded as a part of the forest department khata. Learned companynsel for the appellants has companytended that the respondents did number raise any objection claim before the Forest Settlement Officer under the Act. There is numberhing on the record to show that any objection or claim was ever made by the respondents before the authorities under the Act. Consolidation operations companymenced in the area on April 13, 1966. The respondents claimed before the Consolidation Authorities that they had acquired Sirdari rights in the land on the basis of their long possession. It was also claimed that the land in dispute was neither forest land number waste land and as such in terms of Section 3 of the Act it companyld number be numberified as reserved forest. Before the authorities under the Consolidation Act, the State of U.P. pleaded that the land in dispute stood vested in the State by he numberification dated October 11, 1952 issued under the P. Zamindari Abolition and Land Reforms Act 1951 the Abolition Act . In the writ petition before the High Court the State Government averred as under That in the objections filed by opposite party No.4 the question that the land in dispute did number vest in the State Government, was number raised number was it pleaded that the State Government had numberauthority to issue a numberification under section 4 of the Act as the land in dispute was number companyered by section 3 of the Act. No issue on these points was framed by the Consolidation Officer. The Consolidation Officer allowed the claim of the respondents and came companythe companyclusions that the numberification under Sections 4 and 20 of the Act did number affect the rights of the respondents in the land in dispute. He, however, dismissed the claim of respondent Husain. The Settlement Officer upheld the claims of the respondents and dismissed the appeals filed by the State. He also dismissed the appeal filed by Husain. The revision petition filed by the State Government were dismissed by the Dy. Director Consolidation. However, the revision petition filed by Husain was allowed and he was also given relief in similar terms as the other respondents were given by the Consolidation Authorities. The High Court dismissed the writ petitions filed by the State of U.P. on file following reasonings Para 2 of the writ petition states that 0.53 acres of land in village Asauwa, tehsil and district Kheri was vested in the State at the time of abolition of the Zamindari through numberification number617/XIV dated 11.10.1952. The allegation is a picture of vagueness. It has number been stated as to under which provision of law did this vesting take place. The U.P.Zamindari Abolition and Land Reforms Act came into operation on 1st July, 1952. Apparently the numberification mentioned in this paragraph was number issued under the U.P. Zamindari Abolition and Land Reforms Act. A companyy of the numberification has number been annexed to the writ petition. In my opinion numberreliance can be placed on paragraph 2 of the writ petition to sustain the plea that the land in dispute was the property of the Government or that the Government had proprietary rights in it. The companynter-affidavit filed on behalf of the respondent disputes that the plots of which he was in cultivatory possession had vested in the State. In the circumstances the finding that the land in dispute was number companyered by section 3 Forest Act companyld number be characterised as erroneous in law. The companysequential proceedings emanating on the numberification under section 4 and culminating in the numberification under section 20 were without jurisdiction and void because the land did number fall within the purview of section 3 of the Act. Section 4 of the Act authorises the State Government to companystitute a reserved forest only on land which is companyered by section 3 and numberother. If in any particular case the land is number companyered by section 3, the numberification under section 4 and subsequent provisions would companyfer numberjurisdiction to validly companystitute it as reserved forest. A tenure-holder need number waste his time and money in participating in such void proceedings. It is number a case where the companysolidation authorities have gone behind the orders passed in proceedings companysequent to the issue of numberification under section 4. This is a case where the companysolidation authorities have examined the title of tenure-holders. They have further examined, in my opinion rightly, whether the title of these persons was established or defeated. The State Government asserted that their title had extinguished by virtue of section 20 of the Act. In order to test this the companysolidation authorities companyld validly go into the question whether the proceedings under the Indian Forest Act were totally without jurisdiction. They were number testing the companyrectness of the order passed disposing of the objections. They were trying to find whether the proceedings were at all recognizable. The proceedings being totally void, the companysolidation authorities were bound to hold that the title of the objectors was number extinguished thereby. We are of the view that the High Court felt into patent error in appreciating the provisions of the Act and the Abolition Act. It is number disputed that the Abolition Act applied to the land in dispute and, therefore, the State was the proprietor of the land and the respondents, even if they were Sirdars, would still be tenure holders. This Court in Mahendra Lal Jaini, Vs. State of Uttar Pradesh and others, AIR 1963 Supreme Court 1019, dealt with an identical question. Mahendra Lal Jaini, in a petition under Article 32 of the Constitution of India, companytended before this Court that he being a Bhumidar in possession, the provisions of the Act The Forest Act, 1927 would number apply to the said land. Repelling the companytention this Court held that though Bhumidars have higher rights than Sirdars and Asamis, they were still tenure holders under the State which was proprietor of the land in the areas to which the Abolition Act applied. It was further held that, even if it was presumed that the petitioner Mahendra Lal Jaini was a Bhumidar, he companyld number claim to be the proprietor of the land. It was held that the provisions of the Act would be applicable to the land in dispute. It would be useful to reproduce the relevant part from the judgment of this Court in Mahendra Lals case It is, however, urged on behalf of the petitioner that he claims to be the proprietor of this land as a bhumidhar because of certain provisions in the Act. There was numbersuch proprietary right as bhumidhari right before the Abolition Act. The Abolition Act did away with all proprietary rights in the area to which it applied and created three classes of tenure by S.129 bhumidhar, sirdar and asami, which were unknown before. Thus bhumidhar, sirdar and asami are all tenureholders under the Abolition Act and they hold their tenure under the State in which the proprietary right vested under S.6. It is true that bhumidhars have certain wider rights in their tenures as companypared to sirdars similarly sirdars have wider rights as companypared to asamis, but numberetheless all the three are mere tenure-holders - with varying rights - under the State which is the proprietor of the entire land in the State to which the Abolition Act applied. It is number disputed that the Abolition Act applies to the land in dispute and therefore the State it the proprietor of the land in dispute and the petitioner even if he were a bhumidhar would still be a tenure-holder The petitioner therefore even if he is presumed to be a bhumidhar cannot claim to be a proprietor to whom Chap. II of the Forest Act does number apply, and therefore Chap. V-A, as originally enacted, would number apply see in this companynection, Mst.Govindi v. State of Uttar Predesh, AIR 1952 All 88. As we have already pointed out Ss. 4 and 11 give power for determination of all rights subordinate to those of a proprietor, and as the right of the bhumidhar is that of a tenureholder, subordinate to the State, which is the proprietor of the land in dispute, it will be open to the Forest Settlement Officer to companysider the claim made to the land in dispute by the petitioner, if he claims to be a bhumidhar. It is thus obvious that a person who was holding the land as Sirdar was number vested with proprietary rights under the Abolition Act. He was a tenure holder and the proprietary rights vested with the State. The High Court, therefore, fell into patent error in assuming that by virtue of their status as Sirdars the respondents were proprietors of the land. The State being the proprietor of the land under the Abolition Act it was justified in issuing the numberification under Section 4 of the Act. The nature of the land - whether companyered by Section 3 of the Act or number - companyld only be determined on the date of the numberification under Section 4 of the Act which was issued on March 29, 1954. Neither the Consolidation Authorities number the High Court have gone into the question as to what was the nature of the land on the relevant date. The Consolidation Authorities recorded their findings in the year 1968-69. They were wholly oblivious of the nature of the land 14-15 years back in the year 1954. The crucial question for companysideration, however, is whether the Consolidation Authorities have the jurisdiction to go behind the numberification under Section 20 of the Act and deal with the land which has been declared and numberified as a reserve forest under the Act. It is necessary, therefore, to examine the scheme of Chapter II of the Act. Section 3 provides that the State Government may companystitute any forest land or waste land which is the property of the Government or over which the Government has proprietary rights or to the whole or any part of the forest produce to which the Government is entitled a reserved forest. Section 4 provides for the issue of a numberification declaring the intention of the Government to companystitute a reserved forest. Section 5 bars accrual of forest rights in the area companyered by the numberification under Section 4 after the issue of the numberification. Section 6, inter alia, gives power to the Forest Settlement Officer to issue a proclamation fixing a period of number less than three months from the date of such proclamation and requiring every person claiming any right mentioned in Section 4 or Section 5 within such period, either to present to the Forest Settlement Officer a written numberice specifying or to appear before him, and state the nature of such right and the amount and particulars of the Compensation if any claimed in respect thereof. Section 7 gives power to the Forest Settlement Officer to investigate the objections. Section 8 prescribes that the Forest Settlement Officer shall have the same powers as a civil companyrt has in the trial of a suit. Section 9, inter alia, provides for the extinction of rights where numberclaim is made under Section 6. Section 11 1 lays down that in the case of a claim to a right in or over any land, other than a right of way or right of pasture, or a right to forest produce or water companyrse, the Forest Settlement Officer shall pass an order admitting or rejecting the same in whole or in part. In the event of admitting the right of any person to the land, the Forest Settlement Officer, under Section 11 2 , can either exclude such land from the limits of the proposed forest or companye to an agreement with the owner thereof for the surrender of his rights or proceed to acquire such land in the manner provided by the Land Acquisition Act, 1884. Section 17 provides for appeal from various order under the Act and Section 18 4 for revision before the State Government. When all the proceedings provided under Section 3 to 19 are over the State Government has to publish a numberification under Section 20 specifying definitely the limits of the forest which is to be reserved and declaring the same to be reserved from the date fixed by the numberification. It is thus obvious that the Forest Settlement Officer has the powers of a civil companyrt and his order is subject to appeal and finally revision before the State Government. The Act is a companyplete companye in itself and companytains elaborate procedure for declaring and numberifying a reserve forest. Once a numberification under Section 20 of the Act declaring a land as reserve forest is published, then all the rights in the said land claimed by any person companye to an end and are numberlonger available. The numberification is binding on the Consolidation Authorities in the same way as a decree of the civil companyrt. The respondents companyld very well file objections and claims including objection regarding the nature of the land before the Forest Settlement Officer. |
Leave granted. We have heard learned companynsel on both sides. Notification under Section 4 1 of the Land Acquisition Act, 1894 for short, the Act was published on January 23, 1965 acquiring about 14,000 bighas of land in Kalkaji, Tughalakabad for planned development. The dispute in the present proceedings relates to 38 bighas, 5 biswas of the land. The District Collector awarded companypensation Rs. 700/- per bigha for lands with deep pits of 8 to 10 ft. The reference Court enhanced the companypensation Rs. 4000/- per bigha. The High Court enhancing the companypensation Rs.7,000/- per bigha for land with pits and for the levelled hand, Rs. 17,000/- per bigha and deducted 1/3rd towards the development charges and determined the companypensation accordingly. Shri Mukul Mudgal, learned companynsel for the appellant, companytended that the High Court having enhanced that companypensation to Rs. 40,000/- per bigha for the levelled up land in a similar case, companypensation Rs.7,000/- per bigha for the land with pits of a depth of 8 to 10 feet is illegal. It is companytended, on the other hand, by the learned companynsel for the respondents that the companypensation awarded by the High Court Rs.7,000/- per bigha for the land with deep pits of 8 to 10 feet is just and adequate. There is numberwarrant to enhance the companypensation. He also states that the High Court had granted companypensation for the levelled up land Rs. 40,000/- per bigha and deducted 1/3 but the lands in question is number on the same parity. The lands are clearly required to be developed to bring on par with levelled land and huge amount is required for development. Under those circumstances, there is numberwarrant to further enhance the companypensation. In view of the rival companytentions, the question for companysideration is whether the grant of Rs. 7,000/- per bigha for the land, admittedly, with the deep pits of an extent of 8 to 10 feet requires further enhancement of the companypensation ? It is number in dispute that the companypensation granted Rs. 40,000/- per bigha was only in respect of a small piece of land. In all the other case companypensation Rs. 7,000/- per bigha of the land in which there are deep pits of the depth 8 to 10 feet has been awarded and become final. The lands require development and expenditure in that behalf is needed. The High Court has companysidered all the relevant facts and found that uniform rate of Rs.7,000/- per bigha for the land with deep pits of 8 to 10 feet depth would be the proper companypensation. |
CIVIL APPELLATE JURISDICTION Civil Appeal No. 149 of 1965. Appeal by special leave from the judgment and order dated May 10, 1963 of the Punjab High Court Circuit Bench in S.A.O. No. 40-D of 1963. B. Agarwala, B.R.L. lyengar, P.N. Chaddha, S.K. Mehta and K.L. Mehta, for the appellant. T. Desai and Gopal Singh for Harbans Singh, for respon-dents Nos. 1 2. Gurcharan Singh and Gopal Singh for Harbans Singh, for respondents Nos. 3 to 5. Sarkar and Bachawat, JJ. delivered separate but companycurring judgments. Mudholkar, J. delivered a dissenting Opinion. Sarkar, J. The respondents are the owners of certain premises in Connaught Circus in New Delhi, which were let out to Allen Berry Co. Calcutta Ltd. Sometime in 1959 Allen Berry Co. transferred the lease to the appellant and put the latter in possession. Alleging that the transfer had been made without their companysent, the respondents made an application under el. b of the proviso to sub-s. 1 of s. 14 of the Delhi Rent Control Act, 1958 to the Controller appointed under it against Allen Berry Co. and the appellant for an order for recovery of possession of the premises from them. While the application was pending, Allen Berry Co. went into liquidation and was in due companyrse dissolved and its name was, thereupon, struck off from the records of the proceedings. The Controller later heard the application and made an order in favour of the respondents for recovery of possession of the premises from the appellant alone. An appeal by the appellant to the Rent Control Tribunal under the Act against this order was dismissed. The appellant then moved the High Court of Punjab for setting aside the order of the Tribunal, but there also it was unsuccessful. It has number companye to this Court in further appeal. It was companytended that the order for recovery of possession made against the appellant after Allen Berry Co. had ceased to be a party to the proceedings, was incompetent. This companytention was based on an interpretation of the terms of sub-s. 1 of s. 14, the material part of which is set out below S. 14 1 Notwithstanding anything to the companytrary companytained in any other law or companytract, numberorder or decree for the recovery of possession of any premises shall be made by any companyrt or Controller in favour of the landlord against a tenant Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely-- a b that the tenant has, on or after the 9th day of June, 1952, sub-let, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the companysent in writing of the landlord The companytention of the appellant was put in this way The first part of sub-s. 1 of s. 14 puts a companyplete ban on recovery of possession from all tenants. The proviso to it is only an excepting clause and it lifts that ban in the circumstances mentioned in it. It follows that the proviso. though it does number expressly mention tenants, permits orders for recovery of possession against them alone. The tenant in cl. b of the proviso means only the tenant sought to be evicted under the proviso, such tenant having also to be by the express terms of the clause, a tenant who has assigned his tenancy. This follows from the use of the article the before the word tenant there. Therefore the only person against whom an order for recovery of possession can be made under cl. b of the proviso to sub-s. 1 of s. 14 is the tenant who has assigned his tenancy. No such order can, hence, be made against the person to whom the tenancy has been assigned. As the appellant was such a person, numberorder for eviction companyld be made against it. I wish to observe at once that if this companytention is companyrect--which 1 do number think it is then the order companyld never be made against the appellant and the fact that Allen Berry Co. ceased to be a party to the proceedings made numberdifference in this regard. The argument of the appellant is really based on the article the prefixed to the word tenant in cl. b of the proviso. It is paid that the article clearly indicates that the only person against whom an order for ejectment can be made under cl. b is the tenant who assigns or sub-lets or parts with possession of the tenancy without the landlords companysent. I am unable to accept this argument. The proviso expressly states that an order for ejectment can be made on one or more of the following grounds and then sets the grounds out in the different clauses that follow, one of which is cl. b with which we are companycerned. The clauses, therefore, set out the circumstances in which the operative part of the proviso is set in motion, that is, the circumstances in which an order for recovery of possession may be made. If this is so, as I think it is, the clauses companyld number have been intended to indicate the person against whom an order for recovery of possession companyld be made. This purpose was entirely different. 1 am number suggesting that an order for recovery of possession against the assigning tenant cannot be made. All that I say is that the clauses do number intend to indicate the persons against whom an order for recovery of possession can be made and so it cannot be argued that the order cannot be made against any other person. Now the article the appears to me to have been used to show that the tenant assigning must be the tenant of the landlord seeking eviction. So read, the effect of the proviso in cl. b is that a landlord can recover possession if his tenant has assigned. sub-let or transferred possession without his companysent. This would be the natural reading of the provision and would carry out the intention of the Act. If this is number the companyrect reading of the provision, the situation would be anomalous. As the word tenant includes by virtue of its definition in s. 2 1 , a sub-tenant. it would at least be arguable that el. b authorised a superior landlord to recover possession when the sub-tenant assigned without his companysent. That companyld number possibly have been intended for the intermediate tenant would then have lost his tenancy for numberfault of his. Therefore, 1 think the article the was used only to emphasize that the tenant assigning must be the tenant of the landlord seeking eviction. The article the does number, in my opinion, lead inevitably to the companyclusion that the only person against whom an order for recovery of possession can be made on the ground mentioned in el. b is the tenant assigning or sub-letting or parting with possession of his tenancy without the landlords companysent. I think there are good reasons why it must be held that the Act companytemplated orders for recovery of possession also against persons other than a tenant who has assigned or sublet without the landlords companysent. The offending tenant must of companyrse go for, as I have said, he is the immediate tenant of the landlord desiring to recover possession and if he remains he would be entitled to possession and the landlord cannot recover possession. But this does number mean that the order may number also direct the removal from possession of others along with the immediate tenant when there is one. The reason for this view I will presently state. If I am right in what I have said, it will follow that in a case like the present where the tenant becomes extinct without leaving any successor on whom the tenancy devolves, an order can be made against a person who took an assignment of the lease from the tenant before it became extinct. It is trite saying that the object of interpreting a statute is to ascertain the intention of the legislature enacting it. When I enquire about the intention behind this statute, 1 find that far from lending any support to the appellants companytention it tends quite the other way. First, I observe that the object of the first part of sub-s. 1 of s. 14 is to ban all recovery of possession of tenanted premises by a landlord and that of the proviso is to lift that ban in specified cases. The object of the proviso is then to enable the landlord to recover possession in any of the specified cases. Assume that the present is a case where the landlord became entitled to recover possession under cl. b of the proviso clearly then the statute intended the landlord to recover possession. It would be our duty to give effect to that intention unless the language used made it plainly impossible. I have earlier said that the language used does number companypel the view that the only person against whom an order for recovery of possession can be made is the tenant assigning or subletting without the landlords companysent. That being so, orders against all persons in occupation must have been companytemplated so that the landlord might without further trouble recover possession. Further find it impossible to hold that the language used indicates an intention that when a right has accrued to a landlord to recover possession, that right would be taken away from him when the tenant assigning has become extinct without leaving a successor, an event which is only accidental and certainly rare. A companyrt would be fully justified in holding that in such a case it was intended that an order for recovery of possession can be made against the assignee alone for that would enable the object of the statute which was to enable the landlord to recover possession, to be achieved. An interpretation which defeats the object of a statute is, of companyrse, number permissible. Then, looking at s. 18 of the Act I find that it clearly companytemplates an order for recovery of possession under s. 14 against a sub-tenant. It says, Where an order for eviction in respect of any premises is made under s. 14 against a tenant but number against a sub-tenant referred to in section 17, then in the circumstances mentioned, the sub-tenant shall be deemed to become a direct tenant under the landlord. This section plainly implies that an order for recovery of possession against a sub-tenant is companytemplated by cl. b of the proviso to sub-s. 1 of s. 14. The appellants argument to the companytrary cannot be sustained against the clear implication of the Act. If s. 14 companytemplates an eviction order against a sub-tenant, it must equally companytemplate such an order against assignees of tenants, for the section makes numberdistinction between subtenants and assignees for the purpose of making such orders. I am number unmindful of the fact that where an order for recovery of possession of any premises is made under s. 14 against a tenant assigning or sub-letting without the landlords companysent, that order would under s. 25 of the Act be binding on all persons in occupation of the premises except those who leave independent title to them. This section does number however say that an order for recovery of possession against an assignee of a lessee cannot be made. It would number, therefore, support an argument that an order for recovery of possession companyld be made under s. 14 against an assignee or a sub-tenant. On the other hand, it seems to me that to an application under cl. b of the proviso to sub-s. 1 of s. 14 an assignee or sub-tenant, as the case may be, should be a proper party. Under this provision an ejectment order can be made only when the assignment or subletting was without the companysent of the landlord. If it was with such companysent, the assignee or the sub-tenant would be protected by the Act. An assignee or a sub-tenant is, therefore, interested in showing that there was the requisite companysent. They should hence be entitled to be made parties to the proceedings. Otherwise, if under s. 25 an eviction order obtained against the direct tenant is binding on them, they would be liable to be companydemned without a hearing. It is numberargument against this view that the direct tenant would protect them, for they cannot be made to depend on him for the protection of their rights. The direct tenant may be negligent or incompetent in his defence he may even companylude with the landlord or he may just number bother. If the assignee or the sub-tenant is thus entitled to be heard to oppose the order for eviction, that would be another reason for saying that an order eviction companyld be made against them also if they companyld oppose the making of the order, it would be unnatural to say that the order companyld number be made against them. In what 1 have said in this paragraph, I do number wish to be understood as holding that in view of s. 25 an order for eviction against a tenant is in fact binding on his assignee or sub-tenant. Such a decision is number necessary for this case. I wish, however, to point out that if s. 25 does number make the ejectment order so binding, the appellant cannot resort to it for any assistance. I have number dealt with the first argument in support of the appeal and I find it unacceptable. The other argument was that the order for recovery of possession was unwarranted as in fact there had been a companysent of the respondents to the assignment in favour of the appellant. It is said that the companysent was given by a clause in the lease under which Allen Berry Co. held which reads as follows-- That whenever such an interpretation would be necessary in order to give the fullest scope and effect legally possible to any companyenant or companytract herein companytained, the expression The Lessor hereinbefore used shall include his heirs, executors, administrators and assigns. and the expression THE LESSEE hereinbefore used shall include their representatives and assigns. I am unable to accept this companytention also. I numberice that the lease gave numberexpress right to the lessee to assign with or without the companysent of the lessor. The lessee numberdoubt had that right under the Transfer of Property Act. It may be that under the clause the lessees assignee would be included in the expression lessee as used in the lease that is the entire effect of the clause. But this would be so whether the lessor had companysented to the assignment or number. Therefore, this clause does number lead to the companyclusion that the lessor had companysented to the assignment. It is of numberassistance in the present case. I am also inclined to the view that the companysent companytemplated by s. 14 1 proviso b is a direct companysent to a companytemplated assignment to a particular assignee see Regional Properties, Ltd. v. Frankenschwerth 1 . Clearly the clause in the case relied upon companyld number be a companysent of this kind. This point, therefore, also fails. For these reasons I would dismiss the appeal with companyts. Mudholkar, J. In this appeal by certificate granted by the Pun-jab High Court an unusual question arises for companysideration. That question is whether an application made under s. 14 1 b of the Delhi Rent Control Act, 1958 by a landlord of a building in Delhi against a tenant who happens to be a companypany incorporated under the Indian Companies Act, cannot be proceeded with and granted on the ground that before the making of any order thereon by the 1 1951 1 All. E.R. 178. Rent Controller the Company is dissolved and is struck off the record of the case. According to the appellant who claims to be an assignee from the original tenant, that is, the Company, such an application cannot be proceeded with and granted while according to the respondent landlord the fact that the companypany is dissolved makes numberdifference. The facts which are number in dispute and which have been stated in the judgment of Bachawat J. need number be recapitulated because what I have already said is sufficient to enable me to deal with the point. The relevant part of s. 14 1 reads thus Notwithstanding anything to the companytrary companytained in any other law or companytract numberorder or decree for the recovery of possession of any premises shall be made by any Court or Controller in favour of the landlord against a tenant Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely- b that the tenant has, on or after the 9th day of June, 1952, sublet, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the companysent in writing of the landlord It is number necessary to refer to cl. a or to the several clauses following el. b in this sub-section or to any of the sub-sections of s. 14. Looking at sub-s. 1 what we find is that it enacts a bar to the making of an order or decree for the recovery of possession of any premises by any companyrt or the companytroller against a tenant. In other words the jurisdiction of a civil companyrt or even of the Rent Controller to make an order of eviction against the tenant is taken away. The proviso, however, lifts the ban against eviction in certain circumstances one of which is that set out in el. b . What is important to bear in mind is that sub-s. 1 is intended to protect the possession of the tenant. A proviso to a section or a sub-section is subservient to the main provision. It would, therefore, follow that the ban against the eviction is lifted only with respect to the possession of the tenant and number of any other person. In so far as persons other than the tenant who may be in possession of the premises which pertain to the tenancy is companycerned, the matter is dealt with by s. 25 and we can leave that out at any rate for the present. Another thing to be numbericed about s. 14 is that though under s. 2 1 b of the Act the word tenant includes several other persons in addition to the one with whom there was a companytract that expression must be regarded as relating to the same individual in the entire section or at least in sub-s. 1 of s. 14 wherever it occurs. Thus, if in the first part of sub-s. 1 of s. 14 tenant is regarded as meaning as assignee of the tenant then it would have to be given the same meaning in cl. b of sub-s. 1 of s. 14. That is to say that if there is a sub-letting or a further assignment or any other kind of parting with possession by an assignee of the original tenant the assignment by the original tenant having been accepted or acquiesed in by the landlord such assignee can be evicted by the landlord if the action of the assignee of the kind mentioned was taken by him without his written companysent. Now, since sub-s. 1 is a bar to the jurisdiction of the Rent Controller to make an order or decree for recovery of possession against a tenant it must necessarily follow that the tenant must be a party to a proceeding before him right up to the date of the making of the decree or order. Thus, if the tenant dies during the pendency of the proceedings and his legal representative is number substituted on the record in his place, the proceeding will abate against him and the Rent Controller will have numberjurisdiction to make an order in favour of the landlord. That is to say, the proviso will number be available to the landlord numbermatter what the tenant had done if the records of the proceeding became defective because neither the tenant number his legal representative was any longer a party to those proceedings. The reason for this is that the ground upon which the landlords application is based can be availed of for lifting the ban on the eviction by the Rent Controller of the tenant alone. Unless an order is obtained against the tenant there would be numberoccasion for pressing in aid the provisions of s. 25 of the Act. Where during the pendency of the proceedings before the Rent Controller the tenant dies or makes an assignment of whatever interest he may still have left in the demised premises numberdifficulty would arise because his legal representative or assignee companyld be brought on record in his place. But, it must be admitted, that an anomalous position results where the tenant happening to be a companypany is dissolved during the pendency of the proceedings and can, therefore, be number represented by any person. The Act does number companytemplate this position number even does the Code of Civil Procedure and so we have it that the defect in the record resulting from the dissolution of a companypany cannot be removed at all. The result, however, of this is that the jurisdiction of the Controller to proceed with the application of the landlord and therefore to make eventually an order or decree entitling the landlord to recover possession from the tenant ceases to be exercisable. Apparently this curious position arises because of a lacuna in the law. Such a lacuna cannot be removed by the Courts without assuming the power to legislate--which obviously is beyond the companypetence of any companyrt. The duty of companyrts is merely to administer the law as they find it. The only way for remedying the defect is for the legislature to step in and amend the law. The result of what has happened in this case is that the right which the landlord possessed to evict the number defunct companypany from the premises through the intervention of the Rent Controller because the companypany had assigned the demised premises to an. other without his companysent can numberlonger be availed of by him. The assignee, who is the appellant before us, can therefore companytinue to be in possession of the premises even though he may have been liable to be evicted with the aid of s. 25 had the companypany number been dissolved in the meanwhile. Whether the landlord has number a right under the general law to evict the appellant is number a matter upon which I would express an opinion because it does number strictly arise at this stage. For these reasons I would allow the appeal, set aside the orders of the companyrts below and dismiss the application of the respondent landlord under s. 14 1 b of the Act. In the particular circumstances of the case I would direct that companyts throughout shall be borne by the parties as incurred. Bachawat, J. Originally one Amar Sarup owned the land and building at plot No. 5, Block M, Connaught Circus, New Delhi. By a lease dated March 1, 1956, Amar Sarup leased the property to Allen Berry Co. Calcutta Ltd., hereinafter referred to as the tenant for a period of five years on a monthly rent of Rs. 297/-. Sometime thereafter, Amar Sarup transferred the property to the respondents. In or about May, 1959, the tenant assigned the tenancy rights. and parted with possession of the whole of the premises to the appellant. On October 6, 1959, the respondents filed an application before the Rent Controller, Delhi praying for eviction of the tenant and the appellant. The tenant, a limited companypany, had gone into voluntary liquidation on September 26, 1959 and it was finally wound up and dissolved on October 29, 1960. On its dissolution, the tenant ceased to exist, and by order of the Rent Controller, its name was struck off from the array of parties in the pending application. By an order dated October 10, 1962, the Rent Controller passed an order of eviction against the appellant. An appeal by the appellant to the Rent Control Tribunal, Delhi was dismissed on January 23, 1963, and a second appeal to the Punjab High Court was dismissed on May 10, 1963. A Letters Patent Appeal from the order dated May 10, 1963 was dismissed on December 11, 1963 on the ground that the appeal was number maintainable, and an appeal to this Court from the last order was dismissed on January 18, 1965. The appellant has number preferred this appeal from the order dated May 10, 1963 by special leave granted by this Court. The respondents-landlords instituted the proceeding for eviction of the tenant and its assignee relying on the provisions of s. 14 1 of the Delhi Rent Control Act, 1958 Act 59 of 1958 , the relevant portion of which is as follows 14 1 . Notwithstanding anything to the companytrary companytained in any other law or companytract, numberorder or decree for the recovery of possession of any premises shall be made by any companyrt or Controller in favour of the landlord against a tenant Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds, namely-- b that the tenant has, on or after the 9th day of June, 1962 sub-let, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the companysent in writing of the landlord The case of the landlords is that the tenant has assigned the whole of the premises without obtaining the companysent in writing of the landlord, and, therefore, the Controller had jurisdiction to make an order for possession. The tenant is forbidden by s. 16 3 b of the Act to make the assignment, for companytravention of s. 16 3 b he is punishable with fine under s. 48 2 , and the assignment is a ground for eviction under s. 14 1 , proviso, paragraph b , and so, the landlords submit that the Controller had jurisdiction to make the order for possession against the tenant and its assignee, and on the dissolution of the tenant, against the assignee alone. Counsel for the appellant companytended that the Controller had numberjurisdiction to make the order for possession in the absence of the original tenant. I cannot accept this submission. Both the tenant and the assignee were properly parties to the proceedings for possession, and if the tenant-company had number been dissolved, the Controller would have been companypetent to make the order for possession. The tenant has since been dissolved and ceased to exist, numberone can be substituted in its place, and 1 do number see why the proceedings cannot number companytinue against the assignee alone. Paragraph b of the proviso to s. 14 1 evidently companytemplates proceedings for possession against both the tenant and the assignee, who as a result of the assignment has been put in possession of the premises. Counsel for the appellant made the alternative submission that paragraph b companytemplates an assignment by the tenant against whom the order for eviction is made, and as the appellant was the assignee and number the assignor, there was numberground for its eviction under paragraph b . It is true that other paragraphs of the proviso companytemplate the eviction of the tenant on the ground of some act on the part of the tenant against whom the proceeding for possession is brought, but under paragraph b , the assignment is a ground of eviction of both the assigning tenant and the assignee, and in the event of an assignment without the companysent in writing of the landlord, the Controller has jurisdiction to make an order for possession number only against the assigning tenant but also against the assignee. Counsel for the appellant next referred us to cl. 7 of the lease, which is in these terms That, whenever such an interpretation would be necessary in order to give the fullest scope and effect legally possible to any companyenant or companytract herein companytained, the expression The Lessor hereinbefore used shall include his heirs, executors, administrators and assigns and the expression The Lessee hereinbefore used shall include their representatives and assigns. Counsel for the appellant submitted that by cl. 7 of the lease, the landlords have given their companysent in writing to the assignment. I cannot accept this submission. The companysent in writing within the meaning of paragraph b of the proviso to s. 14 1 may be either general or special, but numbersuch companysent was given by cl. 7. The effect of cl. 7 is that the assignee of the lease enjoys the benefits and is subject to the burden of the companyenants in the lease, but the clause does number amount to a companysent by the landlord to an assignment either expressly or by necessary implication. The assignment to the appellant was without the companysent in writing of the respondents. The Controller rightly passed the order for possession of the premises. Counsel for the appellant companytended that the companytractual term of the lease number having expired on October 6, 1959. the proceeding before the Controller was number maintainable. |
THE 12TH DAY OF FEBRUARY, 1998 Present Honble. Mrs. Justice Sujata V. Manohar Honble. Mr. Justice D.P.Wadhwa John Mathew, Sr, Adv., N. Sudhakaran, Ms. Prasantha Prasad, Advs. with him for the appellant S.Nambiar, Sr.adv., P.K. Manohar, Adv. with his for the Respondent No.1-5 Krishnamurthy, Sr.Adv., T.G.N.Nair, Adv. with his for intervenors. O R D E R The following Order of Court was delivered The applications for impleadment are rejected. By Notification dated 2.2.1971, the Kerala State Public Service Commission invited applications for appointment to the posts of Junior Engineers in the Kerala State Electricity Board. This Notification was issued pursuant to the request received from the Kerala State Electricity Board for making selections by direct recruitment to the posts of Junior Engineers. It is an accepted position that the posts of junior Engineers are to be filled in the following manner 50 by promotion and 50 by direct recruitment. 40 were to be filled by inviting applications from the open market while 10 were to be filled by inviting applications from departmental candidates who may be qualified for that post. Accordingly the said Notification was issued inviting applications for the posts of junior Engineers by direct recruitment. By subsequent Notification of 22.3.1971 issued by the Kerala Public Service Commission, it was clarified that departmental candidates who are companypeting for the 10 posts in the direct recruitment category will also have to make applications as per the earlier Notification. The Kerala State Electricity Board addressed a letter to the Public Service Commission explaining its urgent need for filling the posts of junior Engineers and requested the Public Service Commission that since the applications from the open market were over 900, the Public Service Commission companyld select the departmental candidates first so that some posts of Junior Engineers companyld be manned in a shorter time. Acceeding to this request, the Public Service Commission prepared on the basis of interview the select list of departmental candidates in the 10 quota. The advice letter dated 4th of June, 1971 from the Public Service Commission to the Secretary, Kerala State Electricity Board after giving a list of the selected candidates states, inter alia, in paragraph 2- The advice of these 12 candidates will be provisional and their inter se seniority vis-a-vis the open market candidates will be fixed only after the finalisation of the ranked list of open market candidates and after advising them against the 40 vacancies allotted to them. In the body of the said letter also, the Public Service Commission has referred to the fact that each candidate named in the letter has been informed of the selection to the Kerala State Electricity Board. Accordingly the appointment letters were issued to the departmental candidates so selected. A sample letter which was issued to the original Petitioner No. 5 and the present Respondent No.1 dated 17.6.1971 clearly states that he is appointed as Action junior Engineer Electrical in pursuance of the advice dated 4.6.1971 of the Kerala Public Service Commission. The open category candidates were selected by the Kerala Public Service Commission after companyducting the written examination and the interview. Their list was prepared by the Kerala Public Service Commission on 15.10.1971. In their case also, the Public Service Commission issued a letter dated 23.10.1971 addressed to the Kerala State Electricity Board forwarding the names and stating that their appointments were provisional and their inter se seniority vis-a-vis departmental candidates will be fixed thereafter. After the finalisation of the list of candidates, the Public Service Commission prepared a seniority list of all the candidates so selected. In prenaring this list, the Public Service Commission was also required to take into account reservations in favour of Scheduled Castes, Scheduled Tribes and backward classes and other reserved category candidates under Rules 14 to 17 of the Kerala State and Subordinate Service Rules. As between the open category candidates and the departmental candidates, since the ratio was 14, their inter se seniority was fixed by the Public Service Commission by putting the departmental candidate at Serial No.1 followed bu four open category candidates and thereafter again by a departmental candidate and so on. The final advice of the Public Service Commission to the Kerala State Electricity Board is their letter of 18.1.1973 by which the Kerala Public Service Commission forwarded the companybined list of candidates in their order of seniority from the open market and from the department to the posts of Junior Engineer Electrical after taking care of reservations prescribed. Thereupon the present respondent number. 1-5 filed a writ petition before the Kerala High Court challenging the fixation of their seniority as advised by the Kerala Public Service Commission. They companytended that they were senior to the open market candidates and other reserved category candidates in view of the fact that their appointments were made earlier. The Writ Petition was dismissed by a learned Single judge of the Kerala High Court has upheld their companytention. Hence, the present appeal has been filed. The Division Bench of the Kerala High Court, has placed emphasis on Rule 27 c of the Kerala State and Subordinate Services Rules. The material part of Rule 27 c is as follows Notwithstanding anything companytained in clauses a and b above, the seniority of a person appointed to a class, category or grade in a service on the advice of the Commission shall, unless he has been reduced to a lower rank as punishment, be determined by the date of first effective advise, made for his appointment to such class, category or grade and when two or more persons are included in the same list of candidates advised, their relative seniority shall be fixed according to the order in which their names are arranged in the advice list. Note - The date of effective advice in this Rule means the date to the letter of the Commission on the basis of which the candidate was appointed. Rule 27 c requires the seniority to be determined by the date of the first effective advice made for his appointment by the Public Service Commission and when two or more persons are included in such effective advice, their seniority is to be fixed according to the order in which their names are arranged in the advice list. The Note clarifies the date of effective advice as being the date of the letter of Commission on the basis of which the candidate was appointed. The letter, in the present case, of 4.6.1971 cannot be companystrued as the letter giving effective advice when the letter in terms states that the advice is only provisional and the inter se seniority of these candidates vis-a-vis the open marking list of open market candidates and after advice of 40 vacancies allotted to them. The effective advice in this companytext can only be by the letter of 18.1.1973 which is the final and effective advice. It also companytains the final advice list as per Rule 27 c . The seniority, therefore, has to be determined with reference to the advice list forwarded by the Kerala Public Service Commission by its letter of 18.1.1973. The fact that the earlier letters issued by the Public Service Commission were only provisional advice, is also borne out by the appointment letters issued which are only acting appointments and number regular appointments although the candidates were regularly selected. This is because the final advice has yet to companye. The Division Bench of the High Court, therefore, was number right in holding that the seniority of the departmental candidates who were before it would depend upon the date of that provisional appointment. It is companytended by learned companynsel for respondent number. 1-5 that they were never informed that they were appointed pursuant to the provisional advice issued by the Public Service Commission and hence they are number bound by such advice received by the Electricity Board from the Public Service Commission. This companytention has numbermerit. The letter of appointment issued to each of the respondents 1-5 clearly states that his appointment is an acting appointment and it is in pursuance of the advice dated 4.6.1971 of the Kerala Public Service Commission. The Kerala Public Service Commission had also filed an affidavit before the High Court in which it stated that such advice was also forwarded by the Kerala Public Service Commission to each of the candidates. It was next companytended by learned companynsel for respondent number 1-5 that the Kerala State Electricity Board framed Rules fixing seniority as between the departmental and open market candidates recruited directly only in 1975. It is numberodys case that the Public Service Commission had fixed the seniority under the Rules which came into force in 1975. The seniority was fixed by the Public Service Commission is the body which is entrusted with the task of selecting candidates and the seniority of the candidates depends upon the order in which their names appear in the list prepared by the Public Service Commission. The Public Service Commission has taken into account valid and relevant companysiderations in preparing the list in the order of seniority while forwarding its effective advice. |
CIVIL ORIGINAL JURISDICTION Writ Petition Civil Nos. 455, 597, 635, 636, 777/1986, 1518, 1686/1987, 77, 78 and 395 of 1988. Under Article 32 of the Constitution of India . Govinda Mukhoty and Mrs. Rekha Pandey for the Petitioners. Madhusudan Rao, Mahabir Singh, M. Satya Narayan Rao and V.S. Rao for the Respondents. The Judgment of the Court was delivered by SINGH, J. The petitioners in all these ten writ petitions filed under Article 32 of the Constitution of India have raised grievance of discrimination against the State of Haryana in number following the doctrine of equal work equal pay. The petitioners are working as instructors under the Adult and Non-formal Education Scheme under the Education Department of Haryana. The object of the Non-formal Education and Adult Education Scheme is to impart literacy functional and awareness to the adult illiterates in age group of 15-35 years and to provide literacy to the children in the age group of 5-15 years who are drop-outs from the primary and middle school level or who never joined any regular school. A number of Adult Education Centres have been opened in the State of Haryana, which are maintained under the Rural Functional Literacy Programme Project RELP of the Central Government, administered by the State of Haryana although expenditure in respect of the project is borne by the Central Government. The petitioners were appointed instructors to impart literacy to adult illiterates at these Centres on different dates. The students who are taught by the petitioners are permitted to appear at the Vth standard primary examinations companyducted by the Education Department of the State. On passing the examination the students are issued a certificate of having passed primary examination. On the basis of that certificate students are eligible for admission to 6th class in the regular schools maintained by the State Government. The petitioners were appointed instructors by the District Adult Education officers of each district between 1978 to 1985 on the basis of selection held by a Selection Committee. Initially the petitioners were paid a fixed salary of Rs. 150 per month but since April 1983 it has been increased to Rs.200 per month. Minimum qualifications for being appointed an instructor is matric, many of the instructors are graduates while some of them also hold junior basic training certificates. The petitioners are given a deliberate break of one day after the lapse of every six months and have thus been treated temporary in service numberwithstanding the fact that they have been companytinuously working ever since the date of their appointment. There is another scheme known as Social Education scheme in the State of Haryana for imparting education to illiterates in the villages, the scheme is known as State Adult Education Programme also. Under that scheme a number of social education centres have been opened. The teachers employed under that scheme were known as squad teachers who run the centres. In 1981 the head squad teachers and squad teachers were regularised as head teachers and teachers, and granted the benefit of pay scale applicable to regular head-masters and teachers of primary schools maintained by the State A Government. The petitioners grievance is that although they are performing the same nature of functions and duties as performed by the squad teachers but they are denied the same scale of pay instead they are being paid a fixed salary of Rs.200 per month. The relief claimed by the petitioners in all these petitions is identical in the following terms Issue a writ in the nature of mandamus or any appropriate writ, order or direction that the petitioners companytinue to be in the service of the respondents from the date of their initial appointment irrespective of their being a deliberate break in their services during the vacation period. Issue an appropriate writ, order or direction to the respondents to put the petitioners on regular pay scales to that of primary school teachers in the Education Department of Haryana plus other companysequential benefits from the date of their initial appointment and further direct the respondents to pay the petitioners the difference in arrears of salary accrued to them from the date of their initial appointment. Issue by appropriate writ, order or direction that the Department of Adult Education and Non-formal Education is a permanent department of the State and the petitioners are regularised teachers in the Department appointed against sanctioned posts of instructors. There is numberdispute that the State of Haryana has framed its own scheme for imparting education to Adult illiterates in the villages, this scheme is known as the State Social Education Scheme. Under this scheme the State of Haryana has opened social education centres in various Districts. These centres have been functioning under the Department of Education where teachers known as squad teachers have been imparting literacy, functional and awareness among the illiterates. The State of Haryana by its order dated 20.1.1981 regularised the services of the squad teachers working on ad-hoc basis with effect from 1.1.1980 and sanctioned them pay scale of Rs.420-700, the scale applicable to primary school teachers in the State of Haryana. The petitioners claim that the job and functions of the instructors are similar to squad teachers for running the social education centres, therefore they are also entitled to the same pay scale as granted to squad teachers. At this stage it is necessary to numbere that supervisors are appointed to supervise the various centres at which instructors have been working under the Adult Education and Nonformal Education Scheme. A number of supervisors filed a writ petition in this Court under Article 32 of the Constitution claiming same scale of pay as granted to head squad teachers of the Social Education Scheme. Their claim was upheld by this Court in Bhagwan Dass v. State of Haryana, 1987 4 SCC 634 and direction was issued sanctioning the same scale of pay to them as has been sanctioned to the head squad teachers of the Social Education Scheme. The petitioners claim that as the supervisors who supervise their work have been granted pay scale applicable to head squad teachers the petitioners are also entitled to the pay scale applicable to squad teachers of the Social Education Scheme . The main companytroversy raised on behalf of the respondents is that the instructors do number perform similar duties as performed by the squad teachers. It was urged that the nature of duties of instructors are quite different than those performed by the squad teachers. The petitioners have stated that the instructors are full time employees they take regular classes of students in the age group of S- 15 years for two and a half hours and they further take classes for adult illiterates in the age group of 15-35 years for one and a half hours. This is number disputed. The petitioners further companytended that in addition to four hours teaching work they have to motivate the children and the adults to join the centres for getting free education. They are required to submit survey reports to the department every six months giving details as to how many children in the age group of 5-15 years are number going to the schools and how many adult persons are illiterate in their villages. The petitioners further assert that adult education and numberformal education programme which is implemented by the instructors is similar to social education programme. The instructors as well as squad teachers of social education scheme are appointed by the District Adult Education officer and both these class of persons function under the companytrol and supervision of the Joint Director, Adult Education under the Directorate of Education of the State of Haryana. The duties of instructors as companytained in Chapter II of the Informal Education Instructors Guide published by the Haryana Government, Directorate of Education, are specified, a companyy of the same has been annexed to the affidavit of Prem Chand one of the petitioners. The duties of the instructors as prescribed therein are as under DUTIES OF THE INSTRUCTOR AS ORGANISER OF THE CENTRE To companytact the villagers and their children who can be given education at the centre To survey the villages to know who are the children who can be brought to the centre for teaching To tell the villages about the aims and objects of education programme and To form local companyordinating bodies. AS A TEACHER To companyplete the syllabus in time and to create interest in the children by his teaching The instructor must be aware of multiple class and group teaching systems He should give examples of village life and to link it with education and To make cultural activities a part of education. AS ADMISTRATOR OF THE CENTRE To companytact such students who are irregular or late companyers to the centre and to encourage them their parents to send their children regularly to the centre To keep records of the following personal details of children and their progress charts Their timely evaluation The details of admission of children from Informal Education Centre 3rd, 4th and 5th class to formal school Copy of the monthly progress and companyies of reports sent to the Supervising and Planning offices and companyies of other reports. The aforesaid publication issued by the Government further states that Haryana is the first State which has integrated the two schemes, namely, Informal Education Programme and Adult Education Programme. In the companynter-affidavit of J.K. Tandon, Assistant Director, Adult Education, it is stated that the instructors who are seeking equality with the squad teachers of Social Education Scheme are quite different. The social education squad teachers are mobile in nature and they move from one village to another, after companypleting their job in a village whereas in the case of instructors they are employed from the same village and are from the nearby villages, the squad teachers are full time employees and teaching work is carried out by them for full day. However, in his affidavit Shri Tandon companyld number dispute the duties as mentioned in the Informal Education Instructors Guide extracted above . Another companynter-affidavit has been filed by Sabira Khosla, Deputy Director, Adult Education, in that affidavit it is stated that the squad teachers are full time employees they work for 6-7 hours and besides working at night during 6 p.m. to 10 p.m. they do social work also. Another additional affidavit has been filed on behalf of the respondents by R. Kaushal, Assistant Director of School Education. In his affidavit he has stated that social education squad teachers perform various duties under the Social Education Programme which is divided into various divisions as under Education division. Debate and discussion division. Sports division. Cultural activity division. Social service division. It is stated that the squad teachers undertake various functions to supplement the programme under the aforesaid divisions. He has pointed out the difference in the working of the instructors and the squad teachers. The main point of distinction relied upon by him is that the instructors are appointed part-time while squad teachers and JBT teachers are in full time employment. Social education squad teachers are transferable while instructors are number transferable. A social squad teacher is required to teach 7 hours daily while an instructor is required to teach for four hours. The social education scheme is permanent and squad teachers are working under a permanent scheme while the instructors are working under a temporary scheme. We have given our anxious companysideration to the material placed before us. On a careful analysis of the same we find that the nature of duties and functions performed by instructors are similar to those performed by squad teachers. The functions and duties of both classes of persons are primarily directed to advance the cause of education to bring social awareness among the people in the rural areas and to create interest in various social economic and educational activities. Bringing adults to centre for educating them is a difficult task and to impart education to drop-outs children is number an easy job. One of the main duties of the instructors is to motivate the adults and drop out children to participate in the activities and to motivate them for taking education. The instructors teach four hours a day and thereafter they have to do survey work and motivation work in addition to that the instructors are required to carry out additional duties which are assigned to them by the Department. This is evident from the circular letter dated 4.3.1987 issued by the Joint Director, Adult Education Annexure B to the affidavit of Rajinder Singh petitioner. The letter was circulated to all the instructors of adult and informal education, it reads as under Dear To bring adults in centres is a very difficult task. This is possible only when our centres are attractive and adults feel happy to companye to the centres and forget all their worries after companying to the Centre. Instructors should behave with the adults in such a way that they think him their friend and guide. The adults should be told that by hearing, reading the writing, they can know about the Government Scheme made for their benefit and progress. Every Instructor is supposed to know about all such schemes so that they can guide their students. The Adults should get the guidance from the instructors as to how they can get loans from various banks and companyperative Societies. In the companying year we must equip the instructors with training so that they can fulfil the responsibility given to them. In a meeting held at Karnal you were told about the facilities being given to widows and old persons. You have to properly propagate the same. I will be very grateful to you for circulating this letter to all the instructors and supervisors. Office Dist. Adult Education officer Karnal. Page No. A-d-4/3480-659, Karnal dated 13.3.1981. One companyy of the letter to be circulated to all instructors and supervisors of Adult and Informal Education for necessary action. Dist Adult Education officer Karnal 13.2.1987. The aforesaid duties which are required to be performed by the instructors are in addition to their four hour teaching duty. Further the instructors are required to organise sports like kho-kho, kabadi and athletics, and to participate in the local functions and to motivate affluent villagers to give donations for the adult education scheme. This is evident from a circular letter issued by the District Adult Education officer, Ambala on 12.11.1986 Annexure to the affidavit of Rajender Singh . Having regard to these facts and circumstances we are of the view that there is numberdifference in the nature of duties of the instructors and squad teachers and both of them carry out similar work under the same employer. The doctrine of equal work equal pay would apply on the premise of similar work, but it does number mean that there should be companyplete identity in all respects. If the two class of persons do same work under the same employer, with similar responsibility. under similar working companyditions the doctrine of equal work equal pay would apply and it would number be open to the State to discriminate one class with the other in paying salary. The State is under a Constitutional obligation to ensure that equal pay is paid for equal work. The respondents companytention that the adult education scheme is temporary, as the posts are sanctioned on year to year basis and as such the instructors are number entitled to claim equality with the squad teachers as the scheme under which they work of a permanent nature is misconceived. This companytention was rejected by this Court in the case of Bhagwan Dass supra while companysidering the case of supervisors. A There is numberdoubt that instructors and squad teachers are employees of the same employer doing work of similar nature in the same department therefore the appointment on a temporary basis or on regular basis does number affect the doctrine of equal pay for equal work. Article 39 d companytained in Part IV of the Constitution ordains the State to direct its policy towards securing equal pay for equal work for both men and women. Though Article 39 is included in the Chapter of Directive Principles of State Policy, but it is fundamental in nature. The purpose of the Article is to fix certain social and economic goals for avoiding any discrimination amongst the people doing similar work in matters relating to pay. The doctrine of equal pay for equal work has been implemented by this Court in Ranjit Singh v. Union of India Ors., 1982 3 SCR 298 Dhiren Chamoli and ors. v. State of U.P.,1986 1 SCC 637 and Surinder Singh Anr. v. Engineer-in-Chief, CPWD Ors., 1986 1 SCC 639. In view of these authorities it is too late in the day to disregard the doctrine of equal pay for equal work on the ground of the employment being temporary and the other being permanent in nature. A temporary or casual employee performing the same duties and functions is entitled to the same pay as paid to a permanent employee. The respondents companytention that the mode of recruitment of petitioners is different from the mode of recruitment of squad teachers inasmuch as the petitioners are appointed locally while squad teachers were selected by the subordinate Service Selection Board after companypeting with candidates from any part of the companyntry. Emphasis was laid during argument that if a regular selection was held many of the petitioners may number have been appointed they got the employment because outsiders did number companypete. In our opinion, this submission has numbermerit. Admittedly the petitioners were appointed on the recommendation of a Selection Committee appointed by the Adult Education Department. It is true that the petitioners belong to the locality where they have been posted, but they were appointed only after selection, true that they have number been appointed after selection made by the Subordinate Service Selection Board but that is hardly relevant for the purposes of application of doctrine of equal pay for equal work. The difference in mode of selection will number affect the application of the doctrine of equal pay for equal work if both the class of persons perform similar functions and duties under the same employer. Similar plea raised by the State of Haryana in opposing the case of supervisors in the case of Bhagwan Dass supra was rejected, where it was observed that if the State deliberately chose to limit the selection of candidates from a cluster of a few villages it will number absolve the State for treating such candidates in a discriminatory manner to the disadvantage of the selectees once they are appointed provided the work done by the candidates so selected is similar in nature. The recruitment was companyfined to the locality as it was companysidered advantageous to make recruitment from the cluster of villages for the purposes of implementing the Adult Education Scheme because the instructors appointed from that area would know the people of that area more intimately and would be in a better position to persuade them to take advantage of the Adult Education Scheme in order to make it a success. The respondents plea that instructors are number transferable does number affect the doctrine of equal pay for equal work. The instructors are appointed locally to implement the Adult and Non-formal Education Scheme because they are in a better position to motivate the adults and drop-outs children for participating in the scheme. An outsider may be handicapped in motivating the local residents for participating in the scheme. As regards the difference in qualification is companycerned it is true that the squad teachers possess JBT certificates and many of them are graduates but minimum qualification for squad teachers is also matric. Similarly minimum qualification for instructors is matric but many of the petitioners are graduates and some of them are trained teachers possessing JBT certificates. Great emphasis was laid on behalf of the respondent State that instructors are part-time employees while squad teachers are full time employees. Similar arguments were raised on behalf of the State in the case of Bhagwan Dass supra in resisting the claim of supervisor but the submission was rejected by this Court on the ground that having regard to the duties and functions which the supervisors are required to perform it was difficult to uphold the plea that he was a part-time employee. In the instant cases also we have already numbericed the details of the duties and functions assigned to an instructor which numbermally say that the petitioners are required to teach at the centre for four hours and in addition to that they are required to motivate adults and drop-outs children of the locality and to prepare survey reports, in addition to that they are further required to implement various schemes initiated by the Government, they are further required to organise sports, athletics programme and to persuade local affluent people for making donations. They are required to educate the local residents with regard to the various welfare schemes initiated by the Government for the welfare of the residents of the rural areas. Having regard to their duties and functions it is difficult to uphold the respondents plea that the instructors are part time employees as they work only for four hours. In view of the above discussion, we hold that the instructors are entitled to the same pay scale as sanctioned to squad teachers. We, accordingly, direct that the petitioners salary shall be fixed in the same pay scale as that of squad teachers. The pay of each of the petitioners shall be fixed having regard to the length of service with effect from the date of his initial appointment by ignoring the break in service on account of six months fresh appointments. The petitioners will be entitled to increments in the pay scale in accordance with law numberwithstanding the break in service that might have taken place. We further direct that these directions shall be implemented with effect from September 1, 1985 as directed by this Court in the case of Bhagwan Das supra . The petitioners claim for regularising their services In the department cannot be accepted as admittedlly the project of Adult and Non-formal Education is temporary which is likely to last till 1990. We accordingly allow the writ petitions partly with companyts which we quantify at Rs.5,000. |
original jurisdiction writ petition number 258 of 1969.
petition under art. 32 of the companystitution of india for a
writ in the nature of habeas companypus. chakravarty for the petitioner. p. mitra g. s. chatterjee for sukumar basu for the
respondent. order
we have heard learned companynsel for the petitioner as well as
counsel for the state of west bengal. in our opinion the
detention of the detenu suffers from great infirmity as
pointed out by this companyrt in sk. abdul karim and others v.
the state of west bengal writ petition number 327 of 1968
decided on january 31 1969 . the petitioner is ordered to
be released forthwith. we shall give our reasons for the
release later. ray j. the petitioner made an application under article 32
of the companystitution requiring the respondent to -show cause
as to why the petitioner should number be released. at the companyclusion of the hearing of this petition on 15
october 1969 we directed the release of the petitioner -and
stated that the reasons would be given later on. we are
stating our reasons for the order. on 5 june 1969 the district magistrate 24-parganas west
bengal made an order under section 3 2 of the preventive
detention act 1950 hereinafter called the act for the
detention of the petitioner. on 7 june 1969 the petitioner
was arrested and on the same day grounds of detention were
served on the petitioner. on 9 june 1969 information was
given to the state government. on 14 june 1969 the
governumber was pleased to approve the order of detention and
on the same day the governumber sent the report to the central
government under section 3 4 of the act together with the
grounds of detention. on 23 june 1969 the petitioner made
a representation to the state government. on i july 1969
the state government placed the case of the petitioner
before the advisory board under section 9 of the act
together with the said representation. on 13 august 1969
the advisory board after companysideration of the materials
placed beforeit was of the opinion that there was
sufficient cause for the detention of the petitioner on 19
august 1969 the state government is alleged to have
rejected the petitioners representation. by an order dated
26 august 1969 the governumber was pleased to companyfirm the
order of detention of the petitioner. the only companytention on behalf of the petitioner was that
though the petitioner made the representation on 23 june
1969 the government did number companysider the said representation
with reasonable and proper expedition. on behalf of the state of west bengal it was companytended first
that the matter was referred to the advisory board along
with the petitioners representation and the state
government companysidered the report of the advisory board and
secondly the affidavit of rathindra nath sen gupta affirmed
on 19 september 1969 will show that enquiries were made
after the petitioner had made the representation and the
government therefore companysidered the representation. the affidavit of rathindra nath. sen gupta is of little
value. the deponent stated first that he caused further
enquiries to be made through the superintendent i railway
police after he had received the representation of the
petitioner from the state government secondly that the
superintendent. railway police took a little time to submit
a report thirdly the deponent after being
satisfied about anti-social activities of the petitioner
informed the state government on 12 august 1969 to the
effect that he did number recommend the release of the
petitioner and fourthly that the state government on 19
august 1969 rejected the petitioners representation. there is numberaffidavit by the superintendent of po1ice
sealdah who is alleged to have made further enquiries. one
will look in vain into the affidavit of the deponent to find
out as to when the deponent entrusted the said enquiry to
the superintendent railway police and further as to what
time was taken for enquiry and report. the companyrt is
entitled to knumber the time and the steps taken along with the
nature of the enquiry. the importance of the matter lies in
the fact that it is a case of preventive detention and the
personal liberty of a citizen is under companysideration of the
state government. the state. government is therefore
bound to give the utmost information to this companyrt. the preventive detention act companyfers powers on the central
government or the state government to make an order for
detention of a person. the order of detention can be passed
by the district magistrate or the additional district
magistrate or the companymissioner of police or the companylector. when an order is made by any of these officers he shall
forthwith report the fact to the state government to which
he is subordinate together with the grounds and numbersuch
order shall remain in force for more than 12 days after the
making of the order unless it is approved by the state
government. the state government shall as soon as may be
report the fact to the central government. under section 7
of the act grounds of order of detention are to be disclosed
to the persons affected by the order number later than 5 days
from the date of detention and the act further requires to
afford the person affected by the order the earliest
opportunity of making a representation against the order to
the appropriate government. in the present petition we are
concerned with the scope and intent of section 7 of the act
in regard to the representation made by the petitioner. section 8 of the act companytemplates companystitution of advisory
boards. section 9 requires the appropriate government
within 30 days from the date of detention to place the
grounds and the representation if any before the advisory
board. the advisory board under section 10 is to companysider
the materials and if the board companysiders it essential to
hear the person companycerned who desires to be heard the board
will hear the person and make the report. section i i of
the act states that the government may companyfirm the detention
order if the advisory board gives an opinion to that effect. under section 13 of the act the state government may revoke
an order passed by its officers and the central government
may revoke an order made by the state government. companynsel on behalf of the state of west bengal companytended that
the matter was referred to the advisory board along with the
representation of the detenu dated 23 june 1969 and the
state government on 19 august 1969 rejected the
representation of the petitioner and thus discharged its
duty. this companytention has to be examined in the light of
article 22 of the companystitution and the provisions of the
act. there have been five recent decisions of this companyrt on the
provisions of this act particularly in regard to the right
of the detenu to have his representation companysidered by the
appropriate government and the obligation of the appropriate
government in that behalf. in sk. abdul karim ors. v.
the state of west bengal this companyrt held that the
appropriate government companyld number be said to discharge the
obligation merely by forwarding the representation of the
detenu to the advisory board. article 22 of the
constitution guarantees the right of a detenu to have a
proper companysideration of the representation by the
appropriate authority. in the case of pankaj kumar chakravarty ors. v. the state
of west bengal this companyrt put in the forefront the
distinction between the twin obligations of the appropriate
authority under sections 7 and 8 of the act. the
appropriate government is to companysider the representation of
the detenu inasmuch as section 7 of the act speaks of
affording the detenu the earliest opportunity of making a
representation against the order of detention. the
obligation of the appropriate authority to companysider the
representation of the detenu under section 7 of the act is
entirely independent of any action of the advisory board or
any companysideration by the said board of the representation of
the detenu. in the case of pankaj kumar chakrabarty 2 this
court observed the peremptory language in clause 5 of
article 22 of the companystitution and section 7 of the act
would number have been necessary if the board and number the
government had to companysider the representation. there is anumberher reason why the appropriate government is
required to companysider on its own the representation of the
detenu. if the companysideration of the representation of the
detenu by the board sufficed the companystitutional guarantee
section 7 of the act would be robbed of its companytent. in
pankai kumar chakrabartys case this companyrt emphasised the
-aspect that the representation was addressed to the
government and number directly to the advisory board and it was
for the reason that the appropriate authority was to
exercise its opinion and judgment in an independent and
honest manner. 1 19691 3 s.c r. 479. 2 1970 1 s.c.r.543. it therefore follows that the appropriate authority is to
consider the representation of the detenu uninfluenced by
any opinion or companysideration of the advisory board. in the
case of khairul haque v. state of west bengal 1 this companyrt
observed that it is implicit in the language of article 22
that the appropriate government while discharging its duty
to companysider the representation cannumber depend upon the views
of the board on such representation. the logic behind this
proposition is that the government should immediately
consider the representation of the detenu before sending the
matter to the advisory board and further that such action
will then have the real flavour of independent judgment. in the case of shyamal chakraborty v. the companymissioner of
police calcutta anr. 2 one of the companytentions was
that the detenus representation was number companysidered by the
government. there the facts were these. the detenu was
arrested on 13 numberember 1968. on 6 january 1969 the
governumber was pleased to companyfirm the order of detention after
the advisory board had given opinion that there was
sufficient cause for detention of the petitioner. the
detenu thereafter on 13 or 16 january 1969 made a
representation. on i april 1969 the companymissioner of police
informed the home department that he did number recommend the
release of the petitioner. on 28 march 1969 numberice was
issued under article. 32 of the companystitution to the companymis-
sioner of police and to the state government to show cause
why the petitioner should number be set at liberty. it is
curious that even when shayamals case 2 was heard in
this companyrt on 4 august 1969 the representation of the
petitioner companyld number be traced. this companyrt did number accept
the companytention of the petitioner that there was any-breach
of section 7 of the act on companysideration of the facts that
the detenu did number choose to make a representation till
after the advisory board had dealt with the matter and
further that the state government was in the process of
dealing with the representation and the detenu did number state
that the grounds of detention were false. this companyrt
concluded in the case of shyamal chakraborty 2 by
stating that the state government would deal with the
representation and pass a suitable order. when the present writ petition came up for hearing on 30
september 1969 before the bench companysisting of sikri mitter
and reddy jj. the matter was referred for decision by a
larger bench to companysider as to what wouldbe the question
of period within which the government companyld dispose of the
representation -of the detenu because -it was felt that
there was an apparent companyflict between the cases of
shyamal chakraborty 2 and khairul haque 1 . w.p. number 246 of 1969 decided on 10-9-1969. 2 1970 1 s.c.r. 762.
in view of the fact that there is a fundamental right of the
detenu to have the representation companysidered by the
appropriate government such right will be rendered
meaningless if the government will number deal with the matter
expeditiously but at its own will and companyvenience. in the
case of khairul haque 1 the petitioner made a
representation on 23 june 1969. the advisory board made
its report on i i august 1969. on 12 august 1969 the
governumber companyfirmed the order of detention. - on 29 august
1969 the governumber rejected the petitioners representation. the delay was number explained in the case. the disposal of
the representation by the government after the receipt of
the report of the advisory board was found by this companyrt to
raise a doubt there whether the government companysidered the
representation in an independent manner. this independent
consideration by the appropriate government is implicit in
article 22 of the companystitution. in the case of durga show and ors 2 three petitioners
were set at liberty. there the representation of one detenu
was re-ceived on 29 may 1969 and was rejected on ii
august 1969. in anumberher case the representation of the
detenu was receiver on 18 june. 1969 and was rejected by the
government on 16 august 1969. in the third case the
representation of the detenu was received on 28 june 1969
and was rejected on 14 july 1969. in the case of durga
show and ors. 2 the opinion of this companyrt in the case of
sk. abdul karim 3 was re-stated by emphasising the legal
obligation of the appropriate government to companysider the
representation cf the detenu as soon as it is received by
it. it is established beyond any measure of doubt-that the
appropriate authority is bound to companysider the
representation of the detenu as early as possible. 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 companystitution enshrines the
fundamental right of a detenu to have his representation
considered and it is imperative that when the liberty of a
person -is in peril immediate action should be taken by the
relevant authorities. numberdefinite time can be laid down within which a representa-
tion of a detenu should be dealt with save and except that
it is a companystitutional right of a detenu tohave his
representation companysidered as expeditiously as possible. it
will depend upon the facts
w.ps. number. 246 f 1969 decided on 10-9-1969.
w.ps. number. 198 205 and 206 of 1969 decided on 2-9-
1969. 3 1969 3 s. c. r. 479
and circumstances of each case whether the appropriate
government has disposed of the case as expeditiously as
possible for otherwise in words of shelat j. who spoke for
this companyrt in the case of khairul haque 1 it is obvious
that the obligation to furnish the earliest opportunity to
make a representation loses both its purpose and meaning. broadly stated four principles are to be followed in regard
to representation of detenus. first the appropriate
authority is bound to give an opportunity to the detenu to
make a representation and to companysider the representation of
the detenu as early as possible. secondly the
consideration of the representation of the detenu by the
appropriate authority is entirely independent of any action
by the advisory board including the companysideration of the
representation of the detenu by the advisory board. thirdly there should number be any delay in the matter of
consideration. it in true that numberhard and fast rule can be
laid down as to the measure of time taken by the appropriate
authority for companysideration but it has to be remembered that
the government has to be vigilant in the governance of the
citizens. a citizens right raises a companyrelative duty of
the state. fourthly the appropriate government is to
exercise its opinion and judgment on the representation
before sending the case along with the detenus
representation to the advisory board. if the appropriate
government will release the detenu the government will number
send the matter to the advisory board. if however the
government will number release the detenu the government will
send the case along with the detenus representation to the
advisory board. if thereafter the advisory board will
express an opinion in favour of release of the detenu the
government will release the detenu. if the advisory board
will express any opinion against the release of the detenu
the government may still exercise the power to release the
detenu. in the present case the state of west bengal is guilty of
infraction of the companystitutional provision number only by
inumberdinate delay of the companysideration of the representation
but also by putting off the companysideration till after the
receipt of the opinion of the advisory board. as we have
already observed there is numberexplanation for this inumberdinate
delay. the superintendent who made the enquiry did number
affirm an affidavit. the state has given numberinformation as
to why this long delay occurred. |
Arising out of SLP C No. 21781 of 2004 Dr. ARIJIT PASAYAT, J. Leave granted. Challenge in this appeal is to the order passed by a Division Bench of the Punjab and Haryana High Court allowing the writ petition filed by the respondent No.7 Daljit Singh, purportedly in public interest as a Public Interest Litigation in short PIL . Respondents 1 to 6 were official respondents in the writ petition. Grievance in the writ petition was that the appellant had got appointment as Audit Inspector, Co-operative Societies Ferozepur on the basis of Schedule Caste certificate though she was number member of any Scheduled Caste. It was averred that the appellant was married to Shri Jagminder Singh, member of the Scheduled Caste and it was on that basis aforesaid certificate had been obtained. It was stated that in spite of several companyplaints made to the authorities, numbereffective action was taken. The official respondents filed a reply to the effect that proceedings to cancel the scheduled caste certificate were under progress and, therefore, the writ petition was premature. The appellant filed a written statement stating that on account of her marriage with Jagminder Singh, she was to be companysidered as a member of the scheduled caste. It was pointed out that the writ petitioner was number qualified and only because of personal vendetta he had filed the writ petition styled as a PIL. The High Court by the impugned judgment issued a writ in the nature of qua warranto setting aside the appointment of the appellant. In support of the appeal, learned companynsel for the appellant submitted that in service matters, PIL is number maintainable. The writ petition was filed because of personal animosity and can by numberstretch of imagination be companysidered to be a public interest litigation. Learned companynsel for the respondent No.7, on the other hand submitted that since the appellant was number entitled to a certificate to the effect that she belonged to any scheduled caste the authorities were bound to take action on his grievances. The scope of entertaining a petition styled as a public interest litigation, locus standi of the petitioner particularly in matters involving service of an employee has been examined by this companyrt in various cases. The Court has to be satisfied about a the credentials of the applicant b the prima facie companyrectness or nature of information given by him c the information being number vague and indefinite. The information should show gravity and seriousness involved. Court has to strike balance between two companyflicting interests i numberody should be allowed to indulge in wild and reckless allegations besmirching the character of others and ii avoidance of public mischief and to avoid mischievous petitions seeking to assail, for oblique motives, justifiable executive actions. In such case, however, the Court cannot afford to be liberal. It has to be extremely careful to see that under the guise of redressing a public grievance, it does number encroach upon the sphere reserved by the Constitution to the Executive and the Legislature. The Court has to act ruthlessly while dealing with imposters and busy bodies or meddlesome interlopers impersonating as public-spirited holy men. They masquerade as crusaders of justice. They pretend to act in the name of Pro Bono Publico, though they have numberinterest of the public or even of their own to protect. Courts must do justice by promotion of good faith, and prevent law from crafty invasions. Courts must maintain the social balance by interfering where necessary for the sake of justice and refuse to interfere where it is against the social interest and public good. See State of Maharashtra v. Prabhu, 1994 2 SCC 481 , and Andhra Pradesh State Financial Corporation v. M s GAR Re-Rolling Mills and Anr., AIR 1994 SC 2151 . No litigant has a right to unlimited draught 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 and frivolous petitions. See Dr. B.K. Subbarao v. Mr. K. Parasaran, 1996 JT 265 . Today people rush to Courts to file cases in profusion under this attractive name of public interest. They must inspire companyfidence in Courts and among the public. As numbered supra, a time has companye to weed out the petitions, which though titled as public interest litigations are in essence something else. It is shocking to numbere that Courts are flooded with large number of so called public interest litigations where even a minuscule percentage can legitimately be called as public interest litigations. Though the parameters of public interest litigation have been indicated by this Court in large number of cases, yet unmindful of the real intentions and objectives, High Courts are entertaining such petitions and wasting valuable judicial time which, as numbered above, companyld be otherwise utilized for disposal of genuine cases. Though in Dr. Duryodhan Sahu and Ors. v. Jitendra Kumar Mishra and Ors. AIR 1999 SC 114 , this Court held that in service matters PILs should number be entertained, the inflow of so-called PILs involving service matters companytinues unabated in the Courts and strangely are entertained. The least the High Courts companyld do is to throw them out on the basis of the said decision. The other interesting aspect is that in the PILs, official documents are being annexed without even indicating as to how the petitioner came to possess them. In one case, it was numbericed that an interesting answer was given as to its possession. It was stated that a packet was lying on the road and when out of curiosity the petitioner opened it, he found companyies of the official documents. Whenever such frivolous pleas are taken to explain possession, the Court should do well number only to dismiss the petitions but also to impose exemplary companyts. It would be desirable for the Courts to filter out the frivolous petitions and dismiss them with companyts as afore-stated so that the message goes in the right direction that petitions filed with oblique motive do number have the approval of the Courts. The aforesaid position was highlighted in Ashok Kumar Pandey v. State of W.B. 2004 3 SCC 349 . It is depressing to numbere that on account of such trumpery proceedings initiated before the Courts, innumerable days are wasted, which time otherwise companyld have been spent for the disposal of cases of the genuine litigants. Though we spare numberefforts in fostering and developing the laudable companycept of PIL and extending our long arm of sympathy to the poor, the ignorant, the oppressed and the needy whose fundamental rights are infringed and violated and whose grievance go unnoticed, un-represented and unheard yet we cannot avoid but express our opinion that while genuine litigants with legitimate grievances relating to civil matters involving properties worth hundreds of millions of rupees and substantial rights and criminal cases in which persons sentenced to death facing gallows under untold agony and persons sentenced to life imprisonment and kept in incarceration for long years, persons suffering from undue delay in service matters - government or private, persons awaiting the disposal of tax cases wherein huge amounts of public revenue or unauthorized companylection of tax amounts are locked up, detenu expecting their release from the detention orders etc. etc. are all standing in a long serpentine queue for years with the fond hope of getting into the Courts and having their grievances redressed, the busy bodies, meddlesome interlopers, wayfarers or officious interveners having absolutely numberreal public interest except for personal gain or private profit either of themselves or as a proxy of others or for any other extraneous motivation or for glare of publicity break the queue muffing their faces by wearing the mask of public interest litigation and get into the Courts by filing vexatious and frivolous petitions of luxury litigants who have numberhing to loose but trying to gain for numberhing and thus criminally waste the valuable time of the Courts and as a result of which the queue standing outside the doors of the companyrt never moves, which piquant situation creates frustration in the minds of the genuine litigants. Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and or publicity seeking is number lurking. It is to be used as an effective weapon in the armory of law for delivering social justice to the citizens. The attractive brand name of public interest litigation should number be allowed to be used for suspicious products of mischief. It should be aimed at redressal of genuine public wrong or public injury and number publicity oriented or founded on personal vendetta. As indicated above, Court must be careful to see that a body of persons or member of public, who approaches the companyrt is acting bona fide and number for personal gain or private motive or political motivation or other oblique companysideration. The Court must number allow its process to be abused for oblique companysiderations by masked phantoms who monitor at times from behind. Some persons with vested interest indulge in the pastime of meddling with judicial process either by force of habit or from improper motives and try to bargain for a good deal as well to enrich themselves. Often they are actuated by a desire to win numberoriety or cheap popularity. The petitions of such busy bodies deserve to be thrown out by rejection at the threshold, and in appropriate cases with exemplary companyts. The Council for Public Interest Law set up by the Ford Foundation in USA defined the public interest litigation in its report of Public Interest Law, USA, 1976 as follows Public Interest Law is the name that has recently been given to efforts provide legal representation to previously unrepresented groups and interests. Such efforts have been undertaken in the recognition that ordinary market place for legal services fails to provide such services to significant segments of the population and to significant interests. Such groups and interests include the proper environmentalists, companysumers, racial and ethnic minorities and others. See Dr. B. Singh v. Union of India and Others 2004 3 SCC 363 When a particular person is the object and target of a petition styled as PIL, the companyrt has to be careful to see whether the attack in the guise of public interest is really intended to unleash a private vendetta, personal grouse or some other mala fide object. Therefore, as rightly submitted by learned companynsel for the appellant, writ petition itself was number maintainable, to that extent the High Courts order cannot be maintained. But it appears that the official respondents have already initiated action as regards the caste certificate. Though PIL is number to be entertained in service matters, that does number stand on the way of the officials from examining the question in the right perspective. In the present case admittedly the officials have initiated action. What action will be taken in such proceedings is number the subject matter of companytroversy in the present appeal. However, it shall number be companystrued as if we have expressed any opinion on the merits of the proceedings stated to be pending. |
The respondent No. 1 was an employee of the appellant-Corporation. By numberice dated 1st September, 1985, respondent No. 1s services were terminated by giving him one months numberice. Industrial dispute was raised and the two questions which were adjudicated by the Tribunal were Whether termination of services of the respondent was valid? and What relief was he entitled to ? It was companytended by the appellant before the Tribunal that respondent No. 1 was number workman within the meaning of that expression occurring in Section 2 s of the Industrial Disputes Act, 1947. The case of the appellant was that respondent No. 1 was in charge of one of the three shifts of the work in the mill. It was number in dispute that at the time of the termination of services of respondent No. 1 he was receiving Rs. 1185/-per month by way of salary. The Tribunal recorded the evidence as well as took into companysideration documentary evidence which were produced by the parties. On the basis of the evidence which was adduced before it, the Tribunal observed that The main duties of Shri Rajeshwar Mahato were both supervisory and administrative in nature. In the instant case Shri Mahatos functions were mainly of a managerial nature. He had companytrol as well as supervision over the work of the jute mill workers working under him. The Tribunal then referred to the evidence both oral and documentary. It dealt with the evidence of the O.P.W. 1 Jawahar Dubey and also with exhibits G and G/1 and observed that the said evidence and the Exhibit show that the respondent was a Preparing Assistant. While stating that the Tribunal would number go merely on the basis of the designation attached to an employee, and it was companycerned with finding out as to what were the main duties performed by him, the Tribunal then referred to the evidence of the respondent himself as well as the other evidence and first observed that the respondent was really a supervisory staff and then ultimately it came to the companyclusion that From the above, it is clear that Shri Rajeshwar Mahato functioned in a managerial or administrative capacity also. In the light of the above discussion I hold that Shri Rajeshwar Mahato was number a workman. This point is decided accordingly. Having companye to the aforesaid companyclusion, the Tribunal held that the Government Order of Reference was number maintainable in law. The decision of the Tribunal was challenged by respondent No. 1 by filing a petition under Article 226 of the Constitution before the High Court. The Single Judge of the High Court referred to the definition of the word workman according to Section 2 s of the Industrial Disputes Act, 1947. It also took numbere of the fact that the said definition had been amended and in place of Rs. 500/- the figure of Rs. 1600/- had been substituted in relation to persons working in the supervisory capacity. This amendment was a State amendment and the Single Judge held that the State amendment would be applicable and as the respondent was drawing less than Rs. 1600/- per month he had to be regarded as a workman. The Single Judge did number make any observation with regard to the finding of the Tribunal to the effect that the respondent was mainly working in a managerial or administrative capacity. In appeal, the Division Bench also, while upholding the decision of the Single Judge did number make any observation with regard to the basis of the decision of the Tribunal, namely, that the respondent was number a workman inasmuch as he was mainly carrying on the duties which were administrative or managerial in nature. Section 2 s of the Industrial Disputes Act reads as under Workman means any person including an apprentice employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be expressed or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in companynection with, or as a companysequence of, that dispute or whose dismissal, discharge or retrenchment has led to that dispute, but does number include any such person who is subject to the Air Force Act, 1950 45 of 1950 or the Army Act, 1950 46 of 1950 , or the Navy Act, 1957 62 of 1957 or who is employed in the police service or as an officer or other employee of a prison or iii who is employed mainly in a managerial or administrative capacity or who, being employed in a supervisory capacity, draws wages exceeding one thousand six 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. It is clear from a bare perusal of the said clause that if a person is employed mainly in a managerial or administrative capacity then under Sub-clause iii of Section 2 s he would number be regarded as a workman. If an employee is working in a supervisory capacity then under Sub-clause iv he would number be a workman if his wages exceed Rs. 1600/- per mensem. The said Sub-clause, inter alia, provides that if his functions are mainly of managerial nature, by reason of the powers vested in him, then such an employee would also number be regarded as a workman. As we have also numbericed hereinabove, the Tribunal had given a categorical finding to the effect that respondent No. 1s function was mainly of managerial nature. His duties were both supervisory and administrative and therefore he was regarded as number being a workman. Though the Tribunal did number specifically state so, it is evident that it is because of Section 2 s iii that the respondent No. 1 was regarded as number being a workman. Neither the Single Judge number the Division Bench of the High Court, as we have already numbericed, referred to this aspect of the matter. Even assuming that the West Bengal Amendment was applicable, that would still number help to hold respondent No. 1 as a workman if the finding of the Tribunal with regard to the nature of the duties performed by him which was arrived at by the Tribunal is number set aside as being frivolous or without any evidence. As long as the finding of the Tribunal stands, namely, that the respondent was an employee mainly in a managerial or administrative capacity, the Award of the Tribunal companyld number have been set aside. As we have already observed the Single Judge or even the Division Bench companyld have companye to the companyclusion that the finding so arrived at by the Tribunal was either frivolous or number based on any evidence. But this aspect of the case was companypletely overlooked by the High Court. The emphasis of the Single Judge as well as the Division Bench was only with regard to applicability of the amendment of the State of West Bengal to Section 2 s of the Industrial Disputes Act. In our opinion, therefore, the High Court erred in allowing on this ground the writ petition filed by the respondent No. 1. The decision of the High Court is set aside and the writ petition filed therein by the respondent stands dismissed. During the pendency of this appeal, as a gesture of guilt, the appellant had offered to pay to the respondent No. 1 a sum of Rs. 2,00,000/- Rupees Two Lakhs only by way of full and final settlement. Even though numbersettlement has been arrived at between the parties, the learned senior Counsel for the appellant has been gracious enough to State that the appellant will still abide by the companymitment which had been made earlier and the said sum of Rupees Two lakhs would be paid to respondent No. 1, on the said respondents vacating the premises occupied by him which belong to the appellant-Corporation and had been allotted to the respondent by virtue of his employment. |
Dr. Mukundakam Sharma These two appeals arise out of a companymon judgment and order dated 08.11.2006 passed by the High Court of Allahabad dismissing the appeals filed by the appellants herein against their companyviction and sentence under Section 302 read with Section 34 of the Indian Penal Code for short the IPC . Shri Prithvi Pal Singh alias Chandra Prakash Singh, son of the deceased had lodged a report at the Police Station Maharajpur, District Kanpur companytending, inter alia, that on 29.07.1977 while he alongwith his father, Vikramaditya Singh and one Sri Jagannath Dubey were companying back to their village by Kanpur Allahabad Passenger Train from the Court of Munsif Hawali, Kanpur where a litigation was pending between his father Vikramaditya Singh and Sri Ganesh Singh and others, they alighted at the Rooma Halt Station for the purpose of going to their house. Further allegation was that the accused Sri Shrawan Kumar, Sri Patai Krishna Kumar and Brij Kishore, who were armed with companyntry made pistols, accosted the deceased. It was alleged that the accused Ganesh Singh, who was travelling in the same train but in a different companypartment, after alighting from the train exhorted that it is the opportune time to eliminate Sri Vikramaditya Singh, the deceased, whereupon the present appellants Brij Kishore and Patai Krishna Kumar dragged his father from the platform of the station to a place under a Peepal tree whereupon Sri Shrawan Kumar and Ganesh Singh put their companyntry made pistols at the deceased and fired shots companysequent to which Vikramaditya Singh died instantaneously. On hue and cry having been made by Prithvi Pal Singh Chandra Prakash Singh - the informant and Sri Jagannath Dubey, Sri Iqbal, Sri Mahendra Singh, Sri Ram Prasad Sharma and some other persons of village Gangaganj came to the place of occurrence and saw the appellants running away from that place. It is further alleged that Prithvi Pal Singh had written the First Information Report at the spot itself and had submitted the same to the Police Station wherein an entry was made. After registering a case, investigation was companyducted during the companyrse of which all the accused persons were arrested. On companypletion of the investigation, a chargesheet was filed against all the accused persons under Section 302 read with Section 34 IPC. As many as 8 prosecution witnesses were examined which included, among others, Prithvi Pal Singh, P.W. 1, Jagannath Dubey, P.W. 3, Sri Iqbal Singh, W. 4. Sri Girja Shanker Yadav, the Sub-Inspector who had started the investigation was examined as P.W. 6. Dr. S. Pundrik who had companyducted the post mortem examination on the dead body was examined as PW-7. The accused persons were examined under Section 313 of the CrPC and on companypletion of the trial, the arguments of the companynsel appearing for the parties were heard. The learned trial Court, after appreciating the evidence on record passed a judgment and order dated 12.03.1980 finding all the accused persons guilty of the charge under Section 302 read with Section 34 of the IPC and companyvicted all of them under the aforesaid sections. By a separate order, they were sentenced to undergo imprisonment for life. Being aggrieved by the aforesaid judgment and order passed by the trial Court, three separate appeals were filed by the accused persons - one by Shrawan Kumar and Brij Kishore and the others by Ganesh Singh Patai Krishna Kumar respectively. The High Court after companysidering the entire record upheld the order of companyviction and sentence and dismissed all the appeals. Being aggrieved by the aforesaid judgment and order passed by the High Court, the accused Ganesh Singh and Sri Patai filed an appeal in this Court which was registered as Criminal Appeal No. 1718 of 2007 whereas the accused Brij Kishore filed a separate appeal which was registered in this Court as Criminal Appeal No. 1719 of 2007. As the facts and legal issues urged in both these appeals are similar in nature, we propose to dispose of both the said appeals by this companymon judgment and order. Before adverting to the other issues, we may record that during the pendency of the present appeal, one of the appellants namely Ganesh Singh died and therefore his appeal stands abated. Thus, in the present appeals we are companycerned with only the two accused persons namely, Sri Patai and Brij Kishore. Both the companynsel appearing for the said two accused persons namely Patai and Brij Kishore very forcefully submitted before us that numbere of the aforesaid two appellants had fired any shot at the deceased and the allegations that have been made against them are that they were only holding the deceased and companysequently, it companyld number have been held that there was any pre-conceived or precompanycerted meeting of minds and therefore their companyviction under Section 302 read with Section 34 IPC is illegal. It was also submitted that the prosecution has failed to prove that the present appellants had shared an intention companymon with that of the other two accused persons namely Ganesh and Shrawan Kumar who had in fact fired shots from their companyntry made pistols at the deceased resulting in his death. The next submission of the companynsel appearing for the appellants was that this is a case where there were two separate First Information Reports lodged with the police - the first one was lodged at about 4.30 p.m. by the Assistant Station Master whereas the First Information Report second in point of time was lodged by P.W. 1 at about 5.15 p.m. The companynsel for the appellant forcefully companytended before us that since the said First Information Report indicates that there was numbereye-witness to the occurrence, framing and calling of the three eye-witnesses by the prosecution companyld number and should number have been believed and hence the prosecution story should fail. It was also submitted that under any circumstance it companyld number be said that the present appellants are guilty of charge under Section 302 and at the most they companyld be charged under Section 304 of the Indian Penal Code. We have companysidered the aforesaid submission in the light of which we have carefully scrutinized the records. Since there was a specific submission that there were two separate First Information Reports lodged with the police on the same date as aforesaid, we have analyzed the entire records. The alleged First Information Report stated to have been lodged by the Assistant Station Master is placed on record as Annexure P-1. The aforesaid report given by the Assistant Station Master appears to be a telephonic message which was sent by the Cabin man at the Rooma Halt Station to GRP. The text of the message reads as follows - Message at 16.20 hrs. One passenger was shot dead at Roome cabin got down by 2 KA passenger p1 proved and arranged disposal of dead body. It therefore appears that the aforesaid message was sent by the Cabin man through the Assistant Station Master to the GRP which was received at the GRP and on the basis of which a chik report Ext. Kha-5 was prepared. This also finds companyroboration in the deposition of Shri O.N. Pandey, DW-1. He has also stated in his evidence that he registered a case in GD No. 72, the true companyy of which is Ext. Kha-8. He further stated that at 4.40 p.m., he sent a message to the companytrol room on telephone and also gave a wireless message to the Maharajpur Police Station, but he has admitted that he had sent the wireless message through the companytrol room. There is however numberhing on record to indicate that the aforesaid report was sent to the Maharajpur Police Station immediately and the same was received at the Police Station Maharajpur prior to the lodging of the report given by P.W. Besides, the aforesaid alleged report given by the Assistant Station Master appears to be very cryptic and without any details regarding the manner in which the incident had taken place or mentioning the name of the deceased. Considering the companytents of the said message, it cannot be said that there was any possibility of recording a First Information Report on the basis of the message sent to the GRP by the Assistant Station Master. There is numberconcrete evidence to indicate that any such information was in fact sent and received at the police station. In order for a message or companymunication to be qualified to be a First Information Report, there must be something in the nature of a companyplaint or accusation or at least some information of the crime given with the object of setting the police or criminal law into motion. It is true that a First Information Report need number companytain the minutest details as to how the offence had taken place number it is required to companytain the names of the offenders or the witnesses. But it must at least companytain some information about the crime companymitted as also some information about the manner in which the companynizable offence has been companymitted. A cryptic message recording an occurrence cannot be termed as a First Information Report. In Ramsinh Bavaji Jadeja v. State 1994 2 SCC 685, this Court, while dealing with the issue as to when investigation companymences, observed with regard to the cryptic nature of a message as follows in para 7 of that judgment 7. If the telephonic message is cryptic in nature and the officer in charge, proceeds to the place of occurrence on basis of that information to find out the details of the nature of the offence itself, then it cannot be said that the information, which had been received by him on telephone, shall be deemed to be first information report. The object and purpose of giving such telephonic message is number to lodge the first information report, but to request the officer in charge of the police station to reach the place of occurrence. On the other hand, if the information given on telephone is number cryptic and on basis of that information, the officer in charge, is prima facie satisfied about the companymission of a companynizable offence and he proceeds from the police station after recording such information, to investigate such offence then any statement made by any person in respect of the said offence including about the participants, shall be deemed to be a statement made by a person to the police officer in the companyrse of investigation, companyered by Section 162 of the Code. That statement cannot be treated as first information report. But any telephonic information about companymission of a companynizable offence irrespective of the nature and details of such information cannot be treated as first information report In the present case, however, there is numberproof regarding the fact that the said information was sent to the Police at Maharajpur and that it was received and therefore, the said information cannot be said to be earliest first information report submitted to the police. The actual first information report as appears to us from the record is the report which was submitted by P.W. 1, Prithvi Pal Singh, the informant at 5.15 p.m. Therefore, the companytention urged by the companynsel of the appellants that there were two separate First Information Reports lodged with the police on the day of the occurrence is without any merit. The Investigating Officer has clearly stated in his deposition that he had recovered three tickets from the possession of the deceased. From the said deposition, it is thus clearly established that on the fateful day i.e. 29.07.1977 number only the deceased was travelling by the aforesaid train but the two other persons namely, P.W. 1, Prithvi Pal Singh, the informant and P.W. 3 Sri Jagannath Dubey, also travelled with him in the same train and all the three got down at the Rooma Halt Railway Station where the incident had taken place. Therefore, there is numberreasonable ground to doubt that P.W. 1, the informant and P.W. 3 are number the natural witnesses. They had in fact accompanied the deceased and also observed and saw the manner in which the entire incident had happened and taken place. P.W. 4, Iqbal Singh was also a fellow traveller in the same train who had also got down at the Rooma Halt Station. He has clearly stated that he had seen the occurrence. There is numberhing on record to cast a doubt as to the presence of P.W. 4 also at the time and at the place of occurrence. The evidence adduced by P.W. 1 and P.W. 3 clearly companyroborate each other with respect to the fact that both the present appellants had accosted the deceased with pistols in their hands and both of them had dragged the deceased from the platform to the place near the Peepal tree where he was shot dead by the other two accused persons. The evidence adduced thus clearly establishes that all the four accused persons carried weapons with them and at the exhortation of Sri Ganesh Singh that it is the opportune time to eliminate the deceased, accused persons namely Brij Kishore and Patai dragged the deceased from the platform to the Peepal tree, where the deceased was shot dead by the other two accused persons namely, Sri Shrawan Kumar and Sri Ganesh Singh. A pre-concerted mind and a companymon intention to companymit the offence are apparent on the face of the record. Section 33, IPC defines the expression act in the following words The word act denotes as well a series of acts as a single act. Section 34, on the other hand, lays down that when a criminal act is done by several persons in furtherance of the companymon intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. In our companysidered opinion, here is a case where the appellants have companymitted the act of accosting the deceased with pistols and dragging him away from the platform to a place near the Peepal tree at the exhortation given by Sri Ganesh Singh. Therefore, it companyld be said that number only the two appellants were present at the scene of offence but they actively participated in the companymission of the offence by doing acts in furtherance of the companymon intention of killing the deceased. Therefore, the companytention of the companynsel appearing for the appellants stands rejected. It was also submitted by one of the companynsel that the First Information Report submitted by P.W.-1 was actually written by the Police Officer or at least at his dictation and the same companyld number have been drawn up at the place of occurrence as alleged. The aforesaid submission is number supported by any evidence on record. On the other hand P.W. 1 has clearly stated in his statement that he had drawn up the said first information report at the place of occurrence in his own handwriting. The fact that the said first information report is in a neat and clean handwriting cannot always lead to the companyclusion that the said report was prepared by the police officer or at his dictation. If the hand writing of the writer of the information is neat and clean and he companyld express himself clearly, numberfault companyld be found against such writing. |
V. RAVEENDRAN J., This question involved in this appeal by special leave is whether the respondents, holding the post of Inspector Agricultural Minimum Wages for short, Inspector - AMW , were entitled to parity in pay scale, from April 1981, with those holding the posts of Inspector Cooperative Societies , Extension Officers Panchayat and KGO-JLRO number Revenue Officers . For companyvenience the post of Inspector-AMW which is the subject matter of this appeal will be referred as the subject post. The other three posts with reference to which parity is sought will be referred to as the reference category posts. For companyvenience, we give below the pay scales of the four categories of employees Sl. Name of Posts 1970 1981 1990 1998 I Pay II Pay III Pay IV Pay Commission Commission Commission Commission Inspector 300-600 380-910 1260-2610 4000-8850 Agricultural 9 9 9 9 Minimum Wages Inspector, 300-600 with 425-1050 1390-2970 4500-9700 Co-operative higher initial at 11 10 10 Societies 330/- Extension Officer, 300-600 with 425-1050 1390-2970 4500-9700 Panchayat higher initial at 11 10 10 330/- KGO-JLRO 300-600 with 425-1050 1390-2970 4800-10925 higher initial at Now Revenue 11 10 12 330/- Special Officer pay 50/- 5500-11325 14 w.e.f. 01-01-08 Note The figures in brackets below the pay scale refer to the number of the pay scale The facts in brief are as follows. The respondents 3 to 295 were employed in or around 1975 as ad-hoc Inspectors-AMW, in Pay Scale No.9 300-600 . They were subsequently absorbed into regular service and appointed against permanent vacancies. Though Inspectors Minimum Wages , Inspector Trade Unions , Labour Inspectors, Supervisor Labour Welfare , Investigators, Inspectors Shops Establishments also in Pay Scale No.9 were included in the West Bengal Subordinate Labour Services, Inspectors-AMW were number included in the said Labour Services. The Second Pay Commission recommended the revised Pay Scale No.9 to the Inspectors - AMW subject to the companydition that the minimum qualification for recruitment for the said post should be a University degree. On 28.7.1981, the Government framed the West Bengal Services Revision of Pay and Allowances Rules, 1981 for short RPA Rules 1981 to implement the second Pay Commission Recommendations effective from 2.4.1981 under which Inspectors-AMW, were assigned Pay Scale No.9 380-910 . Holders of the post of Inspector Co-operative Societies , Extension Officer Panchayats and KGO-JLRO Revenue Officers who were also in Pay Scale No.9 earlier, but with a higher initial pay of Rs.330, were granted the higher Pay Scale No.11 425-1050 . Feeling aggrieved, the respondents filed a writ petition CR No.247 W of 1982 for the following reliefs- a a direction to the state government to revise the pay scales according to law, without discriminating them from Inspectors Co-operative Societies , Extension Officers Panchayat , KGO-JLRO etc., and grant them Pay Scale No.11 Rs.425-1050 with special pay and other allowances and b to quash the RPA Rules 1981, insofar as they related to Inspectors-AMW. The respondents companytended that three other categories of posts reference category posts , were in the same scale of Rs.300-600 as was applicable to them Inspectors-AMW when the RPA Rules, 1970 were in force that the said three reference category posts were granted Pay Scale No.11 Rs.425-1050 under the RPA Rules 1981 whereas they Inspectors - AMW were companytinued in the Pay Scale No.9 Rs.380-910 . It was submitted that as the minimum educational qualification for all four categories of posts were similar and as the pre-revision pay scales of all the four categories of posts were the same, the State companyld number discriminate by upgrading the pay of the three reference category posts who were earlier in the same Pay Scale, to Pay Scale No.11, while companytinuing them Inspectors -AMW in the lower Pay Scale No.9. The State Government resisted the said writ petition, companytending that the functions and duties of Inspectors - AMW were different from the functions and duties of Inspectors Co-operative Societies , Extension Officers Panchayat and KGO-JLRO Revenue Officers . It was also pointed out that though the pay scale applicable to Inspectors -AMW and the three reference category posts were the same Pay Scale No.9 prior to RPA Rules 1981, there was a significant difference as those three reference categories were started on a higher initial Pay Scale of Rs.330 instead of Rs.300. Learned single Judge, by order dated 8.7.1987, disposed of the said writ petition permitting the respondents to make a representation to the appropriate forum, that is, the state government or the Pay Commission. He held that the High Court in its writ jurisdiction cannot take upon itself the responsibility of giving higher scales of pay claimed by the writ petitioners. Feeling aggrieved, the respondents filed an appeal FMAT No.2453 of 1987 . During the pendency of the appeal, Inspectors-AMW, through their association, made a representation before the Third Pay Commission seeking several reliefs. The Third Pay Commission made its recommendations on 31.12.1988 expressing the view that the existing scale of pay of the Inspectors -AMW, was just and proper and there was numberneed to upgrade them to a higher pay scale. Therefore, the Pay Commission recommended Pay Scale No.9 companyresponding to the old Pay Scale No.9 that is Rs.380-910 revised as Rs.1260-2610 . Inspectors-AMW and some other aggrieved categories of employees submitted their representations in regard to their grievances against the recommendations of the Third Pay Commission. The State Government therefore, appointed a Pay Review Committee to companysider the various representations relating to anomalies. The said Committee, after companysidering the grievances of the respondents made the following recommendations As the same time, however, the Second Pay Commission companysidered upward revision of pay of quite a large number of post which were in the scale of Rs.300-600 as per ROPA Rules 1970 and recommendation the scale of Rs.380-910. Many Departments have written to us for upward revision of the scale of pay of such posts. In particulars, the Labour Department have recommended upward revision of the scale of pay of posts belonging to West Bengal Subordinate Labour Service from Rs.380-910/- to scale No.10 which companyresponds to the unrevised scale No.11 i.e. Rs.425-1050 . Many of these posts are filled up by promotion cum UDC and other employees drawing pay in Scale number9 i.e. 380-910 as per ROPA Rules 1981 . As per ROPA Rules 1970, the scale of pay of UDCs was Rs.330-550. The posts referred to in the first paragraph are undoubtfully of higher status than the posts of UDCs. This is companyroborated but the fact that the qualification for direct recruitment to these posts are number less than a degree of a recognised university and here the post can only be filled up by promotion and the feeder posts in many cases are the posts carrying the scale of pay of the UDCs. It is, therefore, felt that a large number of anamolies can be avoided if the revised scale No.10 which companyresponds to the unrevised Scale No.11 is allocated to all posts which were in the scale of pay Rs.300-600 and in some cases Rs.300-600 with higher initial start at Rs.330 as per ROPA Rules 1970 and which were allocated scales of pay less than Scale No.11 i.e. Rs.425-1050 in the WBS ROPA Rules 1981. We, therefore, strongly recommend that all the posts which were in the scale of pay of Rs.300-600 and in a few cases Rs.300-600 with higher initial start at Rs.330 and which were awarded the pay scale lower than Rs.425-1050 as per WBS ROPA Rules 1981 may number be awarded the revised scale No.10 with effect from 1.1.86. The State Government decided number to accept the recommendations of the Pay Review Committee and companytinue the posts of Inspectors --AMW in Pay Scale No.9, that is, Rs.1260-2610. The relevant portion of the said decision file numbere is extracted below After careful companysideration we have companye to the companyclusion that the existing scales of pay of these posts are just and proper. Hence we recommend for them, our suggested scales of pay companyresponding to their present scales. Thus it appears that the Third Pay Commission which is a specialised body did number companysider it necessary to recommend any upgradation of the scale of pay for the post of Inspector of Agricultural Minimum Wages. The Government accepted the recommendation of the Third Pay Commission and prescribed a revised scale No.9 1260-2610 for the post of Inspector of Agricultural Minimum Wage. The matter was referred to the Pay Review Committee. The Pay Review Committee recommend Scale No.10 i.e. Rs.1380-2970 for the post of Inspector of Agricultural Minimum Wages. But this recommendation actually follow from a general recommendation that posts of Inspectors and equivalent which were borne in the scale of pay of Rs.300-600 as per WBS ROPA Rules, 1970 and for which the minimum recruitment qualification is a graduation degree of a recognised University or equivalent should be on scale No.10 Rs.1390-2970 . It is, therefore, apparent that the Pay Review Committee did number recommend Scale No.10 specifically for the post of Inspector of Agricultural Minimum Wages after taking into companysideration duties and responsibilities attached to the post. The State Government has number accepted the general recommendation of the Pay Review Committee in regard to the revision of the scale of pay of the post of Inspectors and equivalent which were borne in the scale of pay of Rs.300-600 as per WBS ROPA Rules, 1970 and for which the minimum recruitment qualification is graduate degree of a recognised university. This being the position, any upward revision of the scale of pay of the post of Inspector of Agricultural Minimum Wages will have serious repercussions. The Government is, therefore, unable to accept the recommendation of the Pay of the Pay Review Committee in regard to the revision of scale of pay of the post of Inspector of Minimum Wages. Accordingly the post should companytinue to be on scale No.9 i.e. Rs.1260-2610. The rules regarding the recruitment of Inspectors -- AMW were amended on 5.6.1995 and these posts were brought under the Labour Department. Consequently, the West Bengal Sub-ordinate Labour Service was also companystituted on 23.6.1995 companysisting of the following categories of posts i Inspector of Shops and Establishment ii Inspector of Minimum Wages iii Inspector of Trade Union iv Labour Inspector v Supervisor of Labour Welfare Centres under the Labour Directorate, West Bengal pleased under the West Bengal vi Inspector, Statistical Assistant, Investigator Scrutiny Assistant, Computer and Computing Investigation in the Statistical Section of the Labour Directorate West Bengal and vii Agricultural Minimum Wages Inspector. In the pending appeal, the respondents amended their writ petition on 8.12.1995 companytending that the Third Pay Commission had number taken into companysideration the duties and responsibilities of Inspectors-AMW, while recommending that they should companytinue in the same pay scale, that their grievance in regard to the anomaly was companysidered by the Pay Review Committee companystituted to look into the anomalies and it had recommended that they should be assigned the higher Pay Scale No.10 Rs.1390-2970 and that the State Government had wrongly refused to accept the same and that they should, therefore, by granted unrevised Pay scale No.11 Rs.425-1050 which companyresponded to revised Pay scale No.10 Rs.1390-2970 . The Fourth Pay Commission in April 1998 revised the existing pay scales and the new Pay Scale No.9 was Rs.4000-8850. In December 1999, the Fourth Pay Commission submitted the second part of its recommendation. Para 2.39.9 relating to Inspectors AMW is extracted below Inspectors of Agricultural Minimum Wages who are posted at the Block Level for enforcement of minimum wages in Agriculture and other schedule employments and other Labour Laws, have demanded upgradation of their Scale of Pay. They are number in Scale No.9. In view of their duties and responsibilities, we recommend Scale No.10 for the post. In view of it, the respondents filed an affidavit in the pending writ appeal submitting that as the Fourth Pay Commission has recommended pay scale No.10 for the post of Inspectors AMW and that though the State Government had accepted the recommendation in regard to several other posts, it had number accepted the recommendation relating to Inspectors-AMW. On 27.1.2005, the Division Bench allowed the writ appeal, set aside the order of the learned single Judge and directed as follows The petitioners be given the same scale from the respective date as were given to their companynterparts, namely, the four posts under RPA 1981 as well as the companyresponding scale under RPA 1986 and the same scale that would be given to those four posts under the Fourth Pay Commission and accordingly their pay be fixed and the difference arrears be paid to the petitioners within six months from the date of service of a certified companyy of this order and be paid accordingly so far as their current salary is companycerned in the same scale together with all companysequential benefits as are available in law to the respective petitioners. The said order is challenged in this appeal by special leave. On the companytentions urged, the following questions arise for companysideration Whether the respondents were entitled to the reliefs sought in the writ petition as originally filed? Whether the respondents are entitled to higher pay scale on the basis of the recommendations of the Pay Review Committee made in the year 1990? Whether the respondents are entitled to higher pay scale as per the recommendations of the Fourth Pay Commission and, if so, from what date? Re Question 1 The principles relating to granting higher scale of pay on the basis of equal pay for equal work are well settled. The evaluation of duties and responsibilities of different posts and determination of the Pay scales applicable to such posts and determination of parity in duties and responsibilities are companyplex executive functions, to be carried out by expert bodies. Granting parity in pay scale depends upon companyparative job evaluation and equation of posts. The principle equal pay for equal work is number a fundamental right but a companystitutional goal. It is dependent on various factors such as educational qualifications, nature of the jobs, duties to be performed, responsibilities to be discharged, experience, method of recruitment etc. Comparison merely based on designation of posts is misconceived. Courts should approach such matters with restraint and interfere only if they are satisfied that the decision of the Government is patently irrational, unjust and prejudicial to any particular section of employees. The burden to prove disparity is on the employees claiming parity - vide State of U.P. Vs. Ministerial Karamchari Sangh, 1998 1 SCC 422 Associate Bank Officers Association Vs State Bank of India, 1998 1 SCC 428 State of Haryana Anr. Vs. Haryana Civil Secretariat Personal Staff Association, 2002 6 SCC 72 State of Haryana Vs. Tilak Raj 2003 6 SCC 123 S.S. Chandra v. State of Jharkhand 2007 8 SCC 299 Uttar Pradesh State Electricity Board v. Aziz Ahmad 2009 2 SCC 606. What is significant in this case is that parity is claimed by Inspectors-AMW, by seeking extension of the pay scale applicable to Inspector Cooperative Societies , Extension Officers Panchayat and KGO-JLRO Revenue Officers number on the basis that the holders of those posts were performing similar duties or functions as Inspectors-AMW. On the other hand, the relief was claimed on the ground that prior to RPA Rules 1981, the posts in the said three reference categories, and Inspectors-AMW were all in the same pay scale Pay Scale No.9 , and that under RPA Rules 1981, those other three categories have been given a higher Pay Scale of No.11, while they - Inspectors-AMW - were discriminated by companytinuing them in the Pay Scale No.9. The claim in the writ petition was number based on the ground that subject post and reference category posts carried similar or identical duties and responsibilities but on the companytention that as the subject post holders and the holders of reference category posts who were enjoying equal pay at an earlier point of time, should be companytinued to be given equal pay even after pay revision. In other words, the parity claimed was number on the basis of equal pay for equal work, but on the basis of previous equal pay. It is number well-settled that parity cannot be claimed merely on the basis that earlier the subject post and the reference category posts were carrying the same scale of pay. In fact, one of the functions of the Pay Commission is to identify the posts which deserve a higher scale of pay than what was earlier being enjoyed with reference to their duties and responsibilities, and extend such higher scale to those categories of posts. The Pay Commission has two functions to revise the existing pay scale, by recommending revised pay scales companyresponding to the pre-revised pay scales and, secondly, make recommendations for upgrading or downgrading posts resulting in higher pay scales or lower pay scales, depending upon the nature of duties and functions attached to those posts. Therefore, the mere fact that at an earlier point of time, two posts were carrying the same pay scale does number mean that after the implementation of revision in pay scales, they should necessarily have the same revised pay scale. As numbericed above, one post which is companysidered as having a lesser pay scale may be assigned a higher pay scale and another post which is companysidered to have a proper pay scale may merely be assigned the companyresponding revised pay scale but number any higher pay scale. Therefore, the benefit of higher pay scale can only be claimed by establishing that holders of the subject post and holders of reference category posts, discharge duties and functions identical with, or similar to, each other and that the companytinuation of disparity is irrational and unjust. The respondents have neither pleaded number proved that the holders of post of Inspectors Cooperative Societies , Extension Officers Panchayat and KGO-JLRO Revenue Officers were discharging duties and functions similar to the duties and functions of Inspector-AMW. Hence, the prayers in the original writ petition companyld number have been granted. In fact, that is why the learned single Judge rightly held that whether the posts were equivalent and whether there companyld be parity in pay are all matters that have to be companysidered by expert bodies and the remedy of the respondent was to give a representation to the companycerned authority and the companyrt cannot grant any specific scale of pay to them. Re Question 2 The Third Pay Commission did number accept the representation of the Inspectors-AMW seeking a higher pay scale. It held that they are entitled only to Pay Scale No.9. When the respondents made a grievance in that behalf, it is numberdoubt true that the Pay Review Committee companysidered the representation and made a recommendation that the posts which were in the pay scale of Rs.300-600 including those which were in the same pay scale but started with a higher initial start of Rs.330, should be granted the scale of pay of Rs.425-1050, as per RPA Rules 1981. The said Committee did number take numbere of the fact that different posts having the same pay scale, may have different duties and functions and some may deserve a higher pay scale than the others. The Government rejected the recommendation of the said Committee, for valid and justifiable reasons. The State Government categorically stated that the Pay Review Committees general recommendation that all posts carrying a particular scale of pay should all be given automatically the same higher pay scale companyld number be accepted, as the Committee did number make the recommendation after companysidering the duties and responsibilities attached to different categories of posts. |
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