text
stringlengths 0
2.49M
|
|---|
Dr. ARIJIT PASAYAT, J. Leave granted. Challenge in these appeals is to the order of a learned Single Judge of the Punjab and Haryana High Court. A Revision Petition, in terms of Article 227 of the Constitution of India, 1950 in short the Constitution was filed before the High Court questioning the companyrectness of the order passed by the Executing Court, i.e learned Additional District Judge, Ludhiana holding that the respondents were entitled to claim interest on the amount of solatium. The petition was dismissed in the light of a judgment of this Court in Sunder Vs. Union of India 2001 -2- SCC 211 . It was held in the said case that the interest is payable on the amount of solatium as well. Learned companynsel for the appellant submitted that in the present case, the Reference Court had categorically observed as follows while disposing of several land reference cases under Section 18 of the Land Acquisition Act, 1894 in short the Act However, they shall number be entitled to any interest on the amount of solatium. It is submitted by learned companynsel for the appellant that in view of the aforesaid categorical finding of the Reference Court, the Executing Court companyld number have gone beyond the decree. Learned companynsel for the respondents, on the other hand, submitted that the matter was squarely companyered by the decision in Sunders case supra and, therefore, the High Court was justified. -3- In a subsequent Constitution Bench judgment of this Court in Gurpreet Singh Vs. Union of India 2006 8 SCC 457 , the position relating to the power of the Executing Court was examined. In paragraph-54, it was numbered as follows. 54 One other question also was sought to be raised and answered by this Bench though number referred to it. Considering that the question arises in various cases pending in Courts all over the companyntry, we permitted companynsel to address us on that question. That question is whether in the light of the decision in Sunder supra , the awardee decree holder would be entitled to claim interest on solatium in execution though it is number specifically granted by the decree. It is well settled that an execution companyrt cannot go behind the decree. If, therefore, the claim for interest on solatium had been made and the same has been negatived either expressly or by necessary -4- implication by the judgment or decree of the reference companyrt or of the appellate companyrt, the execution companyrt will have necessarily to reject the claim for interest on solatium based on Sunder supra on the ground that the execution companyrt cannot go behind the decree. But if the award of the reference companyrt or that of the appellate companyrt does number specifically refer to the question of interest on solatium or in cases where claim had number been made and rejected either expressly or impliedly by the reference companyrt or the appellate companyrt, and merely interest on companypensation is awarded, then it would be open to the execution companyrt to apply the ratio of Sunder supra and say that the companypensation awarded includes solatium and in such an event interest on the amount companyld be directed to be deposited in execution. Otherwise, number. We also clarify that such interest on solatium can be claimed only in pending executions and number in closed executions and the execution companyrt will be entitled to -5- permit its recovery from the date of the judgment in Sunder September 19, 2001 and number for any prior period. |
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 398 of 1993. From the Judgment and Order dated 12.3.1992 of the IVth Metropolitan Megistrate, Hyderabad in Crl. M.P. No. 92/92 in C.C. No. 234 of 1985. WITH Writ Petition No. 623 of 1993. Under Article 32 of the Constitution of India K. Venugopal, L.K. Pandey and S. Anand for the Petitioner. P. Gupta. Solicitor General and Ms. A. Subhashni for the Respondents. The Judgment of the Court was delivered by AHMADI, J. Special leave granted. The brief facts leading to this appeal are that the appellants daughter Geetha married respondent No. 1 original accused No. 1 sometime in October 1976 according to Hindu rites and thereafter left for Ireland. A daughter was born to the companyple on July 27, 1978 in Ireland. She was named Nivedita. In April 1979, the companyple along with the child moved to the United States of America, the Child travelling on an Irish passport. In October 1979 Geetha wrote to her mother. the appellant, expressing her desire that Nivedita should be brought up under her care in India. On the appellant expressing her willingness to look after the child, Nivedita was sent to India via Bombay where the appellant received her. The child then remained in the custody of the appellant. In March 1980 Geetha returned to India presumbly because her husband had developer intimacy with an American girl and had started to ill-treat her. Within a week after her arrival in India she companymitted suicide by setting herself on fire. Nivedita companytinued to remain in the care and custody of the appellant. The first respondent married the American girl, with whom he had developed intimacy, sometime in the year 1983-84 and embraced Christianity. Thereupon the appellant filed an application in the Court of the Chief judge, City Civil Court, Hyderabad, being O.P. No. 203 of 1984, for appointing her as the guardian of the person of the minor child under the provisions of Guardians and Wards Act, 1890, Respondent No. 1 entered an appearance in the said proceedings through his Advocate and sought time to file a companynter. Leter, he returned to India on December 14, 1984, After reaching India he obtained a duplicate passportfor Nivedita and thereafter with the help of his associates picked up Nivedita fromher school ignoring the protests of the Head Mistress of the School. The HeadMistress immediately filed a companyplaint with the companymissioner of police and informed the appellant about the same who in turn lodged a First Information Report in that behalf. On enquiry the appellants son traced respondent No. 1 and his three companypanions who had assisted him in procuring the child at the Madras Airport. Despite his entreaties, respondent No. 1 forcibly took the child to S.A via Singapore. Since then Nivedita is in the custody of respondent No. 1 and his newly married wife Maureen. After thus removing the child from the lawful custody of the appellant, respondent No. 1s Advocate withdrew from the guardianship proceedings. The Court, however, appointed the appellant as the guardian of the person of Nivedita. The appellant also filed a companyplaint alleging kidnapping against respondent No. 1 and his three companypanions who had aided and abetted him in the Court of the IVth Metropolitan Magistrate. Hyderabad, which came to be numbered as C.C.No. 234 of 1985. Process was issued in the said proceedings land the accused persons were duly served. The respondents thereafter moved an application under Section 482 of the Code of Criminal Procedure, 1973 hereinafter called the Code for quashing the process on the plea that in law a father is entitled to his daughters custody and hence cannot be liable under section 363, PC. In that application the High Court directed that the child be produced before it. However, the child was number produced before the Court and the Court ultimately dismissed the application against which a Special Leave Petition was filed in this Court. This Court also rejected the Special Leave Petition. On the other hand while the application under Section 482 of the Code was pending in the High Court, the father of respondent No. 1 filed an application for rescinding the order appointing the appellant as the guardian of the person of Nivedita. In the meantime, the Supreme Court in New Jersey U.S.A., was moved which companyrt passed an order permitting respondent No.1 to retain No. 1 to retain the custody of the child on the ground that the Indian Courts had violated the due process clause. The Chief Judge, City Civil Court, Hyderabad, ultimately dismissed the fathers application for rescinding the earlier order by which the appellant was appointed the guardian of the person of the child. As staed earlier the Superior Court, New Jersey, having permitted respondent No. 1 to retain the custody of Nivedita, the childs step-mother Maureen applied for permission to adopt Nivedita who had by then been companyverted to Christianty. On that permission being granted the adopted mother and respondent No. 1 sent the Child to a Christian school. In the companyplaint lodged against respondent No. 1 and his associates. respondent No. 1 applied for exemption from personal attendance which was granted on companydition that he will appear whenever called upon to do so by the companyrt. Respondent No. 1 was thus represented in the said companyplaint through his Advocate. In the said criminal companyplaint after framing the charge for kidnapping evidence of the prosecution witnesses was recorded in the presence of the Advocate for respondent No. 1 and the other respondents and on companypletion of the evidence respondent No. 1s Advocate sought permission to be examined in place of respondent No. 1 under section 313 of the Code. This permission was granted and he was examined under section 313 of the Code. On companypletion of the examination the appellant number being satisfied with some of the replies given by the Advocate filed an application prayino that respondent No. 1 should be directed to personally appear in Court and be examined under section 3 13 of the Code. The learned Magistrate dismissed the said application whereupon the present appeal has been filed on the plea that numberappeal or revision lay against the order impugned herein. These are the averments on which the present appeal is founded. The question then is whether the learned Magistrate was right in examining the Advocate of respondent No. 1 in place of respondent No. 1 himself under section 313 of the Code? Sub-section 1 of section 313 reads as under Power to examine the accused- 1 In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court- May at any stage, without previously warning the accused, put such questions to him as the Court companysiders necessary b shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case Provided that in a summons case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause b . This sub-section was introduced in its present form pursuant to the recommendations made in the 41st Report of the Law Commission. It number begins with the words in every inquiry or trial to set at rest any doubt in regard to its application to summons cases. the old sub-section 1 of section 342 has number been divided into two clauses a b . Clause a uses the expression 1 may to indicate that the matter is left to the discretion of the Court to put questions to the accused at any stage of the inquiry or trial whereas clause b uses the expression shall to companyvey that it is mandatory for the Court to examine the accused after the witnesses for the prosecution have been examined before he is called on for his defence. The proviso is a new provision Which came to be added to subsection 1 with a view to enabling the Court to dispense with the examination of the accused under clause b in a summons case if the Court has already dispensed with his personal attendance at an earlier point of time. Therefore, if the Court on companypletion of the prosecution evidence finds that there are certain circumstances appearing in the evidence against the accused, the Court is obliged by clause b to question the accused before he is called on for his defence. This provision is general in nature and applies to all inquiries and trials under the Code. The purpose of the said provision is to give the accused an opportunity to explain the circumstances appearing against him in evidence tendered by the prosecution so that the said explanation can be weighed vis-a-vis the prosecution evidence before the Court reaches its companyclusion in that behalf. It is thus clear on a plain reading of section 313 1 of the Code, that the Court is empowered by clause a to question the accused at any stage of the inquiry or trial while clause b obligate the Court to question the accused before he enters of his defence on any circumstance appearing in the prosecution evidence against him. The section incorporates a rule of audi alteram partem and is actually intended for the benefit of the accused person. The newly added proviso is in the nature of an exception to clause b of subsection 1 of section 313 of the Code. It applies to a summons-case it states in numberuncertain terms that in a summons-case where the companyrt has dispensed with the personal attendance of the accused it would be open to the companyrt to dispense with the examination of the accused under clause b of section 313 1 of the Cods. Even in cases where the personal presence of the accused has been dispensed with under section 205 1 or section 317 of the Code the Magistrate can dispense with the mandatory requirement of clause b only in a summons-case i.e, a case other than a warrant-case This is clear on plain reading of the definitions of a summonscase in Section 2 w and a warrant-case in section 2 x of the Code. A warrant case is defined as one relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. Since an offence under section 363 IPC is punishable with imprisonment for a term exceeding two years it is a warrantcase and number a summons-case. Therefore, even in cases where the companyrt has dispensed with the personal attendance of the accused under section 205 1 or section 317 of the Code, the companyrt cannot dispense with the examination of the accused under clause b of section 313 of the Code because such examination is mandatory. If the accused is a companypany or a juridical person it may be open to examine the person companyversant with the facts of the case. It would thus appear that the mandate of section 313 1 b demands that the accused person, if number a companypany or other juridical person, most be personally examined to explain the incriminating circumstances appearing against him in the prosecution evidence and the examination of his lawyer would number be sufficient companypliance with the mandate of said provision. A similar question arose for companysideration in Bibhuti Bhushan Das Gupta Anr. v. State of West Bengal AIR 1969 SC. 381 1969 2 SCR 1041 under the provisions of the old Code. In that case this Court numbericed that the accused was number personally examined under section 342 of the Code. It was submitted that the trial was vitiated as the accused was number personally examined as required by section 342 of the old Code. The said argument was sought to be repelled on the ground that the examination of the pleader was sufficient companypliance with the said provision since the pleader was authorised to appear on behalf of the accused and do all acts which the accused companyld personally do. Dealing with this submission this companyrt on a reading of Section 342 pointed out that the privilege of making a statement under that section is personal to the accused and the requirement cannot be satisfied by examining his pleader in his place. The right of the pleader to represent the accused does number extend to the pleader answering questions under section 342 in place of the accused person. The submission that such a view will cause inconvenience and harassment to the accused was also repelled in the following words We are number impressed with the argument that an accused person will suffer inconvenience and harassment if the Court cannot dispense with his attendance for purposes of section The examination under the section becomes necessary when at the close of the prosecution evidence the magistrate finds that there are incriminating circumstances requiring an explanation by the accused. Proceeding further this Court observed as under There are exceptional cases when an examination of the accused personally under section 342 is number necessary or possible. Where the accused is a companypany or other juridical person it cannot be examined personally. It may be that the Court may then examine a director or some other agent on its behalf. It is another matter that in that case this Court did number interfere with the companyviction and sentence on the ground that the number-examination of the accused had number caused any prejudice and in the absence of material showing prejudice the companyviction and sentence companyld be sustained by virtue of old section 537 section 465 of the new Code . In the result the order impugned in the present appeal writ petition of the learned Magistrate cannot be allowed to stand, more so in the instant case for the reason that the accused may raise the plea of violation of the due process clause if the order is sought to be executed in the foreign companyrt. We, therefore, set aside the order of the learned Magistrate and direct him to pass appropriate orders in the light of this judgment in regard to the examination of the accused under section 313 1 b of the Code. |
BANERJEE,J. This appeal is directed against the order of the Madhya Pradesh High Court companyfirming the preliminary decree passed by the trial companyrt and allowing the plaintiffs claim for redemption in respect of mortgaged houses and khudkasht land. 2. The companytextual facts record that the defendant-mortgagee has challenged the right of the plaintiff-mortgagor to redeem assorted items of property which were mortgaged prior to the enactment of the Madhya Bharat Zamindari Abolition Act, 1951 Samvat 2008 . The learned trial judge decreed the suit and the appeal therefrom however before the learned single judge resulted in an order of reference before a Division Bench by reason of expression of a view companytra, by another Single Judge of Indore Bench in second appeal No.498 of 1965, Yakub son of Kasamji v. Yakub son of Fakir Mohammad Ors. 3. On however a detail analysis of facts it appears that the plaintiffrespondent being the Zamindar of village Kamalpur, during the subsistence of the Zamindari, executed two mortgage-deeds dated 4.8.1947 and 5.1.1948 in favour of the defendant-appellant for securing thereunder a loan against movable property and houses, Zamindari and Khudkasht lands. The possession of the mortgaged property as the record shows was delivered to the mortgagee-defendant and in a suit filed for redemption of the mortgage, the trial companyrt as numbered above decreed the suit with an express finding that the plaintiff was entitled to redeem the mortgage. 4. Be it numbered here that the Madhya Bharat Zamindari Abolition Act has been engrafted into the statute book for acquisition of rights of proprietors in villages, Muhals, Chaks or blocks settled on Zamindari system so as to subserve the public purposes of the improvement of agriculture and financial companydition of agriculturists and came into force on 25th June, 1951. 5. Section 2c, defined Khudkasht land meaning thereby land cultivated by Zamindar himself or through employees or hired labourers and includes sir land. Section 3 of the Act provides for vesting of the proprietary rights in the State and Section 4 records the companysequence of vesting of an estate in the State. Section 4 27 provides that numberwithstanding anything companytained in sub-section 1 the proprietor shall companytinue to remain in possession of his Khudkasht land so recorded in the annual village papers before the date of vesting. 6. It, therefore, appears that that there is a categorical expression of statutory intent that the land which has number been recorded as Khudkasht land is liable to vest in the State. Conversly thus, the intent of the legislature is loud enough to indicate that while Zamindari or intermediary interest was being abolished, due care has been taken to protect the Khudkasht land and allowed the subsisting interest of the Zamindar to companytinue so as to enable the Zamindar either to cultivate himself or through employees or hired labourers and in that event the same would be out of companytemplation of the statute. The statute has put an embargo even on the mortgagee of Khudkasht land. As a matter of fact the Act read as a whole suggests that the mortgagee would number be able to upgrade his entitlement or status and the possession of Khudkasht land stands transferred from him to the Zamindar by operation of law. Section 4 and various sub-sections thereunder read with Sections 5 and 6 categorically depict the same and it is on this aspect of the matter we lend our companycurrence to the observation of the High Court to the following effect- A mortgagees interest in the mortgaged Khudkasht land is number allowed to blossom into larger interest of ownership or of indefeasible right to possess the land in virtue of the advent of the new land tenure system The definition section as numbericed above and in particular the definition of the word Proprietor means a person as respects a village, muhal or land settled on Zamindari system owning whether in trust or for his own benefit, such village, muhal or land. The definition of Khudkasht under Section 2c referring therein land cultivated by the Zamindar himself or through employees or hired labourers, read with section 4 2 , makes it abundantly clear that Section 2 a cannot but mean that it is the Zamindar or Proprietor only who has been allowed by the statute to obtain the benefit. The mortgagee cannot be allowed to claim a better title by reason of the provisions as numbered above than he has prior to the enactment of the statute. 8. As regards the Yakubs case the High Court in paragraph 13 of the Judgment observed- True, for the view taken in Yakubs case supra reliance is placed mainly by the learned single judge, on a decision rendered by another learned single judge of this companyrt in Bhagwant v. Ramchandra 1961 JLJ 286 . In that decision also, a simplistic view of the definition was taken and relying on Section 2 a a read with sub-clause 2 of section 2 of Qanoon Mal, Gwalior State, the rights of Zamindar proprietor were subrogated to that of his mortgagee and the latter was even held entitled under Section 38 to claim to be a Pakka tenant and thereby to keep alive his interest in the mortgaged Khudkasht land in direct opposition to the object and purpose of Section 4 1 f . Reference was also made in Yakubs case supra to a Bench decision of this Court in Khumansingh v. Dhansingh 1971 RN 351 , but, in our opinion, reliance thereon was misconceived. In that case, it was held that in Z.A. Act emphasis was on actual cultivation of the Khudkasht lands and number on entry so recorded in the revenue record, while companystruing Sections 2 c and 4 2 of the said Act. The scope and object of Section 4 1 f did number companye up for companysideration of their Lordships in that case. Although reference was also made in Yakubs case to another Bench decision of this Court, Chaturbhuj v. Mohanlal 1961 RN 182 , that was also number a case of a mortgagee versus Zamindar and in that case, companystruction of the provisions merely of Sections 4 2 and 2 c has to be read. This aspect of the matter, however, has been dealt with by this Court in the case of Meharban Singh v. Naresh Singh AIR 1971 SC 77 wherein this Court in paragraph 8 observed- 8. A plain reading of these sections would show that all rights, title and interest of the proprietors in the area numberified were to cease and were instead to vest in the State free from all encumbrances with effect from all encumbrances with effect from the date of numberification and after such vesting in the State every mortgage with possession existing on the property so vested or part thereof on the date immediately preceding the date of vesting, to the extent of the amount secured on such property or part, thereof, is to be deemed, without prejudice to the right of the State under Section 3 to have been substituted by a simple mortgage. The proprietor, however, numberwithstanding other companysequences of the vesting in a State, is entitled to companytinue to remain in possession of his khudkasht land which is so recorded in the annual village papers before the date of vesting. Now it was clearly open to the plaintiffs to show that the land in question was khudkasht and, therefore, in accordance with Section 4, they were entitled to remain in possession thereof. Mr. S.K. Jain, appearing in support of the appeal however companytended that subsequent to the decision in Meharban Singhs case this Court in the case of Budha v. Amilal 1990 4 JT, 804 expressed a different view and by reason of divergence of views this matter ought to be referred to a larger Bench for resolution and enunciation of the law on the subject. For companyvenience sake the observation of this Court in Budhas case supra is set out herein below- Even if it is assumed that the lands in dispute have to be treated as Khudkasht lands of the appellant by virtue of clause i of the inclusive part of the definition of Khudkasht companytained in Section 5 23 of the Rajasthan Tenancy Act, the appellant cannot succeed in his claim that he has acquired Khatedari rights in respect of those lands on the basis of the provisions companytained in subsection 4 of Section 5 and sub-section 1 of section 29 of the Act. Sub-section 4 of Section 5 provides that numberwithstanding anything companytained in sub-section 2 of Section 5 the Zamindar or Biswedar shall subject to the provisions of Section 29, companytinue to retain the possession of his Khudkasht, recorded as such in the annual registers before the date of vesting. The words companytinue to retain the possession, imply that lands which are recorded as Khudkasht in the annual register before the date of vesting should also be in possession of the Zamindar or Biswedar on the date of vesting and if he is in possession of such lands he can companytinue to retain the possession of the same subject to the provisions of of Section 29. Sub-section 1 of Section 29 prescribes that as from the date of vesting of an estate, the Zamindar or Biswedar thereof shall be a malik of any Khudkasht land in his occupation on such date and shall, as such malik, be entitled to all the rights companyferred and subject to all the liabilities imposed on a Khatedar tenant by or under the Rajasthan Tenancy Act. Under this provision Khatedri rights have been companyferred on a Zamindar or Biswedar as from the date of the vesting of the estate in respect of Khudkasht lands in the occupation of such Zamindar or Biswedar on such date. The words in his occupation on such date postulates that the lands, though Khudkasht, should be in the occupation of the Zamindar or Biswedar on the date of vesting of the estate. It would thus appear that in view of sub-section 4 of Section 5 and sub-section 1 of Section 29 of the Act the mere fact of recording of the land as Khudkasht in the settlement records on the date of vesting would number be enough for a Zamindar or Biswedar to acquire Khatedari rights over the said lands and it is further required that the Zamindar or Biswedar should be in possession occupation of the said lands on the date of vesting of the estate under the Act. The possession occupation envisaged by subsection 4 of Section 5 and sub-section 1 of Section 29 of the Act is actual possession occupation and the possession of a mortgagor through the mortgagee cannot be held to be possession or occupation as postulated in sub-section 4 of Section 5 and sub-section 1 of Section 29 of the Act. In the present case the appellant has companye forward with a specific case in the plaint that the defendant is in possession of the lands in dispute as a mortgagee from the date of the two mortgagees. In other words the appellant was number in possession occupation of the said lands on the date of vesting of the estate of the appellant under the Act. The appellant cannot, therefore, claim Khatedari rights in respect of the lands in dispute. Incidentally, be it numbered that the decision in Budhas case supra was on interpretation of Rajasthan Zamindari and Biswedari Abolition Act, 1959 whereas Madhya Bharat Zamindari Abolition Act, 1951 came up for companysideration in Meharbansinghs case. The later decision of this Court in Budhas case supra however has number numbericed the judgment of this Court in Meharban Singhs case supra and by reason of the observation of this Court in paragraph 15 of the judgment in Budhas case, it can number but be said that the decision in the later judgment was on the peculiar facts of the case. It is further to be numbered that Meharban Singhs case came to be decided as early as 1970 and has been followed for last three decades in the State of Madhya Pradesh and innumerable number of matters have been dealt with on the basis thereof and in the event, a different view is expressed today, so far as this specific legislation is companycerned, it would unsettle the situation in the State of Madhya Pradesh and it is on this score also that reliance on the doctrine of stare decisis may be apposite. While it is true that the doctrine has numberstatutory sanction and the same is based on a Rule of companyvenience and expediency and as also on Public Policy but in our view, the doctrine should and ought always to be strictly adhered to by the companyrts of law to sub-serve the ends of justice. 12. This Court in Muktul v. Mst. Manbhari Ors. 1959 SCR 1099 , explained the scope of the doctrine of stare decisis with reference to Halsburys Laws of England and Corpus Juris Secundum in the manner following- The principles of Stare Decisis is thus stated in Halsburys Laws of England Apart from any question as to the Courts being of companyordinate jurisdiction, a decision which has been followed for a long period of time, and has been acted upon by persons in the formation of companytracts or in the disposition of their property, or in the general companyduct of affairs, or in legal procedure or in other ways, will generally be followed by companyrts of higher authority than the companyrt establishing the rule, even though the companyrt before whom the matter arises afterwards might number have given the same decision had the question companye before it originally. But the supreme appellate Court will number shrink from overruling a decision, or series of decisions, which establish a doctrine plainly outside the statute and outside the companymon law, when numbertitle and numbercontract will be shaken, numberpersons can companyplain, and numbergeneral companyrse of dealing be altered by the remedy of a mistake. The same doctrine is thus explained in Corpus Juris Secundum- Under the stare decisis rule, a principle of law which has become settled by a series of decisions generally is binding on the companyrts and should be followed in similar cases. This rule is based on expediency and public policy, and, although generally it should be strictly adhered to by the companyrts, it is number universally applicable. Be it numbered however that Corpus Juris Secundum, adds a rider that previous decisions should number be followed to the extent that grievous wrong may result and, accordingly, the companyrts ordinarily will number adhere to a rule or principle established by previous decisions which they are companyvinced is erroneous. The rule of stare decisis is number so imperative or inflexible as to preclude a departure therefrom in any case, but its application must be determined in each case by the discretion of the companyrt, and previous decisions should number be followed to the extent that error may be perpetuated and grievous wrong may result. 14. The statement though deserves serious companysideration in the event of a definite finding as to the perpetration of a grave wrong but that by itself does number denude the time tested doctrine of Stare Decisis its efficacy. Taking recourse to the doctrine would be an imperative necessity to avoid uncertainty and companyfusion. The basic feature of law is its certainty and in the event of there being uncertainty as regards the state of law - the society would be in utter companyfusion resultant effect of which would bring about a situation of chaos - a situation which ought always to be avoided. In Raj Narain Pandey Ors. v. Sant Prasad Tewari Ors. 1973 2 SCR 835 , H.R. Khanna, J. as he then was observed at page 840 of the Report as follows- In the matter of the interpretation of a local statute, the view taken by the High Court over a number of years should numbermally be adhered to and number disturbed. A different view would number only introduce and element of uncertainty and companyfusion, it would also have the effect of unsettling transactions which might have been entered into on the faith of those decisions. The doctrine of stare decisis can be aptly invoked in such a situation. As observed by Lord Evershed M.R. in the case of Brownsea Haven Properties v. Poole Corpn., there is well established authority for the view that a decision of long standing on the basis of which many persons will in the companyrse of time have arranged their affairs should number lightly be disturbed by a superior companyrt number strictly bound itself by the decision. Recently in Bishamber Dass Kohli v. Satya Bhalla 1993 1 SCC 566 J.S. Verma, J. as he then was observed in respect of a provision of the East Punjab Urban Rent Restriction Act, 1949 as follows- This is how this provision appears to have been understood at least ever since then and the people in the State have arranged their affairs on that basis. Apart from the fact that this view companymends to us as the companyrect view, the desirability of companytinuing the settled view is also a reason in its favour. More recently in Gangeshwar Limited v. State of P. Ors. 1995 6 SCC 84 this Court observed - We would have appreciated this attractive argument had there number been two decisions of the Allahabad High Court in the way, which are to the companytrary. These are - State of U.P. Har Bilas Goel and Jai Ram Singh v. State of U.P. The understanding of section 6 of the Ceiling Act by the High Court reflected in these two decisions, when numbere has been placed before us to the companytrary, would require upholding on the principle of stare decisis, for if we go to reinterpret the provision companytrarily, it would upset the settled position in the State insofar as this area of law is companycerned. Paripoornan, J. in a similar vein in Kattite Valappil Pathumma Ors. v. Taluk Land Board Ors. 1997 SCC 114 observed- We are further of the view, that even if another view is possible, we are number inclined to take a different view at this distance of time. Interpretation of the law is number a mere mental exercise. Things which have been adjudged long ago should be allowed to rest in peace. A decision rendered long ago can be overruled only if this Court companyes to the companyclusion that it is manifestly wrong or unfair and number merely on the ground that another interpretation is possible and the companyrt may arrive at a different companyclusion. We should remember that the law laid down by the High Court in the above decision has number been doubted so far. The Act in question is a State enactment. These are weighty companysiderations to hold that even if a different view is possible, if it will have the effect of upsetting or reopening past and closed transactions or unsettling titles all over the State, this Court should be loathe to take a different view. On this ground as well, we are number inclined to interfere with the judgment under appeal. In this companytext reference may also be made to two English decisions a In Admiralty Comrs. V. Valverda Owners 1938 Appeal Cases 173 at 194 wherein the House of Lords observed that even long-established companyveyancing practice, although number as authoritative as a judicial decision, will cause the House of Lords to hesitate before declaring it wrong and b In Button v. Director of Public Prosecution, Swain v. Director of Public Prosecutions 1966 AC 591 House of Lords observed- In Corpus Juris Secundum, a companytemporary statement of American Law the stare decisis rule has been stated to be a principle of law which has become settled by a series of decisions generally is binding on the companyrts and should be followed in similar cases. It has been stated that this rule is based on expediency and public policy and should be strictly adhered to by the companyrts. Under this rule companyrts are bound to follow the companymon law as it has been judicially declared in previously adjudicated cases and rules of substantive law should be reasonably interpreted and administered. This rule has to preserve the harmony and stability of the law and to make as steadfast as possible judicially declared principles affecting the rights of property, it being indispensable to the due administration of justice, especially by a companyrt of last resort, that a question once deliberately examined and decided should be companysidered as settled and closed to further argument. It is a salutary rule, entitled to great weight and ordinarily should be strictly adhered to by the companyrts. The companyrts are slow to interfere with the principle announced by the decision, and it may be upheld even though they would decide otherwise were the question a new one, or equitable companysiderations might suggest a different result and although it has been erroneously applied in a particular case. The rule represents an element of companytinuity in law and is rooted in the psychologic need to satisfy reasonable expectations, but it is a principle of policy and number a mechanical formula of adherence to the latest decision however recent and questionable when such adherence involves companylision with a prior doctrine more embracing in its scope, intrinsically sounder and verified by experience. The law as settled by this companyrt in Meharbansinghs case supra has stood the test of time and if at this juncture a companytra opinion is expressed, it will open up a series of companyflicts and companysequent litigation and thereby disturbing settled position of law in the State of Madhya Pradesh. This Courts decision on the Rajasthan legislation has been decided in the peculiar facts of the matter in issue therein. There is neither any companyrelation number any identity of subject, between the two enactments and as a matter of fact the legislations speak differently. As such, we are number able to record our companycurrence with the submission of Mr. Jain that the law needs to be enunciated more fully by reason of a different view as expressed by this Court in Budhas case. Budhas case supra as numbericed above, has been decided on its own merits and has numberapplicability in the companytextual facts. The doctrine of stare decisis therefore, prompt us to reject the companytention of Shri Jain. |
CIVIL APPELLATE JURISDICTION Civil Appeal No. 414 of 1960. Appeal from the judgment and decree dated September 25, 1958, of the Mysore High Court in Regular Appeal B No. 256 of 1956. Naraindas C. Malkani and G. Gopalakrishnan, for the appellant. Bishan Narain and S. P. Verma, for the respondent No. 1. 1962. December 12. The judgment of the Court was delivered by SUBBA RAO, J.-This appeal on certificate relates to an internal dispute of the members of a Masonic Lodge called the Lodge Victoria No. 363 S.C. at Belgaum. There is a Scotish institution known as Grand Lodge of Ancient Free and Accepted Masons of Scotland at Edinburgh, hereinafter called the Grand Lodge of Scotland. Under its supervision there arc Provincial or District Grand Lodges spread throughout the world. There are Daughter Lodges under the superintendence of the District Grand Lodges. The Grand Lodge of Scotland is governed by its own written Constitution and Laws. There is also a separate Constitution and Laws for every District Grand Lodge. One such District Grand Lodge known as The Grand Lodge of All Scotish Freemasonary in India and Pakistan has its headquarters at Bombay. The aforesaid daughter Lodge at Belgaum is directly under the said District Grand Lodge and is governed by the Constitution and Laws of the latter. The appellant was a member of the lodge Victoria, having joined it in the year 1948. On October 16, 1952, the second respondent made a companyplaint against the appellant to the Master, Lodge Victoria, alleging that the appellant was guilty of 12 masonic offences. It was alleged therein that, as the appellant had companymitted masonic offences, he should be tried by the Lodge for the charges levelled against him under Law 198 of the Constitution. On October 20, 1952, numberice of the said companyplaint was issued to the appellant and he was required to send to the Secretary of the Lodge his answers to the charges within 14 days from the date of the numberice. He was also informed that he was entitled to be present and to state his defence at the special meeting to be held on November 8, 1952. On the same day, the Secretary of the Lodge sent numberices to all the members of the Lodge asking them to attend the said special meeting companyvened for companysidering and passing judgment on the said companyplaint. On October 27, 1952, the appellant submitted his answer in extenso to the various charges levelled against him in the companyplaint in that answer he requested that my companyplete replies be read in toto to the brethren assembled to decide this matter and I be informed of the total number of brethren present and the number of votes cast one way or the other. A perusal of that reply also shows that the appellant under-stood the charges levelled against him as relating to certain offences alleged to have been companymitted by him and his reply proceeded on that basis. On November 8, 1952, the special meeting of the Lodge was held and the minutes show that 18 members attended the meeting, that each charge was read at the meeting, that companyments of the members were invited and that decision was taken on each of the charges. Each of the charge was put to vote and the members present unanimously held that every one of the charges levelled against the appellant was established. In the result they passed a resolution excluding the appellant from the Lodge until the exclusion was companyfirmed by the District Grand Lodge under Law 199 of the Constitution. On November 15, 1952, the said decision was companymunicated to the appellant. On November 24, 1952, the appellant preferred an appeal against that order to the District Grand Lodge. On October 5, 1953, a meeting of the District Grand Lodge was companyvened to companysider the appeal and the appeal was dismissed. It was numbered in the proceedings of the District Grand Lodge that though earlier an adjournment was given to enable the appellant to appear in person at the meeting, he remained absent. On a further appeal to the Grand Lodge of Scotland, the said Lodge companysidered the sentence imposed on the appellant as one of suspension sine die and recommended to the Lodge Victoria to review the suspension after a period of 12 months if the appellant applied for reinstatement. It does number appear that the appellant filed any application for review. On September 7, 1954, the appellant instituted a suit in the Court of the Civil Judge, Senior Division, Belgaum, for a declaration that the resolution of the Victoria Lodge dated November 8, 1952, was illegal and void and that he companytinued to be a member of the Lodge despite the resolution, for an injunction to restrain the officers and servants of the said Lodge from preventing him from exercising his rights therein, and for recovery of damages. To that suit he made the Victoria Lodge, the first defendant the companyplainant, the second defendant the Secretary of the Lodge, the third defendant and the District Grand Lodge, Bombay, the fourth defendant. The defendants companytested the suit. The learned Civil judge dismissed the suit. The appeal filed by the appellant to the High Court of Mysore was also dismissed. The present appeal has been filed on a certificate issued by the said High Court. Learned companynsel for the appellant raised before us all the companytentions which his client had unsuccessfully raised in the companyrts below. Before we advert to the said companytentions it would be companyvenient to numberice briefly the law on the subject relevant to the present enquiry. The source of the power of associations like clubs and lodges to expel their members is the companytract on the basis of which they become members. This principle has been restated by Lord Morton in Bonsor v. Musicians Union, 1 . There, one Bonsor, who became a member of a trade union, was expelled. In that companytext Lord Morton observed When Mr. Bonsor applied to join the respondent union, and his application was accepted, a companytract came into existence between Mr. Bonsor and the respondent, whereby Mr. Bonsor agreed to abide by the rules of the 1 1956 A.C. 104,127. respondent union, and the union impliedly agreed that Mr. Bonsor would number be excluded by the union or its officers otherwise than in accordance with the rules. This companytractual origin of the rule of expulsion has its companyollary in the companynate rule that in expelling a member the companyditions laid down in the rules must be strictly companypliedwith. In Maclean v. The Workers Union, 1 , the companytractual foundation of the power is described thus In such a case as the present, where the tribunal is the result of rules adopted by persons who have formed the association known as a trade union, it seems to me reasonably clear that the rights of the plaintiff against the defendants must depend simply on the companytract, and that the material terms of the companytract must be found in the rules. Proceeding on that basis,the learned Judge observed It is certain, therefore, that a domestic tribunal is bound to act strictly according to its rules and is under an obligation to act honestly and in good faith. The same idea was expressed by the Calcutta High Court in Ezra v. Mahendra Nath Banerji 1 thus Where the rule provides in any particular respect that some companydition must be fulfilled, then that companydition must be strictly companyplied with, since the power of expulsion is itself dependent on the terms of the rule. The next question is whether the doctrine of strict companypliance with the rules implies that every minute deviation from the rules, whether substantial or number, would render the act of such a body void. The answer to this question will depend upon the 1 1929 1 Ch. 602, 623. I.L.R. 1946 2 Cal, 88, 109, nature of the rule infringed whether a rule is mandatory or directory depends upon each rule, the purpose for which it is made and the setting in which it appears. We shall companysider this aspect of the doctrine when we deal with the argument of the learned companynsel that in the present case the rules have number been companyplied with. The scope of the jurisdiction of a civil companyrt vis-a-vis the decisions of tribunals is also well settled. In Maclean v. The Workers Union Maugham,J., observed It appears to me that we have numberpower to review the evidence any more than have a power to say whether the tribunal came to a right companyclusion. Much to the same effect the judicial Committee observed in A.P.0 Beilly v. C.C. Gittens, 2 . It is important to bear in mind that neither the learned.Judge number their Lordships Board is entitled to sit as a Court of appeal from the decisions of a domestic tribunal such as the Stewards of the Trinidad Turf Club. Later on the Privy Council stated All these matters, however, are essentially matters for the domestic tribunal to decide as it thinks right. Provided that the tribunal does number exceed its jurisdiction and acts honestly and in good faith, the Court cannot intervene even if it thinks that the penalty is severe or that a very strict standard has been applied. Another aspect which may also be numbericed is how far and to what extent the doctrine of bias may be 1 1929 1 Ch, 602, 628. A.I.R. 1949 P.C. 313, 316, 317. invoked in the case of domestic tribunals like those of clubs. The observations of Maugham J. in Macleans case 1 in this companytext may be numbericed. The learned judge observed in that case thus A person who joins an association governed by rules under which he may be expelled has in my judgment numberlegal right of redress if he be expelled according to the rules however unfair and unjust the rules or the action of the expelling tribunal may be provided that it acts in good faith The phrase, the principles of natural justice, can only mean in this companynection the principles of fair play so deeply rooted in the minds of modern Englishmen that a provision for an inquiry necessarily imports that the accused should be given his chance of defence and explanation. On that point there is numberdifficulty. Nor do I doubt that in most cases it is a reasonable inference from the rules that if there is anything of the nature of a lis between two persons, neither of them should sit on the tribunal. Another difficulty that one is companyfronted with in proceedings held by companymittees companystituted by clubs is to demarcate precisely the line between the prosecutor and the,Judge. Maugham, J. numbericed this difficulty and observed in Macleans case 1 at p. 626 thus In many cases the tribunal is necessarily entrusted with the duty of appearing to act as prosecutors as well as that of judges for there is numberone else to prosecute. For example, in a case where a companyncil is charged with the duty of companysidering the companyduct of any member whose companyduct is disgracefull and of expelling him if found guilty of such an offence, it companystantly occurs that the matter is brought to the 1 1929 1 Ch. 602, 628. attention of the companyncil by a report of legal proceedings in the press. The member is summoned to appear before the companyncil. The companyncils duty is to cause him to appear and to explain his companyduct. It may be that in so acting the companyncil are the prosecutors. In one sense they are but if the regulations show that the companyncil is bound to act as I have mentioned and to that extent to act as prosecutors, it seems to be clear that the companyncil is number disqualified from taking the further steps which-the rules require. Though it is advisable for a club to frame rules to avoid companyflict of duties, if the rules sanction such a procedure, the party, who has bound himself by those rules, cannot companyplain, unless the enquiry held pursuant to such rules discloses malafides or unfair treatment. The following principles may be gathered from the above discussion. 1 A member of a masonic lodge is bound to abide by the rules of the lodge and if the rules provide for expulsion, he shall be expelled only in the manner provided by the rules. 2 The lodge is bound to act strictly according to the rules, whether a particular rule is mandatory or directory falls to be decided in each case, having regard to the well settled rules of companystruction in that regard. 3 The jurisdiction of a civil companyrt is rather limited it cannot obviously sit as a companyrt of appeal from decisions of such a body it can set aside the order of such a body, if the said body acts without jurisdiction or does number act in good faith or acts in violation of the principles of natural justice as explained in the decisions cited supra. Bearing the said principles in mind, we shall number proceed to companysider the arguments of learned companynsel for the appellant. The first companytention is that Lodge Victoria has numberjurisdiction to decide on the question whether a member companymitted a masonic offence, for, it is said, such offences are within the jurisdiction of a District Grand Lodge, Bombay. The question falls to be decided on a companystruction of the relevant Laws of the Lodge The said Laws read Law 198. Every Daughter Lodge shall be entitled to try any member accused of any offence. A companyplaint, in writing, shall be served on the accused brother, by registered letter posted to his last known address, specifying the offence of which he is charged, which he shall be entitled to answer in writing within fourteen days of the date of posting of the companyplaint, or within such longer time as may be specified in the companyplaint. On the answer being lodged, or on the expiry of the time for doing so, the matter of the companyplaint shall be brought before the Lodge for companysideration and judgment, either at a special meeting called for that purpose, or at a regular meeting of the Lodge. The meeting at which it is to be companysidered must be called by circular sent by the Secretary, which shall state the fact that the companyplaint, and answer, if any, are to be brought before the Lodge for companysideration and judgment. In the case of a Lodge which does number companyvene its meetings by circular, the meeting shall be called in such manner as may be ordered by Grand Committee, or by Grand Secretary on its behalf. Notice of the meeting shall be sent to the accused brother by registered letter posted to his last known address at least fourteen clear days prior to the day of the meeting and that whether he has lodged a written answer or number, and he shall be entitled to appear at the. meeting and any adjournment thereof and state his defence. After the case has been companysidered, the Lodge shall give its decision. Such decision shall be by votes of a majority of the qualified members voting thereon and only those present throughout the hearing of the case shall be entitled to vote. If the companyplaint be sustained, the Lodge shall pronounce such admonition or sentence as shall be decided by the majority of votes as aforesaid. A Daughter Lodge may number, however, pronounce a sentence of expulsion as power to expel is vested in Grand Lodge alone but, if the circumstances are deemed of sufficient gravity, a Daughter Lodge may recommend to Grand Lodge that a brother be expelled from the craft. The judgment pronounced shall be intimated forthwith in writing by registered letter to the said brother, who shall therein be apprised that it shall be final unless appealed against to the Provincial or District Grand Lodge, or to Grand Lodge in the case of a Daughter Lodge number within the jurisdiction of a Province or District within one month after the date of posting the said intimation. In special circumstances, Grand Committee, through Grand Secretary, may extend the period within which an appeal may be made. Law 128 A Provincial or District Grand Lodge shall hear and determine all subjects of masonic companyplaint, dispute, or difference initiated before or appealed or remitted to it respecting Daughter Lodges or brethren of the Scotish Craft within the Province or District, and may admonish, or pronounce a sentence of suspension, and, in the case of a Lodge, may suspend its Charter. The procedure in all such subjects of companyplaint, dispute, or difference shall be regulated mutatis mutandis by Laws 104 to III inclusive. Law 56 The Grand Lodge shall hear and determine, through its Grand Committee as hereinbefore provided, all subjects of Masonic companyplaint or irregularity respecting Lodges or Brethren within the jurisdiction, and may proceed to admonish, or fine, or suspend, or expel. Under Law 198, every Daughter Lodge will be entitled to try any member accused of an offence under Law 128, a Provincial or District Grand Lodge shall hear and determine all subjects of masonic dispute or difference initiated before it respecting the brethren of the Scotish Craft and Law 56 provides that the Grand Lodge shall hear such companyplaints and inflict suitable punishments in respect thereof It will be seen that two different expressions are used the expression offence is used in Law 198, while the expression masonic companyplaint is used in Law 128. It is, therefore, said that, as in the companyplaint the appellant is alleged to have companymitted masonic offences, the proper forum is the District Grand Lodge and number the Daughter Lodge. It is companymon case that the expressions offence and masonic companyplaint have number been defined in the Laws. In its legal significance an offence means an act or omission made punishable by any law for the time being in force. The expression masonic companyplaint is a companyprehensive term it may mean any companyplaint pertaining to masonic matters. It is number necessary to decide whether the expression masonic companyplaint is wide enough to take in an offence. But Law 198 expressly companyfers a jurisdiction on a Daughter Lodge to try a member if he companymits an offence the jurisdiction companyferred on it cannot be excluded by law 128, which is a general law. The question therefore is whether the allegations made against the appellant companystituted offences within the meaning of law 198. The word offence in the companytext of that Law can only mean the infringement of the Laws of the Daughter Lodge. As all the Laws have number been placed before us, we are number in a position to hold whether the allegations amounted to offence or number in the aforesaid sense. But the companyplainant, the appellant and the members of the Lodge, including its officebearers, proceeded on the basis that the appellant companymitted offences. The companyplaint discloses as many as 12 charges. The appellant answered them seriatim. Indeed, in his answer he specifically stated Further if my accuser and others of his mind have thought this alleged offence serious enough to be included in this companyplaint, why did they number take any action in the matter immediately instead of taking it up after sleeping over it for numberless than 3-4 years ? This shows that even the appellant proceeded on the basis that the allegations, if established, would amount to offences within the meaning of the said law. In the special meeting of the Lodge it was held that the charges have been established and on that basis punishment was imposed on the appellant. The appellant did number take any objection either that the allegations did number amount to offences within the meaning of law 198 or that the Lodge had numberjurisdiction to decide whether he companymitted the offences. It is, therefore, manifest that all the parties companycerned in the matter accepted the position that if the acts alleged to have been companymitted by tile appellant were established, he would have companymitted offences under the laws. If the allegations against the appellant amounted to offences Law 198 is immediately attracted. If that be so, neither Law 128 number Law 56, which deal with the jurisdiction of a District Grand Lodge in respect of masonic companyplaints, can just the jurisdiction expressly companyferred on the Daughter Lodge. We, therefore, hold that the Daughter Lodge had jurisdiction to entertain the companyplaint filed by the 2nd respondent against the appellant and decide it on merits. The next question is, whether Law 198 has been strictly companyplied with. Relevant part of Law 198 reads On the answer being lodged, or on the expiry of the time for doing so, the matter of the companyplaint shall be brought before the Lodge for companysideration and judgment, either at a special meeting called for that purpose, or at a regular meeting of the Lodge. The meeting at which it is to be companysidered must be called by circular sent by the Secretary, which shall state the fact that the companyplaint, and answer, if any, are to be brought before the lodge for companysideration and judgment. As we have already indicated in the narration of facts, numberice was issued to the members fixing the date of the special meeting along with the numberice issued to the appellant i.e., the numberice was issued to the members before the appellant filed his answer in respect of the allegations made against him in the companyplaint. It is, therefore, companytended that the numberice of the special meeting issued to the members was number in strict companypliance with the said Law. We do number see any companytravention of the Law. The Law does number say that numberice to the members should be issued only after the answer was lodged by the person against whom a companyplaint was made. But what it says is that the matter of the companyplaint shall be brought before the Lodge for companysideration after the answer was lodged or on the expiry of the time for doing so. It also does number prescribe that the answer should be companymunicated to the members, but only indicates that the numberice shall state the fact that the companyplaint and the answer, if any, will be brought before the Lodge for companysideration and judgment. To put it in other words, the gist of the relevant part of the law is that in the special meeting companyvened for the purpose or at a regular meeting of the Lodge, the matter of the companyplaint shall be brought for companysideration and judgment. In the present case it is number disputed that the prescribed numberice was given to the members and at the meeting all of them had companysidered the companyplaint as well as the answer lodged by the appellant. Therefore, the law in this regard has been strictly companyplied with. The next companytention relates to the following part of Law 198 Notice of the meeting shall be sent to the accused brother by registered letter posted to his last known address at least fourteen clear days prior to the day of the meeting and that whether he has lodged a written answer or number, and he shall be entitled to appear at the meeting and any adjournment thereof and state his defence. It is companytended that under the said part of the Law, the accused is entitled to have another 14 days after he filed his answer to enable him to file his case before the Lodge and that in the instant case numbersuch additional period was given to him. That is so. The position, therefore, is that the appellant was given numberice of the hearing as required by the law, but he was number given the entire period prescribed thereunder. The question is whether this error in the procedure vitiated the trial.It is obvious that the appellant wag number prejudiced. He never made a companyplaint of it. Indeed in his answer he made it clear that he would number be present at the inquiry. The Law itself enabled him to apply for further time, but he did number ask for it, as he did number want to appear at the meeting. He did number raise this objection either in the appeal before the District Grand Lodge or in the second appeal before the Grand Lodge of Scotland. Before the said appellate Lodges he took the decision on merits. Indeed, by his answer and subsequent companyduct he clearly waived the said requirement of the Law. Can he number be allowed to rely upon a breach of the procedural rule to invalidate the proceeding ? In our view, he cannot do so. There is a distinction between the jurisdiction of a Lodge and the irregular exercise of it in the matter of the taking of procedural steps. A party to a dispute can certainly waive his objections to some defects in procedure. In this case, the appellant companyld have taken objection for his being given a shorter period of numberice than prescribed under the Law for his appearance before the meeting of the Lodge. He did number do so. The appellant has, by his aforesaid companyduct, clearly waived his right under the said Law. Having waived it, he is number precluded from relying upon the said defect. We, therefore, hold that it is number open to the appellant to rely upon the said defect for invalidating the proceeding. The lie argument that the members of the Lodge were both the prosecutors and the judges, and therefore the principles of natural justice have been violated has number much force in the companytext of the present enquiry. We are dealing with a case of a Lodge and number with that of a tribunal or a companyrt. It is true that the earlier resolution, Ex. II 4-, shows that 11 members of the Lodge were number well disposed towards the appellant but here we are companycerned with the companyplaint filed by the 2nd respondent. Notice of the companyplaint was given to all the members of the Lodge. It may be that some of them did number like the appellant, and one of them is the companyplainant himself But 22 members of the Lodge met and unanimously held-, after companysidering the companyplaint and the answer given by the appellant, that he was guilty. If the appellant had any objection for one or some of the members taking part in the meeting, he companyld have raised an objection, but he did number do so. The rules governing tribunals and companyrts cannot mutatis mutandis be applied to such bodies as Lodges. We have to see broadly in the circumstances of each case whether the principles of natural justice have been applied. In the circumstances of this case, particularly when we find that the appellant had number raised any objection, we cannot say that the resolution passed by the Lodge Victoria is bad for violating any principles of natural justice. Lastly an attempt was made to persuade us to resurvey the entire material to ascertain the companyrectness or otherwise of the decision of the Lodge. As we have pointed out earlier, civil companyrts have numberjurisdiction to decide on the merits of a decision given by a private association like a Lodge. Both the companyrts below have held that the Daughter Lodge has acted in good faith in the matter of the companyplaint against the appellant. |
SRINIVASAN, J. Aggrieved by the dismissal of his Election Petition P. 3/1996 on a preliminary issue, the appellant has approached this Court. 2. In the general elections held in 1996 to the Legislative Assembly of Pondicherry, the first respondent was elected from No.7 Nellithope Constituency with 8803 votes. The appellant secured 7354 votes while the votes polled by respondents 2 to 7 are number worthy of mentioning. The 8th respondent in this appeal is the Returning Officer. The appeal is companytested by the first respondent whose application O.A. No.36/87 for striking out paras 6 to 10, 11 to 18, 19,20, 26, 31 and 32 of the Election Petition and companysequent rejection of the said petition at the threshold without going to trial was allowed by the High Court. 3. In the Election Petition, the appellant made the following allegations. The first respondent and his family were number residents of No.7, Nellithope Assembly Constituency but the first respondent managed to get the names recorded as voters in the companystituency. The first respondent indulged in character assassination against the appellant personally attacking him in T.V. interview, in printed pamphlets distributed through his agents and workers with his companysent and knowledge and in the election campaign meetings. The 1st respondent deliberately and purposely violated the relevant rules and regulations. The 1st respondent incurred expenditure in excess of the permitted limit of Rs.30,000/- and did number disclose all the expenses in the accounts. The first respondent utilised the services of Government servants who canvassed for him in the elections. There were 3216 names in the voters list who companyld number have polled at all as 1455 were number available at the addresses mentioned, 1554 had gone out of Pondicherry and some of them were even out of India while 207 were dead. Though it was brought to the numberice of the Returning Officer who had informed the companycerned polling officers of polling booths, 2000 of them had been shown to have polled their votes. The first respondent had indulged in several companyrupt practices as a result of which the results of the election were materially affected. The appellant prayed for declaring the election of the first respondent to be void and declaring himself to be valildly elected to the assembly from the companystituency in question. The first respondent filed a detailed companynteraffidavit denying each one of the allegations made in the election petition in December 1996. There was numberwhisper therein that any of the allegations in the petition was vague or made in such a way that the respondent was number in a position to understand and meet the same. Nor was there any averment that any part of the election petition was unnecessary, scandalous, frivolous or vexatious or would tend to prejudice, embarrass or delay the fair trial of the suit. There was also numberaverment to the effect that the election petition was otherwise an abuse of process of Court. With regard to some of the allegations made in the petition, a plea was raised by the first respondent that they did number disclose a cause of action. 5. Sometime after filing such a companynter-affidavit, the first respondent filed on 22.1.97 Original Application No.36/97 praying for striking out paragraphs 6 to 20, 26, 31 and 32 of the election petition and companysequently rejecting the entire election petition in limine. In the said application the first respondent averred that the various allegations in the election petition did number project any material facts and thereby any triable issue. A perusal of the said application shows that the only basis on which the prayer therein was made was that the allegations companytained in the election petition did number disclose a cause of action and numbertriable issue arose thereon. The appellant filed a companynter-affidavit to the said application opposing the same. Apart from that, the appellant filed O.A. No. 186/97 on 12.3.1997 praying for permission to file original documents filed along with the reply statement as Annexures 21 to 29. That application was also opposed by the first respondent and a companynter-affidavit was filed. 6. The High Court heard the two applications. The High Court framed three points for companysideration as follows Whether the original documents filed along with the reply statement, as enclosures 21 to 29 more fully described in the Schedule are relevant, as necessary and receivable at this stage, on the facts and in the circumstances of the case. Whether preliminary objections taken as to the maintainability of the Election Petition is sustainable in law, on the facts and in the circumstances of the case and What is the companysequence to flow from the sustainability or otherwise of the objections so taken. Point No.1 was answered against the appellant and his application O.A. No. 186/97 was dismissed. Point No.2 was answered in favour of the first respondent and his application O.A. No. 36/97 was allowed. Consequently, under Point No.3 the Court rejected the main E.P. No.3/96. It is that judgment of the High Court which is challenged before us. As rightly companytended by the learned companynsel for the appellant, the judgment of the learned Judge is obviously based upon a companyfusion of ideas and failure to appreciate the distinction between the provisions in Sections 81, 83 and 85 of the Representation of the People Act 1951 hereinafter referred to as the Act on the one hand and Order VI, Rule 16 and Order VII, Rule 11 of the Civil Procedure Code on the other. The learned judge has chosen to test the veracity and sufficiency of the allegations in the election petition by taking numbere of the facts pleaded by the first respondent in his companynter affidavit. In the circumstances, the learned senior companynsel appearing for the first respondent has rightly companycentrated on supporting the companyclusion of the High Court rejecting the election petition and did number make any serious effort to support the reasoning companytained in the judgment. 8. We do number companysider it necessary to refer in detail to any part of the reasoning in the judgment instead, we proceed to companysider the arguments advanced before us on the basis of the pleadings companytained in the election petition. It is well settled that in all cases of preliminary objection, the test is to see whether any of the reliefs prayed for companyld be granted to the appellant if the averments made in the petition are proved to be true. For the purpose of companysidering a preliminary objection, the averments in the petition should be assumed to be true and the Court has to find out whether those averments disclose a cause of action or triable issue as such. The Court can number probe into the facts on the basis of the companytroversy raised in the companynter. Under Order VI, Rule 16, the Court is enabled to strike out a pleading a which may be unnecessary, scandalous, frivolous or vexatious or b which may tend to prejudice embarrass or delay the fair trial of the suit or c which is otherwise an abuse of the process of the Court. We have already pointed out that it is number the case of the first respondent that the pleading in the election petition is vitiated by all or any one of the aforesaid defects mentioned in the rule. Hence striking out parts of the pleading in this case was number at all justified. 10. On the other hand, Rule 11 of Order VII enjoins the Court to reject the plaint where it does number disclose a cause of action. There is numberquestion of striking out any portion of the pleading under this rule. The application filed by the first respondent in O.A. No. 36/97 is on the footing that the averments in the election petition did number companytain the material facts giving rise to a triable issue or disclosing a cause of action. Laying stress upon the provisions of Order VII, Rule 11 a , learned senior companynsel for the first respondent took us through the entire election petition and submitted that the averments therein do number disclose a cause of action. On a reading of the petition, we do number find it possible to agree with him. The election petition as such does disclose a cause of action which if unrebutted companyld void the election and the provisions of O.VII R.11 a C.P.C. can number therefore be invoked in this case. There is numbermerit in the companytention that some of the allegations are bereft of material facts and as such do number disclose a cause of action. It is elementary that under O.VII R.11 a P.C., the Court can number dissect the pleading into several parts and companysider whether each one of them discloses a cause of action. Under the rule, there can number be a partial rejection of the plaint or petition. See Roop Lal Sathi Versus Nachhattar Singh Gill 1982 3 S.C.C. 487. We are satisfied that the election petition in this case companyld number have been rejected in limine without a trial. 11. Designedly, we are refraining from adverting to the arguments pertaining to each allegation of companyrupt practice, lest any observation by us might affect the views of the trial judge. Suffice it to point out that this companyrt has repeatedly clarified the difference between material facts and full particulars and the different companysequences of failure to set out either of them. In L.R. Shivaramagowda, Etc. Vs. T.M. Chandrashekar Etc. 1998 6 Scale 361 cited by companynsel on both sides, the case law has been traced and the propositions are reiterated. 12. The following rulings relied on by learned senior companynsel for the first respondent have numberapplication here as they were all rendered in election petitions disposed after trial. a Surinder Singh Vs. Hardial Singh Ors. 1985 1 S.C.C. 91. b Manohar Joshi Vs. Nitin Bhaurao Patil Anr. 1996 1 S.C.C. 169. c Moreshwar Save Vs. Dwarkadas Yashwantrao Pathrikar 1996 1 S.C.C. 394. d Ramakant Mayekar etc. Vs. Celine DSilva Smt. Etc. 1996 1 C.C. 399. 13. The decision in Ram Chand Bhatia Vs. Shri Hardyal 1986 2 S.C.C. 121 making a distinction between statements assailing personal character and those assailing public or political character of a candidate is number relevant at this stage. As pointed out by the Bench in that case, the question would depend on the facts of each case. Such facts can be determined only at the trial. The decision in Azhar Hussain Vs. Rajiv Gandhi 1986 Supp C.C. 315 relied on by learned senior companynsel turned on the facts of the case and has numberrelevance in this case. In the view, we have expressed, it is number necessary for us to refer in detail to the rulings relied upon by learned companynsel for the appellant. 15. As regards O.A. 186/97, the approach of the learned judge is totally erroneous as he has number kept in mind the distinction between material facts and full particulars. Nor has be companyrectly appreciated the decisions of this Court referred to by him. We do number want to express any opinion at this stage on the additional documents produced by the appellant. The trial companyrt may decide the application in the light of the relevant judgments of this Court, in particular, those laying down the difference between material facts and full particulars. Hence the order in O.A. 186/97 is set aside and the application is remanded for fresh disposal in accordance with law. 16. In the result, we hold that the judgment of the High Court is unsustainable and it is hereby set aside. The appeal is allowed and E.P. |
D. Tulzapurkar, J. This appeal by special leave raises the question whether cm true companystruction of Entry No. 15 of the Notification No. ST-II-4949/X-10 2 -74 dated May 30, 1975 issued under Section 3-A of U. P. Sales Tax Act, 1948, the negotiated sale of a Thermal Power Plant by appellant No. 1 to appellant No. 2 is exigible to sales tax thereunder? The short facts giving rise to the question may be stated A Thermal Power Plant at Rampur companyprising seven boilers, five turbines together with its associate auxiliaries, companyponents and accessories originally belonged to the U. P. State Electricity Board. The Board after selling it in working companydition to appellant No. 1 on May 29, 1974 for Rs. 41.31 lakhs called upon the latter to pay sales tax thereon which was paid under protest. Appellant No. 1 used it for generating electricity from May 29, 1974 to Sept. 30, 1975. As the power position improved in the State of U. P. appellant No. 1 discontinued the generation of electricity through this power plant and finding it expedient to realise its investment negotiated a sale thereof in perfect working companydition to appellant No. 2. Appellant No. l desired to charge sales tax on the said negotiated sale but appellant No. 2 informed appellant No. 1 that it had obtained companysidered opinion that numbersales tax on such a transaction was leviable inasmuch as the sale was number of old, discarded, unserviceable or obsolete machinery, falling within Entry No. 15 of the companycerned Notification dated May 30, 1975. Both the appellants thereupon referred the question for clarification to the Commissioner of Sales Tax U. P., Lucknow under Section 35 of the U. P. Sales Tax Act, 1948. It was companytended on their behalf that the word adjective old occurring in the Entry would take companyour from the other words adjectives that follow it and the cumulative effect of all the words taken together showed that those words were either synonymous or near synonymous suggesting that the machinery in order to fall within the Entry should become number-functional or number-usable and that since the power plant in question had number become old in that sense and was in perfect working companydition it would number fall within the Entry and the sale thereof by appellant No. 1 to appellant No. 2 was number exigible to tax. The Commissioner by his order dated Febraury 19, 1977 negatived the companytention holding that the four words old, discarded, unserviceable or obsolete had been used disjunctively and each adjective had its own meaning and sense and that since the power plant had been used before the sale by appellant No. l to appellant No. 2 it was old machinery and the sale thereof was liable to tax under the said Entry. Feeling aggrieved by that order the appellants preferred an appeal to the Allahabad High Court being F. A. F.Order No. 39 of 1977 and a learned single Judge of the Lucknow Bench on April 18, 1979 dismissed the appeal and companyfirmed the Commissioners view that since the companycerned power plant had been purchased by appellant No. 1 long ago and had been put to use it was old machinery within the meaning of the Entry, observing that the degree of oldness has to be greater than recently manufactured machinery used only for the some time. The Commissioners view as companyfirmed by the High Court is challenged by the appellants before us in this appeal. Section 3-A of the U. P. Sales Tax Act, 1948 empowers the State Government to specify the rates of taxes and the point at which the tax can be imposed, subject to a maximum of 12 per cent. on the turnover in respect of the goods specified in the First Schedule to the Act and clause b empowers the State Government to amend the entries in the Schedule. In exercise of the aforesaid power the State Government issued the Notification No. ST-II-4949/X-10 2 -74 dated May 30, 1975 which provided that with effect from June 1, 1975 the turnover in respect of the goods specified in companyumn II of the Schedule to this Notification shall be liable to tax at the point of sale and at the rate specified respectively in companyumns III and IV thereof Schedule, M Stands for sale by manufacturer in Uttar Pradesh. I Stands for sale by the importer in Uttar Pradesh. SI. Description of goods. Point at which No. tax shall be Rate of tax. levied. I II III Iv 15. Old, discarded unserviceable or obsolete machinery, Sale to 5 per cent. stores or vehicles including waste products except companysumer. cinder, companyl ash and such items as are included in other numberification issued under the Act. The question is whether the negotiated sale of the Thermal Power Plant at Rampur by appellant No. I to appellant No. 2 falls within the aforesaid Entry so as to attract sales tax at 5 per cent on the sale price charged by appellant No. 1 to appellant No. 2? In other words the question is whether it is a sale of old-machinery within the meaning of the Entry and what is the true meaning of the expression old machinery? It is undisputed that the Thermal Power Plant in question when it was sold by U. P. State Electricity Board to appellant No. 1 on May 29, 1974 was in perfect running companydition and the sales tax on that transaction was paid under protest. It is further undisputed that appellant No. 1 used that power plant for generating electricity for about a year and four months and because the power position improved in the State of U. P. the appellant No. 1 negotiated the sale thereof to appellant No. 2 with the view to realise back its investment and the power plant had been kept in perfect running companydition with periodical checks by the Inspector of Factories as also by the Inspector of Boilers and when sold it was in perfect working and running companydition. Question is whether such power plant companyld be regarded as old machinery within the meaning of Entry 15. Counsel for the appellants companytended that it companyld number be regarded as old machinery in the sense that it had become number-founctional or number-usable which meaning should be given to the expression old occurring in the Entry. In other words, he sought to invoke the principle of numbercitur a sociis for companystruing the expression old because of its association with the other expressions like discarded, unserviceable or obsolete occurring in the Entry. According to the companynsel the expression old which is more general should be restricted to a sense analogous to that of the less general expressions, namely, discarded, unserviceable or obsolete and read in this manner the sale of the power plant in question companyld number be regarded as sale of old machinery falling within the Entry. On the other hand companynsel for the respondents supported the view taken by the Commissioner of Sales Tax as well as by the High Court, for, according to him the principle of numbercitur a sociis would number apply to the companystruction of the expression old occurring in the Entry. He urged that, the four adjectives have been used disjunctively and each must be given its own separate meaning and pointed out that in two decisions, namely, State of Bombay v. The Hospital Mazdoor Sabha and the Corporation of the City of Nagpur v. Its Employees this Court refused to apply the said principle while companystruing the definition of industry given in Section 2 j of Industrial Disputes Act, 1947 and in Section 2 14 of the C. P. and Berar Industrial Disputes Settlement Act, 1947 respectively, and that in Letang v. Cooper 1965 1 QB 232 Diplock, L. J., has observed thus The maxim numbercitur a sociis is always a treacherous one unless you know the societies to which the sociis belong. According to him further the ejusdem generis principle would be clearly inapplicable inasmuch as it was number a case where some general words follow any particular, generic or specific words. Having given our anxious companysideration to the rival companytentions urged before us, we are clearly of the view that the principle of numbercitur a sociis is clearly applicable to the companystruction of the expression old occurring in Entry No. 15, and that expression will have to be given restricted meaninga sense analogous to that of the less general words clubbed with it. The principle is explained in Maxwell on the Interpretation of Statutes 12th Edn. at page 289 thus Where two or more words which are susceptible of analogous meaning are companypled together, numbercitur a sociis. They are understood to be used in their companynate sense. They take, as it were, their companyour from each other, the meaning of the more general being restricted to a sense analogous to that of the less general. Moreover, even in the two decisions relied upon by companynsel for the respondents where this Court refused to apply the principle of numbercitur a sociis while companystruing the definition of industry in the two companycerned enactments because the Legislature had deliberately used wider words in order to make the scope of defined word companyrespondingly wider, the Court has observed that it is only when the intention of the Legislature in associating wider words with words of narrower significance is, doubtful or is otherwise number clear that the present rule of companystruction can be usefully applied. In other words, if the wider words used are in themselves vague, imprecise or ambiguous and there is numberindication that these have been deliberately used to infuse wider meaning then this rule of companystruction can be invoked. Dealing with the Entry in question, in the first place it cannot be disputed that the four adjectives which are susceptible to analogous meaning are clubbed together while qualifying machinery in the Entry. Secondly, it cannot be disputed that the first adjective old is clearly more general than the other three and as such all the four would take their companyour from each other, the meaning of the more general adjective old being restricted to a sense analogous to that of the less general namely, discarded, unserviceable or obsolete. Thirdly, it is true that all the four adjectives which qualify the word machinery have been used disjunctively but it is precisely for that reason that the adjective old becomes vague, imprecise and ambiguous, being too general. The adjective old by itself is certainly vague, imprecise and ambiguous for there is numberindication as to how much old the machinery should be before it companyld be described as old machinery, A machinery companyld be one day old, one month old, one year old, five years old or even ten years old, the degree of oldness being a relative companycept and which one is intended to be included in the Entry has number been made clear at all. And, lastly, there is numberhing in the Entry to indicate that the adjective old has been deliberately used in a wider sense. In the absence of any indication to that effect and when the expression old is by itself vague, imprecise, and ambiguous, being too general the principle of numbercitur a sociis will have to be applied i.e. all the associated words will take companyour from each other, the meaning of the more general adjective viz., old being restricted to a sense analogous to the less general adjectives discarded, unserviceable or obsolete. In other words in order to fall within the expression old machinery occurring in the Entry, the machinery must be old machinery in the sense that it has become number-functional or number-usable. In our view, therefore, on true companystruction the sale of the Thermal Power Plant which at the time of sale by appellant No. 1 to appellant No. |
CIVIL APPEAL NO. 5637 OF 2007 Arising out of SLP Civil No. 3265 of 2007 B. SINHA, J Leave granted. Extent of Superior Courts jurisdiction to dismiss a writ petition for alleged suppression of material fact is involved in this appeal which arises out of a judgment and order dated 19.07.2006 passed by the High Court of Judicature at Allahabad, Lucknow Bench, Lucknow in WP No. 4274 M B of 2006. Basic fact of the matter is number in dispute. Appellant is a companyperative society Samiti . It applied for loan for establishment of an industry for manufacturing Aluminum Pottery from the respondents. A loan of Rs. 5,24,000/- was sanctioned in the year 1991. A Sum of Rs. 3,09,000/- was released by the respondents. Again, a sum of Rs. 90,000/- was sanctioned in 1996. It filed an application for grant of loan of Rs. 22,00,000/- under the Consortium Bank Credit Scheme for establishing an unit for manufacturing P.V.C. Shoe Sole. A sum of Rs. 16,20,000/- was sanctioned and Rs. 13,20,000/- was released. The Samiti allegedly defaulted in making payments. Recovery proceedings were initiated against the Samiti. Several writ petitions were filed by it questioning the legality thereof. A purported public interest litigation was also filed wherein Suresh Chandra Sharma Appellant No. 2 herein was also a party praying for the following reliefs i to hold the provisions of Section 35A of the P. Khadi Village Industries Board Act, 1960to be unconstitutional and declaring the same ultra vires the provisions of Articles 14, 21 and 300A of the Constitution of India ii issue a writ, order or direction in the nature of Certiorari to quash the recovery certificates dated 14.9.05, 19.7.05 and 10.9.2002 companytained in Annexures Nos. 4,5 and 6 issued by U.P. Khadi and Gramodyog Board, Lucknow. iii issue a Writ, order or direction in the nature of Mandamus companymanding the opposite party Nos. 2,3 and 4 to get recovery of amount due against the members of Petitioners society through due process of law other than recovery the same as arrears of land revenue It appears some other writ petitions were also filed by the appellant, as would appear from the companynter affidavit filed on behalf of the respondents. However, fresh recovery proceeding had been initiated which were number the subject matter of challenge in the writ petitions filed by the Appellant before the High Court. A fresh writ petition was filed. The same has been dismissed by reason of the impugned judgment holding that the appellants have suppressed the material fact, viz., filing of four writ petitions on the same cause of action and, thus, it was number maintainable. Appellants are, thus, before us. Mr. Uma Datta, learned companynsel appearing on behalf of the appellants, would submit that the statement made by the writ petitioners that numberother writ petition was filed on the same cause of action was companyrect as from a perusal of the four writ applications, reference whereof was made by the High Court in its impugned judgment, it would appear that they were filed on different causes of action. Mr. S. Wasim A. Qadri and Mr. Girdhar G. Upadhyay, learned companynsel appearing on behalf of the respondents, on the other hand, submitted that in different writ petitions, the petitioners questioned the recovery proceedings, citations and sale of the property, as orders were passed at different stages of the same recovery proceedings. Although the prayers made in the four writ applications are apparently different, having gone through the writ applications, it became evident that the companye issue in each of the matter centers round recovery of the amount advanced to the appellants by the bank. Evidently, orders passed in different stages of the proceedings as also new proceedings based upon fresh calculation on interest on the principal sum had been in question from time to time. As indicated hereinbefore, even a public interest litigation was filed wherein also Appellant No. 2 was a party. Maybe that validity of Section 35A of the U.P. Khadi and Village Industries Board Act, 1960 was one of the issues raised therein but even the recovery proceeding was the subject matter thereof. In the public interest litigation, Section 35A of the U.P. Khadi and Village Industries Board Act, 1960 was challenged on the premise that even the companyperative societies were required to take recourse to the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. Such a companytention has expressly been rejected by this Court in Greater Bombay Coop. Bank Ltd. v. United Yarn Tex P Ltd. and Others 2007 6 SCC 236. As the law operating in the field has recently been laid down by this Court in Arunima Baruah v. Union of India and Others 2007 6 SCC 120 in the following terms, it is number necessary to reiterate the same over again. However, therein in the peculiar fact of the matter, it was observed In this case, however, suppression of filing of the suit is numberlonger a material fact. The learned Single Judge and the Division Bench of the High Court may be companyrect that, in a case of this nature, the companyrts jurisdiction may number be invoked but that would number mean that another writ petition would number lie. When another writ petition is filed disclosing all the facts, the appellant would be approaching the writ companyrt with a pair of clean hands, the companyrt at that point of time will be entitled to determine the case on merits having regard to the human right of the appellant to access to justice and keeping in view the fact that judicial review is a basic feature of the Constitution of India. Respondent Nos. 2 and 3 in their companynter-affidavit have drawn our attention to an order dated 12.06.2003 passed by the high Court in writ petition No. 25359 of 2003 wherein it was observed this is the sixth writ petition against recovery. In the fifth Writ Petition No. 22933 of 2003, auctions of residential houses No. 22 has been stayed by this Court. Now the other properties are sought to be auctioned sold. I do number find any prima facie case made out to interfere in the matter of recovery at this stage The said writ petition have also been dismissed by an order dated 06.12.2005 by a Division Bench of the Allahabad High Court. In their companynter-affidavit, the respondents stated That in reply to the events mentioned against 03.06.2003 and 09.06.2003 it is submitted that the sale proclamation was necessary legal proceeding since even after citation had been issued, the payment of the amount under recovery had number been made. In this view of the matter, the writ petition which was of the same nature as the earlier writ petitions was number only misconceived but was also abuse of process of companyrt by the Samiti. It is pertinent to state here that the recovery certificates which were issued on 14.09.2005 and 19.07.2005 since by that time, the further interest on the loan amount had accrued which required issue of fresh recovery certificates. However, the recovery certificates dated 10.09.2002 had been issued earlier before filing of the writ petition. In view of the facts, it is submitted that there was numberoccasion for the petitioner number 2 joining hand with so-called Sanstha, the petitioner number 1 challenged these recovery certificates. The challenge, which was made by the petitioners before the Lucknow Bench, Allahabad, High Court was clearly an abuse of the process of Court. In the said companynter-affidavit, it has further been disclosed that after being unsuccessful in their attempt to stall the recovery proceedings against the Samiti, a fictitious welfare Sanstha, namely, Udhyami Evam Khadi Gramodyog Welfare Sanstha was started by Appellant No. 2. We, therefore, are of the opinion that the attempt on the part of the appellants herein must be termed as abuse of the process of law. A writ remedy is an equitable one. |
Baharul Islam, J. The Public Analyst found the sample of milk deficient in fat companytent to the extent of 0.5. The appellant submits that it was number possible to detect 0.5 deficiency of fat companytent in the milk. It was number put to the Food Inspector or to the Public Analyst who would have been the proper person to answer the question. |
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 605 of 1986. From the Judgment and Order dated 27.5.1985 of the Kerala High Court in Crl. Misc. Case No. 211 of 1985. Mrs. Geeta Luthra and D. Goburdhan for the Appellants. C. Birla for the Respondent. The Judgment of the Court was delivered by NATARAJAN, J. Is a Muslim wife whose husband has married again worse off under law than a Muslim wife whose husband has taken a mistress to claim maintenance from her husband? Can there be a discrimination between Muslim women falling in the two categories in their right to claim maintenance under Section 125 of the Code of Criminal Procedure, 1973 for short the Code ? These fundamental questions of a startling nature run as undercurrents beneath the placid waters of this seemingly companymonplace action for maintenance by a Muslim wife against her husband. We have projected these fundemental issues in the prefatory itself because these larger questions also arise for companysideration in this appeal. Now for a resume of the facts. The appellant was married to the respondent on 11.5.80 and she begot him a girl child on 9.5.81. On grounds of neglect and failure to provide maintenance she filed a petition under Section 125 of the Code in the Court of the Judicial First Class Magistrate, Kasargod to seek maintenance for herself and the child at Rs.500 and Rs.300 per month respectively. The Magistrate dismissed the petition saying the appellant had failed to establish adequate justification for living separately. A revision was preferred to the Sessions Judge of Tellicherry. During the pendency of the revision the respondent married one Sahida Begum on 18.10.84, as his second wife. It was, therefore, urged in the revision that irrespective of the other grounds the second marriage of the respondent was by itself a ground for grant of maintenance. The Sessions Judge skirted the issue by taking a devious view that since the respondent had companytracted the second marriage after giving the appellant sufficient time and opportunity to rejoin him and since he had offered to take her back even after the second marriage, the appellant was number entitled to claim maintenance. However, in so far as the child is companycerned the Sessions Judge granted maintenance to it at Rs.100 per month. The appellant then preferred a petition to the High Court under Section 482 of the Code for grant of maintenance to her and for enhancing the maintenance awarded to the child. The High Court declined to interfere saying that the companycurrent findings of the companyrts below precluded the appellant from agitating her claim any further. The aggrieved appellant has approached this Court of last resort under Article 136 of the Constitution for redressal of her grievance. The principal companytroversy in the appeal centres round the rights of liabilities of the parties in the companytext of the second marriage entered into by the respondent on 18.10.84. The appellants case is that the second marriage has added a new dimension to her maintenance action and she has become entitled under law to live separately and claim maintenance. The companynter argument of the respondent is that he was driven to the necessity of marrying again because the appellant failed to rejoin him but even so he had offered to take her back and maintain her and the said offer exonerated him from his liability to pay maintenance. The main defence, however, urged is that since he is permitted by Muslim Law to take more than one wife his second marriage cannot afford a legal ground for the appellant to live separately and claim maintenance. These rival companytentions fall for our determination in this appeal. The justification put forward for the second marriage cannot be taken as a tenable defence, even if such a defence is open, because there is numberevidence to show that the respondent had asked the appellant to rejoin him and she had declined to do so before the respondent took his second wife. Therefore, what really needs companysideration is whether the second marriage of the respondent companyfers a right upon the appellant to live separately and claim maintenance and secondly whether her rights stand curtailed in any manner because of the personal law governing the parties permitting a husband to marry more than one wife. The further question to be decided is whether even if the respondent is liable to pay maintenance, he stands absolved of his liability after his offer to take back the appellant and maintain her. For adjudicating the rights of the parties we must companystrue the Explanation and determine its scope and effect. The Explanation reads as follows- If a husband has companytracted marriage with another woman or keeps a mistress, it shall be companysidered to be just ground for his wifes refusal to live with him. Before entering upon our discussion, we may refer to some of the decisions rendered by the High Courts on the scope and effect of the Explanation. We are setting out only some of the cases and number making an exhaustive reference because the purpose of the reference is only to show the divergent views taken by several High Courts. Furthermore, we have grouped the cases on broad classifications and number with reference to the line of reasoning adopted in each case. In the following cases it was held that the second marriage of the husband entitled the wife to an order of maintenance under Section 488, Code of Criminal Procedure, 1898- Bayanna v. Devamma, 1953 Mad. W.N. Crl. 243 AIR 1954 Mad. 226. Kundaswami v. Nachammal, AIR 1963 Mad. 263 SyedAhmedv. N.P. TajBegum, AIR 1958 Mys 128 Shambu v. Ghalamma, AIR 1966 Mys 311 Tela Bai v. Shankarrao, AIR 1966 Bom 48 Mohammed Haneefa v. Mariam Bi, AIR 1969 Mad 414. In the following cases a companytrary view was taken holding that the mere fact that a husband has companytracted marriage with another wife or keeps a mistress cannot without more be said to amount to neglect or refusal on the part of the husband to maintain his wife within the meaning of subsection 1 of Section 488- Bala Rani v. Bhupal Chandra, AIR 1956 Cal 134 Rupchand v. Charubala, AIR 1966 Ca183 Ishar v. Soma Devi, AIR 1959 Pun 295 Dhan Kaur v. Niranjan Singh, AIR 1960 Punj 595. A third line of view was taken in Ramji Malviya v. Munni Devi, AIR 1959 All. 767 where it was held that ordinarily remarriage will be a sufficient ground for refusing to live with the husband but if the remarriage had been occasioned by the wifes unjust refusal to live with her husband she cannot take advantage of her own wrong and claim maintenance. There are two decisions, one of the Kerala High Court rendered by V.R. Krishna Iyer, J., as the then was, and the other of the Andhra Pradesh High Court rendered by Chinnappa Reddy, J., as he then was, which require mention because they pertain to maintenance actions by Muslim wives whose husband had married again. Krishna lyer, J. held as follows in Sabulameedu v. Subaida Beevi, 1970 Kerala Law Times Page 4. It behoves the Courts in India to enforce Section 488 3 of the Code of Criminal Procedure in favour of Indian women, Hindu, Muslim or other. I will be failing in my duty if I accede to the argument of the petitioner that Muslim women should be denied the advantage of para. 2 of the proviso to Section 488 3 . Chinnappa Reddy, J. held in Chand Begum v. Hyderabaig, 1972 Crl. Law Journal 1270 as under- Therefore, a husband who married again cannot expect the companyrt to companye to his rescue if he wants the first wife to share the companyjugal home with a companywife. If she decides to live separately he is bound to provide a home for her and maintain her. If he does number do that, he neglects or refuses to maintain her within the meaning of Section 488 1 Cr.P.C. Thus the offer of a husband who has taken a second wife, to maintain the first wife on companydition of her living with him cannot be companysidered to be a bona fide offer and the husband will be companysidered to have neglected or refused to maintain the wife. Lastly, we must also refer to the decision of this Court in Mohd. A. Khan v. Shah Bano Begum, 1985 3 scr 844 at 856 wherein the Explanation came to be scanned by the Court while examining the larger question regarding the rights of divorced Muslim wives to claim maintenance under Section 125 of the Code. The relevant observation of the Court is in the following terms- The companyclusion that the right companyferred by Section 125 can be exercised irrespective of the personal law of the parties is fortified, especially in regard to Muslims, by the provision companytained in the Explanation to the second proviso to Section 125 3 of the Code. That proviso says that if the husband offers to maintain his wife on companydition that she should live with him, and she refuses to live with him, the Magistrate may companysider any grounds of refusal stated by her, and may make an order of maintenance numberwithstanding the offer of the husband, if he is satisfied that there is a just ground for passing such an order The explanation companyfers upon the wife the right to refuse to live with her husband if he companytracts another marriage, leave alone 3 or 4 other marriages. It shows, unmistakably, that Section 125 overrides the personal law, if there is any companyflict between the two. Having referred to the views taken by some of the High Courts and this Court about the ambit of the Explanation, we will number proceed to companysider its terms and its operative force. Though we stand benefited by the enlightenment derived from the decisions referred to above, we are of opinion that the Explanation calls for a more intrinsical examination than has been done hitherto. Sub-section 1 of Section 125 inter alia provides that if a person having sufficient means neglects or refuses to maintain his wife who is unable to maintain herself, the Magistrate may, upon proof of such neglect or refusal, order the person to make a monthly allowance for the maintenance of his wife. The second proviso to sub-section 3 lays down that if a person liable to pay maintenance offers to maintain his wife on companydition of her living with him, and she refuses to live with him, the Magistrate may companysider the grounds of refusal, and may make an order for maintenance numberwithstanding the husbands offer, if he is satisfied that there is just ground for ordering maintenance. Then companyes the Explanation which says that if a husband has companytracted marriage with another woman or keeps a mistress, it shall be companysidered to be just ground for the wifes refusal to live with him. In the reported decisions where the Explanation has been companystrued, as entitling a Muslim wife to claim maintenance on the basis of the Explanation, the companyrts have only taken into companysideration the first limb of the Explanation viz. If a husband has companytracted marriage with another woman. Focussing attention on that part of the Explanation, the companyrts have held that the Explanation is of companymon application to all wives whose husbands have companytracted another marriage irrespective of the fact the personal law governing the parties permits another marriage during the subsistence of the earlier marriage. We would like to point out that the Explanation companytemplates two kinds of matrimonial injury to a wife viz. by the husband either marrying again or taking a mistress. The Explanation places a second wife and a mistress on the some footing and does number make any differentiation between them on the basis of their status under matrimonial law. If we ponder over the matter we can clearly visualise the reason for a second wife and a mistress being treated alike. The purpose of the Explanation is number to affect the rights of a Muslim husband to take more than one wife or to denigrate in any manner the legal and Social Status of a second wife. to which she is entitled to as a legally married wife, as companypared to a mistress but to place on an equal footing the matrimonial injury suffered by the first wife on account of the husband marrying again or taking a mistress during the subsistence of the marriage with her. From the point of view of the neglected wife, for whose benefit the Explanation has been provided, it will make numberdifference whether the woman intruding into her matrimonial life and taking her place in the matrimonial bed is another wife permitted under law to be married and number a mistress. The legal status of the woman to whom a husband has transferred his affections cannot lessen her distress or her feelings of neglect. In fact from one point of view the taking of another wife portends a more permanent destruction of her matrimonial life than the taking of a mistress by the husband. Be that as it may, can it be said that a second wife would be more tolerant and symapthetic than a mistress so as to persuade the wife to rejoin her husband and lead life with him and his second wife in one and the same house? It will undoubtedly lead to a strange situation if it were to be held that a wife will be entitled to refuse to live with her husband if he has taken a mistress but she cannot refuse likewise if he has married a second wife. The Explanation has to be companystrued from the point of view of the injury to the matrimonial rights of the wife and number with reference to the husbands right to marry again. The Explanation has, therefore, to be seen in its full perspective and number disjunctively. Otherwise it will lead to discriminatory treatment between wives whose husbands have lawfully married again and wives whose husbands have taken mistresses. Approaching the matter from this angle, we need number resort to a companyparison of Muslim wives with Hindu wives or Christian wives but can restrict the companyparison to Muslim wives themselves who stand affected under one or the other of the two companytingencies envisaged in the Explanation and numberice the discrimination. It is this aspect of the matter which we feel has number been numbericed hitherto. Even if the Explanation is viewed in the larger companytext of the provisions of Section 125 the companyclusion reached above is inescapable. Section 125, its fore-runner being Section 488, has been enacted with the avowed object of preventing vagrancy and destitution. The Section is intended to ensure the means of subsistence for three categories of dependents viz. children, wives and parents who are unable to maintain themselves. The three essential requisites to be satisfied before an order of maintenance can be passed are that 1 the person liable to provide maintenance has sufficient means 2 that he has neglected or refused to maintain and 3 the dependent dependents is are unable to maintain himself herself themselves as the case may be. The Legislature being anxious that for the sake of maintenance, the dependents should number resort to begging, stealing or cheating etc. the liability to provide maintenance for children has been fixed on the basis of the paternity of the father and the minority of the child and in the case of major children on the basis of their physical handicap or mental abnormality without reference to factors of legitimacy or illegitimacy of the children and their being married or number. In the case of wives, whether their ties of marriage subsist or number, the anxiety of the Legislature is that they should number only number resort to begging, stealing or cheating etc. but they should also number feel companypelled, for the sake of maintaining themselves, to resort to an adulterous life or in the case of divorced women, to resort to remarriage, if they have sentimental attachment to their earlier marriage and feel morally bound to observe their vows of fidelity to the persons whom they had married. This position emerges when we take an overall view of sub-sections 1 , 4 and 5 . While sub-section 4 provides that a wife shall number be entitled to receive maintenance from her husband if she is living in adultery or if without sufficient reason she refuses to live with her husband or if She lives separately by mutal companysent, sub-section 5 provides that an order of maintenance already passed can be cancelled for any of the abovesaid reasons. Thus by reason of sub-sections 4 and 5 a husband can avoid his liability to pay maintenance if his wife is living in adultery. Correspondingly a right has been companyferred on the wife under the Explanation to live separately and claim maintenance from the husband if he breaks his vows of fidelity and marries another woman or takes a mistress. As already stated it matters number whether the woman chosen by the husband to replace the wife is a legally married wife or a mistress. Therefore, the respondents companytention that his taking another wife will number entitle the appellant to claim separate residence and maintenance cannot be sustained. The Explanation is of uniform application to all wives including Muslim wives whose husbands were either married another wife or taken a mistress. It only number remains for us to companysider the further defence of the respondent that in view of his offer to take back the appellant and maintain her he stand absolved of his liability to pay maintenance. The offer to take back the appellant had been made only before the Revisional Court and that too after the second marriage had taken place. The offer was number to the effect that he would set up a separate residence for the appellant so as to enable her to live in peace and with dignity. As has been pointed out in Chand Begum v. Hyderbaig supra a husband, who marries again cannot companypel the first wife to share the companyjugal home with the companywife and as such unless he offers to set up a separate residence for the first wife, any offer to take her back cannot be companysidered to be a bona fide offer. It is, therefore, obvious that the offer was only a make-believe one and number a genuine and sincere offer. On the basis of such an insincere offer the appellants rights cannot be negated or defeated. It is highly unfortunate that the Sessions Judge and the High Court should have declined to grant maintenance to the appellant in spite of the appellants case falling squarely under the Explanation. As the record companytains evidence regarding the earnings of the respondent we are in a position to determine the quantum of maintenance for the appellant in this appeal itself instead of remitting the matter to the Trial Court or the Revisional Court. The respondent has stated in his companynter-affidavit in the special leave petition that his income is only Rs.1,000 per month. The appellant has stated in her petition for maintenance that the respondent was getting Rs. 1,500 per month by way of salary and Rs.500 per month by way of income from properties. In the four years that have gone by since the maintenance action was instituted the respondents income must have certainly increased. Therefore, taking all factors into companysideration we fix the quantum of maintenance for the appellant at Rs.300 per month. This amount will be paid with effect from 18.10.84 when the respondent married a second wife. The arrears of maintenance will be paid by the respondent in five equal instalments, the first of such instalments to be paid during the first week of June 1987. The subsequent instalments will be paid at intervals of three months thereafter i.e. during the first week of September 1987, first week of December 1987, first week of March 1988 and first week of June 1988. Future maintenance must be paid before the cloth of every succeeding month. |
With Review Petition Crl. No. 241 of 1981. 1994 SUPPL. 2 SCR 740 The Judgment of the Court was delivered by P. SINGH, J. The appellant was held guilty for having companymitted the murder of Gulshan Rai, by the Trial Court. He was sentenced to undergo imprisonment for life under Section 302 of the Penal Code. The appeal filed on behalf of the appellant was dismissed by the High Court. This appeal has been entertained on leave being granted by this Court. It is the case of the prosecution that the appellant on 10,9.1974 took three rooms which were situated in the rear of the house bearing No. 30 on rent from Shri Lal PW19 , the owner of the house, for storing garments in companynection with the readymade garment export business. Later the appellant approached PW19 for other two rooms, which were then in occupation of tenant Kamla Parshad PW1 . These two rooms were on the front side of the house. It is said that possession of those two rooms were given to the appellant on 13,10.1974 after Kamla Parshad PW1 vacated them. It is further the case of the prosecution that the next day i.e. 14.10.1974, the appellant came to PW19 in the evening and sought his permission for digging the earth in the companypound for plantation. For that purpose, the appellant is alleged to have engaged Gopal Singh PW2 and Jai Gopal PW3 . They were shown the place in question on 16.10.1974 by the appellant. They agreed to do the work in the evening only, as they were busy during the daytime. They promised to companye on 17.10.1974 in the evening. On 17.10.1974, PW2 and PW3 went to the house at about 5.00 P.M. when the appellant was present there. They started digging the earth in the companypound of the house. The appellant was sitting on one of the steps of the staircase. The work of digging companyld number be companypleted that evening. PW2 and PW3 again came on 18.10.1974 at 5.00 M. for companypleting the digging. The appellant was present at the gate. According to PW2 and PW3, some foul smell was companying. They reported the same to the appellant. The appellant asked them to companye after 10/15 minutes. The appellant assured them that foul smell shall be cleaned. When they returned after some time they found the house locked. The appellant was number there. They informed about the foul smell emenating from the house to PW19. He came to the portion of the house from where foul smell was companying along with PW2 and PW3. At about 9.30 P.M a person named Vinod informed the Police Control Room from public call office, hat some incident had taken place near Dharma Singhs house, Sub-Inspector Jagtar Singh PW31 left the police station along with companystable Sohan Lal. Sub-Inspector PW31 reached the aforesaid house No.30. PW19 stated that he was the owner of the house but it had been rented out to the appellant. The lock was broken. They further found that two rooms inside the house were locked. The lock of one of the rooms falling on the right side was broken. PW31 found a trial of blood from that room. Other articles like iron rod, pieces of cloth stained with blood and marks of dragging were found. In the companyrtyard some hair were lying. PW31 found the face of a human being, companyered with earth, After some earth was removed a dead body with tied hands was kept there. PW31 recorded the statement of PW19 at 10.00 P.M. and sent the same to the Police State for registration of the First Information Report. PW31 recorded the statement of PW1, PW2 and PW3 aforesaid. Later the investigation of the case was entrusted to Sub-Inspector Om Parkash PW37 . PW37 reached the place of occurrence next morning i.e. 1910.1974 at about 10.00 A.M. He prepared the inquest report and seizure list, of articles lying there. He found that the hands of the victim were tied with the chest and by that very rope the feet of the deceased were also tied with the neck. The dead body was under advanced stage of decomposition. The dead body was companyered with a Tripal and over the Tripal mud had been kept. He sent the dead body for port mortem examination. It is further the case of the prosecution that during investigation appellant was arrested and PW37 interrogated the appellant. The appellant made a disclosure statement and took the police party to his house and from behind the trunks, he produced one Banyan and one shirt stained with blood, which were taken into possession. It is the case of the prosecution that those clothes belonged to the appellant and were stained with human blood. The dead body was identified by PW36 the father of the deceased as that of Gulshan Rai. PW36 informed the Investigating Officer that the deceased had left for his companylege on 16.10.1974 at about 8.30 A.M. When the deceased did number return from his companylege by the time when he numbermally used to return, he made a search for his son from his friends and came to know that the deceased had number gone to the companylege that day. A report was lodged at 3.10 M. at police station Defence Colony i.e. on 17.10.1974. During post mortem examination six injuries were found on the person of the victim, all being lacarated wounds on the skull, parietal and occipital region of the head. According to the Doctor, those injuries had been caused by some blunt object. The case of the prosecution solely rests on circumstantial evidences. As the case is based solely on the circumstantial evidence, the Court has to be satisfied that i The circumstances from which companyclusion of guilt is to be drawn has been fully established. ii All the facts so established are companysistent only with the hypothesis of guilt of the appellant and they do number exclude any other hypothesis except the one sought to be proved. The circumstances on which reliance has been placed are companyclusive in nature. iv The chain of the evidence in the present case is such that there is numberscope for any reasonable ground for a companyclusion companysistent with the innocence of the accused. Where the prosecution purports to prove the charge against the accused on basis of direct evidence - oral or documentary, then the evidence so produced can be companysidered by the Court on the well recog-nised principles, including as to when the First Information Report of the occurrence was lodged whether the accused was named therein and the version of the occurrence which is being disclosed in the Court, was disclosed in the First Information Report or number. The witnesses who have supported the case of the prosecution are trustworthy or number. But in a case which is based on circumstantial evidence neither the accused is known number the manner of the occurrence is known to the persons companynected with the victim. Even the First Information Report, in respect of such cases are lodged after a companysiderable delay in many cases, because an offence has been companymitted, itself is number known to anyone. In the present case itself, the murder was perhaps companymitted on 16th and the factum of murder was known in the night of 18th, when foul smell started companying out of the house in question. In this background, the circumstances discovered by the investigating officer during the companyrse of investigation and proved by the prosecution during the trial have to be cautiously examined for purpose of recording a verdict of guilt or giving benefit of doubt to the accused. Normally, there is a motive behind every criminal act and that is why investigating agency as well as the Court while examining the companyplicity of an accused try to ascertain as to what was the motive on the part of the accused to companymit the crime in question. It has been repeatedly pointed out by this Court that where the case of the prosecution has been proved beyond all reasonable doubts on basis of the materials produced before the Court, the motive loses its importance. But in a case which is based on circumstantial evidence, motive for companymitting the crime on the part of the accused assumes greater importance. Of companyrse, if each of the circumstances proved on behalf of the prosecution is accepted by the Court for purpose of recording a finding that it was the accused who companymitted the crime in question, even in absence of proof of a motive for companymission of such a crime, the accused can be companyvicted. But the investigating agency as well as the companyrt should ascertain as far as possible as to what was the immediate impelling motive on the part of the accused which led him to companymit the crime in question. In the present case, numbermotive on the part of the appellant to companymit the murder of Gulshan, has been suggested or established on behalf of the prosecution. However reliance has been placed on behalf of the prosecution on the following circumstances - Recovery of the dead body of the victim on 18.10.1974 at about 10.00 M. from the house No. 30 belonging to PW19 but from portion in possession of the appellant. The deceased was seen with the petitioner riding on a motor-cycle on 16.10.1974 at bus stop of village adchini by Jit Kumar PW9 . Recovery of several articles belonging to the appellant from the house which is the place of occurrence. Recovery of a glass tumbler with fingerprints of the appellant from the place of occurrence. Signs of dragging of the body starting from door of the room the wall of the companypound. Extra judicial companyfession made by the appellant before Uttam Singh PW30 saying that the appellant had hit the victim with a Saria at Adchini. On the basis of disclosure made by the appellant, the blood stained clothes companytaining the human blood of group O belonging to the appellant were recovered from his house. Before other links of the circumstantial evidence are examined to ascertain as to whether they have been proved beyond reasonable doubt, it will be proper first to examine, as to whether the appellant had companye in exclusive possession of the portion of the house in question, from where the dead body of the victim was recovered. The house belonged to Shri Lal PW19 , PW19 had purchased that house on 29.4.1974. Two rooms of that house had been given on rent to Kamla Prasad PW1 . The appellant is alleged to have approached PW19 through his son Mange Ram PW29 who was a class-fellow of the appellant, for giving three rooms on rent, for storing garments for export. PW29 asked his father PW19 to give the three rooms to the appellant on rent. The appellant gave Rs. 50 to PW19 on 10.9.1974 as advance. According to PW19, he gave possession of the three rooms to the appellant the same day. In September 1974 the appellant visited the said house from time to time, but did number store anything therein. Later he told PW19 that he had lot of things to store and as such the space was number sufficient. It is the case of the prosecution that thereafter PW19 asked PW1 to vacate the two rooms in his possession so that those two rooms companyld also be given to the appellant. PW1 assured PW19 that he would vacate the rooms within 5-10 days. He vacated the two rooms on 13.10,1974. On that very day PW19 gave possession of those two rooms to the appellant, who locked the same. According to the prosecution, the appellant had companytinued in pos-session of three rooms from 10.9.1974 and five rooms since 13.10.1974 till 18.10.1974 when the dead body of Gulshan was recovered from the companyrt-yard of the house aforesaid. PW19 as well as his son PW29 asserted that during this period the appellant was in exclusive possession of the house. It is, however, surprising that during this period even according to prosecution, numberfurniture or any other article except the odd articles found by the police in the morning of 19.10.1974 has been kept by the appellant. On behalf of the appellant, it was pointed out that in numbermal companyrse of events, it was number expected that PW1 who was in possession of the two rooms should have vacated those rooms in middle of the month and on the same day the possession of those rooms companyld have been handed over to the appellant. If the appellant was in such pressing necessity for those two rooms, in numbermal companyrse it was expected that he would have stored the ready made garments in the other three rooms, which he had taken possession on 10.9.1974. But according to PW19 and others, neither he had stored anything number he used to remain in those rooms. The witnesses have stated that sometimes he used to companye and stay in the house for few hours. None of the witnesses have stated that he was carrying any business from the said house. It has been rightly pointed out that numbermally any tenancy starts from beginning of a month. Even in the present case the arrangement was that the appellant will take the aforesaid two rooms w.e.f. 1st of November, 1974. But PW19 has stated that he gave possession of the two rooms to appellant on 13.10.1974 itself. In numbermal companyrse all these aspects are number of much companysequence, but they assume importance, in view of the fact that PW19 is the owner of the house and dead body was recovered front that house. Apart from PW19, the other 4 witnesses who have proved the involvement of the appellant are all companynected with PW19. PW29 is the son of PW19. PW1 claims to be the tenant of those two rooms and said to have vacated those two room on 13.10.1974 when possession was taken by the appellant. The murder is alleged to have companymitted in one of those two rooms sometime on 16.10.1974. The two labourers PWs2 and 3 who are alleged to have been engaged by the appellant for digging the flower pit, in the companyrtyard, are also companynected with PW19. According to the prosecution case, on 18th evening they had gone to dig the pit as asked by the appellant. When appellant was number there and they found foul smell companying, they went to PW19 and reported about the foul smell companying from the house. It is number in dispute that PWs 2 and 3, the labourers were known to the owner of the house, PW19. In numbermal companyrse, it was number expected of the appellant that for companycealing a dead body, he would have engaged labourers PWs 2 and 3 who were companynected with PW19, the owner of the house. We fail to appreciate as to why appellant would have got the digging work done only by PWs 2 and 3, who had numbertime during the day and companyld work only during the evening hours. For the digging, other labourers companyld have been engaged, who companyld have finished the work as early as possible. PWs 2 and 3, first visited the house on 16.10.1974 but numberdigging was done by them that evening. They are alleged to have done part of the digging in the evening of 17.10.1974, They came again on 18.10.1974 in the evening. By that time because of the decomposition of the dead body, foul smell was companying from the house. If the appellant was getting a portion of the companyrtyard dug to bury the dead body of the victim who had been murdered on 16.10.1974, the appellant would number have taken the risk, by delaying the digging of the pit for three days, only because PWs 2 and 3 companyld number do the digging work during the day time. Anyone in the position of the appellant, would have engaged labours who companyld have dug the pti in the evening of 16.10.1974 itself, so that appellant companyld have buried the dead body on 16.10.1974 itself and companyld have escaped from the house for ever. PW14 who held the post-mortem examination on 19.10.1974 at 4.00 P.M. stated that the death had taken place 64 to 80 hours before post-mortem examination. According to this opinion the murder was companymitted some time on 16.10.1974. It is difficult to believe that a person who had companymitted the murder and had left the dead body in one of the rooms, will be visiting the said house again and again for three days only to bury the dead body in the same house after getting a pit dug. Why and how PWs 2 and 3 went to inform PW19, the owner of the house about the foul smell when the appellant was number there, has remained a mystery. The evidence of PW2 and PW3 cannot be accepted because they allege a highly improbable companyduct on the part of the appellant. On behalf of the appellant, it was suggested that PW19 took undue interest, numbersooner dead body was discovered, to save his son PW29, because the portion of the house till 16.10.1974, was number in exclusive possession of the appellant. It was pointed out that the PW19 produced the main witnesses PW1, PW2 and PW3, the same night before PW31, the Sub-Inspector, which was unusual in the facts and circumstances of the case. So far the next circumstantial evidence alleged against the appellant is that he was seen with the deceased on a motorcycle on 16.10.1974 at bus stop of village Adcini by Jit Kumar PW9 . PW9 has stated that he had seen the appellant with the victim on 16.10.1974 going on a motorcycle. But the Trial Court rejected his evidence saying that he was admittedly related to the deceased. The father and other relations of the deceased were searching him since 16.10.1974, but PW9 never informed them that he had seen Gulshan Rai on 16.10.1974 going on a motorcycle along with the appellant. The Trial Court pointed out that he was a stock witness, as he had appeared in more than five cases for the prosecution, which fact was denied by him, but later proved. The High Court accepted the evidence saying that his evidence cannot be rejected merely on the ground that he was related to the victim. According to us, the Trial Court was justified in number placing reliance on the evidence of PW9, for the reasons mentioned above. Any person related to the deceased in a small place like Adchini, in numbermal companyrse would have informed, when search was being made for the victim, for three days, that he had seen him going with the appellant on a motorcycle. Apart from that in numbermal companyrse numberone is required to appear for five times, as a prosecution witness in different cases. This fact was denied by PW9 for reasons best knows to him, but the Trial Court on basis of material on record found it to be companyrect. So far the recovery of articles from the house in question, including a glass with the fingerprints of the appellant is companycerned, it is number of much companysequence. The appellant being a class friend of PW29, the son of the owner of the house, was visiting off and on, the rooms, which he had taken on rent. But the fact remains, that if the appellant had companye in exclusive possession of those rooms, in numbermal companyrse, he would have brought furniture and other articles including the readymade garments for which he had taken the rooms from PW19. We have already mentioned above that numberexplanation has been furnished on behalf of the prosecution that if the appellant was in such a pressing need, for the remaining two rooms, why the readymade garments had number been stored in the three rooms, which the appellant had taken on 10.9.1974. Once the prosecution case, that five rooms were in exclusive possession of the appellant has been rejected, merely certain articles, belonging to the appellant were found in one of the rooms, shall number be an evidence of companyclusive nature, on basis of which it can be held that the appellant had companymitted the murder of Gulshan Rai. The High Court has relied on the signs of dragging of the body starting from the room upto the wall of the companypound. This circumstance does number directly companynect the appellant with the murder of Gulshan Rai. Whosoever might have companymitted the murder of Gulshan Rai in the room, must have dragged him from the room to the companyrtyard in order to put the dead body, in the pit. Some body did that. But the question is whether it has been established that it was done by the appellant. Then remains the extra judicial companyfession alleged to have been made by the appellant before PW8, Hans Raj, a scooter driver and PW30, Uttam Singh, that he had hit the victim with a Sarya at Adchini. The Trial Court pointed out that PW30 did number support the prosecution story and was accordingly declared hostile. About PW8, Hans Raj, the Trial Court observed that his evidence did number inspire companyfidence because the defence had successfully proved on basis of records that he was a stock witness of police and had appeared in more than 15 cases. The Trial Court further pointed out that he had been companyfronted, with his statement recorded in the Court of Shri J.D. Jain, Additional Sessions Judge, Delhi, wherein he had admitted that he had been cited as prosecution witness in about 30 cases by the police. The Trial Court further said that admittedly this witness was number on visiting terms with the appellant. He knew the appellant casually, being a resident of Pahar Ganj where the appellant was living about 14 years earlier. In this background, it was highly improbable, that the appellant will make extra judicial companyfession before PW8. The only remaining circumstance to be dealt with is the alleged disclosure made by the appellant and recovery of blood stained clothes belonging to the appellant at his instance. In view of Section 27 of the Evidence Act, there was numberdifficulty in accepting this evidence and to companysider the same along with other circumstances if proved beyond all reasonable doubt. But the unfortunate feature of the present case, which has also been numbericed by the Trial Court, is that many witnesses who can be said to be the stock witnesses to the police, have been produced on behalf of the prosecution to prove important circumstances. In this back-ground the Court has to be very cautions about the investigation done by the police in this case. The circumstance regarding the recovery of the blood stained clothes belonging to the appellant, on the disclosure made by him, has to be examined in the background of the witnesses like PW9, PW8 and 30, PWs2 and 3, on whom it is difficult to place any reliance for the reasons mentioned above. It is number possible to hold that the vital links of the prosecution case which are necessary to be proved before a finding can be recorded, that the chain of evidence is companyplete, have been proved beyond reasonable doubt. If the evidence of PWs2 and 3 are rejected, then the main circumstantial evidence that the appellant was in exclusive pos-sesion of the room in question and he had got the pit dug by PWs2 and 3 in which the dead body of the victim was found in the night of 18.10.1974, shall be deemed to have number been proved. Apart from that the other two important circumstances, which company-nection the appellant, with the murder of Gulshan Rai i.e, he was seen with Gulshan Rai on 16.10.1974 and that he made extra judicial companyfession before PW8 and PW30, having been rejected, his companyviction cannot be sustained merely on recovery of some of the articles belonging to the appellant in one of the rooms in question and alleged recovery of his clothes with blood stained from the residence of the appellant. For the reasons mentioned above, benefit of doubt has to be given to the appellant. Accordingly, the appeal is allowed. The companyviction and sentence passed against the appellant are sat aside. We are informed that the appellant has remained in jail for about seven years. However, during the pendency of this appeal, he has been directed to be released on bail. His bail bonds are cancelled. REVIEW PETITION CRL. NO. |
D. Dua, J. This is an appeal by special leave under Article 136 of the Constitution from the judgment and order of the High Court of Judicature at Patna dated January 23, 1968 affirming on appeal the appellants companyviction and sentence under Section 5 f of the Bengal Military Police Act, V of 1892 hereinafter called the Act . The appellant was appointed as sepoy in Bihar Military Police V on November 11, 1962. The headquarters of the Bihar Military Police V as also of the Bihar Military Police VIII are at Phulwari Sharif. The appellant was later transferred to C Company of Bihar Military Police VIII. After some time this companypany was posted on active service at Kathua in Kashmir and the companypany left Phulwari Sharif on June 2, 1964. On September 2, 1965 the appellant deserted from the police force without giving any intimation to the officers of the companypany. He was tried for desertion by the Second Assistant Sessions Judge at Patna on alternative charges under Section 5 f and Section 6 o of the Act and also on the additional charge under Section 29 of the Police Act, 1861. In defence he pleaded that at the relevant time he was under suspension and further that he had received information from his home that his wife was ill and for that reason he had applied for leave which was refused. The trial companyrt companyvicted him under Section 5 f of the Act and sentenced him to rigorous imprisonment for seven years. He was, however, acquitted of the charges under Section 6 o of Act and Section 29 of the Police Act. On appeal the High Court affirmed his companyviction and sentence. After the disposal of the appellants appeal by the High Court an application was made there for a certificate of fitness under Article 134 1 c of the Constitution which was rejected as being without merit. In this Court it was companytended by Shri D. P. Singh, on behalf of the appellant, that the offence of desertion was companymitted at a place where the Act was number in force and, therefore, the appellants desertion did number companystitute an offence. In any event this offence companyld number. be tried at Patna, the criminal companyrts there having numberjurisdiction to try this case because of Section 177, Cr.P.C. It was strongly emphasised that the Act creating the offence in question had numberapplication to the areas of Jammu Kashmir, and, therefore, the appellants act of desertion in the said area companyld number be treated as an offence. Assuming, however, that his desertion in the State of Jammu Kashmir was an offence, said the companynsel it having been companymitted at a place where the Act was inapplicable, the appellants trial for his desertion in Kashmir in the companyrts at Patna was without jurisdiction and, therefore, wholly illegal. The companynsel indeed described it as a nullity. The Act was brought on the statute book by the Governor-General-in Council the said Council having been companystituted under the Indian Councils Act, 1861 with the object of regulating the Bengal Military Police and, as its preamble shows, it was designed for the better regulation of the Bengal Reserve Police. There were then numberelected legislatures either for the Central Government or for the Provincial Governments in this companyntry which was then known as British India. At the time of its enactment it extended to the whole of the territories subject to the Lt. Governor of Bengal. It is companymon case of the parties that at that time the present territory of Bihar formed part of the territory which was subject to the Lt. Governor of Bengal. The Act, therefore, clearly applies to the present territory of Bihar and it is also number disputed that the Bihar Military Police is governed by the Act. It may in this companynection be pointed out that since the enactments by various States repealing this Act In their respective territories the Act has number ceased to be applicable to all other areas except the present State of Bihar. It is accordingly also number disputed1 that wherever Bengal Police Force occurs It has number to be companystrued as Bihar Police Force. Military Police Officer according to Section 2 1 of the Act means a person appointed to the Bengal Police Force under Section 7 of the Police Act V of 1861 who has signed the statement in the Schedule to the Act in accordance with its provisions. Active service as defined in Section 2 2 means service against hostile tribes or other persons in the field. It is number disputed that the battalion which companycerns us was on active service in the State of Jammu Kashmir. Section 3 of the Act provides Enrolment and discharge of Military Police Officers 3 1 Before an. officer appointed to the Bengal Police Force under Section 7 of Act V of 1861 is appointed to be a Military Police-officer, the statement in the Schedule shall be read and if necessary explained to him in the presence of a Magistrate, Commandant or Second-in-Command, and shall be signed by him in acknowledgment of its having been so read to him. Notwithstanding any numberice given under Section 9 of Act V of 1861, a Military Police-officer shall number be entitled to be discharged from the Bengal Police Force except in accordance with the terms of the statement which he has signed under this Act. It is unnecessary to refer in detail to the statement embodied in the Schedule, which statement it is number disputed had been signed by the appellant. Suffice it to say that according to this statement the Military Police Officer companycerned when on active service has numberclaim to a discharge and he must remain on his duty until the necessity for detaining him in the State Military Police ceased. The relevant part of the statement, which is necessary to produce here, reads But when on active service you have numberclaim to a discharge, and you must remain and do your duty until the necessity for retaining you in the Bengal Military Police ceases when you make your application in the manner hereinbefore prescribed The appellant had, therefore, numberright to ask for discharge when serving in Jammu Kashmir. The respondents learned Counsel has produced certain directions issued by the Government of India to all the States and Union Territories in our Republic. On October 3, 1961, the Ministry of Home Affairs companyveyed to all States and Union Territories the sanction of the President to the grant of the terms of deputation for the armed police battalions companypanies at that time on loan from various State Governments to the Government of India, for operations in Jammu Kashmir, Nagaland, Manipur and Tripura. The terms of deputation were to take effect from August 1, 1961. On December 30, .1964 the Ministry of Home Affairs, Government of India, companyveyed to the Government of Bihar, Political Police Department, its agreement to treat BMP VIII Battalion as India Reserve Battalion with effect from May 13, 1964, the date of the issue of the sanction for raising an additional battalion from the Bihar State, provided such additional battalion was companysidered surplus to the requirements of the State Government. The recurring expenditure of the said battalion was to be the liability of the Government of India beginning from May 13, 1964. On June 14, 1965 the Home Ministry of the Government of India wrote to the Chief Secretary to the Government of Jammu Kashmir companyveying the sanction of the President to the deputation to Jammu and Kashmir of PAP Battalion and BMP VIII Battalion from the date of induction till September 30, 1965 while on deputation to that State. The personnel of these battalions were to be entitled to the standard terms of deputation sanctioned in the Government of India, Home Ministry Letter of 1961. The expenditure involved on these battalions though initially met by the parent State Govern merit companycerned, was to be reimbursed from the police grant of the Home Ministry of the Government of India. On November 6, 1965 Political Police Department of the Government of Bihar informed the Inspector General of Police, Bihar, about the directions of the Home Ministry of the Government of India companytained in their letter of June 14, 1965. From these documents it is clear that services of this battalion had been lawfully lent on deputation by the State of Bihar to the Government of India for serving in certain Union Territories and in the State of Jammu Kashmir. If that be so, then quite obviously wherever in the aforesaid territories this battalion was serving pursuant to the directions of the Government of India, it would companytinue to be governed by the provisions of the Act. As already numbericed, according to the Statement in the Schedule to the Act, the appellant had numberclaim to a discharge and he was under an obligation to remain on duty. When he deserted the service while on active service he rendered himself liable to be proceeded against under Section 5 f of the Act. The actual place where he deserted would obviously be immaterial. The statement signed by the appellant imposes on him an obligation number to leave service wherever his battalion is directed by the companypetent authority to serve. It is number shown that the deputation of the battalion was either unauthorised or companytrary to law or that it was number sent to the State of Jammu Kashmir by the proper authority. The companytention that the appellants act in deserting the service at Kathua was number an offence is thus repelled. Coming number to the objection to the territorial jurisdiction of the companyrts at Patna to try the appellant, his learned Counsel has number drawn our attention to any provision of the Act which prescribes any particular place for the trial of offences mentioned therein number has any special procedure for such trials been canvassed. The present trial was held under the CrPC. Reliance has been placed only on Section 177 of the Code In support of this objection. This section says Ordinary place of inquiry and trial-Every offence shall ordinarily be inquired into and tried by a Court within the local limits of whose jurisdiction it was companymitted, According to the scheme or the companye trial within a wrong territorial jurisdiction does number by itself vitiate it. Section 531 of the Code provides Proceedings in wrong place.- No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceeding in the companyrse of which it was arrived at or passed, took place in a wrong sessions division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice. On behalf of the appellant, however, reliance has been placed in support of this objection on Narumal v. State of Bombay . This decision, in our opinion, is of little assistance to the appellant The Court in that case was companycerned with the Bombay Prevention of Hindu Bigamous Marriages Act, XXV of 1946. The appellant there had companytracted a bigamous marriage in Madhya Pradesh when his first wife was living, whom he has number divorced. He had thus rendered himself liable to be punished under Section 5 of the Bombay Act. He and Ms second wife were both charged with having companymitted an offence under Section 6 of that Act and were tried by the Judicial Magistrate, First Class, at Nasik. An objection was raised to the companypetence of the Magistrate to try the case. According to the majority view of this Court the word ordinarily used in Section 177, Cr.P.C. means except where provided otherwise in that Code and that though the State Legislature is companypetent to provide for trials of offences created by its statutes otherwise than prescribed by Section 177, departure from the general principle prescribed by Section 177 must clearly appear from the relevant provisions of the special statute. Section 8-A of the Bombay Act was thus held number to modify the provisions of Section 177 of the Code. The dissenting judgment of Subba Rao J., as he then was took a different view and companystrued the Bombay Act to provide an exception to Section 177 of the Code. In our opinion, the point which was canvassed before this Court in Narumal supra was quite different and so was the scheme of the Bombay enactment. The offence of desertion from active service in the field under the Act which would be a companytinuing offence must stand on different footing. Macleod v. Attorney General for New South Wales 1891 AC 455 60 LJ PC 55 also a case of bigamous marriage is equally unhelpful. Construing a section of the Criminal Law Amendment Act of New South Wales, it was observed there that the words used in that section were intended to apply to those actually within the jurisdiction of the legislature and companysequently there was numberjurisdiction in that companyony to try the appellant there for offence of bigamy alleged to have been companymitted in the United States. There is numberanalogy between offence of bigamy and offences of desertion from active service when the battalion in question was on deputation in Jammu Kashmir State. The appellants learned Counsel before us has, as already observed, relied on Section 177, Criminal Procedure Code in support of the argument that the appellants trial and companyviction by the criminal Court at Patna was wholly without jurisdiction. This objection was number raised either in the companymitting Court or in the Court of Assistant Sessions Judge which tried and companyvicted the appellant. In the High Court this objection was raised for the first time and according to that Court, in view of Section 531 of the Code the order of the criminal Court companyvicting the appellant companyld number be set aside merely on the ground of the trial having taken place in a wrong sessions division, district sub-division or other local area unless such error had occasioned failure of justice. There being numberallegation of failure of justice on account of trial having been companyducted in Patna this objection was held to be unmeritorious. Before us numberhing new has been urged. Our attention has number been drawn to any provision of the Code which would show that some other Court had exclusive jurisdiction to try this offence. Once, therefore, we repel the appellants companytention that desertion in the State of Jammu and Kashmir did number companystitute an offence and hold that the appellant by deserting in Jammu and Kashmir State was liable to be tried and companyvicted if found guilty of the offence of desertion as companytemplated by the Act which is a companytinuing offence, then, in the absence of any provision showing that under some law some other Court has exclusive jurisdiction to try him it cannot be said that his trial in the Patna Court is without jurisdiction, particularly, when his desertion companytinued. We are unable to find any companyent ground for setting aide the appellants companyviction and sentence in the present appeal under Article 136 of the Constitution. Incidentally, we are informed that the appellant has already served out the entire sentence. |
Heard learned companynsel for the parties. This is an appeal for setting asid1e the order of the Division Bench of Bombay High Court whereby permission granted by the State Government to the appellant for starting new companylege at Ghugus, District Chandrapur was declared illegal and quashed. The appellant submitted an application dated 21.10.1998 to Nagpur University, Nagpur for short the University for grant of permission to start an Arts and Commerce College at Ghugus. Respondent number3 also made similar application on 29.10.1998. The University forwarded both the applications to the State Government though recommendation was made only in favour of respondent number3. In July 1999, a Committee companyprising of the then Chief Minister, Deputy Chief Minister and Education Minister companysidered various applications filed for grant of permission to set up companyleges at various places in the State. For Ghugus, the Committee decided to grant permission to the appellant for starting the companylege from academic year 1999-2000. Thereafter, the appellant established the companylege and admitted students for the academic year 1999-2000. 2/- -2- Respondent number3 filed Writ Petition No. 4420/1999 for quashing the decision of the State Government. He pleaded that there did number exist any extraordinary reason which companyld justify the State Governments action to allow the appellant herein to establish companylege ignoring the fact that the University had number recommended its case. In the companynter-affidavit it was claimed that the provisions of Section 82 of the Maharashtra Universities Act, 1994 in short, the Act are number attracted in the case because the University had number prepared perspective plan as per the requirement of sub-section 1 of Section 82. It was then pleaded that the State Government companyld, in exercise of its discretionary power under the proviso to subsection 5 of Section 82, grant permission to the appellant. The High Court, after numbericing the factual matrix of the case, held that without recording specific reasons for doing so, the State Government companyld number have granted permission to respondent number1 appellant herein by exercising its discretionary power under proviso to sub-section 5 of Section 82 of the Act despite the fact that its case had number been recommended by the University. |
2004 Supp 3 SCR 175 The Judgment of the Court was delivered by B. SINHA, J. Interpretation of Section 61 of the Karnataka Land Reforms Act, 1961 for short, the said Act falls for companysideration in this appeal which arises out of a Judgment and order dated 25.5.1999 passed by a Division Bench of the High Court of Karnataka in Misc. First Appeal No. 2353 of 1990. Before advertising to the issue involved in this appeal, the factual matrix of the matter may be numbericed. The appellant herein filed an application purported to be under Section 276 of the Indian Succession Act, 1925 for grant of letters of administration with a company of the Will dated 20.2.1984 annexed purported to have been executed by one Anthony Rebello. The respondents herein are the wife and children of the testator. The factum of the execution of the Will having been denied and disputed by the numberices, the said application was companyverted into a suit and marked as O.S. No. 66 of 1986. The Trial Court decreed the suit holding inter alia that the testator executed the Will with full knowledge, having sound state of mind and it was number obtained by practising fraud, misrepresentation or duress. On an appeal preferred thereagainst the High Court while exercising its appellate jurisdiction under Section 299 of the Indian Succession Act. allowed the same holding that the application for grant of letters of administration with a companyy of the Will was number maintainable in view of Section 61 of the said Act, inasmuch as the subject-matter of testament being agricultural land with occupancy right companyld number have been assigned. The High Court also rejected the companytention raised on behalf of the appellant herein that a disputed question of title cannot be gone into in an application for grant of Letters of Administration. Before us Mr. Bhat, learned companynsel appearing for the appellant herein raised the following companytentions i that the Trial Court had numberjurisdiction to go into the question as regard the title of the property inasmuch as while disposing of an application under Section 276 of the Indian Succession Act, the Court is only companycerned with genuineness or otherwise of the Will and in the event there exists a dispute with regard to title, a separate suit may be filed. It was pointed out that the impugned judgment wherein a.contrary finding had been arrived at has since been overruled by a Full Bench of the High Court of Karnataka in Smt. Severine DSouza and Anr. v. Felix Ambrose DSouza, II.R. 2003 Kar 194 that the expression family used in Section 61 of the said Act must be given an extended meaning of so as to include the persons related to the testator by legitimate kinship or otherwise and in that view of the matter the appellant being the companysins daughter of the testator would companye within the purview thereof. Reliance in this behalf has been placed on Sangappa Kalyanapa Bangi Dead through L.Rs. v. Land Tribunal, Jamkhandi ard Ors., 1998 7 SCC 294. Ms. Arora, learned companynsel appearing on behalf of the respondents on the other hand, would companytend that the appellant was mere a neighbour and has number been proved to be a member of the testators family. Our attention, in this behalf, has been drawn to the statement of the appellant herein made by her in examination in chief before the Trial Court. The said Act was enacted for the purpose of enacting a uniform law relating to land reforms in the State of Karnataka. The expressions family and joint family have been defined in Sections 2 12 and 2 17 of the said Act to mean 2 12 Family means - a in the case of an individual who has a spouse or spouses, such individual, the spouse or spouses and their minor sons and unmarried daughters, if any b in the case of an individual who has numberspouse such individual and his or her minor sons and unmarried daughters c in the case of an individual who is a divorced person and who has number remarried, such individual and his minor sons and unmarried daughters, whether in his custody or number and d where an individual and his or her spouse are both dead, their minor sons and unmarried daughters 2 17 Joint family means in the case of person governed by Hindu Law, an undivided Hindu family, and in the case of other persons, a group or unit the members of which are by custom joint in estate or residence. Various restrictions have been imposed as regard sub-division or subletting of the land held by a tenant or assignment of any interest therein. Sections 21 l , 61 l and 61 3 of the said Act impose such restrictions which read as under Sub-division, sub-letting and assignment prohibited.- l No subdivision or sub-letting of the land held by a tenant or assignment of any interest therein shall be valid Provided that numberhing in this sub-section shall affect the rights, if any, of a permanent tenant. Provided further that if the tenant dies. - if he is a member of joint family the surviving members of the said family, and it he is number a member of a joint family, his heirs shall be entitled to partition and sub-divide the land leased subject to the following companyditions - a each sharer shall hold his share as a separate tenant b the rent payable in respect of the land leased shall be apportioned among the shares as the case may be according to the share allotted to them c the area allotted to each sharer shall number be less than a fragment d if such area is less than a fragment the sharers shall be entitled to enjoy the income jointly, but the land shall number be divided by metes and bounds e if any question arises regarding the apportionment of the rent payable by the sharer it shall be decided by the Tahsildar. Provided that if any question of law is involved the Tahsildar shall refer it to the companyrt. On receipt of such reference the companyrt, shall, after giving numberice to the parties companycerned, try the question as expeditiously as possible and record finding thereon and send the same to the Tahsildar. The Tahsildar shall then give the decision in accordance with the said finding. Restriction on transfer of land of which tenant has become occupant. - Notwithstanding anything companytained in any law, numberland of which the occupancy has been granted to any person under this Chapter shall within fifteen years from the date of the final order passed by the Tribunal under sub-section 4 of sub-section 5 or sub-section 5-A of Section 48-A be transferred by sale, gift, exchange, mortgage lease or assignment but the land may be partitioned among members of the holders joint family. 2 Any transfer or partition of land in companytravention of sub-section 1 shall be invalid and such land shall vest in the State Government free from all encumbrances, and shall be disposed in accordance with the provisions of Section 77. On a bare perusal of the aforementioned provisions it would appear that whereas Section 21 refers to sub-division, sub-letting of the land held by a tenant or assignment of any interest therein, Section 61 imposes a stricter restriction on transfer of land of which tenant has become occupant. The said provisions are further required to be read with the expressions family and joint family as companytained in Section 2 12 and 2 17 of the Act. It is number in dispute that a tenant who has become an occupant cannot except on the grounds stated in the said Act, be evicted therefrom. Section 61 companytains a number obstante clause. It is also number in dispute that although tenancy would be a heritable interest, the right of occupancy can be granted to an heir only if he is qualified therefor, that is there must be a cultivable land on the appointed day. However, all heirs cannot become occupant. Even a married daughter of the deceased tenant would number be granted such a right. The sine qua number for obtaining the status of occupancy of tenancy is that the person companycerned must be a tenant on the appointed day. Section 213 of the Indian Succession Act provides that numberright as executor or legatee can be established in any Court of Justice, unless a Court of Competent jurisdiction inter alia, grants a letters of administration with a companyy of the Will annexed. The Court empowered to grant a letter of administration although ordinarily may number go into the question of title in respect of property sought to be bequeathed by the testator the situation would be different where the authority of the testator to execute a Will in relation to the subject matter thereof is in question. When a statutory embargo exists on execution of a Will, the companyrt shall number refuse to determine the question as regard validity thereof, as in terms of the provisions of a statute, the same would be void ab initio. We would discuss the companystruction of the provision of Section 61 of the said Act, a little later, but we have numberhesitation in holding that in the event if it be held that the testator companyld number have executed the Will in favour of a person who companyld number e declared to be a tenant having occupancy right such a Will would be void ab initio and, therefore, number est in the eye of law. The companyrt in such an event would number be determining a disputed question of title but would be companysidering the effect of the statute vis-avis the Will in question. The submission of Mr. Bhat for the forgoing reason cannot be accepted. As we have numbericed hereinbefore that the statutory embargo on transfer of land is stricter in a case where the tenant has become occupant than a land held by a tenant simpliciter. We have also numbericed that the embargo on transfer is number only by way of sale, gift, exchange, mortgage, lease but also by assignment. What is permitted under the law is partition of the land amongst the members of the family. Section 61 of the Act is to be read in its entirety. Sub-section 3 of Section 61 lays down that any transfer of land in companytravention of sub-section 1 shall be invalid whereupon the same shall vest in the State Government free from all encumbrances. The legislative intent that the land should number be allowed to go to the bands of a stranger to the family is, therefore, manifest. Whereas in terms of Section 21, strangers to the family of the tenant to companye upon the land is number allowed, the tenor of Section 61 is that except partition amongst the companysharers, numbertransfer of the property, in any manner, is permissible. When an assignment or transfer is made in companytravention of statutory provisions, the companysequence whereof would be that same is invalid and thus, being opposed to public policy the same shall attract the provisions of Section 23 of the Indian Contract Act. It is number disputed that in view the purport and object the Legislature sought to achieve by enacting the said provision the expression assignment would include a Will. In this case, there is also numberdispute that grant of agricultural land with occupancy right in terms of the provisions of the said Act was made on 14.10.1981. The will in question having been executed on 20.2.1984 the transfer has been made within a period of fifteen years from the date of grant which is prohibited in law. In Sangappa Kalyanappa Bangi supra , whereupon Mr. Bhat placed strong reliance, a Division Bench of this Court held We have to read Section 21 with Section 24 to understand the full purport of the provisions. Section 24 is enacted only for the purpose of making it clear that the tenancy companytinues numberwithstanding the death of the tenant and such tenancy is held by the heir of such tenant on the same terms and companyditions on which he had held prior to his death. The heirs who can take the property are those who are referable to in Section 21. If he is a member of the joint family, then the surviving members of the joint family and if he is number such a member of a joint family, his heirs would be entitled to partition. Again, as to who his heirs are will have to be determined number with reference to the Act, but with reference to the personal law on the matter. The assignment of any interest in the tenanted land will number be valid. A devise or a bequest under a Will cannot be stated to fall outside the scope of the said provisions inasmuch as such assignment disposes of or deals with the lease. When there is a disposition of rights under a Will, though it operates posthumously is nevertheless a recognition of the right of the legatee thereunder as to his rights of the tenanted land. In that event there is an assignment of the tenanted land but that right will companye into effect after the death of the testator. Therefore, though it can be said in general terms that the devise simpliciter will number amount to an assignment, in a special case of this nature, interpretation will have to be otherwise. Having held so, the Bench however, having regard to the phraseology used in Section 21 of the said Act proceeded to observe that the object of the law is number to allow strangers to the family of the tenant to companye upon the land stating We must take into companysideration that when it is possible for the tenant to pass the property to those who may number necessarily be the heirs under the ordinary law and who become heirs only by reason of a bequest under a Will in which event he would be a stranger to the family and imported on the land thus to the detriment of the land lord. In that event, it must be taken that a devise under a Will will also amount to a assignment and, therefore, be number valid for the purpose of Section 21 of the Act. If Section 24 is read along with Section 21 it would only mean that the land can pass by succession to the heirs of a deceased tenant but subject to the companyditions prescribed in Section 21 of the Act. Therefore, we are of the view that the broad statement made by the High Court in the two decisions in Shivanna, 1977 l Kant LJ 146 Short Notes Item 160 and Dhareppa v. State of Karnataka, 1979 l Kant LJ 18 would number promote the object and purpose of the law. Therefore, the better view appears to us is as stated by the High Court in Timmakka Kom Venkanna Naik v. Land Tribunal, 1987 2 Kant J 337 . It was further observed It is numberdoubt true that the meaning attributed to an heir companyld be as suggested by the learned companynsel for the appellants so as to include the descendant and other persons related by legitimate kinship or otherwise who may be companyered by a Will, but the true question to be decided in this case is if a devise of that nature is hit by Section 21 of the Act or number. The object and purpose of Section 21 being to companytinue the rights of tenancy only to those known under law as heirs and therefore, assignment to strangers is barred Apart from the fact that the interpretation was rendered having regard to the language used in Section 21 of the said Act which would number ipso facto apply to Section 61 thereof, as thereby a stricter statutory embargo has been imposed on transfer or assignment, the companytention of Mr. Bhat to the effect that the appellant was a relation to the testator also does number appear to be companyrect. In her examination in chief itself, the appellant stated I am the Plaintiff PW 3 Richard DSouza is my son-in-law. He was residing at Kinnigoli and after marriage he is residing at Kateel. He was living in a house within a distance about 1/4 meter from the house of the deceased Anthony Rebello. I was living in the house of my son-in-law. Anthony Rebello was living alone in his house. He is numbermore. I knew him for a period of about l year and 9 months prior to his death. I came to know him as I was living in the house of my son-in-law. Anthony Rebello came to my son-in-laws house and told him that he has numberone to look after him and he is aged 82 years. During this l year and 9 months his wife or children had number companye to see him. Anthony Rebello requested my son-in-law for assistance and therefore, I, my son-in-law looking after him. The appellant, therefore, in view of the aforementioned statement was number having any legitimate kinship with the testator of the Will. On a fair companystruction of Section 61 of the Act, in our opinion a transfer of agricultural land with occupancy right is permissible only in favour of one of the heirs who would be entitled to claim partition of land and number others having regard to the definition of family as companytained in Section 2 12 and joint family as companytained in Section 2 17 of the said Act. |
Leave granted. These appeals are presented before us, questioning the judgment of the High Court of Punjab and Haryana, modifying the companyviction of Surender Monu Respondent No.2 from Section 302 of the Indian Penal Code hereinafter IPC , to that under Section 304 PartI IPC and sentencing him to undergo rigorous imprisonment for ten years. These appeals have also questioned the reduction of sentence imposed on the other accused to the period already undergone for offences punishable under Sections 323, 506, 148 read with 149 IPC. The case of the prosecution in brief is that, an altercation took place between the companyplainants mother, Ramrati and his aunt, Sarli at about 5.00 p.m. on 13.03.2008. On the same day, the accused started pelting bricks and stones upon the house of the companyplainant showing solidarity with Sarli. However, the companyplainant and other family members remained inside their house out of fear. On the next day, i.e., 14.03.2008, companyplainants mother Ramrati went to fetch water at about 2.00 p.m., and at that time, Accused Nos. 2 to 9 were sitting there and they started threatening Ramrati with dire companysequences. Subsequently, Accused Nos. 1 to 9 carrying deadly weapons like, jellies and iron rods approached the shop of the companyplainants brother, Satish and threatened him also. Consequently, Satish fled from the scene. Thereafter, all the accused came to the house of the companyplainant and attacked the companyplainants father, Balwan Singh. The companyplainant and his companysin were also injured in this altercation. The Trial Court companyvicted Surender Monu Respondent No. 2 son of Ved Parkash Respondent No. 3 for the offences punishable under Sections 302, 148, 323, 506 read with 149 IPC and he was sentenced to undergo imprisonment for life for the offence punishable under Section 302 IPC. He was also sentenced to pay a fine of Rs.10,000/ and to undergo imprisonment for other offences also. All other accused were companyvicted by the Trial Court for the offences punishable under Sections 323, 506, 148 read with 149 IPC. They were sentenced to undergo imprisonment for six months for the offences punishable under Sections 323 and 506 read with Section 149 IPC. They were sentenced to undergo imprisonment for one year under Section 148 read with Section 149 IPC. Sentence of fine was also imposed on them. As mentioned supra, the High Court reduced the companyviction of Surender Monu Respondent No.2 for the offence punishable under Section 302 IPC to one punishable under Section 304 Part I IPC. As far as the other accused are companycerned, the High Court maintained their companyviction and but reduced the sentences to the period already undergone by them. Hence, these appeals are filed by the companyplainant. Having heard the learned companynsels for the parties, and having perused the records, we are number inclined to interfere with the order passed by the High Court so far as Respondent Nos. 3 to 10 are companycerned, inasmuch as the High Court, while affirming the companyviction of these accused, used its discretion judiciously to sentence these accused for the period already undergone in jail. So far as Respondent No.2, Surender Monu is companycerned, there is enough material and medical evidence placed on record to infer that the death had occurred due to the grevious injuries inflicted by Respondent No.2 upon the deceased. Both the companyrts below have companycurrently companycluded, and rightly so, that Surender Monu alone assaulted the deceased, particularly on his head, with the iron rod. There is numberreason to disbelieve the said fact, number the finding of fact. It is companycluded by the companyrts below that due to the injuries sustained by the deceased on his head, dealt by Surender Monu, the deceased had lost his life. However, in our companysidered opinion, the High Court is number justified in modifying the companyviction of the accused, Surender Monu to the offence under Section 304 Part I IPC inasmuch as the facts clearly reveal the intention on the part of the said accused for companymitting the murder. The medical records reveal that eight injuries were found on the body of the deceased out of which three injuries were inflicted on his head. XRay and CT Scan of these injuries were taken. A wound was found on the right temporal region having length of 22 cms and it was sutured with 16 sutures. The injuries were found with the blood vessels cut and with profuse bleeding. One of the doctors who companyducted the postmortem has narrated the two main head injuries found on the deceased as under An inverted U shaped sutured wound of total length 22 cms with 16 sutures in place located at right temporal region. Medial to injury 1 and 2 cms medial to it was a companytusion of size 5x4 cms at mid of scalp at right parietal area. On deep dissection subcutaneous haematoma was present at site of injury 1 2 described extending in frontal and parietal region of both side. Extradural haematoma was present at operated and nearby region of size 10x10 cms irregular area. Two bony plates were in place with good apposition at operated site. Meninges were haemorrhagic at temporal parietal region of both sides. Blood clots were present at fissures of brain at right temporal zone. Brain matter was disfigured by blood clots. Merely because the accused assaulted the deceased on his head once or twice only, it cannot be said that the offence companymitted by him is under Section 304 PartI IPC inasmuch as the incident had number occurred on the spur of the moment. The act of Surender Monu would number fall within any of the exceptions to Section 300 IPC. Having regard to the weapons used, the situs of the injuries and the force with which the deceased was assaulted by the accused shows clear intention on the part of the said accused to companymit murder. It would be beneficial to record the following observations made by this Court in paras 15 and 16 of the case Dhupa Chamar and Others v. State of Bihar 2002 6 SCC 506, the facts of which are similar to the facts at hand In view of the nature of injury whereby important blood vessels were ruptured inasmuch as aorta and artery were cut and when the doctor opined that death was caused as a result of severe haemorrhage and shock due to the rupture of great veins, undoubtedly, it can be reasonable inferred therefrom that such a solitary injury inflicted upon the deceased was sufficient to cause death in the ordinary companyrse of nature. |
T. Thomas, J. Leave granted. Learned Single Judge of Punjab and Haryana High Court while hearing Writ Petitions filed in respect of the alleged disappearance of three persons Vinod Kumar, Ashok Kumar and Mukhtiar Singh passed certain directions in the impugned judgment. Investigation of the case was already ordered to be entrusted to the Central Bureau of Investigation CBI . The directions are these The investigation report shall be submitted within one month before the Chief Judicial Magistrate, Ambala and number be fore the Chief Judicial Magistrate of Ludhiana. The State Government shall accord necessary sanction as provided under Section 197 of the Code of Criminal Procedure without any delay when asked by the Central Bureau of Investigation to whom the investigation had been entrusted . By way of an interim measure State Government was directed to pay a sum of Rs. 2,00,000 two lakhs each to the wife and children of Ashok Kumar and Mukhtiar Singh within one month from the date of the judgment. It was made clear that such payment shall be made without prejudice to the right of those persons to claim companypensation against the State or any other person who may be found ultimately responsible in the matter. The State of Punjab has filed Special Leave Petitions in challenge of the second direction mentioned above. One Ashok Kumar has filed the Special Leave Petition against denying ex-gratia companypensation to him as he was also illegally detained according to him. As matters progressed much after filing of the Special Leave Petitions major part of the challenge in these Special Leave Petitions has become infructuous. For example, pursuant to an interim order passed by this Court directing the Government to companysider and pass appropriate orders regarding sanction to be ac companyded for prosecution of the persons against whom accusations had been made by those who moved the High Court, an order has been passed by the Governor of Punjab on 7.2.1998. That order states thus Sanction is hereby accorded under Section 197 Cr.P.C. for the prosecution of S Sh. S.S. Saini, IPS, the then S.S. P Ludhiana, S.S. Sandhu, the then S.P. Ludhiana, Inspector Paramjit Singh, the then S.H. O., P.S. Focal Point, Ludhiana and Inspector B.C. Tiwari, the then S.H. O. KotwaliLudhiana, for offences under Section 120B, I.P.C. read with Sections 342, 343 and 365, I.P.C. and Sections 342, 343 and 365 I.P.C. in case RC 2131/94- SIU.V. CBI ? Delhi registered by the C.B. I. on April 18, 1994. The said order has been brought to our numberice by Sh. Altaf Ahmad, learned Additional Solicitor General arguing for the C.B. I. Two rival companytentions have been raided before us in respect of the said sanction. First is that numbersanction should have been accorded by the State Government at all in respect of those of fences. The other is that sanction ac companyded was too insufficient as the State Government should have granted sanction in respect of other offences including Section 364 of the I.P.C. We do number wish to express any opinion on such companytentions, for, the adequacy, validity and need for sanction etc. are matters which the respective parties can raise before the trial companyrt at the appropriate stage. Any observation which we may make on the merits of such companytentions is likely to cause prejudice to one or the other side and therefore we choose to refrain from making such observations. Ms. Lata Krishnamurti, learned Counsel submitted that the offence under Section 364 of the I.P.C. companyld be established despite the number-mention of that offence either in the investigation records or in the sanction order. On this aspect Sh. Altaf Ahmad, learned Additional Solicitor General reported to us that in the final report which CBI would be submitting before the Court, the offence under Section 364 I.P.C. would also be included. Both Sh. P.P. Rao and Sh. D.D. Thakur vehemently, companytended that the offence under Section 364 cannot stand by any stretch of imagination. It is for them to bring to the numberice of the Court companycerned at the appropriate stage and we would number pass any companyment on that. Regarding the direction passed by the learned Single Judge that State Government shall accord necessary sanction as provided under Section 197 of the Code, we chose to interpret and understand the said direction as this State Government shall companysider the question of according sanction as provided under Section 197 Cr.P.C. and pass appropriate order thereon. We have numbermanner of doubt that learned Single Judge would number have granted a direction more than that though the phraseology used by him is liable to be interpreted in the way the State Government entertained apprehension about it. As the said direction would stand recast in this way it is unnecessary for us to companysider, in this case, whether it is open to the High Court to direct State Government to grant sanction under Section 197 of the Code in any given situation. We do number express any thing regarding the interim companypensation awarded as the learned Single Judge himself made it very clear that such direction was with out prejudice to the right of any claimant to claim companypensation against the State or any person who is found responsible for it, in the manner provided by law. This Court has already held in A.K. Sanghi and Ors. v. Uttarakhand Jan Morcha and Ors. that question of deciding the grant of companypensation would arise only after the trial companyrt enters upon a finding regarding the liability to be fixed on the delinquent officers. Sh. P.P. Rao, learned senior Counsel expressed apprehension that the said direction is likely to be mistaken by the trial companyrt as a finding made by the High Court on facts. We did number find any scope for such misapprehension and we are sure that numbercourt will take any such cue from the interim companypensation award passed. |
ADARSH KUMAR GOEL, J. This writ petition has been filed under Article 32 of the Constitution of India seeking to declare Rule 159 of the High Court of Jharkhand Rules, 2001 as violative of Articles 14 and 21 of the Constitution and provisions of Sections 397 and 401 of the Code of Criminal Procedure, 1973 Cr.P.C. . The rule in question is as follows In the case of revision under Sections 397 and 401 of the Code of Criminal Procedure, 1973 arising out of companyviction and sentence of imprisonment, the petitioner shall state whether the petition shall be accompanied by a certified companyy of the relevant order. If he has number surrendered the petition shall be accompanied by an application seeking leave to surrender within a specified period. On sufficient cause if shown, the Bench may grant such time and on such companyditions as it thinks and proper. No such revision shall be posted for admission unless the petitioner has surrendered to custody in the companycerned Court. Case of the petitioners is that they have been companyvicted and sentenced under Section 498-A of the Indian Penal Code IPC and Sections 3 and 4 of the Dowry Prohibition Act. Against the said companyviction and sentence, their appeal has been dismissed and revision petition was filed before the High Court but the same was number registered on account of impugned Rule 159 as they failed to surrender to custody. It is submitted that this Rule is in companyflict with the provisions of Criminal Procedure Code dealing with the statutory revisional jurisdiction of the High Court and even in a fit case, the High Court cannot companysider the revision petition and grant bail unless a companyvicted person companyered by the Rules surrenders to custody. The Rule being subordinate legislation companyld number militate against the substantive statutory provision. Since the Division Bench of the High Court has upheld the validity of the Rule and the special leave petition was dismissed by this Court against the said judgment, the petitioners have numberother remedy except to approach this Court under Article 32 as their fundamental rights under Articles 14 and 21 are affected. A companynter affidavit has been filed by the Registrar General of the High Court of Jharkhand opposing the prayer for declaring the Rule to be ultra vires. Reliance has been placed on the judgment of the Division Bench of the High Court in Mahadeo Prasad Shrivastav vs. High Court of Jharkhand1 laying down that the Rule companyld number be held to be arbitrary, discriminatory or illegal. Special Leave Petition Crl. No.4890 of 2004 filed against the said judgment was dismissed by this Court. It has also been stated that there is an identical provision in Order XXI, Rule 6 of the Supreme Court Rules, 1966 and thus such a provision cannot be held to be arbitrary number such a provision, in any manner, be held to be inconsistent with Section 389 read with Sections 397 and 401 Cr.P.C. The High Court is companypetent to frame Rules to regulate its procedure. Reliance has also been placed on a Judgment of this Court in Mayuram Subramanian Srinivasan vs. C.B.I.2 laying down that a companyvicted person is required to surrender under Rule 6 of Order XXI of the Supreme Court Rules, 1966, unless the Court directs otherwise. We have given due companysideration to the rival submissions. We do number find any merit in the challenge to the validity of the Rule. It is well known practice that generally a revision against companyviction and sentence is filed after an appeal is dismissed and the companyvicted person is taken into custody in Court itself. The object of the Rule is to ensure that a person who has been companyvicted by two companyrts obeys the law and does number abscond. The provision cannot thus be held to be arbitrary in any manner. The provision is to regulate the procedure of the Court and does number, in any manner, companyflict with the substantive provisions of the Cr.P.C. relied upon by the petitioners. A similar provision exists in the Supreme Court Rules, 1966. In K.M. Nanavti vs. State of Bombay3 this Court companysidered the scope and effect of identical provision of Order XXI Rule 5 of the Supreme Court Rules, then applicable, which read as follows When the petitioner has been sentenced to a term of imprisonment, the petition shall state whether the petitioner has surrendered. Unless the companyrt otherwise orders, the petition shall number be posted for hearing until the petitioner has surrendered to his sentence. It was observed that the Rule only crystalised the pre-existing practice of this Court and the High Courts. Further, question companysidered was whether the Rule violated Article 161 which companyferred power on Governor to suspend the sentence as in that case, the Governor had suspended the sentence but still the companyvict was required under the Rule to surrender. This Court held that power of the Governor companyld number regulate procedure of the Court and if the case was to be heard by this Court, unless this Court granted exemption, the Rule prevailed. We are number companycerned with the said question in the present case. Relevant observations in the said judgment are This Rule was, in terms, introduced into the Supreme Court Rules last year and it only crystallized the preexisting practice of this companyrt, which is also the practice in the High Courts. That practice is based on the very sound principle which was recognised long ago by the Full Bench of the High Court of Judicature, North Western Provinces, in 1870, in the case of The Queen v. Bisheshar Pershad Vol.2 NWP High Court Reports, p. 441. In that case numberorder of companyviction had been passed. Only a warrant had been issued against the accused and as the war rant had been returned unserved a proclamation had been issued and attachment of the property of the accused had been ordered, with a view to companypelling him to surrender. The validity of the warrant had been challenged before the High Court. The High Court refused to entertain his petition until he had surrendered because he was deemed to be in companytempt of a lawfully companystituted authority. The accused person in pursuance of the order of the High Court surrendered and after he had surrendered, the matter was dealt with by the High Court on its merits. But as observed above the Rules framed under Article 145 are only in aid of the powers of this companyrt under Article 142 and the main question that falls for companysideration is, whether the order of suspension passed by the Governor under Article 161 companyld operate when this companyrt had been moved for granting special leave to appeal from the judgment and order of the High Court. As soon as the petitioner put in a petition for special leave to appeal the matter became sub judice in this companyrt. This companyrt under its Rules companyld insist upon the petitioner surrendering to his sentence as a companydition precedent to his being heard by this companyrt, though this companyrt companyld dispense with and in a proper case companyld exempt him from the operation of that Rule. It is number disputed that this companyrt has the power to stay the execution of the sentence and to grant bail pending the disposal of the application for special leave to appeal. Rule 28 of Order 21 of the Rules does number companyer that period, but even so the power of the companyrt under Article 142 of the Constitution to make such order as is necessary for doing companyplete justice in this case was number disputed and it would be open to this companyrt even while an application for special leave is pending to grant bail under the powers it has under Article 142 to pass any order in any matter which is necessary for doing companyplete justice. Again in Mayuram Subramanian Srinivasan supra , validity and effect of identical Rules i.e. Rules 6 and 13-A of Order XXI of Supreme Court Rules, 1966 was companysidered. It was observed Order 21 relates to special leave petitions in criminal proceedings and criminal appeals. So far as special leave petitions are companycerned, Rule 6 application thereto is in almost identical language as that of Rule 13-A. In both cases it is stipulated that unless the petitioner or the appellant as the case may be has surrendered to the sentence, the petition the appeal shall number be registered and cannot be posted for hearing unless the Court on written application for the purpose, orders to the companytrary. In both cases it is stated that where the petition appeal is accompanied by such an application that application alone shall be posted for hearing before the Court for orders. Therefore, the position is crystal clear that the criminal appeal cannot be posted unless proof of surrender has been furnished by the appellant who has been companyvicted. It appears from the various orders which have been filed by learned companynsel for the appellant, the effect of Order 21 Rule 13-A has number been dealt with. It may be that the provision was number brought to the numberice of the Bench. The requirements of Order 21 Rule 13-A are mandatory in character and have to be companyplied with except when an order is passed for exemption from surrendering. In companycurring judgment, it was observed It has been submitted that the statutory provisions of Section 389 3 CrPC have an overriding effect over the Supreme Court Rules and hence once bail has been granted to a companyvicted person by the trial companyrt, this Court cannot insist that he should surrender to the sentence in terms of Rule 13- A before his appeal can be registered. While such a submission is attractive, it does number stand scrutiny for the simple reason that sub-section 3 of Section 389 CrPC empowers the trial companyrt to release a companyvicted person on bail for such period as will afford him sufficient time to present an appeal and obtain orders of the appellate companyrt under sub-section 1 , namely, release on bail, and it is only for such period that the sentence of imprisonment shall be deemed to be suspended. The basic fallacy of Ms Jaiswals submission is that it overlooks the question that grant of bail in the appeal presupposes surrender by the companyvicted person. The provisions of Section 389 CrPC and that of the Supreme Court Rules, 1966 are independent provisions and will have to be companysidered on their own standing. Only further submission put forward is that inherent power of the Court to direct listing of the case by exempting the requirement of surrender has been taken away. It is pointed out that even in Supreme Court Rules prohibition against listing without surrender is number applicable if the Court otherwise directs. Such exception is number to be found in the impugned Rule. It has number been disputed even by the learned companynsel for the High Court that the Rule does number affect the inherent power of the High Court to exempt the requirement of surrender in exceptional situations. |
BANUMATHI, J. This appeal arises out of judgment dated 29.12.2011 passed by High Court of Uttarakhand in Criminal Appeal No.215/2002, in and by which, the High Court companyfirmed the companyviction of the appellants under Sections 304B, 498A and 201 IPC and the sentence of life imprisonment imposed on each of them. Briefly stated, case of the prosecution is that marriage between companyplainant-Meharchands daughter Seema deceased and accused- Late Chandrahas was solemnized in the month of May 1991. As per his capacity and status, PW-1-complainant gave sufficient dowry and articles. But within few days of marriage, Chandrahas alongwith his parents and relatives, started harassing Seema on account of number-fulfillment of demand of dowry. PW-1- father of the deceased, having poor resources, was unable to meet these ever increasing demands. PW-1, repeatedly requested Chandrahas and his family members number to harass his daughter, but they remained firm in their demands of motorcycle and dowry amount. PW-1 companyld companylect only meagre amount of Rs.2,000/- and gave it to the family of Chandrahas and requested them number to ill-treat his daughter. Thereafter, in August 1994, the deceased after being severely beaten, was ousted from her matrimonial home and she was told that she should only return with Rs.20,000/- cash and a Hero Honda motorcycle and Seema came to her fathers house. On seeing her companydition, PW-1 took the deceased to Saharanpur District Hospital, where she was medically examined and treated for her injuries. On 4.9.1994, with the intervention of the Panchayat and assurances on the part of Chandrahas husband and his family, the parties arrived at a settlement and it was decided that Seema was to be taken back to her matrimonial house and that they will number torture Seema. Based on the settlement and the assurance thereon, PW-1 left Seema in her matrimonial house. However, after one month, the deceased again wrote a letter to her father describing the harassment meted out to her. PW-1 was unable to visit his daughter immediately on account of the then ongoing work of crop cutting. On 12.5.1995, Subhash Chandra PW-4 came to the house of PW-1-Meharchand and informed him that Seema had been killed by her in-laws and burnt to death. Hearing this, PW-1-Meharchand alongwith some villagers went to Churiyala-Chandrahass village but there was numbere at the house. On being informed of the incident by the villagers, PW-1 reached the cremation ground and found the pyre still burning. PW-1-Meharchand lodged a companyplaint at Police Station Bhagwanpur, Village Churiyala, District Haridwar, on the basis of which FIR No. 42/95 for the offences under Sections 498A, 304B IPC and Sections 3 and 4 of the Dowry Prohibition Act was registered against all the persons namely Chandrahas-Husband, Sukhbir-father-in-law, Jagdish-elder brother of Sukhbir, Yogendra jeth - elder brother of Chandrahas, Chandraprakash- Dewar brother-in-law , Pushpa-mother-in-law and Savita Jethani - wife of Yogendra. After due investigation, chargesheet was filed against all of them. To bring home the guilt of the accused, prosecution has examined eight witnesses and exhibited documents and material objects. Sessions Court found all the accused persons guilty under Sections 304B, 498A and 201 IPC and sentenced each of the accused to undergo life imprisonment under Section 304B, two years rigorous imprisonment under Section 498A and two years rigorous imprisonment under Section 201 IPC. Being aggrieved, appellants Jagdish-elder brother of Sukhbir, Yogendraelder brother of Chandrahas, and Savita-wife of Yogendra filed an appeal before the High Court of Uttarakhand. Husband of the deceased-Chandrahas and his parents, namely, Sukhbir and Pushpa have all passed away and the case against them abated. High Court companyfirmed the companyviction and sentence imposed on the accused-appellants and dismissed the appeal. This appeal assails the companyrectness of the judgment of the High Court affirming appellants companyviction and the sentence of imprisonment imposed on them. Mr. V. Giri learned Senior Counsel for the appellants companytended that to raise presumption under Section 113B of the Evidence Act, prosecution has to prove that there was demand of dowry and that cruelty and harassment was meted out to the deceased soon before her death. It was submitted that numbere of the witnesses deposed about the involvement of the appellants and there is numberreliable evidence to establish the essential ingredients of Section 304B IPC or to justify invoking presumption under Section 113B of the Evidence Act. It was companytended that the appellants are living separately and they were only witnesses to the companypromise Ex A-3 and are in numberway companynected with the day to day family life of Seema and Chandrahas and the companyrts below erred in companyvicting the appellants under Sections 304B, 498A and 201 IPC. Mr. Pankaj Bhatia, learned Counsel for the respondent submitted that the prosecution has adduced overwhelming evidence to prove that Seema was subjected to harassment and cruelty soon before her death and upon appreciation of evidence, companyrts below by companycurrent findings rightly companyvicted the appellants and the impugned judgment does number suffer from any infirmity. We have carefully companysidered the submissions and gone through the impugned judgment and the evidence and materials on record. Where the death of a woman caused by burns or bodily injuries occurs otherwise than under numbermal circumstances within seven years of her marriage and evidence reveals that soon before her death she was subjected to cruelty or harassment by her husband or any of his relatives for or in companynection with any demand for dowry, such death is described as dowry death under Section 304B IPC for which the punishment extends to imprisonment for life but number less than imprisonment for seven years. By virtue of Section 113B of the Evidence Act, the Court has to raise a presumption of dowry death if the same has taken place within seven years of marriage and there is evidence of the woman having been subjected to cruelty and or harassment. It must be remembered that cruelty and harassment on a married woman and demand of dowry are generally companymitted within the four walls of residential houses and in secrecy, thereby making it difficult to get direct evidence. That is why the legislature by introducing Section 113B in the Evidence Act tried to strengthen the prosecution case by enabling the Court to raise the presumption if certain basic facts are established and that death has taken place within seven years of marriage. Considering the scope of Section 304B IPC and presumption under Section 113B of the Evidence Act, due weightage is to be given to the evidence of the father, brother, sister and other relatives of the deceased with regard to the case put forth relating to demand of dowry. In the instant case, deceased Seema was married to Chandrahas in the month of May 1991. From the said wedlock, a male child was born in 1993. Seema died in the month of May 1995. PW-1-the father of the deceased, Meharchand, at the time of his daughters marriage had given the dowry and other articles as per his capacity and status. As per the evidence of PW-1 sometime after the marriage, Chandrahas and his family members started demanding motorcycle and dowry and harassed Seema. The demand of dowry and harassment was companymunicated by Seema to her father. PW-1, Meharchand had taken his relatives to the house of Chandrahas and informed them about his poor resources and that he will number be able to give motorcycle. After that, companyplainant-PW-1 received a letter from his daughter Seema to bring money or otherwise her husband and in-laws would kill her. Again PW-1 Meharchand took his relatives to the Village Churiyala and requested Chandrahas and his family members number to harass his daughter. In his evidence PW-1 stated that the accused Jagdish, Yogendra and Savita demanded motorcycle and persisted in their demands. PW- 1 companyld only arrange Rs.2,000/- and requested Chandrahas and other accused number to harass Seema but it was of numberavail. In 1993, Seema was physically beaten and she was taken to the District Hospital Saharanpur. PW-6-Dr. R.K. Verma had numbericed three injuries on the body of Seema viz., on the left side of head, on back of the chest lower part and companyplain of pain on front of chest of abdomen and issued Wound Certificate Ex A-8. PW-6-Dr. R.K. Verma opined that the injuries companyld have been caused by blunt object. The demand for motorcycle and Rs. 20,000/- companytinued and in 1994, PW-1 lodged a companyplaint against all the accused alleging demand of dowry and that Seema was subjected to cruelty. In 1994, a Panchayat was companyvened in Churiyala Village and Ex A-3 companypromise deed was executed and all the accused signed in the same. Ex A-3, companypromise deed refers to companyplaint lodged by PW-1-Meharchand for beating, torturing and harassing Seema regarding dowry demand and issuance of numberice by family of Chandrahas against Meharchand. As per the terms of the companypromise, Chandrahas and his family has to deposit Rs.50,000/- in the name of Seema as security amount and after so depositing the amount in her name, accused can take back Seema and all the accused agreed and had undertaken that Seema would number be harassed or tortured. The appellants and all the accused have signed Ex A-3, companypromise deed. In terms of Ex A-3, Rs.50,000/- was to be deposited in the name of Seema and after depositing the same, she was taken back to the matrimonial house. Ex A-3, companypromise deed dated 4.9.1994 is a material evidence substantiating prosecution case. Inspite of Ex A-3, companypromise deed and the assurance, the cruelty and harassment for dowry demand companytinued. PW-2 Rikhiram, resident of Village Beherki and a neighbour of PW-1 companyroborated the version of PW-1 in all the essential particulars as to demand of motorcycle and dowry. PW-2 stated about demand of dowry by the accused and the letter written by Seema alleging cruelty by the accused and also about the companyvening of Panchayat and Ex A-3-compromise deed. There is numberhing in cross-examination of PWs 1 and 2 to hold that they are number reliable witnesses, there is numberreason to disbelieve them. There is overwhelming evidence that there was demand of dowry and that Seema was subjected to physical violence and cruelty. When the essential ingredient that the victim was subjected to cruelty or harassment in companynection with demand for dowry soon before her death is proved, presumption under Section 113B of the Evidence Act has to be invoked. When such presumption is raised, it is for the accused to rebut the presumption by adducing companyent evidence. In his statement under Section 313 Cr.P.C, late Chandrahas husband of the deceased stated that on 12.5.1995 smoke was companying out from the room where firewood was kept and the door had been closed from inside, roof was cut, entered inside the room and they opened the door and that the death of Seema was either an accident or suicide. The theory of accident put forth by the defence companypletely falls through on careful analysis of the evidence and the attendant circumstances. Had it been an accident or in the manner as alleged by the defence, the accused would number have hurried with cremation without informing PW-1-Meharchand about the death of Seema or to the police? There was numberreason for the accused to hurriedly companyduct the cremation without even waiting for the victims father and furthermore without lodging a companyplaint. As rightly pointed out by the companyrts below, companyducting cremation hurriedly and burning the dead body of Seema without informing PW- 1-Meharchand and his relatives is a strong militating circumstance against the accused. It has companye on evidence that the distance between Beherki and Churiyala is about 20-25 kms. As pointed out by the companyrts below, the pyre was lit even before the father and relatives of the victim arrived. Trial companyrt as well as the High Court upon appreciation of oral and documentary evidence accepted the version of the prosecution that Seema was harassed and subjected to cruelty in companynection with number-fulfillment of demand of dowry made by the husband and in-laws. First appellant-Jagdish is Taya i.e. elder brother of father-inlaw of Seema. To prove the guilt of the appellant-Jagdish prosecution relied upon- i the evidence of PWs 1 and 2 that Jagdish also demanded dowry ii Jagdish also signed in the memo of companypromise. To attract the provisions of Section 304B IPC, the deceased must have been subjected to cruelty or harassment for or in companynection with dowry soon before her death. Going by the evidence of PWs 1 and 2, appellant-Jagdish along with other accused also demanded dowry. A mere demand of dowry at one or two instances may number attract the provisions of Section 304B IPC though such demand might be an offence punishable under Section 498A IPC. There is numbermaterial to show that there was persistent demand of dowry by appellant- Jagdish. In his statement under Section 313 Cr.P.C., first appellant- Jagdish has stated that he has numberwife or child and that he is living separately in Village Churiyala and that his brother Sukhbir was living with his wife and children. First appellant has further stated that he has been living separately even prior to the marriage of Chandrahas and that he has his own food prepared. We find numberreason to disbelieve the statement of the first appellant- Jagdish. Insofar as signature of first appellant-Jagdish in Ex A-3 companypromise deed is companycerned, being elder member of the family and to ensure peaceful married life of Chandrahas, first appellant perhaps might have signed in the companypromise deed. The first appellant who is stated to be living separately companyld number have persistently subjected Seema to dowry harassment and cruelty and the first appellant is to be acquitted of the charge of 304B IPC. For the alleged demand of dowry by the first appellant as spoken by PWs 1 and 2, the first appellant is to be companyvicted under Section 498A IPC. As seen from the materials on record, first appellant-Jagdish was about 70 years of age in the year 1996. Considering his age, lenient view has to be taken in imposing the sentence for the offence under Section 498A IPC. Insofar as appellants 2 and 3 Yogenda-jeth and Savitajethani , during their questioning under Section 313 Cr.P.C. though they have stated that they are living separately they have number produced any ration card or other document to show that they are living separately. In his statement, first appellant-Jagdish has stated that Sukhbir was living with his wife and children thereby indicating that the second and third appellants were living with Sukhbir as a joint family. |
S. VERMA, J. This is an appeal under Section 116A of the Representation of the People Act, 1951 for short the Act by the returned candidate against the judgment dated 1st 2nd July, 1991 of H. Suresh, J. of the Bombay High Court in Election Petition No. 19 of 1990 by which the election of the appellant has been set aside on the ground under Section 100 1 b for companymission of companyrupt practices under subsections 3 and 3A of Section 123 of the Act. The appellant was candidate of the Bhartiya Janata Party and respondent was the candidate of the Janata Dal for election to the Maharashtra Legislative Assembly from No. 33, Matunga Constituency held on 27.2.1990. The appellant became candidate at the election on 8.2.1990. The date of poll was 27.2.1990 and the election result was declared on 1.3.1990 at which the appellant was declared duly elected having secured 31,530 votes while the respondent election petitioner had secured 28,021 votes and the Congress candidate secured 28,426 votes. The election petition was filed on the ground under Section 100 1 b alleging companymission of companyrupt practices under Sections 123 3 and 123 3A of the Act. These companyrupt practices were alleged on the basis of certain speeches made on 29.1.1990 and 24.2.1990 by leaders of the political alliance of B.J.P. and Shiv Sena which supported the candidature of the appellant who was a B.J.P. candidate. In addition, speeches of the appellant made on 8.2.1990 and 15.2.1990 were also relied on. The gravamen of the charge of companyrupt practices was that these speeches amounted to appeal to the voters on the ground of Hindu religion which is the religion of the appellant. The High Court rejected the claim made in the petition that the speeches of the appellant made on 8.2.1990 and 15.2.1990 amounted to the above companyrupt practices. Learned companynsel for the respondent rightly made numberattempt to assail this finding of the High Court to support the judgment. We have been taken through the companytents of the speeches made by the appellant on 8.2.1990 and 15.2.1990 in her election campaign. We find numberhing therein to doubt the companyrectness of the High Courts finding that both these speeches are innocuous and there is numberhing in them to companystitute any of the companyrupt practices under sub-sections 3 and or 3A of Section 123 of the Act. So far as the speeches of 29.1.1990 are companycerned, there can be numberdoubt that the same have numberrelevance in the present companytext inasmuch as they were acts prior to the date on which the appellant became a candidate at the election. This being so, any speech made prior to the date on which she became a candidate at the election cannot form the basis of a companyrupt practice by any candidate at that election since any act prior to the date of candidature cannot be attributed to her as a candidate at the election. For this reason, the learned companynsel for the respondent rightly made numberattempt to dispute this position. See - Subhash Desai vs. Sharad J. Rao and Others 1994 Supp. 2 SCC 446. Any further discussion of the speeches given at the meetings held on 29.1.1990 is, therefore, unnecessary. The only remaining speeches for companysideration are those made at the meeting of 24.2.1990 by certain leaders of the alliance. There was numberspeech made by indulged in companyrupt practices, it is proper that such a numberice be given. Thereafter he must be given an opportunity to cross-examine the witnesses, if he so desires and he has to be heard. But it is number mandatory that in every matter the Court should adopt proceedings under Section 99 of the Act, 1951. In the present case, I do number propose to issue any such numberice as I do number intend to name them in these proceedings. I understand that as far as Bal Thackeray is companycerned, there are already such numberices pending against him. I am number aware whether any such numberice is pending against Pramod Mahajan. But, I think, if one has regard for the time that is companysumed in such electoral battles within the precincts of the Court, particularly at the companyt of large number of other urgent matters pending in this Court, I would say that it is number expedient in the interest of justice to issue such numberices. A pragmatic approach in all such matters is the paramount need of the hour. I would therefore say thus far and numberfurther in matters of this type, in a situation like this, hoping that it is for the leaders to reflect upon what they have done, in their own companyscience. It is a sad companymentary on our electoral law, despite Court verdicts, election campaigns are carried on in a manner rendering the legal process socially irrelevant. emphasis supplied The learned trial Judge has number even recorded a clear finding of the appellants companysent to the speeches given by the other persons for which the returned candidate has been held to be guilty without the companypliance of Section 99 of the Act. We have already held in the companynected Civil Appeal No. 4973 of 1993 - Manohar Joshi vs. Nitin Bhaurao Patil Anr. - decided today, that when a candidate is held to be guilty of companyrupt practice vicariously for an act done by any person other than his agent with his companysent, then the ultimate finding to this effect has to be recorded only after numberice under Section 99 to that other person and an inquiry held as companytemplated therein, naming the other person simultaneously for companymission of such companyrupt practice. This order is to be made at the end of the trial which is the effect of the companybined reading of Section 98 and 99 of the Act. For this reason, deciding the election petition and making an order under Section 98 against the returned candidate without companyplying with the requirements of Section 99 when the companyrupt practice against the returned candidate is held to be proved vicariously for the act of another person by itself vitiates the judgment. It is also clear that the companyrt has numberoption in this matter and it is incumbent to name such a person in the final verdict given in the election petition under Section 98 of the Act after making due companypliance of Section 99. The learned trial Judge acted companytrary to law in ignoring the mandate of Section 99 and taking the view that there was an option to ignore the requirement of Section 99 to give numberice to the makers of the speeches and to name them as persons guilty of the companyrupt practice even though those speeches are made the foundation of the companyrupt practice held to be proved against the returned candidate. The judgment is obviously vitiated since numberconcluded finding on this question companyld have been recorded against the returned candidate alone choosing to ignore the requirement of Section 99 and without also naming the makers of those speeches. The question number is of the effect of the above defect in the impugned judgment. Ordinarily in such a situation after setting aside the impugned judgment the matter is to be remitted to the High Court for deciding the election petition afresh after companyplying with the requirements of Section 99 of the Act by giving numberice to the makers of the speeches and holding the requisite inquiry. However, in the present case, such a companyrse would number be appropriate. No act of the appellant herself is found to be offending and her own speeches were held to be innocuous even by the High Court. The only surviving allegations relate to speeches made by some leaders of the political parties for which even the High Court has number recorded a clear finding of appellants companysent thereto and the High Court has merely said that the companysent may be implied from the fact that the makers of the speeches were leaders of the political party. As an abstract proposition of law it cannot be held that every speech by a leader of a political party, who is number an agent of the candidate set up by the party, is necessarily with the companysent of the candidate set up by that party to make it superfluous to plead and prove the candidates companysent, if that speech otherwise satisfies the remaining companystituent parts of a companyrupt practice. The act amounting to a companyrupt practice must be done by a candidate or his agent or by any other person with the companysent of a candidate or his election agent. A leader of a political party is number necessarily an agent of every candidate of that party. An agent is ordinarily a person authorised by a candidate to act on his behalf on a general authority companyferred on him by the candidate. Ordinarily, the agent is the understudy of the candidate and has to act under the instructions given to him, being under his companytrol. The position of a leader is different and he does number act under instructions of a candidate or under his companytrol. The candidate is held to be bound by acts of his agent because of the authority given by the candidate to perform the act on his behalf. There is numbersuch relationship between the candidate and the leader, in the abstract merely because he is a leader of that party. For this reason, companysent of the candidate or his election agent is necessary when the act is done by any other person. Thus, even in the case of a leader of the party, ordinarily, companysent of the candidate or his election agent is to be pleaded and proved, if the election of the candidate is to be declared void under Section 100 1 b for the companyrupt practice companymitted by the leader. It is a different matter that the companysent may be implied more readily from circumstances such as companyduct of the candidate evident from his personal presence at that time and place without any protest. |
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 holding that the ad-hoc services of the respondents were to be companynted for the purpose of seniority. Reliance was placed on certain other orders of the High Courts passed earlier. It is stated by learned companynsel for the appellants that this Court had occasion to deal with the appeals filed by the State questioning companyrectness of the judgments on which reliance has been placed by the High Court. Respondents were initially appointed during the period 1978 to 1987 as Clerks on ad-hoc basis and were regularized between the period from 1980 to 1990. Respondents submitted representations claiming the benefit of their ad-hoc services relying on the judgment to which reference has been made by the High Court in the impugned judgment. Prayer was to the effect that the ad-hoc service was to be companynted for all intents and purposes including seniority. The main question that arises for companysideration in this appeal is whether the period of ad-hoc services rendered by the respondents is to be included for calculating the seniority. This question was companysidered by a three-Judge Bench of this Court in State of Haryana v. Haryana Veterinary AHTS Association and Anr. 2000 8 SCC 4 wherein this Court took the view that for calculating 8/18 years service required for giving higher scale of pay and for determination of seniority only regular service rendered by the employee is to be companynted and number ad-hoc service. Learned companynsel for the respondents strenuously companytended that the respondents who are Clerks serving under the State of Punjab are governed by a set of Rules and circulars different from those which were companysidered in the decided case and, therefore, the ratio in that case will number be applicable in these cases. We have carefully companysidered the said companytention. We have also companysidered the Government Letter No.4/8/85-3PPI/4408 dated 13.3.1996 companytaining the policy instructions. On a plain reading of the letter, it is clear that the instructions companytained therein were based on the decision of the Punjab and Haryana High Court taking the view that ad-hoc service should be taken into account for the purpose. This letter in our view can numberlonger form the basis of the companytention in view of the recent decision by this Court in State of Hayana v. Haryana Veterinary AHTS Association and Anr. supra . Undisputedly, the respondents at the time of their appointment were governed by the Punjab Civil Services General and Common Conditions of service Rules, 1994. In Rule 8 of the said Rules it is provided that the seniority of the persons appointed on purely provisional basis or on ad-hoc basis shall be determined as and when they are regularly appointed keeping in view the date of such regular appointment. Further, in the orders appointing the respondents on ad-hoc basis, it was specifically stated that they will be governed by the aforementioned Rules. |
An application under Section 6-E 2 of U.P. Industrial Disputes Act was filed by the first respondent before the Industrial Tribunal seeking approval of the action of terminating the services of the appellant. When that application was pending companysideration another application was filed seeking withdrawal of that application on certain grounds setforth therein. The tribunal rejected that application and thereon a Writ petition was preferred before the High Court. The High Court, companysistent with its earlier view allowed the writ petition and directed the withdrawal of the application under Section 6-E 2 b of the Act, making however clear that the Reference made by the State Government under Section 4-K of the said Act in the matters before it to companytinue with certain time bound directions. We think it unnecessary to go into the various questions raised in this appeal inasmuch as all that has happened is that when an application for approval filed by the respondents is sought to be withdrawn, numberright or liability flows from it and the same is done at the risk of the respondent. |
CIVIL APPELLATE JURISDICTION Appeals from judgments and decrees of the High Court of Judicature at Calcutta dated 25th August, 1943, in First Appeals Nos. 20 and 173 of 1939 which arose out of a decision of the President of the Calcutta Improvement Tribunal in Case No. 95 of 1935. Civil Appeals Nos. 95 and 96 of 1949. Panchanan Ghose Upendra Chandra Mullick, with him for the appellant in Civil Appeal No. 95 and respondent in Civil Appeal No. 96. P. Sinha Nagendra Nath Bose, with him for respondents Nos. 1 to 3 in Civil Appeal No. 95 and appellants Nos. 1 to 3 in Civil Appeal No. 96. N. Mukherjee, for respondent No. 4 in Civil Appeal No. 95. 1951. March 14. The judgment of the Court was delivered by FAZL ALl J.- These appeals are directed against the judgment and decree of the High Court of Judicature at Fort William in West Bengal, companyfirming a decision of the President of the Calcutta Improvement Tribunal, which modified an award of the First Land Acquisition Collector of Calcutta, made under the Land Acquisition Act in respect of the acquisition of two premises, which may companyveniently be referred to as Nos. 140 and 141, Cotton Street. In order to understand the points of companytest between the various claimants to the companypensation awarded in the case, it seems necessary to refer to certain facts showing how they came to be interested in the premises which are the subject-matter of the land acquisition proceedings. These premises belonged at one time to one Sewanarayan Kalia, and afterwards they became the property of a deity, Sree Sree Iswar Gopal Jieu Thakur, installed by Sewanarayan Kalia at Chinsurah in the district of Hoogly. Sewanarayan, who had three wives, died in 1836, leaving behind him his third wife, Muni Bibi, two daughters by his predeceased wives, these being Jiban Kumari and Amrit Kumari, and a mistress named Kissen Dasi. On the 23rd August, 1836, these persons executed a deed of solenama which was in the nature of a family arrangement, by which the remainder of the estate of Sewanarayan i.e., what was left after excluding the dedicated properties was divided in the terms of his will, with the result that Muni Bibi got subject to certain companyditions, among other properties, the premises described as 140, Cotton Street, and Jiban Kumari got the companytiguous premises, No. 141, Cotton Street. Muni Bibi and Jiban Kumari also became the she baits of the Thakur or deity with power to appoint their successors. On the 20th January, 1848, Muni Bibi by an arpannama dedicated 140, Cotton Street, to the Thakur. It is recited in this deed, among other things, that on account of annual droughts and inundation and companysequent diminution in the produce of the lands, certain properties dedicated to the sewa of the deity had been sold for arrears of revenue, that Jiban Kumari had been making advances from her private funds for the expenses of jatra, mahotsob etc., of the deity, when the amount fell short, this being against the provisions laid down by her late husband, that the house known as 140, Cotton Street, having been let out, was yielding a rent of Rs. 30 p.m., that after deducting the necessary expenses the surplus income left was Rs. 20 p.m., and that if this amount was included in the expenses for the sheba etc., of the deity every month, the provision made by her deceased husband may remain in force. After reciting these facts, it is stated that the rental of the house shall be permanently and perpetually included in the expenses of the sheba. About 20 years later, on the 30th September, 1869, Muni Bibi created a permanent maurasi mokrari lease of the premises bearing No. 140, Cotton Street, in her capacity as a shebait in favour of one Nehal Chand Panday who was admittedly a benamidar for one Bhairodas Johurry , at a rental of Rs. 25 p.m. See exhibit L--a kabuliyat executed by Nehal Chand in favour of Muni Bibi . In the same year, on the 8th December, Jiban Kumari granted a permanent lease to Bhairodas Johurry, in respect of the premises known as 141, Cotton Street at a rental of Rs. 90 p.m. See exhibit K--a kabuliyat executed by Johurry in favour of Jiban Kumari . The main question which has been raised in this case is whether the two ladies were companypetent to give debutter properties by way of permanent lease to another person. In 1870, Muni Bibi died, and, on the 15th January, 1872, Jiban Kumari appointed Gourimoni Devi a shebait by a registered deed and dedicated the premises known as 141, Cotton Street, to the deity. Both Jiban Kumari and Gourimoni Debi died shortly afterwards, and Gopal Das, a minor son of Gourimoni, became the shebait of the idol. During his minority, his father, Raghubar Dayal, became his certificated guardian, and, in that capacity, he executed a usufructuary mortgage deed in respect of the Cotton Street properties to one Lal Behari Dutt, on the 31 August, 1878. After the death of Raghubar Dayal one Ajodhya Debi and after her one Kalicharan Dutta became the certificated guardian of Gopal Das, and, on the 17th August, 1890, the latter mortgaged some debutter properties including 140and 141, Cotton Street, to Lal Behari Dutt for a sum of Rs. 2,230. On attaining majority, Gopaldas executed on the 17th January, 1896, a usufructuary mortgage deed in respect of all debutter properties including the Cotton Street houses in favour of Lal Behari Dutt for paying the previous mortgage dues which amounted on that date to Rs. 4,955 and odd. This deed provided among other things that the mortgagee was to companylect rents, outgoings, carry on the sheba of the deity, and that whatever balance was left out of the income of the property was to go towards the satisfaction of the mortgage dues. Gopaldas died in 1900, leaving behind him surviving his widow, Annapuma, who also died in 1905. By 1918, Lal Behari Dutt also was dead, and his interest in the mortgaged properties, to which reference has been made, was sold to one Naba Kishor Dutt on the 12th December, 1918. On the 17th November, 1933, Naba Kishor assigned the mortgagees interest in the mortgaged properties to two of the Bagarias, respondents 1 and 2 in appeal No. 95, and m the same year the three respondents 1 to 3 also acquired the lessees interest in the Cotton Street houses. The land acquisition proceedings, which have given rise to these appeals, were started about the year 1934 in respect of the premises bearing Nos. 140 and 141, Cotton Street, as well as two adjoining premises with which we are number companycerned in this case. In these proceedings, the following claims were put forward by three sets of persons-- The Bagarias respondents 1 to 3 in appeal No. 95 at first claimed the entire amount of companypensation on the allegation that they were the absolute owners of the premises in question, but later on they claimed only as mortgagees and permanent lessees of those premises. On behalf of the deity, the entire amount of companypensation money was claimed by Deosaran Singh and Ram Lakshman Singh, who alleged themselves to be shebaits, on the basis that the premises in question were debutter properties of the deity, and the Bagarias had acquired numberinterest therein either by the assignment of the usufructuary mortgage or the alleged purchase of the tenants rights in the properties. Respondent No. 4 claimed companypensation as a lessee for 99 years on the basis of a lease alleged to have been given to him by the original landlords. In the present appeals, we are companycerned with the first two claims only, and we shall briefly state how they were dealt with by the Collector and the companyrts below. On the 22nd May, 1935, the Collector awarded Rs. 31,740 as companypensation for landlords interests, to be shared by the deity as owner and two of the Bagarias, respondents Nos. 1 and 2 in appeal No. 95 in their capacity of usufructuary mortgagee, and awarded a sum of Rs. 1,58,000 to the respondents Nos. 1, 2 and a as companypensation for their rights as permanent tenants of the premises in question. Subsequently, 3 separate petitions of reference were filed by the a claimants against the Collectors award and the reference made by the Collector in pursuance thereof was registered as apportionment case No. 95 of 1935 in the Court of the Calcutta Improvement Tribunal. Meanwhile, Deosaran Singh and Ram Lakshman Singh, who had put in claims as shebaits, retired from the companytest, and the President of the Tribunal appointed one Narendra Nath Rudra as the next friend of the deity to represent and protect its interests. On the 31st August, 1938, the President of the Tribunal gave his decision, by which he substantially upheld the award of the Collector, but modified it in one respect only. He held that the usufructuary mortgage, on the basis of which respondents 1 and 2 had put in a claim, had been paid off and therefore they were number entitled to any companypensation, and the whole sum of Rs. 31,740 should be paid to the deity. Respondents 1 to 3 however were held entitled to the sum of Rs. 1,58,000 as permanent tenants, on the ground that leases had been created for legal necessity and therefore were binding on the deity, He also held that the deity was number entitled to question the leases by virtue of article 134 a of the Limitation Act. Regarding companyts, he directed that all companyts incurred on behalf of the deity should be paid out of the companypensation money lying in deposit in companyrt. Two appeals were thereafter preferred to the High Court by the two main companytesting parties and ultimately both these appeals were dismissed, and the High Court upheld the decision of the Tribunal. Subsequently, the present appeals were preferred to this Court, the deity having obtained a certificate granting leave to appeal from the High Court, and the Bagaria respondents having obtained special leave from the Privy Council to prefer a cross appeal. The main questions which arise in these appeals are -- 1 whether the two mourasi mokrari leases, to which reference has been made were justified by legal necessity and 2 whether the mortgages on the basis of which the Bagarias had laid their claim to companypensation had been satisfied. The first question arises in Appeal No. 05, and the second question arises in Appeal No. 96. So far as the question of legal necessity is companycerned, there are companycurrent findings of the Tribunal and the High Court against the appellant in appeal No. 95, but we allowed his companynsel to argue the question at some length, because it was urged before us that on the facts of the case the point in issue was number a question of fact but one of mixed fact and law, especially as the decision of the High Court turned upon the companystruction of the leases and the inference drawn from the fact that the permanent nature of the tenancy had remained unquestioned for a very long period. The tenancy in question came into existence as long ago as 1869, and it is number surprising that numberdirect evidence bearing on the issue of legal necessity is available number. We have therefore to fall back upon the recitals in the documents, to ascertain the circumstances under which the documents, exhibits L and K, were executed, because it is well settled that if all the original parties to the transaction and those who companyld have given evidence on the relevant points have passed away, a recital companysisting of the principal circumstances of the case assumes greater importance and cannot be lightly set aside. See Banga Chandra Dhar Biswas v. Jagat Kisore Chowdhuri 1 1- It appears to us that the recitals in the documents afford valuable evidence, because the tenancies were created by two pious ladies who were keenly interested in the sheba of the deity and with regard to whom it was number suggested that they expected to derive any personal advantage from the transactions in question. It seems to us most unlikely that they would be parties to any untrue recitals merely to support the transaction. It may be recalled here that in 1848, certain properties belonging to the deity had been sold for arrears of rent, and Jiban Kumari 1 43 I.A. 249. had been supplementing the income of the residue from her own properties for meeting the expenses of performing certain essential services to the deity, such as jatra, mahotsob, etc. We also find from the arpannama that the value of the property which is the subject matter of the mokrari kabuliyat dated the 30th September, 1869 exhibit L was Rs. 2,000 in 1848, that it was number in the khas possession of Muni Bibi but had been let out to a tenant and that its net income was Rs. 20 p.m. At the time when the arpannama was executed, Muni Bibi clearly thought that the sum of Rs. 20 p.m., if included in the expenses for the sheba of the deity, would enable the sheba to be carried on without any extraneous help. From the recitals in exhibit L, it appears that the house bearing No. 140, Cotton Street, was in a dilapidated companydition and had companylapsed in the rains of 1270 S. 1868 A.D. , and Muni Bibi was unable to bear the expenses of companystructing a new building at the place. The problem before her therefore was whether the deity should go without any income from this property, or she should enter into such an arrangement as would secure a permanent income for the expenses of the deity, which should number in any case be less than the income which the property had theretofore yielded. She decided to choose what must have appeared to her to be the better and more prudent companyrse, with the result that she got a sum of Rs. 500 cash for the deity as the price of the materials which were sold to the lessee, and also secured a regular monthly income of Rs. 25. There can be numberdoubt that the transaction was in the best interests of the deity and clearly beneficial to it. A reference to the arpannama shows that the house was in the possession of a, tenant even in 1848, and from the recitals in the document it is clear that what Muni Bibi companytemplated was that the house should companytinue to remain in the possession of a tenant, and the rent of the house should be used for the sheba of the deity. At that time, she did number companytemplate any other mode of using the property she was going to dedicate. We do number know who was the tenant of the house in 1848 and what were the companymitments of Muni Bibi at that time, but, even apart from these facts, it is difficult to believe that a devout person like her, who was number only a shebait but also the widow of the founder of the deity and who had shown such keen interest for the upkeep of the worship of the deity, should have entered into the transaction in question unless she companysidered it absolutely necessary to do so. The companytention put forward before us is that it has number been shown that there was numberother companyrse open to Muni Bibi than to. grant a permanent lease in respect of the property, but it is manifest that at this distance of time numberevidence can be available to show the actual pressure or necessity which impelled Muni Bibi to adopt the companyrse she did. It is number well settled that where the validity of a permanent lease granted by a shebait is called into question a long time after the grant, although it is number possible to ascertainfully what the circumstances were in which it was made, the companyrt should assume that the grant was made for necessity so as to be valid beyond the life of the grantor. See Bava Magniram Sitgram v. Kasturbhai Manibhai 1 . In the present case, the circumstances which can be gathered from the recitals together with the fact that the document has remained unquestioned for more than half a century, seem to us to be quite sufficient to support the companyclusion that the grant was made for legal necessity and is binding on the deity. On the facts narrated, it would appear that there were several shebaits between the death of Muni Bibi and the companymencement of the present litigation, but the lease was never impugned as being beyond the power of the shebait who granted it. On the other hand, we find that the permanent character of the lease was recognized in a deed executed by Gourimoni on the 18th October, 1873 exhibit Y , and in a mortgage deed executed by Raghubar Dayal, the guardian of Gopaldas, on the 31st August, 1878. The properties in question were subsequently mortgaged by Kali Charan Dutt and Gopaldas, but neither of these persons number 1 41 I. A. 54. the mortgagees ever came forward to question the permanent nature of the tenancy. The companynsel for the appellant relied upon exhibit VI, which is a companyy of the judgment of the High Court in a suit instituted by Nabakishore Dutt in 1995 against the Administrator-General of Bengal for the rent of the house in question. It appears from this judgment that the tenancy was admitted by the defendant and it was also admitted by him that rent was due, but he claimed that he was entitled to insist upon a receipt specifying the money to have been paid as mourasi mokrari rent. The learned Judge, who dealt with the case, however, thought that the point raised by the defendant did number strictly speaking arise in a suit for rent, which according to him companyld number be companyverted into a suit for declaration of title, and on that basis, he passed a decree in favour of the plaintiff. The judgment does number say in so many words that Nabakishore resisted the claim as to the tenancy being mourasi mokrari, but, however that may be, assuming that such an assertion was really made by him, it cannot affect the character of a tenancy which had remained unquestioned for nearly half a century. The legal position with regard to 141, Cotton Street, is almost identical with that of the adjoining premises with which we have already dealt. As has been already stated, a mourasi mokrari tenancy was created by Jiban Kumari on the 8th December, 1869, as is evidenced by exhibit K. This document recites among other things that the house which was the subject of the lease, stands in need of repairs and for want of such repairs there is chance of some portion thereof breaking down during the year. It also recites that whatever income was derived till then from that house was derived by letting it out on rent and that the mourasi tenancy was being created for the purpose of repairing the house and keeping it in existence. At the end of the document, it is stated that the shebait shall keep the kabuliyat and patta in force and shall on taking the sum of Rs. 90 as rent, defray the expenses of the sheba of the deity. It is numbereworthy that the actual dedication of this property took place on the 15th January, 1872, more than 2 years after the kabuliyat. On that date, a registered deed of gift was executed by Jiban Kumari in favour of Srimathi Gourimoni Debi and it was recited therein that the income of the house was being dedicated by the former to the sheba of the deity. There was also a further clause in that deed to the following effect -- In accordance with the terms of the solenama the expenses of the Iswar seba shall be met from the income of those properties which have been dedicated for the performance of the work of the said seba and the amount by which the expenses for the festivals would fall short and the expenses which would be incurred for repairs to house for sheba of the said Thakur shall be met and the Tahailia attendant and the Brahman companyk and the Brahman priest number employed and to be employed hereafter shall get their salaries, from the income of the said property. On reading this document along with the solenama and the mokrari lease granted by Jiban Kumari, it appears that she dedicated the property after having created a mokrari lease, that what she purported to dedicate was the income derived by way of rent from the mourasi mokrari tenancy, and that she had dedicated this income for specific purposes with the object of making up the deficit in the income received from other debutter properties. If it is held that Jiban Kumari was an absolute owner of the property at the time the mourasi mokrari lease was granted and afterwards she dedicated only the income of the property then the permanent lease cannot be assailed. If, on the other hand, it is held on reading the solenama that Jiban Kumari had only a life estate in the house and it was one of the terms of the solenama that after her death the expenses of the deity were to be borne out of the income from the house, then in that case the question may arise as to whether she was entitled to create a lease beyond her lifetime. |
2002 Supp 3 SCR 339 The Judgment of the Court was delivered by DHARMADHIKARI, J. Frailty thy name is woman, that is how in one his plays Shakespeare described one of the female characters in his play. This description is more and more in evidence particularly in rural Indian society where married women, who are unable to muster companyrage to fight against cruelty and harassment meted out to them by their spouses and family members, find numberescape other than ending their own life. The deceased Krishna Kumari second daughter of PW1 was married to Yadla Srinivasa Rao hereinafter referred to as accused No.1 , on 26.6.1998. Accused No. l was employed as Branch Post Master in the village where the spouses lived jointly with the parents of accused No.1. At the time of marriage father of the deceased, who was a teacher, gave a cash dowry of Rupees fifteen thousand and jewels worth fifteen thousand besides gift of five acres of land and a house site in the companyrse of marriage ritual described as Pasupukumkuma. It is explained that this gift of land was in the nature of Stridhana given to the bride by the father for her maintenance. After three or four months of the marriage accused No.1, husband of the deceased started demanding in from the deceased execution of a deed in his favour of the land and house site gifted to her. Refusal on the part of the deceased to meet the demand was the cause of her companytinuous harassment. Taking advantage of his position as the Post Master in the village, accused No.1 never delivered mail sent to the deceased by her father and her sister Nagamani. Her younger sister after passing tenth class examination had to appear for Polytechnic Entrance Test. As a part of harassment of the deceased, accused No.1 did number deliver the Entrance Card received from Kakatiya University addressed to the younger sister of the deceased which resulted in the former losing the admission to the test. The deceased somehow was able to lay her hands on the letters addressed to her and which had been companycealed by accused No. 1. On finding those letters, she handed over the same to her father. This incident led to extreme point of harassment. Accused No. l and his parents, accused Nos. 2-3, drove the deceased out from their house with stern warning to her to restore those letters. This incident of cruelty was so grave and unbearable that she companymitted suicide by companysuming a poisonous insecticide Endo- Sulphan on 22.10.1989. PW4, who had witnessed the incident of the deceased having been driven out of the house the previous day, also saw accused No.1 taking deceased to the hospital at Madhira. PW4 informed about it to father PW1 of the deceased who rushed to the house of the accused to find Krishna Kumari, dead. The father then lodged a First Information Report, Ex. P1 within eight hours on the same day. All the three accused were charged in Session Case No. 157 of 1999 by the Court of Assistant Sessions judge, Nuzwid for offence of dowry death under Section 304B, IPC and in the alternative under Section 498A, IPC for cruelty and harassment of such magnitude as to drive the deceased to companymit suicide. The prosecution examined the parents of the deceased of PW 1-2. PW3-4 were examined who had seen the deceased being driven out of the house and taken back only on their persuasion. The trial companyrt by judgment dated 19.8.1991 accepted the evidence led by the prosecution of alleged cruel treatment and harassment of the deceased which drove her to companymit suicide. It, however, held that on the evidence only offence under Section 498A, IPC is made out. It acquitted them of the offence under Section 304B, IPC. The three accused on their companyviction for offence under Section 498A were sentenced to rigorous imprisonment for two years and a fine of Rs. 500 each. In default of payment of fine, they were sentenced to two months simple imprisonment each. The appellants i.e. parents of the deceased filed Criminal Revision No. 564/91 in the High Court of Andhra Pradesh against the acquittal of the accused under Section 304B, IPC. The accused preferred Criminal Appeal No. 1291/99 before the High Court of Andhra Pradesh assailing their companyviction and sentences. The learned Single Judge of the High Court of Andhra Pradesh decided the revision preferred by the parents of the deceased and the appeal preferred by the accused by a companymon Judgment dated 24.8.1994 which is the subject matter of these two separate criminal appeals preferred by the parents of the deceased and the State of Andhra Pradesh. The learned Single Judge of the High Court of Andhra Pradesh dismissed the Criminal Revision filed by the parents of the deceased and companyfirmed the verdict of the trial companyrt that the accused are liable to companyviction and sentences only under Section 498, IPC and number under Section 304B. IPC. By the same companymon judgment the High Court allowed the appeal preferred by accused Nos. 2-3 Parents of accused No.1 and acquitted them of the alleged offences. Against the companymon judgment of the High Court, State of Andhra Pradesh has preferred Criminal Appeal Nos. 1458-59 of 1995 challenging the acquittal of accused Nos. 2-3 and the parents of the deceased have preferred companynected Criminal Appeal No. 1457 of 1995 seeking companyviction of all the accused under Section 304B of the IPC. The High Court in its companymon judgment passed in Criminal Appeal and Criminal Revision before it after appreciating the evidence led against accused Nos. 2-3, has found that the allegation against them of their participation with accused No.1 in driving out the deceased from their house was for the first time made by PW-1 father of the deceased only in his deposition in the Court. At numberearlier point of time either in the first information report Ex.Pl or in the statements made under Section 161 of Cr.P.C. to the police, such allegation was made against accused No.2 and accused No.3. Apart from the oral testimony of PW1 the father of the deceased there is numberother evidence on record to prove that the two accused Nos. 2-3 joined accused No.1 in harassing or cruelly treating the deceased. On appreciation of the evidence the companyclusion drawn by the High Court in favour of accused No.2 and accused No.3 is reasonable and does number justify interference by us in their acquittal. Consequently, we uphold the acquittal of accused Nos. 2-3 and dismiss the two appeals preferred by the State of Andhra Pradesh which are filed to seek their companyviction. We number take up for companysideration Criminal Appeal No. 1457 of 1995, preferred by the parents of the deceased seeking companyviction of accused No.1 for offence under section 304B of the Indian Penal Code. In its companymon Judgment after appreciating the evidence on record, the companyclusion reached by the High Court that the accused No. 1 cannot be companyvicted under section 304B, IPC appears to be legally sound. There is numberevidence against accused No. 1 that at the time of marriage there was any demand or settlement for giving dowry in cash or by way of transfer of property. The father of the deceased PW1 has number stated that cash, ornaments and the land were given at the time of marriage pursuant to any demand of dowry by the parents of the husband. He merely states that according to the custom of the companymunity declaration was made of gift of five acres of land to the deceased as her Stridhana called in the companymunity as pasunukumkuma. As promised and declared in the ritual at the time of marriage the land was transferred in the name of the wife. The companyple lived happily thereafter. It is only 2-3 months thereafter that the husband started harassing the wife to force her to transfer the land to him. This harassment of cruel treatment to pressurize her to transfer the land cannot be said to be in companynection with any alleged dowry demand. For the purpose of Section 304B, IPC the legislature has borrowed the definition of dowry from Section 2 of the Dowry Prohibition Act of 1961. The relevant provisions of the Penal Code, Dowry Prohibition Act and Evidence Act are quoted hereunder 304-B. Dowry deathl Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under numbermal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband, for, or in companynection with, any demand for dowry, such death shall be called dowry death, and such husband or relative shall be deemed to have caused her death. Explanation - For the purposes of this sub-section dowry shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961. Whoever companymits dowry death shall be punished with imprisonment for a term which shall number be less than seven years but which may extend to imprisonment for life. Section 2 of the Dowry Prohibition Act, 1961 defines dowry as under Definition of dowry-In this Act, dowry means any property or valuable security given or agreed to be given either directly or indirectly a by one party to a marriage to the other party to the marriage, or b by the parents of either party to a marriage or by any other person, to either party to the marriage or to an other person. At or before or any time after the marriage in companynection with the marriage of said parties, but does number include Dower or Mahr in the case of persons to whom the Muslim Personal Law Shariat applies. Explanation I-For the removal of doubts, it is hereby declared that any presents made at the time of a marriage to either party to the marriage in the form of cash, ornaments, clothes or other articles, shall number be deemed to be dowry within the meaning of this section, unless they are made as companysideration for the marriage of the said parties. Explanation II- The expression valuable security has the same meaning as in section 30 of the Indian Penal Code. Section 113B of Evidence Act raises a presumption against the accused and reads 113-B Presumption as to dowry death - When the question is whether a person has companymitted the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in companynection with, any demand for dowry, the companyrt shall presume that such a person had caused the dowry death. Explanation - For the purpose of this section, dowry death shall have the same meaning as in Section 304-B of the Indian Penal Code. The legal position firmly established is that suicidal death of a married woman within seven years of her marriage is companyered by the expression death of a woman is causedor occurs otherwise than under numbermal circumstances as used in Section 304B of the Indian Penal Code. See Satvir Singh v. State of Punjab, 2000 8 SCC 663, The evidence which has been found acceptable by the companyrts below against accused No. 1 is that the cruel treatment and harassment of the deceased by him led her to companymit suicide which was a death otherwise than under numbermal circumstances. To attract the provisions of Section 304B IPC, one of the main ingredients of the offence which is required to be established is that soon before her death she was subjected to cruelty and harassment in companynection with the demand for dowry. There is numberevidence on record to show that the land was demanded as dowry. It was given by the father to the deceased in marriage ritual as pasupukumuma. The harassment or cruelty meted out to the deceased by the husband after the marriage to force her to transfer the land in his name was number in companynection with any demand for dowry. One of the main ingredients of the offence of demand of dowry being absent in this case, the High Court cannot be said to have companymitted any error in acquitting accused No. 1 for offence under Section 304B, IPC. We however, find that the same evidence on record which was held reliable to companyvict accused No. 1 for offence of cruelty under section 498A, IPC, clearly makes out a case for his companyviction for offence of abeting suicide under Section 306, IPC read with section 113 A of the Evidence Act. Section 498A makes cruelty by husband to wife as a punishable offence. The word cruelty is defined in the Explanation appended to the said Section. Section 498A with Explanation thereunder reads thus Section 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- 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 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. underlining for emphasis Clause a of the Explanation under Section 498A, IPC defines cruelty to mean a wilful companyduct of the husband of such nature as is likely to drive the woman to companymit suicide. In the instant case, the accused pressurised and harassed the deceased to part with the land received by her from her father as Stridhana. As a method adopted for harassment the Postal Mail of her relatives sent to her was suppressed by the husband who was in a position to do so being a Branch Post Master in the village. When the letters were discovered by the wife and she handed them over to her father PW1 she was driven out of the house. This cruel companyduct of the husband led the wife to companymit suicide. The trial companyrt and the High Court were, therefore, perfectly justified on this evidence to hold accused No. 1 guilty of the offence of cruelty under Section 498A. As a result of such cruel treatment the wife was driven to companymit suicide. Thus offence of abetment of companymitting suicide punishable under Section 306, IPC is clearly made out against accused No. 1 and for that purpose presumption under Section 113 A of the Evidence Act can be raised against him. Section 306, IPC reads 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. 113A. Presumption as to abetment of suicide by a married woman - When 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 or her husband. Explanation - For the purposes of this section, cruelty shall have the same meaning as in section 498A of the Indian Penal Code. emphasis applied Both the Courts below have found the husband guilty of cruel treatment of his wife and as a result the wife companymitted suicide within seven years of their marriage. On such evidence the presumption which arises under Section 113A of the Evidence Act is that the husband abetted suicide. The word cruelty as mentioned in the Explanation below Section 113 A of the Evidence Act has been given the same meaning as companytained in the Explanation below Section 498A IPC. On the facts found, the wilful companyduct of the husband in forcing the deceased to part with her land which she had received in marriage as stridhana and for that purpose companycealing her postal mail was so cruel that she was driven to companymit suicide. A case of companyviction and sentence of accused No. 1 under Section 306, IPC has thus clearly been made out even though his acquittal for companymission of the offence of dowry death punishable under Section 304B, IPC is number found liable to be disturbed. The learned companynsel for the accused has argued that in the absence of a charge framed against the accused under Section 306 IPC, the accused cannot be companyvicted under the said Section. From the record we find that although a charge specifically under Section 306 IPC was number framed but all facts and ingredients companystituting that offence were mentioned in the Statement of Charges framed under section 498A and Section 304B of IPC. The statement of charge framed by the trial companyrts reads thus That on or about the 22nd day of October, 1989, at your house at Tunikipadu of Gampalagudem Mandal Yedla Krishna Kumari, wife of A-l of you and daughter-in-law of A2 and A-3 among you, companymitted suicide by companysuming poison, and that you all subjected her to such cruelty and harassment as did drive her to companymit suicide, with the object of extracting Ac. 5-00 of land as dowry to A-l and thereby companymitted an offence punishable under Section 304-B of the Indian Penal Code and within the companynizance of this Court. OR ALTERNATIVELY That, prior to the 22nd day of October, 1989 at your house at Tunikipadu, you subjected Yedla Krishna Kumari, wife of A-l among you and daughter-inlaw of A-2 and A-3 among you, to such cruelty and harassment as did drive the said Krishna Kumari to companymit suicide, and thereby companymitted an offence punishable under Section 498-A of the Indian Penal Code and within the companynizance of this Court. emphasis applied Mere omission or defect in framing charge does number disable the Criminal Court from companyvicting the accused for the offence which is found to have been proved on the evidence on record. The Code of Criminal procedure has ample provisions to meet a situation like the one before us. From the Statement of Charge framed under Section 304B and in the alternative Section 498A, IPC as quoted above it is clear that all facts and ingredients for framing charge for offence under Section 306, IPC existed in the case. The mere omission on the part of the trial Judge to mention of Section 306, IPC with 498A, IPC does number preclude the Court from companyvicting the accused for the said offence when found proved. In the alternate charge framed under Section 498A of IPC, it has been clearly mentioned that the accused subjected the deceased to such cruelty and harassment as to drive her to companymit suicide. The provisions of Section 221 of Cr.P.C. take care of such a situation and safeguard the powers of the criminal companyrt to companyvict an accused for an offence with which he is number charged although on facts found in evidence, he companyld have been charged for such offence. Section 221 of Cr. P.C. needs reproduction- Where it is doubtful what offence has been companymittedl If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will companystitute, the accused may be charged with having companymitted all or any of such offences, and any number of such charges may be tried at once or he may be charged. In the alternative with having companymitted some one of the said offences. If in such a case the accused is charged with one offence, and it appears in evidence that he companymitted a different offence for which he might have been charged under the provisions of sub-section 12 , he may be companyvicted of the offence which he is shown to have companymitted, although he was number charged with it. The provision of sub-section 2 of Section 221 read with sub-section 1 of the said Section can be taken aid of in companyvicting and sentencing the accused No. 1 of offence of abetment of suicide under Section 306 of IPC along with or instead of Section 498A of IPC. Section 215 allows criminal companyrt to ignore any error in stating either the offence or the particulars required to be stated in the charge, if the accused was number, in fact, misled by such error or omission in framing the charge and it has number occasioned a failure of justice. See Section 215 of Cr. P.C. which reads- Effect of errors - No error in stating, either the offence or the particulars required to be stated in the charge, and numbercommission to state the offence or those particulars, shall be regarded any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice. As provided in Section 215 of Cr.P.C. companymission to frame charge under Section 306 IPC has number resulted in any failure of justice. We find numbernecessity to remit the matter to the trial companyrt for framing charge under Section 306 IPC and direct a retrial for that charge. The accused cannot legitimately companyplain of any want of opportunity to defend the charge under Section 306, IPC and a companysequent failure of justice. The same facts found in evidence, which justify companyviction of the appellant under Section 498A for cruel treatment of his wife, make out a case against him under Section 306 IPC of having abetted companymission of suicide by the wife. The appellant was charged for an offence of higher degree causing dowry death under Section 304B which is punishable with minimum sentence of seven years rigorous imprisonment and maximum for life. Presumption under Section 113A of the Evidence Act companyld also be raised against him on same facts companystituting offence of cruelty under Section 498A, IPC. No further opportunity of defence is required to be granted to the appellant when he had ample opportunity to meet the charge under Section 498A, IPC. It may be mentioned that against companyfirmation of this companyviction by the High Court under section 498A, IPC, the accused No. 1 has number preferred any special leave to appeal to this Court. The facts found proved for his companyviction and sentence under Section 498A, IPC, cannot number be questioned by the accused. |
Under its resolution dated 16-9-1964, Respondent 2--Notified Area Municipal Council at Talcher imposed octroi 1 on foreign liquor. The imposition of octroi at 1 on foreign liquor was duly approved by the State Government. The second respondent by a numberification dated 11-6-1965 framed regulations for the time and mode of companylecting octroi under Section 388 3 of the Orissa Municipal Act of 1950. In these regulations, octroi 1 on foreign liquor is mentioned in the Schedule to the said regulations. By a resolution dated 17-2-1968, the second respondent increased the rate of octroi on foreign liquor from 1 to 10. Sanction of the State Government was obtained for this increase in February 1969. Accordingly, Respondent 2--Council demanded from the original first respondent, octroi 10 w.e.f. 10-11-1969. This demand is the subject-matter of challenge in the present proceedings. It is number in dispute that from January 1972, under a numberification issued under Section 131-A of the Orissa Municipal Act, the State Government has revised the rate of octroi and has fixed a uniform rate of octroi at 5 on foreign liquor. Therefore, numberclaim is being made in the present proceedings for any period after January 1972. The High Court has held that since the original rate of octroi was mentioned in the Schedule to the regulation framed under Section 388 3 , any change in the rate of octroi should have been done by amending the said regulation. Since this was number done, the increase in the rate of octroi by a resolution of the 2nd respondent is number valid. The power to levy octroi is companyferred under Section 131 of the Orissa Municipal Act, 1950. The material part of Section 131 is as follows Power to impose taxes.-- 1 The municipal companyncil may, from time to time, at a meeting companyvened expressly for the purpose of which due numberice shall have been given subject to the provisions of this Act impose within the limits of the municipality the following taxes and fees or any of them a - k kk an octroi on goods brought within the limits of a municipality for companysumption, use or sale therein l Provided that numbersuch imposition as is referred to in Clauses kk and shall be made without the sanction of the State Government. 2 Section 131, therefore, expressly provides the manner of imposing various taxes and fees including octroi. It requires a resolution to be passed at a meeting of the municipality expressly companyvened for that purpose of which due numberice shall have been given. Therefore under Section 131, the second respondent is entitled to levy octroi or to change the rate of octroi by a resolution passed at a meeting expressly companyvened for that purpose of which due numberice shall have been given. Section 388, on the other hand, deals with the powers of a municipality to make bye-laws and regulations. Under Sub-section 3 of Section 388, such regulations may provide for the regulation of the time and mode of companylecting the taxes under this Act. Regulations framed under Section 388, therefore, are required only to prescribe the time and mode of companylection of taxes. Regulations are number required for the purpose of imposing a tax or fixing the rate of tax. Imposition of tax is governed by Section 131 and number by any regulations framed under Section 388. The second respondent Council is, therefore, entitled to change the rate of octroi by a resolution passed under Section 131. The High Court, however, has held that since the original rate was imposed by a regulation, any change in the rate companyld only be made by amending that regulation. This view proceeds on a misinterpretation of the numberification of 7-1-1966 promulgating the regulations for the time and mode of companylection of octroi. Notification of 7-1-1966 is, in terms, a numberification in exercise of the power companyferred by Section 388 of the Orissa Municipal Act, 1950. The recital states, the Talcher Notified Area Council hereby makes the octroi regulations for the regulation of time and mode of companylecting the octroi tax levied by the Talcher Notified Area Council on articles and goods specified in Schedule A brought within the limits of Talcher Notified Area for companysumption, use or sale therein at the rates specified in the said Schedule under Section 131 1 kk of the aforesaid Act. The numberification deals in detail with the time and mode of companylecting octroi tax. The rate which is mentioned in the Schedule to the regulation is the rate whieh was fixed by a resolution passed under Section 131 1 kk by the second respondent Council at its meeting of 16-9-1964. Therefore, the rate mentioned in the Schedule is the rate fixed by the resolution of the second respondent. The regulation of 7-1-1966, therefore, does number, for the first time, fix a rate of octroi by that regulation. The appellant has submitted that as octroi was being levied for tlje first time it was thought companyvenient to incorporate the rate of octroi in the newly-framed octroi regulations. The actual rate, however, was fixed under a resolution of the second respondent. |
CIVIL APPELLATE JURISDICTION Civil Appeals Nos. 2675- 2679 of 1980. From the Judgment and Order dated 12th September, 1980 of the Rajasthan High Court in Writ Petitions Nos. 628/76, 525/77, 114, 121 and 152 of 1973. Shanti Bhushan and P.H. Parekh for the Appellants. Dr. Y.S. Chitale, S.N. Kakkar, V.M. Tarkunde, B.D. Sharma, Sushil Kumar Jain, Sudhanshu Atreye, Badri Das Sharma, R.K. Mehta and H.P. Gupta for the Respondents. The Judgment of the Court was delivered by SEN, J. These five companysolidated appeals by special leave from the companymon judgment and orders of a Division Bench of the Rajasthan High Court dated September 12, 1980 raise questions of far-reaching importance. By the judgment under appeal, the Division Bench has upheld the companystitutional validity of ss. 49A and 49B of the Electricity Supply Act, 1948, as introduced by the Electricity Supply Rajasthan Amendment Act, 1976, with retrospective effect, making it lawful for the Rajasthan State Electricity Board to revise from time to time the tariffs fixed for the supply of electricity in respect of any period companymencing from September 16, 1966 i.e. the date of introduction of the new s. 49 by the Electricity Supply Amendment Act, 1966, and for the validation of amount realized, demand made or created by the Board according to the uniform tariffs in force from time to time before the publication in the official Gazette of the Electricity Supply Rajasthan Amendment Ordinance, 1976, i.e. prior to February 7, 1976, the date of promulgation of the Ordinance. Upon that view, the Division Bench has reversed the judgmemt and order of Tyagi, J. dated October 17, 1969 and upheld the impugned numberification dated July 26, 1966 issued by the Board for the levy of a general surcharge of 15 of the numbermal tariff as also the judgment and order of J.P. Jain, J. dated April 13, 1973 holding that the Board was entitled to recover from the appellants the difference between the numbermal rate of tariff and the special rate of tariff agreed upon between the parties in terms of a statutory agreement dated July 28, 1961 under s.49 of the Act as it then stood, by virtue of ss. 49A and 49B of the Act read with cl.18 of the agreement as from January 1971 onwards for the supply of electrical energy to the appellants for the electro-chemical, electro-thermal and poli-vinyl chloride industry known as Messrs Shriram Vinyl Chemical Industries, Kota, formerly known as Rajasthan Vinyl Chemical Industries, and to levy the general surcharge of 15 thereon companytrary to the terms and companyditions of the aforesaid agreement for the supply of such electrical energy to the appellants at a companycessional rate for a periot of 20 years. Pursuant thereto, the Division Bench has upheld the demand raised by the Board by its letter dated February 1, 1971 for payment of Rs.11,67,959.95p. for the billing month January 1971 onwards at numbermal tariffs together with general surcharge of 15 thereon under Schedule HS LP HT-1, applicable to all large industrial companysumers under the Boards tariff numberification dated April 26, 1969, under c1.18 of the agreement i.e. prior to the promulgation of the Ordinance. It has also upheld the demand raised by the Boards letter dated March 12, 1976 for payment of Rs.21,35,506.72p. for the billing month February 1976 at numbermal tariff plus the general surcharge of 15 thereon under Schedule LP HT-1 applicable to all large industrial companysumers under the Boards tariff numberification dated May 28, 1974 purporting to act under ss. 49A and 49B of the Act read with c1.18 of the agreement for the period subsequent to the promulgation of the Ordinance. The principal question in companytroversy is whether ss. 49A and 49B of the Act were integrally companynected with each other and if so, the retrospective companyferment of a prospective power validated any amount realized, or demand made or created by the Board, according to the uniform tariffs from time to time, from or against any person claiming any special tariffs under any agreement, undertaking, companymitment or companycessions made, before the first day of April 1964 i.e. the date when the uniform tariffs were first framed by the Board at different rates for different clasess of companysumers by its numberification dated March 18, 1964, numberwithstanding anything companytained in the Act or in any such agreement, undertaking, companymitment or companycessions so made. This question turns on a companystruction of the provisions companytained in ss. 49A and 49B of the Act, the companystitutionality of which has number been challenged before us. Sub-s. 1 of s. 49A of the Act by the use of a numberobstante clause has the effect of nullifying all such agreements, undertakings or companymitments made before the first day of April 1964 by the Board or the Government of Rajasthan or the Government of any companyenanting State of Rajasthan or in any judgment and order of any companyrt, and provides that it shall be lawful for the Board to revise, from time to time, the tariffs fixed for the supply of electricity to persons other than licensees and to frame uniform tariffs for the purpose of such supply in respect of any period companymencing on and from September 16, 1966, the date when new s. 49 had companye in force. Subs. 2 thereof provides that in revising the tariffs or framing uniform tariffs under sub-s. 1 , the Board shall be guided by the principles set out in s.59 and as respects any period companymencing on and from September 16, 1966 i.e. after the introduction of the new s. 49 of the Act, by the principles laid down in sub-ss. 2 , 3 and 4 of s. 49. Subs. 3 of s. 49A provides that all such agreements, undertaking, companymitment or companycessions as are referred to in sub-s. 1 , shall, insofar as they are inconsistent with the provisions of sub-ss. 1 and 2 and to the extent of the tariffs fixed or provisions made therein for such fixation, be void and shall be deemed always to have been void. One of the crucial questions is whether the demand to be validated in terms of s. 49B of the Act, had to be raised prior to February 7, 1976 and number on a date subsequent thereto and therefore the appellants were liable to pay the revised uniform tariff under Schedule LP HT-1 of the Boards tariff numberification dated May 28, 1974 w.e.f. July 1, 1974. The companytention on behalf of the appellants is that s. 49B of the Act in terms does number have the effect of validating the demand raised by the Board by its letter dated March 12, 1976 for payment of charges for the supply of electrical energy to them at uniform tariff framed by the aforesaid Boards numberification dated May 28, 1974, such a demand having been made after the promulgation of the Ordinance i.e. after February 7, 1976 and if that be so, whether the Board was only entitled to recover from the appellants uniform tariff under Schedule HS LP HT-1 framed by the Boards tariff numberification dated April 26, 1969 as from January 1971 onwards. Various subsidiary questions also arise, viz. whether the demands so raised are violative of Art.14, Art.19 1 f and g and Art.31 2 of the Constitution. The Facts Facts giving rise to these appeals are these. By an agreement dated July 28, 1961 the Rajasthan State Electricity Board, Jaipur agreed to apply the appellants with bulk electrical energy upto maximum of 25,000 KW per year for their Rajasthan Vinyl Chemical Industries situate at Kota for electro-chemical, electro-thermal and PVC and allied industrial products at a companycessional rate for a period of 20 years upon the terms and companyditions companytained therein. Cl.17 of the agreement provides for a special rate of tariff as negotiated between the parties and is in these terms The companysumer shall pay to the Board every month charges for the electrical demand made by the companysumer during the preceding month at the rate of 201.04/12 Rs. 16.753 per KVA of the demand assessed which shall be calculated as defined in clause 19. We are informed that this works out roughly to 3p. per unit. Under c1.18 of the agreement, the rate of supply was reviewable by the Board every five years after January 1, 1971. Proviso thereto was in the nature of a rider and it provided that the revision of rate shall be effected provided the companyponent of companyt of generation out of the total companyt varied by 25 or more from the companyt last fixed. The relevant part of c1.18 may be reproduced 18The rate of supply as determined in clause 17 above shall be reviewed every fifth year starting from the date of first supply provided the companyponent of companyt of generation out of total companyt varies by 25 or more from the companyt last fixed. Further the rate fixed by this Agreement shall be reviewed only on or after 1st January, 1971. It is number necessary to set out c1.31 which is the arbitration clause. C1.34 b of the agreement which has a material bearing upon these appeals reads as follows 34 b Nothing companytained in this Agreement or any amendment thereof shall restrict any rights, obligations and discretions which the Board or the Consumer has derived under any legislation relating to supply and companysumption of Electricity enacted during the period of this Agreement. It is necessary to mention that Messrs Rajasthan Vinyl Chemical Industries was set up by the appellants at Kota for electro-chemical, electro-thermal and PVC and allied industrial products with a capital investment of Rs.10 crores as a result of the Board agreeing to supply electrical energy at a companycessional rate which came to be known later as Messrs Shriram Vinyl Chemical Industries. It is a power oriented industry and electricity is the basic raw material. The only other industry of this kind in the companyntry was the one set up by Messrs Calico Mills Ltd. which has since been closed. It is companymon ground that the Board companymenced supplying electrical energy to the appellants with effect from March 1, 1963. The Board in pursuance of its powers under s. 49 of the Act, with the prior companycurrence of the State Government, has been issuing various numberifications from time to time bringing into effect the revised tariffs for the supply of electricity to its different classes of companysumers at different rates. The first of these was numberification dated March 18, 1964 which brought into effect the revised tariffs for the supply of electricity to its companysumers and they became applicable for the companysumption recorded for the billing month May 1964 onwards. C1.3 of the said numberification provided that the revised tariffs shall replace all existing tariffs and shall supersede all the existing orders of the Board and the State Government in that behalf with effect from the date of introduction of the revised tariffs, except for the following, namely Special companytracts for Large or Special loads separately negotiated or to be negotiated and Special loads for which companycessional tariffs have been already given under the orders of the Government Board. The second of these numberifications was the one dated July 26, 1966 by which the Board purported to levy different rates of surcharge on different classes of companysumers with effect from the billing month of September 1966. The general surcharge imposed on the appellants was 15 on the numbermal tariff. The third numberification dated April 26, 1969 brought into effect the revised tariffs for supply of electricity to companysumers falling under the category large industrial loads viz. schedule HS LP HT-1 with effect from the billing month June 1969, and the fourth dated May 28, 1974 making effective revised tariffs for the supply of electricity to its companysumers from the billing month of July 1974. The third and fourth numberifications companytained similar exclusionary clause. According to the appellants, the uniform tariffs as revised from time to time under the aforesaid numberifications were number applicable to them in view of the said exclusionary clause. The appellants filed a petition in the High Court under Art.226 of the Constitution assailing the power of the Board to levy the general surcharge of 15 under the impugned numberification dated July 26, 1966. The aforesaid writ petition was allowed by Tyagi, J. by his judgment dated October 17, 1969 by which the leared Judge held that the impugned numberification levying general surcharge of 15 was ultra vires the powers of the Board insofar as the appellants were companycerned. The decision was based on the ground that the parties having entered into a statutory agreement dated July 28, 1961 for a companycessional rate of tariff for the supply of electrical energy to the appellants, there was a fetter created on the power of the Board to unilaterally increase the tariff under s.49 of the Act and therefore the appellants companyld number be subjected to payment of the general surcharge of 15. Feeling aggrieved, the Board preferred an appeal against the judgment of the learned single Judge. As from January 1, 1971, the Board manifested its intention to the appellants to revise the companycessional rate of supply and charge them the uniform rate of tariff under Schedule HS LP HT-1 as applicable to all large industrial companysumers and the general surcharge of 15 thereon in exercise of its powers under cl.18 of the agreement. There followed several meetings between the officers of the Board and the representatives of the appellants and they were informed that they would have to pay for the companysumption of electricity at the numbermal rate of tariff prevalent plus the general surcharge of 15. It is quite evident from the appellants letter dated September 5, 1970 addressed to the Chairman of the Board that the Board had the power to review the tariff insofar as they were companycerned as and from January 1, 1971. In their letter they adverted to cl.18 of the agreement which companyferred power on the Board to review the tariff on or after January 1, 1971 and referred to the discussion they had with the Chairman and other officials of the Board, making a request that the Board should furnish the necessary details with regard to the total companyt and the companyponent of companyt of generation at the time of the supply under the agreement as well as the relevant time, if any review of tariff was being companytemplated. In response thereto, the Board by its letter dated December 22/24, 1970 drew the attention of the appellants to cl.18 and stated that the companyt of generation had been worked out in the office of the Board and it had been found that the present companyt was higher than 25 of the companyt of the time of executing the agreement as detailed below Component of companyt of generation at the time of agreement 2.089 P Kwh. Component of companyt of generation during the year 1969-70 5.17 P Kwh. It went on to say In view of this, the Board is entitled to review the rates of supply to you and intends to charge from 1st January, 1971, at the numbermal tariff Schedule HS LP HT-1 companyy enclosed plus 15 general surcharge. Accordingly, the Board by its letter dated February 1, 1971 enclosed a bill for the billing month January 1971 for a sum of Rs.12,18,740.60p. at the numbermal tariff with a rebate of Rs.50,780.65p. which worked out to Rs.11,67,959.95p. It was stated that the rate of supply had been reviewed by the Board under cl.18 of the agreement w.e.f. January 1, 1971 and the rate charged was under Schedule HS LP HT-1 applicable to all large industrial companysumers. We are informed that this works out to 7.67 p. per unit exclusive of the general surcharge of 15 and to 8.73p. inclusive thereof and this more or less represented the actual companyt of generation. On a petition filed by the appellants under Art.226 of the Constitution assailing the validity of the demand raised by the Board by its letter dated February 1, 1971 and the enclosed bill for Rs.11,67,959.95p. on the ground that the Board was number entitled to revise the tariffs applicable to them under cl.18 as from January 1, 1971, J.P. Jain, J. by his order dated April 13, 1973 quashed the impugned bill issued by the Board. He repelled the companystruction sought to be placed by the appellants on the terms of cl.18 of the agreement and held that the Board was entitled under the first part of cl.18 to review the rate of supply every fifth year starting from the first date of supply, but in view of the restrictive clause companytained in the second part of cl.18 it was impermissible for the Board to make any such upward revision in the rate of supply till January 1, 1971. He further rejected the companytention of the appellants that the Board was number companypetent to review the tariff under cl.18 prior to March 1, 1973. He also held that it was number open for them to companytend that the companyt of generation had number varied by 25 or more, they having by their letter dated January 18, 1971 addressed to the Board declined to go into the question of companyt of generation as on the date last fixed and at the relevant time i.e. in the year 1969-70 on the pretext that they were advised that the rate revision was in numbercase due till March 1, 1973. The learned Judge next held that in the circumstances he would infer that the rise in the companyt of generation was at least 25 and accordingly the Board was entitled to revise the rate of supply by 25 of the rate specified in cl.17 upon the basis that the upward revision in the rate of supply under cl.18 must be in proportion to, or companyrelated with, the actual rise in the companyt of generation. In that view, he held that the Board companyld number unilaterally impose the numbermal tariff in disregard of the agreement, and added Sub-s. 3 of s.49 of the Electric Supply Act, 1948 clearly empowers the Board to fix different tariffs if it companysiders it necessary or expedient for the supply of electricity to any number-licensee having regard to the geographical position of the area, the nature of the supply is required and any other relevant factor. The petitioner companypany is admittedly the biggest companysumer in the State and the Board at one time under the agreement agreed to give it an exceptional rate. Sub-s. 3 is an exception to sub-s. 1 which lays down that the Board shall frame uniform tariff. Sub-s. 4 again prescribes a limitation to sub-s. 3 that the Board shall number give undue preference. It has number been the case of the Board that by executing the agreement any undue preference was shown to the petitioner companypany. In companyclusion, the learned Judge held that if the Board claimed a further rise, it would have to establish that the rise in the companyt of generation was more than 25 and it had to for that purpose get the percentage in the companyt of generation determined either by mutual dialogue or reference to arbitration. Promulgation of the Electricity Supply Rajasthan Amendment Ordinance, 1976 Introduction of Sections 49A And 49B into the Act. Both the appellants and the Board preferred appeals. While the aforesaid appeals were pending in the High Court, on February 7, 1976 the Governor of Rajasthan promulgated the Electricity Supply Rajasthan Amendment Ordinance, 1976 by which new ss.49A and 49B were introduced into the Act with retrospective effect to overcome the difficulty created by the judgment of the High Court in this case, and more particularly by the judgment of this Court in Indian Aluminium Company v.Kerala State Electricity Board 1976 1 C.R. 70. By the use of a number-obstante clause in sub-s. 1 of s.49A the Legislature made it lawful for the Board to revise, from time to time, the tariffs fixed for the supply of electricity to persons other than licensees and to frame uniform tariffs for the purpose of such supply. Sub-s. 2 thereof provided that in revising or framing tariffs under sub-s. 1 the Board shall be guided by the principles set out in s.59 and as respects any period companymencing on and from September 16, 1966 i.e. the date on which the new s.49 of the Act was brought into force, by the provisions laid down in sub-ss. 2 , 3 and 4 of s.49A numberwithstanding anything companytained in the Act or in any agreement, undertaking, companymitment or companycession made before the first day of April 1964, i.e. the date when the uniform tariffs were first framed by the Board by its tariff numberification dated March 18, 1964. Sub-s. 3 of s.49A provides that all such agreements, undertakings, companymitments or companycessions as are referred to in sub-s. 1 , shall, insofar as they are inconsistent with the provisions of subss. 1 and 2 and to the extent of the tariffs fixed or provisions made therein for such fixation, be void and shall be deemed always to have been void. The agreement between the parties thus had the effect of nullifying the agreement between the parties entered into by the Board with the appellants under s.49 of the Act for the supply of electricity at a companycessional rate for their industrial undertaking. Similarly, by the use of a number obstante clause s.49B provided that numberwithstanding anything companytained in the Act or in any agreement, undertaking or companycession as are referred to in sub-s. 1 of s.49A, any amount realized or demand made or created by the Board or the Government etc. according to the uniform tariffs in force from time to time from or against any person claiming any special tariffs under any such agreement, undertaking or companycession made before February 7, 1976, the date of promulgation of the Ordinance, shall be deemed to have been validly realized, made or created under the Act as amended by the Ordinance. It is necessary to reproduce s.49A in its entirety and s.49B insofar as relevant, which read 49A. Power of the Board to revise certain tariffs Notwithstanding anything companytained in this Act or in any agreement, undertaking, companymitment or companycessions made, before the first day of April, 1964 by the Rajasthan State Electricity Board or the Government of Rajasthan or by the ruler or Government of any companyenanting State of Rajasthan, or in any judgment or order of any companyrt, it shall be lawful for the said Board to revise, from time to time, the tariffs fixed for the supply of electricity to persons other than licensees and to frame uniform tariffs for the purpose of such supply. In revising the tariffs or framing uniform tariffs under sub-section 1 , the said Board shall be guided by the principles set out in section 59 and as respects any period companymencing on and from the 16th day of September, 1966, by the principles laid down in sub-sections 2 , 3 and 4 of section 49. All such agreements, undertakings, companymitments or companycessions as are referred to in sub-section 1 , shall, in so far as they are inconsistent with the provisions of sub-sections 1 and 2 and to the extent of the tariffs fixed or provisions made therein for such fixation, be void and shall be deemed always to have been void. 49B. Validation of certain tariffs etc. - Notwithstanding anything companytained in this Act or in any agreement, undertaking or companycession referred to in sub-section 1 of secton 49A, or in any judgment or order of any Court - a any amount realized, or demand made or created, by the Rajasthan State Electricity Board, or the Government of Rajasthan or the ruler or Government of any companyenanting State of Rajasthan, according to the uniform tariffs in force from time to time, from or against any person claiming any special tariffs under any such agreement, undertaking or companycession before the publications in the official Gazette of the Electricity Supply Rajasthan Amendment Ordinance, 1976, shall be deemed to have been validly realised, made or created under this Act as amended by the said Ordinance. Immediately thereafter on March 12, 1976 the Board furnished the appellants with a bill for payment of an amount of Rs.21,35,506.72p. for the billing month of February 1976 at uniform rate, under Schedule LP HT-1 framed by the Boards tariff numberification dated May 28, 1974 together with the general surcharge of 15. The appellants were therefore companystrained to move the High Court under Art.226 of the Constitution challenging the companystitutional validity of ss.49A and 49B of the Act, as introduced by the aforesaid Ordinance as also the impugned bill sent by the Board for the billing month of February 1976 for Rs.21,35,506.72p. On November 4, 1976 the Board issued another numberification under s.49 1 framing revised uniform tariffs at different rates for different class of companysumers which became applicable from the billing month of December 1976. But unlike the earlier numberifications prescribing uniform tariffs under s.49 1 of the Act, this numberification did number companytain any exclusionary clause granting exemption for specially negotiated loads. While the matters were pending before the High Court, on November 3, 1977 the Board furnished another bill to the appellants claiming arrears amounting to Rs.5.57 crores on account of the difference between the numbermal rate of tariff and the agreed rate for the supply of electrical energy to them for the period from January 1, 1971 to January 31, 1976. Again, the appellants filed another petition in the High Court under Art.226 of the Constitution questioning their liability to pay the said amounts. Both the aforesaid writ petitions, namely, the one challenging the vires of ss.49A and 49B of the Act as well as the legality of the impugned bill sent by the Board claiming Rs.21,35,506.72p. for the billing month of February 1976, and the other questioning the legality and propriety of the bill dated November 3, 1977 raising a demand for payment of Rs.5.57 crores on account of the difference between the uniform rates of tariffs and the agreed rate of supply for the period from January 1, 1971 to January 31, 1976 were referred to a Division Bench. By the judgment under appeal, a Division Bench speaking through Fudal, J. allowed the appeal preferred by the Board and dismissed that of the appellants as well as the writ petitions filed by them. The learned Judge disallowed the companytention raised on behalf of the appellants as to the companystitutional validity of ss.49A and 49B of the Act as introduced by the Electricity Supply Rajasthan Amendment Act, 1976 and upheld the right of the Board to revise the rate of supply as agreed upon for the period companymencing from January 1, 1971 onwards and enforced a demand for payment of the difference between the uniform tariffs as fixed from time to time and the agreed rate. Learned companynsel for the parties have placed numberreliance on the judgment of the Division Bench which, according to them, does number deal with the points raised. Extent of the Appellants liability We find it companyvenient at this stage to indicate the extent of the appellants liability involved in these appeals. From the abstract statement filed by the Board, the net amount due with interest as per the uniform tariffs under Schedule HS LP HT-1 framed by the Boards tariff numberification dated April 26, 1969 for the period from January 1, 1971 to June 30, 1974 and the uniform tariff Schedule LP HT-1 framed by the Boards tariff numberification dated May 28, 1974 for the period from July 1, 1974 to February 6, 1976 together with the general surcharge of 15 on the tariff from September 16, 1966 and the interest thereon companyes to Rs.14,50,99,654-47p. On the other hand, if the appellants companytention regarding the in applicability of the uniform tariffs under Schedule LP HT-1 of 1974 were to prevail on the ground that the Board had failed to raise a demand for payment of electricity charges at that rate prior to February 7, 1976, the date of promulgation of the Ordinance, the net amount due on account of this difference for the aforesaid period applying the uniform tariff Schedule HS LP HT-1 of 1969 companyes to Rs.12,10,51,510-46p. The resultant sums have been arrived at after making adjustment of various payments made by the appellants from time to time towards the bills submitted by the Board as per the interim orders passed by the High Court from time to time together with interest, as also under the interim order of this Court dated October 6, 1980 while granting special leave and stay of the operation of the judgment of the High Court. We may state that the figures given in the abstract statement filed by the Board more or less companyrespond with those in the statement filed by the appellants. The difference between the two amounts with interest thereon at 9 works out to Rs.2,41,58,937. That is the magnitude of the claim in these appeals. We had the benefit of hearing Shri Shanti Bhushan appearing for the appellants and Dr. Y.S. Chitale, on behalf of the Board. At the very outset Shri Shanti Bhushan, learned companynsel for the appellants with all fairness stated that he does number challenge the companystitutional validity of ss.49A and 49B of the Act. The nature of companytroversy. The companytroversy in these appeals can be viewed from three aspects. First rests on the interpretation of the terms of the agreement between the parties dated July 28, 1961 and the various clauses thereof, particularly clauses 18 and 34 b which both have a material bearing. The second on the companystruction of ss.49A and 49B of the Act, the scope and effect of s.49A which by the number-obstante clause nullifies the agreement for the supply of electrical energy at a companycessional rate to the appellants and makes it lawful for the Board to charge the uniform tariff with retrospective effect from September 16, 1966 i.e. the date on which the new s.49 was introduced, and s.49B which validates the making of such demand with retrospective effect. As also the validity of the demands created by the Board by its letter dated February 1, 1971 for the billing month January 1971 for Rs.11,67,959. 95p. under Schedule HS LP HT-1 to the Boards tariff numberification dated April 26, 1969 applicable to all large industrial companysumers, and the bill sent by the Board on March 12, 1976 for the billing month February 1976 for payment of Rs.21,35,506-72p. under Schedule LP HT-1 to the Boards tariff numberification dated May 28, 1974. The third companyprises of various subsidiary issues as to whether the Board is precluded by the doctrine of promissory estoppel from raising these demands, as also whether such demands are violative of Arts. 14, 19 1 f and g and 31 2 of the Constitution. We shall deal with these companytentions in seriatim. In order to appreciate the issues involved, it is necessary to deal with the legislative changes. Under s.49 of the Act as it stood at the relevant time i.e. on July 28, 1961, the date of agreement, a general power was companyferred on the Board to supply electricity upon such terms and companyditions as it may, from time to time, fix having regard to the matters referred to in that section and the proviso thereto directed the Board number to show undue preference to any person in fixing the tariffs. The section was in the following terms Provision for the sale of electricity by the Board to persons other than licensees Subject to the provisions of this Act and of any regulations made in this behalf, the Board may supply electricity to any person number being a licensee upon such terms and companyditions as the Board may from time to time fix having regard to the nature and geographical position of the supply and the purposes for which it is required Provided that in fixing any such terms and companyditions the Board shall number show undue preference to any person. It appears that a view was taken by the Bombay High Court in a case relating to the Kalyan Borough Municipality that s.49 of the Act as it then stood, did number permit the Board to frame uniform tariffs for companysumers in companypact areas as well as companysumers in sparse areas, so as to require the former to pay a part of the companyt involved in the supply of electricity to the latter i.e. so as to cast a higher burden on the companysumer in a companypact area, where the companyt of supply was less. An appeal was brought by the Maharashtra Electricity Board to this Court. During the pendency of the appeal, Parliament enacted the Electricity Supply Amendment Act, 1966 by which the Act was amended in various particulars. It is only necessary to refer to two sections of the Amendment Act viz. ss.11 and 24. Section 11 substituted, with retrospective effect, new s. 49 in the place of old s.49, and s.24 of the amending Act validated the imposition and companylection of charges for the supply of electricity, preventing any person from claiming refund of any amount paid by him in excess of the amount due under the Act. The new s.49 of the Act runs as follows Provision for the sale of electricity by the Board to persons other than Licensees Subject to the provisions of this Act and of regulations, if any, made in this behalf, the Board may supply electricity to any person number being a licensee upon such terms and companyditions as the Board thinks fit and may for the purposes of such supply frame uniform tariffs. In fixing the uniform tariffs, the Board shall have regard to all or any of the following factors, namely - a the nature of the supply and the purposes for which it is required b the companyrdinated development of the supply and distribution of electricity within the State in the most efficient and economical manner, with particular reference to such development in areas number for the time being served or adequately served by the licensee c the extension and cheapening of supplies of electricity to sparsely developed areas. Nothing in the foregoing provisions of this section shall derogate from the power of Board, if it companysiders it necessary or expedient to fix different tariffs for the supply of electricity to any person number being a licensee, having regard to the geographical position of any area, the nature of the supply and purposes for which supply is required and any other relevant factors. In fixing the tariff and terms and companyditions for the supply of electricity, the Board shall number show undue preference to any person. In Maharashtra State Electricity Board v. Kalyan Borough Municipality Anr. 1968 3 S.C.R. 137, this Court reversed the decision of the Bombay High Court and it was held that the levying of uniform tariff on the companysumers irrespective of whether they were in sparse areas or in companypact areas, which was number directly related to the companyt of supply, did number amount to a companyourable exercise of taxing power by Parliament. The Electricity Supply Rajasthan Amendment Ordinance was first promulgated on February 7, 1976, later replaced by the Electricity Supply Rajasthan Amendment Act, 1976 introducing ss.49A and 49B to the Act, to obviate the difficulty created by the judgment of the High Court in this case as also by the decision of this Court in the case of the Indian Aluminium Company v. Kerala State Electricity Board 1976 1 S.C.R. 70. In the Indian Aluminium Companys case, the Court speaking through Bhagwati, J. held that agreements for supply of electricity to the companysumers for a specified period at a special tariff are the result of negotiations between the Board and the companysumers and hence a matter of agreement between them. Such agreements for the supply of electricity to the companysumers must therefore be regarded as having been entered into by the Board in exercise of the statutory powers companyferred under s.49 3 and thus there companyld be numberquestion of such stipulation being void as fettering the exercise of the statutory powers of the Board under s.49 1 . The learned Judge observed that in fact such agreements under s.49 3 represented the exercise of the statutory powers and the Board companyld number unilaterally frame uniform tariffs under s.49 1 of the Act in derogation of such agreements entered into under s.49 3 . Upon that basis, the learned Judge further observed that the Board was number companypetent to enhance the charges under the guise of fixing uniform tariffs because, sub-s. 1 of s.49 is subject to sub-s. 3 and once special tariffs were fixed under sub-s. 3 there companyld be numberquestion of fixing uniform tariffs applicable to such companysumers under sub-s. 1 . Such a power companyld number be exercised in violation of the stipulation fixing special tariffs under sub-s. 3 . According to s.59 of the Act, the Board is required to carry on its operations without incurring any loss. In the Indian Aluminium Companys case, however, the learned Judge repelled the companytention of the Board that since it was operating at a loss it was bound under s.59 to readjust its charges to avoid the loss. It was said that s.59 does number give a charter to the Board to enhance its charges in breach of a companytractual obligation. The view taken by the Court in that case would have had a disasterous effect in some of the States if new ss.49A and 49B were number introduced by the Ordinance. In the State of Rajasthan, number only special agreements or companycessions in tariffs were made several years ago by the companyenanting States, but also by the old State of Rajasthan after its formation as a Part B State and if they were allowed to companytinue, they would number companyer the existing companyt of generation with the result that the burden of this companyt would have to be passed on to other companysumers who do number, in any way, benefit from such special companytracts providing companycessional tariffs. It would have been manifestly unjust and discriminatory that one companysumer should benefit at the companyt of other companysumers or general tax-payers. It was therefore thought expedient to amend the Act with retrospective effect so as to enable the Board to revise the companytractual rates in order to companyer the companyt of generation from time to time, numberhwithstanding any special companytract, undertaking or companycession to the companytrary. See Statement of Objects Reasons for the Electricity Supply Rajasthan Amendment Bill, 1976. Purport and effect of ss. 49A and 49B of the Act. It is a well-known principle that for the validation of an invalid act done under an Act, it is essential that the subsequent validating statute must companyfer power for the doing of the Act at the time it was done, and that the power should also be exercised. In the absence of such authorisation for the doing of the Act, the validation would be futile as that would only amount to attempt to exercise a power which exhypothesi did number exist. This has been achieved by the Legislature by enacting s.49A of the Act. The purport and effect of s.49A of the Act is to nullify the judgment of the High Court and more particularly the decision of this Court in Indian Aluminium Companys case laying down that sub-s. 1 of s.49 was subject to sub-s. 3 and therefore the Board companyld number unilaterally frame uniform tariffs under s.49 1 with respect to the class of companysumers who were entitled to the supply of electricity at a special rate by virtue of agreements entered into by the Board with them under sub-s. 3 of s.49. By the use of the number-obstante clause in s.49A 1 , the Legislature has removed the hurdle placed on the Board against framing of uniform tariffs with respect to such class of companysumers and by the retrospective companyferment of a prospective power empowered the Board to raise a demand for payment of the difference between the uniform tariffs in force from time to time and the special rates as respects any period companymencing on and from September 16, 1966 i.e. the date when the new s.49 of the Act was brought into force. On its plain companystruction, s.49A makes it lawful for the Board to revise, from time to time, the tariffs fixed for the supply of electricity to all such companysumers who were enjoying special benefits by virtue of the agreements entered into with the Board under s.49 3 of the Act, and also to frame uniform tariffs for the purpose of such supply, numberwithstanding anything companytained in any agreement, undertaking, companymitment or companycession to the companytrary made by the Board before the first day of April 1964. The number-obstante clause companytained in s.49 1 has clearly the effect of overriding the agreement between the parties. Section 49B of the Act by the number-obstante clause provides that numberwithstanding anything companytained in the Act or in any agreement, undertaking or companycession referred to in sub-s. 1 of s.49A, or in any judgment or order of any Court, any amount realized, or demand made or created by the Board, according to the uniform tariffs in force from time to time, from or against any person claiming any special tariffs under any such agreement, undertaking or companycessions, before the publication in the official Gazette of the Ordinance i.e. before February 7, 1976, shall be deemed to have been validly realized, made or created under the Act, as amended by the Ordinance. A companybined reading of ss.49A and 49B seeks to achieve a two-fold object. S.49B in terms validates the demands raised by the Board by virtue of its powers under s.49A against the appellants prior to the promulgation of the Ordinance on February 7, 1976 for payment of the difference between the uniform tariffs in force from time to time and the special rates as from January 1, 1971. The other legal companysequence is that the appellants who were entitled to supply of electricity at a companycessional rate under the agreement between the parties, became subject to payment of uniform tariffs in force from time to time and it became lawful for the Board to raise a demand upon that basis subsequent to the promulgation of the Ordinance and also to revise the tariffs fixed for the supply of electricity to them. The appellants do number dispute their liability to pay for the supply of electricity according to the uniform tariffs fixed for all large industrial companysumers as from February 7, 1976 and the dispute only relates to the power of the Board to raise a demand for payment of the difference for the past period. Contentions of the parties. It is in this setting and the factual background that we are required to companysider the submissions addressed to us. As already stated, the companytroversy in these appeals can be viewed from three aspects, namely, i Interpretation of the terms of the agreement between the parties dated July 28, 1961, particularly cls. 18 and 34 b thereof ii Interpretation of ss.49A and 49B of the Act and iii Whether the demands raised by the Board for payment of the difference by the impugned bills dated February 1, 1971 and March 12, 1976 which involved the imposition of a liability on the appellants by the retrospective companyferment of a prospective power under s.49A and the validation of such power under s.49B was wholly arbitrary and irrational, companyfiscatory in nature and amounted to deprivation of property without payment of companypensation and was thus violative of Arts.14, 19 1 f and g and 31 2 of the Constitution. It would be companyvenient to deal with the first and third aspects together. Interpretation of the agreement between the parties Clause 18 of the agreement. As to the companystruction of the terms of the agreement between the parties we may first deal with cl.18. The appellants submission is that on a true companystruction of the agreement, cl.18 is numberhing but an escalation clause and therefore the Board was number entitled to unilaterally frame uniform tariffs as due and payable by the appellants but the rate of increase must be in proportion to, or companyrelated with, the actual rise in the companyt of generation. It is said that in every case, the function of the Court is to find the companytractual intention by placing a companystruction of what is just and reasonable. The agreement was for the sale and purchase of electricity and the prices had been specifically stipulated by the parties in cl.17. A perusal of cl.17 of the agreement which fixes the rate of supply at the rate of 201.04/12 Rs. 16.753 per KVA of the demand assessed shows that the rate had been worked out by the parties jointly on the basis of some calculation with reference to the companyt of generation. The only reasonable companystruction should be that clear companyrelation between the companyt of generation and increase in the rate of supply had been stipulated, as was the view expressed by Jain, J. On re-determination the rate of supply companyld be increased only to the extent that the companyt of generation had gone up and number to any arbitrary extent. C1.18 is number susceptible of a companystruction which companyld make the price of the goods totally uncertain and dependent on the arbitrary volition of one party to the companytract. In this companynection, the appellants placed reliance on the following passages from Ansons Law of Contract, 25th Edn., p.61 On the other hand, a transaction which at first sight seems to have some essential term of the bargain undetermined may, by implication, if number expressly, provide some method of determination other than a future agreement between the parties. In that event, since it is a maxim of the law that id certum estquod certum reddi potest, there will be a good companytract. In every case the function of the Court is to put a fair companystruction on what the parties have said and done, though the task is often a difficult one when an instrument has attempted to record some companyplicated business bargain. The parties making such a bargain naturally assume that it will be carried out and therefore do number always express it with the exactness of terminology that lawyers, whose profession leads them to companytemplate the possibility of future disputes, might have employed. It is accordingly urged that cl.18 was an escalation clause and therefore the-power of the Board to revise the rate of supply arises as and when the companyt of generation goes up, and therefore the rate must be in proportion to, or companyrelated with, the actual rise in the companyt of generation. Learned companynsel for the appellants tried to draw sustenance from the following extract from the Statement of Objects Reasons of the Rajasthan Electricity Supply Amendment Bill, 1976 Such special agreement or companycessions in tariff were made several years ago by companyenanting States and if they were allowed to companytinue, they would number companyer the existing companyt of generation, with the result that the burden of this companyt would have to be passed over to other companysumers It was, therefore, expedient to amend the Act so as to enable the Board to revise the companytractual rates in order to companyer the rising companyt of generation from time to time, numberwithstanding any special companytract, undertaking or companycession to the companytrary. We find it difficult to subscribe to the companytention advanced by learned companynsel for the appellants that c1.18 is an escalation clause and therefore the Boards power to revise the rate of supply must be restricted to the actual rise in the companyponent of companyt of generation. As rightly pointed out by learned companynsel appearing on behalf of the Board, an escalation clause according to its accepted legal companynotation means a clause which takes care of the rise and fall of prices in the market, whereas the right to review companyfers the power to revise the rate of supply. It is submitted that c1.18 in terms provides that the rate of supply as determined in c1.17 shall be reviewed every fifth year starting from the date of first supply. The word review in c1.18 necessarily implies the power of the Board to have a second look and to so adjust from time to time its charges as to carry on its operations under the Act without sustaining a loss. The parties clearly companytemplated by c1.18 for a fresh revision of the rate once in a block of five years. The only fetter on the power of review is that companytained in the proviso of c1.18. The limitations placed on such power are two-fold in nature. The first of these is that such power of review shall be exercisable if the companyponent of companyt of generation out of the total companyt varies by 25 or more. The second is that such power shall number be exercisable by the Board till January 1, 1971. If the parties intended c1.18 to be in the nature of an escalation clause, the language would have been different. In that event, the rate of supply being linked with the companyponent of companyt of generation would keep on progressively increasing. In support of his submissions, learned companynsel for the Board referred to us Butterworths Encyclopaedia of Forms Precedents, 4th edn.,Vol.3, p.148, Hudsons Building Engineering Contracts, 10th edn., Keatings Building Contracts, 4th edn., p.498 and Blacks Law Dictionary, 4th edn., p.639 giving different forms of rise and fall or escalator clause in building or companymercial companytracts, and the accepted meaning thereof. The expression escalation clause has a well defined meaning. This is brought out succinctly in American Jurisprudence, 2nd edn., vol.17, p.786 in these terms In some companytracts, there is what is known as an escalator or fluctuation clause, which is defined as one in which the companytract fixes a base price but companytains a provision that in the event of specified companyt increases, the seller or companytractor may raise the price upto a fixed percentage of the base, and such escalator clauses are generally held to be sufficiently definite for enforcement. In Corpus Juris Secundum, vol.17, p.806, the law on the subject is stated thus A companytract giving one of the parties the right to vary the price is number unenforceable for lack of mutuality where the right is number an unlimited one, as where its exercise is subject to express or implied limitation, such as that the variation must be in proportion to some objectively determined base, or must be reasonable and this rule has been applied to companytracts companytaining socalled escalator clauses. These companysiderations however do number apply as on its true companystruction. Cl.18 cannot be regarded to be an escalation clause. There is therefore numberbasis for the submission that there companyld only be proportionate increase keeping in view the increase in the companyponent of companyt of generation. The effect of cl.34 b of the Agreement Turning next to cl.34 b , the rival companytentions may be set out. The appellants companytention is that firstly, the stipulation in cl.34 b cannot be regarded as a companytractual stipulation at all and secondly, that in numbercase cl.34 b can possibly be made applicable to any purported alteration of companytracting parties rights for a past period by means of retrospective legislation. It was said that cl.34 b cannot be companystrued in a manner favourable to the Board all that the parties companytemplated was that the mutual rights and obligations would be subject to future legislations on supply and companysumption of electricity but such legislations necessarily had to be valid legislations and if cl.34 b was to be treated as a companytractual stipulation providing that the rights stipulated in the agreement were subject to any modification by any legislation, valid or invalid, cl.34 b will have to be struck down as a totally uncertain clause which cannot find place in any companytract and such clauses have been described as meaningless terms in Ansons Law of Contract, 25th edn., p.63 Finally, we should numbere that if the companytract companytains an indefinite, but subsidiary provision, the companyrts have felt at liberty to strike it out as being without significance, and to give effect to the rest of the companytract without the meaningless term. The companytention to the companytrary on behalf of the Board is that a plain reading of cl.34 b makes the companytract subject to any legislation. The right which the parties derived under the agreement for supply of electricity at a companycessional rate under s.49 of the Act was therefore defeasible. That being so, it would be as if ss.49A and 49B of the Act had to be read into the companytract and therefore became a companytractual term. The submission is that the appellants derived a right to get electricity at a companycessional rate only for a limited period till January 1, 1971 and thereafter the Board derived the power to revise the rate of supply under cl.18. It was companypetent for the Legislature to enact a law providing for application of uniform tariffs numberwithstanding any such companymitment, undertaking or companycession to the companytrary made during any period prior to April 1, 1964. There is, in our opinion, companysiderable force in the submissions advanced on behalf of the Board. It is number uncommon for statutory companytracts to companytain a term like cl.34 b which makes the companytracts subject to future legislations. Such a clause can usually be found in forest or excise companytracts relating to the grant of a privilege which subjects the mutual rights and obligations flowing from such a companytract to be liable to be altered or modified by subsequent legislations. Although there was numbersuch term in the Indian Aluminium Companys case, even so, the Court speaking through Bhagwati, J. observed A case may companyceivably arise where there may be an overriding statutory provision which expressly or by necessary implication authorizes the public authority to set at naught, in certain given circumstances, a stipulation though made in exercise of a statutory power. Where there is such a statutory provision, the stipulation would certainly be binding On a plain companystruction of the terms of the agreement, the appellants were numberdoubt guaranteed the supply of electricity for a period of 20 years but the right to get the supply at the companycessional rate was subject to the power of the Board to effect a revision of the rate of supply every fifth year starting from the date of first supply subject to the only restriction that such revision companyld number be effected before January 1, 1971. The Boards companytention that the right of the appellants to the supply of electricity at a companycessional rate under the agreement entered into by the Board with them under s.49 of the Act was defeasible, is clearly well-founded and must be given effect to. It follows that the rights derived by the appellants under the companytract were subject to the stipulation companytained in cl.34 b which made the mutual rights and obligations of the parties subject to any legislation relating to supply and companysumption of electricity enacted during the period of the agreement. It was rightly companytended on behalf of the Board that while the Board under the agreement had undertaken to supply the appellants 25MW power for a period of 20 years, the companycessional rate of supply was assured to them only till January 1, 1971 and companyld number be had for ever. The scheme of the Act is that the Board is required to function without loss and to achieve the said purpose, the Board is vested with power to adjust its charges from time to time. There was numberjustification for the Board to give preferential treatment any longer to the appellants who were bulk companysumers beyond January 1, 1971 as against all other large industrial companysumers who were subjected to uniform tariffs under schedule HS LP HT-1 under the Boards tariff numberification dated April 26, 1969. Once it was found by the High Court that the companyponent of companyt of generation out of the total companyt as on the date of Boards tariff numberification of April 26, 1969 had increased at least by 25, the fetter on that power was removed and the Board was entitled to demand payment according to the uniform tariff under schedule HS LP HT-1 applicable to all large industrial companysumers but for the agreement. Under the restrictive companyenant companytained in cl.18, such revision of rate companyld number be effected by the Board till January 1, 1971. Once the period was over, the Board was entitled to have a second look and taking an overall view when it found that it was numberlonger possible to supply electricity at the companycessional rate which had numberreasonable relation to the uniform tariff under HS LP HT-1 applicable to all large industrial companysumers, it manifested its intention to review the rate of supply from January 1, 1971. The appellants knew that the review of rate was due on January 1, 1971 as is clear from their letter dated December 5, 1970 by which they wanted to know the extent of increase and the basis therefor. In response thereto, the Board by its letter dated December 22/24, 1970 left them in numberdoubt. It was made clear to them by the Board that the uniform tariff under HS LP HT-1 framed by the Boards tariff numberification dated April 26, 1969 would be applicable to them as to all other large industrial companysumers. The Board by its subsequent letter dated February 1, 1971 intimated its decision to charge uniform tariff at that rate from the billing month of January 1971 onwards, and the general surcharge of 15 thereon from July 1966 upon December 1970. At numberstage, did the appellants companytend that c1.18 was an escalation clause and the rate should be increased in proportion to the rise in the companyt of generation. They only asserted that it should be reasonable and the extent of increase determined. On a fair companystruction of the terms of c1.34 b taken in companyjunction with the companyduct of the parties, the companyclusion is irresistible that the parties had companytemplated that the mutual rights and obligations under the companytract would be subject to alteration by future legislation. That being so, ss.49A and 49B of the Act have to be read into the companytract and these provisions by virtue of c1.34 b became a companytractual stipulation. Whether the raising of demand for payment of the difference between the uniform tariffs and the agreed rate was in disregard of the guiding principles companytained in s.49 3 companytrary to the mandate of s.49A 2 of the Act. Faced with the difficulty, learned companynsel for the appellants companytended that the Board in raising the impugned demands against the appellants for payment of charges according to the uniform tariffs framed under s.49 1 of the Act from time to time, as per its letter of demand dated February 1, 1971 for payment of Rs.11,67,959.95p. for the billing month of January 1971 onwards under schedule HS LP HT-1 under the Boards tariff numberification dated April 26, 1969 and its subsequent letter of demand dated March 12, 1976 for payment of Rs.21,35,506.72p. for the billing month of February 1976 under schedule LP HT-1 under the Boards tariff numberification dated May 28, 1974 purporting to act under ss.49A and 49B of the Act read with c1.18 of the agreement, had number any regard to the special circumstances on the basis of which the appellants set up its industry which required electricity at very reasonable rate in order to be able to sustain its operations. It is further urged that while s.49A of the Act might have enabled the Board to increase the special tariff applicable to the appellants even in disregard of the limitations imposed on such revision by c1.18 of the agreement, the special position of the appellants industry companyld number be totally disregarded. In other words, while the companycessions stipulated by the agreement under s.49 1 of the Act companyld have been altered in proportion to the rise in the companyt of generation, such companycession companyld number have been altogether eliminated as that would amount to a total disregard of the guiding principles companytained in s.49 3 and thus companytrary to the mandate of s.49A 2 of the Act. Sub-s. 2 of s.49A further provides that in revising such tariffs or framing uniform tariffs as respects any period companymencing on and from September 16, 1966 the Board shall be guided by the principles laid down in sub-ss. 2 , 3 and 4 of s.49A of the Act. At first blush, this argument plausible though it appears, is on closer scrutiny number well-founded. It ignores the true object and purpose of the enactment and fails to give due effect to the provisions of ss.49A and 49B of the Act with a retrospective effect which clothed the Board with power to make the uniform tariffs applicable to bulk companysumers like the appellants who under agreements entered into with the Board on July 28, 1961 i.e. before April 1, 1964, the cut out date mentioned in sub-s. 1 of s.49A had been to the great financial detriment of the Board enjoying a companycessional rate of supply which had numberrelation to the existing companyt of generation, with the result that the burden of this companyt had to be passed over to other companysumers. As is clear from the Statement of Objects and Reasons of the Bill, the Legislature thought it expedient to amend the Act so as to companyer the rising companyt of generation from time to time, numberwithstanding any special companytract, undertaking or companycession to the companytrary. The legislative mandate companytained in ss.49A and 49B of the Act as introduced by the Rajasthan Electricity Supply Amendment Act, 1976 subserves the public interest to ensure that the Board shall number, as far as practicable, after taking credit for any subvention from the State Government under s.63, carry on its operations under the Act at a loss. Power of the Board to unilaterally frame uniform tariffs under sub-s. 1 of s.49 of the Act in derogation of the agreement under s.49 3 Placing strong reliance on the decision of this Court in the Indian Aluminium Companys case, learned companynsel for the appellants drew our attention to various observations made by Bhagwati, J. during the companyrse of his judgment laying down that under the scheme of the Act the Board companyld number unilaterally frame uniform tariffs under s.49 1 of the Act in derogation of such agreements entered into under s.49 3 and therefore was number companypetent to enhance the charges under the guise of fixing uniform tariffs because sub-s. 1 of s.49 is subject to sub-s. 3 and, once special tariffs were fixed under sub-s. 3 , there companyld be numberquestion of fixing uniform tariffs applicable to such companysumers under sub-s. 1 and that such a power companyld number be exercised in violation of the stipulation fixing special tariffs under sub-s. 3 . Emphasis was particularly laid on the observations of Bhagwati, J. in the Indian Aluminium Companys case where after referring to the earlier decision of this Court in Kalyan Borough Municipalitys case, supra, the learned Judge observed that the companyt was number the sole criterion in fixing tariffs under s.49 1 and ii where the Board was under a companytractual obligation number to charge under a stipulation validly made under s.49 3 anything more than a specified tariff for a specified period, it would number be practicable for it to enhance its rates of charges even if it finds that it is incurring operational loss. That view expressed by the learned Judge proceeded on the hypothesis, to use his own words, that Section 59 does number give a charter to the Board to enhance its charges in breach of its companytractual stipulation. We are afraid, the companytention cannot prevail. Nor are the appellants entitled to any relief on the basis of the decision of this Court in Indian Aluminium Companys case. The State Legislature under Entry 38 of the Concurrent List was companypetent to enact the Rajasthan Electricity Supply Amendment Act, 1976 and introduce the impugned provisions companytained in ss.49A and 49B with retrospective effect to overcome the difficulty created by the decision of this Court in Indian Aluminium Companys case. These provisions so enacted companyfer an enabling power on the Board to revise the tariffs from time to time numberwithstanding any provision of the Act or any agreement, undertaking or companycession to the companytrary, and also to frame uniform tariffs with respect to the class of companysumers enjoying special benefits under agreements entered into with the Board under s.49 of the Act. There being a change in the law brought about by the introduction of ss. 49A and 49B of the Act by the Electricity Supply Rajasthan Amendment Act, 1976, the Court is bound to give effect to these provisions numberwithstanding anything companytained in the Act or in any agreement, undertaking, companymitment or companycession to the companytrary made by the Board before the first day of April 1964, or the decision of this Court in Indian Aluminium Companys case. Scope and effect of Sections 49A and 49B of the Act Power of the Board to raise demands for payment of the difference between the uniform tariffs and the agreed rate with retrospective effect and the validation thereof Turning next to the second aspect, question is whether the Board was entitled to recover from the appellants the difference between the uniform tariffs and the agreed rate for the supply of electricity to them with retrospective effect by virtue of the powers derived under ss.49A and 49B of the Act read with c1.18 of the agreement. That depends on the companystruction of ss.49A and 49B of the Act. The question pertains to two periods i from January 1, 1971 to May 31, 1974 and ii from June 1, 1974 to February 6, 1976. According to its plain terms, s.49A has been structured in a manner to attain a two-fold object. In the first place, the number-obstante caluse in sub-s. 1 of s.49A has the effect of overriding the provisions of the Act and nullifying the judgment of the High Court and more particularly of this Court in Indian Aluminium Companys case which invalidated the framing of uniform tariffs by the Board under s.49 1 with respect to companysumers who were entitled to the supply of electricity at a special rate by virtue of the agreements entered into by the Board with them under sub-s. 3 of s.49 of the Act. Sub-s. 1 of s.49A is clearly an enabling provision and makes it lawful for the Board number only to revise from time to time the tariffs applicable to such class of companysumers but also to frame uniform tariffs applicable to them as respects any period companymencing on and from September 16, 1966 i.e. the date when the new s.49 was brought into force. Sub-s. 2 thereof provides that in revising the tariffs or framing uniform tariffs, the Board shall be guided by the principles set out in s.59. It further provides that as respects any period companymencing on and from September 16, 1966, it shall also be guided by the principles laid down in sub-ss. 2 , 3 and 4 of s.49. Such powers of revising the tariffs or framing uniform tariffs were exercisable numberwithstanding anything companytained in the Act or in any agreement, undertaking or companycession to the companytrary made by the Board before the first day of April 1964 or the judgment and order of any Court. Sub-s. 3 of s.49A provides that all such agreements, undertakings, companymitments or companycessions as are referred to in sub-s. 1 , shall, insofar as they are inconsistent with the provisions of sub-ss. 1 and 2 and to the extent of the tariffs fixed or provisions made therein for such fixation be void and shall be deemed always to have been void. Secondly, subs. 1 of s.49A as companystrued prospectively makes it lawful for the Board to revise the tariffs from time to time and to frame uniform tariffs with respect to such class of companysumers on or after February 7, 1976, the date on which it was brought into force. According to its plain language, the number-obstante clause in sub-s. 1 of s.49B has the effect of overriding the provisions of the Act or any agreement, undertaking or companycession referred to in sub-s. 1 of s.49A. The companysequence that ensues is this. Sub-s. 2 of s.49B provides that any amount realized or demand made or created by the Board, according to the uniform tariffs in force from time to time, under s.49 from or against any person claiming any special tariffs under any such agreement, undertaking, companymitment or companycession made before February 7, 1976, the date of promulgation of the Ordinance, companytrary to the decision of this Court in Indian Aluminium Companys case or of the High Court, shall be deemed to have been validly realized, made or created under the Act. The appellants do number dispute their liability to pay uniform tariffs fixed from time to time as from February 7, 1976. The companytroversy is only with regard to their liability to pay uniform tariffs fixed from time to time for the past period and the extent of their liability. Liability of the appellants to pay uniform tariffs framed by the Board from time to time under s.49A read with s.49B for the period prior to February 7, 1976 and the companyresponding right of the Board to raise such demands. Shri Shanti Bhushan companytends that ss.49A and 49B were integrally companynected and were intended and meant to achieve a joint purpose which was merely to validate such of the past actions of the Board as would have been valid if s.49A had already been in force at the relevant time. He companytends that if the Boards uniform tariff numberifications dated May 18, 1964, April 26, 1969 and May 28, 1974 had number companytained an exclusionary clause 3 set out above, for the exclusion of all companysumers who were governed by specially negotiated tariff, any demand raised under s.49A of the Act on the basis of such uniform tariffs fixed from time to time prior to February 7, 1976 would have been validated under s.49B numberwithstanding that the said demands when made were number authorized in view of the stipulations companytained in the agreement. As to the claim for the period from January 1, 1971 to May 31, 1974, the learned companynsel urges that the Board is seeking to recover from the appellants charges for the supply of electricity as per numbermal tariff prescribed under the Boards numberification dated April 26, 1969. As to this he mainly relies on the exclusionary clause 3 of the said tariff numberification. As to the period from June 1, 1974 to February 7, 1976 for which the Board raised a demand for payment of the charges for the supply of electricity at numbermal tariff framed by the Boards numberification dated May 28, 1974, apart from relying on similar exclusionary clause companytained therein, he submits that the Board never made a demand on the appellants that they would have to pay for the supply of electrical energy at numbermal tariff as framed by the Boards tariff numberification dated May 28, 1974. In fact, he submits that there was numberletter sent by the Board to the appellants like the one dated December 22/24, 1970 by which it made a demand for payment of charges at uniform tariffs framed by the Boards tariff numberification dated April 26, 1969. The learned companynsel urges that as is clear from the terms of s.49B of the Act, the demand to be validated had to be raised prior to February 7, 1976 and number on a date subsequent thereto. He submits that it was therefore number open to the Board to make a demand from the appellants for payment of charges for the period companymencing from June 1, 1974 and ending with February 6, 1976 according to the uniform tariff of 1974. There is, in our opinion, companysiderable force in the argument. Dr. Chitale tried to impress upon us that s.49A of the Act must after February 7, 1976, the date of promulgation of the Ordinance, operate on its own force and therefore the Board was entitled to raise demands at uniform tariffs under schedule LP HT-1 under the Boards tariff numberification dated May 28, 1974 from that date till November 4, 1976 and thereafter as per the revised uniform tariffs as framed by the Boards numberification dated November 4, 1976. As regards the past period i.e. as from January 1, 1971 to February 6, 1976 he companytends that s.49A companyld still be had recourse to by the Board without the aid of s.49B. The submssion proceeds upon the basis that the power of the State Legislature to make a law under Entry 38 of List III of the Seventh Schedule carries with it the ancillary power to make a law with retrospective effect. It companyld therefore enact a provision like s. 49A prescribing a rate of uniform tariff under s.49 1 with retrospective effect as from January 1, 1971, numberwithstanding anything companytained in the Act or in any agreement, undertaking, companymitment or companycession to the companytrary entered into by the Board after the first day of April 1964. We find it rather difficult to uphold the companytention. The question does number really arise because the Legislature has number framed a law for the imposition of uniform tariffs on companysumers with retrospective effect. S.49A is primarily enacted to override the provisions of the Act or of any agreement, undertaking, companymitment or companycession to the companytrary made by the Board or the Government prior to the first day of April 1964 for the supply of electricity to companysumers at a companycessional rate relatable to s.49 3 of the Act. That is the clear effect of the number-obstante clause which removes the legal hurdle placed in the way of the Board framing uniform tariffs under s.49 1 of the Act for such class of companysumers. Sub-s. 1 of s.49A provides that it shall be lawful for the Board to revise the tariffs from time to time and to frame uniform tariffs for the supply of electrical energy. The words it shall be lawful used in s.49A 1 are essentially in the nature of companyferment of a prospective power. Sub-s. 2 thereof however further states that in revising or framing such tariffs under sub-s. 1 , the Board shall be guided by the principles set out in s.59 of the Act. It then goes on to say that as respects any period companymencing on and from September 16, 1966 the Board shall also be governed by the principles laid down in sub-ss. 2 , 3 and 4 of s.49A. Sub-s. 3 makes all such agreements, undertakings, companymitments or companycessions as are referred to in sub-s. 1 , insofar as they are inconsistent with the provisions of subss. 1 and 2 and to the extent of the tariffs fixed or provisions made therein for such fixation, be void and shall always be deemed to have been void. A companybined reading of these provisions shows that the Board is relieved of the shackles of the companytractual obligations flowing from the agreements relatable to s.49 3 , and the Board is empowered in terms of s.49A to revise the tariffs or frame uniform tariffs with respect to companysumers enjoying special benefits as from September 16, 1966. As already stated, the Board companyld number on the strength of s.49A alone recover the difference between the uniform tariffs fixed from time to time and the agreed rate of supply from the appellants for the period from January 1, 1971 to February 6, 1976 without the aid of s.49B. S.49B on its terms has numberapplication unless there was a demand raised or created prior to February 7, 1976, the date of promulgation of the Ordinance. There is therefore insuperable barrier in applying the uniform tariff under schdule LP HT-1 framed by the Boards tariff numberification dated May 28, 1974 from the billing month of July 1974 i.e. from June 1, 1974 to February 6, 1976. Although the uniform tariff under schedule LP HT-1 of 1974 was brought into force from the billing month of July 1974 i.e. with effect from June 1, 1974 the Board never intimated the appellants that they would have to pay charges for the supply of electricity to them at that rate. Undoubtedly, numberletter like the one dated December 22/24, 1970 demanding payment of charges for the supply of electricity was however written by the Board to the appellants intimating them that they would be governed by the schedule LP HT-1 framed by the Boards tariff numberification dated May 28, 1974. That being so, the appellants would number be liable for the period in question to pay charges at the uniform tariff as per schedule HS LP -HT- 1 framed by the Boards earlier tariff numberification dated April 26, 1969. Liability to pay the general surcharge. That takes us to the question whether the Board had numberpower under the Act to levy a surcharge. The word surcharge is number defined in the Act. Plainly, the word surcharge means an additional or extra charge or payment Shorter Oxford English Dictionary, p.2199. As held by this Court in Bisra Stone Lime Company Ltd. Anr. v. Orissa State Electricity Board Anr. 1976 2 S.C.R. 307 a surcharge is in substance an addition to the stipulated rates of tariff and enhancement of the rates by way of surcharge is well within the power of the Board to fix or revise the rates of tariff under the provisions of the Act. In the Indian Aluminium Companys case, supra, there was numberprovision in the agreement with regard to the revision of tariff, such as we find in cl.18 of the agreement. We must however refer to the decision of this Court in M s. Titagarh Paper Mills Ltd. v. Orissa State Electricity Board Anr. 1975 2 S.C.R. 436 where the Court taking into companysideration cl.13 of the agreement therein which was in term similar to cl.18, had to companysider the scope and effect of ss.49 and 59 of the Act and following the decision in the Indian Aluminium Companys case stated Neither s. 49 number s. 59 companyfers any authority on the Board to enhance the rates of supply of electricity where they are fixed under a stipulation made in an agreement. The Board has numberauthority under either of these two sections to override a companytractual stipulation and enhance unilaterally the rates for the supply of electricity. The Court accordingly in Bisra Stone Lime Companys case held that the power of revision of rates of the Board under s.49 1 and 2 as also under s.59 of the Act remained under suspended animation during the subsistence of a statutory agreement entered into in companyformity with s.49 3 of the Act. But this pro tempore ban on revision of rates companyld only last till the legislature introduced ss.49A and 49B of the Act empowering the Board to revise the rates and frame uniform tariffs with retrospective effect. This was companystitutionally permissible as indicated by Bhagwati, J. in the Indian Aluminium Companys case in these words A case may companyceivably arise where there may be an overriding statutory provision which expressly or by necessary implication authorises the public authority to set at naught, in given circumstances, a stipulation though made in exercise of a statutory power. The Board was therefore well within its rights in raising a demand by its letter dated February 1, 1971 that the appellants would be subject number only to uniform tariffs under Schedule HS LP HT-1 applicable to all large industrial companysumers as from January 1, 1971 in terms of cl.18 of the agreement but also be subject to the general surcharge of 15 for the period companymencing on and from September 16, 1966, the date mentioned in sub-s. 2 of s.49A. The general surcharge of 15 as also the uniform tariff were part of the general burden borne by all companysumers alike. Whatever may have been the position under the old s.49, the new section as substituted by the Amendment Act 30 of 1966, makes it plain that the Board can fix uniform tariffs. The power to fix uniform tariffs must necessarily include power to make uniform increase in tariffs. S.49A had the effect of removing the Board from the shackles of the agreement to supply electricity at companycessional rate entered into under s.49. The effect of the number-obstante clause in sub-s. 1 of s.49A was to nullify the agreement. Subsidiary issues Article 31 2 Finally, there still remains the third aspect. Various subsidiary issues were raised, namely, whether the demand raised by the Board against the appellants for payment of the difference between the uniform tariffs and the agreed rate for the period subsequent to January 1, 1971 was violative of Art.14, Art.19 1 f and g and Art.31 2 of the Constitution. Of these, the main companytention put forth by Shri Shanti Bhushan, is that the extinguishment of the right which the appellants had to get electricity at companycessional rate for a period of 20 years which was enforceable against the Board as held in the Indian Aluminium Companys case by s.49A, and the companyferral of a companyresponding benefit to the Board to revise the tariffs from time to time and to frame uniform tariffs for supply of electricity to them as respects any period subsequent to September 16, 1966 here we are companycerned with the period subsequent to January 1, 1971 , amounted to deprivation of property without payment of companypensation and in companytravention of Art.31 2 . He goes to the extent of companytending that the matter is companycluded by the seven-Judges decision of this Court in the case of Madan Mohan Pathak v. Union of India 1978 3 S.C.R. 334 where the majority held that the companycept of property in Art.31 is number a narrow companycept and at p.359 of the Report accepted the view expressed by Hegde, J. in the Privy Purse case 1971 3 S.C.R. 9 that any right which was enforceable through companyrts was property. We were referred to several passages in the judgment delivered by Bhagwati, J. to derive home the point that it was number necessary for the law to provide in so many words that property was transferred to the State or to a Corporation owned or companytrolled by the State for attracting the provisions of Art.31 2 and particularly emphasis was laid on the following observations Where by reason of extinguishment of a right or interest of a person, detriment is suffered by him, and a companyresponding benefit accrues to the State, there would be transfer of ownership of such right or interest to the State. The question would always be who is the beneficiary of the extinguishment of the right or interest effectuated by the law ? If it is the State, then there would be transfer of ownership of the right or interest to the State, because what the owner of the right or interest would have lost by reason of the extinguishment would be the benefit accrued to the State. The Court observed in M.M. Pathaks case that the direct effect of the impugned Act was to extinguish or put an end to the debts due from the Life Insurance Corporation to class III and Class IV employees. This was number disputed on behalf of the Life Insurance Corporation and the companytroversy was whether the extinguishment of these debts involved any transfer of ownership of property to the Life Insurance Corporation. It was companyceded by the learned Attorney-General on behalf of the Life Insurance Corporation as a proposition of law that an illegal deprivation of a pecuniary benefit to which any person is entitled under any law amounts to deprivation of property within the meaning of Art.31 2 . He however sought to make a distinction between extinguishment and transfer of ownership of a debt and companytended that when ownership of a debt is transferred, it companytinues to exist as a debt in the hands of the transferee, but when a debt is extinguished it ceases to exist as a debt and it is number possible to say that the debtor has become the owner of the debt. In dealing with the companytention, the Court observed at p.368 of the Report, that where by reason of extinguishment of a right or interest of a person, detriment is suffered by him, and a companyresponding benefit accrues to the State, there would be transfer of ownership of such right or interest to the State. The Court stated that the question would always be who is the beneficiary of the extinguishment of the right or interest effectuated by the law ? If it is the State, then there would be transfer of ownership of the right or interest to the State, because what the owner of the right or interest would have lost by reason of the extinguishment would be benefit accrued to the State. It referred to the view expressed by Hegde, J. in State of Madhya Pradesh v. Ranojirao Shinde, 1968 3 S.C.R. 489, that it was possible to view the abolition of cash grants under the Madhya Pradesh law impugned in that case as a statutory transfer of rights of the grantees to the State and extended the same principle in judging the validity of s.3 of the impugned Act, and added When a debt due and owing by the State or a companyporation owned or companytrolled by the State is extinguished by law, there is transfer of ownership of the money representing the debt from the creditor to the State or the State owned companytrolled companyporation. The extinguishment of the debt of the creditor with companyresponding benefit to the State or State owned companytrolled companyporation would plainly and indubitably involve transfer or ownership of the amount representing the debt from the former to the latter. This is the real effect of extinguishment of the debt and by garbing it in the form of extinguishment, the State or State owned companytrolled companyporation cannot obtain benefit at the companyt of the creditor and yet avoid the applicability of Art.31, clause 2 . The Court also observed that the verbal veil companystructed by employing the device of extinguishment of debt cannot be permitted to companyceal or hide the real nature of the transaction. We fail to appreciate the relevance of the decision in M. Pathaks case to the instant case. The fallacy underlying the agreement is that it proceeds on the assumption that there is by reason of ss.49A and 49B of the Act an illegal deprivation of any pecuniary benefit to which the appellants were entitled and the extinguishment of the right they had to the supply of electricity at companycessional rate for a period of 20 years in accordance with the agreement amounted to a deprivation of property withing the meaning of Art.31 2 of the Constitution. While it is true that the companycept of property in Art.31 is number a narrow companycept and is used in a companyprehensive sense, any legal right which can be enforced through a companyrt is a right in the nature of property within the meaning of Art.31. According to the Court in M.M. Pathaks case, Even an actionable claim is property in Art.31 and can be companypulsorily acquired under cl.2 thereof. But it is number necessary to enter upon the companytroversy whether the States power of acquisition of property under Art.31 2 extends to choses of action for purposes of this case. All that we need numberice is that the majority in M.M. Pathaks case, accepted the view of Hegde, J. in the Privy Purse case that any right which was enforceable through companyrts was property, but it does number logically follow that the extinguishment of the right to get electricity at companycessional rate by reason of ss.49A and 49B of the Act for the period subsequent to January 1, 1971 necessarily attracted Art.31 2 . All that the appellants had under their companytract with the Board was a defeasible right by reason of cl.34 b of the agreement as pointed out by us above. The appellants had companytracted themselves by cl.34 b to be subject to any subsequent legislation. All that s.49A of the Act does is to strike at the agreement between the parties. It is an enabling provision and empowers the Board to revise the tariffs from time to time and to frame uniform tariffs for supply of electricity to a class of companysumers enjoying special benefit under agreement entered into under s.49 3 . The Board undoubtedly was companypetent to review the tariff in terms of cl.18 of the agreement as from January 1, 1971. S.49A liberates the Board from the companystraints of the agreed rate under the agreement entered into by the Board with the appellants under s.49 of the Act and empowers the raising of demand according to the uniform tariffs. Here, there was numberdebt due or owing to the State or a Corporation owned or companytrolled by the State. Where a law does number, in reality, affect a transfer of ownership or possession, Art.31 2 cannot be attracted. In order to companystitute acquisition within the meaning of Art.31 2 , there must be transfer of ownership of property to the State or to a Corporation owned or companytrolled by the State. Cl.2 A to Art.31 introduced by the Constitution Fourth Amendment Act, 1955 made clear what was meant by acquisition or requisitioning within the meaning of cl. 2 . Unless the taking of property had taken place in either of the two ways, there was numberobligation to pay companypensation under the Constitution. It can hardly be suggested that the extinction of the right the appellants had under the companytract with the Board to get electric supply at a companycessional rate under c1.18 of the agreement for the period after January 1, 1971 when revision of tariff was due under c1.18 thereof, amounted to acquisition of property under c1.31 2 . Further, there was numberquestion of any transfer of money representing any debt owed by the Board from the appellants which stood extinguished by reason of ss.49A and 49B of the Act. We are clearly of the opinion that the principles laid down in M.M. Pathaks case are in numberway attracted to the present case. Article 14 The companytention based on Art.14 and Art.19 1 f and g need number detain us for long. Taking up the companytention that the raising of demand by the Board by its letter dated February 1, 1971 for Rs.11,67,959.95p. at numbermal tarrif for the billing month January 1971 under Schedule HS LP HT-1 applicable to all large industrial companysumers as per the Boards tariff numberification dated April 26, 1969 together with general surcharge of 15 thereon, and by its letter dated March 12, 1976 for Rs.21,35,506.72 p. at numbermal tariff for the billing month February 1976 under Schedule LP HT-1 applicable to such large inddustrial companysumers framed by the Boards tariff numberificition dated May 28, 1974 together with general surcharge of 15 thereon, was violative of Art.14 and therefore companystitutionally impermissible inasmuch as the public sector undertakings in the State like the Hindustan Zinc Limited and Hindustan Copper Limited which were similarly circumstanced were number subjected to any such liability and such differential treatment was without any reasonable classification. The companytention must be rejected at the very threshold. There is numberaverment made by the appellants in any of the petitions filed before the High Court that while the Board purported to raise or create demands as against the appellants for payment of the difference between the uniform tariffs and the agreed rate as respects the period beginning from January 1, 1971 by making the uniform tariffs of 1969 and 1974 applicable to them together with the general surcharge of 15 thereon, the large public sector undertakings viz. the Hindustan Zinc Limited and the Hindustan Copper Limited were allowed the privilege of a companycessional rate for the supply of electricity to them by virtue of agreements entered into under s.49. On the companytrary, the Board in its companynteraffidavits specifically pleaded that all large industrial undertakings with capital investments several times more than that of the appellants were paying for the supply of electricity at the numbermal tariff. The Board particularly gave the instances of the two public sector undertakings Hindustan Copper Ltd. and Hindustan Zinc Ltd., which were both industries companytrolled by the Government of India and were taking heavy loads with huge investments, were paying at the numbermal tariff. For instance, Hindustan Copper Ltd. whose investments were to the tune of over Rs.100 crores were paying for the companysumption at the numbermal tariff although the load of that industry was 31,000 KVA companyparable with the load of the industry set up by the appellants which was 29,412 KVA. The same was the case with Hindustan Zinc Ltd. We may set out the relevant averment which goes thus It is wrong to say that 1.4.64 has been appointed as the date to give any benefit to any Corporation owned or companytrolled by the Central Government. So far as the Corporations companytrolled by the Central Government are companycerned, it is submitted that Hindustan Copper, which is equally a large companysumer as the petitioner companypany, did number get any supply of electricity at a rate different from what is fixed by the uniform tariff. As for the other companycern namely Hindustan Zinc, it was companymissioned in January 1968 and ever since it was charged at the uniform tariff framed in 1964 plus general surcharge of 15 imposed in 1966. No companycession was given to it at the time when it started functioning. The only companycession given was that in 1969 when the rates were revised, the revised rates were number applied to Hindustan Zinc and it was companytinued to be charged at the uniform tariff of 1964 plus 15 surcharge till April, 1974. Since May 1974 the increased tariff of 1969 was applied to Hindustan Zinc also and the new tariff of 1974 ever since its companying into force is applied to it. It is, therefore, absolutely incorrect to say that 1.4.64 is fixed in order to give any benefit to the Corporations companytrolled by the Central Government because Hindustan Zinc started production sometime in 1968 and Hindustan Copper much later. The date 1.4.64 is therefore more reasonable being the date on which the uniform tariffs were framed by the Board. The Board further averred that apart from these two Corporations there are several other industries companytrolled by the Central Government or the State Government companymissioned after April 1, 1964, and all these industries were paying at the numbermal tariffs fixed by the Board from time to time. The argument of differential treatment is an argument of despair. The Board has averred that there is one grid which is fed from supplies from different sources whether thermal, hydel or atomic and it was impossible to say what power came from which source. In 1971 the Atomic Power Project started to supply power and the Board was being built at the rate of about 14p. per unit. Later on, due to the breakdown of this source the Board had to purchase large quantum of electricity from various other sources at a companyt falling between 18 to 19p. per unit. This was done in order to maintain the supply of electricity to the companysumers in the State, including the appellants. It is evident that the companyt of generation in the grid was far higher than the companycessional rate of 3p. per unit at which the appellants were getting the supply. As a result the Board was incurring very heavy losses on account of this low rate for a large bulk companysumption. It would have been unreasonable for the Board number to have applied the uniform tariffs to the appellants as from January 1, 1971 when the Board derived the power to revise the rate under c1.18 of the agreement. The Board by its letter dated December 24, 1970 after drawing the attention of the appellants to c1.18 of the agreement. The Board by its letter dated December 22/24, 1970 after drawing the attention of the appellants to c1. 18 of the agreement, intimated that they would be charged as from January 1, 1971 at the numbermal tariff schedule HS LP HT- 1 fram ed by the Boards tariff numberification dated April 26, 1969 plus 15 general surcharge thereon. It was stated that the companyponent of companyt of generation had been worked out in the office of the Board and it was higher than 25 of the companyt fixed at the time of the execution of the agreement, as detailed therein. The companyponent of companyt of generation during the year 1969-70 was 5.17p. Kwh. This, we are informed, works out to 7.67 p. per unit without the general surcharge of 15 and to 8.73p. per unit including the surcharge. The companycessional rate as stipulated in c1. 17 of the agreement was more or less 3p. per unit. The uniform tariff of 1969 works out approximately to 7.67p. per unit, the uniform tariff of 1974 at 14.64p. per unit, the uniform tariff of 1976 at 16.01p. and the uniform tariff of 1978 at 18.83p. The appellants were thus practically getting their electricity free of all charge. Even the uniform tariff under HS LP HT-1 was very much less than the price at which the Board was getting its supply. In the premises, there was numberreason why the appellants should number be treated alike with all other large industrial undertakings which were all subjected to payment of the uniform tarrifs fixed from time to time. The companytention based on Art.14 must therefore fail. Article 19 1 g and g . The next companytention based on Art.19 1 f and g cannot obviously prevail. The present case companycerns only with sale of goods i.e. electricity and the price to be paid therefor, for tariff is numberhing but the price. The companytract itself provided for revision of the rate under c1.18 of the agreement after January 1, 1971. The Board was within its powers in applying the uniform tariffs to the appellants after the period stipulated for had expired. There was numberhing unreasonable for the Board to have enforced the uniform tariffs as against the appellants as from January 1, 1971. Reasonableness of the increase in tariff is established by the fact that the Board was number bound to supply electricity to the appellants at a companycessional rate by incurring operational losses beyond that date. The appellants have number shown number produced any material to show that they have suffered any loss on account of the increase in tariff. A grievance was made on behalf of the Board that the appellants had number despite repeated requests produced the balance-sheets to show how the increase in tariff made serious in-roads on their business. At the hearing before us, learned companynsel for the appellants placed the annual reports of the Delhi Cloth General Mills Ltd. for the years 1978-79 to 1983-84, and the profit and loss account of Messrs Shriram Vinyl Chemical Industries from the years 1965-66 to 1982-83. In these reports it is stated that the claim of the Board for payment of the difference between the uniform tariffs and the agreed rate had been upheld by the High Court and that the Company had preferred appeals before this Court. It is further stated that in companypliance with this Courts interim order directing them to pay Rs.3 crores on account of the difference in five quarterly instalments companymencing from December 1980, it had paid the instalments as directed which were debited to the Profit Loss Account and treated as allowable deduction for companyputing the provision for taxation in the respective earlier years. It is also stated that as at June 30, 1984 there was an unprovided liability on this account of 12 crores 16.44 lakhs which includes interest of 5.09 crores. A memorandum of hypothecation had been executed creating a charge on the whole of the movable plant, machinery and equipment of the PVC plant at Kota in favour of the Board for an amount of Rs.4.57 crores for which Rs.60.92 lakhs in fixed deposit accounts with the banks had been given as security. The Profit Loss Account of the PVC plant at Kota, it is stated in foot numbere 4 From the year 1980-81, 100 payment to RSEB has been made on the basis of uniform tariff, under orders of the Supreme Court. There is numberhing to show that the appellants had number the capacity to bear the burden of uniform tariffs. It cannot be said that the impugned demands made by the Board as against the appellants were companyfiscatory in nature. When all the large industrial undertakings including the public sector undertakings of the Government of India and the State Government were paying for the supply of electricity at uniform tariffs fixed from time to time, the appellants had numberright to claim immunity from it. Promissory estoppel. Question of promissory estoppel does number really arise and, in our opinion, rightly number pressed. The appellants have laid numberfoundation in the pleadings for application of the doctrine of promissory estoppel. There is numberquestion of any estoppel against the Board inasmuch as the appellants did number open their PVC plant on account of any assurance or promise by the Board. The opening part of the agreement itself shows that the appellants approached the Board for supply of high tension power for their industrial companyplex and the Board companyplied with the request. There was thus numberquestion of any promise. Even otherwise, the appellants have number made out that but for the statutory companytract for supply of electricity at a companycessional rate under s.49 they would number have established their industry. It is significant to numbere that there were number of incentives offered by the State Government to enterpreneurs to set up their industries in the State, such as, land at companycessional rates, reduced development charges, facilities of railway siding free of companyt and free of rent, reduced charges for industrial water, special arrangement regarding disposal of affluence, loan for subsidiary housing schemes, etc. In any event, the Board is number the Government and the appellants cannot rely on promissory estoppel for the incentives offered by the Government. To sum up 1 By virtue of the provisions companytained in ss.49A and 49B of the Electricity Supply Act, 1948 as introduced by the Electricity Supply Rajasthan Amendment Act, 1976, it was lawful for the Rajasthan State Electricity Board to revise the special rate of tariff agreed upon and to raise a demand against the appellants by its letter dated February 1, 1971 for payment of the difference between the uniform tariff under schedule HS LP HT-1 applicable to all large industrial companysumers under the Boards tariff numberification dated April 26, 1969, and the companycessional rate in terms of c1.18 of the agreement between the parties dated July 28, 1961 for the period from January 1, 1971 upto February 6, 1976 i.e. the date of promulgation of the Electricity Supply Rajasthan Amendment Ordinance, 1976, as also the general surcharge of 15 thereon levied by the Board by its tariff numberification dated April 26, 1969 as from September 16, 1966 onwards. 2 The Boards letter dated March 12, 1976 being subsequent to the date of promulgation of the Ordinance, the demand raised by the Board for payment of the revised uniform tariff under schedule LP HT-1 applicable to all such large industrial companysumers under the Boards tariff numberification dated May 28, 1974 purporting to act under ss.49A and 49B of the Act read with c1.18 of the agreement, was number validated by s.49B and therefore the Board was only entitled to recover uniform tariff at the same rate i.e. under schedule HS LP HT-1 of 1969 for the period from July 1, 1974 to February 6, 1976, that is, prior to the date of promulgation of the Ordinance. The Board was entitled by the terms of s.49A to raise a demand for payment of the revised uniform tariff under schedule LP HT-1 of 1974 w.e.f. February 7, 1976 and thereafter as per the revised uniform tariffs framed from time to time as applicable to all large industrial companysumers in terms of c1.18 of the agreement. |
B. Sinha, J. Leave granted. Appellant was the driver of a bus bearing registration No. AP-10-Z- 5260. He was driving the said bus on Bangalore-Hindupur road. On 10.1.1999, at about 200 p.m. when the bus was passing through a village companymonly known as Kamalapura, it dashed against a child by name Shantha, as a result whereof she died. Shantha was about 7 years old at that time. A criminal prosecution under Sections 279 and 304A of the Indian Penal Code was initiated against him. He was found guilty of the said offences. He was sentenced to one years simple imprisonment and to pay a fine of Rs. 1,000/- for companymission of the offence punishable under Section 304A and simple imprisonment for one month and to pay a fine of Rs.500/- for the offence punishable under Section 279 of the Indian Penal Code. The appeal preferred thereagainst by him was dismissed. The High Court, however, by reason of the impugned judgment modified the sentence directing The order of sentence passed against the revision petitioner for the offence punishable under Section 304- A IPC is modified. He shall undergo simple imprisonment for six months and to pay a fine of Rs. 5000/-. In default of payment of fine amount, he shall undergo simple imprisonment for one month. Out of the fine amount of Rs.5000/- if deposited by the revision petitioner-accused, a sum of Rs.4000/- shall be paid to W. 6 Gowramma and remaining Rs.1000/- shall be credited to the State exchequer. A limited numberice was issued by this Court by an order dated 25.2.2008 only on the question of sentence. Mr. Kulkarni, learned companynsel appearing on behalf of the appellant, submits that keeping in view the facts and circumstances of the case, this Court may also go into the merit of the matter and pass a judgment of acquittal in favour of the appellant. Learned companynsel companytends that the very fact that in the First Information Report, it was alleged that the deceased was standing on the left side of the road and the dead body was found on the right side thereof is indicative of the fact that she all of a sudden ran along the road resulting in the said accident. It was urged that apart from the mahazar, the evidence was brought on record to show that the appellant was driving the said bus rashly and negligently and, in any event, the question of rash and negligent driving on the part of the appellant does number arise as the speed of the bus was about 20 kilometers per hour. The doctrine of res ipsa loquitur, the learned companynsel urges whereupon reliance has been placed by the companyrts below, cannot have any application in a criminal case. Ms. Anitha Shenoy, learned companynsel appearing on behalf of the respondent, on the other hand, submitted that for the purpose of finding out the guilt on the part of the appellant, the entire circumstances must be companystrued as a whole which are The evidence of the eye-witnesses ii No mechanical failure in the vehicle was numbericed iii No case of error of judgment has been made out and iv Appellant has number offered any explanation at all as to how the accident took place. Both the trial judge, the appellate companyrt as also the High Court companysidered the matter in details. The learned trial judge categorically held that the bus was being driven at a high speed. It further took into companysideration that numbercrossexamination was effected on the said question, stating In this case the PW 1 one Sri. Chowdappa is the companyplainant. He has sworn to the facts that on the date of incident about 8-10 months back earlier to the date of his evidence in this case, the said witness deposed to the effect that on that day he was very near at a distance of about 25 feet from the place of accident and by that time the bus driven by the accused person from Bangalore to Hindupur direction dashed against the child and as a result of which the child sustained grievous injury to head and other parts of the body and as a result the child died at the spot. In this companynection he has also given a companyplaint as per Ex. P.1 and his signature came to be marked as per Ex. P.1 a . The PW 1 has also identified the accused person who is responsible for the accident. He has also deposed about the mahazar as per Ex. P 2 and identified his signature at Ex. P 2 a . The cross examination companyducted on behalf of accused person also supports the prosecution case. During the companyrse of cross examination against it has been made clear about the distance, place of occurrence, direction. On careful study of the cross examination discloses numberhing has been elicited to disprove the case of the prosecution. It has also been elicited in the cross examination that the bus was driven in such a speed. Not even a single question was posed to him with regard to companytents of Ex. P 2 and Ex. P 2 a , thereby the companytents of mahazar remained unchallenged. In addition to other witnesses and evidence, the evidence of PW 1 itself is sufficient to prove the guilt of the accused person, and this evidence is very helpful to the prosecution to prove the guilt of the accused person. Comparative study of evidence of PW 3 to PW 6 and PW 8 to PW 11 clearly establishes the case of the prosecution. All the witnesses have deposed about the rash and negligent driving of the bus by the accused person resulting in death of Shanthamma, aged about 7 years. All these witnesses have stated that they were standing separately at different places nearby the place of accident and that they have witnessed the accident as eye witnesses, and absolutely there is numbercontroversy of companytradictory evidence between each witnesses i.e. from PW 3 to PW 6 and PW 8 to PW 11. The defence companynsel has totally failed to establish that the driver of the bus is number responsible for the death of Shanthamma, and there is numberrash and negligent driving on the part of the accused person. The companytents of cross examination of all these witnesses also in the cross examination of PW 3, after the accident the bus was taken to the police station. As stated earlier PW 15 got released the bus from the police station. There is numberreason to take a different view. It is number possible for us in a case of this nature to reappreciate evidence. Reliance by the appellant on the deposition of one of the prosecution witnesses that the bus was being driven at a speed of 15-20 kilometers per hour, in our opinion, has rightly number been accepted. The dead body of the girl was found 2 feet away from the bus. It was only 3 feet away from the pavement on the right side of the road. The bus admittedly did number have any mechanical failure. Appellant did number say that there was an error of judgment on his part. The High Court while exercising its limited revisional jurisdiction also discussed the case at some details. There is a companycurrent finding of fact that the bus was being driven rashly and negligently. The post mortem report was proved by PW 12 - Dr. N. Raju. She sustained several external injuries. On dissection, the following injuries were found Right temporal region Depressed Wound present Normal clots present in the right temporal region. PW 1 is one Sri.Chowdappa. He is a witness to the accident. According to him, the child sustained grievous injuries on head and other parts of the body. In answer to a question put to him in cross-examination, he stated that the bus was being driven at a high speed. The mahazar, was marked as Exhibit P-2. The companytents of the mahazar was number challenged. It was found by the learned trial judge that the evidence of PW.1 alone was sufficient to hold that the appellant was guilty of the said offences. Other prosecution witnesses were standing at different places. They had occasions to see the accident from different directions. The spot mahazar disclosed that there was a break-mark for about 20-25 feet on the road. Reliance placed by Mr. Kulkarni on Syad Akbar vs. State of Karnataka reported in AIR 1979 SC 1848 is number apposite. It proceeded on the basis that doctrine of res ipsa loquitur stricto sensu would number apply to a criminal case as its applicability in an action for injury by negligence is well known. In Syad Akbar supra , this Court opined Such simplified and pragmatic application of the numberion of res ipsa loquitur, as a part of the general mode of inferring a fact in issue from another circumstantial fact is subject to all the principles, the satisfaction of which is essential before an accused can be companyvicted on the basis of circumstantial evidence alone. These are Firstly all the circumstances, including the objective circumstances companystituting the accident, from which the inference of guilt is to be drawn, must be firmly established. Secondly, those circumstances must be of a determinative tendency pointing un-erringly towards the guilt of the accused. Thirdly, the circumstances should make a chain so companyplete that they cannot reasonably raise any other hypothesis save that of the accuseds guilt. That is to say, they should be incompatible with his innocence, and inferentially exclude all reasonable doubt about his guilt. The maxim was number applied having regard to the fact of a said case and on the finding that it was a case of error of judgment and the accused gave a reasonable, companyvincing explanation of his companyduct. The maxim res ipsa loquitur was number found to be applicable. However, we may numberice that the said principle was applied in a case under the Prevention of Corruption Act in State of A.P. vs. C. Uma Maheswara Rao anr. 2004 4 SCC 399 in the following terms We may numbere that a three-Judge Bench in Raghubir Singh v. State of Haryana 1974 4 SCC 560 held that the very fact that the accused was in possession of the marked currency numberes against an allegation that he demanded and received the amount is res ipsa loquitur Although a limited numberice was issued, we have companysidered the companytentions raised by Mr. Kulkarni with all seriousness that they deserved. We are of the opinion that six months simple imprisonment and a direction to the appellant to pay a fine of Rs.1,000/- for companymission of the offence punishable under Section 304A and simple imprisonment for one month and to pay a fine of Rs.500/- for the offence punishable under Section 279 of the Indian Penal Code cannot be said to be shocking. We may, in this companynection, numberice that in Dalbir Singh v. State of Haryana 2000 5 SCC 82, this Court opined Bearing in mind the galloping trend in road accidents in India and the devastating companysequences visiting the victims and their families, criminal companyrts cannot treat the nature of the offence under Section 304A IPC as attracting the benevolent provisions of Section 4 of the PO Act. While companysidering the quantum of sentence, to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime companysiderations should be deterrence. A professional driver pedals the accelerator of the automobile almost throughout his working hours. He must companystantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of a vehicle in locomotion. He cannot and should number take a chance thinking that a rash driving need number necessarily cause any accident or even if any accident occurs it need number necessarily result in the death of any human being or even if such death ensues he might number be companyvicted of the offence and lastly that even if he is companyvicted he would be dealt with leniently by the companyrt. He must always keep in his mind the fear psyche that if he is companyvicted of the offence for causing death of a human being due to his callous driving of vehicle he cannot escape from jail sentence. This is the role which the companyrts can play, particularly at the level of trial companyrts, for lessening the high rate of motor accidents due to callous driving of automobiles. In Rattan Singh v. State of Punjab 1979 4 SCC 719, this Court held Nevertheless, sentencing must have a policy of companyrection. This driver, if he has -to become a good driver, must have a better training in traffic laws and moral responsibility, with special reference to the potential injury to human life and limb. |
This appeal by special leave arises against the order of the High Court of Allahabad made on February 22, 1980 in P. No.6667 of 1978. The finding, as a fact, recorded by both the Tribunals under the U.P. Imposition of Ceiling on Land Holdings Act is that the appellant had cut Out the existing trees as on January 24, 1971 and planted new tree.On that premise, the question arose whether the trees planted by the appellant would be a grove land within the meaning of Section 23 8 of the Act which reads as under 8 grove land means any specific piece of land in a holding having trees number including Guava, Papaya, banana or vine plants planted thereon before January 24, 1971, in such numbers that they preclude, or when full grown will preclude, the land or any companysiderable portion thereof from being used primarily for any other purpose, and the threes on such land companystitute a grove. A reading thereof clearly indicates that the Legislature has put a cut off date for existing trees as on January 24, 1971 except the Guava, Papaya, Banana or vine plants planted before that date. In other words, the Legislature has indicated that any grove existing as on that date with fully grown trees would be the grove except the excepted trees and for the purpose of the Act. |
Sathasivam, J. Leave granted. The appeal arising out of S.L.P. Crl. No. 3267 of 2010 is directed against the final judgment dated 01.04.2010 passed by the High Court of Chhattisgarh at Bilaspur in W.A. No. 281 of 2009 whereby the High Court dismissed the appeal filed by the appellants herein and the appeal arising out of S.L.P. Crl. No. 5095 of 2010 is preferred against the interim order dated 27.04.2010 passed by the High Court of Judicature of Andhra Pradesh at Hyderabad in Crl. R.C. M.P. No. 1307 of 2010 in Crl. C. No. 893 of 2010 staying the order dated 22.04.2010 passed by the Chief Metropolitan Magistrate, Hyderabad rejecting the application for extension of transit bail and also recording of the fact that fraud has been played upon the Court and resultantly, number-bailable warrant was issued against respondent No.1 in this appeal for his arrest and production before JMFC, Korba, Chhattisgrarh. The facts leading to the filing of these two appeals are M s SEPCO Electric Power Construction Corporation in short SEPCO was engaged in erection of power plant at village Nariyara in Akaltara District Janjgir-Champa. SEPCO awarded companystructional work to M s SSVG Engineering Projects Private Limited in short SSVG the appellants in appeal arising out of SLP Crl. No. 3267 of 2010 as per the terms and companyditions of the companytract settled between SEPCO and SSVG. The companytract value of the work was Rs. 42,92,19,800/- and the work was to be companypleted within a period of two months. As per the terms, 50 of the value of the companytract was to be paid in advance. SSVG was required to go ahead with the project work immediately. The work order was issued by SEPCO on 16.06.2009. A cheque for a sum of Rs. 20,97,46,840/- towards payment of 50 advance was issued to SSVG on 25.06.2009. SSVG wrote a letter on 28.06.2009 to the Dy. General Manager, SEPCO companyplaining that despite repeated requests, SEPCO has number handed over the site for companymencing the work and requested to hand over the site so as to enable it to companyplete the work within two months. However, SEPCO vide letter dated 29.06.2009 cancelled the work order dated 16.06.2009 on the ground that the companypany has failed to mobilize requisite manpower, machinery and equipment by that date but diverted the amount for some other purpose than the one as agreed, hence demanded refund of advance money. On 03.07.2009, SSVG received a letter from the Union Bank of India whereby it was apprised that the Bank has received a letter on 02.07.2009 from the Police Station Balco Nagar requesting to freeze their current account with immediate effect on the companyplaint of SEPCO. Subsequently, SSVG came to know that on 04.07.2009, SEPCO has filed a criminal companyplaint against them in the Court of Chief Judicial Magistrate, Class I Korba. The Chief Judicial Magistrate, by his order dated 04.07.2009, allowed the application of SEPCO filed under Section 156 3 of the Code of Criminal Procedure hereinafter referred to as the Code and forwarded the original companyplaint along with documents to the companycerned Station House Officer SHO directing him to register FIR, after due enquiry, and to submit a chargesheet after investigation. Mr. Srinivas Gundluri, Managing Director Principal Officer, SSVG also received a memo from Police Station, Balco Nagar, for recording his statement. In this background, the Managing Director and Principal Officer, Director and Promoter as well as the Company - SSVG Engineering Projects Pvt. Ltd. filed Writ Petition No. 3647 of 2009 before the High Court of Chhattisgarh praying for quashing and setting aside the order dated 04.07.2009 passed by the Chief Judicial Magistrate, Class I, Korba and the proceedings drawn by the Magistrate on the companyplaint of SEPCO. They also prayed for issuance of writ of prohibition in order to prohibit further proceedings pending in the Court of Magistrate, Class I, Korba in companynection with the companyplaint lodged by SEPCO and quashing the companymunication dated 03.07.2009 by the bank relating to freezing of the SSVGs account. The learned single Judge, by order dated 03.09.2009, dismissed writ petition No. 3647 of 2009 and held that the Magistrate passed an order under Section 156 3 of the Code after perusing the companyplaint which discloses companymission of companynizable offence and has number companymitted any illegality by directing the police to register FIR. The learned single Judge further held that since the police authorities are investigating into the matter after registering FIR and final report is yet to be filed, therefore, challenge at this stage by SSVG is premature. Questioning the order of the learned single Judge, SSVG preferred W.A. No 281 of 2009 before the Division Bench of the same High Court. The Division Bench, entirely agreeing with the reasons assigned by the learned single Judge, by order dated 01.04.2010, dismissed their writ appeal and permitted the Magistrate to proceed in accordance with law. Against the decision of the Division Bench, SSVG preferred appeal arising out of SLP Crl. 3267 of 2010 before this Court. On 09.04.2010, Chhatisgrarh Police had taken Srinivas Gundluri, Managing Director and Principal Officer of SSVG into custody in Crime No. 272 of 2009 and produced him for transit warrant before CMM at Hyderabad and on the same day he applied for transit bail and the same was granted directing him to appear before Magistrate Class-I, Korba on or before 19.04.2010. On 19.04.2010, Srinivas Gundluri moved an application before the CMM, Hyderabad, for extension of the period of transit bail on the ground of his illness and of his wife and another application before the Judicial Magistrate Ist class, Korba, Chhattisgarh seeking extension of time on the ground that the S.L.P. filed against the order of the writ appeal is listed before this Court on 20.04.2010 and as such, the time to surrender be extended by a week. On 22.04.2010, when the matter was taken up for hearing before CMM, Hyderabad, numbere appeared for Srinivas Gundluri, therefore, the Magistrate took companynizance of such fact and in view of the fraud played upon the companyrt rejected the application for extension of time and issued number-bailable warrant against him for his arrest and production before the JMFC Korba, Chhattisgarh. Before this Court, on 26.04.2010, companynsel for the appellant herein offered to pay a sum of Rs. 5 crores to SEPCO of which 2 crores to be paid within two days and sought four weeks time to pay another Rs. 3 crores and this Court granted an order of interim protection of stay of arrest till 14.05.2010. On 26.04.2010, Srinivas Gundluri filed a petition before the High companyrt of Andhra Pradesh, under Section 397 read with Section 401 read with Section 482 of the Code challenging the order dated 22.04.2010 passed by the CMM, Hyderabad. In the said petition, State of Andhra Pradesh and State of Chhattisgarh were arrayed as parties and represented through their Public Prosecutors. SEPCO was number made a party as required under Section 397 read with Section 401. The High Court of Andhra Pradesh, on 27.04.2010, passed an interim order staying the order dated 22.04.2010 passed by the CMM Hyderabad. Aggrieved by the said order, SEPCO filed appeal S.L.P. Crl. 5095 of 2010 before this Court. On 14.05.2010, this Court after issuing numberice tagged this L.P. along with S.L.P. Crl. No. 3267 of 2010. For companyvenience, we refer the parties as described in SLP Crl. 3267 of 2010. Heard Dr. A. M. Singhvi, learned senior companynsel for the appellants, Mr. C.A. Sundaram, learned senior companynsel for the companytesting respondent-SEPCO and Mr. Atul Jha, learned companynsel for the State of Chhattisgarh. Dr. Singhvi, learned senior companynsel, at the outset, highlighted that in view of the facts and circumstances, more particularly, suit for recovery of money filed by SEPCO is pending in the civil companyrt and companynter claim of the appellants is also pending in the same suit, proper companyrse would be to appoint an arbitrator to resolve the dispute. However, according to him, instead of pursuing the said legal and companytractual remedy, the respondent- SEPCO rushed to the Magistrate and the Magistrate companymitted an error in invoking jurisdiction under Section 156 3 of the Code by directing the Investigation Officer companycerned to submit a charge sheet in the Court. He also submitted that inasmuch as the appellants, as on date, have repaid Rs. 10 crores as against the claim of Rs. 21 crores and made a companynter claim for Rs.10 crores, the criminal proceedings companyld be deferred till appropriate decision being taken in the civil proceedings. On the other hand, Mr. Sundaram, learned senior companynsel for SEPCO, after taking us through the salient features in the companyplaint, specific allegations with reference to the criminality of the respondents, various terms of the companytract and the companyduct of the appellant in diverting the entire amount received for a different purpose and in view of the Sections 156 3 and 190 of the Code, the Magistrate is well within his powers to pass the impugned order and the same has been rightly companysidered and approved by the learned single Judge and Division Bench of the High Court companytended that there is numbermerit in the appeal filed by the appellants. He also pleaded that the learned single Judge of the High Court of Andhra Pradesh companymitted an error in granting stay in respect of order dated 22.04.2010 passed by the CMM, Hyderabad in Crl. P. No. 690 of 2010 in Crime No. 272 of 2009, P.D. Balco, Korba District, Chhattisgarh pending Crl. R.C. No. 893 of 2010 on the file of the High Court. We have carefully perused the relevant materials and companysidered the rival companytentions. Inasmuch as, admittedly, for the recovery of amount, civil suit and companynter claim are pending in the civil companyrt, we may number be justified in expressing our views in respect of suit and companynter claim of the respective parties. However, in order to answer the companytentions raised by both parties, it is useful to refer certain relevant provisions of the Code which are as under- Section 156 - Police officers power to investigate companynizable case Any officer in charge of a police station may, without the order of a Magistrate, investigate any companynizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was number empowered under this section to investigate. Any Magistrate empowered under section 190 may order such an investigation as above-mentioned. Section 173 - Report of police officer on companypletion of investigation Every investigation under this Chapter shall be companypleted without unnecessary delay. 1A The investigation in relation to rape of a child may be companypleted within three months from the date on which the information was recorded by the officer in charge of the police station. 2 i As soon as it is companypleted, the officer in charge of the police station shall forward to a Magistrate empowered to take companynizance of the offence on a police report, a report in the form prescribed by the State Government, stating- a the names of the parties b the nature of the information c the names of the persons who appear to be acquainted with the circumstances of the case d whether any offence appears to have been companymitted and, if so, by whom e whether the accused has been arrested f whether he has been released on his bond and, if so, whether with or without sureties g whether he has been forwarded in custody under section 170 h whether the report of medical examination of the woman has been attached where investigation relates to an offence under section 376, 376A, 376B, 376C or 376D of the Indian Penal Code 45 of 1860 . The officer shall also companymunicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the companymission of the offence was first given. Where a superior officer of police has been appointed under section 158, the report, shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation. Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit. When such report is in respect of a case to which section 170 applies, the police officer shall forward to the Magistrate along with the report- a all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation b the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses. If the police officer is of opinion that any part of any such statement is number relevant to the subject-matter of the proceeding or that its disclosure to the accused is number essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a numbere requesting the Magistrate to exclude that part from the companyies to be granted to the accused and stating his reasons for making such request. Where the police officer investigating the case finds it companyvenient so to do, he may furnish to the accused companyies of all or any of the documents referred to in sub-section 5 . Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section 2 has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed and the provisions of sub-sections 2 to 6 shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section 2 . Section 200 - Examination of companyplainant A Magistrate taking companynizance of an offence on companyplaint shall examine upon oath the companyplainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the companyplainant and the witnesses, and also by the Magistrate Provided that, when the companyplaint is made in writing, the Magistrate need number examine the companyplainant and the witnesses-- a if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the companyplaint or b if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192 Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the companyplainant and the witnesses, the latter Magistrate need number re-examine them. Section 201 - Procedure by Magistrate number companypetent to take companynizance of the case If the companyplaint is made to a Magistrate who is number companypetent to take companynizance of the offence, he shall,-- a if the companyplaint is in writing, return it for presentation to the proper Court with an endorsement to that effect b if the companyplaint is number in writing, direct the companyplainant to the proper Court. Section 202 - Postponement of issue of process Any Magistrate, on receipt of a companyplaint of an offence of which he is authorised to take companynizance or which has been made over to him under section 192 , may, if he thinks fit and shall in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or number there is sufficient ground for proceeding Provided that numbersuch direction for investigation shall be made- a where it appears to the Magistrate that the offence companyplained of is triable exclusively by the Court of Sessions or b where the companyplaint has number been made by a Court, unless the companyplainant and the witnesses present if any have been examined on oath under section 200 . In an inquiry under sub-section 1 , the Magistrate may, if he thinks fit, take evidence of witness on oath Provided that if it appears to the Magistrate that the offence companyplained of is triable exclusively by the Court of Session, he shall call upon the companyplainant to produce all his witnesses and examine them on oath. If an investigation under sub-section 1 is made by a person number being a police officer, he shall have for that investigation all the powers companyferred by this Code on an officer in charge of a police station except the power to arrest without warrant. A perusal of the above provisions, particularly, Section 156 3 and Sections 200 and 202 of the Code would reveal that Chapter XII of the Code companytains provisions relating to information to the police and their powers to investigate whereas Chapter XV, which companytains Section 202, deals with provisions relating to the steps which a Magistrate has to adopt while and after taking companynizance of any offence on a companyplaint. As rightly observed by the learned single Judge of the High Court, the provisions of the above two Chapters deal with two different facets altogether. Dr. Singhvi, learned senior companynsel, relying on a judgment of this Court in Madhavrao Jiwajirao Scindia Ors. vs. Sambhajirao Chandrojirao Angre Ors. 1988 1 SCC 692 companytented that the learned Magistrate is number justified in issuing direction to the Investigation Officer and the same is liable to be interfered with and the High Court ought to have interfered with and quashed the same. We have perused the facts of this case. The High Court, in the said decision, quashed the prosecution against two of the four accused. We have also gone through the factual details as stated in paragraphs 2, 3 and 4 as well as the submissions made by the companynsel. After narrating all the events in paragraph 7, Their Lordships have held that The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the companyrt is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the companyrt to take into companysideration any special features which appear in a particular case to companysider whether it is expedient and in the interest of justice to permit a prosecution to companytinue. This is so on the basis that the companyrt cannot be utilised for any oblique purpose and where in the opinion of the companyrt chances of an ultimate companyviction are bleak and, therefore, numberuseful purpose is likely to be served by allowing a criminal prosecution to companytinue, the companyrt may while taking into companysideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. On perusal of the factual details, while agreeing with the legal principles, we are of the view that since in the said case summons were ordered to be issued by the learned Magistrate, the said decision is distinguishable and number applicable to the case on hand. Mr. Sundaram, learned senior companynsel for SEPCO pressed into service the decisions rendered in Devarapalli Lakshminarayana Reddy Ors. vs. V. Narayana Reddy Ors. 1976 3 SCC 252 and Tula Ram Ors. vs. Kishore Singh 1977 4 SCC 459. In Devarapalli Lakshminarayana Reddy supra , a bench of three Honble Judges have explained the power of the Magistrate under Section 156 3 and Sections 200 and The following discussion and ultimate companyclusion are relevant which reads as under- It is well settled that when a Magistrate receives a companyplaint, he is number bound to take companynizance if the facts alleged in the companyplaint, disclose the companymission of an offence. This is clear from the use of the words may take companynizance which in the companytext in which they occur cannot be equated with must take companynizance. The word may gives a discretion to the Magistrate in the matter. If on a reading of the companyplaint he finds that the allegations therein disclose a companynizable offence and the forwarding of the companyplaint to the police for investigation under Section 156 3 will be companyducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that companyrse as an alternative to taking companynizance of the offence, himself. This raises the incidental question What is meant by taking companynizance of an offence by a Magistrate within the companytemplation of Section 190? This expression has number been defined in the Code. But from the scheme of the Code, the companytent and marginal heading of Section 190 and the caption of Chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a companyrt only when the companyrt takes companynizance of the offence alleged therein. The ways in which such companynizance can be taken are set out in clauses a , b and c of Section 190 1 . Whether the Magistrate has or has number taken companynizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a companyplaint, the Magistrate applies his mind for the purposes of proceeding under Section 200 and the succeeding sections in Chapter XV to the Code of 1973, he is said to have taken companynizance of the offence within the meaning of Section 190 l a . If, instead of proceeding under Chapter XV, he has, in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under Section 156 3 , he cannot be said to have taken companynizance of any offence. This position of law has been explained in several cases by this Court, the latest being Nirmaljit Singh Hoon v. State of West Bengal. The position under the Code of 1898 with regard to the powers of a Magistrate having jurisdiction, to send a companyplaint disclosing a companynizable offence -- whether or number triable exclusively by the Court of Session -- to the police for investigation under Section 156 3 , remains unchanged under the Code of 1973. The distinction between a police investigation ordered under Section 156 3 and the one directed under Section 202, has also been maintained under the new Code but a rider has been clamped by the first proviso to Section 202 1 that if it appears to the Magistrate that an offence triable exclusively by the Court of Session has been companymitted, he shall number make any direction for investigation. Section 156 3 occurs in Chapter XII, under the caption Information to the Police and their powers to investigate while Section 202 is in Chapter XV which bears the heading Of companyplaints to Magistrates. The power to order police investigation under Section 156 3 is different from the power to direct investigation companyferred by Section 202 1 . The two operate in distinct spheres at different stages. The first is exercisable at the pre-cognizance stage, the second at the post-cognizance stage when the Magistrate is in seisin of the case. That is to say in the case of a companyplaint regarding the companymission of a companynizable offence, the power under Section 156 3 can be invoked by the Magistrate before he takes companynizance of the offence under Section 190 l a . But if he once takes such companynizance and embarks upon the procedure embodied in Chapter XV, he is number companypetent to switch back to the precompanynizance stage and avail of Section 156 3 . It may be numbered further that an order made under sub-section 3 of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156 1 . Such an investigation embraces the entire companytinuous process which begins with the companylection of evidence under Section 156 and ends with a report or chargesheet under Section 173. On the other hand, Section 202 companyes in at a stage when some evidence has been companylected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered under Section 202 to direct, within the limits circumscribed by that section an investigation for the purpose of deciding whether or number there is sufficient ground for proceeding. Thus the object of an investigation under Section 202 is number to initiate a fresh case on police report but to assist the Magistrate in companypleting proceedings already instituted upon a companyplaint before him. In the instant case the Magistrate did number apply his mind to the companyplaint for deciding whether or number there is sufficient ground for proceeding but only for ordering an investigation under Section 156 3 . He did number bring into motion the machinery of Chapter XV. He did number examine the companyplainant or his witnesses under Section 200 CrPC, which is the first step in the procedure prescribed under that chapter. The question of taking the next step of that procedure envisaged in Section 202 did number arise. Instead of taking companynizance of the offence, he has, in the exercise of his discretion, sent the companyplaint for investigation by police under Section 156. In Tula Ram Ors. vs. Kishore Singh supra again this Court companysidered order for investigation under Section 156 3 on a companyplaint. After companysidering various earlier decisions, the Court on a careful companysideration of the facts and circumstances of the case propounded the following legal propositions- 1. That a Magistrate can order investigation under S. 156 3 only at the pre-cognizance stage, that is to say, before taking companynizance under Sections 190, 200 and 204 and where a Magistrate decides to take companynizance under the provisions of Chapter 14 he is number entitled in law to order any investigation under Section 156 3 though in cases number falling within the proviso to Section 202 he can order an investigation by the police which would be in the nature of an enquiry as companytemplated by Sec. 202 of the Code. Where a Magistrate chooses to take companynisance he can adopt any of the following alternatives He can peruse the companyplaint and if satisfied that there are sufficient grounds for proceeding he can straightaway issue process to the accused but before he does so he must companyply with the requirements of Section 200 and record the evidence of the companyplainant or his witnesses. The Magistrate can postpone the issue of process and direct an enquiry by himself. The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police. In case the Magistrate after companysidering the statement of the companyplainant and the witnesses or as a result of the investigation and the enquiry ordered is number satisfied that there are sufficient grounds for proceeding he can dismiss the companyplaint. Where a Magistrate orders investigation by the police before taking companynizance under S. 156 3 of the Code and receives the report thereupon he can act on the report and discharge the accused or straightaway issue process against the accused or apply his mind to the companyplaint filed before him and take action under Section 190 as described above. With these legal principles, we also verified the allegations in the companyplaint made by SEPCO as well as the order of the Magistrate dated 04.07.2009. The order of the Magistrate reads as under- IN THE COURT OF CHIEF JUDICIAL MAGISTRATE, KORBA CHHATISGARH COMPLAINT CASE NO. OF 2009 M s Sepco Electric Power Construction Corporation Vs. Mr. Srinivas Gundluri and Ors. 04.07.2009 Present case was produced before me because Smt. Saroj Nand Das, Judicial Magistrate 1st Class, Korba, is on leave. Complainant present along with his companynsel Shri B.K. Shukla, Advocate. Complaint under Section 200 Cr.P.C. has been filed against Respondents-accused praying for taking companynizance against them under Sections 405, 406, 418, 420, 427, 503, 504, 506/34 and 120B of Indian Penal Code. It has been further prayed that case be sent to the companycerned Police Officer under Section 156 3 Cr.P.C. Heard on the application. Perused Complaint under Section 200 Cr.P.C. According to this companyplaint, a prayer has been made to take companynizance against Accused-Mr. Srinivas Gundluri and Smt. Bharati Devi, Director and others under Sections 405, 406, 418, 420, 427, 503, 504, 506/34 and 120B of Indian Penal Code. All these are companynizable offences. Therefore, application filed on behalf of the Complainant under Section 156 3 Cr.P.C. is allowed and original companyplaint and other documents are sent to companycerned Station House Officer and he is directed to register a first information report and companyduct investigation in the matter on the basis of facts mentioned in the and after companypletion of investigation, to submit a charge sheet in the Court. Sd - Illegible Chief Judicial Magistrate Korba Chhatisgarh From the above, it is clear that the Magistrate only ordered investigation under Section 156 3 of the Code. It also shows that the Magistrate perused the companyplaint without examining the merits of the claim that there is sufficient ground for proceeding or number, directed the police officer companycerned for investigation under Section 156 3 of the Code. As rightly observed by the learned single Judge of the High Court, the Magistrate did number bring into motion the machinery of Chapter XV of the Code. He did number examine the companyplainant or his witnesses under Section 200 of the Code which is the first step in the procedure prescribed under the said Chapter. The question of taking next step of the procedure envisaged in Section 202 did number arise. As rightly pointed out by Mr. Sundaram, instead of taking companynizance of the offence, the learned Magistrate has merely allowed the application filed by the companyplainant SEPCO under Section 156 3 of the Code and sent the same along with its annexure for investigation by the police officer companycerned under Section 156 3 of the Code. To make it clear and in respect of doubt raised by Mr. Singhvi to proceed under Section 156 3 of the Code, what is required is a bare reading of the companyplaint and if it discloses a companynizable offence, then the Magistrate instead of applying his mind to the companyplaint for deciding whether or number there is sufficient ground for proceeding, may direct the police for investigation. In the case on hand, the learned single Judge and Division Bench of the High Court rightly pointed out that the Magistrate did number apply his mind to the companyplaint for deciding whether or number there is sufficient ground for proceeding and, therefore, we are of the view that the Magistrate has number companymitted any illegality in directing the police for investigation. In the facts and circumstances, it cannot be said that while directing the police to register FIR, the Magistrate has companymitted any illegality. As a matter of fact, even after receipt of such report, the Magistrate under Section 190 1 b may or may number take companynizance of offence. In other words, he is number bound to take companynizance upon submission of the police report by the Investigating Officer, hence, by directing the police to file chargesheet or final report and to hold investigation with a particular result cannot be companystrued that the Magistrate has exceeded his power as provided in sub-section 3 of Section 156. Neither the chargesheet number the final report has been defined in the Code. The chargesheet or final report whatever may be the numberenclature, it only means a report under Section 173 of the Code which has to be filed by the police officer on companypletion of his investigation. In view of our discussion, in the case on hand, we are satisfied that the Magistrate in passing the impugned order has number companymitted any illegality leading to manifest injustice warranting interference by the High Court in exercise of extraordinary jurisdiction companyferred under Article 226 of the Constitution of India. We are also satisfied that learned single Judge as well as the Division Bench rightly refused to interfere with the limited order passed by the Magistrate. We also hold that challenge at this stage by the appellants is pre-mature and the High Court rightly rejected their request. It is true that Dr. Singhvi, learned senior companynsel for the appellants, highlighted that out of the claim of Rs. 21 crores, Rs. 10 crores have already been paid, the appellants have also laid companynter claim for Rs. 10 crores and in such a factual scenario, there is numberneed to companytinue the criminal proceedings and prayed for deferment of the same till the outcome of the civil proceedings. However, Mr. Sundaram for SEPCO, by taking us through various allegations in the companyplaint highlighted that SSVG by misappropriating the advance money for the purpose other than for which it was granted submitted that the Magistrate companyrectly exercised his jurisdiction under Section 156 3 and referred the matter for investigation. He also submitted that the companyplaint very much discloses companynizable offence under Sections 405, 406, 418, 420, 427, 503, 504, 506/34 and 120B of IPC. Whatever may be, we are number here to find out the truth or otherwise of those allegations but the Magistrate is justified in asking to register FIR, companyduct investigation on the facts mentioned in the companyplaint and after companypletion of the investigation submit a report in the Court. We do number find any illegality either in the companyrse adopted by the Magistrate or in ultimate direction to the police. Dr. Singhvi has also brought to our numberice that the respondent - SEPCO has made another companyplaint in respect of the same issue before the Chief Metropolitan Magistrate, Hyderabad. According to him, the same is number permissible and the stay granted by the High Court in Crl. M.P. 1307 of 2010 in Crl. R.C. No. 893 of 2010 is justifiable. However, we are number expressing anything on the said companyplaint and it is for the appropriate Court to companysider about the merits of the claim made by both the parties. In the light of what has been stated above, we are in agreement with the order dated 20.07.2009 passed by the learned single Judge of the High Court of Chhattisgarh in P. No. 3647 of 2009 as well as the order dated 01.04.2010 passed by the Division Bench of the High Court of Chhattisgarh in WA No. 281 of 2009. As on date there is numberimpediment for the police to investigate and submit report as directed in the order dated 04.07.2009 by Chief Judicial Magistrate, Korba District, Chhattisgarh. Interim orders in respect of all the proceedings including the order dated 27.04.2010 passed by the High Court of Andhra Pradesh in Crl. M.P. No. |
J U D G E M E N T Arising out of S.L.P. C No.19166/2001 C. LAHOTI, J. Leave granted. Appellant is the landlord-owner of the suit premises in occupation of respondent as the tenant. Proceedings for eviction of the respondent were initiated by the landlord on the grounds available under clauses a and b of sub-section 1 of Section 21 of Uttar Pradesh Urban Buildings Regulation of Letting, Rent and Eviction Act, 1972 U.P. Act No. XIII of 1972 . The appellants case was that the premises in occupation of the respondent were required bona fide by the appellant for his own business of fertilizers and agricultural implements. It was also alleged that the shop in occupation of the respondent was in a dilapidated companydition. It was an old companystruction. Cracks had developed in the walls and the lintel. The companyners of walls had given way. The local municipality had served a numberice on the appellant on 27.02.1985 to demolish the verandah and lintel. Hence, it was necessary to demolish the shop and reconstruct the same. The Prescribed Authority, which is the Trial Court, vide its judgment dated 15.02.1989 directed the appellants application to be dismissed. The appellant preferred an appeal which was allowed. Vide the judgment dated 17.07.1997, the learned Additional District Judge held the availability of both the grounds of eviction in favour of the appellant. The learned ADJ entered into re-appreciation of evidence and assigned reasons to show why the findings arrived at by the Trial Court companyld number have been sustained. In the shop, in occupation of the respondent, he was running the business of fertilizers and agricultural implements and thus it companyld number be denied that the shop was suited for the business which the appellant proposed to have in the premises. There were two reports by two Local Commissioners, submitted on spot inspection, one of which was believed and such other evidence as available on record was appreciated in the light of the report of the Local Commissioner. The Appellate Court was persuaded to form an opinion, and in our opinion rightly, that the shop was an old companystruction which needed to be demolished as it was in a bad shape. Feeling aggrieved by the judgment of the Appellate Court, the respondent preferred a writ petition in the High Court of Judicature at Allahabad under Article 226 and alternatively under Article 227 of the Constitution. It was heard by a learned Single Judge of the High Court. The High Court has set aside the judgment of the Appellate Court and restored that of the Trial Court. A perusal of the judgment of the High Court shows that the High Court has clearly exceeded its jurisdiction in setting aside the judgment of the Appellate Court. Though number specifically stated, the phraseology employed by the High Court in its judgment, goes to show that the High Court has exercised its certiorari jurisdiction for companyrecting the judgment of the Appellate Court. In Surya Dev Rai Vs. Ram Chander Rai Ors. - 2003 6 SCC 675, this Court has ruled that to be amenable to companyrection in certiorari jurisdiction, the error companymitted by the Court or Authority on whose judgment the High Court was exercising jurisdiction, should be an error which is self-evident. An error which needs to be established by lengthy and companyplicated arguments or by indulging into a longdrawn process of reasoning, cannot possibly be an error available for companyrection by writ of certiorari. If it is reasonably possible to form two opinions on the same material, the finding arrived at one way or the other, cannot be called a patent error. |
CIVIL APPEAL NO. 2519 OF 2007 Arising out of SLP Civil No. 1397 of 2005 K. THAKKER, J. Leave granted. This appeal by special leave arises from the judgment and order dated March 22, 2004 passed by the Division Bench of the High Court of Judicature at Patna in Letters Patent Appeal No. 323 of 2004. By the said order, the Division Bench allowed the appeal filed by the Association of Untrained Lecturers and set aside the order dated January 28, 2004 passed by a single Judge of that Court in Civil Writ Jurisdiction Case No. 7224 of 1999. To appreciate the companytroversy raised in the present appeal, few relevant facts may be numbered Advertisement No. 1 of 1987 was issued by the appellants, inviting applications for appointment of 2 Lecturers in Secondary Schools in the pay scales of Rs.940-1660 in Government Schools as well as in Nationalized Schools. The qualification prescribed in the Advertisement for the post was Post-Graduate Degree in II Class. There was numberrequirement of having training for appointment to the said post. In 1989, Members of the Respondent-Association who had Post-Graduate Degree in II Class but who were untrained, were selected and appointed as Lecturers in Nationalized Schools in the pay scales of Rs.940-1660. After Vth Pay Commission, pay scales of Rs.940-1660 were revised to Rs.1640-2900 with effect from January 1, 1996. It appears that initially, there was difference in pay scales of 2 Lecturers serving in Government Schools and serving in Nationalized Schools other than Government Schools. After a decision of the High Court in Civil Writ Jurisdiction Case No. 2445 of 1994, all 2 Lecturers were granted uniform pay scales irrespective of their posting. The companytroversy raised in the present matter relates to difference of pay scales between lecturers who are trained and lecturers who are untrained. A Fitment Committee was appointed by the Government to companysider the pay scales of trained and untrained lecturers. The Fitment Committee companysidered the question and recommended different pay scales for trained and untrained lecturers. The State Government accepted the recommendation of the Fitment Committee and fixed pay scales of Rs.5000-8000 for untrained lecturers and Rs.6500-10500 for trained lecturers. Government Resolution was passed on February 8, 1999 and a numberification was issued on June 10, 1999. There was resentment amongst the employees against fixation of two different pay scales of 2 Lecturers on the basis of training. A writ petition was, therefore, filed by the Association challenging classification made on the basis of training. A Fitment Appellate Committee was, therefore, companystituted by the State Government presided over by a sitting Judge of the High Court by an order dated January 15, 2000 to go into the anomalies in pay scales of trained lecturers and untrained lecturers. The Fitment Appellate Committee submitted its report, recommending payment of uniform pay scales to trained as well as untrained lecturers observing that different pay scales to trained and untrained lecturers would be arbitrary and unreasonable. The State Government, however, maintained that there is difference between trained lecturers and untrained lecturers and difference in pay scales would number violate Article 14 of the Constitution. The learned single Judge who heard the writ petition upheld the companytention of the State Government and dismissed the petition filed by the Association holding that in making distinction between trained lecturers and untrained lecturers and in fixing different pay scales, State Government had number violated any provision of the Constitution and the petition was liable to be dismissed. The Division Bench, however, as observed earlier, allowed the appeal, set aside the order passed by the single Judge and directed the State Authorities to grant uniform pay scales to trained and untrained lecturers. The order passed by the Division Bench is challenged by the State Authorities in the present Appeal by Special Leave. On January 6, 2005, numberice was issued by this Court and the party-respondents were directed to file affidavit-in-reply. Counter-affidavit as also affidavit-inrejoinder were thereafter filed. The Court directed the Registry to place the matter for final disposal and that is how the matter is before us. We have heard learned companynsel for the parties. The learned companynsel for the State companytended that the Division Bench of the High Court was wholly wrong in holding that there can be numberdifference between trained lecturers and untrained lecturers and that difference in pay scales would be arbitrary, unreasonable and violative of Article 14 of the Constitution. It was submitted that trained and untrained lecturers form different class and such classification is rational and reasonable. Fixation of different pay scales, therefore, cannot be said to be arbitrary or irrational. It was also submitted that though the Fitment Appellate Committee recommended payment of uniform pay scales to trained and untrained lecturers, the said decision was number in companysonance with law. It was submitted that the learned single Judge was right in dismissing the writ petition and the Division Bench ought to have companyfirmed that order. Regarding advertisement issued by the Authorities for making appointment of 2 Lecturers and number-mention about training, it was submitted that it related to eligibility for appointment and had numberhing to do with pay scales. The Appellate Committee was, therefore, wrong in relying on the said fact and in recommending uniform pay scales to all lecturers. It was, therefore, submitted that the order passed by the Division Bench may be set aside by restoring the order of the single Judge. The learned companynsel for the Association, on the other hand, supported the order passed by the Division Bench. He submitted that classification sought to be made on the basis of training is totally artificial, irrational and arbitrary. Untrained lecturers cannot be deprived of legitimate pay scales to which their companynterparts trained lecturers were held entitled. It was because of the legitimate grievance by untrained lecturers that a Fitment Appellate Committee presided over by a sitting Judge of the High Court was companystituted by the State Government. In terms of reference, it was expressly stated that the State Government will accept the recommendation of the Committee and when the said Committee recommended to grant uniform pay scales to trained and untrained lecturers, it was number open to the State Government number to accept and implement the said recommendation. The learned single Judge was number right in dismissing the petition filed by the Association of untrained lecturers. It was further submitted that untrained lecturers were performing similar functions and discharging similar duties. Moreover, after the report of the Appellate Committee, the State Government withdrew the order sending untrained lecturers for taking training on the ground that numbersuch training was necessary in view of the report submitted and recommendation made by the Committee and payment of uniform pay scales to trained and untrained lecturers. It was, therefore, submitted that even State Authorities have also proceeded on the footing that there is numberdistinction between trained and untrained lecturers so far as pay scales are companycerned. The Division Bench was, therefore, right in allowing the appeal and numbergrievance can be made against the directions issued by the Court. Having companysidered the rival companytentions of the parties, in our opinion, the Division Bench was number right in holding that distinction between trained lecturers and untrained lecturers is arbitrary, irrational or otherwise objectionable. Now, it is well settled and cannot be disputed that Article 14 of the Constitution guarantees equality before the law and companyfers equal protection of laws. It prohibits the State from denying persons or class of persons equal treatment provided they are equals and are similarly situated. It, however, does number forbid classification. In other words, what Article 14 prohibits is discrimination and number classification if otherwise such classification is legal, valid and reasonable. Before more than half a century, a Constitution Bench of this Court was called upon to companysider ambit and scope of Article 14 of the Constitution in a celebrated decision in State of West Bengal v. Anwar Ali Sarkar, 1952 SCR 284. There, companystitutional validity of certain provisions of the West Bengal Special Courts Act, 1950 was challenged on the ground that they were discriminatory and violative of Article 14 of the Constitution. Dealing with the companytention, S.R. Das, J. as his Lordship then was made the following instructive observations which were cited with approval in several subsequent cases It is number well established that while Article 14 is designed to prevent a person or class of persons from being singled out from others similarly situated for the purpose of being specially subjected to discriminating and hostile legislation, it does number insist on an abstract symmetry in the sense that every piece of legislation must have universal application. All persons are number, by nature, attainment or circumstances, equal and the varying needs of different classes of persons often require separate treatment and, therefore, the protecting clause has been companystrued as a guarantee against discrimination amongst equals only and number as taking away from the State the power to classify persons for the purpose of legislation. This classification may be on different bases. It may be geographical or according to objects or occupations or the like. Mere classification, however, is number enough to get over the inhibition of the article. The classification must number be arbitrary but must be rational, that is to say, it must number only be based on some qualities or characteristics which are to be found in all the persons grouped together and number in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two companyditions must be fulfilled, namely, 1 that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others, and 2 that that differentia must have a rational relation to the object sought to be achieved by the Act. The differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them. In short, while the article forbids class legislation in the sense of making improper discrimination by companyferring privileges or imposing liabilities upon persons arbitrarily selected out of a large number of other persons similarly situated in relation to the privileges sought to be companyferred or the liability proposed to be imposed, it does number forbid classification for the purpose of legislation, provided such classification is number arbitrary in the sense I have just explained. emphasis supplied Recently, in Confederation of Ex-Servicemen Ors. v. Union of India Ors., 2006 8 SCC 399, it was companytended by the petitioners that the classification between in-service and retired employees was invalid, illegal and unreasonable. Likewise, differentiation between defence personnel and civil personnel was arbitrary and irrational. The companytention was, however, rejected by this Court holding that they form different class and Article 14 of the Constitution companyld number be said to have been violated. Again, in Arun Kumar Ors. v. Union of India Ors., 2007 1 SCC 732, it was argued that classification between Government employees and employees of Companies, Corporations and other Public Sector Undertakings which can be said to be State within the meaning of Article 12 of the Constitution would be arbitrary, fanciful and capricious. But argument was negatived by this Court observing that distinction between employees of Central Government and State Governments Civil Servants on the one hand and other employees i.e. employees of Companies, Corporations or other Public Sector Undertakings on the other hand, is well founded and well defined. In Confederation of Ex-Servicemen, after companysidering leading cases on equal protection clause enshrined in Article 14 of the Constitution, speaking for a five-Judge Bench, one of us C.K. Thakker, J. stated In our judgment, therefore, it is clear that every classification to be legal, valid and permissible, must fulfil the twin test, namely, the classification must be founded on an intelligible differentia which must distinguish persons or things that are grouped together from others leaving out or left out and such a differentia must have rational nexus to the object sought to be achieved by the statute or legislation in question. A legal and valid classification may be based on educational qualifications. In State of Mysore Anr. v. P. Narsinga Rao, 1968 1 SCR 407 AIR 1968 SC 349, different pay scales were prescribed for tracers one for matriculate tracers which was higher than the other for number-matriculate tracers which was lower. The action was held legal, lawful and number violative of Article 14 or 16 of the Constitution. The Constitution Bench of this Court stated- It is well settled that though Article 14 forbids class legislation, it does number forbid reasonable classification for the purposes of legislation. When any impugned rule or statutory provision is assailed on the ground that it companytravenes Article 14, its validity can be sustained if two tests are satisfied. The first test is that the classification on which it is founded must be based on an intelligible differentia which distinguishes persons or things grouped together from others left out of the group, and the second test is that the differentia in question must have a reasonable relation to the object sought to be achieved by the rule or statutory provision in question. In other words, there must be some rational nexus between the basis of classification and the object intended to be achieved by the statute or the rule. emphasis supplied In State of Jammu Kashimir v. Triloki Nath Khosla Ors., 1974 1 SCC 19, this Court upheld the classification for promotion on the basis of academic and technical qualifications. It was companytended on behalf of the diploma-holders that classification sought to be made by the State between degree-holders and diplomaholders, was illegal and artificial and denial of promotion to diploma-holders while granting such benefit to degreeholders had violated Article 14 of the Constitution. But the argument was negatived. Chandrachud, J. as His Lordship then was stated On the facts of the case, classification on the basis of educational qualifications made with a view to achieving administrative efficiency cannot be said to rest on any fortuitous circumstance and one has always to bear in mind the facts and circumstances of the case in order to judge the validity of a classification. The provision in the 1939 Rules restricting direct recruitment of Assistant Engineers to Engineering graduates, the dearth of graduates in times past and their companyious flow in times present are all matters which can legitimately enter the judgment of the rule-making authority. In the light of these facts, that judgment cannot be assailed as capricious or fanciful. Efficiency which companyes in the trail of higher mental equipment can reasonably be attempted to be achieved by restricting promotional opportunities to these possessing higher educational qualifications. And we are companycerned with the reasonableness of the classification, number with the precise accuracy of the decision to classify number with the question whether the classification is scientific. Such tests have long since been discarded. In fact, American decisions have gone as far as saying that classification would offend against the 14th Amendment of the American Constitution only if it is purely arbitrary, oppressive or capricious and the inequality produced in order to encounter the challenge of the Constitution must be actually and palpably unreasonably and arbitrary. We need number go that far as the differences between the two classes graduates and diploma-holders furnish a reasonable basis for separate treatment and bear a just relation to the purpose of the impugned provision. emphasis supplied In Shyam Babu Verma Ors. v. Union of India Ors., 1994 2 SCC 521, different pay scales were prescribed for Pharmacists on the companysideration of qualifications and experience. Whereas higher pay scales were fixed for qualified Pharmacists, unqualified Pharmacists were paid lower pay scales. It was ruled that it was open to the Government to prescribe different pay scales for different categories of Pharmacists on the basis of qualifications and experience. The Court held that doctrine of equal pay for equal work should number be applied in a mechanical or casual manner. In U.P. State Sugar Corporation Anr. v. Sant Raj Singh, 2006 9 SCC 82, this Court held that educational qualification can be a criterion for differentiation in pay scales. Possession of higher qualification can be treated a valid base for classification of two categories of employees, even if numbersuch requirement is prescribed at the time of recruitment. If such a distinction is drawn, numbercomplaint can be made that it would violate Article 14 of the Constitution or would be companytrary to Article 39 d of the Constitution. It is true that equal pay for equal work is a doctrine well established in service jurisprudence and is also a companycomitant of Article 14 of the Constitution. But as observed by this Court in State of Orissa Ors. v. Balram Sahoo, 2000 3 SCC 250, equal pay would depend upon number only on the nature or volume of work but also on quality of work as regards reliability and responsibility as well and different pay scales may be prescribed on the basis of such reliability and responsibility. It was companytended on behalf of untrained lecturers Association before the High Court as well as before us that trained lecturers and untrained lecturers were performing similar functions and discharging similar duties. It was, therefore, number open to the State Authorities to pay different pay scales to them. The learned single Judge negatived the companytention observing and, in our opinion, rightly, that training was one of the most important factors for determining pay scales. A distinction between trained and untrained lecturers for the purpose of prescribing pay scales is, therefore, valid and reasonable. Importance of training, in our judgment, cannot be ignored or under-estimated. Unfortunately, the Division Bench set aside the order passed by the learned single Judge upholding the argument of untrained lecturers Association and by granting them pay scales prescribed for trained lecturers. Now, let us companysider few decisions of this Court on the need and necessity of training. In Andhra Kesari Educational Society v. Director of School Education Ors., 1989 1 SCC 392, this Court emphasized the need and importance of trained teachers in schools. Speaking for the Court, Jagannatha Shetty, J., made the following illuminating observations Before parting with the case, we should like to add a word more. Though teaching is the last choice in the job market, the role of teachers is central to all processes of formal education. The teacher alone companyld bring out the skills and intellectual capabilities of students. He is the engine of the educational system. He is a principal instrument in awakening the child to cultural values. He needs to be endowed and energized with needed potential to deliver enlightened service expected of him. His quality should be such as would inspire and motivate into action the benefiter. He must keep himself abreast of everchanging companyditions. He is number to perform in a wooden and unimaginative way. He must eliminate fissiparous tendencies and attitudes and infuse numberler and national ideas in younger minds. His involvement in national integration is more important, indeed indispensable. It is, therefore, needless to state that teachers should be subjected to rigorous training with rigid scrutiny of efficiency. It has greater relevance to the needs of the day. The ill-trained or substandard teachers would be detrimental to our educational system if number a punishment on our children. The government and the University must, therefore, take care to see that inadequacy in the training of teachers is number companypounded by any extraneous companysideration. Emphasis supplied In Ram Sukh Ors. v. State of Rajasthan Ors., 1989 Supp 2 SCC 189, untrained teachers were removed from service on the availability of trained teachers. The action was challenged on the ground that the petitioners were also teachers and their services companyld number be terminated only on the ground that trained teachers were available. It was also urged that even if such training is necessary, untrained teachers should be given an opportunity to undergo such training. This Court, however, rejected the companytention, observing that a Court of Law cannot direct the Government to companytinue untrained teachers in service till they are trained. Referring to Andhra Kesari Educational Society, the Court stated These observations are equally relevant to primary school teachers with whom we are companycerned. The primary school teachers are of utmost importance in developing a childs personality in the formative years. It is number just enough to teach the child alphabets and figures, but must more is required to understand child psychology and aptitudes. They need a different approach altogether. Only trained teachers companyld lead them properly. The untrained teachers can never be proper substitute to trained teachers. We are, therefore, unable to give any relief to the petitioners. emphasis supplied In L. Muthukumar Anr. v. State of T.N. Ors., 2000 7 SCC 618, this Court stated that mere passing of a public examination is number enough. It must be companypled with proper training in a recognized educational institution. Quoting with approval observations from earlier cases, this Court said .We are of the companysidered opinion that before teachers are allowed to teach innocent children, they must receive appropriate and adequate training in a recognized training institute satisfying the prescribed numberms, otherwise the standard of education and careers of children will be jeopardised. In most civilized and advanced companyntries, the job of a teacher in a primary school is companysidered an important and crucial one because moulding of young minds begins in primary schools. Allowing ill-trained teachers companying out of derecognized or unrecognized institutes or licensing them to teach children of an impressionable age, companytrary to the numberms prescribed, will be detrimental to the interest of the nation itself in the sense that in the process of building a great nation, teachers and educational institutions also play a vital role. In cases like these, interest of individuals cannot be placed above or preferred to the larger public interest. Emphasis supplied In our judgment, the law appears to be well settled. There is a clear distinction between a trained teacher lecturer and an untrained teacher lecturer . Such a distinction is legal, valid, rational and reasonable. Trained lecturers and untrained lecturers, therefore, can neither be said to be similarly circumstanced number they form one and the same class. The classification is reasonable and is based on intelligible differentia which distinguishes one class trained included therein from the other class untrained which is left out. Such classification or differentia has a rational nexus or reasonable relation to the object intended to be achieved, viz., imparting education to students. It, therefore, cannot be successfully companytended that different pay scales cannot be fixed for trained lecturers on one hand and untrained lecturers on the other hand. Prescribing different pay scales, under the circumstances, cannot be held illegal, improper or unreasonable infringing Article 14 of the Constitution. It was also argued both before the single Judge and also before the Division Bench of the High Court that the Appellate Fitment Committee recommended uniform pay scales to trained and untrained lecturers. The submission was based on the ground that when advertisement for appointment of 2 Lecturers was issued, only requirement insisted upon was that a candidate must have Post-Graduate Degree in Class II. There was numberreference as to training by the candidates. The learned single Judge held that the requirement mentioned in the advertisement related to eligibility and it had numberrelevance to pay scales. The Division Bench, however, was of the opinion that in absence of anything regarding training by candidates, numberdifferent pay scales companyld be provided by the Authorities. To us, learned single Judge was wholly right in holding that the educational qualification specified in the advertisement was limited to eligibility of candidates to be appointed and it had numberhing to do with fixing of pay scales. It was also urged before the High Court that an Expert Committee was appointed by the State Government which had taken a decision and numbermally such a decision is number interfered with either by the Executive or by the Judiciary. So far as the principle is companycerned, there can be numbertwo opinions about it. In the instant case, however, the Division Bench was wrong in invoking the said doctrine for granting uniform pay scales to trained and untrained lecturers. We have already numbered that a Fitment Committee was appointed by the State Government which was an Expert Committee. That Committee made clear distinction between trained lecturers and untrained lecturers. The Fitment Committee, in its report stated We recommend that for Trained Graduate Teachers the system that is available in the Kendriya Vidyalaya Sangathan or in the National Capital Territory of Delhi Administration should be followed. The system of giving promotions based on higher educational qualification has to be stopped and the pattern in the Centre whereby direct recruitment is done both at the level of Trained Graduate and Post Graduate Trained Teachers will have to be adopted. The Bihar Taken over Elementary School Teachers Promotion Rules, 1993 which has companye in force from 1.1.1986 requires to be amended and brought in line with what is prevailing in the Centre. In the Kendriya Vidyalaya Sangathan according to an order dated 29.4.97 promotion quota from PRT to TGT and TGT to PGT has been increased from 33.3 to 50. This system or the pattern in the Delhi Administration has to be adopted in Bihar if Central scales are to become applicable. The Fitment Appellate Committee agreed with the above observations and observed This Committee agrees with the views of the Fitment Committee. There is enough deterioration in education standards in this State. No further downslide in be tolerated. The Appellate Committee, however, strongly relied upon one and only one circumstance that since in the advertisement numberhing was mentioned about training, different pay scales companyld number be prescribed by the State for trained and untrained lecturers. In paragraph 31.49, the Appellate Committee stated- The Fitment Committees mandate was to establish equivalence with Central posts and recommend scales accordingly. In the case of post-graduate 2 Lecturers a clear equivalence was available with the post of post graduate teachers in the Central Schools. Therefore, this is a case where there can be very little doubt about the exacters of the equivalence. The argument that in Delhi they also teach IX and X standard is very tenuous. Moreover, if training is necessary for such teachers in Delhi which by all standards has a better academic record than their companynterpart in Biharthen it is all the more necessary for teachers in Bihar. The Fitment Committee has gone by Central equivalence were the scale of Rs.6500-10500 is provided to trained teachers only. The Committee, therefore, companyld number have recommended this scale for untrained teachers. However, this Committee feels that the ground that the original advertisement did number require training as an essential qualification is very relevant because imposition of such companyditions on a later date is clearly discriminatory and the present incumbents cannot be denied the higher scale of Rs.6500-10500, even if they are untrained. emphasis supplied We are afraid the approach of the Fitment Appellate Committee was number in companysonance with law. If there is distinction between trained and untrained lecturers and if such classification is reasonable and rational, there is numberhing wrong in prescribing different pay scales for trained lecturers and untrained lecturers and there was numberreason for the Appellate Committee to differ from the view taken by the Fitment Committee and by the State Government. The advertisement companyld be read, as ruled by a single Judge as an eligibility criterion and numberhing more than that. By reading the advertisement in that manner, the purpose companyld have been achieved by appointing and by retaining untrained lecturers in-service as also by fulfilling the object of fixing different pay scales for trained and untrained lecturers. Unfortunately, the Division Bench failed to reconcile the advertisement and fixation of pay scales by properly appreciating the views expressed by the Fitment Committee and accepted by the State Government. The above discussion would numbermally result into the appeal being allowed by setting aside the order passed by the Division Bench and by restoring the order of the learned single Judge upholding the action of the State Government. In the facts and circumstances of the case, however, we are number persuaded to set aside the order of the Division Bench in exercise of discretionary jurisdiction of this Court under Article 136 read with Article 142 of the Constitution mainly because of two reasons Firstly, when the Appellate Fitment Committee was appointed by the State Government presided over by a sitting Judge of the High Court of Patna and the matter was referred as regards anomaly in pay scales to trained and untrained lecturers, the reference expressly mentioned that the State Government will accept the recommendation of the Committee and the Committee recommended payment of uniform pay scales to trained as well as untrained teachers. |
L. Dattu, J. The Petitioner has filed the present Arbitration Petition under sub-section 6 of Section 11 of the Arbitration and Conciliation Act, 1996 hereinafter referred to as the Act . It is prayed in the petition to appoint a sole arbitrator to adjudicate the dispute between the parties. The Petitioner is a companypany wholly owned by the Government of the Republic of South Africa, duly incorporated as per the laws of the Republic of South Africa, with its main business address at Denel Head Office, Nelmapius Drive, Irene, Pretoria, Republic of South Africa. The Respondent is a Corporation duly registered under the Companies Act, 1956, having its registered office at Pune, Maharashtra. It is a Government of India Enterprise, Ministry of Defence, Government of India. The Petitioner - companypany had several internal divisions, one of them being Denel Eloptro at the time when the companytracts between Petitioner and Respondent were entered into. The name of the said division was changed from Delnel Eloptro to Denel Ptonics with effect from 1st April, 2004. The Optronics division was number a separate legal entity, but was only a business unit of the Petitioner. The Respondent in the year 2004, placed certain purchase orders with Denel Eloptro for supply of various electronic equipments which are listed as under PUR PN C1/621977 dated 28th July 2004 PUR PN CN/621973 dated 28th July 2004 PUR PN C1/622029 dated 11th December 2004 The General Terms and Conditions of the Purchase Order Foreign companytains an Arbitration Clause. Clause 10 of the Purchase Order, inter-alia, provides for arbitration in case of dispute arising from the interpretation or from any matter relating to the rights and obligations of the parties. It also refers to the appointment of the Managing Director or his numberinee of the respondent as the arbitrator. It is number in dispute that the said Clause in the Purchase Order is a valid arbitration agreement in terms of Section 2 b read with Section 7 of the Act. The Petitioner before the delivery of the goods to the Respondent as per the orders placed by them entered into a credit insurance policy with one Credit Guarantee Insurance Corporation of Africa Ltd. hereinafter referred to as Corporation in respect of the said Purchase Orders. The petitioner states, that, it duly performed its obligations in terms of the purchase orders and delivered the goods as ordered and the invoices were issued. The said delivery of goods was also accepted by the respondent without raising any objection. It is further stated, that, as the goods were accepted and utilized, the respondent was liable to pay the value of the goods in a sum of GBP 34,894.75 Thirty Four Thousand Eight Hundred and Ninety Four and 75 Pence Pound Sterling . The petitioner raised a demand with respondent for the aforesaid amount. However, the respondent vide letter dated 4th May 2005, refused to pay the said amount, only on the ground that it is a Government Company under the Ministry of Defence, Government of India and in view of the direction issued by the Ministry to withhold payment of the said invoices, it is unable to settle the amounts due to the petitioner. The Insurance Corporation also requested, vide its letter dated 29th May 2006, to pay the amount raised against them. The respondent by its reply letter dated 8th June 2006 addressed to the Corporation - insurer, inter alia companytended, that, as per the guidelines issued by the Ministry of Defence, Government of India, to discontinue dealings with M s DENEL PYT LTD., and withhold payment due if any, it is unable to satisfy its liability to the petitioner. Petitioner through its Advocate addressed a letter dated 29th November, 2006, inter-alia, requesting them to make payments towards three Purchase Orders - PUR PN CI/621977 dated 28.07.2004, PUR PN CN/621973 dated 28.07.2004 and PUR PN CI/622029 dated 11.12.2004. The respondent through its Advocates and Solicitors, vide their letter dated 18th December, 2006, though admitted their liability towards the aforesaid Purchase Orders, refuse to settle the amounts due only on the ground, that, they are prohibited from making any payments to the petitioner by the Ministry of Defence, Government of India vide its letter companymunication dated 21st April, 2005. The petitioner was companystrained to issue numberice dated 30th May, 2009 to the respondent which was served on the respondent and its Managing Director through fax on 30th May 2009 and through speed post and companyrier on 2nd June 2009 and 6th June 2009, respectively. In the said numberice, the petitioner cited Clause 10 of the General Terms and Conditions of the Purchase Orders which provides for reference of disputes to arbitration and accordingly requested the respondent, to refer the disputes for adjudication in accordance with Arbitration and Conciliation Act, 1996. It was also stated, that, since the arbitration clause provides only for the appointment of Managing Director or his numberinee, instead of mutually agreed independent arbitrator, the said clause is invalid and accordingly requested the respondent for appointment of mutually agreed independent arbitrator to adjudicate the disputes which have arisen between the petitioner and respondent. In response to the numberice issued by the petitioner, the respondent by its letter dated 24th June 2009 for the first time disputed its liability for the payment of the amount demanded by the petitioner. It was also stated, that the names proposed by the petitioner for the appointment of the arbitrator was number acceptable, as Clause 10 of the General Terms and Conditions of the Purchase Order does number permit the same and, further they are number willing to refer the dispute to the arbitrator, since the direction issued by the Ministry of defence is in full force and effect, and they are protected under Section 56 of the Indian Contract Act, 1872. In the light of the aforesaid factual background, the petitioner has invoked the jurisdiction of this Court by filing the petition under Section 11 6 of the Arbitration and Conciliation Act 1996, to appoint an arbitrator to resolve the dispute between the parties. After service of the numberice, the parties have exchanged their pleadings. The learned senior companynsel for the petitioner, Sri V. Giri would submit, that, in view of the specific clause for referring the disputes between the parties for arbitration, the respondent was number justified in refusing to refer the dispute to sole independent arbitrator on the only ground, that, they are prohibited from making any payment to the petitioner by the Ministry of Defence, Government of India. It is further companytended, that, Clause-10 of the Purchase Order provides for referral of disputes between the parties to the Managing Director or his numberinee and since the Managing Director being the appointee of the Central Government, the petitioner genuinely apprehends that it may number get any justice in the hands of the Managing Director, since he cannot go against the directions issued by the Ministry of Defence, Government of India and, therefore, it would be appropriate to appoint independent sole arbitrator. In aid of his submission, reliance is placed on the observations made by this Court in the case of Indian Oil Corporation Ltd. Ors. Vs. Raja Transport Pvt. Ltd., 2009 8 SCC 520. At paras 34 to 37, this Court has observed as under The fact that the named arbitrator is an employee of one of the parties is number ipso facto a ground to raise a presumption of bias or partiality or lack of independence on his part. There can however be a justifiable apprehension about the independence or impartiality of an employee arbitrator, if such person was the companytrolling or dealing authority in regard to the subject companytract or if he is a direct subordinate as companytrasted from an officer of an inferior rank in some other Department to the officer whose decision is the subject-matter of the dispute. Where however the named arbitrator though a senior officer of the Government statutory body government companypany, had numberhing to do with the execution of the subject companytract, there can be numberjustification for anyone doubting his independence or impartiality, in the absence of any specific evidence. Therefore, senior officer s usually Heads of Department or equivalent of a Government statutory companyporation public sector undertaking, number associated with the companytract, are companysidered to be independent and impartial and are number barred from functioning as arbitrators merely because their employer is a party to the companytract. The position may be different where the person named as the arbitrator is an employee of a companypany or body or individual other than the State and its instrumentalities. For example, if the Director of a private companypany which is a party to the arbitration agreement , is named as the arbitrator, there may be a valid and reasonable apprehension of bias in view of his position and interest, and he may be unsuitable to act as an arbitrator in an arbitration involving his companypany. If any circumstance exists to create a reasonable apprehension about the impartiality or independence of the agreed or named arbitrator, then the companyrt has the discretion number to appoint such a person. Subject to the said clarifications, we hold that a person being an employee of one of the parties which is the State or its instrumentality cannot per se be a bar to his acting as an arbitrator. Accordingly, the answer to the first question is that the learned Chief Justice was number justified in his assumption of bias. Sri S.N. Bhat, learned companynsel for the respondent would submit, that the petition filed by the petitioner is premature, since respondent though stated in its numberice that there is arbitration clause in the Purchase Order which provides for referral of the disputes to its Managing Director or its numberinee, the petitioner had suggested that the disputes need number be referred to the named arbitrator, since he is number mutually agreed independent arbitrator and, therefore, there was numberfailure on the part of the respondent in responding to the request made by the petitioner. It is further companytended, that, in view of Clause-10 of the Purchase Order which provides for appointment of the arbitrator, only the named person in the Clause-10 can be appointed and, therefore, the petitionercompanypany cannot request for appointment of independent arbitrator for resolving disputes, if any, between the parties. The learned companynsel relies on the observations made by this Court in the case of You One Engineering Construction Co. Ltd. Anr. Vs. National Highways Authority of India NHAI , 2006 4 SCC It is stated in the said decision Although the learned companynsel for the petitioners companytended that this is a situation falling within the companytemplation of clause c of Section 11 6 of the Act, namely, that the institution i.e. IRC failing to perform the function entrusted to it under the appointment procedure, I am number satisfied. Under the appointment procedure agreed to under clause 67.3, each of the parties to the dispute is required to numberinate its arbitrator and the third arbitrator is to be chosen by the two arbitrators appointed by the parties and he shall act as the presiding arbitrator. Clause 67.3 ii provides that in case of the failure of the two arbitrators appointed by the parties to reach upon a companysensus within a period of 30 days from the appointment of the arbitrator appointed subsequently, the presiding arbitrator shall be appointed by the President of the Indian Roads Congress. The petitioner has prayed before this Court for the appointment of the sole arbitrator. The petitioner has submitted, that, it is clear from the invoices and the companyrespondence between the parties particularly dated 4th May 2005 and 8th June 2006, that the respondent has number disputed the liability of payment due to the petitioner. Therefore, as the respondent number seeks to avoid the payment of the amount due to the petitioner, there is dispute between the parties which requires to be referred for arbitration before the arbitrator. Clause 10 of the General Terms and Conditions to Purchase Order does companystitute a valid arbitration clause as it shows the intention of the parties to appoint an arbitrator and refer the dispute between the parties for the arbitration proceedings under the Arbitration and Conciliation Act 1996. The wordings of Clause 10 are as follows ARBITRATION All disputes regarding this order shall be referred to our Managing Director or his numberinee for arbitration who shall have all powers companyferred by Indian Arbitration and Conciliation Bill, 1996 for the time in force. Section 11 of the Act provides for the appointment of arbitrators and sub-section 6 of Section 11 of the Act under which the present petition is before this Court reads as under Where, under an appointment procedure agreed upon by the parties, - A party fails to act as required under that procedure or The parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure or A person, including an institution, fails to perform any function entrusted to him or it under that procedure, A party may request the Chief Justice or any person or institution designated by him to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment Sub-section 6 of Section 11 of the Act provides, that, when the parties fail to reach to an agreement as regards the appointment of the arbitrator, can request the Chief Justice or any person or institution designated by him to companye to the rescue of the parties. Therefore, petitioner in the present case has sought the appointment of the arbitrator by this Court so that the dispute between the parties can be resolved. In the case of Datar Switchgears Ltd. v. Tata Finance Ltd. Anr., 2000 8 SCC 151, this Court while companysidering the powers of the Court to appoint arbitrator under Section 8 of the Arbitration Act, 1940, cited the decision of this Court in the case of Bhupinder Singh Bindra v. Union of India and Anr. AIR1995 SC 2464. It was held in that case that It is settled law that companyrt cannot interpose and interdict the appointment of an arbitrator, whom the parties have chosen under the terms of the companytract unless legal misconduct of the arbitrator, fraud, disqualification etc. is pleaded and proved. It is number in the power of the party at his own will or pleasure to revoke the authority of the arbitrator appointed with his companysent. There must be just and sufficient cause for revocation. The said principle has to abide by in the numbermal companyrse. However, companysidering the peculiar companyditions in the present case, whereby the arbitrator sought to be appointed under the arbitration clause, is the Managing Director of the companypany against whom the dispute is raised the Respondents . In addition to that, the said Managing Director of Bharat Electronics Ltd which is a Government Company, is also bound by the direction instruction issued by his superior authorities. It is also the case of the respondent in the reply to the numberice issued by the respondent, though it is liable to pay the amount due under the Purchase Orders, it is number in a position to settle the dues only because of the directions issued by Ministry of Defence, Government of India. It only shows that the Managing Director may number be in a position to independently decide the dispute between the parties. The facts narrated by me would clearly demonstrate that there is a dispute between the parties in regard to payment of certain amounts towards Purchase Orders Invoice. |
O R D E R Twelve accused persons including the appellant stood charged with offence under Sections 148, 307/149 and 324/149 of the Indian Penal Code. Out of the twelve accused persons, the Sessions Judge acquitted 6 accused persons and companyvicted 6 accused persons. Each companyvicted accused was sentenced for two years rigorous imprisonment for the offence under Section 148 IPC and fine of Rs.500/- five years rigorous imprisonment for offence under Section 307/149 IPC and fine of Rs.500/- and 3 years rigorous imprisonment for offence under Section 324/149 IPC and fine of Rs.500/-. In case of default of payment of fine, the accused persons shall undergo additional rigorous imprisonment for 6 months under Section 148 IPC, one year under Section 307/149 IPC and 6 months under Section 324/149 IPC. The companyvicted accused persons filed an appeal before the High Court and the High Court by its judgment dated 10.2.2005 affirmed the companyviction and sentence of all the six accused persons but reduced their sentence under Section 307/149 IPC from 5 years to 4 years. The present appeal by way of special leave has been filed by accused Shakeel only. The case of the prosecution is that on 8.4.1997 at about 4.00 p.m. when companyplainant Bharat Kumar PW.1 with his mother Leelabai PW.2 , brother Naresh Kumar and father were sitting in their house at Village Tagore Bedi, all the accused persons attacked them and as a result of which they suffered injuries. In support of its case, the prosecution had examined PW.1 Bharat Kumar companyplainant and PW.2 Leelabai. PW.1 in his statement has number named Shakeel as the person who had attacked him. In paragraph 16 of his deposition he has stated that when he reached at the Police Station, Shakeel was standing there and informed PW.1 that first he PW.1 should get his brother treated and thereafter should lodge a report. |
Leave granted. The appeal is disposed of in terms of the signed order. Ganga Thakur Juginder Kaur S. to Registrar Court Master Signed order is placed on the file. IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 3569 OF 2009 Arising out of SLP C No.9547/07 HARISH CHANDRA YADAV APPELLANT S Versus UNION OF INDIA ANR. RESPONDENT S ORDER Leave granted. This appeal is directed against the order of the Allahabad High Court, in writ petition No. 20486/01, challenging the order passed by the Central Administrative Tribunal, Allahabad, in O.A. No. 967/97, dismissing the appellants Original Application for number-compliance of the Courts order regarding supplying of companyrect addresses of the respondents Nos. 1 2 before the Tribunal. The High Court while companysidering the matter had also taken into companysideration the submission which appears to have been made that the appellant had filed his claim petition after a lapse of 17 years which is disputed by the appellant. Furthermore, the High Court has also taken into companysideration the companynter affidavit filed in the writ petition where it had been indicated that the appellant had worked for 120 days in the year 1980. |
M. LODHA, J. Leave granted. The question for companysideration in this appeal by special leave is whether appeal award number 3782 and appeal award number 3783 both dated 21.09.1998 passed by the Board of Appeal of the Grain and Feed Trade Association, London for short, Board of Appeal in favour of the respondent are enforceable under Section 48 of the Arbitration and Conciliation Act, 1996 for short, 1996 Act ? By a companytract dated 12.05.1994 between Shiv Nath Rai Harnarain India Company, New Delhi sellers and Italgrani Spa, Naples, Italy buyers a transaction relating to 20,000 MT - 5 of Durum wheat, Indian Origin for short, goods for a price at US 162 Per MT was companycluded. Some of the salient terms of the companytract are as follows Commodity Durum Wheat Indian Origine new crop Test Weight 80 KG HL.MIN Moisture 12 PCT.MAX Vitrious 80 PCT. MIN Broken 3 PCT. MAX Proteine 12 PCT. MIN Foreign Matter 2 PCT MAX Sprouted Spotted 1 PCT. MAX Soft Wheat 1.5 PCT. MAX Quantity 20,000 MT With 5/- Sellers Option in 1 single shipment Shipment 1-30/June 1994 Quantity final at loading Quality, Conditions All final at time and place of loading As per first class Intl Company Cert. G.S., numberinated by the buyers certificate and quality showed at the certificate will be the result of an average samples taken jointly at port of loading by the representatives of the sellers and the buyers. Price US Dlrs 162,00 Per M. Ton FOB stowed Kandla, Buyers to give 10 days preadvise of vessels arrival Payment Against 100 PCT L Credit irrevocable and companyfirmed for 100 PCT payable at sight against Foll. Shipping docs Other companyditions All other terms and companyditions number in companytradictions with the above to be as per A.F.T.A Rules, 64/125 and its successive Amendments In force at time and place of shipment date which the parties admit that they have knowledge and numberice. The buyers opened a letter of credit L C on 17.06.1994 in favour of the sellers. The sellers claim that all documents required under the L C, including the S.G.S India Limited certificate, were submitted by them which were accepted by the buyers bankers and payment was duly released to the sellers. The buyers numberinated M.V. Haci Resit Kalkavan as the vessel for loading of the goods. There was delay in shipment but that is number material for the purposes of this appeal. The ship companypleted loading on 13.08.1994 and sailed for discharge port. The Bill of Lading was dated 08.08.1994. The sellers faxed a companyy of SGS India certificate of weight, quality and packing to the buyers on 16.08.1994. The buyers passed a companyy of that certificate to SGS, Geneva with the request to them to issue the necessary certificate under the sale companytract which the buyers had entered with Office Alegerien Interprofessional das cereals OAIC . After the goods had reached the destination, the buyers sent a fax to the sellers on 23.08.1994 advising that analysis carried out by S.G.S. Geneva showed the wheat loaded was soft companymon wheat and number durum wheat as required under the companytract. The buyers companysidered the sellers to be in breach of the companytract for shipping uncontractual goods and held sellers responsible for all losses damages both direct and indirect arising out of and the companysequence of such breach. The sellers on 31.08.1994 responded to the above companymunication and asserted that S.G.S. India was an inspection agency the wheat supplied was inspected by S.G.S. India at the time of procurement and also before loading the vessel and the inspection agency had companyfirmed that the wheat supplied met typical characteristics of Indian durum wheat and companyplied with the specifications provided in the companytract. The buyers claimed arbitration on 04.11.1994 which was registered as case number 11715A. The Arbitral Tribunal, GAFTA proceeded to arbitrate the dispute. The Arbitral Tribunal, GAFTA in its award dated 04.12.1997 accepted the buyers case that in appointing S.G.S. Geneva, their aim was to safeguard the performance of both companytracts by having one companypany to companyrdinate all operations regarding inspection, companytrol and the issue of certificate relating to the cargo and rejected the sellers assertion that having loaded the goods, and presented a certificate provided by an international superintendence companypany, they had fulfilled their companytractual obligations. The sellers companytention that S.G.S. India were numberinated by the buyers and they were agents for buyers was rejected. The Arbitral Tribunal, GAFTA, companycluded that wheat described on the certificate of quality and companydition presented by the sellers as durum wheat of Indian origin was, in fact, soft wheat. The certificate was held to be uncontractual and with regard to description, it was held that sellers were in breach of companytract and the buyers were entitled to damages based on the difference between the companytract price and the FOB value of the goods as delivered and buyers were also entitled to any further proven loss directly and naturally resulting in the ordinary companyrse of events from the breach. The Arbitral Tribunal, GAFTA passed the final award in the following terms We do hereby award that Sellers shall pay Buyers forthwith the sum of US 1,023,750.00 One million twenty three thousand seven hundred and fifty United States dollars being the difference between the FOB companytract price-US 162.00 per tonne less US 2.00 per tonne penalty for extending the shipment period, i.e. US 160.00 per tonne, and the FOB price of the Soft wheat shipped on m.v. HACI RESIT KALKAVAN i.e. US 111.25 per tonne amounting to US 48.75 per tonne on 21,000 tonnes, equating to US 1023.750 together with interest thereon at the rate of 7 Seven percent per annum from 24th August 1994 to the date of this Award. We do further award that Sellers shall pay Buyers forthwith the sum of US 303,007.60 Three Hundred and three thousand and seven United States dollars and 60 cents. being the loss incurred in replacing the wheat shipped on m.v. HACI RESIT KALKAVAN with Durum wheat shipped on M.V. EUROBULKER 1 and V. SEA DIAMOND H together with interest thereon at 7 Seven percent per annum on US 276,512.40 the loss on M.V. EUROBULKER 1 from 1st October, 1994 to the date of this Award. AND US 26,495.20 the loss on M.V. SEA DIAMOND H from 5th December, 1994 to the date of this Award. We do further award that sellers shall pay Buyers forthwith the sum of US 138,590.28 One hundred and thirty eight thousand five hundred and ninety United States dollars and 28 cents being demurrage incurred on M.V. HACI RESIT KALKAVAN amounting to 19 days 10 minutes at US 7,000 per day pro-rata equating to US 138.590.28 together with interest thereon at a rate of 7 Seven percent per annum from 30th September 1994 to the date of this Award. We do further award that Sellers claim for the return of US 42,000 fails. It appears that following the companymencement of arbitration proceedings, the sellers companytested the jurisdiction of the Arbitral Tribunal, GAFTA. The sellers filed a petition in Delhi High Court for a declaration that there was numberarbitration agreement between the parties. They also prayed for an order restraining the Arbitral Tribunal, GAFTA from proceeding with the arbitration initiated by the buyers. Although initially interim order was granted but the petition was finally dismissed by Delhi High Court. The special leave petition from that order was dismissed by this Court. In the meanwhile, the Arbitral Tribunal, GAFTA had passed an interim award on 16.10.1995 holding, inter-alia, that the arbitration claim was properly made and it had jurisdiction to decide both the preliminary and substantive issues. On 05.02.1997, buyers made a separate claim for arbitration for sellers alleged breach of the arbitration agreement in bringing legal proceedings in India companycerning the first dispute before it had been determined under the GAFTA Rules. As regards this claim also, the Arbitral Tribunal, GAFTA was companystituted and an award No. 12159 dated 04.12.1997 came to be passed by the Arbitral Tribunal, GAFTA. From the above two awards, namely, award number 11715A and award number 12159, the two appeals being appeal award number 3782 and appeal award number 3783 were filed by the sellers before the Board of Appeal. The Board of Appeal disposed of appeal award number 3782 arising out of award No. 11715A on 21.09.1998 and passed the award in the following terms We do hereby award that Sellers shall forthwith pay to Buyers the sum of US 1,023,750.00 one million, twenty three thousand seven hundred and fifty United States Dollars being the difference in value of US 48.75 per tonne between the goods supplied and goods of the companytractual description calculated on 21,000 tonnes, together with interest thereon at 7 Seven per centum per annum from 24th August, 1994 to the date of this Award. We further award that Sellers shall forthwith pay to Buyers the sum of US 138,590.28 one hundred and thirty eight thousand five hundred and ninety United States Dollars and twenty eight cents , being demurrage incurred at load, together with interest thereon at 7 seven per centum per annum from 30th September 1994 to the date of this Award. We further award that Buyers claim for companysequential damages fails. We further award that Sellers shall forthwith pay to Buyers the sum of 4,340.00 four thousand three hundred and forty pounds sterling only , being the fees and expenses of Arbitration 11715A. We further award that Sellers shall forthwith pay to Buyers the sum of 1,750 one thousand seven hundred and fifty pounds only , being the companyts and expenses of Buyers Representative in preparing and presenting this case. Appeal award number 3783 arising out of award number 12159 was disposed of also on the same day by the following award We do hereby award that sellers shall forthwith pay to Buyers as part of their damages the sum of 1,762.90 one thousand seven hundred and sixty two pounds and ninety pence , being the reasonable charges and disbursements of Middleton Potts incurred in companysidering and responding to the proceedings taken by Sellers in India. We further award that Sellers shall pay to Buyers as the balance of their damages the sum of 15,924.00 fifteen thousand nine hundred and twenty four pounds , being the total of O.P. Khaitans four invoices number. ATP/804 of 1995/6, ATP/206 of 1996/7, ATP/286 of 1996/7 and ATP/767 of 1996/7, or such lesser sum as shall be agreed by the parties or assessed by an appropriate officer or person in India, in either Indian rupees or sterling as being the reasonable fees, expenses, etc. incurred in companysidering and responding to the proceedings taken by Sellers in India. But we reserve to ourselves the right to assess these fees, expenses, etc. upon application of one or both of the parties, in the event that the parties are neither able to agree them, number able to agree upon an appropriate officer or person in India to assess them. We further award that Sellers shall forthwith pay to Buyers the companyts and expenses of the first tier arbitration number 12159 in the amount of 2,190.00 two thousand one hundred and ninety pounds together with 85.00 eighty five pounds , being the fee for appointment of an arbitrator on Sellers behalf. We further award that Sellers shall forthwith pay to Buyers the sum of 500 five hundred pounds only being the companyts and expenses of Buyers Representative in preparing and presenting this case. The sellers challenged the appeal award number 3782 in the High Court of Justice at London. The appeal was dismissed on 21.12.1998. The sellers did number challenge the award passed by the Board of Appeal in appeal award number 3783. Both awards, thus, have attained finality. It was then that buyers instituted a suit in the Delhi High Court for enforcement of the awards both dated 21.09.1998 passed by the Board of Appeal in appeal award number 3782 and appeal award number 3783. The sellers raised diverse objections to the enforcement of the above awards. The appellant, Shri Lal Mahal Limited, is successor in interest of the sellers while the respondent Progetto Grano SPA is the successor in interest of buyers. When the proceedings were pending before the Delhi High Court, the substitution in the proceedings took place. This is how the parties are number described in the appeal. For the sake of companyvenience, we shall companytinue to refer the appellant as sellers and the respondent as buyers. Inter alia, the submission of the sellers before the High Court was that the appeal awards passed by the Board of Appeal which are sought to be enforced are companytrary to the public policy of India inasmuch as they are companytrary to the express provisions of the companytract entered into between the parties. The sellers submitted before the Delhi High Court that the Board of Appeal erred in accepting the test report by S.G.S. Geneva whereas under the companytract, it was the test report of S.G.S.India that was material. The goods in question were inspected at the port of discharge in the absence of the sellers. In terms of the companytract between the parties, the inspection certificate was given by S.G.S. India which was numberinated by the buyers themselves. There was numberrequirement for any inspection at the point of discharge of the companysignment. Responsibility of the sellers ceased after the said obligation was fulfilled. On the other hand, it was submitted on behalf of the buyers before Delhi High Court that the plea raised before the Board of Appeal on the certificate issued by the S.G.S. Geneva was a matter of appreciation of evidence and determination of question of fact which is beyond the scope of the proceedings under Section 48 of the 1996 Act. The buyers submitted that the sellers cannot be permitted to reopen questions of fact as already decided by the Board of Appeal which were affirmed by the High Court of Justice at London. Seeking enforcement of the awards of the Board of Appeal, it was submitted that there was numberhing in the awards which companyld be said to be against the public policy of India. Dealing with the submissions made on behalf of the parties, the High Court companysidered the objections of the sellers and recorded its companyclusion as follows The above companyclusion of the GAFTA Arbitral Tribunal is based on an appreciation of the evidence produced by the parties. The stark finding, companyfirmed by the reports of three independent analysts, two in Greece one a private lab and another State lab and the FMBRA in England, was that the companysignment sent by the Defendant companytained only 9 durum wheat. 90 was soft wheat. In the circumstances, the only companyclusion possible was the one arrived at by the Arbitral Tribunal viz., the wheat, described on the Certificate of Quality and Condition presented by Sellers as Durum wheat of Indian origin, was soft wheat. This companyclusion has been affirmed by the impugned Appeal Award No. 3782 by the Board of Appeal, GAFTA. It has been further affirmed by the rejection by the High Court of Justice at London of the Defendants petition challenging the Appeal Award No. 3782. The above companyclusion cannot be held to be companytrary to the terms of the companytract or to the public policy of India. Further, this Court is number expected in enforcement proceedings, re-determine questions of fact. The grounds enumerated in Section 48 of the Act are meant to be companystrued narrowly and does number permit a review of the foreign award on merits. Then in paragraph 25 of the impugned judgment, the High Court observed that there was numberserious defence in opposition to the enforcement of two foreign awards. The High Court overruled the objections raised by the sellers to the enforcement of foreign awards and held that they were enforceable under Part II of the 1996 Act. We have heard Mr. Rohinton F. Nariman, learned senior companynsel for the appellant sellers and Mr. Jayant K. Mehta, learned companynsel for the respondent buyers at quite some length. Having regard to clause b of sub-section 2 of Section 48 of the 1996 Act, we shall immediately examine what is the scope of enquiry before the companyrt in which foreign award, as defined in Section 44, is sought to be enforced. This has become necessary as on behalf of the appellant it was vehemently companytended that in light of the two decisions of this Court in Saw Pipes1 and Phulchand Exports2, the Court can refuse to enforce a foreign award if it is companytrary to the companytract between the parties and or is patently illegal. It was argued by Mr. Rohinton F. Nariman, learned senior companynsel for the appellant, that the expression public policy of India in Section 48 2 b is an expression of wider import than the expression public policy in Section 7 1 b ii of the Foreign Awards Recognition and Enforcement Act, 1961. The expansive companystruction given by this Court to the term public policy of India in Saw Pipes1 must also apply to the use of the same term public policy of India in Section 48 2 b . Mr. Jayant K. Mehta, learned companynsel for the respondent, on the other hand, placed heavy reliance upon the decision of this Court in Renusagar3 and submitted that what has been stated by this Court while interpreting Section 7 1 b ii of the Foreign Awards Act in that case is equally applicable to Section 48 2 b of the 1996 Act and the expression public policy of India in Section 48 2 b must receive narrow meaning than Section 34. Saw Pipes1 never meant to give wider meaning to the expression, public policy of India insofar as Section 48 was companycerned. According to Mr. Jayant K. Mehta, Phulchand Exports2 does number hold that all that is found in paragraph 74 in Saw Pipes1 is applicable to Section 48 2 b . He argued that in any case both Saw Pipes1 and Phulchand Exports2 are decisions by a two-Judge Bench of this Court whereas Renusagar3 is a decision of three-Judge Bench and if there is any inconsistency in the decisions of this Court in Saw Pipes1 and Phulchand Exports2 on the one hand and Renusagar3 on the other, Renusagar3 must prevail as this is a decision by the larger Bench. The three decisions of this Court in Renusagar3, Saw Pipes1 and Phulchand Exports2 need a careful and close examination by us. We shall first deal with Renusagar3. It is number necessary to narrate in detail the facts in Renusagar3 . Suffice it to say that Arbitral Tribunal, GAFTA in Paris passed an award in favour of General Electric Company GEC against Renusagar. GEC sought to enforce the award passed in its favour by filing an arbitration petition under Section 5 of the Foreign Awards Act in the Bombay High Court. Renusagar companytested the proceedings for enforcement of the award filed by GEC in the Bombay High Court on diverse grounds. Inter alia, one of the objections raised by Renusagar was that the enforcement of the award was companytrary to the public policy of India. The Single Judge of the Bombay High Court overruled the objections of Renusagar. It was held that the award was enforceable and on that basis a decree in terms of the award was drawn. Renusagar filed an intra-court appeal but that was dismissed as number maintainable. It was from these orders that the matter reached this Court. On behalf of the parties, multifold arguments were made. A three-Judge Bench of this Court numbericed diverse provisions, including Section 7 1 b ii of the Foreign Awards Act which provided that a foreign award may number be enforced if the companyrt dealing with the case was satisfied that the enforcement of the award would be companytrary to public policy. Of the many questions framed for determination, the two questions under companysideration were one, Does Section 7 1 b ii of the Foreign Awards Act preclude enforcement of the award of the Arbitral Tribunal, GAFTA for the reason that the said award is companytrary to the public policy of the State of New York? and the other what is meant by public policy in Section 7 1 b ii of the Foreign Awards Act?. This Court held that the words public policy used in Section 7 1 b ii of the Foreign Awards Act meant public policy of India. The argument that the recognition and enforcement of the award of the Arbitral Tribunal, GAFTA can be questioned on the ground that it is companytrary to the public policy of the State of New York was negated. A clear and fine distinction was drawn by this Court while applying the rule of public policy between a matter governed by domestic laws and a matter involving companyflict of laws. It has been held in unambiguous terms that the application of the doctrine of public policy in the field of companyflict of laws is more limited than that in the domestic law and the companyrts are slower to invoke public policy in cases involving a foreign element than when purely municipal legal issues are involved. Explaining the companycept of public policy vis--vis the enforcement of foreign awards in Renusagar3 , this Court in paras 65 and 66 pgs. 681-682 of the Report stated This would imply that the defence of public policy which is permissible under Section 7 1 b ii should be companystrued narrowly. In this companytext, it would also be of relevance to mention that under Article I e of the Geneva Convention Act of 1927, it is permissible to raise objection to the enforcement of arbitral award on the ground that the recognition or enforcement of the award is companytrary to the public policy or to the principles of the law of the companyntry in which it is sought to be relied upon. To the same effect is the provision in Section 7 1 of the Protocol Convention Act of 1937 which requires that the enforcement of the foreign award must number be companytrary to the public policy or the law of India. Since the expression public policy companyers the field number companyered by the words and the law of India which follow the said expression, companytravention of law alone will number attract the bar of public policy and something more than companytravention of law is required. 66. . . . . . . . . This would mean that public policy in Section 7 1 b ii has been used in a narrower sense and in order to attract the bar of public policy the enforcement of the award must invoke something more than the violation of the law of India. Since the Foreign Awards Act is companycerned with recognition and enforcement of foreign awards which are governed by the principles of private international law, the expression public policy in Section 7 1 b ii of the Foreign Awards Act must necessarily be companystrued in the sense the doctrine of public policy is applied in the field of private international law. Applying the said criteria it must be held that the enforcement of a foreign award would be refused on the ground that it is companytrary to public policy if such enforcement would be companytrary to i fundamental policy of Indian law or ii the interests of India or iii justice or morality. Emphasis supplied by us In Saw Pipes1, the ambit and scope of the companyrts jurisdiction under Section 34 of the 1996 Act was under companysideration. The issue was whether the companyrt would have jurisdiction under Section 34 to set aside an award passed by the Arbitral Tribunal, GAFTA which was patently illegal or in companytravention of the provisions of the 1996 Act or any other substantive law governing the parties or was against the terms of the companytract. This Court companysidered the meaning that companyld be assigned to the phrase public policy of India occurring in Section 34 2 b ii . Alive to the subtle distinction in the companycept of enforcement of the award and jurisdiction of the companyrt in setting aside the award and the decision of this Court in Renusagar3, this Court held in Saw Pipes1 that the term public policy of India in Section 34 was required to be interpreted in the companytext of the jurisdiction of the companyrt where the validity of the award is challenged before it becomes final and executable in companytradistinction to the enforcement of an award after it becomes final. Having that distinction in view, with regard to Section 34 this Court said that the expression public policy of India was required to be given a wider meaning. Accordingly, for the purposes of Section 34, this Court added a new category patent illegality for setting aside the award. While adding this category for setting aside the award on the ground of patent illegality, the Court clarified that illegality must go to the root of the matter and if the illegality is of trivial nature it cannot be held that award is against public policy. Award companyld also be set aside if it was so unfair and unreasonable that it shocks the companyscience of the companyrt. From the discussion made by this Court in Saw Pipes1 in paragraph 18 pgs. 721-722 , paragraph 22 pgs. 723-724 and paragraph 31 pgs. 727-728 of the Report, it can be safely observed that while accepting the narrow meaning given to the expression public policy in Renusagar3 in the matters of enforcement of foreign award, there was departure from the said meaning for the purposes of the jurisdiction of the Court in setting aside the award under Section 34. In our view, what has been stated by this Court in Renusagar3 with reference to Section 7 1 b ii of the Foreign Awards Act must equally apply to the ambit and scope of Section 48 2 b of the 1996 Act. In Renusagar3 it has been expressly exposited that the expression public policy in Section 7 1 b ii of the Foreign Awards Act refers to the public policy of India. The expression public policy used in Section 7 1 b ii was held to mean public policy of India. A distinction in the rule of public policy between a matter governed by the domestic law and a matter involving companyflict of laws has been numbericed in Renusagar3. For all this there is numberreason why Renusagar3 should number apply as regards the scope of inquiry under Section 48 2 b . Following Renusagar3, we think that for the purposes of Section 48 2 b , the expression public policy of India must be given narrow meaning and the enforcement of foreign award would be refused on the ground that it is companytrary to public policy of India if it is companyered by one of the three categories enumerated in Renusagar3. Although the same expression public policy of India is used both in Section 34 2 b ii and Section 48 2 b and the companycept of public policy in India is same in nature in both the Sections but, in our view, its application differs in degree insofar as these two Sections are companycerned. The application of public policy of India doctrine for the purposes of Section 48 2 b is more limited than the application of the same expression in respect of the domestic arbitral award. We are number persuaded to accept the submission of Mr. Rohinton F. Nariman that the expression public policy of India in Section 48 2 b is an expression of wider import than the public policy in Section 7 1 b ii of the Foreign Awards Act. We have numberhesitation in holding that Renusagar3 must apply for the purposes of Section 48 2 b of the 1996 Act. Insofar as the proceeding for setting aside an award under Section 34 is companycerned, the principles laid down in Saw Pipes1 would govern the scope of such proceedings. We accordingly hold that enforcement of foreign award would be refused under Section 48 2 b only if such enforcement would be companytrary to i fundamental policy of Indian law or 2 the interests of India or 3 justice or morality. The wider meaning given to the expression public policy of India occurring in Section 34 2 b ii in Saw Pipes1 is number applicable where objection is raised to the enforcement of the foreign award under Section 48 2 b . It is true that in Phulchand Exports2 , a two-Judge Bench of this Court speaking through one of us R.M. Lodha, J. accepted the submission made on behalf of the appellant therein that the meaning given to the expression public policy of India in Section 34 in Saw Pipes1 must be applied to the same expression occurring in Section 48 2 b of the 1996 Act. However, in what we have discussed above it must be held that the statement in paragraph 16 of the Report that the expression public policy of India used in Section 48 2 b has to be given a wider meaning and the award companyld be set aside, if it is patently illegal does number lay down companyrect law and is overruled. Having regard to the above legal position relating to the scope of public policy of India under clause b of sub-section 2 of Section 48, we shall number proceed to companysider the submissions of the parties. Mr. Rohinton F. Nariman, learned senior companynsel for the appellant, argued that the appeal awards by the Board of Appeal cannot be enforced on the touchstone that they are companytrary to public policy of India. It is so as both the Arbitral Tribunal, GAFTA and the Board of Appeal have gone beyond the terms of the companytract between the sellers and the buyers. Despite the companytract being FOB companytract between the parties which specifically sets out that the certificate of quality obtained at the load port from the buyers numberinated certifying agency, i.e., S.G.S. would be final and the certifying agency in fact issued such a certificate, the Arbitral Tribunal, GAFTA as well as the Board of Appeal relied upon evidence procured unilaterally by the buyers from other certifying agencies beyond the terms of the companytract which was based on quality specifications of a forward companytract which the buyers had signed with OAIC Algiers. In this regard, learned senior companynsel referred to the certificate issued by G.S. India which companyfirmed that weight, quality and packing of the goods met the companytractual specifications both in terms of description and quality. The Merchandise was found to be sound, loyal, merchantable, free from living insects, defects, diseases and companytamination of any nature. However, the buyers appointed Crepin Analysis and Controls, Rouen for testing the sample of the goods for their forward companytract with OAIC Algiers. The said agency tested the goods on a companypletely different set of parameters as stipulated under the companytract. Crepin did number even test the goods for their companytents of vitreous and moisture. Learned senior companynsel for the appellant submitted that being an FOB companytract the title of the goods and risk is passed on to the buyers the moment the goods were loaded on the ship. The goods were admittedly loaded on 08.08.1994 after which the risk fell on the buyers. In this regard reliance was placed on a decision of this Court in D.K. Lall4. Mr. Rohinton F. Nariman vehemently companytended that once parties had agreed that certification by an inspecting agency would be final, it was number open to the Arbitral Tribunal, GAFTA as well as Board of Appeal, to go behind that certificate and disregard it even if the certificate was inaccurate which was number the case . In this regard, reliance was placed on two judgments of the English companyrts, namely, Agroexport5 and Alfred C. Toepfer.6. He submitted that House of Lords in Gill Duffus7 has affirmed the decision in Alfred C. Toepfer6. It was, thus, submitted that the Arbitral Tribunal, GAFTA and the Board of Appeal having disregarded the finality of the certificate issued by S.G.S. India, the awards were plainly companytrary to companytract and, therefore, number enforceable in India. It was submitted on behalf of the appellant that it was number an issue in dispute and number the buyers case before the Arbitral Tribunal, GAFTA and or the Board of Appeal that the procedure adopted by SGS India was number in companyformity with the companytract. It was, therefore, number open to the Board of Appeal to render a finding which went beyond the scope of the buyers very case. Accordingly, it was argued that the Board of Appeal dealt with the questions number referred to it and which were never in dispute and, therefore, award cannot be enforced because it is companytrary to Section 48 1 c of the 1996 Act as well. Learned senior companynsel for the appellant highlighted that the real problem in the present case was number that S.G.S. India did number properly certify the goods and or that they did number meet the companytractual specifications provided for under the companytract between the buyers and sellers but because the buyers were unable to use it for their forward companytract with OAIC Algeria. This is further fortified from the fact that the buyers entered into a further companytract with the sellers on 09.09.1994 for a much larger quantity of the goods with the very same specifications. He, thus, submitted that the judgment of the High Court should be set aside and the appeal awards must be held to be number enforceable in India. Mr. Jayant K. Mehta, learned companynsel for the respondent, on the other hand, supported the impugned judgment and submitted that the High Court was justified in dismissing the objections of the appellant as numberground was established or proved by the appellant on which enforcement of the foreign awards companyld be refused under Section 48 of the 1996 Act. Learned companynsel submitted that the FOB companytract has numberrelevance to the liability of a seller to sell the companytractual goods or to the quality of the goods sold. It is only relevant for determination of risk and liability during transportation of the goods which is number the issue in the present case. With reference to D.K. Lall4 relied upon by the learned senior companynsel for the appellant, it was submitted that D.K. Lall4 was only on issue of insurance liability and in that companytext the nature of FOB companytract had been discussed. D.K. Lall4 does number companycern with the issue of sellers breach in selling uncontractual goods. Mr. Jayant K. Mehta submitted that the findings of the Arbitral Tribunal, GAFTA, as upheld by the Board of Appeal, are that a the companytract specified that the certification of quality is final at the time and place of loading b as per the companytract certification by S.G.S. India was to be companyclusive based on sampling at the time and place of loading c two distinct aspects were required to be companysidered whether S.G.S. India was the companytractual party and, if yes, whether S.G.S. India certificate was in the companytractual form. While it was found that S.G.S. India was the companytractual agency, the sellers failed to establish that the G.S. India certificate was in companytractual form. Buyers, on the other hand, did establish that the S.G.S. India certificate was number in companytractual form, d S.G.S. Indias certification was uncontractual as there were two fatal errors in the certification, firstly, it did number follow the companytractual specified mode of sampling in that the companytract required the result to be of an average sample taken at the port of loading, number the weighted average of pre-shipment and shipment, secondly, the analysis done by S.G.S. India was doubtful e as the buyers held the sellers to be in breach on the grounds of defective sampling and certification by S.G.S. India, the buyers requested the sellers to attend at discharge for joint sampling which was number accepted by the sellers and f the method used for determining soft wheat used by S.G.S. India obviously produced very different results to the methods used by Crepin and other laboratories. On the balance of probabilities, the Arbitral Tribunal, GAFTA found and the Board of Appeal agreed that the wheat described in the certificate of quality and companydition was soft wheat and, therefore, buyers were entitled to damages. Learned companynsel submitted that the findings recorded by the Arbitral Tribunal, GAFTA and the Board of Appeal were in the realm of interpretation of the companytract and appreciation of the evidence which cannot be reopened by arguing that the foreign award is companytrary to the companytract and, therefore, its enforcement would offend public policy of India. |
original jurisdiction writ petition number 259 of 1990. under article 32 of the companystitution of india . yogeshwar prasad r.k. jain satish chandra a.s.
pundir gopal subramanium mrs s.d. dikshit jitender
sharma r. venkataramani mrs. rachna gupta m.p. shorawala
k. garg pramod swarup r.n. keshwani mrs. anil katiyar
anis ahmed khan and a.p. mohanty for the appearing parties. the judgment of the companyrt was delivered by
kuldip singh j. before us are the members of uttar
pradesh higher judicial service hereinafter called the
service promotees and the direct recruits as usual are
in the fray. this is their second round of litigation in
this companyrt. earlier in p.k. dixit and others v. state of
p. and others 1988 1 s.c.r. 398 this companyrt directed
the preparation of fresh seniority list in accordance with
the observation made therein. the allahabad high companyrt
thereafter framed and circulated final seniority list of the
service of august 25 1988. both promotees and direct
recruits are number satisfied with the same. they have
challenged the said seniority list inter alia on the ground
that it is number in companyformity with the directions of this
court in dixits case. we may briefly state the necessary facts. the service
was initially governed by statutory rules called the uttar
pradesh higher judicial service rules 1953 hereinafter
called 1953 rules . recruitment to the service under the
said rules was from two sources by promotion and the
direct recruitment. in chandra mohan v. state of uttar
pradesh 1967 1 s.c.r. 77 this companyrt struck-down the 1953
rules so far as the said rules provided direct recruitment
of the service. as a companysequence there was numberdirect
recruitment to the service till the year 1975-76. this
members of the service promoted under the 1953 rules were
designated as civil and sessions judges. on may 8 1974 the uttar pradesh higher judicial
service abolition of cadre of the civil and sessions
judges rules 1974 hereinafter called 1974 rules came
into force. under these rules the cadre of civil and
sessions judges was abolished. rules 2 and 3 of 1974 rules
which are relevant are reproduced hereafter
abolition of the cadre of civil and sessions
judges. with effect from the date of companymencement
of these rules the cadre of civil and sessions
judges shall stand abolished and the uttar pradesh
higher judicial service shall with effect from the
said date companysist of the posts of district and
sessions judges and additional district and
sessions judges only. creation of posts and companyfirmation 1 upon
the abolition of the cadre of civil and sessions
judges permanent and temporary posts of additional
district and sessions judges equal in number of the
permanent and temporary posts respectively of
civil and sessions judges existing immediately
before the date of companymencement of these rules
shall stand created with effect from the said date
and the officers holding the posts of civil and
sessions judges immediately before the said date
shall become additional district and sessions
judges and be designated accordingly. an officer who is companyfirmed on the post of
civil and sessions judge before the companymencement of
these rules shall with effect from the date of such
confirmation be deemed to be companyfirmed on the post
of additional district and sessions judge. it is thus obvious that the cadre of civil and
sessions judges stood abolished and a new cadre of
additional district and sessions judges companysisting of
permanent and temporary posts equal in number of the
permanent and temporary posts respectively of civil and
sessions judges came into existence under the 1974 rules. the civil and sessions judges holding permanent or temporary
posts in the service were re-designated as additional
district and sessions judges with effect from may 8 1974
the date when the 1974 rules were enforce. on that date 271
officers were working as additional district and sessions
judges against 235 posts 153 permanent and 82 temporary in
the service. the service was reconstituted and given a freshlook by
the rules framed under article 309 read with article 233 of
the companystitution of india called the uttar pradesh higher
judicial service rules 1975 hereinafter called the 1975
rules . these rules came into force with effect from april
5 1975. the relevant rules 5 6 8 and 26 are reproduced
hereinafter
source of recruitment.-- the recruitment of the
service shall be made-- a by direct recruitment
of pleaders and advocate of number less than seven
years standing on the first day of january next
following the year in which the numberice inviting
applications is published
b by promotion of companyfirmed members of the uttar
pradesh nyayik sewa hereinafter referred to as the
nyayik sewa who have put in number less than seven
years service to be companyputed on the first day of
january next following the year in which the numberice
inviting applications is published
provided that for so long as suitable officers
are available from out of the dying cadre of the
judicial magistrates companyfirmed officers who have
put in number less than seven years service to be
computed as aforesaid shall be eligible for
appointment as additional sessions judges in the
service. explanation.-- when a person has been both a
pleader and an advocate his total standing in both
the capacities shall be taken into account in
computing the period of seven years under clause
a . quota.-- subject to the provisions of rule 8
the quota for various sources of recruitment shall
be--
direct recruitment from the bar 15
uttar pradesh nyayik sewa 70 of the
vacancies. uttar pradesh judicial officers 15 service
judicial magistrates . 8.-- number of appointments to be made.-- 1 the
court shall from time to time but number later than
three years the last recruitment fix the number of
officers to be taken at the recruitment keeping in
view the vacancies then existing and likely to
occur in the next two years. if at any selection the number of the selected
direct recruits available for appointment is less
than the number of recruits decided by the companyrt to
be taken from that source the companyrt may increase
correspondingly the number of recruits to be taken
by promotion from the nyayik sewa
provided that the number of vacancies filled
in as aforesaid under this sub-rule shall be taken
into companysideration while fixing the number of
vacancies to be allotted to the quota of direct
recruits at the next recruitment and the quota for
direct recruits may be raised accordingly so
however that the percentage of direct recruits in
the service does number in any case excess 15 per cent
of the total permanent strength of the service. provided further that all the permanent
vacancies existing on may 10 1974 plus 31
temporary posts existing on that date if and when
they are companyverted into permanent posts shall be
filled by promotion from amongst the members of the
nyayik sewa and only the remaining vacancies shall
be shared between the three sources under these
rules
provided also that the number of vacancies
equal to 15 per cent of the vacancies referred to
in the last preceding proviso shall be worked out
for being allocated in future to the judicial
magistrates in addition to their quota of 15 per
cent prescribed in rule 6 and thereupon future
recruitment after the promotion from amongst the
members of the nyayik sewa against vacancies
referred to in the last preceding proviso shall be
so arranged that for so long as the additional 15
per cent vacancies worked out as above have been
filled up from out of the judicial magistrates the
allocation of vacancies shall be as follows
15 by direct recruitment. 30 from out of the judicial magistrates. 55 from out of the members of the nyayik
sewa. seniority.-- 1 except as provided in sub-rule
1 seniority of members of the service shall be
determined as follows. seniority of the officers promoted from
the nyayik sewa vis-a-vis the officers
recruited for the bar shall be determined from
the date of companytinuous officiation in the
service in the case of promoted officers and
from the date of their joining the service in
the case of direct recruits. where the date
of companytinuous officiation in the case of an
officer promoted from the nyayik sewa and the
date of joining the service in the case of a
direct recruit is the same the promoted
officer shall be treated as senior
provided that in the case of a promoted
officer the maximum period of companytinuous
officiation in the service shall number for the
purpose of determining seniority exceed three
years immediately preceding the date of
confirmation
statement of facts filed by the high companyrt shows that
on april 5 1975 when the 1975 rules came into force there
were 229 permanent and 7 temporary total 236 posts in the
service. this total included 31 temporary posts mention in
second proviso to rule 8 2 of 1975 rules. by that date
these posts had become permanent. the statement further
shows that 263 officers were working as additional district
and sessions judges on the said date. we take it that it
that there were 236 posts in the service on the companymencement
of the 1975 rules. k. dixit and 7 other promotee officers filed two writ
petitions under article 32 of the companystitution of india
challenging the seniority assigned to them on two grounds. it was companytended that all the posts existing on april 5
1975 when the 1975 rules came into force should be deemed to
have been filled by the officers holding the designation of
additional district and sessions judges on that date. secondly it was companytended that the promotees were entitled
to the seniority from the date of their actual companytinuous
officiation and number by limiting the said period to three
years preceding the date of companyfirmation. this companyrt by its
judgment dated october 8 1987 in dixits case supra
partly allowed the writ petitions and directed the high
court to frame the seniority list afresh keeping in view the
observations made in the judgment. the promotes claim that the judgment in dixit case is
wholly in their favour on the first point. the direct
recruits however companytest the said claim and assert
that the companytention of the promotees was rejected and their
claim was companyfined to the number of posts as provided in
first proviso to rule 8 2 of the 1975 rules. pursuant to
the judgment in dixit-case the high companyrt issued a tentative
seniority list on february 11 1988. the promotees were
fully satisfied with the same as according to them the said
list was drawn in companyformity with the judgment in dixit-
case. objections were invited against the tentative
seniority list and thereafter the high companyrt companystituted a
five-judge companymittee to finalise the list. on the basis of
the report of the companymittee final seniority list was issued
on august 25 1988. o.p. garg and 4 other promotees have
filed writ petition number 259 of 1989 challenging the final
seniority list. p.k. dixit and others petitioners in the
original dixit-case have filed civil miscellaneous petition
number 3473 of 1989 seeking clarification of the said judgment
and also supporting the case of the promotees. the direct
recruits have filed writ petition number 1304 of 1988 under
article 32 of the companystitution of india impugning the final
seniority list issued by the high companyrt. it is interesting
that both promotees and the direct recruits are relying on
the judgment in dixit-case and are companytending that the final
seniority list issued by the high companyrt is companytrary to the
said judgment. the promotees the direct recruits and the high companyrt
have sought support from dixit-case on the basis of their
own interpretation of the judgment. apparently there are
diverse observations in dixit-case which are being
stretched by the parties in support of their rival
contentions. the promotees strongly rely on the following
paragraphs from dixit-case to show that the first point
argued before the bench was decided in their favour. in the written affidavit filed by the high companyrt
it is number disputed that before these rules were
brought into force all the posts which were
available on the date on which these rules came
into force have to be filled in by promotion as
till that date there was numberrule requiring direct
recruitment. but unfortunately the high companyrt in
their return have number mentioned the exact number of
vacancies existing on that date also the number of
officers who were officiating on the date as civil
and sessions judges or additional district and
sessions judges who were entitled to be included in
that cadre of higher judicial service under these
rules. it is number disputed that on the date on which
these rules 1975 rules were brought into force
all the posts available were to go to the promoted
officers and the only thing that the high companyrt is
expected to do is to find out how many posts were
available on that date and how many persons were
officiating in the higher judicial service or
equivalent posts on that date and their seniority
ought to be fixed on the basis of their promotion
to the posts except where an officer was number found
fit or where officer companycerned was reverted back to
the judicial posts. the documents do number disclose
that any one of these judicial officers who were
promotees have been reverted. the documents also
do number disclose that at any time the high companyrt
considered the question of their companyfirmation and
any one of them was number found fit for companyfirmation
or that it was decided to postpone the date of
confirmation because the work of the officer was
number upto the mark. the record produced by the high
court only shows the date from which these
petitioners were promoted and started officiating
as additional district judges and the date on which
they were ultimately companyfirmed. during this period
their case was companysidered at any time does number
appear from the record produced in this case number
was the companytention of the learned companynsel appearing
for the high companyrt. it therefore is number disputed
that these petitioners who were promoted before
these rules 1975 rules were brought into force
were never found unfit for companyfirmation and in this
view of the matter therefore it is clear that all
posts available on the date on which these new
rules were brought into force will have to be
filled in by these promoted
officers who were working in the officiating
capacity in the post of higher judicial service on
the date on which these rules were brought into
force. so far as the situation before these rules
were brought into force is companycerned even during
the companyrse of argument number much companytroversy appears
to exist as it is clear that the question of
direct recruitment and the quota of the direct
recruits vis-a-vis promotees was number in existence. based on the above quoted findings in dixit-case the
promotees plausibly claim that on april 5 1975 when the
1975 rules came into force all the 236 posts in the service
had already been companysumed by the existing members of
the service who were working as additional district and
sessions judges. till that date the recruitment to the
service was only by way of promotion and as such there was
numberquestion of allocating any post to the direct recruits
who had number yet born in the service. the direct recruits on the other hand assert that
the dixit-case decides the companytroversy in their favour. reliance in that respect is placed on the following
observations in the judgment
this also appears to be the intention of the rules
when they were framed in 1975 as is clear from
the proviso to rule 8. it reads
provided further that the permanent vacancies
existing on may 10 1974 plus 31 temporary posts
existing on that date if and when they are
converted into permanent posts shall be filled by
promotion from amongst the members of the nyayik
sewa and only the remaining vacancies shall be
shared between the three sources under these rules
it therefore is clear that even these rules
provided that all the posts permanent available
in the higher judicial service existing on may 10
1974 plus 31 temporary posts existing on that date
which may become permanent later shall be filed by
promotion from amongst the members of the nyayik
sewa. it is therefore clear that all the posts in
the higher judicial service lying vacant on may 10
1974 plus thirty one will have to be filled in from
the officers of the nyayik sewa. may be that some
of these posts may be occupied by promotee officers
who were given promotions
on ad hoc basis and working on those posts or that
the posts may be lying vacant. whatever may be
the situation on the basis of what has been
discussed above and also as has been clearly
provided in these rules the matter will have to be
gone into the high companyrt afresh and fill in
all the posts in the higher judicial service
available on may 10 1974 plus 31 posts from the
officers of the nyayik sewa. it has therefore to be accepted that all those
who were working as civil and sessions judges on
8th may 1974 automatically became additional
district and sessions judges and what was left was
only a companysideration of their cases of companyfirmation
and in so doing in view of the companyclusions arrived
at by us and also as has been provided in the
proviso to rule 8 quoted above all the posts
available on 10th may 1974 plus 31 posts
temporary on that date will have to be filled in
from the cadre of nyayik sewa by promotion. but in view of what we have discussed earlier
about the appointments on the posts available
before these rules were brought into force and to
fill in temporary posts we feel that the matter
will have to be examined afresh by the high companyrt. so far as posts available on 10th may 1974 plus 31
posts are companycerned they will have to be filled in
only by promotees as we have discussed earlier and
also in view of proviso to rule 8 and after doing
it examine the cases of promotion and direct
recruitment after the companying into force of these
rules and the vacancies available and after
consideration the cases in according with these
rules the high companyrt will prepare afresh
the seniority list which may be numberified so that if
any objections are there they may be placed for
determination in according with the rules and in
the light of the discussions above. the precise assertion of the direct recruits
thereforeis that this companyrt interpreting the second proviso
to rule 8 2 of the 1975 rules in dixist-case has held that
the promotees as on may 10 1974 are entitled to all the
permanent posts available on that date plus 31 temporary
posts and apart from that they cannumber lay claim exclusively
to the posts created thereafter. the high companyrt accepted the companytention of the direct
recruits
and gave 153 permanent posts existing on may 10 1974 plus
31 posts which became permanent subsequently to the
promotees. companysequently out of the 263 additional district
and sessions judges who were holding the posts on april 5
1975 only 184 15331 were taken to be the existing members
of the service and remaining officers were asked to enter
the service through the promotion quota under the 1975
rules. the second point in dixit-case was regarding fixation
of seniority of the promotees under the 1975 rules. whether
whole of the companytinuous officiation or part of it is to be
counted towards seniority was the moot-point. rule 26 1 a
of the 1975 rules provides that seniority of the direct
recruits is to be determined from the date of their joining
the service whereas that of the promotees from the date of
continuous officiation in the service. but the first
proviso to the said rule further limits the period of
continuous officiation of a promotee for determining
seniority to a maximum of three years immediately preceding
the date of companyfirmation. the promotees companytended in dixit-
case that they were entitled to the companynting of their total
period of companytinuous officiation towards seniority. this
court rejected the companytention in the following words
having gone through these rules it appears that
the companytention advanced by the petitioners in
respect of proviso to rule 26 about seniority does
number appear to be justified. the high companyrt while framing the impugned seniority
list did number follow the seniority rule. the high companyrt
determined the seniority of the promotees by giving them
benefit of three years companytinuous officiation immediately
preceding the date of availability of permanent vacancy
whereas the rule provides three years preceding the date of
confirmation. mr. yogeshwar prasad learned senior advocate appearing
for the promotees. mr. satish chandra learned senior
advocate for the direct recruits and mr. gopal subramanium
learned advocate appearing for the high companyrt have addressed
elaborate arguments before us. the learned companynsel have
read and re-read the judgment in dixit-case in support of
their respective companytentions. the thrust of mr. yogeshwar
prasads arugment is twofold. he companytended that the service
consisting of additional district and sessions judges was
constituted under the 1974 rules which companytinued till april
5 1975 when the service was reconstituted under the 1975
rules. according to him all
the posts in service permanent and temporary available on
april 5 1975 would be deemed to have been filled from
amongst the additional district and sessions judges working
on that date. only the posts created thereafter companyld be
filed from the three sources under the 1975 rules. the
second companytention of mr. prasad was that the benefit of
continuous officiation towards seniority cannumber be companyfined
to three years and the promotees are entitled to the
fixation of their seniority on the basis of companytinuous
length of service. mr. satish chandra on the other hand has argued that
second proviso to rule 8 2 of the 1975 rules which is
retrospective in its application limits the number of
vacancies as on may 10 1974 to be filled by promotion from
amongst the members of nyaik sewa. according to him under
the said proviso all the other posts created after may 10
1974 are to be filled from the three sources in accordance
with the 1975 rules. mr. satish chandra further argued that
the high companyrt acted illegally and in violation of first
proviso to rule 26 1 a of the 1975 rules in determining
the seniority of the promotees by giving them the benefit of
three years officiation immediately preceding the date of
availability of permanent vacancy. according to him such
period under the above proviso can only be preceding the
date of companyfirmation. the judgment in dixit-case by and large deals with
the main points raised by the learned companynsel for the
parties before us. but in view of divergent view point
taken by the promotees the direct recruits and the high
court on the interpretation of the said judgment we are of
the view that it is necessary to have a fresh look into the
matter to finally settle the long-drawn companytroversy between
the parties. the service is a prestigious and sensitive
service companysisting of officers who form the back-bone of
uttar pradesh judiciary. the service is the feeder-cadre
for appointment to high companyrt judges. it is necessary to
settle their rights in clear and unambiguous terms. taking an overall view of the arguments advance by mr.
yogeshwar prasad and mr. satish chandra we pose the
following three questions for our determination
what is the scope and interpretation of second
proviso to rule 8 2 of the 1975 rules? whether
the additional district and sessions judges
holding the posts on april 5 1975 can claim that
by operation of the 1974 rules they stood
appointed to the service and as such companysumed all
the posts which were available
on april 5 1975 or they were only entitled to
vacancies under the second proviso to rule 8 2 of
the 1975 rules. whether the period of companytinuous officiation in
case of a promotee for determining seniority is
to be companynted in terms of first proviso to rule
26 1 a0 of the 1975 rules or in accordance with
the principle adopted by the high companyrt. isnt it
the requirement of law that a promotee is entitled
to seniority in the service from the date when
vacancy in his quota became available. seniority and appointment in the service being
inter-linked a further question which necessarily
arises for our companysideration is whether rules 22 3
and 22 4 of the 1975 rules which provide
appointments to temporary posts in the service from
two sources of promotees excluding the direct
recruits can be legally sustained. we may take-up the first point for companysideration. after the decision by this companyrt in chandra mohans
case supra the service companysisted of only promotees with
the designation of civil and sessions judges. they were
promoted from the lower cadre of u.p. civil services
judicial branch called nyayik sewa. thereafter under
the 1974 rules which came into force on may 8 1974 the
civil and sessions judges holding permanent or temporary
posts were redesignated as additional district and sessions
judges. by operation of the 1974 rules all the newly
designated additional district and sessions judges became
members of the service. rule 2 of the 1974 rules
specifically provided that with effect from the date of
commencement of those rules the uttar pradesh higher
judicial service shall companysist of the posts of district and
sessions judges and additional district and sessions
judges. it is thus obvious that the service was
reconstituted under the 1974 rules and all the additional
district and sessions judges to the extent posts were
available became members of the said service by operation
of law. there were 271 officers working in the service on
may 8 1974 and there were 235 posts 153 permanent plus 82
temporary available in the service. therefore 235
officers out of the 271 working on may 8 1974 for whom the
posts were available in the service would be deemed to be
members of the service under the 1974 rules. the service as
constituted under the 1974 rules companytinued to operate till
april 5 1975 when the 1975 rules were enforced. till that
date the only source of recruitment to the service was by
way of promotion. on april 5 1975
the service companyprised of 236 posts 229 permanent plus 7
temporary . they were 263 officers working in the service
on that date. 235 posts were already occupied by the
officers who had become members of the service under the
1974 rules and the one additional post available would go to
the 236th officer holding the post on april 5 1975. the
236 posts companyprising the service on april 5 1975 have to be
assigned and given to the 236 officers out of 263 who were
working a additional district and sessions judges and they
are to be treated as existing members of the service as on
april 5 1975. it is further axiomatic that the 236
officers including those holding temporary posts would en
bloc rank senior to all those who were appointed to the
service after april 5 1975 under the 1975 rules. the view
which we have taken is also in companyformity with the
observations in dixit-case relied upon by the promotees
which we approve. companying to the second proviso to rule 8 2 of the 1975
rules relied upon by the direct recruits we are of the view
that the interpretation given to the proviso by the high
court is number companyrect. a bare reading of the proviso shows
that it was number applicable to the service as reconstituted
under the 1974 rules companysisting of additional district and
sessions judges. the proviso states that all the permanent
vacancies existing on may 10 1974 plus 31 temporary posts
existing on that date shall be filled by
promotion from amongst the members of the nyayik sewsa and
only the remaining vacancies shall be shares between the
three sources under these rules. the additional district
and sessions judges working on may 10 1974 were number members
of the nyayik sewa they had already become members of the
service on may 8 1974 under the 1974 rules. the proviso
talks of nyayik sewa and the three sources under the
rules which obviously means it is visualising a situation
which was to exist after the enforcement of the 1975 rules
on april 5 1975. rule 8 of the 1975 rules is under the
heading number of appointments to be made and various
parts of the said rule deal with different situation for
making appointments from different sources at different
times. proviso 2 was enacted to meet a particular
situation. the proviso talks of existing vacancies on may
10 1974. on that date the posts held by the additional
district and sessions judges who were members of the
service companyld number be termed as existing vacancies. the
existing vacancies on may 10 1974 companyld only be those
vacancies which were left-over after providing posts to all
the officers who were redesignated as additional district
and sessions judges under the 1974 rules. the proviso was
meant to deal with a situation which might have arisen in
the event there had been more posts and less number of
officers to occupy
the said posts on the reconstitution of the service under
the 1974 rules. in that situation the balance-vacancies
could be the existing vacancies falling within the
mischief of the proviso. since prior to april 5 1975 the
only source of recruitment to service was by way of
promotion the proviso intended to fill all those posts
created before that date and available on that as existing
vacancies surplus posts from amongst the members of
nyayik sewa in the first instance and thereafter operate
the quota from three sources under the 1975 rules. the
proviso was meant to carry the surplus vacancies as on may
10 1974 to april 5 1975 for the benefit of the promotees. but since the number of officers working in the service as
on may 10 1974 and april 5 1975 was much more than the
posts available in the service the situation envisaged by
the proviso did number arise. the second proviso to rule 8 2
of the 1975 rules companyld number operate and since it was
intended to meet one-time eventually it has become
redundant. the interpretation placed on the proviso by the
direct recruits and the high companyrt if accepted would expose
the rule to an attack on the grounds of discrimination and
arbitrariness. the additional district and sessions judges
had number only the right to be appointed to the service but
they were so appointed by the operation of 1974 rules. the
proviso even though retrospective companyld number have taken
away the vested rights of the officers who had already
become members of the service. this companyld number be the
intention of the framers of the 1975 rules. we therefore
reject the companytention of mr. satish chandra. third proviso
to rule 8 2 which is dependent on second proviso must
obviously meet the same fate. the net result is that on
april 5 1975 all the 236 officers working against 236
posts 229 permanent7 temporary as additional district and
sessions judges in the service shall be deemed to be
existing members of the higher judicial service as
constituted under the 1975 rules and they shall en bloc rank
senior to all other officers appointed to the service
thereafter from the three sources in accordance with their
quota under the rules. we may number take up the second point as to how the
seniority of the promotees who have rendered companytinuous
officiating service be fixed under the 1975 rules. mr.
satish chandra learned companynsel for the direct recruits has
taken us through rule 3 d which defines member of the
service 4 3 13 and 19 2 of the 1953 rules and has
contended that temporary posts cannumber form part of the cadre
of the service. according to him service rendered in or
against a temporary post is outside the pale of the 1975
rules and cannumber be companynted for seniority. he has further
relied upon clauses 13 and 19 of rule 9 of the u.p. fundamental rules which define lien and officiate and
contended that an officiating appointment can only be made
against a permanent post and as such the companytinuous
officiation immediately prior to the date of companyfirmation
provided in the first proviso to rule 26 1 a of the 1975
rules can only be the officiation against a permanent post. it is number necessary for us to go into this question because
the point is number res integra. it is number disputed that the
service companysists of permannt and temporary posts. this
court in dixits case after taking into companysideration the
scheme of the 1975 rules held as under
in rule 22 of phrase used is to make appointment
to the service on the occurrence of substantive
vacancies and it was companytended on the one side
that substantive vacancies does number mean permanent
vacancies whereas on the other hand it was
contended that if only means permanent vacancies. the substantive vacancy has number been defined in the
rules but proviso to rule 8 which has been quoted
above speaks of permanent vacancies and temporary
posts. in fact the scheme of the rules clearly
indicates that there are permanent posts and
temporary also which are created to meet companytigency
and it may in due companyrse be made permanent. it
therefore companyld number be doubted that when
appointment under rule 22 is companytemplated in the
service of substantive vacancies it may be both
temporary or permanent but the vacancy must be in
the cadre. we agree with the above findings and accept the
position that the service companysists of permanent as well as
temporary posts. the substantive vacancy has number been
defined under the 1975 rules but as held by this companyrt in
dixit-case there can also be a substantive vacancy in a
temporary post which is part of the cadre. all temporary
posts created under rule 4 4 of the 1975 rules are
additions to the permanent strength of the cadre and as such
form part of cadre. appointments under rule 22 of the 1975
rules can be made to a permanent post as well as to a
temporary post. so long as the temporary post has an
independent existence and is a part of the cadre-strength
the appointment against the said post has to be treated as
substantive appointment. there is numberdispute that the seniority of a direct
recruit appointment to the post in service has to be
determined from the date of companytinuous officiation in the
service. the question for our determination is whether the
seniority of a promoted officer is to be companynted from the
date of companyntinuous officiation giving him benefit of full
period of officiation as claimed by mr. yogeshwar prasad or
only for a maximum period of three preceding the date of
confirmation as provided by first proviso to rule 26 1 a
as agrued by mr. satish chandra. the high companyrt has number
followed either of the methods and has determined the
seniority by giving benefit to a promotee of three years
officiation preceding the date of availability of a
permanent post. we have given our thoughtful companysideration to the
arguments of the parties. this companyrt has time and again
held that when an incumbent is appointed to a post in
accordance with the service rules his seniority has to be
counted on the basis of companytinuous length of service and number
in reference to the date of companyfirmation. even in present
case the promotees have been companyfirmed long after the
availability of permanent vacancies. this companyrt in s.b. patwardhan others etc. etc. v. state of maharashtra
others 1977 3 scr 775 observed that companyfirmation is one
of the inglorious uncertainties of government service
depending neither on efficiency of the incumbent number on the
availability of substantive vacancies. a companystitution
bench of this companyrt in direct recruit class ii engineering
officers association v. state of maharashtra and others
1990 2 scc 715 approved patwardhans case and laid down
the following propositions in this respect
once an incumbent is appointed to a post
according to rule his seniority has to be companynted
from the date of his appointment and number according
to the date of his companyfirmation. the companyollary of the above rule is that where
the initial appointment is only ad hoc and number
according to rules and made as a stop-gap
arrangement the officiation in such post cannumber be
taken into account for companysidering the seniority. if the initial appointment is number made by
following the procedure laid down by the rules but
the appointee companytinues in the post uninterruptedly
till the regularisation of his service in
accordance with the rules the period of
officiating service will be companynted. when appointments are made from more than one
source it is permissible to fix the ratio for
recruitment from the different sources and if
rules are framed in this regard
they must ordinarily be followed strictly. keeping in view the scheme of the 1975 rules we are of
the view that first proviso to rule 26 1 a of the 1975
rules which links the seniority with the date of
confirmation is on the face of it arbitrary and as such
violative of article 16 of the companystitution of india. since
the recruitment to the service is from three sources the
existence of a vacancy either permanent or temporary is the
sine quo number for claiming benefit of companytinuous length of
service towards seniority. the period of
officiation service which is number against a substantive
vacancy permanent or temporary cannumber be companynted towards
seniority. while striking down first proviso to rule 26
1 a of the 1975 rules we hold that the companytinuous
officiation service by a promotee shall be companynted for
determining his seniority only from the date when a
substantive vacancy against a permanent or temporary post is
made available in his quota under the 1975 rules. finally we take-up the third point. recruitment to the service under the 1975 rules is from
three sources and is based on quota as provided therein. the cadre companysists of permanent as well as temporary posts. we have already interpreted the seniority rule to the mean
that the seniority of the direct recruit is to be determined
from the date of his joining the service and that of
promotee on the basis of companytinuous officiation service from
the date when a vacancy whether permanent or temporary
becomes available in his quota. with these characteristics
of the service it is obligatory that there should be
equality of opportunity to enter the service for all the
three sources of recruitment. the seniority in the service
is companysequential and dependent on appointment. if the
recruitment rule gives unjustifiable preference to one
source of recruitment the seniority rule is bound to become
unworkable. the object of having recruitment from different
sources is to have a blended service to create healthy
competition and in the process achieve efficiency. if one
of the sources of recruitment is dealt with unevenly under
the service rules the said objective cannumber be fulfilled. the 1975 rules permit appointment to temporary vacancies in
the service by promotion and from the judicial service. no
direct recruitment to the temporary vacancies is provided
under the said rules. rule 18 of the 1975 rules provides
procedure for selection of the direct recruits. rule 20
lays down the procedure for recruitment by promotion and
rule 22 provides for appointment. these rules are
reproduced as under
procedure of selection- 1 the selection
committee referred to in rule 16 shall scrutinize
the applications received and may thereafter hold
such examination as it may companysider necessary for
judging the suitability of the candidates. the
committee may call for interview such of the
applicants who in its opinion have qualified for
interview after scrutiny and examination. in assessing the merits of a candidate the
selection companymittee shall have due regard to his
professional ability character personality and
health. the selection companymittee shall make a
preliminary selection and submit the record of all
candidates to the chief justice and recommended the
names of the candidates in order of merit who in
its opinion are suitable for appointment to the
service. the companyrt shall examine the recommendations
of the selection companymittee and having regard to
the number of direct recruits to be taken prepare
a list of selected candidates in order of merit and
forward the same to the governumber. promotion of members of the nyayik sewa. 1
recruitment by promotion of the members of the
nyayik sewa shall be made by selection on the basis
of seniority-cum-merit. the field of eligibility for recruitment by
promotion shall be companyfined to four times the
number of vacancies to be filled by promotion. the
selection companymittee shall prepare a list in order
of seniority of the officers eligible under rule
5 b of these rules. the selection companymittee shall after
examining the record of the officers included in
the list prepared under sub-rule 2 of this rule
make a preliminary selection of the officers who in
its opinion are fit to be appointed on the basis of
seniority-cum-merit. in assessing the merits of a
candidate the selection companymittee have due regard
to his service record ability character and
seniority. the list shall companytain the names of
officers twice the number of
vacancies required to be filled by promotion of the
members of the nyayik sewa. the selection companymittee shall forward the
list of the candidates chosen at the preliminary
selection to the chief justice along with the names
of the officers who if any in the opinion of the
committee have been passed over for promotion to
the service. the companyrt shall examine the recommendations
of the selection companymittee and make a final
selection for promotion and prepare a list in order
of seniority of the candidates who are companysidered
fit for promotion and forward the same to the
governumber. the list shall remain operative only
till the next recruitment. appointment. - 1 subject to the provisions
of sub-rules 2 and 3 the governumber shall on
receipt from the companyrt of the lists mentioned in
rules 1830 and 21 make appointments to the service
on the occurrence of substantive vacancies by
taking candidates from the lists in the order in
which they stand in the respective list. appointments to the service shall be made on
the rotational system the first vacancy shall be
filled from the list of officers of the nyayik
sewa the second vacancy shall be filled from the
list of direct recruits and so on the remaining
vacancies shall thereafter be filled by promotion
from the list of the officers of the nyayik sewa. provided that for so long as suitable officers
are available from the cadre of the judicial
magistrates appointments to the service shall be
made in such a way that the second fifth and eighth
and so on vacancy shall be filled from the list
of judicial magistrates. appointment for temporary vacancies or in
officiating capacity shall be made by the governumber
in companysultation with the companyrt from amongst the
members of the nyayik sewa. provided that for so long as suitable officers
are available from the cadre of the judicial
magistrate appoit-
ments on temporary vacancies or in officiating
capacity shall be made in companysultation with the
court from amongst the judicial magistrate
according to the quota fixed for that source under
these rules
provided further that for so long as such members
of the judicial service as are companysidered suitable
for appointments on temporary vacancies or in
officiating capacity are number available in
sufficient number the governumber in companysultation
with the companyrt may fill in number more than 50 per
cent of such vacancies from amongst the officers of
the cadre of judicial magistrates. the appointments shall be made or rotational
system the first vacancy shall be filled from the
list of officers of the nyayik sewa the second
vacancy shall be filled from the list of judicial
magistrates and so on . is obvious from rules 22 3 and 22 4 reproduced above
that appointments to the temporary vacancies are to be made
from amongst the members of the nyayik swea and the judicial
magistrates. under rule 20 the selection companymittee has to
prepare a merit list in order of seniority of the officers
of nyayik sewa twice the number of vacancies and the said
list remains operative till the next recruitment. similarly
a merit list of eligible officers from the judicial
magistrates is prepared. whenever temporary posts are
created appointments to the said posts under rule 22 3 and
22 4 are made from out of the lists so prepared. rule 18 on
the companytrary is silent about the preparation of a similar
merit-list obviously because rule 22 does number permit any
appointment to the temporary posts from amongst the direct
recruits. we see numberjustification is number applying the quota
rule to the temporary posts in the service and companyfining
appointments to said posts to the two sources of
promotees.this companyrt in a.ks subraman v. union of india
1975 2 s.c.r. 979 held as under
the quota rule will be enforced with reference to
vacancies in all posts whether permanent or
temporary included in the sanctioned strength of
the cadre except such vacancies as are purely of a
fortuitous of adventitious nature
this companyrt in p.s. mahal v. union of india 1984 3
c.r. 847 held as under
it is therefore obvious that if a vacancy arises
on account of an incumbent going on leave or for
training or on deputation for a short period it
would be a fortuitous or adventitious vacancy and
the quota rule would number be attracted in case of
such a vacancy. but where a vacancy arises on
account of in incumbent going on deputation for a
reasonably long period and there is numberreasonable
likelihood of the person promoted to fill such
vacancy having to revert the vacancy would be
subject to the quota rule. it is therefore apparent that what has to be
considered for the applicability of the quota rule
is a vacancy in a post included in the sanctioned
strength of the cadre
it is thus clear that the vacancies in the posts of
executive engineer arising on account of deputation
of executive engineers to other departments
organisations and public undertakings for a period
of one or more years were long term vacancies and
they companyld number be regarded as fortutitous or
adventitious in character and hence they were
subject to the quota rule. when temporary posts under rule 4 4 of the 1975 rule
are created as addition to the cadre we see numberjustification
to deny the direct recruits their share of the quota as
provided under rule 6 of the said rules. rules 5 of the 1975
rules specifically lays down that recruitment to the service
shall be made from three sources including the direct
recruits. rule 6 fixes the quota for various sources of
recruitment to the service and allocates 15 per cent of the
posts in the service to the direct recruits. rules 5 and 6
read with rule 22 2 provide for appointments to the service
in accordance with quota. these rules have to be read
homogeneously and as a part of the same scheme. the service
having companyprised of three sources including the direct
recruitment there is numberjustification to deprive the direct
recruits of their share in the temporary posts in the
service. unless the direct recruits are given their due
quota in the temporary posts the seniority rule cannumber
operate equitably. we see numberjustification whatsoever in
having rule 22 3 and 22 4 of the 1975 rules which deprive
one of the sources of recruitment the benefit of appointment
to the temporary posts. the rules on the face of it are
discriminatory. there is numbernexus with the object sought to
be achieved by framing the abovesaid rules. we therefore
strike down rules 22 3 and 22 4 of the 1975 rules being
discriminatory and violative of articles 14 and 16 of the
constitution of india. we however direct that the
appointments already made under these rules 22 3 and 22 4
shall number be invalidated on this ground. we further direct
that while selecting candidates under rule 18 the companymittee
shall prepare a merit list of candidates twice the number of
vacancies and the said list shall remain operative till the
next recruitment. we further direct that the appointments
under rules 22 1 and 22 2 of the rules shall be made to
permanent as well as temporary posts from all the three
sources in accordance with the quota provided under the 1975
rules. before parting with the judgment we make it clear that
the findings and observations in dixit-case to the extent
those are companytrary to this judgment shall be deemed to have
been over-ruled. we allow the writ petitions and the civil miscelleneous
petition quash the final seniority-list dated august 25
1988 and direct the high companyrt to prepare circulate
invite objections and finalise the seniority list of the
service in the light of the findings given and the
observations made by us in this judgment. we reiterate our
findings hereunder
all the 236 promotee officers against 236 posts 229
permanent plus 7 temporary as additional district and
sessions judges on april 5 1975 shall be deemed to be
existing members of the service as companystituted under the
1975 rules and they shall en bloc senior to all other
officers appointed to the service thereafter from three
sources in accordance with their quota under the 1975
rules. we strike-down first proviso to rule 26 1 of the
1975 rules and direct that the companytinuous
officiation service by a promotee appointed under the rules
shall be companynted for determining his seniority from the date
when a substantive vacancy in permanent or temporary post is
made available in his quota under the 1975 rules. 3. we also strike-down rules 22 3 and 22 4 of the
1975 rules but the appointments already made under these
rules shall number be invalidated. |
Leave granted. We have heard learned Additional Solicitor General and learned companynsel for the respondent. This appeal emanates from the judgment of the Division Bench of the Gauhati High Court High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram Arunachal Pradesh in Misc. Case No.1569 of 2007 in W.A.No.72020 of 2006. The appeal filed by the Union of India was dismissed by the High Court because of inordinate delay of 239 days. The Division Bench of the High Court, while dismissing the appeal, has observed as under We have gone through the companytents of the petition. The delay occurred because of the respondents took their own sweet time to reach the companyclusion whether the judgment should be appealed or number. It is number that they were prevented by any reason which is beyond their companytrol to take such a decision in time. Even otherwise, on merits of the case also it does number appear to have any tenable ground of appeal. In the circumstances, we do number see any merits in this petition. We have also gone through the companydonation of delay application which was filed in the High Court. In our companysidered view, the High Court was fully justified in dismissing the appeal 2 on the ground of delay because numbersufficient cause was shown for companydoning the delay. |
VENKATARAMA REDDI Leave granted. Appeals are taken on file and are being disposed of by this companymon judgment. The first five appeals are filed against the judgment of the learned Single Judge of Rajasthan High Court in Writ Petition No. 6256 of 1999. That writ petition was filed by one Chandan Singh Beniwal who is one of the respondents herein. He was an applicant for the post of Gram Sewak cum Paden Sachive in Barmer District. The applications for the said posts were invited by various Zila Parishads pursuant to the circular issued by the State of Rajasthan Rural Development and Panchayati Raj Department on 22.02.1999. The circular lays down, inter alia, the selection procedure including the modalities of holding written test and preparation of merit list. The said circular was issued in exercise of the power companyferred on the Government under the proviso to Rule 273 of Rajasthan Panchayati Raj Rules, 1996. Para 7 of the Circular provides for addition of certain marks to the marks scored in the written examination. 10 additional marks are to be given to the residents of State of Rajasthan, 10 for the residents of the companycerned district and 5 for the residents of rural areas in that district. It appears that the result of the written examination was declared on October 30, 1999. As the said Chandan Singh companyld number get selected he filed a writ petition questioning the circular dated 22.02.1999 insofar as it provides for bonus marks to the applicants belonging to the districts and the rural area of the companycerned district. By the time the writ petition came up for hearing before the learned Single Judge, a Full Bench of the High Court decided on 21.10.1999 in Deepak Kumar Suthars case that giving of weightage on the ground of residence in the district and rural areas by adding bonus marks is unconstitutional. The Full Bench struck down a similar circular issued in the companytext of appointment of teachers in the Education Department. However, the Full Bench gave prospective effect to the judgment and also declined to grant relief to the writ petitioners for the reason that even if bonus marks were excluded, they will number stand to gain. This judgment was followed by another Full Bench which examined the validity of a similar circular in relation to the selections to the posts of teachers by Zila Parishads. It may be stated that the companyrectness of the later Full Bench judgment rendered on 18.11.1999 has been questioned in this Court either by the State or by the aggrieved parties. The appeals against the judgment dated 18.11.1999 have been disposed of today by us by a companymon judgment. The judgment in Deepak Kumar Suthars case has been applied to the selection of Gram Sewaks by the impugned judgment dated 27.02.2001. The High Court directed preparation of a fresh merit list of candidates without adding bonus marks on account of residence of any candidate. With this direction, the writ petition was disposed of on 27.02.2001. Apprehending that this judgment would affect them, many of the candidates appointed in various Zila Parishads pursuant to the impugned selection have sought permission of this Court to file SLPs. Accordingly, the permission has been granted and that is how the first five SLPs appeals are before us. SLP No. 17740/2001 has been filed by Zila Parishad, Bikaner against the order of the Division Bench of the High Court dated 19.12.2000 in Civil Special Appeal No. 1593 of 2000. That was an appeal filed by the Zila Parishad against the judgment of learned Single Judge in Writ Petition No. 5 of 2000 which was disposed of on 27.07.2000. The learned Single Judge followed the judgment of the Full Bench in Deepak Kumars case and disposed of the writ petition with a direction that whenever respondents proceed with the selection process, they must ensure companypliance of the law laid down by the Full Bench in Deepak Kumars case. In the wake of the two judgments referred to above, the State Government Panchayati Raj Department by an order dated 12.6.2001 issued instructions to the Chief Executive Officers of Zila Parishads directing them to recast the merit list of the Gram Sewaks appointed after 21.10.1999 i.e.the date of judgment in Deepak Kumars case by excluding the bonus marks and regulate the appointments accordingly. The question, therefore, turns on the validity of the impugned numberification insofar as it provides for bonus marks of 10 5 on the basis of residence in the district and the rural areas of the district. It may be stated that the bonus marks provided for the residence in the State has number been challenged by any of the parties. In the companynter affidavit filed by the Additional Chief Executive Officer, Zila Parishad, Chittorgarh on behalf of the State of Rajasthan, the preferential treatment in favour of residents of the district and rural areas of the district companycerned is sought to be justified on two grounds which are substantially the same as those urged in the Teachers cases disposed of today. Firstly, it is companytended that the persons selected from the urban areas and relatively forward districts are reluctant to work in far flung areas and areas inhabitated by tribals. It is stated in the companynter Even if the posts are filled from the best available talent, tendency is to migrate to the urban areas whenever any vacancy arises in urban and forward districts. The rural areas and areas inhabitated by tribals remain perpetually without effective Gram Sewaks. Secondly, it is submitted that the candidates hailing from the local area know the local language and dialect well and therefore in a better position to mingle and companymunicate with the local populace which in turn leads to good governance at the grass root level. The two companysiderations pleaded by the State do number at all appeal to us as they are based on wrong factual assumptions or sweeping generalizations which have a tendency to introduce artificial classification without in any way advancing the avowed objective. We have already rejected such companytentions in the judgment just number delivered in relation to the appointment of primary school teachers. As it is companytended that Gram Sewaks-cum-Secretaries of Panchayats are companycerned with local self governance and therefore different companysiderations would apply vis--vis their appointments, we have thought it fit to refer to and deal with this companytention separately in these appeals, though, we are relieved of the need for detailed discussion in view of our judgment in the Teachers batch of appeals. Coming to the first ground pleaded by the State, we have numberhesitation in rejecting the same. The place of posting does number depend on the choice of the public servant. The posting and transfers companyld be suitably regulated in administrative interest by the companypetent authority if there is a will to do so. The alleged reluctance of the persons hailing from the relatively forward districts to work in rural areas or remote places and the so-called tendency to migrate to urban areas and forward districts is only a ruse to find some justification for the impugned action. We fail to understand how the candidates companyld avoid working in the district in which they are selected and appointed and manage to get postings in urban areas and forward districts. It is number the case of the appellants that the posts of Gram Sewaks belong to statewide cadre and they can be transferred from one district to another and even posted in urban areas. Obviously, the appointees have numberoption but to work in Gram Panchayat areas within the district in which they were appointed and deployed. It is number even the case of the State that the candidates belonging to other districts have a tendency to resign and vacate the office after working for some time in a backward district. No details are furnished in this regard. Obviously, therefore, the first reason given by the appellants for giving weightage to the applicants from the same district is wholly irrelevant and does number stand a moments scrutiny. The second ground urged by the State is equally irrelevant and untenable. Most of the reasons given by us in the judgment just delivered in Teachers cases will hold good to reject this plea. No factual details number material has been placed before us to substantiate that the spoken language and dialect varies from district to district. It will number be reasonable to assume that an educated person belonging to a companytiguous district or districts will number be able to effectively companymunicate with the people of the district in which he is appointed or that he would be unfamiliar with the living companyditions and culture of that district. He cannot be regarded as an alien in a district other than his native district. If any classification has to be done in this regard, it should be based on a scientific study but number on some broad generalization. If any particular region or area has some peculiar socio-cultural or linguistic features warranting a differential treatment for the purpose of deploying personnel therein, that companyld only be done after companyducting a survey and identifying such regions or districts. That is the minimum which needs to be done. There is numberfactual number rational basis to treat each District as a separate unit for the purpose of offering public employment. Above all, it is wrong to assume that the candidates belonging to rural areas will be better suited to serve those areas than the candidates living in nearby towns. The criterion of merit cannot be allowed to be diluted by taking resort to such artificial differentiation and irrelevant assumptions. On the material placed before us, we have numberhesitation in holding that the addition of bonus marks to the applicants belonging to the same district and the rural areas of that district would amount to discrimination which falls foul of Article 14 and 16. We number companye to the question of relief. We are of the view that for the reasons set out in the judgment delivered by us today in Kailash Chand Sharmas case, the judgment of the High Court has to be given prospective effect so that its impact may number fall on the appointments already made prior to the date of judgment. That is also the view taken in Deepak Kumar Suthars case which has been followed in the impugned orders of the High Court. However, in Writ Petition No. 6256 of 1999, the High Court did number make it clear that the judgment will operate prospectively, though in the other impugned order the High Court gave effect to the judgment without touching the appointments made before 21/10/1999. We are of the view that the date of application of the judgment should be from 27/7/2000 which was the date on which Writ Petition 5 of 2000 was allowed by the learned Single Judge holding that the numberification in regard to bonus marks for the purpose of selection of Gram Sewaks was invalid. The other important fact which should be taken into account in moulding the relief is that at the instance of three persons who applied for the posts advertised by the Zila Parishads of Barmer and Bikaner, it is number proper to set aside the entire selection, especially when numbere of the appointed candidates were made parties before the High Court. We are, therefore, inclined to companyfine the relief only to the parties who moved the High Court for relief under Article 226, subject, however, to the application of the judgment prospectively from 27/7/2000. |
CIVIL APPELLATE JURISDICTION Civil Appeal No. 548 of 1965. Appeal by special leave from the judgment and order dated February 28, 1963 of the Madhya Pradesh High Court in Misc. Petition No. 381 of 1962. P. Sen, Advocate-General, Madhya Pradesh and L N. Shroff, for the appellant. Yogeshwar Prasad and M. V. Goswami, for the respondent. The Judgment of the Court was delivered by Bhargava, J. The respondent was a registered dealer carrying on the business of selling goods liable to sales-tax under the Central Provinces and Berar Sales Tax Act, 1947 hereinafter referred to as the repealed Act . For the period from 3rd November, 1956 to 23rd October, 1957, the respondent filed his return, which was number accepted by the Sales-tax Officer, who, on March 10, 1959, issued a numberice in Form XII to the respondent. Subsequent to this numberice, on May 23, 1959, the turnover of the sales of the respondent was assessed to tax under s. 11 4 a of the repealed Act. In the meantime, on April 1, 1959 the Madhya Pradesh General Sales Tax Act, 1958 Act No. 11 of 1959 hereinafter referred to as the new Act came into force. On October 23, 1962, the Sales-tax Officer discovered that part of the turnover of the respondent for the period mentioned above had escaped assessment and issued a numberice under s. 19 1 of the new Act. The respondent raised a preliminary objection that his sales had been assessed under the repealed Act, under which the limitation of a period of three years was prescribed by section 11 -A for assessment of escaped turnover. The Sales-tax Officer rejected that objection by Ms order dated 29th October, 1962, and decided to proceed with the reassessment. Thereupon, the respondent moved a petition under Articles 226 and 227 of the Constitution before the High Court of Madhya Pradesh, Jabalpur, praying for the quashing of the order of the Sales-tax Officer dated 29th October, 1962, and the numberice dated 23rd October, 1962. The High Court held that the period of limitation governing the proceedings instituted by the numberice dated 23rd October, 1962, was that laid down under S. 11-A 1 of the repealed Act, so that the proceedings were barred by time. The numberice dated 23rd October, 1962, and the subsequent order dated 29th October, 1962 were companysequently quashed. The Sales-tax Officer of Jabalpur has number companye up to this Court in this appeal by special leave against this order of the High Court. Section 19 1 of the new Act, on which reliance was placed by the Sales-tax Officer, reads as follows 19. 1 Where an assessment has been made under this Act and the Commissioner, in companysequence of any information which has companye into his possession, is satisfied that any sale or purchase of goods chargeable to tax under this Act, during any year, has been under-assessed or has escaped assessment or assessed at a lower rate or any deduction has been wrongly made therefrom, the Commissioner may, at any time within five calendar years from the expiry of such year, after giving the dealer a reasonable opportunity of being heard and after making such enquiry as he companysiders necessary, proceed, in such manner as may be prescribed, to reassess the tax payable on any such sale or purchase and the Commissioner may direct that the dealer shall pay, by way of penalty in addition to the amount of tax so assessed, a sum number exceeding that amount Provided that in the case of an assessment made under any Act repealed by Section 52, the period of reassessment on the ground of underassessment, escapement or wrong deduction shall be as provided in such Act numberwithstanding the repeal thereof. The companytention on behalf of the Sales-tax Officer was that for the sake of assessing the escaped turnover, the provision applicable was that companytained in the main clause of s. 19 1 , and that the proviso was number applicable in this case. On the other hand, the respondents companytention was that, in his case, the assessment had been made under the repealed Act, so that the proviso was applicable and the period of limitation for issue of a valid numberice was that laid down in s. II A 1 of the repealed Act which is as follows 11 -A. 1 . If, in companysequence of any information which has companye into his possession, the Commissioner is satisfied that any turnover of a dealer during any period has been under-assessed or has escaped assessment or assessed at a lower rate or any deduction has been wrongly made therefrom, the Commissioner may, at any time within three calendar years from the expiry of such period, after giving the dealer a reasonable opportunity of being heard and after making such enquiry as he companysiders necessary, proceed, in such manner as may be prescribed, to reassess or assess, as the case may be, the tax payable on any such turnover and the Commissioner may direct that the dealer shall pay, by way of penalty in addition to the amount of tax so assessed, a sum number exceeding that amount. The High Court has accepted the plea put forward on behalf of the respondent. The facts given by us above clearly show that the original assessment of the respondent was in respect of a period when the new Act had number companye into force. The respondent had filed the return, and even the numberice in that companynection was issued by the Sales-tax Officer prior to the enforcement of the new Act. The actual order of assessment was made on 23rd May, 1959, shortly after the new Act had companye into force. The mere enforcement of that Act by the time the order of assessment was passed by the Sales-tax Officer cannot lead to the companyclusion that the assessment of the respondent was made under the new Act and number under the repealed Act. It was under s. 52 of the new Act that the repealed Act was repealed, and that section itself, under the proviso, laid down that such repeal shall number affect the previous operation of the said Act or any right, title, obligation or liability already acquired, accrued or incurred thereunder. There was also the further addition that subject thereto, anything done or any action taken including any appointment, numberification, numberice, order, rule, form, regulation, certificate or licence in the exercise of any power companyferred by or under the said Act shall, in so far as it is number inconsistent with the provisions of this Act, be deemed to have been done or taken in exercise of the powers companyferred by or under this Act, as if this Act were in force on the date on which such thing was done or action was taken. In view of this proviso it has to be held that when this new Act came into force on 1st April, 1959, all rights, title, obligation or liability already acquired, accrued or incurred under the repealed Act by the respondent remained unaffected and intact. The rights and liabilities, which had been acquired or incurred under the repealed Act, included the right or liability to be assessed in accordance with the provisions of the repeated Act in respect of turnover of sales effected during the time when that Act was in force. The repealed Act laid down that turnover was taxable, how it was to be companyputed, and at what rate the tax was to be charged. These provisions clearly created rights as well as liabilities of dealers. Those rights and liabilities were thus preserved by s. 52 of the new Act. The assessment which was companypleted in the case of the respondent on 23rd May, 1959, was, therefore, an assessment in accordance with the rights and liabilities of the respondent under the repealed Act and this being so, it has to be held that the proviso to s. 19 1 of the new Act was applicable to the case of the respondent. As a result of this proviso, the period of reassessment on the ground of under-assessment, escapement or wrong deduction in the case of the respondent had to be as provided in s. II -A 1 of the repealed Act, so that the period was three years and number five years as laid down by s. 19 1 of the new Act. The numberice dated 23rd October, 1962, was clearly issued beyond the period of limitation prescribed by s. II -A 1 of the repealed Act, and the proceedings in pursuance of it were time barred. In the alternative, this question may be examined in another aspect. Section 11-A 1 of the repealed Act itself created a right in favour of the respondent number to be assessed in respect of turnover that was under-assessed or had escaped assessment after the expiry of the period prescribed in that sub-section. The proviso to s. 52 of the new Act preserved this right of the respondent, and on this ground also, the, Sales-tax Officer was number companypetent to issue the numberice for reassessment after that period of limitation had expired. In this companynection, learned companynsel for the Sales-tax Officer drew. our attention to two subsequent pieces of legislation that amended the new Act. The first one of these is the Madhya Pradesh General Sales Tax Second Amendment Act, 1963 Act 23 of 1963 hereinafter referred to as the Amending Act . By section 3 of this Amending Act, section 19 1 of the new Act was amended, so as to introduce some words in the principal clause of s. 19 1 . The words introduced were or any Act repealed by section 52 and they were to be inserted at both the places where the words this Act occurred in the principal clause. It was urged that, as a result of this amendment, this principal clause became applicable even to cases in which assessment had been made under the repealed Act, and, taking into account the effect of this subsequent amendment, we should hold that the Salestax Officer was number incompetent to make the assessment when he purported to issue the numberice on 23rd October, 1962, as the numberice was issued within the period of five years laid down in the principal clause of s. 19 1 . of the new Act. It is, however, significant that, though the principal clause of s. 19 1 was amended, the proviso to it was number deleted by the Amending Act. The proviso, therefore, companytinued to remain in force. It is well-recognised that a proviso is added to a principal clause primarily with the object of taking out of the scope of that principal clause what is included in it and what the legislature desires should be excluded. Consequently, even if it be held that the effect of the Amending Act was that, under the principal clause of s. 19 1 , the reassessment of the under-assessed or escaped turnover in the case of the respondent companyld be taken up within a period of five calendar years, that provision became ineffective because of the companytinued existence of the proviso. The Amending Act had number companye into force when the High Court decided the petition and companysequently, the High Court had numberoccasion to companysider its effect. However, as we have indicated above, the order made by the High Court remains unaffected even after this amendment, and the decision given that the limitation applicable to the case of the respondent is that laid down by s. 11 -A 1 of the repealed Act is companyrect. It is true that the amendment is s. 19 1 of the new Act made by the Amending Act was, given retrospective effect under s. 5 of the Amending Act, but that also is immaterial, because, even after the amendment, the provision companytained in the proviso had to prevail over the principal clause of s. 19 1 . The second piece of legislation brought to our numberice was the Madhya Pradesh General Sales Tax Second Amendment Act, 1964 Act 20 of 1964 by which also s. 19 1 of the new Act was. slightly amended. That amendment, however, has numberbearing on, the point which we are called upon to decide in this appeal, and companysequently, needs numberconsideration. |
Dr. MUKUNDAKAM SHARMA, J. This appeal is preferred by M s Parle Bisleri Pvt. Ltd formerly known as M s Limca Flavours and Fragrances Ltd and appellant herein and is directed against the order of the Customs, Excise and Service Tax Appellate Tribunal CESTAT , Mumbai which set aside the order of Commissioner of Central Excise, Ahmedabad. The Commissioner vide order-in-original No.11/Commr/96 dated 16.9.1996, dropped all proceedings initiated against the respondents in the Show Cause Notice F. No. V/22/15-18 DA 94 dated 24-2-94. However, on appeal, the CESTAT partly allowed the claim of the Revenue, and aggrieved by the same, the appellant has approached this Court. The facts may be stated in brief here. M s. Parle Bisleri Pvt., the appellant, manufactures soft drink flavours which are assigned companye names, namely G-44T, L-33A, T-11PC, T-11P, R-66M, K- 55T and L-22L. During the period from years 89-90 to 93-94, the appellant availed of the benefit of Notifications 175/86 1/93 as an SSI unit. It is the holding companypany of M s. Parle Exports Ltd. PEL . The appellant sells its product to PEL, Parle International Ltd. PIL and franchise bottlers of M s. PEL. It maybe stated at the outset that the changes the appellant underwent in its transformation from M s Limca Flavours and Fragrances Ltd to M s Parle Bisleri Pvt. Ltd bear numbersignificance to the outcome of this appeal. M s. PEL uses the products sold by the appellant to manufacture Non-alcoholic Beverages Base NABB . In addition to NABB, M s. PEL also manufactures flavours as the appellant does. During the same period mentioned above, M s PEL enjoyed the benefit of Notification No. 175/86 and 1/93 for the year 92-93 and 93-94. Oct. 93 . The flavours named above are researched and developed by PEL, but were allowed to be manufactured by the appellant with the companye names given by PEL. The flavours are used in the manufacture of beverages like Gold Spot, Limca, Rimzim etc. Consequent upon the visit to the factory premises and office premises of Parle Group of Companies at Ahmedabad and Bombay on 20.03.93 by the officers of the Directorate General of Anti Evasion Central Excise , New Delhi on the basis of the information that M s PEL and their Group Companies were indulged in evasion of Central Excise Duty, various documents were seized and the statement of key personnel recorded. As we have mentioned earlier, the order-in-original passed by the Commissioner of Central Excise and Customs withdrew the demand for differential duty and found numbercase for imposition of penalty for any of the companypanies in question. Before we move on to the appeal as it unraveled before the CESTAT, it is pertinent to numbere here that Notification No. 175/86 and 1/93 require that the aggregate value of clearances of all excisable goods from a factory by one or more manufacturer should number exceed Rs. 150 lakhs and Rs. 200 lakhs respectively in the preceding financial year. The allegations against the appellant before the CESTAT, then, were that the clearances of the appellant during the period from 1989 to October 1993 must be clubbed with that of M s PEL and M s PIL as they are effectively one and the same companypany, and thus the appellant is number entitled to the benefit of the aforesaid Notifications. It was also an issue of appeal before the CESTAT that the appellant herein was using the brand name belonging to another person M s PEL who was number entitled to the benefit of the said Notifications. The third and final issue companycerned the allegation of undervaluation of flavours by the appellant, which resulted in an inaccurate assessment and hence the differential duty should be extracted. In response to these issues in appeal, the CESTAT ruled the Revenues claim of undervaluation in favour of the appellant primarily on the ground that the Department did number companye out with quantifiable data to indicate the extent to which the price was suppressed by the appellant. However, on the issue of misuse of brand name by the appellant, the Tribunal came to the companyclusion that M s. PEL did in fact, own the brand name and held that the defence of the appellant that the flavours were marked only by virtue of a companye and number identified as a brand did number hold water. To quote the Tribunal - In view of the language of the explanation Explanation VII of Notifications No. 175/86 and 1/93 quoted above it is necessary to see whether the companye names on the flavours indicate a companynection in the companyrse of trade between the specified goods and such person using such name or mark. It is revealed during the companyrse of investigation that the flavours in question were earlier manufactured by PEL and supplied to the franchise holders. The same flavours were later on allowed to be made by LFFL appellant herein. The franchise holders thereupon were buying the very same flavours from LFFL and were placing their orders by mentioning the same companye name, as is evident from their purchase orders. The users of the flavours i.e. PEL PIL and specified bottlers are all interconnected. The specified bottlers are franchisees of PEL. Being the franchisees of PEL they are aware that the flavours belonged to PEL with the companye names. Thus the companye name indicated a companynection in the companyrse of trade between such specified goods and same person using such name or mark. The defence that the companye number has been given only for identification of the product cannot therefore be accepted. On this line of reasoning, the Tribunal held that the appellant will number be entitled to the benefit of Notification No. 175/86 and 1/93 for the products with companye names G-44T, L-33A, T-IIPC, T-IIP, R- 66M and K-55T which belonged to M s PEL. However, the Tribunal also observed that this finding was only in respect of the years 89-90, 90-91 91-92 and 93-94 till Oct 93 and number for the year 92-93 because in 92-93, as ruled by the Tribunal subsequently in the same judgment, the brand owner M s. PEL of these flavours himself was entitled to the benefit of Notification No. 175/86. On the primary issue of whether the clearances of the said companypanies companyld be clubbed together, and the companypanies themselves companyld be treated as one manufacturer, the Tribunal found that the effective financial companytrol and management emanated from a companymon companye, and therefore the companypanies companyld well be said to be interdependent and even interrelated. However, the Tribunal only partly allowed the appeal of the Revenue in so far as it held that the appellant herein was indeed entitled to SSI exemption between the period from 88-89 to 92-93 upto 31.3.93. Such a companyclusion was based on the ruling of this Court in Commissioner of Central Excise, New Delhi v. Modi Alkalies Chemicals Ltd. Ors reported at 2004 171 E.L.T. 155 S.C. which purportedly took numberice of Circular 6/92 issued by the Ministry of Finance, Government of India which stated that the clearance of Limited Companies are number be clubbed together, and held that the Circular was companycurrent in operation with that of Notification No. 175/86. However, since this Court, according to the Tribunal, also held that the same Circular was number applicable after the issue of Notification No. 1/93, the appellant companyld number claim SSI exemption from 1.4.1993 to October, 1993. To this effect, the appeal was partly allowed. Aggrieved by the decision of the Tribunal, the appellant has approached this Court by way of Civil Appeal. The appeal was listed for hearing and we heard the learned companynsel appearing for the parties who have ably taken us through all the relevant documents on record and also placed before us the various decisions which may have a bearing on the issues raised in the present appeal. The issues in companytention between the parties have been filtered through the stages of appeal, and before this Court we are primarily faced with two of them, which are Whether the value of production clearances of the three Companies, namely the appellant, M s PEL Ltd. and M s PIL Ltd. can be clubbed for the purposes of ascertaining the eligibility to exemption under Notification No. 1/93 CE dated 28.02.93? II. Whether the Tribunal was companyrect in denying the benefit of the said Notification by treating the product companye name as a brand name within the meaning of Explanation VIII to the aforestated Notifications? Since the parties to this appeal have raised arguments that are almost identical in form and substance to those submitted in the previous stages of appeal, we may dispense with a reiteration of the same to proceed directly to the decision and its reasoning. Issue I In so far as the issue of clubbing the value of production/ clearances is companycerned, it is significant to numbere that it is number beyond dispute that Circular 6/92 operated companycomitantly with Notification No. 175/86. The Revenue has admitted to this in its Counter-Affidavit to this appeal, and thus the only point of question is whether the operation of Circular 6/92, and companysequently, the benefit of SSI exemption may be halted from the companymencement of Notification No 1/93. The Tribunal, in deciding this question in the affirmative, relied solely on an interpretation of the decision of this Court in Modi Alkalies Chemicals Ltd. Ors supra . Therefore, we may examine the operative part of the decision to adjudicate the companyrectness of the Tribunals verdict. In Modi Alkalies Chemicals Ltd. Ors, this Court held The statements of the employees Directors show that the whole show was companytrolled, both on financial and management aspects by MACL. If these are number sufficient to show inter-dependence probably numberhing better would show the same. The factors which have weighed with CEGAT like registration of three companypanies under the sales tax and income tax authorities have to be companysidered in the background of factual position numbered above. When the companyporate veil is lifted what companyes into focus is only the shadow and number any substance about the existence of the three companypanies independently. The circular number6/92 dated 29.5.1992 has numberrelevance because it related to numberification number175/86-CE dated 1.3.1986 and did number relate to numberification number1/93. What this Court was emphasizing in the aforesaid decision was number only the fact that Circular 6/92 has numbereffect upon companymencement of Notification No. 1/93, but also the fact that the distinct legal nature of Companies cannot be used as eyewash to portray its independent nature. Where the companypanies are indeed interdependent and possibly even related through financial companytrol and management, the value of clearances has to be clubbed together in the interests of justice. The operation of Circular 6/92 admittedly protected entities like the appellant prior to the companymencement of Notification No. 1/93, but certainly number after the same. In this case, this Court has been presented with a preponderance of evidence to suggest that the companypanies are related number only in terms of financial companytrol, but also through management personnel. In Modi Alkalies Chemicals Ltd. Ors supra this Court has held that two basic features which prima facie show interdependence are pervasive financial companytrol and management companytrol. We, therefore, proceed to apply the said two tests to the facts of this case. R. Chauhan, P. Chauhan, R.N. Mungale and S.K. Motani, who are the directors of the appellant herein are among those who also serve on the Board of Directors in M s PEL Ltd. and M s PIL Ltd. It is also a fact on record that that M s. PEL advanced an interest-free loan of Rs. 1 crore to the appellant, which was used for purchase of raw material by the latter As evidenced from the balance sheet . Furthermore, the flavours being manufactured by the appellant were developed by M SPEL at their R D Lab at Bombay, whose services were at the disposal of the appellant. They were at one point of time were manufactured by M s. PEL and admittedly owned by them. Clearly, all this points to the inescapable companyclusion that the three companypanies in question were intertwined in their operation and management. A careful scrutiny of the records therefore establish that both the aforesaid two basic features are overwhelmingly present in this case. Therefore it would likely seem that the purported fragmentation of the manufacturing process was but a mere ploy to avail of the SSI exemption. Piercing the companyporate veil, when the numberions of beneficial ownership and interdependency companye into the picture, are numberlonger res integra. On this companynt, therefore, we have numberhesitation whatsoever in affirming the order of the Tribunal, which was justified entirely through the precedent set by this Court. Issue II The second issue companycerns the question whether the companye names used to denote soft drink flavours manufactured by the appellant companyld in fact be termed as brand names and if so, whether they belonged to another entity. The yardstick in this regard is Explanation VIII which is pari materia in both Notifications No. 175/86 and No. 1/93 and reads as Explanation VIII--Brand name or trade name shall mean a brand name or trade name, whether registered or number, that is to say a name or a mark, such as symbol, monogram, label, signature or invented word or writing which is used in relation to such specified goods for the purpose of indicating, or so as to indicate a companynection in the companyrse of trade between such specified goods and some person using such name or mark with or without any indication of the identity of that person. We are number companyvinced by the argument of the appellant that this Explanation refers only to brand names and cannot be used to determine whether companye names, as used by the appellant in the present case, fall within the said category. The mere difference in numberenclature cannot take away the import of the Explanation from its applicability to the present case. The appellant herein manufactures flavours which fall within the ambit of the companye names and it is a fact on record that these companyes are key to identifying the flavours which are companymercially transferable. Furthermore, it is expressly clear that the companye names on the flavours indicate a companynection in the companyrse of trade between the specified goods and such person using such name or mark. The flavours in question, which were earlier manufactured by M s PEL Ltd. and supplied to the franchise holders, were subsequently allowed to be made by the appellant. The franchise holders were in effect buying the very same flavours from the appellant and were placing orders by referring to the same companye name, as is evident from the respective purchase orders. The users of the flavours, i.e. M s PEL Ltd., M s PIL Ltd. and specified bottlers are all interconnected since the latter group companyprises franchisees of PEL and thus there is more than an iota of evidence to prove the companynection in the companyrse of trade between the flavours and the entity using the flavours through companye names. Furthermore, the ownership of the companye names by M s PEL Ltd. is clearly evidenced from the fact that these flavours were developed, researched and companycocted by M s. PEL Ltd in its research labs. That M s. PEL Ltd. have given the brand names to the flavours and allowed them to be manufactured by the appellant, their holding companypany cannot hide the fact that M s PEL Ltd were in fact, the owner of the companye brand names. This companyclusion is fortified by the fact that it was M s PEL Ltd who transferred the right of the companyes when they were sold to M s. Coca Cola Company in November, 1993. |
The appellant is the landlord. He has claimed that in a partition effected in the year 1956 in the joint family of which he was a member an area admeasuring 1 acre 19 gunthas out of Revision Survey No. 8 of village Kudnoor in Gadhinglaj Taluka came to his share. This land is agricultural land of which the original respondent was a tenant at the material time. On companying into force of the Bombay Tenancy Agricultural Lands Act. 1948, the appellant filed an application under Section 31 1 read with Section 29 of the said Act for possession on the ground that he bona fide required the land for personal cultivation. Although the appellant was a minor at the time of the application, he chose to exercise his rights under Section 31 1 . This application was ultimately dismissed by the Mamlatdar on 29.5.1957 on the ground that under Section 31-B, there is a prohibition against termination of tenancy if such termination would result in companytravention of the provisions of Bombay Prevention of Fragmentation Consolidation of Holdings Act, 1947. Therefore, by virtue of the dismissal of the appellants application under Section 31 1 under the provisions of Section 31 1 the respondent became a deemed purchaser of the said land on the postponed date 29.5.1957, the latter being the date on which the application of the appellant was dismissed. Thereafter proceedings lunder Section 31-G were taken for determination of purchase price. These proceedings, however, were dropped by the Agricultural Lands Tribunal on 31.5.1961 on the ground that the appellant was then a minor and the tenant companyld number purchase the land. The tenant did number take any steps to challenge the decision of the Tribunal dated 31.5.1961. On 20.10.1964, by Maharashtra Act 39 of 1964, Chapter III-AA was added in the said Act to companyfer certain benefits on the members and ex-members of the armed forces. Under this Chapter, Section 43-18 provides, inter alia that it shall be lawful for a landlord at any time after companymencement of the said Amendment Act, to terminate the tenancy of any land and obtain possession thereof, but of so much of such land as will be sufficient to make the total land upto the ceiling area. Under sub-section 4 of Section 43-1B, numberhing in the Bombay Prevention of Fragmentation Consolidation of Holdings Act., 1947 shall affect the termination of any tenancy under this Chapter. The landlord for the purposes of this Chapter is defined in Section 43-1A as a person who is or has ceased to be, a serving member of the armed forces. The appellant, in the present case, joined the armed forces on 21.11.1965 after he attained majority on 7.11.1965. He served, on 11.4.1972, a numberice terminating tenancy of the respondent under Section 43-1B 2 . In the proceedings which took place thereafter, his application was allowed by the Sub-Divisional Officer on 31.3.1976. An appeal from this order to the Additional Commissioner was dismissed on 25.4.1976. The respondent-tenant thereupon moved the High Court by way of a writ petition which has been allowed by the impugned judgment order dated 8.10.1980. Hence, the present appeal. The short question that requires companysideration is whether in view of the dismissal of the original application filed by the appellant-landlord under Section 31 1 on 29.5.1967, it was open to the appellant to avail of the provisions of Chapter III-AA. Under Section 43-1B, it is provided that numberwithstanding anything companytained in the foregoing provisions of this Act, but subject to the provisions of this section, it shall be lawful for a landlord a member or ex-member of the armed forces at any time after the companymencement of the Tenancy and Agricultural Lands Amendment Act, 1964 to terminate the tenancy of any land and obtain possession thereof in the manner set out in the section. Section 43-1B, therefore, overrides the preceding provisions of the said Act. Section 43-1E which forms a part of Chapter III-AA, provides as follows Sec.43-IE Nothing in this Chapter shall apply in relation to land which before the companymencement of the Tenancy and Agricultural Lands Laws Amendment Act, 1964 is purchased by any tenant under the provisions of Chapter III. According to the appellant, Section 43-IE will companye into operation only in those cases where there is a companypleted purchase in favour of the tenant. It will number protect a tenant who is only a deemed purchaser, but in respect of whom proceedings under section 32G have number been companypleted. The appellant therefore companytends that as a member of the armed forces he can avail of Chapter III-AA and Section 43-IB forming a part thereof to terminate the tenancy of the respondent and obtain possession of the said land. According to the respondent. Section 43-IE will protect him against Chapter III-AA provisions because he has become a deemed purchaser on 29.5.1957. This issue came up for companysideration before a Division Bench of the Bombay High Court in the case of Bhimrao Tatoba Sawant Anr. Vs Heramb Anant Patwardhan Ors. reported in AIR 1986 Bombay 408. While companysidering the scheme of Chapter III-AA, the Bombay High Court held that Section 43-IE would companye into operation only if there has been so as to say, a companypleted purchase of the land by the tenant under the provisions of Chapter III. It will number be possible to introduce, while interpreting that section the theory of deemed purchase and its ineffectiveness under certain circumstances. What is material is that the vested rights flowing from the purchase of the land by the tenant under Chapter III should number be disturbed. If the rights of the tenant as a purchaser have number been crystallised, the landlord belonging to the armed forces can claim benefit of the provisions of chapter III-AA. In the present case, as section 32G proceedings were dropped the rights of the respondent-tenant as a purchaser have number been crystalised. The very purpose of introducing Chapter III-AA by the Amending Act of 1964 is to give additional benefits to those landlords who are members of the armed forces. The High Court has rightly observed in companynection with Chapter III-AA as follows All these provisions would be set at naught if we accept the companytention of Shri Bhonsale that under Chapter III a tenant would be the purchaser in every case except where the purchase has become ineffective under S.32G 3 or S.32F. It is material to numbere that wherever the purchase has become ineffective under these two provisions it is the landlord who has a first preference to get possession of the land. This right has been companyferred on the landlord under S.32P. What is important is that under that section the landlord, whether he is a member of the armed forces or number is entitled to have his first preference. It would thus mean that the provisions of Chapter III-AA companyld number be implemented to the benefit of the landlord belonging to the armed forces if we record a finding that prior to the introduction of Chap. III-AA on the statute book the tenant should be held to have become the owner except lunder the two companytingencies companyered by Ss. 32G 3 and 32F. In our opinion, the interpretation sought to be put by Shri Bhonsale on S.43-IE would take away all the benefits which the Legislature intended to companyfer on the landlords who lhave been serving as members of the armed forces. It is material to numbere that S.43-IE uses the words purchase by the tenant. It appear that the Legislature has purposefully chosen number to use the words deemed to have been purchased by the tenant under Chap. III. The words purchased by the tenant will have to be interpreted in such a manner that the intention of the Legislature to give additional benefits to the landlords belonging to the armed forces is implemented. This is permissible if there is numberviolence to the language used by the Legislature and the meaning of the phrase purchased by the tenant can be opoperly understood as number to companyer deemed to have been purchased by the tenant. underling ours The appellant, therefore, in the present dase, did number lose his rights under Chapter III-AA because the proceedings under Section 32-G had been dropped, and the tenant remained only a deemed purchaser and companyld number be called a purchaser as companytemplated under Section 43-IE. It is submitted by the respondent that the Agricultural Lands Tribunal was number right in dropping proceedings under Section 32-G. Its order of 31.5.1961 is bad in law. He relied upon a decision of the Bombay High Court in the case of Nago Dattu Mahajan Vs. Smt. Yeshodabai Huna Mahajan reported in 1976 78 BLR 427 where this Court has held that lunder Section 31 the landlords have a choice to avail of one of the two provisions of resumption namely either Section 31 1 or Section 31 3 . No landlord can avail of both the provisions. Learned companynsel for the respondent, therefore, companytends that in the present case the appellant having exercised his choice under Section 31 1 , companyld number have urged in the proceedings under Section 31G his disability as a minor under Section 31 3 . The order of 31.5.1961 of the Agricultural Lands Tribunal, however, was number challenged by the respondent. The order of 31.5.1961 has become final and the decision rendered by the Agricultural Lands Tribunal as between the appellant and the respondent is binding on both the parties. A decision simply because it may be wrong would number thereupon become a nullity. It would companytinue to bind the parties unless set aside. The effect of the decision of 31.5.1961 on the parties therefore, cannot be ignored. In the present case, since the tenant companyld number companyplete his purchase by reason of the proceedings under Section 31G being dropped he cannot number companytend that the decision has numberlegal effect or that the proceedings under Section 31G ought to have been companypleted and, therefore, he should be looded lupon as a purchaser. The appellant has also drawn our attention to Section 31F IA under which, if a tenant holding land from a landlord who was a minor has number been given intimation at the companymencement of the Bombay Tenancy and Agriucltural Lands Amendment Act, 1969, but being in possession of the land on such companymencement, is desirous of exercising the right companyferred on lhim lunder sub-section 1 he may give such intimation to the landlord and the Tribunal within a period of two years from the companymencement of the Act. Therefore, the tenant was given an additional opportunity to give intimation after the companymencement of the Amendment Act of 1969. Even this opportunity was number availed fo by the tenant. The respondent has thus companytinued as a tenant. |
O R D E R A short question which arise for determination in this batch of civil appeals is whether the Tribunal was justified in holding that an amount representing rediscounting interest paid on promissory numbere bill did number accrue or arise to the assessee-bank by reason of diversion of such discount through overriding title in favour of Industrial Development Bank of India IDBI and hence did number form part of chargeable interest under Section 2 7 of the Interest-tax Act, 1974 for short, the 1974 Act . The facts giving rise to these civil appeals are as follows. Assessee-bank is a nationalized bank. In the assessment years 1979-80, 1980-81, 1981-82, 1982-83, 1983-84, 1984- 85, 1985-86 the assessee did number include rediscounting charges received from IDBI in its chargeable interest. According to the Department, rediscounting charges represented assessees Interest Income and, therefore, rediscounting charges were taxable as chargeable interest as defined under Section 2 7 read with Section 5 of the 1974 Act. The short question which arises for determination in these civil appeals companycerns the meaning of rediscounting charges under the Scheme of rediscounting by IDBI. The Bills Rediscounting Scheme was introduced in April, 1965, in terms of the powers vested in the IDBI under Section 9 1 b of its statute, which authorized IDBI to accept, discount or rediscount bills of exchange, promissory numberes of industrial companycerns. The object of the Scheme is two-fold, i.e., to increase the sales of indigenous machinery capital equipment by offering to the prospective buyers users deferred payment facilities. While the manufacturers received the value of the machinery within a few days of delivery by discounting the bills with the banker, the buyer user companyld utilize the machinery acquired and repay its companyts over a number of years. Therefore, the Scheme facilitates sales of machinery, thereby companytributing to the industrial progress of the companyntry. Under the Scheme, IDBI itself does number discount the bills but rediscounts those discounted by nationalized banks. The buyers of the machinery under the Scheme have to obtain through their banks prior clearance of IDBI for discounting the bills and for determination of the quantum of assistance. Under the Scheme, the discounting bank, availing itself of the rediscounting facilities from IDBI, cannot charge the seller manufacturer discount at a rate higher than the rate prescribed by IDBI. The seller manufacturer is also prohibited from charging interest for the deferred payment at an amount higher than the amount paid to the bank. IDBI under Scheme has a right to refuse rediscounting of bills of such sellers manufacturers who do number companyply with the requirements under the Scheme. Therefore, the Scheme is enacted basically to give financial assistance to manufacturers of indigenous machinery. Under the Scheme, every bill or pronumbere is required to be accepted at offices of IDBI. The proforma of bills is also prescribed by IDBI. In each and every document in support of bill or pro-note, IDBI has to be party. Under the Scheme, the discounting bank such as the assessee, availing itself of rediscounting facilities from the IDBI, was number entitled to charge the seller manufacturer discount at rates higher than 1.75 per cent over the discount rates charged by IDBI. Under the Scheme, the discounting bank, like the assessee, has to take back the bill or promissory numbere from IDBI against payment, three working days in advance of their due dates and obtain payment thereof from the acceptor guarantor of the bills pro-notes. Under the Scheme, the primary responsibility for payment to IDBI is placed on the sellers bank which in the present case is the assessee-bank. Therefore, the rediscounting charges of IDBI companylected by the assessee-bank cannot be chargeable interest under Section 2 7 of the 1974 Act since even before the said amount companyld reach the hands of the assessee-bank, it is impressed with the character of rediscounting charges payable to IDBI. The Scheme, viewed as a whole, makes it clear that the assessee-bank is only the medium for the disbursement of the development fund for the implementation of the Scheme for which the assessee-bank is allowed to retain 1.75 per cent, which accrues to the assessee-bank and, therefore, it is number possible to bifurcate the transaction which has to be read in its entirety. |
P.JEEVAN REDDY,J. This appeal is preferred by the Nagar Mahapalika, Meerut against the judgment of a learned Single Judge of the Allahabad High Court dismissing the writ petition filed by it. The matter arises under the Uttar Pradesh Municipalities Act, 1960 the Act and pertains to levy of octroi. The respondent is a companypany which runs a bottling plant in Meerut. Inter alia, it bottles a drink known as Double Seven under a franchise agreement with M s.Modern Bakeries Limited, New Delhi, a Government of lndia Undertaking. The bottles are sent out of the Meerut local area to various dealere for sale. According to the respondent, the sale is subject to the companydition that after the drink is companysumed, the bottle is to be returned to it. Accordingly, bottles were being returned to it from time to time. The appellant proposed to levy octroi on the entry of such bottles un the ground that the said bottles were being brought into the Meerut local area for the purpose of use, i.e., for being filled with the drint Double Seven. According to the appellant-corporation, the empty bottles being articies made of glass within the meaning of Entry 138 of the Notification dated january 4, 1975 were subject to the levy of entry tax. The respondent resisted the levy on two grounds, viz., 1 that the entry of empty bottles into the local area for the purpose of being filled with the said drlnk and meant for being taken out for sale outside the tocal area does number amount to entry of goods for use within the meaning of the expression companysumption, use or sale therein which alone attracts the levy within the meaning of Section 128 1 viii of the Act and 2 that in any event, the said empty bottles are companyered by the exemption clause companytained in the said numberification and in particular by Entry 13 thereof. Both the companytenta were rejected by the appellant whereupon the respondent filed an appeal before the learned District Juage under Section 472 of the Act. The learned District Judge upheld the companytention of the appellant, which led the appellant-corporation to approach the High Court by way of a writ petition. The High Court did number go into first of the two companytentions mentioned above. lt dismieeed the writ petition upholding the second companytention urged by the respondent. The Notification dated January 4, 1975 appears to be in two parts. The first part mentions the articles subject to entry tax. They are as many as 190 entries according to the companyy placed before us The second part companytains a list of articles which are exempt from octroi and this part companytains 37 entries. Entry 40 of the taxable items first part mentions aerated water, companyd drinks of all kinds among other goods. The entry reads Lime juice and lime companydid gas of all kinds and aerated water, companyd drinks of all kinds and sweetened milk. Entry 13 of the second part exempted articles reads Empty milk cans, mineral water bottles, kerosine oil tins and drums, gas cylinders, wine bottles and drums and gunny bags if imported for being refilled with the companymodities for which they are in ordinary use. The companytention of the respondent which has been accepted by the High Court is that the words mineral water bottles in Entry 13 of the Exempted Articles are the empty bottles of aerated water and companyd drinks of all kinds mentioned in Entry 40 of the Taxable Articles. It is pointed out that mineral water is number found in any of the taxable entries and that the said expression was companytemplated as referring to aerated waters and companyd drinks. It is submitted that in the year 1975, when the said numberification said issued, mineral water as is number understood was number in use at all. On the other hand, the companytention of the appellantcompanyporation was tnat mineral water and aerated water and companyd drinks of all kinds are two distinct articles as understood sn companymon parlance and in the companymercial world by people who deal in them. The submission is that the mineral water can never be understood as companyprising either aerated water or companyd drinks and, therefore, the bottles in question are number exempted under Entry 13 of the Exempled Articles. It is also brought to our numberice by learned companynsel for both the parties that since 1987, the relevant entries have undergone a change and that this question would number arise after the year 1987. While we agree with the learned companynsel for the appellant-corporation that mineral water and aerated water companyd drinks are different and distinct articles, whether in companymon parlance or in the companymercial parlance, we are number inclined to interfere in the matter in view of the following findings recorded by the learned Single Judge In the list of exemptions drawn up in the year 1956 at item No.15 there was an entry companyresponding to entry 13 which runs as follows Empty milk cans, mineral water bottles, kerosine oil tins and drums, gas cylinder, wine bottles and drums and gunny bags if imported for being refilled with the companymodities for which they are in ordinary use. Judicial numberice can be taken of the fact that there are numbernatural waters found within the Meerut Corporation limits. When the entry of mineral water was made mineral water was number prepared artificially in the year 1956. Thus the above entry in 1956 also companyld number have companytemplated mineral water as the learned companynsel for the companyemporation would have the companyrt understand the term. In the circumstances, the meaning suggested by the companynsel for the Company that mineral water be held to include efforscent effervescent? drinks, should be accepted. The Corporation admits that Double Seven prepared by the Company is an aerated drink which means that it is an efforscent effervescent? drinks and it would be a mineral water. Thus the mineral water bottled by the Company would be taxable under Item 138 of the VII Schedule and it can only escape octroi if it is shown that it is to be found in the list of exempted articles I hold that the empty Double Seven bottles being bottled by mineral water are exempted under entry 15 of the list of exemption from octroi. The decision of the High Court was rendered on January 13, 1983. lt may be numbered that the learned District Judge was also of the same opinion. We are inclined to presume that the High Court and the learned District Judge were aware of the factual situation obtaining in that State both in 1956 and in 1975 aHd that at this distance of time, it would number be proper and advisable to interfere with their upinion. They have pointed out that the said numberification of 1975 was preceded by a numberification of 1956 and that in 1956 mineral water as we know today was number known in companymercial circles and, therefore, when the numberification used the expression mineral water, it meant aerated water or the companyd drinks. This companyrse we are adopting also because it is stated that after 1987 this question would number arise. |
Pinaki Chandra Ghose, J. This criminal appeal, by special leave, is directed against the impugned companymon judgment dated June 17, 2009 of the High Court of Gujarat whereby the High Court dismissed Criminal Appeal No.1327 of 2004 filed by the appellants and companyfirmed the order passed by the Trial Court. The High Court in the present matter upheld the sentence as awarded by the Trial Court by stating that the evidence led by the companyplainant PW-1 , the elder sister of the deceased PW-8 and the grandfather of the deceased PW-9 gets support from the evidence led by PW-7, who are the friends and relatives of the deceased. The case of the Prosecution is that the marriage between Truptiben the deceased and the appellant No.3 herein took place on 01.05.1996. Truptiben was the daughter of one Kantilal Dhanjibhai Karia of District Rajkot in Gujarat. After the marriage, Truptiben was residing in a joint family with her in-laws appellant Nos.1 and 2 and her husband appellant No.3 at Morbi, Gujarat. Out of the said wedlock, a girl named Gopi was born. On 23.03.2000 at around 1130 Hrs, while Kantilal Dhanjibhai Karia was discharging his duties in the Bank of Baroda at Rajkot, he received a telephonic message from Appellant No.1, that his daughter is hanging by the fan and that he may immediately companye to Morbi. Kantilal Dhanjibhai Karia informed about the said telephonic message to his nearest relatives and thereafter, they all proceeded towards Morbi. In the meantime, Appellant No.1 had informed about the said incident to Morbi City Police Station. The P.S.O, who was on duty at the relevant time, made the relevant entry in the Station Register and directed the ASI to investigate the matter. The ASI went to the scene of the offence and carried out preliminary investigation. He recorded the statement of Appellant No.1 and thereafter, sent a yaadi to the S.O to register the incident as an accidental death, which came to be registered as A.D. No.16/2000. Thereafter, investigation into the said incident was taken over by Police Inspector Mr. Jaynarayan Rameshwar Srivastav. The Investigating Officer informed Kantilal Dhanjibhai Karia, the father of the deceased, of the said incident and in return he asked the Investigating Officer number to disturb the position of the dead body of his daughter till he arrives at Morbi. The said Kantilal Dhanjibhai Karia, the father of the deceased arrived at 1500 Hrs on the same day. He felt something fishy behind the death of her daughter Truptiben, as the appellants had demanded dowry several times in the past, which was further strengthened by the fact that numbere of the appellants were present in the house at the relevant point of time. On the same day, i.e on 23.03.2000, in the evening hours, a criminal companyplaint with regard to the said incident was filed by the father of the deceased against the appellants, which ultimately, came to be registered as I-C.R No. 92/2000 for offence punishable under Sections 498-A, 304-B 306 read with Section 114 of the IPC. The body of the deceased was taken off the fan and sent for post-mortem examination. The investigation was carried out and the statements of several witnesses were recorded. After the registration of the companyplaint against the appellants, an arrest warrant was issued by the companycerned Judicial Magistrate, 1st Class, Morbi on report filed by the Investigating Officer under Section 70 Cr.P.C, but the appellants were untraceable. They were absconding for a period of thirty six days and ultimately on 29.04.2000 at around 2130 Hrs., the appellants surrendered themselves at the Morbi City Police Station. The appellants were produced in the companyrt of the District Addl. Sessions Judge, Fast Track Court No.7, Morbi in Sessions Case No.52/2000 and the trial was held. During the trial, the witnesses were examined at length. The witnesses PW-1 , PW-8 and PW-9 stated that the deceased used to companyplain about the mental torture and harassment frequently meted out to her by the accused due to the insufficient dowry provided during the marriage. This evidence was supported by PW-7, the friend of the deceased who stated that the deceased had informed her that she was subject to frequent mental torture and harassment by the accused for bringing less dowry. This witness was also cross-examined at length by the other side alike the other witnesses and based on the evidence provided by the witnesses, the accused were companyvicted for the offences punishable under Sections 498A, 304B 306 IPC read with Section 114 IPC. Aggrieved by and dissatisfied with the aforesaid judgment and order passed by the Sessions Court, the appellants preferred an appeal before the High Court. The companynsel for the appellants companytended before the High Court that the evidence stated by the relatives of the deceased are interested witnesses and their statements companyld number be solely relied upon. The High Court opined out that the deceased died of a suicidal death is number a dispute though the evidence on record, more particularly, the photographs of the dead body at Exhibits 49/1 to 49/7 and the inquest Panchnama, say an altogether different story. The High Court further observed that since it was an appeal under Section 374 Cr.P.C, it did number want to enter into the other aspect of the case and instead focus on the present appeal. The evidence led by the companyplainant PW-1 , the elder sister PW-8 and the grandfather of the deceased PW-9 gets support from the evidence led by PW-7 who are the friend and relatives of the deceased. The High Court further opined out that the evidence of PW-1, PW-7, PW-8 and PW-9 clearly establishes that the appellants were greedy people, who had started to demand dowry right from the date of marriage i.e on 01.05.1996. It is the case of the appellants that the essential ingredient of Section 304-B IPC regarding the existence of cruelty soon before the death has number been established by the prosecution. The High Court thus upheld the ultimate companyclusion and the resultant order of companyviction recorded by the Trial Court. We have heard the learned companynsels on both the sides. The companynsel for the appellant companytended that the prosecution has failed to substantiate the guilt of the appellants under Sections 306 and 304B of IPC. The companynsel further companytended that to satisfy the companyditions of Sections 304-B and 306 of the IPC, it must be shown that the deceased was incited, provided or virtually driven to companymitting suicide by the accused. The companynsel for the appellant stated that in the case of Kishori Lal v. State of M.P., 2007 10 SCC 797, this Court has held that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the companymission of suicide. The mere fact that the husband treated wife with cruelty is number enough. The companynsel for the appellants further stated that in the case of Sushil Kumar Sharma v. Union of India, 2005 6 SCC 281, this Court has held that the object of Section 498A of the IPC is to get to the root of dowry menace and its unleashing will lead to a legal terrorism. The provision is to be used as a shield and number as an assassins weapon. The companynsel further companytended that in the case of Sakatar Singh Ors. v. State of Haryana, 2004 11 SCC 291, this Court has held that such evidence which is number based on the personal knowledge of the witness cannot be the foundation for basing of companyviction. The learned companynsel for the appellant further companytended that in the case of M. Srinivasulu v. State of A.P., 2007 12 SCC 443, it was held by this Court that a presumption under Section 113B of the Indian Evidence Act can be only raised in case of dowry death, if there is companycrete proof of cruelty and harassment meted out to the deceased by the accused. The learned companynsel for the appellants further companytended that merely because the accused was absconding, the said fact cannot be made the basis for inferring his guilt. The learned companynsel cited the case of Matru v. State of U.P., reported in 1971 2 SCC 75 , where it has been held that the appellants companyduct in absconding by itself does number necessarily lead to a firm companyclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime. We would like to companyclude that going by the version provided by PW-1, PW-7, PW-8 and PW-9, there is a reasonable apprehension of the crime companymitted by the accused. With regard to the position of law involving applicability of Sections 498A, 304B and 306 of the IPC, in the case of Balwant Singh and Ors. v. State of Himachal Pradesh, 2008 15 SCC 497, it has been held that Section 304B and Section 498A of the IPC are number mutually inclusive. If an accused is acquitted under one section, it does number mean that the accused cannot be companyvicted under another section. According to Section 113B of the Indian Evidence Act, presumption arises when a woman has companymitted suicide within a period of seven years from the date of the marriage. In this case, after going through the documentary evidence and the version of the witnesses, the accused were companyvicted under Sections 304B and 498A of the IPC. In the present case that we are dealing with, a reasonable apprehension can be raised, for that the accused companymitted a crime under Section 304B of the IPC and a presumption can be raised under Section 113 B of the Indian Evidence Act, since seven years of marriage had number been companypleted. With regard to the applicability of Sections 113A and 113B of the Indian evidence Act, in the case of State of Punjab v. Iqbal Singh and Ors., 1991 3 SCC 1, this Court observed that the legislative intent is clear to curb the menace of dowry deaths, etc, with a firm hand. It must be remembered that since crimes are generally companymitted in the privacy of residential homes, it is number easy to gather direct evidence in such cases. That is why the legislature has by introducing Sections 113A and 113B of the Indian Evidence Act, tried to strengthen the prosecution hands by permitting a presumption to be raised if certain foundational facts are established and the unfortunate event has taken place within a period of seven years. With regard to whether any direct link has been shown between dowry demand and death, in the case of Dinesh v. State of Haryana, 2014 5 SCALE 641, the accused has been companyvicted under Sections 113B and 304B of the IPC, on the basis of presumption, since certain foundational facts were established. In the present case, it has been established from the versions of PW-1, PW-7, PW-8 and PW-9 that there was a demand for dowry and the deceased was being mentally harassed. In the case of Thanu Ram v. State of M.P., 2010 10 SCC 353, this Court has observed certain criteria with regard to establishment of guilt in the cases of dowry death. The first criterion being that the suicide must have been companymitted within seven years of marriage. The second criterion is that the husband or some relative of the husband had subjected the victim to cruelty, which led to the companymission of suicide by the victim. This is when Section 113A of the Indian Evidence Act indicates that in such circumstances, the Court may presume, having regard to all the circumstances of the case, that such suicide has been abetted by her husband or by such relative of her husband. |
CIVIL APPELLATE JURISDICTION Civil,Appeal No. 2388 of 1968. Appeal by Special Leave from the Judgment and Decree dt. 20-3-1967 of the Patna High Court in First Appeal No. 488, of 1961 Lal Narain Sinha, F. C. Nariman, S. C. Aggarwala Aruneshwar Gupta For the Appellants B. N. Sinha, S. N. Prasad for the Respondent The Judgment of the Court was delivered by SARKARIA, J.-This appeal by special leave, is directed against a judgment, dated March 20, 1967, of the High Court of Judicature at Patna. It arises from these circumstances The defendant respondent purchased 3/16 share for Rs. 2,250/in the suit premises by a sale deed, dated March 25, 1957. Before this sale, the respondent was already in occupation of the premises as a tenant paying a monthly rent of Rs. 53/-, inclusive of water-tax, to the then proprietor. The plaintiffs-appellants, who, at the material time, were members of a joint Hindu family governed by Mtakshara Law, purchased the remaining 13/16 share in the suit premises for Rs. 9,000/- by a sale deed, dated April 27, 1957. They already owned and possessed a parcel of land adjacent to the suit premises and they intended to open a market there after amalgamating. the same with their share in the suit premises. They asked the respondent to partition and separate their share. The respondent did number agree. Therefore, on August 8, 1959, on the preceding facts, the appellants, instituted the suit No. 64 of 1959 for partition of the suit property, in the Court of the Subordinate Judge, First Court, Patna. In the plaint, it was inter alia alleged that since the suit property, was of very small dimensions, measuring .013 acre only, and its partition by metes and bounds was number feasible. The plaint also companytained a proposal from the plaintiffs to purchase the defendants share in the suit premises at a price which may be held reasonable and proper by the Court. The defendant resisted the suit. He pleaded that he was a permanent tenant in the suit premises and number a tenant from month to month that the plaintiffs had purchased only the right to receive their proportionate share of the monthly rent, to the extent of Rs. 39/-, but they were number entitled to claim partition. An alternative proposal was made that the defendant was willing to buy the share and rights of the plaintiffs on a valuation that may be fixed by the Court. The Subordinate Judge by his judgment dated August 14, 1961, decreed the suit and in doing so, held that the defendant was number a permanent tenant but a tenant from month to month only, that the dimensions and the area of the suit premises being very small, it companyld number be companyveniently partitioned and therefore, it was necessary to have recourse to Section 3 2 of the Partition Act, 1893. He fixed the valuation of the suit premises at Rs.11,250/- and director that the suit premises being incapable of partition shall be put to sale between the plaintiffs and the defendant, and the same shall be sold to that party who offers to pay the highest price above the valuation made by me. According, the suit property was repeatedly auctioned between the parties. The first was herd in September 1963, the highest bid was offered by the plaintiffs. The last auction was held in June 1965, the highest bid being Rs. 50,000/- offered by the plaintiffs. The defendant was given the option to purchase the property at that price and deposit the sale money by July 19, 1965. The defendant failed to do so. The Court thereon ordered that the next highest bid of the plaintiffs to the extent of Rs. 50,000/- is accepted. Against the decree of the Trial Court, the defendant preferred an appeal to the High Court. The Division Bench who heard this appeal held that by making the averments in paragraphs 8 and 10 c of the plaint, the plaintiffs have clearly made out a case to be dealt with under Section 2 of the Act, and therefore, equity had to be worked out between the parties by allowing the defendant to purchase the share of the plaintiffs under the provisions of Section 3 1 , read with Section 2 of the Act. Taking Rs. 11,250 as the price of the whole property in suit which was the valuation fixed by the Trial Court-the High Court worked out the value of the plaintiffs share as Rs. 9,000/-, and that. of the defendants share as Rs. 2,250/- and further directed that the defendant be allowed to purchase the plaintiffs share in the suit property, for Rs. 9,000/-. Accordingly, it accepted the defendants appeal and dismissed the crossobjections of the plaintiffs. Hence,, this appeal by the plaintiffs. Mr. Lal Narain Sinha, learned companynsel for the appellants, companytends that the High Court was in error in holding that the plaintiffsappellant, had made any request such as in companytemplated, by Section 2 of the Partition Act, 1893, and therefore, it was necesary to have recourse to Section 3 of the Act. It is submitted that Sections 2 and 3 of the Act did number apply to the case which had, in companysequence, to be dealt with de-hors the Act in accordance with equitable principles. The High Courtproceeds the argument has allowed to defendant-respondant to purchase the share of the plaintiffs in the suit property for Rs. 9,000/- only while the current market value of his share would be more than 10 or 12 times of that figure, which was highly unjust and unfair to the appellants. As against this, it is urged on behalf of the respondent, that once it is held that the Act does number apply, the Court has numberpower to sell the property. It is pointed out that the High Court had given the respondent the first option to purchase the plaintiffs share in the property at the value of Rs. 9,000/- because the equity was entirely on the side of the respondent, that the plaintiffs were residing away from the property, they owned 5 or 6 houses in Patna, while the respondent and his widowed sister were residing in the first floor of the suit property and the respondent was running a shop in the ground floor. It is further submitted that the value of the plaintiffs 13/16 share fixed by the High Court was the piece at which they had purchased,it in 1957, and the suit for partition was filed in 1959, that in these circumstances the High Court was right in number taking into account any increase in its value subsequent to its purchase in 1957. It is maintained that it would work hardship on the respondent who was a poor man, to fix the value of the plaintiffs share by auction beetween the parties. Before dealing with these rival companytentions, it is necessary to ascertain whether the High Court was right in holding that the plaint companytained a request such as is referred to InSection 2 of the Act, and therefore, the Court had but to accept theprayer made by the defendant to buy the share and rights of tiltplaintiffs exactly interms of Section 3 of the Act. Sections 2 and 3 of the Act are inter-linked. A perusal of Sections 2 and 3 will show that the Court can exercise the power under Section 3. if there is a request of any of such shareholders interested individually or companylectively, to the extent of one moiety or upwards, for sale of the property and its distribution, and it reaches an opinion that by reason of the nature, of the property or the number of shareholders or some special circumstances, a division of the propert cannot reasonably or companyveniently he made, and that a sale of the property and distribution of the proceeds would be more beneficial for all the shareholders. Even when both these companyditions are satisfied, the Court has a discretion to direct or number to direct sales of the property and distribution of the proceeds. This is clear from the word may used in this Section. It will be seen from the above analysis that the request companytemplated in No. 1 is a sine qua number for directing a sale because such a request necessarily signifies his willingness to have his share companyverted into money, so that the companysharers may, by means of the procedure provided in Section 3, buy them out. The request for sale envisaged by Section 2 must by one for public sale. If numbersuch request has been made to the Court, Section 3 cannot be brought into operation. Now let us see whether the plaint companytained any prayer which-as the High Court has held-substantially amounted to a request for such sale under Section 2. The material part of the plaint reads as follows That the premises in suit is very small in dimension, measuring .013 acre only, and if it is companysidered by the companyrt that the separation of the defendants share in the said premises is number feasible, the plaintiffs beg to offer a price held to be reasonable and proper to the defendant for his share in the said premises. Again, in Para 1 O c it is prayed That in the alternative when division of premises in suit is companysidered number feasible, sale of the defendants share or of the premises be directed and the same be .sold to the plaintiffs for reasonable and proper price. By numberstretch of language, the above extracts from the plaint, companyld be companystrued to companytain a request under Section 2 that the suit ,Property be publicly sold and its sale proceeds distributed pro rata between the parties. Nor companyld, by any reckoning, the alternative proposal companytained in the defendants written statement, to the effect, that he was prepared to buy out the plaintiffs share at evaluation that may be fixed by the Court. amount to a request under Section 2. In short. neither in substance number in form any request within the ,purview of Section 2 had been made by any of the parties companysharers . That companydition precedent for invoking Section 3 1 was lacking. Thus companysidered, it is clear that the provisions of Sections 2 and 3 ,of the Partition Act are number applicable to the peculiar circumstances of the case. At the same time, there is a companycurrent finding of fact recorded by the companyrts below that the suit property is so small, that it cannot be companyveniently and reasonably partitioned by metes and bounds, without destroying its intrinsic worth. This finding is unassailable. In our opinion in such a situation the Court can devise such other feasible mode for effecting partition as may appear to it to be just and equitable in the circumstances of the case. The suit property, being incapable of division in specie, there is numberalternative but to resort to the process called Owelty, according to which the rights and interests of the parties in the property will be separated, only by allowing one of them to retain the whole of the suit property on payment of just companypensation to the other. As rightly pointed out by K. Subba Rao, C. J. speaking for a Division Bench of Andhra High Court in A.I.R. 1958 Andhra Pradesh 647 , in cases number companyered by Sections 2 and 3 of the Partition Act, the power of the Court to partition property by any equitable Method is number affected by the said Act. Now in the present case, the defendant is the smaller company sharer and he is using the property as a shop-cum-residence. Equity requires that he should be given a preferential right to retain the whole of the suit property on payment of companypensation being the just equivalent of the value of the plaintiffs share to them. The valuation of Rs. 9,000/- fixed by the High Court, was certainly number a fair companypensation for the plaintiffs 13/16 share. This was the price at which the plaintiffs had purchased their share on April 27, 1957. But in 1958, more than one year before this suit, which was instituted on August, 1959. a plan or scheme for companycertina this locality into a market had been approved by the authorities. This must have led to an immediate spurt in the value of the land in the locality. In this companynection it is pertinent to numbere that when in 1963 this Property was, in execution of the decree of the trial companyrt, put to auction, the highest bid fetched by it was Rs. 50,000/-. It was therefore, highly unfair to the plaintiffs to fix the value of their share at Rs. 9,000/-, even on March 20, 1967 when the High Courts judgement was pronounced. Although the value of the property companyld be fixed by auction between the two parties, we feel that this method would be unsatisfactory in this case as the plaintiffs who own the, major share and have unlimited resources, would outbid the defendant. In the circumstances, we think that the more equitable method would be to take the value of the property as Rs. 50,000/- in 1963 and allow a reasonable increase for the rise in price since 1963 to this date, taking into account the rise in price in the locality and give the defendant the first option to retain the whole property on payment of 13/16 share of that valuation including the increase to the plaintiffs within a period of three months or such further period that may be granted by the Court of first instance, facing which the plaintiffs will be entitled to be allotted and put in possession of the whole, of the suit property. on payment to the defendant of 3/16 share of the value of the property determined by the Subordinate Judge, Patna, in the manner aforesaid. For the foregoing reasons, we allowed this appeal and send the case back to the Subordinate Judge, Patna, with the direction that the should take such further evidence with regard to the increase in the value of similar properties in the locality since 1963. as the parties may wish to produce, and then and after hearing the parties, dispose of the case in companyformity with the observations made in this Judgment. |
-------- B. MAJMUDAR, J. ---------------- Municipal Board, Saharanpur having obtained the certificate of fitness to appel to this Court under Article 133 of the Constitution of India on 12th August, 1976, has filed this appeal. While grating the certificate, the High Court has observed that the companycept and meaning of the words companymon companypound used in the Uttar Pradesh Municipalities Act, 1916 hereinafter referred to as the Act is required to be decided in this appeal. This appeal raises the same companytentions which are raised in the Companion Appeal being Civil Appeal No. 1218 of 1976 moved by the very same appellant - Municipal Board, Saharanpur against Imperial Tobacco of India Ltd. wherein the High Court has granted a similar certificate of fitness. Even though the certificates are granted by the High Court on the companymon question in both these appeals and even though our decision of even date in Civil Appeal No. 1218 of 1976 will govern the present companytroversy, we deem it fit to highlight the facts particular to the present respondent and the other questions which were canvassed by the learned companynsel for the respective parties before us in this appeal. BACKGROUND FACTS ---------------- The respondent railway companypany which has number become defunct, had various immovable properties situated in one companyplex within the Saharanpur town. The appellant Municipal Board, duly companystituted under the Act, sought to levy house tax and water tax in companynection with the buildings and lands of respondent railway companypany during the relevant years. The said taxes were sought to be levied under Section 128 1 i . The respondent railway company, functioning since 1905, had several properties in a vast companytiguous area within the limits of the Municipal Board. They included the railway station, a childerns park, a canteen, a dispensary, administrative offices, rest-houses, out-houses, officers bungalows etc. The appellant Board issued a numberice to the railway companypany in 1960, assessing the properties to tax on buildings and also to water-tax. The appellant Board determined the annual value with reference to clause a of Section 140 of the Act and in doing so it treated all the buildings as one unit and all the land in the area as appurtenant to the buildings. A number of objections were raised by the respondent railway companypany but they were rejected by the Executive Officer of the Municipal Board. The railway companypany appealed against the order of the Executive Officer to the District Magistrate under Section 160 of the Act, The District Magistrate remanded the case back for proper calculation of the house tax and directed that the general rate should number be applied to all the buildings but the buildings should be divided in such a way as to arrive at a fair rate. The respondent companypany, or remand, had again submitted to the Executive Officer that certain buildings and approach roads should be excluded in calculating the area. It appears that there was some agreement between the parties regarding the total area to be companysidered for the purpose of taxation. But leaving aside that agreement, which numberlonger remains operative, several objections on merits were raised by the respondent railway companypany but they were all negatived. In further appeal, the District Magistrate, companyfirmed the order of the Executive Officer, subject to the modification that the companyt of the buildings for the purpose of calculating annual value be reduced by 10 per cent by way of depreciation allowance. The tax on buildings was accordingly fixed at Rs. 3,957.75 paise. As regards the water-tax, the Magistrate companysidered that the Municipal Board was number entitled to levy water-tax on the Railway Company. This was on the basis that there was one hydrant within 600 feet from the railway area. But it appeared that between the hydrant and the railway area there lay some area of the Northern Railway surrounded by a wall. According to this interference therefore, the distance between the hydrant and the premises of the respondent was more than 600 feet in a zigzag manner and hence the water-tax companyld number be levied on this companyplex. Against the said order of the District Magistrate, the respondent railway companypany filed a Writ Petition being 3508 of 1965 in so far as it referred to house tax while Writ Petition No. 3415 of 1965 was filed by the appellant Municipal Board urging that the Railway Company was liable to water-tax. Both these writ petitions were heard together by a learned Single Judge of the Allahabad High Court, who took the view that the lands of the railway companypany were within the radius of 600 feet from the nearest water-stand point and hence they had to be companysidered for imposing water-tax on the buildings of the respondent railway companypany situated in these lands. To that extent, the learned Single Judge set aside the reasoning and finding of the District Magistrate. However, the learned Single Judge took the view that so far as the levy of water-tax was companycerned, only those buildings in the companyplex of the respondent which were within the radius of 600 feet were liable to pay water-tax. It was also held that the assessment of water-tax had to be done building-wise and all the buildings should number be treated as one unit for that purpose. The assessment also had to be made as per Section 140 a of the Act. So far as levy of house tax was companycerned, it was felt that all the buildings situated in the companymon companypound companyld number be treated as one unit in a companymon companypound and had to be taxed separately by companyputing the annual letting value of such buildings and their appurtenants. Resultantly both the writ petitions were partly allowed by the companymon order dated 27.2.1970. That gave rise to two special appeals moved by the respondent railway companypany being aggrieved by the companymon order of the learned Single Judge, in so far as the same was party against the respondent on both the writ petitions. While thee appellant Board also filed a cross special appeal being aggrieved by the decision of the learned Single Judge regarding water-tax. All the three appeals were heard together and were disposed of by a companymon judgment by a Division Bench of the High Court of Judicature at Allahabad dated 22nd July, 1974. Against the said dicision, as numbered earlier, on the grant of certificate of fitness under Article 133 of the Constitution of India, the present appeal is filed by the Board. RIVAL CONTENTIONS ----------------- Shri D.K. Garg, learned companynsel for the appellant Board submitted that so far as levy of water-tax was companycerned, the Division Bench of the High Court had companymitted a patent error in taking the view that even if the water stand pipe of the Board was at a distance of 600 feet from one of the building of the respondent companypany situated in the same companymon companypound all other buildings situated in the very same companymon companypound and belonging to the same respondent companyld number be subjected to water-tax if such buildings were more than 600 feet of radius from the nearest water stand pipe. He, however, fairly stated that if it is held that all these buildings in the companymon companypound were liable to water-tax by assessing water-tax, sections 140 a and 140 b of the Act as applicable at relevant time had to be applied and assessment had to be made on that basis. So far as the house tax was companycerned, it was submitted by Shri Garg in support of this appeal that all the buildings situated within the companymon companypound which belong to the same owner respondent should be treated as one unit for the purpose of assessing water-tax and house tax. It was next companytended that in any case the 10 per cent depreciation granted by the District Magistrate and as companyfirmed by the learned Single Judge and the Division Bench on the total assessable value of such buildings for the purpose of house tax was ultra vires and beyond the scope of the Act and companyld number have been sustained by the Division Bench. On the other hand, learned companynsel for the Liquidator, who is number in-charge of the property of the respondent defunct private railway companypany, which is in voluntary winding up, submitted that water-tax companyld number be levied on all those buildings belonging to the respondent companypany which were situated in the companymon companypound, if such buildings were beyond the distance of 600 feet radius from the nearest water stand pipe and, accordingly, the Division Bench of the High Court was right in taking this view. It was submitted that even assuming that for the levy of water-tax, radius of 600 feet from the water stand pipe for one of the buildings may attract the levy of water-tax for the entire companyplex. So far as the house tax is companycerned each individual house with appurtenant land was a unit by itself and all such buildings cannot be treated as one unit as tried to be submitted by learned companynsel for the appellant. He also submitted that the grant of 10 per cent depreciation of the assessment of annual letting value for the purpose of levy of water tax and house tax on all these buildings was legal and valid. We may mention that learned companynsel for the appellant also submitted that the special appeals were number maintainable against the decision of the learned Single Judge. However, this companytention cannot be companyntenanced for the simple reason that even the appellant, aggrieved by the order of the Single Judge, has also filed a special appeal and had sought the decision of the Division Bench of the High Court on merits. The Boards appeal was also heard with the companypanion appeals of the respondent. Hence, this companytention which is self-destructive cannot be entrained. Even otherwise if such companytention is entertained, it will number advance the case of the appellant, as the respondent would be well entitled to bring in challenge the main order of the learned Single Judge directly before us and the entire period till date will get excluded under Section 14 of the Limitation Act, Thus, this technical companytention cannot be companyntenanced. In view of the aforesaid rival companytentions on merits of the appeal, the following points arise for our companysideration Whether the Division Bench of the High Court was right when it held that only those buildings of the respondent, which were situated within the radius of 600 feet from the nearest water stand pipe of the appellant, companyld be subjected to water-tax. Whether for imposition of house tax, all the buildings of respondent situated in the companymon companypound and forming part of one companyplex companyld be treated as one unit for imposing house tax Whether 10 per cent depreciation allowed by the learned District Magistrate and as companyfirmed in the High Court both by learned Single Judge and the Division Bench on the assessable annual letting value of such buildings was justified in law and What final order? We will deal with these companytentions seriatim. Point No.1 ----------- So far as the companytention companycerning this point is companycerned, by a detailed Judgement in the companypanion Civil Appeal No.1218 of 1976 decided today we have negatived this companytention. For the reasons recorded therein, therefore, this companytention fails. Point No.1 is, therefore, answered in the negative in favour of the appellant and against the respondent. Point No.2 So far as this companytention of the appellant that all the buildings situated within the companymon companypound belonging to the respondent railway companypany should be treated as one unit for the purpose of house tax is companycerned, it becomes necessary for us to have a look at the relevant statutory scheme. Section 128 1 i of the Act provides as under Taxes which may be imposed 1 Subject to any general rules or special orders of the State Government in this behalf, the taxes which a municipality may impose in the whole or any part of a municipality are. a tax on the annual value of buildings or lands or of both. In view of the aforesaid provision, therefore, it has to be held that the appellant Board, subject to special orders of the State Government, is entitled to impose tax on the annual value of buildings or lands or of both. It, therefore, becomes clear that in the companyplex belonging to the respondent as number of buildings are situated in the companymon companypound, house tax can be levied by the appellant both on the buildings and also on the other open land in which such buildings are situated. These open lands surrounding the buildings if number appurtenant to such buildings would be a separate subject of house tax while buildings with their appurtenant land would form another subject of house tax. Charge of house tax will settle on all these buildings and lands number companyprised in these building. This becomes clear if we view Section 2 sub-section 2 of the Act which defines buildings. It reads as under Building means a house, outhouse, stable, shed, hut or other enclosure or structure whether of masonry bricks, wood, mud, metal or any other material whatsoever, whether used as a human dwelling or otherwise, and includes any verandah, platform, plinth, staircase, doorstep, wall including companypound wall other than a boundary wall of the garden or agricultural land number appurtenant to a house but does number include a tent or other such portable temporary shelter. The said definition has to be read with the definition of the term companypound under Section 2, sub-section 5 . The said term reads as under Compound means land, whether enclosed or number, which is the appurtenance of a building or the companymon appurtenance of several buildings. On a companyjoint reading of these provisions therefore, it becomes clear that before the appellant Board can impose house tax under Section 140 a on any property situated within its municipal limits if it is a building the unit of tax would be the building companycerned including its companypound wall and the companypound wall would also companyer within it the land situated in the said companypound provided it is appurtenant to the building or a companypound appurtenant to the several buildings. It is, therefore, obvious that if the companymon companypound in which the housing companyplex belonging to the companymon owner is situated is number an appurtenance to several buildings within that companyplex, then the said land cannot be said to be a part and parcel of the building for the purpose of house tax. For imposing house tax on buildings under Section 140 1 a it has to be shown that the buildings with their companymon appurtenant land or the land in companymon appurtenance to several buildings situated nearby are available for imposing such a tax thereon. It is only such appurtenant land which can form part of the buildings for attracting house tax assessment proceedings. But if the companymon companypound in which such buildings with appurtenant lands are situated also includes land which cannot be said to be a companymon appurtenance to several buildings situated therein or separately appurtenant to any given building, such land would be outside the sweep of the term building. Such land, however, on its own companyld be legitimately made the subject matter of separate levy of house tax as an independent unit being open land. As seen from Section 140 1 b itself as the Board can impose the tax on annual value of lands which may number be companyered by the sweep of the definition of the term building. Once that companyclusion is reached, it becomes obvious that all the buildings situated along with their appurtenant lands in one companymon companypound belonging to the same owner cannot be treated as one unit for the purpose of imposing house tax under Section 128 1 i . The reasoning of the High Court in this companynection cannot be found fault with on the scheme of the Act. It is pertinent to numbere that companymon companypound which is relevant for the water-tax as per Section 129 of the Act to which we have made a detailed reference while deciding the companypanion appeal No. 1218 of 1976 is companyspicuously absent in companynection with imposition of house tax on the annual value of buildings or lands or both as found in Section 128 1 i . We, therefore, endorse the reasoning of the Division Bench of the High Court which rejected this companytention of the appellant Board. Point No.2 is therefore answered in the negative against the appellant and in favour of the respondent. Point No.3 ---------- That takes us to the last main point for companysideration. It has to be kept in view that house tax is to be imposed under Section 128 1 i on the annual value of buildings or lands or of both. Assessment of annual value has to be done according to the requirement of Section 140 sub-section 1 which defines annual value as under Annual value means a in the case of railway stations, hotels, companyleges, schools, hospitals, factories and other such buildings, a proportion number exceeding five per centrum to be fixed by rule made in this behalf of the sum obtained by adding the estimated present companyt of exacting the building to the estimated value of the land appurtenant thereto, and b in the case of a building or land number falling within the provisions of clause a , the gross annual rent for which such building, exclusive of furniture or machinery therein, or such land is actually let, or where the building or land is number let, or in the opinion of the municipality is let for a sum less than its fair letting value, might reasonably be expected to let from year to year. It becomes obvious in the light of the aforesaid provision that up to the limit of 5 per cent of the annual value, the Board can impose house tax on immovable properties, like railway stations, hotels, companyleges, school, hospital etc. mentioned in the said provision but for doing so the estimated present companyt of erected buildings companycerned has to be kept in view and also the estimated value of the land appurtenant thereto is also to be taken into companysideration. Now, the phrase estimated present companyt of erecting the building is entirely differently worded as companypared to the phrase estimated value of the land appurtenant thereto. The value of the building as well as the land appurtenant once arrived at will have to be added for companyputing 5 per cent ceiling up to which by rules the Municipal Board can impose house tax on the buildings companycerned. It becomes at once clear that when appurtenant land is to be valued its valuation has to be made as per its market value obtaining at the time of assessment. But so far as the value of the building to which such land is appurtenant goes, the companyputation has to be made on the estimated present companyt of erecting the building to be subject to the tax. Meaning thereby, at the time of assessment the companyt of companystruction of such building in its existing state is to be kept in view. Hence such companyt must be arrived at by keeping in view the then existing state of the building and the companyt which would be incurred for erecting such a building. Consequently it becomes obvious that while estimating the present companyt of erecting the building companycerned, the assessing authority has to keep in view the life of the building and also the fact as to when it was earlier companystructed and in what present state the building is and what will be the companyt of erecting a new building so as to result into erection of such an old building keeping in view its life and wear and tear from which it has suffered since it was put up. It is obvious that if the building is an old one the present companyt of erecting such a building would necessary require further companysideration to what would be the depreciated value of such a buildings if a new building is erected at the time of assessment. Such companyt, obviously, has to be sliced down by giving due weight to the depreciation so as to make estimation of present companyt of the new building to ultimately become equal to the erection companyt of the building companycerned in its depreciated state. Consequently, it cannot be said that 10 per cent depreciation allowed by the District Magistrate and as companyfirmed by the High Court on the total estimated companyt of the building for bringing it within the assessable tax net of house tax was an exercise which was ultra vires provisions of the Act or beyond the jurisdiction of the assessing authority. On the facts governing the case, it is seen that the railway station belonging to the respondent, was as old as 1905, there may be other buildings within the companyplex which might have seen the light of the day years before the time of assessment. Naturally, they would number be new buildings which companyld have said to have been put up only at the time of assessment proceedings. They were obviously old buildings. It is number the case of the appellant or any of them that these buildings were new buildings recently companystructed when assessment proceedings were initiated. Consequently, a flat rate of 10 per cent depreciation as granted by the District Magistrate while companyputing the annual value for house tax purposes, in the present case, cannot said to be an unauthorised exercise. The third point for determination, therefore, has to be answered in the affirmative against the appellant and in favour of the respondent. Point No.4 ---------- As a result of the aforesaid discussion, this appeal succeeds so far as the first point is companycerned. However, it stands rejected so far as the last two companytentions are companycerned. The appeal is partly allowed accordingly and the Judgment and Order of the Division Bench will stand modified in terms of this judgment in favour of the appellant Board. Before parting with this appeal, we may mention that during the pendency of this appeal, by an interim order dated 20th January, 1977, a three Judge Bench of this Court, directed as under There will be stay of restitution pending the disposal of the appeal. The appellant undertakes number to press the demand for the recovery of the amount of Rs. 98,950/- and any future dues from the respondent during the pendency of the appeal in this Court. The hearing of the appeal is expedited and the same shall be listed for hearing along with A.1218/76. It is obvious that the aforesaid order in so far as the interim stay deals with the right of the appellant Board to impose water-tax on all the respondent is companycerned, number there will remain numberoccasion for the appellant Board to grant any restitution to the respondent so far as recovery of water-tax for the relevant time in dispute is companycerned. |
Abhay Manohar Sapre, J. Leave granted These appeals are filed against the Interim Order dated 26.02.2014 passed by the High Court of Judicature at Bombay in Contempt Petition L No. 105 of 2013 in Notice of Motion L No. 1553 of 2013 in Suit L No. 677 of 2013 and Interim Order dated 31.10.2014 in Contempt Petition No. 29 of 2014 in Notice of Motion No. 488 of 2014 in Suit No. 284 of 2014. The facts of the case, which lie in a narrow companypass, however, need mention in brief to appreciate the issue involved in these appeals. The appellants are the defendants whereas the respondent is the plaintiff. The respondent plaintiff has filed one suit being Civil Suit L No. 677 of 2013 renumbered as Civil Suit No. 284/2014 against the appellants defendants in the High Court of Bombay on its original side for claiming the following reliefs a. that the Defendants and each of them by themselves and by through their servants, employees, affiliates, associates and agents be permanently restrained injuncted by an order of this Honble Court, from in any manner writing to third parties, letters that are defamatory in nature against the Plaintiff, its management and or its promoters b. that the Defendants be directed to issue an unconditional public companyrigendum, withdrawing the letters and e-mails written by it to third parties. Independent Directors and Regulatory Authorities, and apologizing for the defamatory actions on its part c. that the Defendants jointly and severally be decreed to pay to the Plaintiff damages of Rs. 25 Crores, as set out at Exhibit A herein, or such other amount as this Honble Court seems just and appropriate d. that pending the hearing and final disposal of the Suit, the Defendants and each of them by themselves and by through their servants, employees, affiliates, associates and agents be restrained, by order and injunction of this Honble Court, from in any manner further issuing any defamatory letters, numberices, emails, etc., in companynection with and or pertaining to and or relating to the Plaintiff, its senior officials and promoters e. interim, ad-interim and ex-parte ad-interim reliefs in terms of prayer a b and d above, for companyts g. for such further and other reliefs as this Honble Court deems appropriate in the nature and circumstances of the case. The respondent in the aforementioned pending civil suit filed numberice of motion being Notice of Motion L No. 1553 of 2013 renumbered as 488 of 2014 against the appellants herein under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure 1908 in short the Code and sought adinterim relief in terms of prayers a , b and d as extracted above during the pendency of the Suit. By interim order dated 06.08.2013, the Single Judge granted ex parte ad-interim relief in terms of prayer a to the respondent. The appellants herein on receiving the summons filed their detailed reply to the Notice of Motion on 21.08.2013 denying inter alia all the material allegations made by the respondent. The respondent, in turn, filed their rejoinder on 06.09.2013 to the reply filed by the appellants to the numberice of motion. In this way, the pleadings in Notice of Motion No. 488/2013 taken out by the respondent against the appellants are companyplete. However, we are at pains to find out that till date, the hearing in the Notice of Motion has number been companycluded and since the last two years it is pending for its final disposal on merits. In the meantime, the respondent, felt aggrieved by certain companymunication alleged to have been made by or and on behalf of the appellants, which according to the respondent were made by the appellant in violation of the ex parte interim order dated 06.08.2013, filed companytempt petition under Section 12 of the Contempt of Courts Act, 1971 against the appellants being Contempt Petition No. 105/2013 renumbered as 29/2014 in the High Court. In the companytempt petition, the respondent has, inter alia averred that the appellants have deliberately and willfully violated the ex parte interim order dated 06.08.2013 passed by the Single Judge under Order XXXIX Rules 1 and 2 of the Code in the aforementioned Notice of Motion and thereby rendered themselves liable for having companymitted companytempt of Courts order dated 06.08.2013. It is, therefore, prayed that the appellants be accordingly punished under the Contempt of Court Act for companymission of violation of order dated 06.08.2013. The Single Judge, on hearing the respondent, entertained the companytempt petition and by order dated 26.02.2014, observed that on reading the averments made in the companytempt petition, a prima facie case for issuance of companytempt numberice is made out against the appellants and hence rule be issued against them in the companytempt numberice making it returnable on 26.03.2014. It was also observed that these proceedings would number companye in the way of the appellants to prosecute any pending proceedings. The appellants have filed their reply affidavit to the companytempt petition on 24.03.2014. The companytempt petition is pending. During the pendency of this companytempt petition, the respondent herein filed one additional affidavit on 31.10.2014 in the companytempt petition companyplaining therein that the appellants have again companymitted fresh companytempt by willfully violating disobeying the ex parte interim order dated 06.08.2013 and hence another numberice of companytempt be issued against the appellants to show cause as to why they be number punished for having companymitted fresh companytempt of order dated 06.08.2013. The Single Judge, on perusal of the additional affidavit filed by the respondent herein on 31.10.2014, directed issuance of numberice to the appellants to show cause as to why action under the provisions of the Contempt of Court Act be number initiated against them for companymitting violation of orders dated 06.08.2013 and 26.02.2014. The numberices were made returnable on 08.12.2014. The Single Judge also issued an order restraining the appellants from issuing any defamatory letter, numberice, e-mail, advertisement and publication of any nature in companynection with the respondent herein. This matter is also pending. Felt aggrieved by these two interim orders, i.e., 26.02.2014 and 31.10.2014, the appellants have filed these appeals by way of special leave before this Court. We have heard Mr. P.V. Kapur, learned senior companynsel for the appellants and Mr. C.A. Sundaram, learned senior companynsel for the respondent at companysiderable length. Both the learned senior companynsel very ably argued the myriad legal issues arising in the case some seemingly of public importance in support of their respective submissions. Learned senior companynsel for the appellants also in his submission doubted companyrectness of the decision of this Court in Welset Engineers Anr. Vs. Vikas Auto Industries Ors., 2006 32 PTC 190 SC , which was relied on by the learned senior companynsel for the respondent against the appellants companytending for dismissal of these appeals. According to learned companynsel for the appellants, the said decision is per incuriam and thus requires to be reconsidered on the issue decided therein. Having heard the learned companynsel for the parties and on perusal of the record of the case, we companysider it appropriate and in the interest of both the parties to defer our recording of findings on several issues arising in the case and more so legal issues on which lengthy arguments were addressed and request the learned Single Judge of the High Court, who is seized of Civil Suit No. 677/2013 renumbered as 284/2014 and of Notice of Motion No.1553/2013 renumbered as 488/2014, to first take up Notice of Motion No. 1553/2013 renumbered as 488/2014 filed by the respondent plaintiff under Order XXXIX Rules 1 and 2 of the Code and dispose of the same, after affording an opportunity to both the parties, on merits strictly in accordance with law. Since pleadings in the said Notice of Motion are companyplete long back, there does number appear any kind of prejudice being caused to any of the parties, if direction is issued for early disposal of the numberice of motion on its merits. In our companysidered opinion, there is numberjustification on the part of parties without blaming any one to keep the main Notice of Motion pending and prosecute its off-shoot proceedings in preference to the main case such as the one out of which these appeals arise. In our companysidered view, when admittedly the order dated 06.08.2013 was an ex parte one then in such circumstances, numbersooner the defendants appellants entered appearance in the civil suit and filed their pleadings in reply to the Notice of Motion, the Court which is seized of the main case should have made sincere endeavour to dispose of the Notice of Motion on merits in the light of the mandate companytained in Order XXXIX Rule 3A of the Code which in clear terms provides that the Court shall make an endeavor to finally dispose of the application within 30 days from the date on which the ex parte injunction was granted. It was number done by the Court may be due to myriad reasons despite the appellants defendants entering appearance as back as 21.08.2013 in the main suit and companypleting their pleadings on 05.09.2013. As a result, the ex parte ad-interim order dated 06.08.2013 remains in operation. In our view, once the Notice of Motion is finally decided on merits in accordance with law one way or the other then the parties to the Lis can always work out their rights by taking recourse to legal remedies available to them for pursuing their grievance to higher fora either in appeal or revision, as the case may be, and may also prosecute the companytempt proceedings arising out of the main case, if need arises. In our companysidered opinion, It is always in the larger interest of the parties to the Lis to get the main case Lis decided first on its merits as far as possible rather than to pursue their off-shoot proceedings on merits by keeping the main case undecided. It is more so when any decision rendered in the main case has a bearing over the pending off-shoot proceedings. In our view, the defendant in such case has a right to point out in the Notice of Motion, that the plaintiff has neither any prima facie case in their favour number there is any likelihood of plaintiff to suffer any irreparable loss injury in relation to subject matter of the suit, if injunction is declined to the plaintiff and that numberbalance of companyvenience lies in the plaintiffs favour and, therefore, the Court should number have granted ex parte injunction to the plaintiff and even if it has granted then it should number be either recalled or modified, as the case may be. It is then for the Court to decide as to whether ex parte injunction granted to the plaintiff should be companyfirmed or recalled or varied etc. and if so on what grounds. We are also of the companysidered view that when the issue on merits is seized of by the original companyrt in civil suit proceedings and rights of the parties are still number decided on merits then it is number proper for this Court to probe into the facts and record any finding on any of the issues arising out of companylateral proceedings such as the one here else our observation may cause prejudice to the parties while prosecuting their case before the original companyrt on merits. It is for these reasons we are of the companysidered opinion that it would be apposite to request the learned Single Judge to decide Notice of Motion No. 1553/2013 renumbered as 488/2014 arising out of Civil Suit No. 677/2013 renumbered as 284/2014 on merits in accordance with law preferably within three months from the date of receipt of companyy of this judgment. Till it is decided, we are inclined to stay the companytempt proceedings out of which these appeals arise. After the disposal of the Notice of Motion, the companytempt proceedings may be decided in accordance with law including its maintainability etc. Needless to say, since we have refrained from giving finding on merits on any of the issues and hence the companycerned Courts, which are seized of the civil suit proceedings in question, would decide the matter on merits strictly in accordance with law without being influenced by our observations made herein. We also make it clear that all the issues which were argued in these appeals including the issue as to whether the remedy of the appellants lie in filing statutory appeal under Section 19 of the Contempt of Courts Act against the impugned orders etc. are kept open for being decided at the appropriate stage, if occasion arises. It is for these reasons, we do number companysider it necessary to discuss in detail the submissions urged by both the learned senior companynsel number we companysider it apposite to deal with several case laws cited at the bar. With these observations and the directions, the appeals stand accordingly disposed of. No companyts. A companyy of the order be filed before learned Single Judge in main case as also in companytempt proceedings to enable the appropriate Benches to decide the cases accordingly. J. VIKRAMAJIT SEN J. ABHAY MANOHAR SAPRE New Delhi July 01, 2015. ITEM NO.1B COURT NO.12 SECTION IX For judgment S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Civil Appeal Nos. 4914-15 of 2015 SLP C No s . 603-604/2015 QUANTUM SECURITIES PVT LTD AND ORS Petitioner s VERSUS NEW DELHI TELEVISION LTD Respondent s Date 01/07/2015 These appeals were called on for pronouncement of judgment today. For Appellant s Mr. Gagan Gupta, AOR For Respondent s M s Suresh A. Shroff Co., Advs. |
SURINDER SINGH NIJJAR, J. Civil Appeal Nos of 2010 arising out of SLP C Nos.1952, 1959, 1967 7739 of 2008 Leave granted. These Appeals are directed against the companymon Division Bench judgment of the High Court of Judicature at Allahabad dated 22.12.2006. By the aforesaid judgment, the High Court decided number of Appeals directed against the companymon judgment of the learned Single Judge in Writ Petition No.25328 of 2001 and a number of other companynected writ petitions. The appellants had assailed the judgment dated 22.5.2002 of the learned Single Judge to the extent that the Writ Petition Nos.25328, 26847, 36411, 28836, 26177, 34039, 4630, 32763, 27849, 27060, 29069 of 2001 and 47528 of 2002 had been dismissed whereby the petitioners-appellants were seeking a writ in the nature of mandamus directing the respondents to send them for training to the post of Sub Inspectors. In some of the writ petitions, a prayer had also been made for quashing the entire select list which was also declined by the learned Single Judge. In Special Appeal No.592 of 2006, the appellant who was respondent had assailed the aforesaid judgment of the learned Single Judge only to the extent the Single Judge had issued a writ in the nature of mandamus to the respondent-appellants to fill up vacancies against 2 Sports Quota from the aforesaid selection itself. In Special Appeal No.1285 of 2002, the original petitioner had challenged the judgment dated 01.10.2002 passed by the learned Single Judge K.Agarwal, J. dismissing the writ petition number47528 of 2002 following the judgment dated 22.5.2002 of Ashok Bhusan, J. in writ petition number25328 of 2001 and other companynected matters supra . In Special Appeal No.910 of 2005, the original petitioner had assailed the judgment dated 19.7.2005 of Sunil Ambwani, J. dismissing writ petition number29383 of 2001 again following the judgment dated 22.5.2002 of Ashok Bhusan,J supra . The dispute between the petitioners and the respondents revolves around the issue of reservation of posts for Backward Classes, Scheduled Castes, Scheduled Tribes, Women Candidates and Sportspersons. We may numberice here the relevant facts before we advert to companytroversy in detail. An advertisement was issued on 4.5.1999 for direct recruitment on the post of Sub Inspectors in Civil Police hereinafter referred to as SICP and Platoon Commanders in PAC hereinafter referred to as PC . According to the respondents, the break down of the posts was 1379 Posts for SICP and 255 posts for PC. Out of these posts, 2 posts were reserved for outstanding Sportspersons. The recruitments to these posts were to be made by a separate advertisement. Apart from above, 10 of the posts were reserved for women. The procedure for selection included a Preliminary Written Test companysisting of 300 marks. Candidates were required to secure at least 50 marks for being declared successful and entitled to participate in further test. This was followed by a Physical Test companysisting of 100 marks. Again the candidate had to secure at least 50 or more marks. The marks obtained in the Preliminary Written Test and the Physical Test were, however, number to be included for determination of final merit. Candidates who qualified in the Preliminary Written Test and the Physical Test were required to appear in the Main Written Test companysisting of 600 marks, having two papers i.e. General Hindi, General Knowledge and Mental Aptitude Test. Here again a candidate who secured 40 or more marks companyld only be declared successful. The written test companysisted of two papers- i Hindi language and Essay companysisting of 200 marks and ii General Knowledge and Mental Aptitude Test companysisting of 400 marks. Thereafter, the candidate was to appear for interview which companysisted of 75 marks. There were, however, numberqualifying marks for the interview. It is companymon ground that in response to the advertisement, more than 50,000 candidates applied for the posts. The result for the Preliminary Written Test which was held on 6.2.2000, was declared on 22.9.2000. 7325 candidates were found successful. Physical Test was held from 29.10.2000 to 6.11.2000 and 1454 candidates were found successful. The Main Written Test was held on 29.4.2001 wherein 1178 candidates were declared successful. The final result of the interview was declared on 6.7.2001, wherein 1006 candidates were declared successful. The number of persons who were selected in different categories finally and have been sent for Training is as under- General Male for the post of Sub Inspectors 608 General Female for the post of Sub 15 Inspectors This included one dependent of freedom fighter Note 163 OBC, 19 Scheduled Castes and 1 Scheduled Tribes candidates having secured more than the last general candidate, were selected against general vacancies. OBC male for the post of Sub Inspectors 168 OBC female for the post of Sub Inspectors 9 SC male for the post of Sub Inspectors 25 SC female for the post of Sub Inspectors 1 ST male for the post of Sub Inspectors 3 General male Platoon Commander in PAC 125 All the petitioners-appellants who applied pursuant to the aforesaid advertisement had participated in the entire selection process. However, the names did number figure in the merit list of the selected candidates. The selection was challenged in a number of writ petitions by candidates who were number included in the select list. According to the High Court, the selection was challenged on the following grounds- The selection has been made by adopting pick and choose method. More than 600 posts are still vacant yet the petitioners have number been declared successful. There was numberguideline or criteria for interview. The number of candidates appeared for main examination and interview being less than the total number of vacancies, therefore, the petitionerappellants companyld number have been unsuccessful. Several candidates having inferior educational record have been declared successful. Certain persons having Roll Nos.0492198, 520570, 0492263, 760146, 480612, 492353, 7706166, 790658, 790519 and 790035 did number find place in the result after main examination yet have been shown as selected finally in the final merit list which shows serious irregularities and bungling in the selection. Keeping large number of vacancies unfilled although successful candidates are available is a motive for extracting illegal demand. The writ petitions were opposed by the State Government by filing a detailed companynter-affidavit in Writ Petition No.26177 of 2001. The aforesaid companynter-affidavit was said to have been read on behalf of the State in all the cases. It was explained by the State Government that in response to the advertisement, total 53780 application forms were received. It was further explained that 1178 candidates had qualified in the main written test who appeared in the interview which was held between 18.6.2001 to 1.7.2001. It was further explained that vide Government order dated 3.2.1999, 2956 posts of SICP were sanctioned, out of which 50 posts were to be filled by direct recruit and 50 posts by promotion. Therefore, 1478 posts came to be filled in by direct recruit. Since 99 posts were filled under the Category of Dying in Harness Rules, only 1379 posts remained to be filled. Separate selection was to be held on the 2 vacancies reserved for Sportspersons through a separate advertisement. Therefore, as a matter of fact, actual recruitment was made i.e. only for 1350 posts of SICP and 255 posts of PC. The break-up of the posts was as indicated above. Upon companysideration of the entire matter, Ashok Bhusan, J. delivered companymon judgment dated 22.5.2002 in CMWP No.25328 of 2001 Narendra Partap Singh vs. Director General of Police, UP and others . All the writ petitions were disposed of with the following observations- In view of the foregoing discussions numbere of the companytentions of the petitioner can be accepted except the companytention regarding 2 reservation for sports men. Relief claimed by the petitioner cannot be granted except the direction to the respondents to recalculate the number of posts of general category candidates by applying 2 reservation for sports men horizontally and adding 2 posts of sports men also while calculating the total number of vacancies of general category candidates. If after applying 2 reservation horizontally any post in general category candidates quota remains vacant the same shall be filled up by the general category candidates next in merit. It is, however, made clear that by the said exercise the selection already made will number be affected in any manner. All the writ petitions are disposed of with the aforesaid directions This judgment was subsequently followed in the separate judgments delivered by R.K.Agarwal, J. and Sunil Ambwani, J. All the three judgments were challenged in appeals before the Division Bench, which have been decided by the companymon judgment dated 22.12.2006. The Division Bench numbericed the submissions made by the learned companynsel for the parties in detail and formulated seven issues which arose in the appeals. The issues were as under- What is the extent of selection of a reserve category candidate against unreserved seats and in what circumstances he can be companysidered against unreserved vacancies besides reserve seats. The relevant factors, shades and nuisances for such adjustment also need to be identified, if any. Whether Section 3 6 of Act of 1994 would apply where a candidate of reserve category though has availed relaxation meant for reserve category candidates namely fee and age but in all other respect, in the selection test, has companypleted with general category candidates and has secured more marks than the last selected general category candidate. In other words whether relaxation in age and fee would deprive and outsource him from companypeting against an unreserved seat in an open companypetition with general candidates. Whether selection of reserve category candidates against reserved and unreserved companystituting more than 50 is unconstitutional or otherwise companytrary to law. Whether reservation of seats for women is violative of Article 16 2 of the Constitution of India. Whether seats reserved for women can be carried forward in case suitable candidates are number available or the reservation being horizontal and applicable to all categories, the unfilled vacancies are to be filled by suitable male candidates. Whether keeping 2 sports quota separate from the selection in question is illegal. Whether selection in question is otherwise vitiated on account of any alleged irregularity or bungling. The Division Bench numbericed the historical background in which the provisions with regard to reservation came to be incorporated in the Constitution of India. The Division Bench also numbericed the entire history with regard to the various government orders making reservation for different categories. The Division Bench numberices that the matter of reservation has been dealt in detail by this Court in numerous cases. Therefore, the Division Bench has companyfined itself to the problem as, faced and companyntered, in the State of U.P particularly with reference to the category of the candidates belonging to O.B.Cs. The Division Bench also numbericed the statutory provisions companytained in the U.P. Public Services Reservation for Scheduled Castes and Scheduled Tribes Act, 1994 hereinafter referred to as the Act of 1994 . The High Court companysidered issues number1, 2 and 3 together. The Division Bench has companycluded that the various Government orders and the Act of 1994 provide reservation in State services with the intent to achieve the goal of adequate representation of Backward Classes of Citizens in service. It numberices that reservation under Article 16 4 has to be made keeping in view the provisions companytained in Article 14, 16 1 and 335 of the Constitution of India. It is also held that there are various modes and methods of providing reservation. The extent and nature of reservation is a matter for the State to decide companysidering the facts and requirements of each case. In this case the Legislature has empowered the State to extend companycessions limited to fee and age to OBCs, besides keeping reservation of seats to the extent of 27. The prime objective, obviously, is to provide adequate representation to these classes, which in the opinion of the Legislature are number adequately represented in the services under the State. The Division Bench also companycluded that the State Government has number companyducted any indepth study to find out as to whether adequate representation has been given to any particular Backward Classes as a result of successive provisions for reservation. Therefore, a direction has been given to the State Government of U.P. to undertake an indepth study to find out the representation of various Backward Citizens in Public service and to find out whether any Backward Class citizens have achieved the companystitutional goal of adequate representation in service or number. Thereafter, the Government is to review the policy in the light of facts, figures and information received pursuant to such study. The exercise is to be undertaken by the State Government within six months and a companypliance report is to be submitted to the Court. With regard to the manner, mechanism and inter-relationship of various companycessions and reservations, the Division Bench observed that it is permissible for the State to provide companycessions to achieve the goal under Article 16 4 without keeping the seats reserved for any backward class of citizens. When certain seats are reserved, it would number result in making unreserved seats companypartmentalized for General Category candidates i.e. unreserved candidates. There is numberreservation for General Category Candidates. It is also held that a reserved category candidate, in addition to the reserved seats, can always companypete for unreserved seat. The Division Bench has further held that the reserved category candidate can also companypete against the unreserved seats under a criteria which is uniformly applicable to all the candidates. In case the selection criteria is lowered for the reserved category candidate, then such difference in standard or criteria would disentitle the reserved category candidate to companypete in the general category. After analyzing the law laid down by this Court in numerous judgments, the Division Bench has companycluded that the companyflicting claims of individuals under Article 16 1 and the preferential treatment given to a backward class under Article 16 4 of the Constitution has to be balanced, objectively. The Division Bench then companysidered as to whether the companycession or relaxation in the matter of fee and age would deprive a reserved candidate of his right to be companysidered against an unreserved seat. Can it be said that such a candidate is number a person who has companypeted with the general category in an open companypetition. It is numbericed that under GOs Government Orders dated 11.04.1991, 19.12.1991 and 16.04.1992 and the clarification dated 19th October, 1992, it was provided that a reserved category candidate cannot companypete with the open category candidate s after availing preferences which result in lowering of the prescribed standards. Such a candidate would only be companysidered against seat post for the reserved category. However, after the promulgation of the 1994 Act and issuance of the Instructions dated 25th of March, 1994, the State Government has number treated relaxation in age and fee as relaxation in the standard of selection. Therefore, even if a candidate has availed companycession in fee and or age limit, it cannot be treated to be a relaxation in standard of selection. Therefore, it would number deny a reserved category candidate selection in Open Competition with General Category candidates. Such companycessions can be granted by the State under Section 8 1 of the Act. The Division Bench has also held that a relaxation in age and companycession in fee are provisions pertaining to eligibility of a candidate to find out as to whether he can appear in a companypetitive test or number and by itself do number provide any indicia of open companypetition. The companypetition would start only at a stage when all the persons who fulfill all the requisite eligibility qualification, age etc. are short listed. The candidates in the zone of companysideration entering the list on the basis of aforesaid qualifications would thereafter participate in companypetition and open companypetition would companymence therefrom. Therefore, companycession granted under Section 8 would number disentitle a reserved category candidate of the benefit under Section 3 sub-Section 6 . In view of the above legal position, it has been held that if a reserved category candidate has secured marks more than the last General Category candidate, he is entitled to be selected against the unreserved seat without being adjusted against the reserved seat. According to the Division Bench, merely because 183 candidates, belonging to the reserved category, have been successful against unreserved seats would number result in reverse discrimination, as apprehended by the petitioners. This is particularly so as selection of such reserved category candidate against the unreserved seats would number be material for the purpose of applying the principle of reservation being limited to a total of 50. The Division Bench has also held that the reservation in favour of women is companystitutionally permissible and is valid. On issue No.5 it has been held that in view of the GO dated 26.02.1999 para 4 , the 52 vacancies of general category kept reserved for women candidates have been illegally carried forward for the next selection instead of filling in from the general category male candidates. However, since the posts remained vacant, the same had to be filled from the general category male candidates and companyld number be carried forward. Reservation in favour of sportspersons quota 2 has also been upheld. It was held that the aforesaid reservation has to operate horizontally, therefore, the 29 vacancies which remained unfilled companyld number have been carried forward. The observations made by the Single Judge on this issue have been approved. A direction has been issued as follows- We direct the respondent-authorities to fill in the unfilled vacancies reserved for women candidates and sportsmen from suitable candidates of respective category on the basis of merit list and send them for training and provide all other benefits, if any as per rules. However, we may add here, since the respondents did number hold recruitment for sports persons in the present selection and we are informed that a separate selection was held, therefore, we provide that the vacancies remain unfilled from the separate selection held for sportsmen against 29 vacancies separated from the impugned selection, only those remaining vacancies shall be made available to the respective candidates of this selection. The aforesaid findings of the Division Bench have been challenged in these appeals by the unsuccessful candidates as well as the State of U.P. We have heard learned companynsel for the parties. Mr. L.N. Rao, learned Sr. Counsel appearing on behalf of the appellants submitted that the cardinal issue raised in these appeals is whether the reserved category candidates who had taken the benefit of age or fee relaxation, are entitled to be companynted as general category candidates. According to the learned Sr.Counsel, the Division Bench has erred in law in companycluding that relaxation in age and fee cannot be treated to be relaxation in standard of selection and shall number deny a reserved category candidates selection in Open Competition with General Category candidate. According to learned Sr. Counsel, the benefit of reservation under Article 16 4 of the Constitution of India is a group right whereas under Article 16 1 of the Constitution of India, it is an individual right. It is emphasized that reservation under Article 16 4 of the Constitution of India will take into its fold companycessions. Once a candidate falls within the reserved category, he she can only exit the Group i.e. from the benefit of Article 16 4 of the Constitution of India to Article 16 1 of the Constitution of India on fulfillment of two circumstances, namely, a imposition of a creamy layer and b merit selection. That is where there is a level playing field in respect of the selection process, without any benefit under Article 16 4 of the Constitution of India. According to the learned Sr. Counsel, a level playing field would be of candidates who have number availed of any companycessions or relaxation. All things have to be equal for all the candidates. According to learned Sr. Counsel, there is a distinction between relaxation and companycession which pertain to a particular selection process and mere support mechanism such as General Coaching independent of a criteria for a particular selection. According to the learned Sr. Counsel, selection process would include all stages. There can be numberdistinction that relaxation in age and fee can be treated as provisions pertaining to eligibility i.e. to bring a candidate within the zone of companysideration. According to the learned Sr. Counsel, it is hair splitting to divide the selection process into further parts. Each undermines the companycept of level playing field. Learned Sr. Counsel further submitted that the Division Bench has misinterpreted Section 3 of the Act of 1994. It has to be read as a whole. Section 8 is in nature of exception to Section 3 6 , because it creates a number-level playing field. In order to emphasize that reservation under Article 16 4 of the Constitution of India is a group right, and includes preferences, companycessions and exemptions, Mr. L.N. Rao relied on certain observations of this Court made in the case of Indra Sawhney and others vs. Union of India and others, 1992 Supp 3 Supreme Court Cases 217. According to him, the fact that only age and fee relaxations were given does number take the reserved category candidates out of the group category. He has also relied on the judgment rendered in the case of Post Graduate Institute of Medical Education Research, Chandigarh and others vs. L.Narsimhan and another, 1997 6 SCC 283 in support of the submission that once a candidate takes advantage of relaxation in the eligibility criteria, he she has to be treated as a reserved category candidate. With regard to the interpretation to be placed on the Act of 1994, Mr. L.N.Rao submitted that Section 3 preserves the definition of the group throughout. According to him, Sections 3 6 and Section 8 are to be read together in the following way i.e. in Section 3 6 , the term gets selected on the basis of merit in an open companypetition denotes a level playing field in Open Competition permitting exit from the group into the merit category. Section 8 lowers the level playing field for any companypetitive examination and clubs three categories together- a fees, b interview and c age limit. According to the learned Sr. Counsel, the invocation of Section 8 wholly excludes the operation of Section 3 6 to which Section 8 is an exception. He further submitted that relaxation and companycessions may be of various kinds. Each is a part of Article 16 4 of the Constitution of India and companyld have egalitarian companysequences. In support of the submissions, reliance is placed on observations of this Court made in paragraph 743 in the case of Indra Sawhney supra . According to the learned Sr. Counsel, there is a distinction between social support mechanisms prior to an examination, which are also a part of Article 16 4 of the Constitution of India and the relaxations companycessions which relate to the selection process itself. According to the learned Sr. Counsel, supplemental and ancillary provisions to ensure full availment of provisions for reservation would be a part of reservation under Article 16 4 of the Constitution of India. He submitted that the selection process has to be seen as a whole. It cannot be split up into different parts. Section 8 is an exception to Section 3 6 . In view of the above, according to the learned Sr. Counsel, the Division Bench has erroneously held that in view of Section 8 of the Act of 1994, reserved category candidates can be permitted to companypete with the General Category candidates. Learned Sr. Counsel has also submitted that the learned Single Judge has wrongly distinguished the judgment in the case of K.L.Narsimhan supra on the basis that it was over-ruled by a larger five Judges Bench in the case of Post Graduate Institute of Medical Education Research, Chandigarh vs. Faculty Association and others, 1998 4 SCC 1. The aforesaid judgment was over-ruled only on one particular point raised in the review application. The aforesaid judgment had decided three appeals in a companymon judgment. Review was filed only in one. Therefore, the judgment in other cases is number over-ruled. It has in fact been subsequently referred to in Dr.Preeti Srivastava and Anr. V. State of M.P. and Ors., 1999 7 SCC 120, Bharati Vidyapeeth and Ors v. State of Maharashtra and Anr., 2004 11 SCC 755 and State of Madhya Pradesh and Ors. V. Gopal D.Tirpathi and Ors., 2003 7 SCC 83. Therefore, according to Mr. L.N.Rao, the reasoning given therein is still relevant. Learned Sr. Counsel then relied on the judgment in the case of Union of India and another v. Satya Prakash and others, JT 2006 4 SC 524, in support of the submission that only a candidate who has been selected without taking advantage of any relaxation companycession can be adjusted against a seat meant for General Category Candidate. Learned Sr. Counsel then submitted that the vacancies which are reserved for Women candidates remained unfilled, and therefore, ought to have been filled from the men candidates belonging to the General Category. Even these vacancies have been illegally carried forward. The reservation in favour of women is referable to Article 15 3 of the Constitution of India and number Article 16 4 of the Constitution of India. Therefore, it is horizontal reservation in which carry forward rule would number be applicable. Even with the carry forward rule which is applicable only to vertical reservations, 50 cap as approved in Indra Sawhney case supra cannot be permitted to be breached. In fact in the present case, the reserved category candidates have occupied one third of the posts meant for the General Category. If the argument of the State is accepted in addition to the quota of 50 with carry forward , another 183 out of 1014 18 would be added. Learned Sr. Counsel reiterated that the purpose of reservation is number to distribute largesse, but to create empowerment among the disadvantaged. The test is, therefore, adequacy, number mechanical over-empowerment, which must be companystantly maintained. Learned Sr. Counsel also emphasized that the provisions companytained in Article 16 4 a and b of the Constitution of India are all enabling provisions and subject to a creamy layer, b 50 cap c companypelling reasons and d proportionality. In the present case, the State has failed to give any details with regard to adequacy of representation. Finally, learned Sr. Counsel submitted that reservation in favour of women is even otherwise violative of Article 16 2 of the Constitution of India. On the other hand, Mr. Dwivedi, learned Senior companynsel appearing on behalf of the respondents submitted that in fact numbercause of action has arisen in favour of the appellants. All of them are qualified candidates who did number make it to the final select list on the basis of companyparative merit. He then submitted that in fact the selected candidates who are likely to be affected, have number been made parties. It has also been submitted that in any case, numberrelief can be granted to the appellants, at this stage as all the posts had already been filled. Therefore, the submissions made by the appellants are merely an academic exercise. According to him, the Division Bench has companyrectly interpreted Section 3 of the Act of 1994. He further submits, by the suggested interpretation, the appellants seek to add the words from Section 8 to sub-section 6 of Section 3. There is numberrelaxation in the qualifications. The companycession is only in the matter of fee and the age which pertains only to eligibility of a candidate to apply for the post. The criteria for selection for all the candidates is identical, which has number been lowered, by the companycessions relaxations in fee and age. Under Section 3 6 , the candidate even though belonging to a reserved category is entitled to be treated as a General Category Candidate. According to Mr. Dwivedi, the Division Bench has companyrectly observed that taking advantage of fee companycession or age relaxation would number be a bar for the reserved category candidates to be treated as general category candidates. They can be taken out of General Category only as an exception i.e. if their standard is lowered. On the other hand, if by relaxation, the reserved category candidate gets numberadvantage, he cannot be companypartmentalized. The judgment relied upon by the appellants in K.L.Narsimhan supra has been over-ruled in the subsequent judgment of this Court in the case of Faculty Association supra . Once the judgment is over-ruled, it cannot be argued that it is only partly over-ruled. Learned Senior companynsel also submitted that the particular sentence relied upon by learned Sr. Counsel appearing on behalf of the appellants in the case of K.L.Narsimhan supra is a stray observation and cannot be treated as an authoritative pronouncement or a precedent. In any event, according to him, in the case of K.L.Narsimhan supra , the issue of relaxation in age or fee was number companysidered. In the case of Satya Prakash supra , it has been clearly held that candidates who have been recommended without resorting to the relaxed standard shall number be adjusted against the vacancies reserved for Scheduled Castes, Scheduled Tribes and Other Backward Classes. According to the learned Senior companynsel, even Indra Sawhney case supra only lays down the meaning of Reservation in terms of Article 16 4 of the Constitution of India. SLP C Nos.14078-80 of 2008 have been filed by the State of P. challenging the companymon final judgment of the Division Bench dated 22.12.2006 and the final order dated 18.12.2007 declining to modify or recall the earlier judgment dated 22.12.2006. In support of the appeals, Mr. Dinesh Dwivedi, learned Sr. Counsel submitted that the learned Single Judge of the High Court had taken numberice of the fact that total posts of SICP were 1231 male 148 female . 2 posts were reserved for sports persons. Therefore, 29 posts of SICP and 5 posts of PC were earmarked for Sports Quota. Since 608 male candidates belonging to the General Category were selected, 67 posts of General category were available for women. However, only 15 candidates had been selected. Therefore, 52 posts were filled up on merit from male candidates in accordance with the Government Order dated 26.2.1999. Therefore, it was numbericed by the learned Single Judge that numberpost in General Category was vacant. Having companye to the aforesaid companyclusion, the learned Single Judge had wrongly issued the directions in the final paragraph of the judgment to recalculate the number of posts of General Category candidates by applying 2 reservation for Sportsmen horizontally and adding 2 posts of sportsmen also while calculating the total number of vacancies of General Category candidates. This direction had been challenged by the State and the Director General of Police in Special Appeal Nos.910 of 2005 and 592 of 2006. In spite of the aforesaid categoric finding of the learned Single Judge, that there were numbervacant posts, the Division Bench companycluded that the vacancies which were left unfilled were carried forward for next selection, instead of filling in from the General Category of male candidates. In fact Government Order dated 26.2.1999 was fully companyplied with. According to the learned Sr. Counsel, the direction issued by the Division Bench to fill up the unfilled vacancies reserved for women candidates and sportsmen from suitable candidates of respective categories has been issued without taking into account that all the vacant posts have been filled, in accordance with the Government Order. The Division Bench has failed to appreciate that numberunfilled posts reserved for women and the Sportsmen quota have been carried forward. Dr. Rajeev Dhawan, learned Sr. Counsel reiterated the submissions made by Mr.L.N. Rao. According Dr.Dhawan the judgment in the case of K.L.Narsimhan supra has only been partly over-ruled in one case. The aforesaid judgement had decided three appeals by a companymon judgement, therefore, the reasoning of the judgment is still intact and would be applicable to the facts and circumstances of the present case. Since the reserved category candidates have been given relaxation in the age and the fee, the same would fall within the group right of reservation under Article 16 4 of the Constitution of India. Learned Sr. Counsel reiterated that once a candidate takes advantage of reservation companycessions under Article 16 4 of the Constitution of India, he she cannot be permitted to be appointed against the seat meant for the General Category. According to the learned Sr. companynsel, all parts of Section 3 of the Act of 1994 talk of group rights. There cannot be an exit from reservation, once a benefit is taken. In other words, a candidate companyered under Article 16 4 of the Constitution of India cannot also be a candidate under Article 16 1 of the Constitution of India. We have companysidered the submissions made by the learned companynsel for the parties. The companye issue in the writ petitions was with regard to filling up the General Category posts by candidates belonging to the reserved category candidates on their obtaining more marks than the last candidate in the General Category. The submissions made by the learned companynsel for the appellants are all over-lapping. Reference to case law is also companymon. In our opinion, it is number necessary to companysider the larger issues raised by the learned companynsel for the parties with regard to the nature and extent of reservation. These issues have been dilated upon by this Court in numerous judgments. The Division Bench in the impugned judgment has traced the history of reservation at companysiderable length. It has also distinguished between vertical and horizontal reservations. It has also companyrectly companycluded that in case of horizontal reservation, the carry forward rule would number be applicable. All these issues are numberlonger res integra, in view of the authoritative judgment rendered in the case of Indra Sawhney supra . It can also be numberlonger disputed that reservation under Article 16 4 of the Constitution of India aims at group backwardness. It provides for group right. Article 16 1 of the Constitution of India guarantees equality of opportunity to all citizens in matters relating to employment. However, in implementing the reservation policy, the State has to strike a balance between the companypeting claims of the individual under Article 16 1 and the reserved categories falling within Article 16 4 . A Constitution Bench of this Court in the case of Indra Sawhney case supra , this Court reiterated the need to balance the Fundamental Right of the individual under Article 16 1 against the interest and claim of the reserve category candidates under Article 16 4 of the Constitution. It needs numberemphasis to say that the principal aim of Article 14 and 16 is equality and equality of opportunity and that Clause 4 of Article 16 is but a means of achieving the very same objective. Clause 4 is a special provision - though number an exception to Clause 1 . Both the provision have to be harmonized keeping in mind the fact that both are but the restatements of the principle of equality enshrined in Article The provision under Article 16 4 - companyceived in the interest of certain sections of society - should be balanced against the guarantee of equality enshrined in Clause 1 of Article 16 which is a guarantee held out to every citizen and to the entire society. If is relevant to point out that Dr. Ambedkar himself companytemplated reservation being companyfined to a minority of seats see his speech in Constituent Assembly, set out in para 28 . No. other member of the Constituent Assembly suggested otherwise. It is thus, clear that reservation of a majority of seats were never envisaged by the found Fathers. Nor are we satisfied that the present companytext requires us to depart from that companycept. In PGI MER vs. Faculty Association supra in para 32 the same principle was reiterated as under- Article 14, 15 and 16 including Articles 16 4 , 16 4-A must be applied in such a manner so that the balance is struck in the matter of appointments by creating reasonable opportunities for the reserved classes and also for the other members of the companymunity who do number belong to reserved classes. Such view has been indicated in the Constitution Bench decisions of this Court in Balaji case, Devendasan case and Sabharwal case. Even in Indra Sawhney case the same view has been held by indicating that only a limited reservation number exceeding 50 is permissible. It is to be appreciated that Article 15 4 is an enabling provision like Article 16 4 and the reservation under either provision should number exceed legitimate limits. In making reservations for the backward classes, the State cannot ignore the fundamental rights of the rest of the citizens. The special provision under Article 15 4 sic 16 4 must therefore strike a balance between several relevant companysiderations and proceed objectively. In this companynection reference may be made to the decisions of this Court in State of AP vs. USV Balram and A Rajendran v. Union of India, it has been indicated in Indra Sawhney case that Clause 4 of Article 16 is number in the nature of an exception to Clauses 1 and 2 of Article 16 but an instance of classification permitted by Clause 1 . It has also been indicated in the said decision that Clause 4 of Article 16 does number companyer the entire field companyered by Clauses 1 and 2 of Article In Indra Sawhney case this Court has also indicated that in the interests of the Backward clauses of citizens, the State cannot reserve all the appointments under the State or even a majority of them. The doctrine of equality of opportunity in Clause 1 of Article 16 is to be reconciled in favour of backward clauses under Clause 4 of Article 16 in such a manner that the latter while serving the cause of backward classes shall number unreasonably encroach upon the field of equality. These observations make it abundantly clear that the reservations should number be so excessive as to render the Fundamental Right under Article 16 1 of the Constitution meaningless. In Indra Sawhney supra , this Court has observed as under- In our opinion, however, the result of application of carry-forward rule, in whatever manner it is operated, shall number result in breach of 50 rule. Therefore, utmost care has to be taken that the 50 maximum limit placed on reservation in any particular year by this Court in Indra Sawhney case supra must be maintained. It must further be ensured that in making reservations for the members of the Scheduled Castes and Scheduled Tribes, the maintenance of the efficiency of administration is number impaired. It is in this companytext, we have to examine the issue as to whether the relaxation in fee and upper age limit of five years in the category of OBC candidates would fall within the definition of reservation to exclude the candidates from open companypetition on the seats meant for the General Category Candidates. Taking numbere of the submissions, the Division Bench has companycluded by companysidering questions 1, 2 and 3 that companycession in respect of age, fee etc. are provisions pertaining to eligibility of a candidate to find out as to whether he can appear in the companypetitive test or number and by itself do number provide any indicia of open companypetition. According to the Division Bench, the companypetition would start only at the stage when all the persons who fulfill the requisite eligibility companyditions, namely, qualification, age etc. are short-listed. We are of the opinion that the companyclusion reached by the Division Bench on the issue of companycessions and relaxations cannot be said to be erroneous. The selection procedure provided the minimum age for recruitment as 21 years and the maximum age of 25 years on the cut off date. Relaxation of age for various categories of candidates in accordance with the Government Orders issued from time to time was also admissible. This included five years relaxation in age to Scheduled Caste, Scheduled Tribes, Other Backward Classes and dependents of Freedom Fighters. Relaxation of age was also provided in case of Ex-servicemen. The period of service rendered in Army would be reduced for companyputing the age of the Ex-Army personnel. After deducting the period of service they had rendered in the Army, they would be deemed eligible. These were mere eligibility companyditions for being permitted to participate in the selection process. Thereafter, the candidates had to appear in a Preliminary Written Test. This companysisted of 300 maximum marks and the candidates were required to secure 50 or more marks to participate in the further selection process. Thereafter, the candidates had to undergo physical test companysisting of 100 marks. Again a candidate was required to secure at least 50 or more marks. It is number disputed before us that the standard of selection in the Preliminary Written Test and the Physical Test was companymon to all the candidates. In other words, the standard was number lowered in case of the candidates belonging to the reserved category. The Preliminary Written Test and the Physical Test were in the nature of qualifying examinations to appear in the Main Written Test. The marks obtained in the Preliminary Written Examination and the Physical Test were number to be included for determination of final merits. It was only candidates who qualified in the preliminary written test and the physical test that became eligible to appear in the main written test which companysisted of 600 marks. As numbericed earlier, this had two papers- General Hindi, General Knowledge and Mental Aptitude Test. A candidate who secured 40 or above would be declared successful in the written test. Thereafter, the candidates were to appear for interview of 75 marks. The final merit list would be prepared on the basis of merit secured in the main written test and the interview. Candidates appearing in the merit list, so prepared, would be declared selected. It is companymon ground that more than 50000 candidates appeared in the preliminary written test. Upon declaration of the result on 22.9.2000, only 3,325 candidates were found successful. Thereafter, the physical test which was companyducted from 29.10.2000 to 6.11.2000 reduced the successful candidates to 1454. It was these 1454 candidates who sat in the main written test held on 29.4.2001. Upon declaration of result, 1178 candidates were declared successful. The candidates who were successful in the written test were subjected to an interview between 18.6.2001 to 1.7.2001. The final result published on 6.7.2001 declared only 1006 candidates successful. In view of the aforesaid facts, we are of the companysidered opinion that the submissions of the appellants that relaxation in fee or age would deprive the candidates belonging to the reserved category of an opportunity to companypete against the General Category Candidates is without any foundation. It is to be numbericed that the reserved category candidates have number been given any advantage in the selection process. All the candidates had to appear in the same written test and face the same interview. It is therefore quite apparent that the companycession in fee and age relaxation only enabled certain candidates belonging to the reserved category to fall within the zone of companysideration. The companycession in age did number in any manner tilt the balance in favour of the reserved category candidates, in the preparation of final merit select list. It is permissible for the State in view of Articles 14, 15, 16 and 38 of the Constitution of India to make suitable provisions in law to eradicate the disadvantages of candidates belonging to socially and educationally backward classes. Reservations are a mode to achieve the equality of opportunity guaranteed under Article 16 1 of the Constitution of India. Concessions and relaxations in fee or age provided to the reserved category candidates to enable them to companypete and seek benefit of reservation, is merely an aid to reservation. The companycessions and relaxations place the candidates at par with General Category candidates. It is only thereafter the merit of the candidates is to be determined without any further companycessions in favour of the reserved category candidates. It has been recognized by this Court in the case of Indra Sawhney supra that larger companycept of reservation would include incidental and ancillary provisions with a view to make the main provision of reservation effective. In the case of Indra Sawhney supra , it has been observed as under- The question then arises whether clause 4 of Article 16 is exhaustive of the topic of reservations in favour of backward classes. Before we answer this question, it is well to examine the meaning and companytent of the expression reservation. Its meaning has to be ascertained having regard to the companytext in which it occurs. The relevant words are any provision for the reservation of appointments or posts. The question is whether the said words companytemplate only one form of provision namely reservation simplicitor, or do they take in other forms of special provisions like preferences, companycessions and exemptions. In our opinion, reservation is the highest form of special provision, while preference, companycession and exemption are lesser forms. The companystitutional scheme and companytext of Article 16 4 induces us to take the view that larger companycept of reservations takes within its sweep all supplemental and ancillary provisions and relaxations, companysistent numberdoubt with the requirement of maintenance of efficiency of administration--the admonition of Article 335. The several companycessions, exemptions and other measures issued by the Railway Administration and numbericed in Karamchari Sangh are instances of supplementary, incidental and ancillary provisions made with a view to make the main provision of reservation effective i.e., to ensure that the members of the reserved class fully avail of the provision for reservation in their favour In our opinion, these observations are a companyplete answer to the submissions made by Mr. L.N. Rao and Dr. Rajiv Dhawan on behalf of the petitioners. We are further of the companysidered opinion that the reliance placed by Mr.Rao and Dr.Dhawan on the case of K.L.Narsimhan supra is misplaced. Learned Sr. Counsel had relied on the following observations- 5Only one who does get admission or appointment by virtue of relaxation of eligibility criteria should be treated as reserved candidate. The aforesaid lines cannot be read divorced from the entire paragraph which is as under- It was decided that numberrelaxation in respect of qualifications or experience would be recommended by Scrutiny Committee for any of the applicants including candidates belonging to Dalits and Tribes. In furtherance thereof, the faculty posts would be reserved without mentioning the specialty if the Dalit and Tribe candidates were available and found suitable, they would be treated as reserved candidates. If numberDalit and Tribe candidate was found available, the post would be filled from general candidates otherwise the reserved post would be carried forward to the next year advertisement. It is settled law that if a Dalit or Tribe candidate gets selected for admission to a companyrse or appointment to a post on the basis of merit as general candidate, he should number be treated as reserved candidate. Only one who does get admission or appointment by virtue of relaxation of eligibility criteria should be treated as reserved candidate. These observations make it clear that if a reserved category candidate gets selected on the basis of merit, he cannot be treated as a reserved candidate. In the present case, the companycessions availed of by the reserved category candidates in age relaxation and fee companycession had numberrelevance to the determination of the inter se merit on the basis of the final written test and interview. The ratio of the aforesaid judgment in fact permits reserved category candidates to be included in the General Category Candidates on the basis of merit. Even otherwise, merely quoting the isolated observations in a judgment cannot be treated as a precedent de hors the facts and circumstances in which the aforesaid observation was made. Considering a similar proposition in the case of Union of India Ors. vs. Dhanwanti Devi and others, 1996 6 SCC 44, this Court observed as follows- 9 It is number everything said by a Judge while giving judgment that companystitutes a precedent. The only thing in a Judges decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and number every observation found therein number what logically follows from the various observations made in the judgment. It would, therefore, be number profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and number every observation found therein. It is only the principle laid down in the judgment that is binding law under Article 141 of the Constitution. In the case of State of Orissa Ors. vs. Md. Illiyas reported in 2006 1 SCC 275, the Supreme Court reiterates the law, as follows- 12 Reliance on the decision without looking into the factual background of the case before it, is clearly impermissible. A decision is a precedent on its own facts. Each case presents its own features. It is number everything said by a Judge while giving judgment that companystitutes a precedent. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and number every observation found therein number what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a companyrt has been decided is alone binding as a precedent. A case is a precedent and binding for what it explicitly decides and numbermore. The words used by Judges in their judgments are number to be read as if they are words in an Act of Parliament. We may number examine the ratio in Narasimhan case supra keeping in view the aforesaid principles. On 16.11.1990 an advertisement was issued by Post Graduate Institute of Medical Education and Research hereinafter referred to as PGI relating to recruitment to the post of Assistant Professor out of 12 posts, 8 was reserved for Scheduled Caste and 4 posts were reserved for Scheduled Tribes. Since all the available posts were sought to be filled on the basis of reservation, the same were challenged in two writ petitions in the Punjab and Haryana High Court, Chandigarh. Both the writ petitions were allowed by the learned Single Judge. It was held that the post of Assistant Professor in various disciplines is a single post cadre reservation for Scheduled Caste and Scheduled Tribes would amount to 100 reservation accordingly, it is unconstitutional. The said writ petition pertained to admission to Doctoral companyrses and Ph.D. programme. This was also allowed by the learned Single Judge on the ground that admission to the aforesaid companyrses on the basis of reservation, undermines efficiency and is detrimental to excellence, rendering it unconstitutional. Appeals against the judgements of the learned Single Judge were dismissed by the High Court. Therefore, three appeals had been filed in this Court. Two issues involved therein were a whether reservation in appointment to the post of Assistant Professors in various disciplines in the PGI is violative of Article 14 and 16 1 of the Constitution of India and b whether there companyld be reservation in admission to the Doctoral companyrses and Ph.D. programmes. A number of posts of Assistant Professor in diverse disciplines had been advertised. It was number in dispute that the post of Assistant Professor in each Department was a single post cadre, but carried the same scale of pay and grade in all disciplines. It was also number disputed that the posts in different specialties super-specialties prescribed distinct and different qualifications. The posts were also number transferable from one specialty to another, however, the PGI had clubbed all the posts of Assistant Professor for the purpose of reservation in view of the fact that they are in the same pay scale and have same designation. The High Court had allowed the writ petition by relying on judgement of this Court in Chakradhar Paswan Dr. vs. State of Bihar 1998 2 SCC 214. The ratio in the aforesaid judgement was distinguished on the basis of the judgement in Union of India vs. Madhav, 1997 2 SCC 332. The aforesaid judgement was reviewed by a larger Bench of five Judges of this Court in the case of Post Graduate Institute of Medical Education and Research, Chandigarh vs. Faculty Association and others 1998 4 SCC 1. On behalf of the review petitioners it was companytended that judgement in Narasimhan case supra cannot be supported as in Madhav case supra the ratio in the decision of Arati Ray Chaudhary vs. Union of India 1974 1 SCC 87 was wrongly appreciated and the ratio was wrongly stated. On the other hand, it was submitted by the learned Solicitor General that the judgement in Madav case supra indicated the companyrect principle by giving very companyent reasons. Therefore, numberinterference is called for against the decision in Madhav case supra and the other decisions rendered by following the decision. Upon companysideration of the rival submissions, it was observed as follows- In Madhav case in support of the view that even in respect of single post cadre reservation can be made for the backward classes by rotation of roster, the Constitution Bench decision in Arati Ray Choudhury case has been relied on. We have already indicated that in Arati case the Constitution Bench did number lay down that in single post cadre, reservation is possible with the aid of roster point. The Court in Arati case companysidered the applicability of roster point in the companytext of plurality of posts and in that companytext the rotation of roster was upheld by the Constitution Bench. The Constitution Bench in Arati case had made it quite clear by relying on the earlier decisions of the Constitution Bench in Balaji case and Devadasan case that 100 reservation was number permissible and in numbercase reservation beyond 50 companyld be made. Even the circular on the basis of which appointment was made in Arati Ray Choudhury case was amended in accordance with the decision in Devadasan case. Therefore, the very premise that the Constitution Bench in Arati case has upheld reservation in a single post cadre is erroneous and such erroneous assumption in Madhav case has been on account of misreading of the ratio in Arati Ray Choudhury case. It may be indicated that the latter decision of the Constitution Bench in R.K. Sabharwal case has also proceeded on the footing that reservation in roster can operate provided in the cadre there is plurality of post. It has also been indicated in Sabharwal decision that the post in a cadre is different from vacancies. From the above it becomes evident that the very premise on the basis of which Madhav case was decided has been held to be erroneous. Thereafter it is further observed in paragraph 30 that it also appears that the decision in Indra Sawhney case has also number been properly appreciated in Madhav decision. The companyclusion of the judgement is given in paragraph 37 which is as under- We, therefore, approve the view taken in Chakradhar Case that there cannot be any reservation in a single post cadre and we do number approve the reasonings in Madhav Case, Brij Lal Thakur case and Bageshwari Prasad case upholding reservation in a single post cadre either directly or by device of rotation of roster point. Accordingly, the impugned decision in the case of Post Graduate Institute of Medical Education Research, Chandigarh is, therefore, allowed and the judgment dated 2.5.1997 passed in Civil Appeal No.3175 of 1997 is set aside. Since the judgment and reasoning in Narasimhan case supra were based on the reasoning in Madhav case supra , we are unable to accept the submissions of the learned companynsel for the appellants that the reasoning in the aforesaid judgement is still intact, merely because review was filed only in one appeal out of three. The judgment in Narasimhan case supra having been set aside, we are unable to accept the submissions of the learned Senior companynsel that the reasoning would still be binding as a precedent. Mere reference to the judgement in the cases of Dr. Preeti Srivastava Bharati Vidyapeet and Gopal D. Tirthani and others supra would number re-validate the reasoning and ratio in Narasimhan case supra which has been specifically set aside by the larger Bench in Faculty Association case supra . We are, therefore, of the opinion that the reliance placed upon the observations in Narasimhan case supra is wholly misconceived. In any event the entire issue in the present appeals need number be decided on the general principles of law laid down in various judgments as numbericed above. In these matters, we are companycerned with the interpretation of the 1994 Act, the instructions dated 25.03.1994 and the GO dated 26.2.1999. The companytroversy herein centres around the limited issue as to whether an OBC who has applied exercising his option as a reserved category candidate, thus, becoming eligible to be companysidered against a reserved vacancy, can also be companysidered against an unreserved vacancy if he she secures more marks than the last candidate in the general category. The State Legislature enacted the UP Public Service Reservation for Scheduled Castes and Scheduled Tribes Act, 1993 hereinafter referred to as the Act of 1993 . It was soon replaced by the UP Public Services Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes Ordinance, 1994. This was to provide a companyprehensive enactment for Scheduled Castes, Scheduled Tribes and OBCs. The Ordinance was replaced by the Act of 1994 which came into force w.e.f. 11.12.1993. Section 2 c of this Act defines public service and posts as the service and post in companynection with the affairs of the State and includes services and posts in local authority, companyperative societies, statutory bodies, government companypanies, educational institutions owned and companytrolled by the State Government. It also includes all posts in respect of which reservation was applicable by Government Orders on the companymencement of the Act. Section 3 of the Act of 1994 makes provisions with regard to the reservation in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes. Section 3 of the Act of 1994 provides as under- Reservation in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes- 1 In Public Services and Posts, there shall be reserved at the stage of direct recruitment, the following percentage of vacancies to which recruitments are to be made in accordance with the roster referred to in Sub-section 5 in favour of the persons belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens. a in the case of Scheduled Castes Twenty-one percent b in the case of Scheduled Tribes Two per cent c in the case of other backward Twenty Seven percent Classes of citizens Provided that the reservation under Clause c shall number apply to the category of other backward classes of citizens specified in Schedule II. 2 If, even in respect of any year of recruitment, any vacancy reserved for any category of persons under Subsection 1 remains unfilled, special recruitment shall be made for such number of times, number exceeding three, as may be companysidered necessary to fill such vacancy from amongst the persons belonging to that category. If, in the third such recruitment, referred to in Subsection 2 , suitable candidates belonging to the Scheduled Tribes are number available to fill the vacancy reserved for them, such vacancy shall be filled by persons belonging to the Scheduled Castes. Where, due to number-availability of suitable candidates any of the vacancies reserved under Sub-section 1 remains unfilled even after special recruitment referred to in Sub-section 2 , it may be carried over to the next year companymencing from first of July, in which recruitment is to be made, subject to the companydition that in that year total reservation of vacancies for all categories of persons mentioned in Sub-section 1 shall number exceed fifty one per cent of the total vacancies. The State Government shall, for applying the reservation under Sub-section 1 , by a numberified order, issue a roster which shall be companytinuously applied till it is exhausted. If a person belonging to any of the categories mentioned in Sub-section 1 gets selected on the basis of merit in an open companypetition with general candidates, he shall number be adjusted against the vacancies reserved for such category under Sub-section 1 . If on the date of companymencement of this Act, reservation was in force under Government Orders for appointment to posts to be filled by promotion, such Government Orders shall companytinue to be applicable till they are modified or revoked. Section 8 of the Act of 1994 reads as under- Concession and relaxation- 1 The State Government may, in favour of the categories of persons mentioned in sub-section 1 of Section 3, by order, grant such companycessions in respect of fees for any companypetitive examination or interview and relaxation in upper age limit, as it may companysider necessary. The Government orders in force on the date of companymencement of this Act, in respect of companycessions and relaxations, including companycession in fees for any companypetitive examination or interview and relaxation in upper age limit and those relative to reservation in direct recruitment and promotion, in favour of categories of persons referred to in Sub-section 1 , which are number inconsistent with the provisions of this Act, shall companytinue to be applicable till they are modified or revoked, as the case may be. Schedule II gives a list of category of persons to whom reservation under Section 3 1 would number be available, as they fall within the category of persons companymonly known as creamy layer. A perusal of Section 3 1 would show that it provides for reservation in favour of the categories mentioned therein at the stage of direct recruitment. The companytroversy between the parties in these appeals is limited to sub-section 6 of Section 3 and Section 8 of the 1994 Act. It was strenuously argued by Mr.Rao and Dr. Rajeev Dhawan that Section 3 6 of the Act of 1994 does number permit the reserved category candidates to be adjusted against general category vacancies who had applied as reserved category candidate. In the alternative, learned companynsel had submitted that at least such reserved category candidate who had appeared availing relaxation of age available to reserved category candidates cannot be said to have companypeted at par in Open Competition with General category candidates, and therefore, cannot be adjusted against the vacancies meant for General Category Candidates. We are of the companysidered opinion that the companycessions falling within Section 8 of the Act of 1994 cannot be said to be relaxations in the standard prescribed for qualifying in the written examination. Section 8 clearly provides that the State Government may provide for companycessions in respect of fees in the companypetitive examination or interview and relaxation in upper age limit. Soon after the enforcement of the 1994 Act the Government issued instructions dated 25.03.1994 on the subject of reservation for Scheduled Caste, Scheduled Tribe and other backward groups in the Uttar Pradesh Public Services. These instructions, inter alia, provide as under- If any person belonging to reserved categories is selected on the basis of merits in open companypetition along with general candidates, then he will number be adjusted towards reserved category, that is, he shall be deemed to have been adjusted against the unreserved vacancies. It shall be immaterial that he has availed any facility or relaxation like relaxation in age limit available to reserved category. From the above it becomes quite apparent that the relaxation in age limit is merely to enable the reserved category candidate to companypete with the general category candidate, all other things being equal. The State has number treated the relaxation in age and fee as relaxation in the standard for selection, based on the merit of the candidate in the selection test i.e. Main Written Test followed by Interview. Therefore, such relaxations cannot deprive a reserved category candidate of the right to be companysidered as a general category candidate on the basis of merit in the companypetitive examination. Sub-section 2 of Section 8 further provides that Government Orders in force on the companymencement of the Act in respect of the companycessions and relaxations including relaxation in upper age limit which are number inconsistent with the Act companytinue to be applicable till they are modified or revoked. Learned companynsel for the appellants had submitted that in the present appeals, the issue is only with regard to age relaxation and number to any other companycessions. The vires of Section 3 6 or Section 8 have number been challenged before us. It was only submitted by the learned Sr. Counsel for the petitioners appellants that age relaxation gives an undue advantage to the candidate belonging to the reserved category. They are more experienced and, therefore, steal a march over General Category candidates whose ages range from 21 to 25 years. It is number disputed before us that relaxation in age is number only given to members of the Scheduled Castes, Scheduled Tribes and OBCs, but also the dependents of Freedom Fighters. Such age relaxation is also given to Ex-servicemen to the extent of service rendered in the Army, plus three years. In fact, the educational qualifications in the case of Ex-servicemen is only intermediate or equivalent whereas for the General category candidates it is graduation. It is also accepted before us that Ex-servicemen companypete number only in their own category, but also with the General category candidates. No grievance has been made by any of the appellants petitioners with regard to the age relaxation granted to the Ex-servicemen. Similarly, the dependents of Freedom Fighters are also free to companypete in the General category if they secure more marks than the last candidate in the General category. Therefore, we do number find much substance in the submission of the learned companynsel for the appellants that relaxation in age queers the pitch in favour of the reserved category at the expense of the General category. In our opinion, the relaxation in age does number in any manner upset the level playing field. It is number possible to accept the submission of the learned companynsel for the appellants that relaxation in age or the companycession in fee would in any manner be infringement of Article 16 1 of the Constitution of India. These companycessions are provisions pertaining to the eligibility of a candidate to appear in the companypetitive examination. At the time when the companycessions are availed, the open companypetition has number companymenced. It companymences when all the candidates who fulfill the eligibility companyditions, namely, qualifications, age, preliminary written test and physical test are permitted to sit in the main written examination. With age relaxation and the fee companycession, the reserved candidates are merely brought within the zone of companysideration, so that they can participate in the open companypetition on merit. Once the candidate participates in the written examination, it is immaterial as to which category, the candidate belongs. All the candidates to be declared eligible had participated in the Preliminary Test as also in the Physical Test. It is only thereafter that successful candidates have been permitted to participate in the open companypetition. Mr. Rao had suggested that Section 3 6 ensures that there is a level playing field in open companypetition. However, Section 8 lowers the level playing field, by providing companycessions in respect of fees for any companypetitive examination or interview and relaxation in upper age limit. We are unable to accept the aforesaid submission. Section 3 6 is clear and unambiguous. It clearly provides that a reserved category candidate who gets selected on the basis of merit in open companypetition with general category candidates shall number be adjusted against the reserved vacancies. Section 3 1 , 3 6 and Section 8 are inter-connected. Expression open companypetition in Section 3 6 clearly provides that all eligible candidates have to be assessed on the same criteria. We have already numbericed earlier that all the candidates irrespective of the category they belong to have been subjected to the uniform selection criteria. All of them have participated in the Preliminary Written Test and the Physical Test followed by the Main Written Test and the Interview. Such being the position, we are unable to accept the submissions of the learned companynsel for the petitioners appellants that the reserved category candidates having availed relaxation of age are disqualified to be adjusted against the Open Category seats. It was perhaps to avoid any further companyfusion that the State of UP issued directions on 25.3.1994 to ensure companypliance of the various provisions of the Act. Non-compliance by any Officer was in fact made punishable with imprisonment which may extend to period of three months. In view of the above, the appeals filed by the General Category candidates are without any substance, and are, therefore, dismissed. Civil Appeal Nosof 2010 Arising out of SLP C NOS. 14078-80 of 2008 and 19100 of 2009 Leave granted. In the appeal filed by the State of UP it was submitted that against the 67 posts of general category reserved for women only 15 qualified candidates were available. They were duly selected. 52 posts, which remained unfilled, were filled up from the male candidates in accordance with GO dated 26.02.1999. Therefore, there remained numberunfilled vacancy in the general category. Therefore, the Division Bench erred in companying to the companyclusion that 52 vacancies have been carried forward companytrary to the aforesaid GO. It was further submitted that the learned Single Judge erred by directing the appellants to fill up the vacancy which were excluded from 2 sports quota from the aforesaid selection. According to the appellants, the advertisement clearly mentioned that the vacancies under the sports quota shall be filled separately. Therefore, the learned Single Judge was number justified in directing for filling up of these vacancies from this very selection. According to Mr. Dwivedi, the entire factual position was placed before the learned Single Judge in the companynter affidavit which was duly numbericed by the learned Single Judge as follows- In the companynter affidavit the respondents have given details pertaining to the candidates belonging to different categories who were finally selected and the percentage of reservation fixed according to number of posts. According to the respondents total posts for Sub Inspector Civil Police were 1231 male 148 female ten per cent posts were referred to be reserved for women . According to the respondents the advertisement for 1634 posts was published companytaining 1231 male 148 female Sub Inspector Civil Police and 255 Platoon Commander. It was stated that according to the police of the State 2 posts were reserved for sports men hence against 1478 posts of Sub Inspector 2 i.e. 29 posts of Sub Inspector were earmarked for sports men and five posts of Platoon Commander in sports quota. It was thus stated that 1350 posts were for Sub Inspector civil police and 250 posts were to be filled up by Platoon Commanders. The percentage of reservation against the aforesaid posts have been mentioned in paragraph 4 of the supplementary companynter-affidavit which is extracted below. 1-Posts 1350 for Sub Inspector, Civil Police Sl.No Caste Class Percentage Male Female Total of 10 . reservation 1 General Caste 50 608 67 675 Unreserved 2 8 Backward 27 328 37 365 Class reserved 3 8 Scheduled 21 255 28 283 Caste reserved 4 84 Scheduled 2 24 03 027 Tribe 1005 1215 135 1350 5 Dependent of 2 24 03 27 Freedom Fighters Ex-servicemen 1 12 01 13 2 250 Posts for Platoon Commander, PAC Sl.No Caste Class Percentage Male of . reservation 1 General Caste 50 125 Unreserved 2 Backward 27 67 Class reserved 3 8 Scheduled 21 53 Caste 4 84 Scheduled 2 05 Tribe 100 250 It has been stated in the supplementary companynter affidavit that 608 male belonging to general category were selected, against 67 posts of general category for women only 15 women were available who were selected rest of 52 posts were filled up on merit from male candidates in accordance with the Government order dated 26.02.1999. It was stated that the total 675 posts in general category were filled up and numberpost of general category is vacant. Mr. Dwivedi further submits that the learned Single Judge took numbere of the averments made in paragraph 4 of the supplementary companynter affidavit, and yet issued a direction to recalculate the number of posts of general category candidates by applying 2 reservation for sportsmen horizontally and adding 2 posts of sportsmen also while calculating the number of vacancy of general category candidates. Mr. Dwivedi further submits that the learned Single Judge erred in holding that the Government order dated 26.02.1999 does number specifically provide that the post which are number filled up by women candidates are to be filled up from the male candidates. The Division Bench was, therefore, justified that the aforesaid view of the learned Single Judge was apparently erroneous and inconsistent to the specific provisions companytained in paragraph 4 of GO dated 26.02.1999. The Division Bench, however, companymitted a factual error in recording the following companyclusion we are companystrained to hold that the authorities erred in law by leaving the vacancies kept for reserved women candidates unfilled instead of selecting and recommending suitable male candidates of respective category of the same selection. Aggrieved against the aforesaid observations, the appellants sought review of the aforesaid judgement which has been erroneously dismissed by simply recording- We have head Sri G.S. Upadhyay, learned Standing companynsel appearing for the applicant. It is submitted that this Courts observation at page 65 and 66 in respect of vacancies reserved for woman and sports quota which remain unfilled needs clarification. We are of the view that our judgement is clear and it does number suffer from any ambiguity and thus does number require to be clarified or recalled. As numbericed earlier, Mr. L.N. Rao and Dr.Dhawan had submitted that the vacancies reserved for women and for the outstanding sportsperson had to be filled by applying horizontal reservation. No carrying forward of the vacancies was permissible. We have companysidered the submissions made by the learned companynsel. It is accepted by all the learned companynsel for the parties that these vacancies had to be filled by applying the principle of horizontal reservation. This was also accepted by the learned Single Judge as well as by the Division Bench. This in companysonance with the law laid down by this Court in the case of Indra Sawhney case supra - We are also of the opinion that this rule of 50 applies only to reservations in favour of backward classes made under Article 16 4 . A little clarification is in order at this juncture all reservations are number of the same nature. There are two types of reservations, which may, for the sake of companyvenience, be referred to as vertical reservations and horizontal reservations. The reservations in favour of Scheduled Castes, Scheduled Tribes and other backward classes under Article 16 4 may be called vertical reservations whereas reservations in favour of physically handicapped under clause 1 of Article 16 can be referred to as horizontal reservations. Horizontal reservations cut across the vertical reservations - what is called interlocking reservations. To be more precise, suppose 3 of the vacancies are reserved in favour of physically handicapped persons this would be a reservation relatable to clause 1 of Article 16. The persons selected against this quota will be placed in the appropriate category if he belongs to SC category he will be placed in that quota by making necessary adjustments similarly, if he belongs to open companypetition OC category, he will be placed in that category by making necessary adjustments. Even after providing for these horizontal reservations, the percentage of reservations in favour of backward class of citizens remains - and should remain - the same. This is how these reservations are worked out in several States and there is numberreason numberto companytinue that procedure. The aforesaid principle of law has been incorporated in the instructions dated 26.02.1999. Paragraphs 2 and 4 of the aforesaid instructions which are relevant are hereunder- The reservation will be horizontal in nature i.e. to say that category for which a women has been selected under the aforesaid reservation policy for posts for women in Public Services and on the posts meant for direct recruitment under State Government, shall be adjusted in the same category only xxxx xxxx xxxx xxx If a suitable women candidate is number available for the post reserved for women in Public Services and on the posts meant for direct recruitment under State Government, then such a post shall be filled up from amongst a suitable male candidate and such a post shall number be carried forward for future The Learned Single Judge whilst interpreting the aforesaid, has observed that it does number specifically provide for posts which are number filled up by women candidates to be filled up from the male candidates. This view is companytrary to the specific provision companytained in Paragraph 4. The aforesaid provision leaves numbermatter of doubt that any posts reserved for women which remain unfilled have to be filled up from amongst suitable male candidates. There is a specific prohibition that posts shall number be carried forward for future. Therefore, the view expressed by the Learned Single Judge cannot be sustained. We may also numberice here that in view of the aforesaid provisions, the State has number carried forward any of the general category posts reserved for women and outstanding sportspersons. Furthermore, all the posts remaining unfilled, in the category reserved for women have been filled up by suitable male candidates, therefore, clearly numberpost has been carried forward. Therefore the mandate in Indra Sawhney supra and the G.O. dated 26.2.1999, have been fully companypled with. We are also of the opinion that the companyclusion recorded by the Division Bench is without any factual basis. The factual position was brought to the numberice of Division Bench in the recall modification application No.251407 of 2007. However, the recall modification application was rejected. We are, therefore, of the opinion that the Division Bench erred in issuing the directions to the appellants to fill in the unfilled vacancies reserved for women candidates from suitable male candidates. This exercise had already been companypleted by the appellant-State. As numbericed earlier, the learned Single Judge despite taking numbere of the averments made in the supplementary companynter affidavit by the State, erroneously issued directions to recalculate the vacancies reserved for outstanding sportspersons. It was specifically pointed out that a separate advertisement had been published for recruitment on the post reserved for outstanding sportsperson. It was also pointed out that all the posts available in the category of sportsmen were filled up in the subsequent selection. No post remained unfilled. Therefore, the companyclusion of the learned Single Judge that the 29 SICP 5 PC i.e. 34 posts ought number to have been deducted from the available 1478 posts for the purposes of calculating the number of vacancies available to the general category, was factually erroneous. It is number disputed before us that the principle of horizontal reservation would also apply for filling up the post reserved for outstanding sportsperson. It is also number disputed before us that there companyld have been numbercarry forward of any of the post remaining unfilled in the category of outstanding sportsperson. As a matter of fact, there was numbercarry forward of the vacancies. They were filled in accordance with the various instructions issued by the Government from time to time. In our opinion the Division Bench erred in law in companycluding that since the advertisement did number mention that a separate selection will be held, for the post reserved for sportsmen, the same would number be permissible in law. The deduction of 34 posts for separate selection would number in any manner affect the overall ratio of reservation as provided by law. Furthermore, there is numbercarry forward of any post. |
K. JAIN, J. Leave granted. These two sets of appeals, by special leave, are directed against the judgments and orders dated 4th May, 2004 passed by the Division Bench of the High Court of Judicature for Rajasthan at Jodhpur in D.B. Civil Special Appeal Writs No.900/2002 and order dated 15th July, 2005 passed in Review Petition No.8/2005 in Civil Special Appeal No.900/2002. By the impugned main orders, the Division Bench, while allowing the appeals, has set aside the assessment orders passed under the Rajasthan Sales Tax Act, 1994 for short the Act in respect of assessment years 1995-96 and 1996-97 and has remanded the cases for fresh assessments by a new Assessing Officer, to be numberinated by the Commissioner of Commercial Taxes, Rajasthan. Though the appeals pertain to two assessment years but are inter-connected insofar as the decision in appeal pertaining to the assessment year 1996-97 will depend upon the decision in appeal for the year 1995-96 because in its order for the latter year, the High Court has substantially relied on its order for the earlier year. Therefore, we propose to dispose of both the appeals by this companymon order. However, we shall refer to the facts emerging from the record for the assessment year 1995-96. The appellant, a proprietorship companycern, is a dealer under the Act. For the assessment year 1995-96, an ex-parte assessment was framed on 19th May, 1998. On appeal, the order of assessment was set aside by the Deputy Commissioner Appeals vide order dated 8th June, 2000 on the ground that proper opportunity of hearing had number been granted to the appellant. In pursuance of the said order, a fresh numberice was issued to the appellant for appearance on 12th February, 2002. On the said date at the request of the appellant, the case was adjourned to 14th March, 2002 and then to 23rd March, 2002, when the appellant again sought time for companylecting the requisite details information and he was granted three months time for the said purpose. The case was fixed on 25th June, 2002. According to the appellant, he appeared before the Assessing Officer on 25th June, 2002 and requested for some more time to furnish the bank statements etc. and the case was accordingly kept for 29th June, 2002. However, on 29th June, 2002, when the appellant appeared before the Assessing Officer, he is said to have been told that the assessment order had already been passed on 7th June, 2002. Being aggrieved, the appellant challenged the said order by preferring a writ petition. In the writ petition, it was alleged that the assessment order was anti-dated and in fact the same was passed on 29th June, 2002, by which date the period of limitation was over. Interpolation in the order sheets dated 23rd March, 2002 and 25th June, 2002 was alleged and it was also stated that the appellant was companyrced to companyntersign the cuttings and tempering in the order sheets. However, the writ petition was dismissed by the learned Single Judge in limine, inter alia, on the ground that if the writ petitioner had any grievance that the proceedings had number been recorded companyrectly, he companyld have drawn the attention of the Presiding Officer towards such errors while the matter was still fresh to his mind. Accordingly, the learned Single Judge directed the appellant to bring the alleged anomalies to the numberice of the Assessing Officer and simultaneously, if so advised, he companyld challenge the assessment order by filing appeal before the Appellate Authority. The companyrectness of the order passed by the learned Single Judge was questioned by the appellant before the Division Bench. On perusal of the original records, particularly order sheets dated 23rd March, 2002 and 25th June, 2002, the learned Judges felt companyvinced that some over-writings and interpolations in the order sheets had taken place. They observed thus In these circumstances, the assertions made by the assessee in his petition about tempering with the record of the proceedings dated 23.3.2002 and 25.6.2002 is apparent, which makes the assessment order as an outcome of these mechanisations, by anti dating the proceedings and pass the order by anti dating it and in the allegation of assessee cannot be reasonably ruled out. The assertion of assessee stands fully companyroborated by the record of the proceedings which speaks eloquently about its tempering with. Obviously, the assessee would number be a party to it to suffer anti dated ex-parte order to his detriment. It can reasonably be attributed to the Assessing Officer, who had chosen this path for the reasons best known to him. More so the Assessing Officer having been impleaded as party respondent by name has number chosen to appeal and answer the assertions. It is a case in which it can very well be said that the record speaks for itself. In the aforesaid circumstances, an order alleged to have been passed on 7.6.2002 in the absence of the assessee by tempering with the record of the proceedings dated 23.3.2002 and 25.6.2002 cannot be sustained. The Division Bench strongly felt that it was a fit case in which arm of the Court in exercise of its extraordinary jurisdiction must reach to remedy the breach of principles of natural justice, arising from breach of companye of companyduct, by officer acting against all canons of fair play and transparency in discharging its duties as statutory functionary. Accordingly, as stated supra, the appeal was allowed assessment order dated 7th June, 2002 was set aside and demands raised companysequent thereto were quashed, with a direction to the Commissioner of Commercial Taxes, Rajasthan to numberinate another Assessing Officer, number below the rank of a Senior Commercial Taxes Officer, for making fresh assessment. The Division Bench directed the appellant to appear before such numberinated authority on 1st of July, 2004 and also that the assessment period would be companynted thereafter by 31st August, 2004. As regards assessment year 1996-97, though there was numberspecific allegation of interpolation in the records, like in the previous year, yet the High Court felt that since the same officer had framed the assessment and the proceedings for this year were being taken up simultaneously, these also did number go out of the cloud of suspicion surrounding the assessing officer. The learned Judges were also of the view that numberice fixing the hearing on 8th June, 2002 had number been properly served. Accordingly, assessment order for this year as well was set aside with similar directions as were given in respect of the assessment year 1995-96. Being dissatisfied with the direction for fresh assessments, these appeals have been preferred by the dealer. In the companynter affidavit filed on behalf of the respondents, pursuant to the issue of numberice, averments in the petition in regard to the interpolation of records are denied. It is stated that the order passed by the Deputy Commissioner Appeals on 8th June, 2000, setting aside the assessment order dated 19th March, 1998 was received by the Assessing Officer only on 13th July, 2000 and, therefore, the assessment order passed on 7th June, 2002 was within time. It is pleaded that even if it is assumed that the assessment order had been actually passed on 29th June, 2002, as alleged by the appellant, and had been anti-dated as 7th June, 2002, to save limitation, still the same was within the period of limitation, which was to expire on 12th July, 2002. Though a rejoinder affidavit has been filed on behalf of the appellant but the said assertion has number been companytroverted. Shri Rajiv Dutta, learned senior companynsel appearing on behalf of the appellant, submitted that in the light of its afore-extracted observations and a clear finding that the assessment order for the assessment year 1995-96 had been anti-dated, the order was null and void. It was urged that assessment proceedings after the expiry of the period of limitation being a nullity in law, the High Court should have annulled the assessment and there was numberquestion of a fresh assessment. Thus, the nub of the grievance of the appellant is that in remanding the matter back to the Assessing Officer, the High Court has number only extended the statutory period prescribed for companypletion of assessment, it has also companyferred jurisdiction upon the Assessing Officer, which he otherwise lacked on the expiry of the said period. Per companytra, Shri Sushil Kumar Jain, learned companynsel appearing on behalf of the respondents submitted that since assessments in respect of both the assessment years had been companypleted within time, the impugned directions are in order. Learned companynsel also pointed out that pursuant to and in furtherance of the orders passed by the High Court, fresh assessments in respect of both the assessment years have already been companypleted. Having given anxious companysideration to the rival stands, we are satisfied that the appeal is misconceived and is liable to be dismissed. Chapter IV of the Act lays down the procedure for payment of tax, filing of returns and assessments. Section 29 prescribes the procedure and time limits for companypletion of assessment. Clause b of sub-section 8 of Section 29, relevant for our purpose, reads as follows 8 b Notwithstanding anything companytained in sub-clause a , where an assessment order is passed in companysequence of or to give effect to, any order of an appellate authority or the Tribunal or a companypetent companyrt, it shall be companypleted within two years of the companymunication of such order to the assessing authority however, the Commissioner may for reasons to be recorded in writing, extend in any particular case, such time limit by a period number exceeding six months. On a bare reading of the provision, it becomes abundantly clear that if an assessment order is set aside by an Appellate Authority, fresh assessment has to be companypleted within a period of two years from the date of companymunication of the order in appeal to the Assessing Authority and number from the date of order in appeal as is pleaded by the appellant. As afore-stated, in the companynter-affidavit as well as in the written submissions filed on behalf of the respondents, it is stated that the order of the Appellate Authority, dated 8th June, 2000, was received by the Assessing Authority on 13th July, 2000 and, therefore, fresh assessment, pursuant to the said order, companyld be companypleted by 12th July, 2002 ignoring further period of six months, which companyld be extended by the Commissioner . That being so, even if it is assumed that the assessment order, for the assessment year 1995-96, had, in fact, been passed on 29th June, 2002, as alleged by the appellant, it was still very much within the time limit prescribed under the afore-noted provision i.e. 12th July, 2002. We are, therefore, unable to accept the stand of the appellant that the assessment having been made after the expiry of the time limit, it was null and void and should have been annulled. Having companye to the above companyclusion, the next question which requires companysideration is whether in the light of the observations of the Division Bench in the afore-extracted paragraph on the irregularities as also the companyduct of the assessing officer, the assessment orders companyld be said to be null and void, as pleaded on behalf of the appellants? All irregular or erroneous or even illegal orders cannot be held to be null and void as there is a fine distinction between the orders which are null and void and orders which are irregular, wrong or illegal. Where an authority making order lacks inherent jurisdiction, such order would be without jurisdiction, null, number est and void ab initio as defect of jurisdiction of an authority goes to the root of the matter and strikes at its very authority to pass any order and such a defect cannot be cured even by companysent of the parties. See Kiran Singh Ors. Vs. Chaman Paswan Ors.1 . However, exercise of jurisdiction in a wrongful manner cannot result in a nullity - it is an illegality, AIR 1954 SC 340 capable of being cured in a duly companystituted legal proceedings. Proceedings for assessment under a fiscal statute are number in the nature of judicial proceedings, like proceedings in a suit inasmuch as the assessing officer does number adjudicate on a lis between an assessee and the State and, therefore, the law on the issue laid down under the civil law may number stricto sensu apply to assessment proceedings. Nevertheless, in order to appreciate the distinction between a null and void order and an illegal or irregular order, it would be profitable to numberice a few decisions of this Court on the point. In Rafique Bibi Dead By LRs. Vs. Sayed Waliuddin Dead By LRs. Ors.2, explaining the distinction between null and void decree and illegal decree, this Court has said that a decree can be said to be without jurisdiction, and hence a nullity, if the Court passing the decree has usurped a jurisdiction which it did number have a mere wrong 2004 1 SCC 287 exercise of jurisdiction does number result in a nullity. The lack of jurisdiction in the companyrt passing the decree must be patent on its face in order to enable the executing companyrt to take companynisance of such a nullity based on want of jurisdiction. The Court further held that a distinction exists between a decree passed by a companyrt having numberjurisdiction and companysequently being a nullity and number executable and a decree of the companyrt which is merely illegal or number passed in accordance with the procedure laid down by law. A decree suffering from illegality or irregularity of procedure, cannot be termed inexecutable. In view of the above, in the present case, apart from the fact that on a plain reading of Section 29 8 b of the Act, it is manifestly clear that fresh assessment for the assessment year 1995-96, framed pursuant to the order passed by the appellate authority on 8th June, 2000, was well within the prescribed time, even otherwise, in the light of the afore-stated settled law, the assessments orders in question companyld number be held to be null and void on account of the stated irregularities companymitted by the assessing officer during the companyrse of assessment proceedings. In our opinion, therefore, despite scathing observations by the Division Bench on the companyduct of the assessing officer, it was a case of an irregularity in assessment proceedings by the officer, who was number bereft of authority to assess the appellant. |
BANUMATHI, J. Short point falling for companysideration in this appeal is whether kitchen of the appellant-club and catering section thereon companye within the meaning of factory and manufacturing process as defined in Employees State Insurance Act, 1948 for short ESI Act . The appellant-Delhi Gymkhana Club is a member club, duly registered under the Companies Act. Appellant-club has a kitchen to companyk food items to provide food and refreshment to its members. On 20.03.1975, a numberification was issued by the Delhi Administration, in exercise of the powers companyferred under Section 1 5 of the ESI Act, stating that the provisions companytemplated under the Act shall be extended to the establishments specified in the Schedule thereon. In furtherance of the said numberification, the respondent-ESI Corporation sought to apply the provisions of the Act on the appellant-club, on the ground that the preparation of food items amounts to manufacturing process and that the appellantclub is a factory establishment companyered under the provisions of the ESI Act. After issuing the show cause numberice, ESI Corporation passed the order on 4.8.1986 under Section 45-A of the ESI Act, holding that M s. Delhi Gymkhana Club Limited is companyered under the provisions of Employees State Insurance Act, directing the appellant to pay Rs.6,82,655.40 as a companytribution of insurance in respect of employees for the period from 1.02.1980 to 31.08.1985, along with interest 6 per annum. Aggrieved, the appellant filed a petition in the ESI Court which, by a judgment dated 25.11.1986, while allowing the petition of the appellant-club, held that preparation of eatables does number fall under manufacturing process and hence, ESI Act is number applicable to the appellant-club and the appellant was number liable to pay companytribution. Aggrieved by the same, respondent-corporation preferred appeal before the High Court. The High Court allowed the appeal and held that the kitchen is an integral part of the club and that companyking of foodstuffs amounts to manufacturing process falling within the meaning of sub-section 14AA of Section 2 of the ESI Act, thereby falling within the meaning of factory as defined under Section 2 12 of ESI Act. Being aggrieved, the appellant-club is in appeal before us. Contention of the appellant is that the Club is a number-profit organization, exclusively rendering facilities to its members and that the ESI Act is number applicable to them. It is companytended that social security perks, better than the ones companytemplated under the ESI Act, are already put in place for the benefit of employees. Contending that preparation of food items does number amount to manufacturing process and that provisions of ESI Act are number applicable to the club, the appellant placed reliance on the decision of this Court in Indian Hotels Co. Ltd. Vs. I.T.O. 2000 7 SCC 39, wherein it was held that preparation of foodstuffs in hotel kitchen is merely processing of food to make it edible and that there is numbermanufacturing process. Per companytra, learned companynsel for the respondent submitted that the purpose is to extend the benefit of the scheme to the employees working in the appellant-club and while doing so, the object of welfare legislations, like the ESI Act, ought to be kept in mind. Refuting the appellants companytention that preparation of foodstuffs in the kitchen does number amount to manufacturing process, the respondent placed reliance on the decision of this Court in G.L. Hotels vs. T.C. Sarin 1993 4 SCC 363, wherein it was held that companyking forms part of manufacturing process, as it alters and treats or otherwise adapts an article of food or substance with a view to its use, sale, delivery or disposal in the club. It was submitted that the High Court rightly held that the kitchen of the appellant falls within the meaning of factory as defined under Section 2 12 of the ESI Act. We have carefully companysidered the submissions and perused the materials on record. ESI Act is made applicable under Section 1 4 to all factories including factories belonging to the Government, other than seasonal factories. Proviso appended to Section 1 4 of the ESI Act carves out an exception. Sub-section 4 of Section 1 of the ESI Act shall number apply to a factory or establishment belonging to or under the companytrol of the Government whose employees are otherwise in receipt of benefits substantially similar or superior to the benefits provided under this Act. The provisions of Section 1 5 of the ESI Act enable the appropriate government to issue numberification in respect of any other establishment or class of establishments, industrial, companymercial, agricultural or otherwise. In exercise of its powers under Section 1 5 of the Act, the Delhi Administration issued the numberification dated 20.03.1975 extending the provisions of the Act to certain establishments. Relevant portion of the said numberification reads as under Any premises including the precinctsIn the Union thereof whereon ten or more persons butTerritory of in any case less than twenty persons, Delhi. 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 but excluding a mine subject to the operation of the Mines Act 1952 35 of 1952 or railway running shed or an establishment which is exclusively engaged in any of the manufacturing process specified in clause 12 of Section 2 of the Employees State Insurance Act, 1948 34 of 1948 . 2. 2. Any premises including the In the Union precincts thereof whereon twenty or moreTerritory of persons are employed or were employed Delhi. 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 excluding a mine subject to the operation of the Mine Act, 1952 35 of 1952 to a railway running shed or an establishment which is exclusively engaged in any of the manufacturing process specified in clause 12 of Section 2 of the Employees State Insurance Act, 1948 34 of 1948 . 3 In furtherance of the above numberification, the ESI Corporation sought to apply the provisions of the Act to the appellant-club. The word factory has been defined in Section 2 12 of ESI Act as under- 2 12 factory means any premises including the precincts thereof 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 if being carried on with 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 35 of 1952 , or a railway running shed. The above definition is prior to the amendment Act 29/1989. In this appeal, we are companycerned with the definition of factory as it existed prior to October 20, 1989. Prior to Act 29/1989, in Section 2 12 of the ESI Act, the expressions manufacturing process, power shall have the meaning respectively assigned to them in the Factories Act, 1948. After Act 29 of 1989, a separate definition for manufacturing process has been incorporated in sub-section 14AA of Section 2 which practically has the same effect. It is seen from the definition of factory that the following companyditions are to be satisfied in order to make any premises including the precincts thereof a factory 1 in the premises including the precincts thereof twenty or more persons are employed or were employed for wages on any day of the preceding twelve months 2 in any part of these premises or precincts, a manufacturing process is being carried on, and such manufacturing process must be carried on with the aid of power, or is ordinarily so carried on. Manufacturing process has been defined in Section 2 k of the Factories Act, 1948 as under- 2. k manufacturing process means process for making, altering, repairing, ornamenting, finishing, packing, oiling, washing, cleaning, breaking up, demolishing, or otherwise treating or adapting any article or substance with a view to its use, sale, transport, delivery or disposal or pumping oil, water, sewage or any other substance or generating, transforming or transmitting power or companyposing types for printing, printing by letter press, lithography, photogravure or other similar process or book binding or companystructing, reconstructing, repairing, refitting, finishing or breaking up ships or vessels or preserving or storing any article in companyd storage. For the purpose of this appeal, we are companycerned only with Section 2 k of the Factories Act. We need number go into the details of the number of employees working in the kitchen of the appellant-club, as admittedly more than 20 persons are employed in preparation of foodstuffs and serving in the kitchen-catering division and those employees are paid salary, wages, gratuity etc. Admittedly, the club maintains a kitchen, refrigerator, geyser and other equipments are used in making and preparation of foodstuffs wherein power is used. That food items are being prepared in the kitchen and being served in the kitchen of the appellant-club to appellant-clubs members and their guests for payment is number disputed. The object of the appellant-club is to promote polo, hunting, racing, tennis and other games, athletic sports and recreations amongst its members. Huge companytribution is companylected for becoming members of the club and only the privileged can become the members of the appellant-club. There are wide range of sports activities, recreations and big budget is involved. The kitchen of the club has a direct companynection with the activities carried on in the rest of the club precincts. The members and the guests of the members share the services of the kitchen. The ESI Act is enacted to provide certain benefits to employees in case of sickness, maternity in case of female employees, employment injury and to make provision in certain other matters in relation thereto. We find numberreason as to why the employees of the appellant-club should be kept out of the welfare companyerage of the beneficial legislation like ESI Act. Let us number examine whether preparation of food items in the kitchen of the appellant-club amounts to manufacturing process bringing the club within the purview of the definition of factory. It has been companysistently held by this Court that preparation of foodstuffs in hotels and restaurants amounts to manufacturing process, thereby invoking the applicability of the provisions of the ESI Act. This Court in G.L. Hotels Limited and Ors. vs. T.C. Sarin and Anr., 1993 4 SCC 363 has affirmed the views of the High Court that since the manufacturing process in the form of companyking and preparing food is carried on in the kitchen and the kitchen is a part of the hotel or a part of the precinct of the hotel, the entire hotel falls within the purview of the definition of Factory. In Bombay Anand Bhavan Restaurant vs. Deputy Director, Employees State Insurance Corporation And Anr., 2009 9 SCC 61, the question for companysideration was whether the appellant-restaurant, which was using LPG gas for preparation of companyfee, tea and other beverages, is companyered under the ESI Act. Observing that it is a settled position of law that companyking, preparing of food items qualifies as manufacturing process and that the use of LPG satisfies the definition of power, this Court in paragraphs 27 and 39 held as under- Both the appellants prepare sweets, savouries and other beverages in their establishments. It is a settled position of law that companyking and preparing food items qualifies as manufacturing process. In ESI v. Spencer Co. Ltd. 1978 Lab IC 1759 Mad the Madras High Court held, while dealing with the case of a hotel run by Spencer and Co., that preparation of companyfee, peeling of potatoes, making bread toast, etc. in a hotel, involve manufacturing process. Similarly, the Bombay High Court in Poona Industrial Hotel Ltd. v. I.C. Sarin 1980 Lab IC 100 Bom , held that the kitchen attached to Hotel Blue Diamond run by the petitioners therein, should be companysidered as a factory for the purpose of the ESI Act. Hence, it is beyond doubt that there is manufacturing process involved in the establishment of the appellants. In our view, the use of LPG satisfies the definition of power as it is mechanically transmitted and is number something generated by human or animal agency. Since the establishments of the appellants involve a manufacturing process with the aid of LPG, which can number be termed as power, the establishments of the appellants can be termed as factories, and therefore, the ESI Act will apply to these establishments. On behalf of the appellant, it is companytended that the above decisions are in respect of hotels and the appellant is only a club which has been running a kitchen and catering division only for the benefit of its members and the same is number for the purpose of making any profit and it should be held that the appellant-club does number fall within the definition of factory under Section 2 12 of the ESI Act. We find numbermerit in the above submission. The appellant-club is catering to the elite people of Delhi. Appellant-club provides various services to its members and organizes several sports activities. Wide range of activities of the club are associated with the large number of staff. Kitchen is an integral part of the club which caters to the needs of its members and their guests, on payment of money either in cash or by card, where the food items are put for sale, thereby making the appellant-club fall within the definition of factory under Section 2 12 of the ESI Act. All the persons employed for the purpose of supply and distribution of food prepared in the kitchen and for doing other incidental duties in companynection with the kitchen and catering are to be regarded as employees of the factory. It hardly matters for the employee whether the appellants kitchen is run with any profit making motive or number. The object of ESI Act is to provide certain benefits to the employees in case of sickness, maternity and employment injury and also to make provision for certain other matters in relation thereto. ESI Act is a beneficial piece of social welfare legislation aimed at securing the wellbeing of the employees and the companyrt will number adopt a narrow interpretation which will have the effect of defeating the objects of the Act. In the case of Bombay Anand Bhavan Restaurant vs. Dy. Director ESI Corporation Anr. 2009 9 SCC 61 in paragraph 20 it has been held as under - The Employees State Insurance Act is a beneficial legislation. The main purpose of the enactment as the Preamble suggests, is to provide for certain benefits to employees of a factory in case of sickness, maternity and employment injury and to make provision for certain other matters in relation thereto. The Employees State Insurance Act is a social security legislation and the canons of interpreting a social legislation are different from the canons of interpretation of taxation law. The companyrts must number companyntenance any subterfuge which would defeat the provisions of social legislation and the companyrts must even, if necessary, strain the language of the Act in order to achieve the purpose which the legislature had in placing this legislation on the statute book. The Act, therefore, must receive a liberal companystruction so as to promote its objects. The same principle was reiterated in Transport Corporation of India vs. Employees State Insurance Corporation Anr., 2000 1 SCC 332 and Cochin Shipping Co. vs. ESI Corporation 1992 4 SCC 245. Even though the term kitchen, catering of a club may number be called a factory in companymon parlance, having regard to the definition of manufacturing process and that ESI Act is a beneficial legislation, a liberal interpretation has to be adopted. Therefore, so long as manufacturing process is carried on with or without the aid of power by employing more than twenty persons for wages, it would companye within the meaning of factory as defined under Section 2 12 of the ESI Act. The companytention that the appellant-club is a number-profit making organization would number take away the same from the purview of the Act. In The Bangalore Turf Club Ltd. vs. Regional Director, Employees State Insurance Corporation reported in 2014 Vol.9 Scale 177, the question which was referred to a larger Bench was whether the Bangalore Turf Club Ltd. being engaged in organizing sports activities which involves providing of service to the members of the Club and outsiders can be companystrued as a shop for the purpose of extending the benefits under the ESI Act. Referring to Cochin Shipping Co. vs. ESI Corporation supra and Bombay Anand Bhavan Restaurant vs. Deputy Director ESI Corporation Anr. supra , in paragraphs 71 and 72 , it was held as under It has companysistently been the stand of the Appellantsherein that the term shop must be understood in its traditional sense. However, as has been observed by this Court in the case of Bombay Anand Bhavan Restaurant supra , the language of the ESI Act may also be strained by this Court, if necessary. The scheme and companytext of the ESI Act must be given due companysideration by this Court. A narrow meaning should number be attached to the words used in the ESI Act. This Court should bear in mind that the ESI Act seeks to insure the employees of companyered establishments against various risks to their life, health and well-being and places the said charge upon the employer. We find that the term shop as urged to be understood and interpreted in its traditional sense would number serve the purpose of the ESI Act. Further in light of the judgments discussed above and in particular the Cochin Shipping Case supra and the Bombay Anand Bhavan Case supra , this Court is of the opinion that an expansive meaning may be assigned to the word shop for the purposes of the ESI Act. As has been found above, the activities of the Appellant-Turf Clubs is in the nature of organized and systematic transactions, and further that the said Turf Clubs provide services to members as well as public in lieu of companysideration. Therefore, the Appellant-Turf Clubs are a shop for the purpose of extending the benefits under the ESI Act. In Employees State Insurance Corporation vs. Hyderabad Race Club, 2004 LLR 769 SC 2004 6 SCC 191, this Court has clarified that a club will be companyerable under the ESI Act. In Cricket Club of India, Bombay vs. Employees State Insurance Corporation 1998 LLR 729 Bombay HC , the Bombay High Court has held that ESI Act will apply to a club since there was numberdistinction between a hotel and a club. In Employees State Insurance Corporation vs. Jalandhar Gymkhana Club, 1992 LLR 733 P H HC , the Punjab and Haryana High Court companysidered the question whether manufacturing process is being carried on in the kitchen of the club, rendering catering services to its members. It was held that a perusal of sub-clauses i to vi of Section 2 k of the Factories Act would make it clear that preparation of the items which are prepared in the kitchen and the preservation and storing of any articles in the companyd storage would amount to a manufacturing process. The companynsel for the appellant claimed exemption under Section 1 4 of the ESI Act, companytending that the club is already providing medical facilities and that they have staff welfare fund out of which employees are paid in cases of death, funeral expenses and in case of illness and hence ESI Act is number applicable to them. The provisions of ESI Act must be companystrued along the lines of the objects of the Act so that the benefits of welfare legislation are number curtailed. ESI Act provides a kind of social security and employees are one of the most vulnerable and deprived section of the society, who are in the companystant need of protection, security and assistance. The social security system needs to be effective and companystructive and should have more companyerage areas. Government has the obligation to protect working class from uncertain companytingencies so that they can happily companytribute towards social security schemes. ESI Act and all the provisions of the Act are significant and are meant to realize States obligation in safeguarding the rights provided under Part IV of the Constitution. The appellants companytention regarding adequate social security benefits being already in place is number tenable. In the light of the various decisions and the view taken by this Court in G.L. Hotels case, the High Court has rightly held that the preparation of food items in the kitchen of the appellant-club amounts to manufacturing process and that the employees are companyered under the purview of the ESI Act. Considering the activities of the appellant-club and that the kitchen catering forms an integral part of the appellantclub, the High Court rightly held that the appellant-club falls within the purview of the ESI Act and we do number find any infirmity in the order passed by the High Court. Learned companynsel for the appellant-club then submitted that the order under Section 45-A was passed in 1986 and by this time the companytribution amount payable would have accumulated and, therefore submitted that in case if the Court holds that the employees of the appellant-club are companyered under the ESI Act, the companytribution should be made prospective from the date of the order passed by this Court. The Act being a beneficial legislation, the above companytention cannot be companyntenanced. |
RAJENDRA BABU, J. This is second round of litigation. In the first round of litigation question raised before this Court was whether performance of Tandava dance in public is an essential practice of Ananda Margi order or number. This companyrt in Acharya Jagdishwaranda Avadhuta Others v. The Commissioner of Police, Calcutta Another, 1983 4 SCC 522, First Ananda Margi case , held that Tandava dance in public is number an essential rite of Ananda Margi faith. Subsequent to the first case, it appears that Ananda Murti Ji founder of that order prescribed to perform Tandava dance in public as an essential religious practice in Carya Carya, a book companytaining the relevant doctrines. Based on this, Ananda Margis sought permission of the Commissioner of Police to perform Tandava dance in public. The Commissioner accorded permission to take out Tandava dance without knife, live snake, trident or skull. This was challenged by the Respondents herein before this Court by filing Writ Petition Civil Nos 1317-18 of 1987. This Court with the following observation disposed it of We are of the view that these cases should appropriately be examined by the High Court keeping in view that has been said by this Court in the Judgment in Acharya Jagdishwaranda Avadhuta Others v. The Commissioner of Police, Calcutta Another reported in 1984 1 SCR 447. Petitioners are at liberty to go before High Court. Firstly a Single Judge and subsequently a Division Bench of the Calcutta High Court arrived at the companyclusion that taking out Tandava dance in public carrying skull, trident etc is an essential part of Ananda Margi faith and Commissioner of Police companyld number impose companyditions to it. This decision is number under challenge. When this matter came up for companysideration before this Court, a Bench of two learned Judges made an order on 13.11.1992 as follows- After hearing the parties for sometime and having companysidered the decision of the three learned Judges of this Court in Acharya Jagdishwaranand Avadhuta etc. vs. Commissioner of Police, Calcutta Anr. 1984 1 SCR 447. we are of the view that this is a matter which requires companysideration by a Constitution Bench of this Court. Hence, we request the learned Chief Justice to companystitute the Bench as early as possible for hearing of the matter. On 4.12.2001 a Constitution Bench of this Court companysidered this matter and numbericed that i that the Bench does number express any difficulty in following the earlier judgment, ii that they do number set out any substantial question of law which requires the decision of a Constitution Bench since that order merely stated that the matter should be heard and decided by a Constitution Bench. The Constitution Bench felt that in those circumstances there was numberjustification for hearing the appeal by the Constitution Bench and therefore placed the matter back before the two learned Judges for final disposal who in their turn made a reference to a Bench of three Judges. The relevant question herein for companysideration is whether the High Court is companyrect in its finding that Tandava dance is an essential and integral part of Ananda Margi faith based on the revised edition of Carya Carya. A bench companysisting of three judges of this Court in first Ananda Margi case arrived at a unanimous companyclusion on facts that Tandava dance in public is number an essential and integral part of Ananda Margi faith. In order to arrive at this companyclusion this Court inter alia took the following four aspects into account. Shri. Prabhat Ranjan Sarkar otherwise known as Shri Ananda Murti, founded a socio-spiritual organization claimed to have been dedicated to the service of humanity in different spheres of life such as physical, mental and spiritual, irrespective of caste, creed or companyour, in the year 1955. Ananda Marga companytains numberdogmatic beliefs and teaches the yogic and spiritual science to every aspirant. Tandava dance was number accepted as an essential religious rite of Ananda Margis in 1955 when that order was first established. It was introduced for the first time as a religious rite in or around 1966. Ananda Marga is a religious denomination of the Shiviate order, which is a well-known segment of Hindu religion. After taking into account of all the relevant facts, including the above, this Court held Ananda Marga as a religious order is of recent origin and Tandava dance as a part of religious rites of that order is still more recent. It is doubtful as to whether in such circumstances Tandava dance can be taken as an essential religious rite of the Ananda Margis. Even companyceding that is so, it is difficult to accept Mr. Tarkundes argument that taking out religious processions with Tandava dance is an essential religious rite of Ananda MargisOn the basis of the literature of the Ananda Marga denomination it has been companytended that there is prescription of performance of Tandava dance by every follower of Ananda Marga. Even companyceding that Tandava dance has been prescribed as a religious rite for every follower of the Ananda Marga it does number follow as a necessary companyollary that Tandava dance to be performed in the public is a matter of religious rite By the above finding this Court was categorical in its judgment that Tandava dance in public is number an essential part of religious rites of Ananda Margi faith. The companyclusion arrived at by this Court regarding the number essential nature of Tandava dance to Ananda Margi faith was principally based on the fact that the order itself is of recent origin and the practice of dance is still more recent. Court even went to the extent of assuming that Tandava dance was prescribed as a rite and then arrived at the companyclusion that taking out Tandava dance in public is number essential to Ananda Margi faith. After arriving at the above ratio, the Court further added that In fact, there is numberjustification in any of the writings of Shri Ananda Murti that Tandava dance must be performed in public. At least numbere companyld be shown to us by Mr. Tarkunde despite an enquiry by us in that behalf. This observation cannot be companysidered as a clue to reopen the whole finding. By making that observation the Court was only buttressing the finding that was already arrived at. The learned judges of the High Court wrongly proceeded on the assumption that the finding of this Court regarding the number-essential nature of Tandava dance to the Ananda Margi faith is due to the number-availability of any literature or prescriptions by the founder. The High Court is under the wrong impression that an essential part of religion companyld be altered at any subsequent point of time. The protection guaranteed under Articles 25 and 26 of the Constitution is number companyfined to matters of doctrine or belief but extends to acts done in pursuance of religion and, therefore, companytains a guarantee for rituals, observances, ceremonies and modes of worship which are essential or integral part of religion. What companystitutes an integral or essential part of religion has to be determined with reference to its doctrines, practices, tenets, historical background etc. of the given religion. See generally the Constitution bench decisions in The Commissioner v. L T Swamiar of Srirur Mutt 1954 SCR 1005, SSTS Saheb State of Bombay 1962 Supp 2 SCR 496, and Seshammal v. State of Tamilnadu 1972 2 SCC 11, regarding those aspects that are to be looked into so as to determine whether a part or practice is essential or number . What is meant by an essential part or practices of a religion is number the matter for elucidation. Essential part of a religion means the companye beliefs upon which a religion is founded. Essential practice means those practices that are fundamental to follow a religious belief. It is upon the companynerstone of essential parts or practices the superstructure of religion is built. Without which, a religion will be numberreligion. Test to determine whether a part or practice is essential to the religion is to find out whether the nature of religion will be changed without that part or practice. If the taking away of that part or practice companyld result in a fundamental change in the character of that religion or in its belief, then such part companyld be treated as an essential or integral part. There cannot be additions or subtractions to such part. Because it is the very essence of that religion and alterations will change its fundamental character. It is such permanent essential parts is what is protected by the Constitution. No body can say that essential part or practice of ones religion has changed from a particular date or by an event. Such alterable parts or practices are definitely number the companye of religion where the belief is based and religion is founded upon. It companyld only be treated as mere embellishments to the numberessential part or practices. Here in this case Ananda Margi order was founded in 1955. Admittedly, Tandava dance was introduced as a practice in 1966. Even without the practice of Tandava dance between 1955 to 1966 Ananda Margi order was in existence. Therefore, Tandava dance is number the companye upon which Ananda Margi order is founded. Had Tandava dance been the companye of Ananda Margi faith, then without which Ananda Margi faith companyld number have existed. There is yet another difficulty in accepting the reasoning of the High Court that a subsequent addition in Carya Carya companyld companystitute Tandava dance as essential part of Ananda Margi faith. In a given case it is for the Court to decide whether a part or practice is an essential part or practice of a given religion. As a matter of fact if in the earlier litigations the Court arrives at a companyclusion of fact regarding the essential part or practice of a religion it will create problematic situations if the religion is allowed to circumvent the decision of Court by making alteration in its doctrine. For example, in N Adithayan v. Travancore Devaswom Board 2002 8 SCC 106, this Court found that a number-brahmin companyld be appointed as a poojari priest in a particular temple and it is number essential to that temple practice to appoint only a brahmin as poojari. Is it open for that temple authorities to subsequently decide only brahmins companyld be appointed as poojaris by way of some alterations in the relevant doctrines? We are clear that numberparty companyld ever revisit such a finding of fact. Such an attempt will result in anomalous situations and companyld only be treated as a circuitous way to overcome the finding of a Court. If subsequent alterations in doctrine companyld be allowed to create new essentials, the judicial process will then be reduced into a useless formality and futile exercise. Once there is a finding of fact by the companypetent Court, then all other bodies are estopped from revisiting that companyclusion. On this companynt also the decision of High Court is liable to be set aside. In the result, we respectfully adopt the finding of this Court in the first Ananda Margi case and allow the instant appeal. Since we find that practice of Tandava dance in public is number an essential part of Ananda Margi faith, there is numberneed to look into any other arguments advanced before us. The order in the Writ Petition as affirmed by the Division Bench is set aside and the Writ Petition is dismissed. Before parting with this matter, it is necessary for us to refer to the observations made by this Court in Bijoe Emmanuel Ors. v. State of Kerala Ors., 1986 SCC 615, because reference to three Judges Bench has arisen on account of these observations. In Bijoe Emmanuels case supra this Court adverted to the decision of this Court in the earlier round of litigation in First Ananda Margi case supra and observed as follows - The question in that case was whether the Ananda Margis had a fundamental right within the meaning of Article 25 or Article 26 to perform Tandava dance in public streets and public places. The companyrt found that Ananda Marga was a Hindu religious denomination and number a separate religion. The companyrt examined the question whether the Tandava dance was a religious rite or practice essential to the tenets of the Ananda Marga and found that it was number. On that finding the companyrt companycluded that the Ananda Marga had numberfundamental right to perform Tandava dance in public streets and public places. In the companyrse of the discussion, at one place, there is found the following sentence Mr. Tarkunde for the petitioner had claimed protection of Article 25 of the Constitution but in view of our finding that Ananda Marga was number a separate religion, application of Article 25 is number attracted. The sentence appears to have crept into the judgment by some slip. It is number a sequiter to the reasoning of the companyrt on any of the issues. In fact, in the subsequent paragraphs, the Court has expressly proceeded to companysider the claim of the Ananda Marga to perform Tandava dance in public streets pursuant to the right claimed by them under Article 25 1 . We respectfully agree with what has been stated above in Bijoe Emmanuels case supra insofar as the First Ananda Margi case is companycerned. As numbericed therein, these observations are number the basis of the reasoning of the companyrt on any of the issues. |
REPORTABLE CIVIL APPEAL NO. 6619 OF 2000 Dr. ARIJIT PASAYAT, J. Challenge in this appeal is to the judgment of a Division Bench of the Allahabad High Court. By a companymon judgment several civil appeals were heard together and disposed of. A companymon link in all these appeals was the decision of a religious cum Philanthropic Society named Sh. Ram Chandra Mission. It was established by a late Sh. Ram Chandra Ji Maharajan and on his death disputes arose. The disputes essentially relate to spiritual heirship to companytrol the affairs of the mission. Series of litigation was resulted and the four special leaves before the High Court were summed up and by the impugned order the High Court held that all the four appeals were to be dismissed. Before the Division Bench orders of learned Single Judge were challenged. The relief sought for were categorized under five heads. Grant of letters of administration in favour of Sri U.C. Saxena in respect of the properties of Sri Ram Chandra Mission through out India and abroad. Declaration and Sri Umesh Chandra Saxena was the President of the Mission and the second petitioner was the Secretary thereof. An interim grant during pendency of the application. In the alternative appointment of a receiver in respect of the entire estate of deceased Sr. Ram Chandra Mission, and Any other relief. The special leaves were filed by Umesh Chandra Saxena and others, Uma Shankar and Another, the present appellants and another. Special leave by the Umesh Chandra Saxena and Anr. Sri. P. Rajagopalichari were the respondent while in the first special leave by Umesh Chandra Saxena and Anr. The Administrative General, U.P. Allahabad and others were the parties. Background facts as highlighted by the appellant in this appeal are as follows Sh. Ram Chandra Mission-Society was registered, established and founded by Maharaj, Shri Ram Chandra Ji Maharaj with its companystitution, bye laws and Memorandum of Society on 21.7.1995. Purportedly there was a companyering letter to the intimation dated 23.3.1974 alleged to have been executed by the founder in favour of respondent P. Rajagopalachari. This intimation according to the appellant was the result of manipulation and fraud. The numberination was declared him to be the president of society and clearly stated that he shall work for the Mission and he is President of Sahaj Marga System. On 16.4.1982 numberination was executed in favour of Shri Umesh Chandra Saxena as spiritual representative in the direct line of succession and he was numberinated as the successor or President under Rules 3 and 4 of the registered companystitution, bye laws of the society. The numberination declaration clearly stated that the previous numberination if any made by the founder stand superseded and cancelled. Founder - Shri Ram Chandraji Maharaj breathed his last on 19.4.983. On 4.1.1984 a civil suit was filed by three members of the Society in the Court of Civil Judge, Shahjanpur who granted ex-parte injunction restraining P. Rajgopalachari from acting as President. On 6.2.1984 and 7.2.1984 working Committee meeting was held at head quarters and after perusal of booklet Sh. U.C. Saxena was declared as a successor or President and also the spiritual representation in the direct line of succession on the basis of numberination of 16.4.1982. The claim of P. Rajgopalachari based on the alleged numberination dated 23.3.1994 was treated as rejected. On 8.2.1984 General Body was held at the head quarter of the Society and the claim of Sh. Umesh Chandra Saxena was approved and he was declared as spiritual representative in the direct line of succession and also as the successor or President of the society. Claim of P. Rajgopalachari based on the alleged numberination was rejected. On 15.2.1982 a circular was issued by Secretary Sh. S. A. Sarnad informing all members regarding the declaration of Sh. Umesh Chandra Saxena as Successor President and the spiritual representative in the direct line of succession. An amendment was carried out to the Societies Registration Act, 1860 on 30.4.1984. Section 3 A was amended by the substitution of sub section 4 of Section 3 A and addition of a proviso to Section 4 1 . By virtue of Section 3 a 4 . List of the members of the managing Committee Body elected was required to be filed. Ex-parte injunction was granted on 4.1.1984 was companyfirmed on 9.4.1984. In appeal by respondent No. 1, P. Rajgopalachari the High Court granted stay of injunction. The High Court allowed the first appeal and set aside the injunction order. SLP filed against the order of the High Court was dismissed by this Court on 27.9.1985. The suit was subsequently withdrawn on 10.7.1997 on giving of an undertaking number to alignate and number to shift the head quarters. On 23.1.1988 elections were held at the head quarters in accordance with Section 3 A 4 and Section 4 and the office bearers were duly elected Sh. S.P. Srivastava as President and Sh. B.D. Mahajan as Secretary respectively. On 24.4.1990 in proceeding under Section 25 of the Act report of the Tehsildar companynter signed by the SDM as the prescribed authority under Section 25 was passed recognizing the representation of aforesaid two persons as the President and Secretary. On 29.7.1991 another report was given by the tehsildar and K.G. in a proceeding under Section 25 recognising the same position. The aforesaid reports were questioned on behalf of respondent No. 1 before the prescribed authority by an application called SU-2/91 the application was rejected by the prescribed authority and earlier reports were companyfirmed. An application was moved by 75 members of the society for action under Section 25 2 of the Act on 20.4.1993. On 15.2.1994 elections were held and Sh. Umesh Chandra Saxena and Sh.K.V. Reddy were elected as President and Secretary respectively. on 29.9.1994 the Assistant Registrar passed order holding that since the Constitution provides for numberination of President election cannot be companyducted. He also held that in view of the interim orders in civil suit OS No. 200 of 1983 the respondent No. 1 P. Rajagopalachari shall companytinue to work as President. As numbered above the suit was withdrawn on 10.7.1997 with liberty to file fresh suit. On 10.7.1997 writ petition No. 37023 of 1994 filed against the order dated 29.9.1994 was dismissed by learned Single Judge. On 24.11.1998 the Division Bench dismissed the special leave No. 580 of 1987 holding that since under the Rules of the society the post of the President and Members of the working companymittee is number an elected one, Section 25 would number companye out and took play. The High Court, however held that Registrar had numberauthority to direct anybody to companytinue an office. It was further held that the application under Section 25 2 itself was untenable and so was the writ petition. On 22.1.1999 elections were held and again Umesh Chandra Saxena and Sh. K. V. Reddy were elected as President and Secretary in accordance with the amended provisions of the Act. On 3.11.2003 Sh. Umesh Chandra Saxena expired and Navneet Kumar Saxena was elected unanimously as the President of the Society in an emergent meeting which was held at Hyderabad by working companymittee. The general Body on 22.11.2003 had approved and companyfirmed the election of the Navneet Kumar Saxena as the President of the society. Further the amendment proposed and adopted by the General body of the society, in order to make the rules in companysonance of the provisions of the Act. On 12.2.2005 elections were held in the society for electing the Managing companymittee and again Navneet Kumar Saxena and K. V. Reddy was elected as the president and Secretary respectively. Primarily the stand is that if Section 3 A 4 as introduced by Act 11 of 1984 cannot be given a restricted meaning. If it is elected to Managing Body elected then the provision made would be rendered nugatory. It is intended to provide that even if Rules, say otherwise elections has to be introduced, Section4 Proviso is also relevant. The stand is that earlier there was numberneed for list of elected members as there was numberelected member. So the purpose is to have elected members. Section 4 speaks of an annual list. If the intention was that the members were to be elected, the legislature companyld have said so specifically without leaving it to be inferred by implication. Section 27 provides for the companysequence for number companypliance with Section 4. It is stated that the position in 1975 was that chosen includes election. Now, it only means elected by implication and that to be read in the line of Section 3 A and 4 proviso, it is pointed out that Section 25 2 refers to election and the remedy to challenge. If there is numberremedy numberody is left remedyless. Alternatively, it is submitted that assuming it is to be done by numberination, P. Rajgopalachari companyld have been numberinated, but it has been annulled on 16.4.1982 as Umesh Chandra Saxena remains numberinated. It is pointed out that role as President of the Sahaj Marg system is different. The application filed by Sh. Rajgopalachari has to be tested as per clause 3 b , these were number challenged and Rajgopalchari cannot have nay role to play. P.Rajgopalachari companyld number have been numberinated because he is number in the direct line of succession. In any event, after passing of order dated 16.4.1982 he has numberrole to play. The working companymittees decision, resolution of the General Body all are of similar effect. The stand is strongly opposed by the respondent to say that numberination were number merely in respect of the Sahaj Marg system system but it was in respect of President itself. It is pointed out that the earlier suit having direct effect was withdrawn and the effect of it has to be companysidered. The effect of the withdrawal of a suit has been companysidered by this Court in K. Sivaramaiah v. Rukmani Ammal 2004 1 SCC It was inter alia observed as follows So far as Original Suit No. 7359 of 1989 is companycerned, the findings recorded in the judgment therein companyld have companystituted res judicata but the fact remains that the appellate companyrt permitted the withdrawal of the suit and once the suit has been permitted to be withdrawn all the proceedings taken therein including the judgment passed by the trial companyrt have been wiped out. A judgment given in a suit which has been permitted to be withdrawn with the liberty of filing a fresh suit on the same cause of action cannot companystitute res judicate in a subsequent suit filed pursuant to such permission of the companyrt. It is number necessary to deal with the true import of Sections 3 A and 4. It would be appropriate to direct that the pending suit shall be decided within a period of six months. |
J U D G M E N T with C.A. No. 4783 of 1996 and W.P. C No. 527 of 1993 B. SINHA, J Whether settlement of a private dispute between the parties to a writ proceeding is permissible in law, is the prime question involved in these batch of appeals which arise out of judgments and orders passed by Madhya Pradesh High Court in M.P. No. 802 of 1992 and M.C.C. No. 477 of 1992 and the companynected writ petition. The factual matrix involved in these matters may be numbericed in brief. A partnership firm known as M s. Dwarka Prasad Agarwal Brothers The firm was companystituted with Dwarka Prasad Agarwal since deceased , Bishambhar Dayal Agarwal since deceased , Mahesh Prasad Aggarwal - all sons of Keshav Dev Agarwal and Ramesh Chandra Agarwal, son of Dwarka Prasad Agarwal in the year 1972 as partners thereof. Each partner companytributed towards the capital of the Firm in shares to the extent of 25, 30, 30 and 15 respectively. Prior to the companystitution of the Firm, a newspaper known as Dainik Bhaskar was being published by Dwarka Prasad Agarwal and his name was recorded in the Registrar of Newspapers for India for short RNI . The said Dwarka Prasad Agarwal was the karta of a larger HUF companysisting of himself and his partners. He had two wives, namely, Kasturidevi and Kishoridevi. Allegedly, the firm transferred the business of publication of Dainik Bhaskar at Gwalior to a newly incorporated companypany, M s. Bhaskar Publication and Allied Industries Pvt. Ltd. of which Dwarka Prasad Agarwal was the lifetime Managing Director and Chairman and therein Bishambhar Dayal Agarwal and his son, Ramesh Chandra Agarwal were shareholders and directors. A printing press of which Dwarka Prasad Agarwal was the owner is said to have been transferred to the said companypany for the purpose of printing of the aforementioned newspaper. According to the appellants, in the Annual Reports of the RNI, the name of the said firm was shown as the owner of the said newspaper. It is number disputed that in the year 1982, Dwarka Prasad Agarwal suffered from a paralytic attack and was unable to attend to business actively. It is alleged that Ramesh Chandra Agarwal filed a Declaration on or about 13.10.84 along with an authority letter dated 10.1.83 from Dwarka Prasad Agarwal in respect of publication of Dainik Bhaskar at Indore for admitting him to be the owner of the newspaper and the companypany as a lessee. Certain documents were allegedly created on 13th March, 1985 by Ramesh Chandra Agarwal for the said purpose one of them, being an Agreement of Sale alleged to have been entered by and between the Firm and a companypany called M s. Writers Publishers Pvt. Ltd., the genuineness or otherwise of which was the subject matter of a suit being suit No. 57A of 1988. Another document also came to be executed on the same day, the genuineness whereof was also disputed, is an alleged deed of partition family settlement of the HUF in terms whereof the firms assets, several other properties, fixed deposits, money and business including those situated at Bombay, Delhi, Raipur, Indore, were divided between Dwarka Prasad Agarwal, Bishambhar Dayal Agarwal, Mahesh Prasad Agarwal and Ramesh Chandra Agarwal. According to the appellant, Dwarka Prasad Agarwal never signed the said deed of partition family settlement number was it acted upon and in fact was questioned as forged and number-existent by Bishambhar Dayal Agarwal in a proceeding before District Magistrate, Jabalpur and the same was also the subject matter of suit No. 57A of 1988 pending in the companyrt of District Judge, Bhopal. Several other suits were filed by the parties at several places viz. Jabalpur, Bhopal, Raipur, Gwalior, etc. Several proceedings were also initiated before different forums with regard to publication of the said newspapers at different places. Some writ petitions were also filed by the parties before the High Court. Some proceedings by way of Special Leave Application were also filed before this Court. It may number be necessary to delve deep into the effect and purport of the said disputes for answering the issue involved in these matters, except a few. It may, however, be numbericed that Bishambhar Dayal Agarwal, questioning the authentication made by the Additional District Magistrate, Jabalpur of the Declaration filed by Sudhir Agarwal, son of Ramesh Chandra Agarwal for newspaper Nav Bhaskar as regard its publication from Jabalpur as also a purported order passed thereupon by the said authority on 3.12.91 filed a writ petition before the Madhya Pradesh High Court. Dwarka Prasad Agarwal was made a proforma respondent herein. The said writ petition was marked as MP No. 802 of 1992 wherein the following reliefs were claimed That the Honble Court be pleased to declare by an appropriate writ, order or direction that the power companyferred on the District Magistrate Additional District Magistrate under Section 4 and 6 of the Press and Registration of Books Act, 1867, in case of declarations submitted for same or similar titles as ultra vires to the petitioners right under Article 14, 19 1 a and g of the Constitution of India. That the Honble Court be further pleased to declare by an appropriate writ that if a power is companyferred on District Magistrate Additional District Magistrate to grant declaration of title of same or similar nature, such a power cannot be exercised by the District Magistrate Additional District Magistrate till an Appellate Authority is companystituted to be able to oversee and review the exercise of powers by the District Magistrate Additional District Magistrate. The number-provision of Appellate power violates the petitioners fundamental rights under Article 14 and 19 1 a and g of the Constitution of India. That the Honble Court be further pleased to quash and set aside the declaration dated 11.10.1991 approved by the Additional District Magistrate, Jabalpur, of the title Nav Bhaskar submitted by publisher Sudhir Agarwal as void, illegal and companytrary to law. iii-a The Honble High Court may be pleased to quash and set aside the declaration dated 14.2.1992 Annexure P.27 authenticated by the Additional District Magistrate, Jabalpur in favour of the respondent No. 1 Sudhir Agarwal for printing and publishing newspaper under the name and style of Nav Bhaskar as void, illegal and number-set in law. That the Honble Court be further pleased to set aside and quash the order dated 3.12.1991 passed by the Additional District Magistrate, Jabalpur, on an application objection made by the petitioner under Section 8-B of the Press and Registration of Books Act, 1867 as void, illegal and companytrary to law. That the Honble Court may be further pleased to prohibit and restrain the respondent Sudhir Agarwal and his father Shri Ramesh Chandra Agarwal from using the title Nav Bhaskar and to restrain the D.M. Jabalpur from granting any such or similar title to Shri Sudhir Agarwal or Shri Ramesh Chandra Agarwal. Any other appropriate writ, order or direction which the Honble Court deems just and proper may also be passed in the facts and circumstances of the case as also in the interest of justice. Cost of proceedings of this petition may also be awarded in favour of the petitioner. During pendency of the said writ proceedings, on 29.6.92 the petitioner therein, Ramesh Chandra Agarwal son of Dwarka Prasad Agarwal and Mahesh Prasad Agarwal along with their sons Kailash, Sudhir and Sanjay purported to have entered into a deed of settlement. Dwarka Prasad Agarwal admittedly was a proforma respondent therein and although his rights as partner were directly affected thereby he was neither a party to the said settlement number a signatory to the said deed. The said purported agreement was filed on the same day before the Madhya Pradesh High Court by the petitioner therein alleging that he and the companytesting respondents had reached a full and final settlement of the disputes raised in the petition and other companynected matters pending before various companyrts and bodies and the writ petition be disposed of in terms of the said purported companyprehensive agreement. The said settlement was accepted and the writ petition was disposed of in terms thereof on 29.6.1992 which was also the date of filing of the companypromise memo. The said order dated 29.6.92 is the subject matter of Civil Appeal No. 4782 of 1996. Pursuant to or in furtherance of the said purported companypromise, RNI altered the name of owner of title Dainik Bhaskar in his Register from the Firm to M s. Writers on or about 3.9.1992 stating This is to state that in accordance with the numberice issued on the above subject in the matter of ownership of Dainik Bhaskar, as per the decision in Case No. 1182/92 dated 29.6.92 of the High Court of Madhya Pradesh, at Jabalpur and agreement dated 19.6.92 M s. Writer Publishers Pvt. Ltd., Bhopal, has become the owner of Dainik Bhaskar. You are, therefore, requested that if you have any objection to this decision then you may approach the High Court at Jabalpur. Dwarka Prasad Agarwal having companye to learn the said order of RNI dated 3.9.1992 filed an application for review of the order dated 29.6.1992 passed by the High Court which was marked as MCC No. 477 of 1992. The said review petition was dismissed by an order dated 13.11.1992 and the same is the subject matter of Civil Appeal No. 4783 of 1996. The High Court in its order dated 13.11.92 refusing to review its earlier order dated 3.9.92 inter alia held The agreement in question is a lawful one. As Dwarka Prasad Agarwal was number a signatory thereto, he was number bound thereby. The order recording companypromise was legal as numberother party including the learned advocate of Dwarka Prasad Agarwal objected thereto. No writ was issued by the High Court in terms of the said order against the Additional District Magistrate, Jabalpur or any other authority. Pursuant to or in furtherance of the said order dated 29.6.1992 recording the purported settlement applications were filed in Suit No. 74A of 1987 and 75A of 1987 in Bhopal by M s. Writers and Ramesh Chandra Agarwal for withdrawal thereof, whereupon the suits were dismissed. Bishambhar Dayal Agarwal also, who had filed suit No. 57A of 1988, moved an application to the effect that pursuant to the companypromise the suit be dismissed. This plea was also accepted. Dwarka Prasad Agarwal filed Writ Petition No. 527 of 1993 in this Court questioning the aforementioned order dated 3.9.92 passed by RNI wherein inter alia the following reliefs were prayed for a issue writ, order or direction quashing the order dated 3rd September, 1992 whereby the Registrar, Newspapers has changed the name of the owner of the title Dainik Bhaskar from M s. P. Agarwal and Brothers to M s. Writers and Publishers Private Limited b issue writ, order or direction directing Respondent No. 1 and 2 number to allow Respondent No. 7 to use the title Dainik Bhaskar for its publication c issue writ, order or direction directing the Respondents number to publish newspaper Dainik Bhaskar under the alleged title of Respondent No. 7 d issue writ, order or direction directing the Respondent No. 2 to exercise its authority number to allow Respondents No. 3 to 7 to publish newspaper Dainik Bhaskar under the title of writers and publishers Private Limited e issue writ, order or direction directing the Respondent No. 8 number to allow the Respondents No. 3 to 7 to publish newspaper Dainik Bhaskar in companytravention of the provisions of the Press and Registration of Books Act, 1867 and f pass such other and further orders as may be deemed fit and proper in the facts and circumstances of the case. Dwarka Prasad Agarwal died during the pendency of these proceedings. Both the wives of the said Dwarka Prasad Agarwal applied for substitution of their names in place of the deceased. The rival companytentions on substitution by the two wives of Late Dwarka Prasad Agarwal came to be companysidered by this Court. Kishori Devi pressed her application. Kasturi Devi, however, was number sure that, she, having regard to her stand taken in the litigation, would be able to defend the action on behalf of her husband. Upon companysideration of the said question, this Court directed Kasturi Devi to be impleaded as a respondent in the proceeding whereas Kishori Devi and her daughters Hemlata and Anuradha were directed to be substituted in place of Late Dwarka Prasad Agarwal. While passing the said order, however, an observation was made that the said question shall be finally decided at the time of hearing. We may, however numberice that in the said proceedings for substitution, Ramesh Chandra Agarwal filed a companynter affidavit calling Smt. Kishori Devi a companycubine of Dwarka Prasad Agarwal. Keeping in view the stand taken by the parties before us we have numberhesitation in holding that this Court rightly substituted Kishori Devi and her daughters Hemlata and Anuradha in place of Late Dwarka Prasad Agarwal. Mr. Sunil Gupta, the learned senior companynsel appearing on behalf of the appellants, as also the writ petitioner would submit that the impugned orders passed by the High Court are ex facie bad, illegal as by reason thereof the right title interest of Late Dwarka Prasad Agarwal, as specified hereunder, were directly and adversely affected although he was number a party or signatory to the said agreement. By reason of the said purported companypromise, the firm was sought to be dissolved of which Dwarka Prasad Agarwal was a partner. The firms assets were to be sold as per the alleged agreement dated 13.3.85 and divided as per alleged partition deed of 13.4.85 which had number been signed and accepted by Dwarka Parsad Agarwal, karta of HUF and the genuineness whereof was also the subject matter of dispute. The properties of the aforementioned firm, including the goodwill and ownership of Dainik Bhaskar over different territories were distributed by M s. Writers Ltd. floated by Ramesh Chandra Agarwal amongst the three other partners, namely, Ramesh Chandra Agarwal, Bishambhar Dayal Agarwal and Mahesh Chand Agarwal to the exclusion of Dwarka Prasad Agarwal, the 4th and the remaining partner. Although several suits, namely Suit No. 74A of 1987, 75A of 1987, 57A of 1988, 22A of 1988, 99A of 1991 and Writ Petition, MP No. 802 of 1992 were filed by the parties, the disputes involved therein were sought to be resolved thereby which was impermissible in law. The learned companynsel would companytend that the High Court companymitted a serious error insofar as it failed to numberice that Dwarka Prasad Agarwal companyld number have any knowledge of the said unjust agreement, whence the same was accepted. Although he had number instructed any lawyer to appear on his behalf and merely one blank Vakalatnama executed by him bona fide was used therefor and, thus, there was numberquestion of his taking part in the proceeding for acceptance of the purported settlement. In any event as his lawyer admittedly recorded merely numberinstructions in the said proceeding, the same companyld number have been treated as a companysent numberobjection to the recording of the companypromise on his behalf and in that view of the matter the observations made by the High Court that the agreement was number opposed on behalf of the parties must held to be per se unreasonable and unjustified. Our attention, in this regard, has been drawn to various disputed factual aspects of the matter for the purpose of showing that several misrepresentation of fact had been made in the aforementioned agreement of settlement and the application dated 29.6.92 filed for recording the companypromise before the High Court. The learned companynsel would further companytend that the companypromise was, in any event, number lawful as thereby right of ownership of an existing title in newspaper was sought to be determined in violation of Section 19B, the proviso appended to Section 6 and Section 8B ii of the Press and Registration of Books Act, 1867 as in terms thereof the authorities were under a statutory obligation to preserve and protect the right of the firm as regard ownership of title Dainik Bhaskar and to prevent any person from using the same without the authorization of the firm. The goodwill of a firm, the learned companynsel would urge, would also be a subject matter of division of assets of partnership firm irrespective of the fact as to whether the firm had thence been carrying on business or number. Furthermore, as by reason of the said companypromise, transfers were sought to be made without registering the same in terms of Indian Registration Act, the same was illegal. It was further submitted that impact of the impugned order can be numbericed from the fact that by reason of the said purported companysent order dated 29.6.92, even the RNI also found himself companypelled to forgo his statutory obligation and found itself to be bound to alter the name of the owner of the title in the register maintained by the said authority in terms of Section 19B of the Act from M s D.P. Agarwal Bros. to M s Writers Publishers Pvt. Ltd. Recording of the said companypromise, it was urged, must be held to amount to practising of fraud on the companyrt by the parties to the agreement, as thereby they had achieved their purpose indirectly which law prohibits them achieving directly and furthermore, as a large number of proceedings in relation to the disputes amongst the parties were pending before different forums, they companyld number have been given a go bye by reason thereof. The learned companynsel would companytend that public law remedy by way of a writ petition companyld number have been taken recourse to for resolution of a private dispute. It was submitted that in that view of the matter, the observations of the High Court that its order did number amount to issuance of a writ by the Court against any of the parties must be held to be illegal and without jurisdiction. Drawing our attention to the applications for withdrawal of the suits in terms of the said companypromise petition, the learned companynsel would submit that the order accepting the companypromise was misused inasmuch as the said suits were purported to have been withdrawn on the ground that the same was a necessary fallout of the judgment of the High Court, which in effect and substance, it was number. On the writ petition filed by Late Dwarka Prasad Agarwal under Article 32 of the Constitution of India in this Court, the learned companynsel would submit that having regard to the fact that the official respondents had changed the entries in the register maintained under the Act is a clear pointer to show as to how the order of the High Court was misunderstood by the statutory authorities. It was submitted that in terms of the provisions of the Press and Registration of Books Act, 1867, late Dwarka Prasad Agarwal had acquired various rights companypled with the companymon law right as a partner of the partnership firm which companyld number have been taken away only with his companysent or by operation of law. According to the learned companynsel, in terms of the provisions of the said Act, it is one thing to say that somebody is the owner of the title in relation to the newspaper in question and it is another thing that somebody is the printer and publisher thereof. As regard maintainability of the writ petition, Mr. Gupta vehemently urged that the cause of action therefor had arisen in view of illegal action on the part of the official respondents resulting from misuse of judicial process. He would urge that publication of a newspaper is a fundamental right in terms of Article 19 1 of the Constitution of India and as the action of the official respondents directly resulted in infringement of the right of the said writ petitioners. Reliance, in this companynection, has been placed on Express Newspapers Pvt. Ltd. Vs. Union of India and Others 1986 1 SCC 133 and Jhumman Singh and Others Vs. Central Board of Investigation and Others 1995 3 SCC 420. Dr. A.M. Singhvi, learned senior companynsel appearing on behalf of respondent Sudhir Kumar Agarwal, on the other hand, would submit that as by reason of the order recording the settlement entered into by and between the parties thereto, by the High Court, the right of Dwarka Prasad Agarwal was number affected as he was number bound thereby and further in view of the fact that numberwrit was issued against the A.D.M. Jabalpur, the question of appellants being prejudiced by reason of the impugned order would number arise. Drawing our attention to the order dated 13.11.1992 whereby and whereunder the High Court refused to review its order dated 29.6.1992, the learned companynsel would companytend that the companyrect legal position has been clarified by the High Court, Late Dwarka Prasad Agarwal companyld have taken recourse to appropriate legal proceeding to protect his own interest and, thus, the impugned orders need number be interfered with. As regard the writ petition filed by Shri Bishambhar Dayal Agarwal, Dr. Singhvi would companytend that from a perusal thereof it would appear that main prayer against the A.D.M., Jabalpur, was dependent upon the authenticity of the declaration made by one of the respondents therein and in view of the fact that the parties had buried their private disputes, at least prayers 3 and 4 companyld be granted by the High Court, more so when prayers 1 and 2 thereof had number been pressed. Dr. Singhvi would urge that having regard to the provisions companytained in Section 5 5 of the said Act, the writ petition also became infructuous and, thus, there was numberoccasion for the High Court to issue any writ. Referring to certain documents, the learned companynsel would argue that as prior to the filing of the writ petition, Dwarka Prasad Agarwal had given up his own right in the newspaper and acknowledged the right of his respondents and the companypany he had numberlocus standi to prefer appeals against the impugned orders of High Court or file the writ petition. As regard the effect of the companysent order the learned companynsel relied upon the decision of this Court in Salkia Businessmens Association and Others Vs. Howrah Municipal Corporation and Others 2001 6 SCC 688. Mr. P.P. Rao, the learned senior companynsel appearing on behalf of Smt. Kasturi Devi, inter alia, would submit that the writ petition filed before this Court by Dwarka Prasad Agarwal since deceased was number maintainable. Mr. Rao, would companytend that having regard to the prayers companytained in clauses 1 and 2 thereof, there cannot be any doubt whatsoever that the writ petition before the High Court was maintainable and only because at a later stage the private dispute between the parties was resolved, the same by itself would number lead to a companyclusion that the writ petition ceased to be so. Mr. Rao would submit that legality or otherwise of the said companypromise cannot be held to have been questioned by Late Dwarka Prasad Agarwal as numberillegality in relation thereto was pointed out by anybody. Mr. Shanti Bhushan, learned Senior Counsel appearing on behalf of Mahesh Agarwal, however, companyceded that the order dated 29.6.1992 of the High Court based on companypromise must be set aside and companysequently prayer a in the writ petition may also be granted. However, according to the learned companynsel the petitioner is number entitled to any other relief. Several questions of importance, as numbericed hereinbefore, have arisen for companysideration in these appeals and the writ petition. A writ petition is filed in public law remedy. The High Court while exercising a power of judicial review is companycerned with illegality, irrationality and procedural impropriety of an order passed by the State or a statutory authority. Remedy under Article 226 of the Constitution of India cannot be invoked for resolution of a private law dispute as companytra distinguished from a dispute involving public law character. It is also wellsettled that a writ remedy is number available for resolution of a property or a title dispute. Indisputably, a large number of private disputes between the parties and in particular the question as to whether any deed of transfer was effected in favour of M s Writer Publishers Pvt. Ltd. as also whether a partition or a family settlement was arrived or number, were pending adjudication before the Civil Courts of companypetent jurisdiction. The reliefs sought for in the writ petition primarily revolved round the order of authentication of the declaration made by one of the respondents in terms of the provisions of the said Act. The writ petition, in the factual matrix involved in the matter, companyld have been held to be maintainable only for that purpose and numberother. An agreement recording terms of settlement between the parties on their private dispute was executed on 29.6.1992. The application for disposal of the writ petition in terms of the said agreement as also the order of the High Court in M.P. No.802 of 1992 was passed on the same day. The writ petition was number ready for hearing on the said date. Admittedly, Dwarka Prasad Agarwal was number a signatory to the said agreement. He was also number put on numberice there-about. Assuming that he had engaged an Advocate, keeping in view the fact that he was a proforma respondent therein, the said learned Advocate was merely required to watch the proceedings as numberrelief had been claimed against him. The question of the learned advocate of Dwarka Prasad Agarwal number raising any objection as regard legality or otherwise of the said agreement dated 29.6.1992 neither directly number indirectly arose for companysideration before the High Court. He also did number make any submission as regard the lawfulness or otherwise of the said companypromise. He merely stated that he had numberinstruction in the matter. In that view of the matter, it was obligatory on the part of the High Court to issue numberice to Late Dwarka Prasad Agarwal in respect thereof or to allow sufficient time to the learned Advocate to obtain proper and adequate instructions. In the aforementioned premise, the High Court was furthermore required to apply its own mind for the purpose of arriving at a finding as to whether it, in public law remedy, companyld record the companypromise and dispose of the said writ petition in terms thereof. The order dated 29.6.1992 passed in M.P. No.280 of 1992 was purported to have been clarified by the High Court in its order dated 13.11.1992 in the review petition being MCC No. 477 of 1977. The said order clearly demonstrates a total number-application of mind on the part of the High Court. Several issues of grave importance were required to be addressed by the High Court. The High Court sought to take a short cut in holding that the said companypromise was number binding upon Dwarka Prasad Agarwal and thereby numberwrit was issued. The companysequence of recording of the said companypromise was tell-tale. Not only pursuant thereto or in furtherance thereof the Registrar of Newspapers, New Delhi, passed an order dated 3.9.1992 it was companystrued to be a judgment of the High Court which had been taken aid of by the respondents herein for the purpose of withdrawal of suits wherein various disputed questions of facts and law including the genuineness or otherwise of the agreements were in question and required adjudication. The High Court was also required to address itself, more so while disposing of the review application, as to whether the purported settlement on the grounds raised by the appellants herein, was a lawful one. Without any application of mind, the High Court proceeded to hold that the agreement was lawful. It did number pose unto itself the right question so as to enable himself to arrive at a finding of fact resulting in companyrect answer thereto and, thus, the same would amount to a misdirection in law. While doing so, the High Court did number take into companysideration the provisions of the Registration Act or the said Act and, in particular, Section 19B, proviso appended to Section 6 and Section 8-B ii of the Press Registration of Books Act, 1867. The High Court also failed and or neglected to take into companysideration the fact that the companypromise having been entered into by and between the three out of four partners companyld number have been termed as settlement of all disputes and in that view of the matter numbercompromise companyld have been recorded by it. The effect of the order dated 29.6.1992 recording the settlement was brought to the numberice of the High Court, still it failed to rectify the mistake companymitted by it. The effect of the said order was grave. It was found to be enforceable. It was companystrued to be an order of the High Court, required to be the implemented by the Courts and the statutory authorities. In Salkia Businessmans Association supra , this Court observed We have carefully companysidered the submissions of the learned Senior Counsel on either side. The learned Single Judge as well as the Division Bench of the High Court have number only oversimplified the matter but seem to have gone on an errand, carried away by some need to balance hypothetical public interest, when the real and only question to be companysidered was as to whether the respondent Authorities are bound by the orders passed by the Court on the basis of the companypromise memorandum and whether the proposed move on their part did number companystitute flagrant violation of the orders of the Court - very much binding on both the parties. The High Court failed to do justice to its own orders. If companyrts are number to honour and implement their own orders, and encourage party litigants - be they public authorities, to invent methods of their own to short-circuit and give a go-by to the obligations and liabilities incurred by them under orders of the companyrt - the rule of law will certainly become a casualty in the process - a companytly companysequence to be zealously averted by all and at any rate by the highest companyrts in the States in the companyntry. It does number, in our view, require any extraordinary exercise to hold that the memorandum and terms of the companypromise in this case became part of the orders of the High Court itself when the earlier writ petition was finally disposed of on 13-2-1991 in the terms numbericed supra, numberwithstanding that there was numberverbatim reproduction of the same in the order. The orders passed in this regard admit of numberdoubt or give any scope for companytroversy. While so, it is beyond ones companyprehension as to how it companyld have been viewed as a matter of mere companytract between the parties and under that pretext absolve itself of the responsibility to enforce it, except by doing violence to the terms thereof in letter and spirit. As long as the earlier order dated 13-2-1991 stood, it was number permissible to go behind the same to ascertain the substance of it or nature of companypliance when the manner, mode and place of companypliance had already been stipulated with meticulous care and detail in the order itself. The said decision was also number made to depend upon any companytingencies beyond the companytrol of parties in the earlier proceedings. We may, however, hasten to add that we do number intend to put a seal of our approval to those observations but only wish to point out that as to how companyrts or the statutory authority may companystrue a companysent order. In terms of Section 141 of the Code of Civil Procedure, the provisions thereof are number applicable in a writ proceeding. No provision of the Code of Civil Procedure has been made applicable in terms of the rules framed by the High Court of Judicature at Nagpur dated 25.9.1951 framed under Article 225 of the Constitution of India. In any event the applicability of the provisions of the Code of Civil Procedure, if any, would be only with regard to the procedural and machinery provisions companytained therein but thereby numbernew right companyld be created. Even if the provisions of Order 23, Rule 3 of the Code of Civil Procedure and or principles analogous thereto are held to be applicable in a writ proceeding, the Court cannot be permitted to record a purported companypromise in a casual manner. It was suo motu required to address itself to the issue as to whether the companypromise was a lawful one and, thus, had any jurisdiction to entertain the same. It may be true, as has been companytended by Mr. Rao, that the writ petition was maintainable at the threshold. But once it is held that by reason of the purported settlement between the private parties, the High Court was number required to issue any writ, it companyld only either permit the petitioner to withdraw the writ petition and dismiss the same as having become infructuous. The High Court derives its jurisdiction in terms of Article 226 of the Constitution of India, if an occasion arises therefor, to make judicial review of the order passed by a statutory authority. It is beyond any cavil that numberwrit can be issued if the disputes involve private law character. The writ companyrt has also numberjurisdiction to determine an issue on private dispute over a property or right under a partnership. While purporting to record a companypromise, the writ companyrt cannot enlarge its jurisdiction by directing that the suits pending in different companyrts filed or different causes of action would also stand companypromised. By reason thereof the writ companyrt would be entrenching upon the jurisdiction of the civil companyrt indirectly which it companyld number do directly. For the purpose of granting permission even for withdrawal of suit in terms of Order 23, Rule 1 of the Code of Civil Procedure, the civil companyrts themselves were required to apply their mind as to whether having regard to the dispute between the parties, a case therefor has been made out or number. The civil companyrt is required to act on its own and number on the basis of any direction of any other companyrt determining a totally foreign issue. Furthermore, a writ companyrt can pass an effective order provided it has jurisdiction in relation thereto. With the enlargement of the power of the companyrt recording companypromise in view of the Code of Civil Procedure Amendment Act, 1976, the responsibility and duty of the companyrt also has increased. By reason of Order 23, Rule 3 of the Code of Civil Procedure, a party can challenge the legality of the companypromise only before the same companyrt and in that view of the matter the companyrt was enjoined with a solemn duty to decide such companytroversy in a lawful manner. A question as to whether a companypromise is void or voidable under the Indian Contract Act or any other law for the time being in force, would have, thus, to be determined by the companyrt itself. Once it is held that the agreement or the companypromise was fraudulent, the same per se would be unlawful and the companyrt is required to declare the same as such. It is number well-settled that an order passed by a companyrt without jurisdiction is a nullity. Any order passed or action taken pursuant thereto or in furtherance thereof would also be nullities. In the instant case, as the High Court did number have any jurisdiction to record the companypromise for the reasons stated hereinbefore and in particular as numberwrit was required to be issued having regard to the fact that public law remedy companyld number have been resorted to, the impugned orders must be held to be illegal and without jurisdiction and are liable to be set aside. All orders and actions taken pursuant to or in furtherance thereof must also be declared wholly illegal and without jurisdiction and companysequently are liable to be set aside. They are declared as such. There is another aspect of the matter which must also be taken numberice of. A party cannot be made to suffer adversely either indirectly or directly by reason of an order passed by any companyrt of law which is number binding on him. The very basis upon which a judicial process can be resorted to is reasonableness and fairness in a trial. Under our Constitution as also the International Treaties and Conventions, the right to get a fair trial is a basic fundamental human right. Any procedure which companyes in the way of a party in getting a fair trial would be violative of Article 14 of the Constitution of India. Right to a fair trial by an independent and impartial Tribunal is part of Article 6 1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 See Clark Procurator Fiscal, Kirkcaldy v Kelly 2003 1 All ER 1106 . Furthermore, even if the Petitioner herein had filed a writ petition before the High Court in terms of Article 226 of the Constitution of India, the same would number have been entertained as the impugned order had been passed companysequent to and in furtherance of the purported companysent order passed by the High Court. Ordinarily, the High Court would number have issued a writ of certiorari for quashing its own order. Even in that view of the matter too, it is apposite that this petition under Article 32 should be entertained. We may, however, hasten to add that as at present advised we do number intend to enter into the companytention of the petitioners that their fundamental right under Article 19 of the Constitution of India had been infringed. This Court would have entered into the question, if the facts were undisputed or admitted. The question as regard infringement of fundamental right and that too under Article 19 of the Constitution of India cannot be gone into when the facts are disputed. Whether Dwarka Prasad Agarwal and companysequently the substituted petitioners are owners of the newspapers and if so to what extent being disputed, it cannot be said, that by reason of the impugned order dated 3.9.1992 passed by the first respondent herein alone, the fundamental right of the petitioners under Article 19 had been infringed. We are, therefore, of the opinion that the interest of justice would be sub-served if the appeals and the writ petition are allowed and the impugned orders dated 26.9.1992 and 13.11.1992 passed by the High Court as also the order dated 3.9.1992 passed by the first Respondent, Registrar, Newspapers for India, are quashed. All action taken and all orders passed by the statutory authorites and the civil companyrts as referred to hereinbefore shall also stand quashed. As a logical companyollary to our order, it must also be held that the writ petition filed by Late Bishambhar Dayal Agarwal does number servive and must, therefore, be dismissed. |
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 64 of 1958. Appeal by special leave from the judgment and order dated December 3, 1956, of the Allahabad High Court in Criminal Reference No. 159 of 1956. C. Sen, for the appellant. K. Daphtary, Solicitor-General of India,. Purshottam Tricumdas, G. C. Mathur and C. P. Lal, for the respondent. 1960. April 1. The Judgment of the Court was delivered by SUBBA RAO, J.--This appeal by special leave is directed against the judgment of the High Court of Judicature at Allahabad rejecting the reference made by the learned Sessions Judge under S. 488 of the Code of Criminal Procedure. The appellant is a minor and lives under the guardianship of his mother, Smt. Gita Basu. On September 14, 1955, the appellant, through his mother, filed an application under s. 488 of the Code of Criminal Procedure hereinafter referred to as the Code in the Court of the City Magistrate, Allahabad, praying for an order against the respondent, Advocate-General, Uttar Pradesh, Allahabad, for maintenance alleging that he is his putative father. Without giving numberice to the respondent, the Magistrate posted the petition for evidence on September 20, 1955. On that date, the appellants guardian was examined and she was also crossexamined by the Magistrate at some length. After she was examined, the Magistrate directed her to produce any further evidence she might like to lead under s. 202 of the Code and, for that purpose, he adjourned the petition for hearing to September 26, 1955, on which date one police companystable was examined and the learned Magistrate made the endorsement that the applicant said that she would examine numberother witness. On September 27, 1955, the appellant filed a petition before the Magistrate stating that s. 200 of the Code had numberapplication and that numberenquiry need be made before issuing numberice to the respondent. If, however, the Court treated the application as a companyplaint, the applicant asked for time to adduce further evidence in support of the application for maintenance. On that petition the learned Magistrate made the endorsement lead the further evidence, please, if you like . On October 6, 1955, the guardian of the appellant examined one more witness. On that date, the learned Magistrate made in the proceeding sheet the endorsement numberfurther evidence to be led at this stage On October 10, 1955, the learned Magistrate made an order dismissing the application. He agreed with the petitioners companytention that ss. 200 to 203 of the Code did number apply to the application for maintenance but he expressed the view that he should be satisfied that the petitioner had a prima facie case before he issued numberice to the respondent. He then proceeded to companysider the evidence and came to the companyclusion that he was number satisfied that the respondent was the father of Nand Lal, and on that finding he refused to issue numberice of the application to the respondent, and dismissed the application. The appellant filed a revision against that order of the learned Magistrate to the Sessions Judge, Allahabad. The learned Sessions Judge, after companysidering the materials placed before the Magistrate, came to the companyclusion that it was a fit case in which the Magistrate ought to have issued summons to the respondent under sub-s. 6 of s. 488 of the Code. He submitted the record to the High Court of Judicature at Allahabad recommending that the order passed by the Magistrate be set aside and that the Magistrate be ordered to proceed with the application in accordance with law. The reference came up for hearing before Chowdhry, J., who, on the analogy of other sections of the Code held that the Magistrate in holding a preliminary enquiry acted in companysonance with the general scheme of the Code and that, therefore, the order dismissing the application was number vitiated by any illegality or irregularity. He observed that it was companyceded by the appellant before the Magistrate that the Magistrate companyld hold a preliminary enquiry and that, therefore, it was number open to the appellant to question its propriety. He also found that every opportunity was given to the guardian of the appellant to lead such evidence as he desired to produce and that, therefore, the appellant was number prejudiced by the alleged irregularity. On the maintainability of the reference, he held that the finding arrived at by the learned Magistrate was one of fact on the materials placed on the record and, as the Magistrate did number act perversely or in companytravention of some wellestablished principles of law or procedure, the learned Sessions Judge should number have made the reference. The learned Judge finally pointed out that the proceedings were only summary in nature and that they did number deprive the appellant of his right to seek remedy, if any, in a civil companyrt. In the result, the reference was rejected. The appellant by this appeal questions the companyrectness of that order. Learned companynsel for the appellant companytends that the learned Magistrate followed a procedure number companytemplated by the Code of Criminal Procedure and that in any event he companyducted the enquiry in a manner which, to say the least, was unjust to the appellant. The learned Solicitor General, appearing for the respondent, supported the procedure adopted by the Magistrate and also the finding arrived at by him. He further companytended that the appellant in the High Court as well as before the Magistrate companyceded that the Magistrate had power to make a preliminary enquiry and that, therefore, he should number be allowed to question the validity of the enquiry for the first time before this Court. Ordinarily, in a case like this we should have been disinclined to interfere with the order of the High Court in an appeal filed under Art. 136 of the Constitution. But, this appeal discloses exceptional circumstances which companypel us to depart from the ordinary practice. It is number companyrect to state that the appellant had companyceded throughout that a Magistrate can make a preliminary enquiry under s. 488 of the Code before issuing numberice to the respondent. , Indeed the judgment of the Magistrate discloses that on behalf of the appellant certain decisions were cited in support of the companytention that an application under s. 488 of the Code does number companye under the purview of ss. 200 to 203 of the Code. Section 200 of the Code provides for the examination of the companyplainant and the witnesses present in companyrt. Section 202 enables him to make a further enquiry before issuing numberice. Section 203 empowers him to dismiss a petition, if in his judgment numbersufficient ground for proceeding with the case has been made out. The companytention raised by the appellant, therefore, can only mean that the Magistrate -cannot make a preliminary enquiry in the manner companytemplated by the said provisions. Indeed, the Magistrate accepted this companytention but he observed But, as the learned companynsel submit, I have to be satisfied that a numberice under s. 488 Cr. P.C. should issue to the opposite party before issue it and that, therefore, all that has companye on record as yet is admissible for companysideration of the question whether the numberice should be issued or number . This observation did number record any companycession on the part of the appellant that the Magistrate companyld make a preliminary enquiry. In the companytext of the first submission, the second submission companyld only mean that the Magistrate companyld satisfy himself before issuing numberice, whether the application was ex facie number maintainable or frivolous. In the revision petition filed before the Sessions Judge, the appellant raised the following ground Because the companyrt below while companyrectly holding that application made by the applicant under s. 488 Cr. P. C. did number attract the operation of the provisions made in ss. 200 to 203 of the said Code and further that in pursuance of the mandatory provision in s, 488 6 all evidence under Chapter XXXVI of the said Code shall be taken in the presence of the opposite party, has erred in law in directing evidence to be led under s. 200 Cr P. C. and in companysidering the said evidence has usurped a jurisdiction number vested in it by law. The judgment of the learned Sessions Judge also disclosed that this point was raised before him. Though the learned Sessions Judge accepted the companytention that ss. 200 to 203 of the Code had numberapplication, he remarked that in this case the learned Magistrate thought it fit to satisfy himself if this was a case fit enough in which he should issue a numberice. Before the learned Judge of the High Court, it does number appear that any companycession, even in a limited form, was made. Chowdhry, J., observes in his judgment it appears that it was companyceded by the learned companynsel appearing for the applicant that the Magistrate had to satisfy himself in limine that a numberice of the application in question should issue to the opposite party. This observation is only a reproduction of what the Magistrate stated in his judgment. Learned companynsel, who appeared for the appellant in the High Court, does number appear to have made any fresh companycession before the High Court and we do number think that the learned Judge was justified in drawing from the observations of the Magistrate that it was companyceded on behalf of the applicant that it would be a pro-per procedure for the companyrt to make such a preliminary enquiry in order to satisfy itself that numberice should issue to the opposite party. As we have pointed out, the main companytention of the petitioner throughout was that the Magistrate had numberpower to make a preliminary enquiry and the companycession, even if it had been made, can only mean, in the companytext, that the Magistrate companyld satisfy himself whether, on the allegations in the petition, it was a frivolous petition. The first question is whether s. 488 of the Code companytemplates any preliminary enquiry on the part of a Magistrate before he companyld issue numberice to the opposite party. The answer to this question turns upon the companystruction of the provisions of s. 488 of the Code. Chapter XXXVI of the Code companytains three provisions. The heading of the Chapter is of The Maintenance of Wives and Children. The relevant provisions read Section 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 Subdivisional 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 monthly 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. x x x All evidence under this Chapter shall be taken in the presence of the husband or father, as the case may be, or when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed in the case of summons-cases x x x Section 489 provides for the alteration in the allowance under s. 488, and s. 490 prescribes the procedure for the enforcement of the order of maintenance. The relief given tinder this Chapter is essentially of civil nature. It prescribes a summary procedure for companypelling a man to maintain his wife or children. The findings of a magistrate under this Chapter are number final and the parties can legitimately agitate their rights in a civil companyrt. This Chapter is a self-contained one. It recognizes the right of a child or wife to claim maintenance. It prescribes the procedure to be followed and provides for the enforcement of the decision of the magistrate. Under s. 488, so far as it is relevant to the present enquiry, an illegitimate child unable to maintain itself is entitled to a monthly allowance for its maintenance, if the putative father having sufficient means neglects or refuses to maintain it. It is suggested that unless the child is admitted by the putative father to be his illegitimate child, the magistrate has numberpower to make an order for payment of maintenance. This argument, if accepted, would make the entire section nugatory. The basis of an application for maintenance of a child is the paternity of the child irrespective of its legitimacy or illegitimacy. The section by companyferring jurisdiction on the magistrate to make an allowance for the maintenance of the child, by necessary implication, companyfers power on him to decide the jurisdictional fact whether the child is the illegitimate child of the respondent. It is the duty of the companyrt, before making the order, to find definitely, though in a summary manner, the paternity of the child. Sub-s. 6 of s. 488 is mandatory in form and in clear terms it prescribes the procedure to be followed by the Magistrate. Under that subsection, all evidence under that Chapter shall be taken in the presence of the husband or the father, as the case maybe, or, when his personal attendance is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed in the case of summons-cases. The word all with which the sub-section opens emphasizes the fact that numberevidence shall be taken in the absence of the father or his pleader. It is companyceded that ss. 200 to 203 of the Code do number apply to an application under s. 488 of the Code. As the proceedings are of a civil nature, the Code does number companytemplate any preliminary enquiry. When the terms are clear, there is numberscope for drawing inspiration from other sections of the Code, or for deviating from the procedure prescribed to fill up an alleged lacuna. It is said that if numberpreliminary enquiry be held, even in a blackmailing action numberice will have to go to the respondent. There is numberhing incongruous in this position for, if a suit is filed in a civil companyrt for a decree for maintenance by a child against the alleged putative father, summons will go to him without any preliminary enquiry. We are number impressed by the argument that the sub-section itself is intended only for the benefit of the respondent. It appears to us that numberice to the respondent is in the interest of both the applicant as well as the respondent while it enables the respondent to be present when evidence is taken against him, it lightens the burden of the petitioner, for an honest respondent may admit his paternity of the child, if that was a fact and may companytest only the quantum of maintenance. We, therefore, hold that s. 488 of the Code does number companytemplate a preliminary enquiry before issuing a numberice, but lays down that all evidence under that Chapter should be taken in the presence of the respondent or his pleader, indicating thereby that one enquiry only should be held after numberice. The more objectionable feature in this case is that the Magistrate followed a procedure which is, to say the least, unjust to the appellant. The appellants guardian was examined by the Magistrate, and she related the circumstances that led to her illicit intimacy with the respondent she has stated in what circumstance the intimacy companymenced. She filed companyies of the numberices sent by her, through an advocate, by registered post to the respondent demanding maintenance and stated that she received the acknowledgments but the respondent did number think it fit to reply. She filed a photograph wherein she and the respondent were seated on chairs with the appellant standing between them. A servant was also examined, who deposed that she had seen the respondent visiting the appellants mother at odd hours. This evidence, ordinarily, would be sufficient, even if the procedure followed by -the Magistrate was permissible, to give numberice to the respondent. But the learned Magistrate cross-examined the mother of the appellant at great length. The crossexamination discloses that the Magistrate had either uncommon powers of intuition or extraneous sources of information, for he elicited so many minute details of her life that only an advocate well instructed in his brief companyld possibly do. The singularity of the method adopted by the Magistrate does number end there. The learned Magistrate, though he subsequently held that he companyld number make a preliminary enquiry as companytemplated by ss. 200 to 203 of the Code, examined the mother of the appellant at great length and then gave her opportunity under S. 202 of the Code to produce other evidence. After examining two more witnesses, the learned Magistrate ordered that numberfurther evidence to be led at this stage . This order indicates that the learned Magistrate prevented the appellant at that stage to examine other witnesses. Even if a liberal meaning was given to the terms of the order, it would mean that at that time the Magistrate was inclined to give numberice to the respondent but changed his mind subsequently. Thereafter, the Magistrate companysidered the evidence and delivered a judgment holding that the paternity of the appellant had number been established. While there was uncontradicted evidence sufficient for the Magistrate to give numberice to the respondent, he recorded a finding against the appellant before the entire evidence was placed before him. While accepting the companytention of the appellant that the procedure under ss. 200 to 203 of the Code did number apply, in fact he followed that procedure and companyverted the preliminary enquiry into a trial for the determination of the question raised. Indeed, he took upon himself the role of a crossexamining companynsel engaged by the respondent. The record discloses that presumably the Magistrate was oppressed by the high status of the respondent, and instead of making a sincere attempt to ascertain the truth proceeded to adopt a procedure which is number warranted by the Code of Criminal Procedure, and to make an unjudicial approach to the case of the appellant. In the companyrts of law, there cannot be a double-standard-one for the highly placed and another for the rest the Magistrate has numberconcern with personalities who are parties to the case before him but only with its merits. After carefully going through the entire record, we are satisfied that the appellant was number given full opportunity to establish his case in the manner prescribed by law. We should number be understood to have expressed any opinion on the merits of the case they fall to be companysidered on the entire evidence which may be produced by the appellant in the presence of the respondent or his pleader, as the case may be. |
Deepak Gupta, J. Leave granted. This appeal is directed against the judgment dated 29 th March, 2016 whereby the Writ Appeal No.669 of 2016 filed by the appellant herein was dismissed and the judgment dated 22nd February, 2016 of the learned Signature Not Verified Digitally signed by SANJAY KUMAR Date 2017.09.08 Single Judge in Writ Petition Civil No. 20027 of 2015, 132505 IST Reason filed by the respondent No.1 herein was allowed. The undisputed facts are that the appellant school was a junior primary school up to the level of Class IV. Vide order dated 16th June, 2015 the appellant school was upgraded to the level of upper primary school i.e. it was permitted to run from Class V to Class VIII also. The order of the government dated 16th June, 2015 permitting the school to be upgraded was challenged by respondent No.1, who is the Manager of a school being run in the vicinity. The main ground of challenge was that the procedure prescribed under the Kerala Education Rules, 1959 for short KER , had number been followed and numbernotice was given to the schools in the vicinity to raise any objection with regard to the upgradation. The learned Single Judge allowed the writ petition mainly on the ground that the procedure prescribed in Rule 2 of Chapter V of KER was number followed. The order of the State Government was set aside but permission was given to the appellant school to permit the students already admitted, to companytinue their education in the school till the next academic year. The learned Single Judge also directed that it would be open to the Government to take a fresh decision in the matter after following the procedure prescribed under Rule 2 of Chapter V of KER. The appellant filed Writ Appeal No.669 of 2016 which was dismissed. Hence this appeal. Mr Huzefa Ahmadi, learned senior companynsel appearing for the appellant school urged that both the companyrts have lost sight of the fact that the Government of Kerala specifically exercised the powers of relaxation vested in it under Rule 3 of Chapter I of KER. A perusal of the order dated 16th June, 2015 shows that it is a detailed order and the appellant school had made a request that to meet the needs of the children of the locality it may be permitted to be upgraded as an upper primary school. In the order it is mentioned that the appellant school is situated in an economically backward area and the students mainly belonged to the minority Muslim companymunity. It is also observed that the students studying in this school have to attend schools at a distance of 2.5 kilometres to 6 kilometres after passing Class IV. It was also numbericed that there are 268 students studying in the school from Class 1 to Class IV. After companysidering all these aspects and after taking into companysideration Rule 2 and Rule 2A of Chapter V of KER, which prohibit opening and upgradation of new schools except in terms of the said rules, the government has taken a companyscious decision to make relaxation in favour of the appellant school and exempted it from the provisions of Rule 2 and Rule 2A of Chapter V of KER and it has been upgraded to an upper primary school from the academic year 2015-2016. Shri Ragenth Basant, learned companynsel appearing for the respondent No.1 urged that without giving an opportunity to the respondent No.1 numberupgradation order companyld have been passed in favour of the appellant school. Shri Prashant Bhushan, learned companynsel appearing for respondent No. 6, the Parent Teachers Association, supported the appellant and wanted that the children should go to the appellant school which is located in their locality. It appears that the attention of the High Court was number drawn to the last two paragraphs of the impugned order which makes specific reference to Rule 2 and Rule 2A of Chapter V of KER as well as Rule 3 of Chapter I of KER and the companyscious decision of the State to relax the rigours of the rules. There was numberspecific challenge to the order of relaxation. Even otherwise, we are clearly of the view that the Government had the authority and jurisdiction to grant such a relaxation in terms of Rule 3 of Chapter 1 of KER, which reads as follows Where the Government are satisfied that the operation of any rule under these Rules causes undue hardship in any particular case, the Government may dispense with or relax the requirements of that rule to such extent and subject to such companyditions as they may companysider necessary for dealing with the case in a just and equitable manner. We may also mention that we have gone through the file of the case especially the map Annexure P-13 , showing the distance of the various schools and we find that numberother school is at a distance of less than 3 kilometres from the appellant school. |
subba rao j.
these two appeals raise the question of companystruction of the relevant provisions of the assam agricultural income-tax act 1939 ix of 1939 hereinafter called the act. one p. k. handique executed in respect of his properties a deed of trust dated january 8 1941 whereunder he appointed four trustees with an option to companyopt anumberher person as a trustee. he appointed his son the appellant as a managing trustee. the trustees had to administer the estate and realise the income and make disbursements in the manner prescribed in the truest deed. for the assessment years 1954-55 and 1955-56 the managing trustee was assessed to agricultural income-tax on the total income from the trust properties under section 12 of the act. the assessee interalia companytended that the assessment should have been made under section 13 of the act and number under section 12 thereof. the income-tax officer and on revision the companymissioner of taxes assam rejected his companytention. at the instance of the assessee the member board of agricultural income-tax assam referred the following question to the high companyrt of assam for its decision
whether the assessments for the years 1954-55 and 1955-56 should have been made under section 13 of the assam agricultural income-tax act ? the high companyrt answered the question in the negative. hence the appeals. the short question in these appeals is whether the assessments should have been made under section 12 of the act or under section 13 thereof. at the outset it will be companyvenient to read the two sections
section 12. 1 save as provided in sections 10 13 and 14 if a person holds lands from which agricultural income is derived partly for his own benefit and partly for the benefit of beneficiaries agricultural income-tax shall be assessed on the total agricultural income derived from such land at the rate which would be applicable if such person had held the land exclusively for his own benefit and agricultural income-tax so payable shall be assessed on the person holding such land and he shall be liable to pay the same
explanation. - in this section beneficiary means a person entitled to a portion of the agricultural income derived from the land. section 13. where any person holds land from which agricultural income is derived as a companymon manager appointed under any law for the time being in force or under any agreement or as receiver administrator or the like on behalf of persons jointly interested in such land or in the agricultural income derived therefrom the aggregate of sums payable as agricultural income-tax by each person on the agricultural income derived from such land and received or receivable by him shall be assessed on such companymon manager receiver administrator or the like and he shall be deemed to be the assessee in respect of the agricultural income-tax so payable by each such person and shall be liable to pay the same. section 13 is subject to section 12. if section 13 applies to an assessee section 12 1 is necessarily excluded. if the assessment was made under section 12 of the act the assessee would be assessed on the total agricultural income derived from such land at the rate which would be applicable if such person had held the land exclusively for his own benefit and if it was made under section 13 of the act the assessee would be liable to pay the total of the taxes payable by each of the persons on whose behalf he was holding the land. the tax payable under section 12 would be higher than that payable under section 13. both the sections deal with a person who holds land from which agricultural income is derived. the expression holds includes a two-fold idea of the actual possession of a thing and also of being invested with a legal title. sometimes it is used only to mean actual possession. but under section 12 the expression is used in the wider sense for under that section the person mentioned therein hold land partly for his benefit or partly for the benefit of the beneficiary or wholly for the benefit of the beneficiary. in its wide phraseology the section takes in the trustees in whom property vests and also managers and the like who manage the properties on behalf of others. but if the case falls under s. 13 to that extent it is taken out of s. 12. as the same expression holds is used in s. 13 it must be given the same meaning as it bears in s. 12 that is to say it takes in both title and possession. that section deals with persons who hold land on behalf of persons jointly interested in the land or in the agricultural income derived there from. it does number therefore apply to a person who holds land on his own behalf as well as on behalf of others. it deals with two categories of persons namely 1 companymon manager appointed under any law for the time being in force or under an agreementmanagers who do number fall under the above category are outside the section and ii receivers administrators or the like. other persons even though they hold land on behalf of persons jointly interested in such land or the agricultural income derived there form are outside the scope of this section. with this background let us scrutinize the provisions of the deed whereunder the assessee was appointed the managing trustee. radha kanta handique executed the trust deed on january 8 1941. to that trust deed his two sons and daughter and anumberher were made parties. they were described as trustees. in the preamble to the deed he stated his intention that the income of the properties should be enjoyed by certain persons and that the two estates mentioned therein should remain indivisible for all time to companye. he transferred the properties described in the schedule to the said trustees to be held by them in trust for themselves and for anumberher. the trustees were authorized to numberinate within one month after the execution of the trust deed anumberher trustee who would be entitled to be elected as the managing trustee. if numbersuch additional trustee was numberinated by the trustees within the said period or if the additional trustee so numberinated died or otherwise became incapable of working as a trustee then his son krishna kanta handique was to be the managing trustee. the managing trustee was empowered to manage the trust properties either directly or through agent or agents realise the money due from the trust properties and meet the expenditure he had also to companysult the other trustees in all important matters. the deed provided for the filling up of vacancies in the office of the managing trustee or during his absence for short periods. in short the managing trustee was ordinarily to be in charge of the management of the properties. it also provided that a sum of rs. 8 per month should be paid out of the income of the trust properties to mrs. annada bargohain for the maintenance of three old servants and anumberher sum of rs. 300 should be paid every year out of the income of the trust properties to each of his grand daughters mentioned therein. he also prescribed how the accounts should be looked into by the managing trustee and how the income was to be distributed among the beneficiaries in proportion to the trust properties. he gave a direction that the trust properties should be undivided and impartible for all times to companye. the document so far read leaves numberroom for doubt that the testator created a trust with the object of preserving the tea estates vested the property in the trustees and directed only the income therefrom to be paid to the trustees as well as to his servants and to his grand daughters in the manner prescribed thereunder. all the elements of a trust are present in the document. the property therefore vested in the trustees. mr. a. v. viswanatha sastri relied upon clauses 17 and 20 of the document in support of his companytention that under the document though the expression trustees and trust were used loosely the properties really were held by the beneficiaries in certain proportions. the said clauses read
clause 17. - subject to the obligation for payment of the annuities and monthly sums from the income of the trust property as hereinbefore mentioned and subject to other restrictions and limitations herein stated the beneficiaries named below except mrs. annada borgohain shall have full right to the trust property in the proportion of shares mentioned against their names which shares their legal heirs shall have the right to inherit after their death but mrs. annada borgohain shall have interest in the one-fourth share of the trust property for her life only and after her death subject to the restrictions and limitations hereinbefore and hereinafter stated her sons who survive her and the legal heirs of her pre-deceased son or sons if any or some of them predecease her shall have full right to the same one-fourth share of the trust property enjoyed by mrs. annada borgohain during her lifetime. all sons of mrs. annada borgohain shall have right in equal proportion to the said one-fourth share of the trust property. the heir of a pre-deceased son of mrs. annanda borgohain shall get the same share as the son would have got if he had survived her. clause 20. - numberbeneficiaries shall have the right to transfer by way of sale the whole or any part of his undivided share of the trust property to any stranger when anumberher beneficiary agrees to purchase the same for a reasonable price which shall be fixed by the trustees if the vendor and vendee cannumber agree as to what should be the reasonable price. but in numbercase shall a beneficiary have a right to transfer his undivided share in the truest property by way of gift mortgage or lease except to anumberher beneficiary. under clause 17 the beneficiaries except mrs. annada borgohain shall have full right to the trust properties in the proportion of shares mentioned therein which shares their legal heirs shall have the right to inherit after their death. this clause if read literally appears to be inconsistent with the properties being vested in the trustees. but in the companytext of the recitals in the entire document it can only mean that so far as the sons were companycerned the income will have to be paid number only to them but also to their legal heirs. number does clause 20 detract from the document being a trust deed. it prohibited the beneficiaries from transferring their undivided shares in the trust property to any stranger when anumberher beneficiary agreed to purchase the same for a reasonable price or from making a gift mortgage or a lease of their shares to anumberher person except anumberher beneficiary. if literally understood this clause would be bad in law but this clause companyld be reconciled with the rest of the document if it was interpreted to mean that the alienation companytemplated was in respect of the right to receive a share of the income. we are number companycerned here as regard the validity of the document or any of its clauses for numberquestion was raised in that regard in the high companyrt or before the tribunals. the only question therefore is what was the intention of the testator? the intention of the testator was made clear number only by the preamble but also by the express words used in c1. 1 of the deed where under the author of the trust transferred all the properties to the trustees. that apart the income of the properties was given number only to the trustees but also to others who were number trustees. reading the document as a whole we are satisfied that the intention of the testator was to create a trust and therefore the properties vested in the trustees for the benefit of the trustees as well as others. on this interpretation of the document it is manifest that it cannumber fall under s. 13 for the trustees cannumber be described as companymon managers appointed under any law for the time being in force or under any agreement. they are obviously number receivers administrators or the like on behalf of persons jointly interested in such land or in the agricultural income derived there from. if s. 13 does number apply they directly fall under s. 12 1 for they are holding the land partly for themselves and partly for the beneficiaries in terms of that clause. |
CIVIL APPELLATE JURISDICTION Civil Appeal No. 691 of 1970. Appeal by Special Leave from the Judgment and Order dated 12-8-1969 of the Mysore High Court in Civil Revision Petition No. 1322 of 1967. S. Javali, M. Veerappa and J. R. Das for the Appellant. C. Javali, P. G. Gokhale and B. R. Agarwala for the Respondents. The Judgment of the Court was delivered by GUPTA J.-The only question that arises for decision in this appeal by special leave is whether the respondents before us are entitled to relief under section 25 ii of the Bombay Agricultural Debtors Relief Act, 1947. The question arises on the following facts. On June 1, 1927 the predecessors-in-interest of the appellants transferred to one Krishnaji two plots of land bearing survey numbers 125/1 and 136 measuring respectively 14.5 and 21.31 acres in village Murnal, Bagalkot Taluk in Bijapur District. The document by which the transfer was effected, described as a sale deed, shows that the two items of property were sold absolutely for a total sum of Rs. 2000/-. In 1932 Krishnaji sold the plot bearing survey No. 136 to one Ramanna, predecessor-in-interest of respondent Nos. 2 a to 2 e . for Rs. 400/-. In 1935, Krishnaji sold the other plot, survey No. 125/1, for Rs. 1000/ to Utalsab Dogrisab. Walikar, predecessor-in-interest of respondents 1 a to 1 c . After the Bombay Agricultural Debtors Relief Act, 1947 came into force, the appellants applied under section 4 of the Act for adjustment of debts claiming that the transaction in 1927 was really number a sale but a mortgage. The trial companyrt held that the transaction was a mortgage and number a sale but dismissed the application on the view that the respondents were entitled to protection under section 25 ii of the Act. The District Judge reversed the decision and allowed the application under section 4. The matter was taken to the High Court in revision and the High Court recorded a companysent order that the transaction was number a sale but a mortgage and remitted the case to the trial companyrt for a decision on the question whether the purchasers, Ramanna and Walikar, were transferees for value without numberice of the real nature of the transaction between the appellants predecessors and Krishnaji and as such entitled to the protection of section 25 ii . This order of the High Court was made on January 25, 1963. At this stage we may mention that our attention was drawn to an order made in the same matter by the High Court on January 31, 1962, which is reported in 1962 Mysore Law Journal 682, that shows that the same learned Judge had set aside the order of the appellate companyrt and restored that of the trial companyrt. Counsel for both sides appeared to think that the order made by the High Court in 1962 must have been set aside later on review though neither of them was able to produce the order by which the 1962 order had been set aside. However both learned companynsel agreed that for the purpose of this appeal it is the order of the High Court made on January 25, 1963 that need be companysidered. That the 1963 order held the field would be apparent from the fact that the case was reconsidered by the trial companyrt as directed by the aforesaid order. The trial companyrt on hearing the matter after remand dismissed the application under section 4 on the finding that the purchasers were bona fide transferees for value without numberice of the real nature of the original transaction. The lower appellate companyrt reversed this decision. The purchasers then moved the High Court in revision from the order passed by the appellate companyrt. The High Court by the impugned order set aside the order of the appellate companyrt and restored that of the trial companyrt agreeing with the trial companyrt that the purchasers had numbernotice of the real nature of the transaction of 1927. Section 24 of the Bombay Agricultural Debtors Relief Act, 1947 empowers the companyrt to declare any transfer of land by a person whose debts are being adjusted under this Act purporting to be a sale, to be a mortgage if the companyrt was satisfied that the circumstances companynected with the transfer showed it to be in the nature of a mortgage. Section 25 ii provides that numberhing in section 24 shall apply to any bona fide transferee for value without numberice of the real nature of such transfer or his representative where such transferee or representative holds under a registered deed executed on or before the 15th day of February, 1939. The document evidencing the transfer of the plots to Krishnaji in 1927 is discribed as a sale deed and companytains a statement that the vendors have absolutely sold both the said lands to Krishnaji and that the entire ownership was Krishnajis alone. It is also said that possession of the lands has also been given to Krishnaji. The High Court found that the purchasers from Krishnaji had numberactual knowledge or numberice of the real nature of the transaction in 1927. But the High Court also held that the numberice companytemplated in section 25 ii was actual numberice and that companystructive numberice was clearly beyond the companytemplation of section 25 ii . It seems to us that companystruing the numberice referred to in section 25 ii as actual numberice only is likely to defeat the purpose of the statute which was enacted to provide for the relief of agricultural debtors in the province of Bombay. We are of the view that section 25 ii does number exclude companystructive numberice. However on the facts of the case it appears that the transferees had numbernotice, actual or companystructive, of the real nature of the transaction of 1927. It has been found that they had numberactual numberice the High Court appears to have also found that they had numberconstructive numberice. Referring to the provision of section 25 ii requiring that the transferee must hold under a registered deed executed on or before February 15, 1939 the High Court says It will be seen that the reference is to a period anterior to the companying into force of the Act, a period therefore during which the special provisions of the Act companyld number have been within the companytemplation of anybody. If those provisions were number in companytemplation it is impossible to postulate a situation where any given circumstance companyld be regarded as sufficient to excite suspicion that the transaction might be hit by the statute and therefore persuade people to start and pursue further enquiries. Mr. S. S. Javali appearing for the appellants companytends that the fact that the lands in question were transferred for a smaller amount in 1932 and 1935 than the price Krishnaji had paid for them in 1927 was a circumstance that should have put the transferees on enquiry and that if reasonable enquiries had been made they would have had knowledge of the real nature of the transaction of 1927. The fact that the lands were sold to the respondents for a price lower than what they fetched in 1927 might have been due to various reasons and it cannot be said that this ground alone was sufficient to raise a suspicion that the transaction of 1927 was really a mortgage. As pointed out by the High Court, the Act of 1947 companyld number have been within the companytemplation of anyone in 1932 or 1935. Ramappa in his deposition said that he paid Rs.400/- for the land as it was fallow, and that if there were numberweeds the price would have been Rs. 600/-. As for the land sold to Utalsab, he was dead when the matter came up for hearing before the trial companyrt. The record of rights also does number companytain any indication that the transaction of 1927 was in the nature of a mortgage. The evidence discloses that Krishnappa put the transferees in possession of the lands in question. There was therefore, numbersuch occasion or circumstance to impel the transferees to start an enquiry as to the real nature of the transaction between Krishnaji and the predecessors-in-interest of the appellants in 1927. The appeal is dismissed but in the circumstances of the case without any order as to companyts. |
NAGESWARA RAO, J. Sanction was accorded by the President of India for the modifications to the Rules Regulations companycerning pensionary benefits to the Armed Forces personnel on 31.01.2001. Pensionary benefits upon the death or disability in attributable aggravated cases is dealt with in Part II thereof. Category E of Part II is as follows Category E Death or disability arising as a result of - Enemy action in international war. Action during deployment with a peace keeping mission abroad. Border skirmishes. During laying or clearance of mines including enemy mines as also minesweeping Operations. On account of accidental explosions of mines while laying Operationally oriented mine-field or lifting or negotiating mine-field laid by the enemy or own forces in Operational areas near international borders or the line of companytrol. War like situations, including cases which are attributable to aggravated by - Extremist acts, exploding mines etc. while on way to an Operational area. ii. Battle inoculation training exercises or demonstration with live ammunition. iii. Kidnapping by extremists while on Operational duty. An act of violence attack by extremists, anti-social elements etc. while on Operational duty. Action against extremists, anti-social elements, etc. death disability while employed in the aid of civil power in quelling agitation, riots or revolt by demonstrators will be companyered under this category. Operations specially numberified by the Government from time to time. The eligible members of the family of Armed Forces personnel mentioned in Category E shall be entitled to Liberalised Family Pension in case of his death. The scope of the above provision falls for our companysideration in these appeals. The husband of the Appellant was companymissioned in the Army in October, 1968. In 1990, he was promoted as a Colonel. When he was posted as the Commandant of 890 Animal Transport Battalion in Nowshera, Jammu and Kashmir, he was moved to Rajouri for Operational requirement in Operation Ran Vijay at the location of HQ 25 Infantry Division. In the morning of 25.01.1992, he was found dead in his room. The cause of death was found to be sudden cardiac failure due to high stress and strain. The Appellant was initially granted ordinary family pension and, later special family pension. She made a representation for grant of Liberalised Family Pension. The Appellant companyplained that the entry in the service record of her husband was wrongfully altered from Physical casualty under Operation Rakshak to Physical casualty. As there was numberresponse, she filed a Writ Petition in the High Court of Punjab and Haryana at Chandigarh seeking alteration of the entry in the service record of her husband from Physical casualty to Physical casualty under Operation Rakshak. The High Court allowed the Writ Petition and directed the alteration of the service record of the Appellants husband to physical casualty under Operation Rakshak. Reliance was placed by the High Court on the findings recorded in the Court of Inquiry that the death of the Appellants husband was attributable to bona fide military service in the field companyered under Operation Rakshak. The High Court further directed the Respondents to companysider grant of Liberalised Family Pension to the Appellant. After altering the entry in the service record of the Appellants husband from physical casualty to physical casualty under Operation Rakshak, the Respondents found that the Appellant was number entitled for Liberalised Family Pension. Aggrieved by the rejection of the request for payment of Liberalised Family Pension, the Appellant approached the High Court of Punjab and Haryana by filing a Writ Petition. The said Writ Petition was transferred to the Armed Forces Tribunal, Regional Bench, Chandigarh. Being of the opinion that cardiac failure does number fall under Category E of Part II of the Instructions issued by the Government of India on 31.01.2001, the Tribunal dismissed the Transferred Application of the Appellant. The legality of the judgment of the Tribunal is assailed in these appeals. It will be relevant to refer to the relevant Instructions to understand the scope of the modifications made to the pension Rules Regulations governing the Armed Forces personnel from time to time. By a letter dated 24.02.1972, the Chiefs of the Army, Navy and the Air Staff were informed about modifications to the then existing Rules and orders relating to the grant of special family pensionary awards and disability pension. Liberalised Family Pension was announced in favour of the families of the Armed Forces personnel killed in action or to those who have been disabled on account of injuries sustained in the operations against Pakistan, companymencing from 03.12.1971. The awards sanctioned therein were also made applicable to personnel who were killed in action or were disabled on account of injuries sustained in the international wars of 1965 including Kutch and Kargil Operations , 1962 and 1947-1948 Kashmir Operations , as well as the Goa and Hyderabad Operations. The Liberalised Family Pension was further extended to personnel who died or were disabled as a result of fighting in war-like Operations or border skirmishes either with Pakistan on the ceasefire line or any other companyntry and those who fought against armed hostiles like Nagas and Mizos and during fighting in service with peace keeping missions abroad on or after 15th August, 1947. A decision was taken pursuant to the recommendations of the 4 th Central Pay Commission regarding pensionary benefits to the Armed Forces personnel on 30.10.1987. Part IV of the letter dated 30 th October, 1987 deals with Liberalized Pensionary Awards battle casualty and such other cases as may be specially numberified by the Government . The Government of India issued Instructions on 31.01.2001 for implementation of the recommendations of the 5th Central Pay Commission regarding Liberalised Family Pension for the Armed Forces personnel retiring, invaliding or dying in harness on or after 01.01.1996. There was a broad division of cases arising out of attributable aggravated causes into five categories. Operations specially numberified by the Government from time to time were included in Category E. The eligible member of the family of the Armed Forces personnel falling in Category E was entitled to Liberalised Family Pension in case of his death or disability. As the companytention of the Appellant is that her husband was part of Operation Rakshak which was numberified by the Government of India, it is necessary to refer to the numberification dated 07.05.1990 for assessing her eligibility to Liberalised Family Pension. Certain companycessions were made to the Armed Forces personnel who were deployed in Operation Rakshak by the said numberification. Apart from others, Liberalized Pensionary Awards, subject to the companyditions laid down in para I of the letter dated 24.02.1972 were made applicable to personnel in Operation Rakshak. It is important to numbere that troops who were engaged in active operations against militants were held to be entitled to the field service companycessions which were applicable to the location. In addition, those troops which were engaged in active operation against militants were held to be entitled to Liberalized Pensionary Awards, subject to the companyditions laid down in the letter dated 24.02.1972. Mrs. V. Mohana, learned Senior Counsel was appointed as Amicus Curiae to appear for the Appellant. She submitted that all the Army personnel working in the State of Jammu and Kashmir were declared to be on active service as per the numberification dated 05.09.1977. She relied upon Section 3 and 9 of the Army Act, 1950 to submit that the Appellants husband was in active service at the time of his death. Though the Appellants husband was working as Commandant of the Animal Transport Battalion, his death due to sudden cardiac failure took place when he was in active service. She emphasized that the Appellants husband died during his service in Operation Rakshak which was a numberified Operation mentioned in Category E of para 4.1 of the Instructions dated 30.01.2001. She submitted that according to the Instructions that were issued on 31.01.2001, the Appellant is entitled to Liberalised Family Pension as per para 6 therein. She relied upon judgments of the High Court of Delhi, High Court of Jammu and Kashmir and the High Court of Punjab and Haryana in support of her submission that the family members of the Armed Forces personnel who died during their service in the numberified Operations are entitled to Liberalised Family Pension. Ms. Madhavi Divan, learned Additional Solicitor General companytended that Liberalised Family Pension is associated exclusively with pension granted in respect of death or injury caused in live action. Placing reliance on a judgment of this Court in Brij Mohan Lal v. Union of India1, she submitted that grant of Liberalised Family Pension for death by natural causes would diminish the sheen of sacrifice of the servicemen who were killed in live action. The death of the Appellants husband due to sudden cardiac failure would fall under Category B of the Instructions issued on 31.01.2001 and the applicable Special Family Pension was rightly granted to the Appellant. The very genesis of the Liberalised Family Pension highlighted by the learned Additional Solicitor General was through a companymunication dated 24.02.1972 which was issued for the purpose of acknowledging the sacrifice of persons who were killed in live action. The basis of the claim of the Appellant for Liberalised Family Pension flows from the Instructions dated 31.01.2001. There is numberdoubt that Operation Rakshak is a numberified Operation falling under Clause 9 of Category E thereof. There is also numberdispute that those companyered in Category E are entitled for Liberalised Family Pension. However, the numberification issued by the Government extending companycessions 2012 6 SCC 502 to the Armed Forces personnel deployed in Operation Rakshak provides that Liberalized Pensionary Awards are extended only to those troops in active Operations against militants in terms of para I of the letter dated 24.02.1972. A bare perusal of para I of letter dated 24.02.1972 would make it clear that only personnel killed or disabled on account of injuries in action are eligible for Liberalized Pensionary Awards. Therefore, we are in agreement with the Respondent that the Appellant is number entitled for Liberalised Family Pension. We have examined the judgments of the High Courts cited by Mrs. V. Mohana, learned Amicus Curiae in Manju Tewari v. Union of India2, Preeti Sidhu v. Union of India3, J.S. Buttar v. Union of India 4, Major Arvind Kumar Suhag v. Union of India5, J. P Bhardwaj v. Union of India6, Radhika Devi v. Union of India7 and Pushpa Devi State of Haryana8. Though relief of Liberalised Family Pension was granted by the High Courts in those judgments, the High Courts have number examined the letter dated 24.02.1972 and the numberification dated 07.05.1990. Therefore, numberrelief can be given to the appellant on the basis of the said 2005 3 SCT 458 2010 28 SCT 400 2011 11 SCC 429 2013 15 SCT 543 WP C No.348 of 2012 Delhi HC DB 2014 10 RCR C 3136 DB 2015 2 SCT 170 judgments. The judgments relied upon by Mrs. V. Mohana, leaned Amicus Curiae have to be companysidered to have been determined on the particular facts of those cases. Mrs. Mohana relied upon the recommendations of a Committee of Experts, appointed by the Ministry of Defence, Government of India to review matters pertaining to service and pension. Certain recommendations made in the said report are in favour of the Appellant. It was observed in the said report that persons disabled or dying in an Operational area due to illnesses induced by harsh climatic companyditions of such an area or due to an accident while patrolling in such an area is numberless important a sacrifice than another dying by a bullet in the same locale. After obtaining Instructions, the learned Additional Solicitor General submitted a numbere according to which the said recommendation of the Committee was number accepted by the Government. Hence, we cannot rule in favour of the Appellant on the basis of the recommendations of the Committee of Experts. Before parting, we appreciate the valuable assistance rendered to us by Mrs. V. Mohana, learned Amicus Curiae. For the aforementioned reasons, the appeals are dismissed. NAGESWARA RAO HEMANT GUPTA New Delhi, September 23, 2019. Non-Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION Civil Appeal Nos. 7525-7526 of 2019 Arising out of SLP C Nos.8588-8589 of 2014 SMT. RADHIKA DEVI Appellant s Versus UNION OF INDIA OTHERS. . Respondent s WITH Civil Appeal No. 7527 of 2019 Arising out of SLP C No.26105 of 2015 JUDGMENT NAGESWARA RAO, J. Leave granted. For the sake of companyvenience, the parties are referred to as they are arrayed in Civil Appeal Nos.7525-7526 of 2019 arising out of SLP C Nos.8588-8589 of 2014 filed by Smt. Radhika Devi. Naib Subedar Umed Singh was enrolled in the Army on 13.03.1976. On 19.12.2001, he was posted at the International Border in Operation Parakram. While taking part in the fire fighting drill activities at about 4.00 pm on 21.05.2002, he companylapsed and was declared dead. According to the death certificate, he died due to Ischemic heart disease leading to cardiac arrhythmia ventricular fibrillation . The Respondents granted Special Family Pension to the Appellant. Unsatisfied with the grant of Special Family Pension instead of the Liberalised Family Pension, the Appellant filed A. No.167 of 2011 before the Armed Forces Tribunal, Principal Branch, New Delhi for short the Tribunal . The Tribunal dismissed the O.A. on 23.11.2011, holding that the Appellant was number entitled to either Liberalised Family Pension or exgratia payment. Aggrieved by the order of the Tribunal, the Appellant filed a Writ Petition in the High Court of Delhi, which was allowed. The High Court found that the Appellant was entitled to Liberalised Family Pension and ex-gratia payment of Rs.5 lakhs. The Appellant challenged the judgment of the High Court to the extent that ex-gratia payment of Rs.7.5 lakhs was number awarded in her favour. The Respondent, Union of India has also filed an appeal questioning the judgment of the High Court in so far as it relates to the declaration that the Appellant is entitled to the Liberalised Family Pension and the award of Rs.5 lakhs as ex-gratia amount. The claim of Liberalised Family Pension by the Appellant is on the basis of the Instructions issued by the Government of India on 31.01.2001. As per the said Instructions, a member of the family of a deceased Armed Forces Personnel whilst employed in an operation numberified by the Government of India would be entitled to Liberalised Family Pension. In Kanchan Dua v. Union of India Anr.9, we have discussed in detail the modifications issued to the rules and regulations granting beneficiary awards to the family members of the Armed Forces Personnel who died in action by the letter dated 24.02.1972. We have also carefully examined the scope of the entitlement of Liberalised Family Pension in case of the death of persons employed in the operations numberified by the Government of India. After a close scrutiny of the relevant circulars, we have held that Liberalised Family Pension in accordance with the Instructions issued by the Government of India is payable only to the family members of Armed Forces personnel who have died in action. In view of the death of the Appellant due to cardiac failure, the Appellant is number entitled to Liberalised Family Pension. In so far as the payment of ex-gratia amount/ companypensation is companycerned, we are companyvinced that the Appellant is entitled to Rs.5 lakhs as ex-gratia companypensation in accordance with the Instructions dated 22.09.1998. The special benefits that were granted by the Government of India for ex-gratia payment is payable in all cases of death and Civil Appeal Nos.7459-7460 of 2010 disability in service to the family members of the Armed Forces Personnel who died in harness. As the death of the Appellants husband was number during enemy action in international war or border skirmishes and action against militants, terrorists, extremists etc., the Appellant is number entitled to Rs.7.5 Lakhs as claimed by her. We set aside the judgment of the High Court declaring that the Appellant is entitled for Liberalised Family Pension. |
2000 Supp 3 SCR 322 The Judgment of the Court was delivered by PATTANAIK, J. Delay companydoned. Leave granted in SLP C Nos. 5518/97, 2948/98, 19093/98, 9932/2000 SLP NO. 17724/2000 CC No. 3881 . PATTANAIK, J. In these batch of appeals, filed by the State of Haryana, the question for companysideration is, the services rendered by an ad hoc appointee on the basis of appointment made de hors the Recruitment Rules whether can be companynted for earning the benefits of higher scale of pay under the Government Memorandum, such appointees on being regularly appointed in accordance with the Recruitment Rules at a later point of time? Different appeals companycern with the appointments made under the different departments of the State of Haryana. In all these appeals the Full Bench decision in Rakesh Kumars case has been followed and, therefore, we have chosen to deal with the appeal relating to R.K. Singla Civil Appeal No. 5192 of 1997 . Rakesh Kumar Singla filed Civil Writ Petition No. 15031 of 1993, praying for issuance of mandamus to the State of Haryana in the Department of Irrigation and Power as well as to Engineer-in-Chief in Chief Irrigation Department to grant him selection grade in the cadre of Assistant Engineer. It was alleged in the Writ Petition that he joined the post of Assistant Engineer on ad hoc basis on 4.1.1980 and later on applied to the Haryana Public Service Commission for being companysidered for the said post of Assistant Engineer on regular basis in accordance with the Statutory Rules. He was selected by the Haryana Public Service Commission and he was appointed on regular basis with effect from 29.1.1982. He prayed for grant of selection grade on companypletion of total period of service for 12 years companymencing from 4.1.1980 in accordance with the circular of the Government of Haryana dated 2.6.1989. The Government, however, did number grant him the relief sought for and said Shri Singla then approached the High Court by filing the Writ Petition. According to the writ petitioner, since he was duly appointed on being selected by Public Service Commission on 29.1.1982, and prior to that had been appointed as Assistant Engineer on ad hoc basis on 4.1.1980, his companytinuous service from 1980 should be companynted for the purpose of 12 years service, to earn the benefit under the Government Circular dated 2.6.1989 and, therefore, he is entitled to get the selection grade scale with effect from January 1992. The State Government resisted the claim of the respondents by companytending, inter alia thai I he appointment of Rakesh Kumar Singla on 4.1.1980 was purely on ad hoc basis and was number in accordance with the provisions of Recruitment Rules and he got the regular appointment only on 29.1.1982 and, therefore, 12 years period required for getting the benefits under the Government Circular dated 2.6.1989 would companynt from the said date of 29.1.1982 and number 4.1.1980, as companytended by the respondent. The aforesaid Writ Petition was listed before a Division Bench and the Bench was inclined to dismiss the Writ Petition by interpreting the Circular letter dated 2.6.1989 to mean that under the Circular it is only companypletion of 12 years regular service that would entitle the employee companycerned for getting the benefit under the Circular, but since in another case a Coordinate Bench had taken a different view it was thought fit to refer the matter to a larger Bench, and accordingly, the Division Bench passed orders on July 27, 1994 directing that the case be placed before the Chief Justice for companystitution of a larger Bench for deciding the issue whether the service rendered as a result of ad hoc appointment companyld be companynted for the purpose of 12 years regular service in the companytext of Circular No. 638/3 PR FD - 87 dated 2.6.89 of the Government of Haryana. Because of this order the case was placed before three Honble Judges of the High Court. Justice Jawahar Lal Gupta on companysideration of relevant Circular as well as several other materials on record came to the companyclusion that the expression Regular Service in the companytext of circular dated 2nd June, 1989, of the Government of Haryana implies the service rendered by a person after the appointment in accordance with the Rules governing the recruitment to the post and the service rendered by a person on ad hoc basis or otherwise, which is number in companyformity with the Rules cannot be taken into companysideration for the purpose of determining his seniority number can it be taken into companysideration for the purpose of companyputing the prescribed period of service under the Circular. The learned Judge, therefore, answered the reference against the employee. The majority view, however, was expressed by Honble Sethi, J. as he then was , who came to the companyclusion that if the initial appointment is made following the procedure laid down by the Rules and the appointee companytinues on the post uninterruptedly till the regularisation of the service in accordance with the Rules then his period of ad hoc service shall be companynted for the purpose of seniority and necessarily therefore such period would also ensure to the benefit of the employee for companyputation of the period of 12 years of regular service under the Circular dated 2.6.1989 The learned Judge was of the opinion that on reading the Circular dated 2 6.1989 it cannot be held that the intention of the Government was to deprive the claim of civil servants who are otherwise entitled to the benefit of ad hoc service for the purpose of the higher scale of pay on companypletion of 12 years service under the Circular dated 2.6.1989. On this companyclusion the majority judgment allowed the claim of the Writ Petitioner R.K Singla. Mr. Jain, the learned senior companynsel appearing for the State of Haryana assails the legality of the majority view in Rakesh Kumars case expressed through Honble Justice Sethi, as he then was, on following grounds Circular of 89 2.6.1989 having unequivocally indicated that the category of employees would get the higher scale of pay on companypletion of 12 years of regular service the High Court companymitted serious error in importing the Government intention into the same in deciding the matter on assumption. According to Mr. Jain the further Circular dated 16th May, 1990, having clarified the position and having categorically indicated that the selection grade can be claimed by an employee after 12 years of regular service, the High Court was number justified in directing that the period of ad hoc service should also be companynted for the companyputation of 12 years period. According to Mr. Jain the recruitment to the post of Assistant Engineer being governed by a set of Rules framed under Article 309 of the Constitution called the Haryana Service of Engineers, Class II, Public Works Department Irrigation Branch Rules, 1970, hereinafter referred to as Recruitment Rules , the so called ad hoc appointment of Rakesh Kumar in the year 1980 being de hors the provisions of the Recruitment Rules, the aforesaid services till the appointment was made on regular basis cannot be held to be regular service companytemplated under the Government Circular dated 2nd June, 1989, and therefore, cannot be companynted for companyputing the 12 years of regular service which is required to earn the benefits of the Circular dated 2nd June, 1989. Mr. Jain also referred to the different provisions of the Recruitment Rules and companytended that by numberstretch of imagination the services rendered by an ad hoc appointee can be held to be regular service and the majority view of the High Court, therefore, is erroneous. The learned companynsel also companytended, on the basis of the very appointment letter which had been issued to Rakesh Kumar on 6.12.1979, on the basis of which he had joined the services on 4.1.1980, that in view of the terms of companyditions of the appointment the High Court in the majority judgment companymitted serious error of law in directing that the period of ad hoc appointment would also be companynted for companyputation of 12 years of service under the Government Memorandum dated 2nd June, 1989. Mr. Jain lastly companytended that the appointment letter that was issued to Rakesh Kumar on 29.1.1982 is in fact a fresh appointment after Rakesh Kumar was selected by the Haryana Public Service Commission pursuance to the application made by him to the Service Commission, and as such the earlier services rendered by him on an ad hoc basis cannot be tagged on to his regular services from 1982 for the purpose of companyputation of 12 years period to earn the benefit of higher scale of pay under the Government Circular dated 2nd June, 1989 and the majority judgment is, therefore, wholly unsustainable in law. When the matter was called since the companynsel appearing for the respondent were number present we heard Mr. Jain at length and perused the different circulars and the provisions of the Rules, as pointed out for deciding the companyrectness of the submissions made by Mr. Jain, learned senior companynsel appearing for the State of Haryana. Coming to the Circular dated 2nd June. 1989, issued by the Financial Commissioner and Secretary to the Government of Haryana, Finance Department, it appears that the aforesaid Circular had been issued for removal of anomalies in the pay scale of Doctors, Deputy Superintendents and Engineers, and so far as engineers are companycerned, which are in Class 1 and Class II, it was unequivocally indicated that the revised pay scale of Rs. 3,000 to Rs. 4,500 can be given alter companypletion of 5 years of regular service and Rs. 4,100 to Rs. 5,300 after companypletion of 12 years of regular service. The said Financial Commissioner had issued yet another Circular dated 16th May, 1990, in view of certain demands made by officers of different departments. The aforesaid Circular was issued after recompanysideration by the Government modifying to some extent the earlier Circular of 2nd June, 1989, and even in this Circular it was categorically indicated that so far as Engineers are companycerned, they would get Rs. 3,000 to 4,500 after 5 years of regular and satisfactory service and Selection Grade in the scale of pay of Rs. 4,100 to Rs. 5,300. which is limited to the extent of 20 of the cadre post should be given after 12 years of regular and satisfactory service. The aforesaid two Circulars are unambiguous and unequivocally indicate that a government servant would be entitled to the higher scale indicated therein only on companypletion of 5 years or 12 years of regular service and further the number of persons to be entitled to get the selection grade is limited to 20 of the cadre post This being the position, we fail to understand how services rendered by Rakesh Kumar from 1980 to 1982, which was purely on ad hoc basis, and was number in accordance with the statutory rules can be taken into account for companyputation of period of 12 years indicated in the Circular. The majority judgment of High Court companymitted serious error by equating expression regular service with companytinuous service. In our companysidered opinion under the terms and companyditions of the Circulars dated 2nd June, 1989 and 16th May, 1990, the respondent Rakesh Kumar would be entitled for being companysidered to have the Selection Grade on companypletion of 12 years from 29th January, 1982 on which date he was appointed duly against a temporary post of Assistant Engineer on being selected by the Public Service Commission and number from any earlier point of time. The companyclusion of the majority judgment in favour of Rakesh Kumar, therefore, cannot be sustained. The companytention of Mr. Jain, learned senior companynsel, appearing for the State of Haryana, with reference to the provisions of Recruitment Rules is also well founded, as would appear from the analysis made hereunder. Under the Recruitment Rules which had been made in exercise of powers companyferred by the Proviso to Article 309 of the Constitution Member of Service means an officer appointed substantively to a cadre post and includes in case of a direct appointment an officer on probation or an officer who having successfully companypleted his probation awaits appointment to a cadre post. In case of an appointment by transfer an officer who is on probation or who having successfully companypleted the probation awaits appointment to a cadre post. Under Rule 6 of the Recruitment Rules, recruitment to the services in the cadre post companyld be made both by way of direct appointment as well as by promotion in the proportion from different sources mentioned in the said Rule. Sub-rule 3 of Rule 6 authorises appointment to a cadre post as stopgap arrangement from sources other than the allotted source when a candidate from the allotted source is number available from source 1 and 3, but such appointee is liable to be reverted to his original cadre when a candidate from the allotted source is available and the period of service rendered by such person shall number be reckoned for the purpose of his seniority. Sub-rule 4 of the Rule thus enables the State Government to fill up a short-term vacancy in the exigencies of public service after recording reasons for a period number exceeding six months in each case without resorting to the select list prepared under Rule 9. Under Rule 8 appointment to the service has to be made by way of direct recruitment strictly in the order of merit indicated by the Public Service Commission depending upon the number of vacancies available in the Cadre. Under Rule 9 appointment by promotion-can be made from the panel to be prepared on the basis of merit and suitability in all respects with due regard to seniority, which list has to be forwarded to the Public Service Commission and the Commission on companysideration of the list prepared by the Government alongwith other documents received, can make such changes as necessary and would then forward the approved list to the State Government. It is from this list appointment to the service has to be made by the Government in the order in which names have been placed by the Commission, as provided under sub-rule 9 of Rule 8. Rule 11 provides for companytinuation on probation for a period of 2 years and Rule 12 is the Rule for seniority. A companybined reading of the aforesaid provisions of the Recruitment Rules puts the companytroversy beyond any doubt and the only companyclusion which companyld be drawn from the aforesaid Rules is that the services rendered either on ad hoc basis or as a stopgap arrangement, as in the case in hand from 1980 to 1982 cannot be held to be regular service for getting the benefits of the revised scale of pay or of the selection grade under the Government Memorandum dated 2nd June, 1989 and 16th May, 1990, and therefore, the majority judgment of the High Court must be held to be companytrary to the aforesaid provisions of the Recruitment Rules, companysequently cannot be sustained. The initial letter of appointment dated 6.12.1979 pursuant to which respondent Rakesh Kumar joined as an Assistant Engineer on ad hoc basis in 1980 was also placed before us. The said appointment letter unequivocally indicates that the offer of appointment as Assistant Engineer was on ad hoc basis and Clauses 1 to 4 of the said letter further provides that the appointment will be on ad hoc basis for a period of 6 months from the date of joining and the salary was a fixed salary of Rs. |
Dr. AR. Lakshmanan, J. Leave granted. The unsuccessful defendant is the appellant before us. The respondent herein filed a suit for specific performance or in the alternative for damages. All the three companyrts below, on a companysideration of the entire materials placed, both oral and documentary, decreed the suit for specific performace. Before us Mr. Amar Vivek, learned companynsel for the appellants argued that in the absence of pleading to readiness and willingness to execute a sale deed the suit for specific performance of an agreement cannot be decreed. We have carefully gone through the judgments rendered by the three companyrts below. The High Court on a companysideration of the entire material placed before it was of the view that numberinterference was called for in the second appeal. The learned companynsel for the appellant at the time of hearing, placed reliance on Section 16 of the Specific Relief Act. In order to appreciate the rival submissions, Section 16 c needs to be quoted along with explanation. The same reads as follows Personal bars to relief - a - b Who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the companytract which are to be performed by him, other than terms the performance which has been prevented or waived by the defendant. Explanation - For the purposes of clause c - where a companytract involves the payment of money, it is number essential for the plaintiff to actually tender to the defendant or to deposit in companyrt any money except when so directed by the companyrt the plaintiff must aver performance of, or readiness and willingness to perform, the companytract according to its true companystruction. The language under Section 16 c of the Act, in our view, does number require any specific phraseology but only that the plaintiff must aver that he has performed or has always been ready and willing to perform his part of the companytract. Therefore, the companypliance with the readiness and willingness has to be in spirit and substance and number in letter and form. The companytinuous readiness willingness companyld very well be seen in the instant case from the companyduct of the plaintiff as a whole. The first agreement was entered into between the parties on 17.6.1985 and the last date to execute the sale deed was 14.11.1985. The second agreement was executed on 9.4.1987 and the last date to execute the sale deed was 13.6.1987. Again, the time was extended at the instance of the defendent up 30.10.1987 Since the sale deed was number executed, the respondent herein was companypelled to file the suit on 26.11.1987. Thereafter, the appellant herein issued a numberice to the plaintiff, respondent herein, on 7.1.1988 and at Exhibit P-5. It is also number in dispute that the respondent herein has deposited the entire sale companysideration into the Court on 18.5.1999. He was also present in the Registrars office for registration of the document. However, the appellant-defendant was number present at the Registrars Office A careful perusal of the pleadings, the evidence and the documents filed in this case would only go to show that the respondent-plaintiff was ever ready and willing to perform his part of the obligation under the agreement. The decree passed by the High Court companyfirming the decree of the lower companyrts does number suffer from any infirmities. We, therefore, have numberhesitation to dismiss the appeal. The learned companynsel for the appellant cited judgment of this companyrt in Kanshi Ram v. Om Prakash Jawal and Ors., reported in 1996 4 SCC 593, and submitted that rise - in price of the property during the pendency of the suit should aslo be taken into companysideration and the companyts below ought to have refused to decree the suit for specific performance and ought to have exercised its jurisdiction in passing an order of granting alternative prayer for damages. It is number submitted that at the Bar that the porperty value has gone up several times and that if the property is sold it would fetch more than Rs. 65-70 lakhs. We do number propose to go into the companyrectness of this submission in regard to the valuation of the suit property. To some extent, the delay is also attributable to the respondent herein. Therefore, in our view, the appellantdefendant is to be suitably companypensated. We therefore, direct the respondent herein to pay the appellant herein a sum of Rs.100,00/- Rupees one lakh only within three months from today, failing which the suit filed by the respondent herein for specific performance shall stand dismissed automatically. If the amount is paid within the time as stipulated, the appellant herein shall execute the sale deed in favour of the respondent herein without any further delay. We also it make it clear that on excution of the sale deed, the appellantdefendant shall also handover peaceful, vacant possession of the suit property to the respondent herein. |
P. JEEVAN REDDY.J. This appeal preferred against the judgment of the CEGAT involves the interpretation of Notification No.210 of 1979- CE dated 4.6.1979, issued by the Central Government under Rule 8 of the Central Excise Rules. The appellant-assessee is engaged in the manufacture, inter alia, of Horlicks falling under Tariff item 1-B of the Schedule to the Central Excises and Salt Act. It has a factory at Rajahmundry Bommur for manufacturing Horlicks. The entire stock of Horlicks manufactured at Rajahmundry is, however, number cleared removed after paying the duty at Rajahmundry. Only a portion of the production is put in unit companytainers packages and cleared at Rajahmundry after paying the duty while the bulk of the production is sent to the appellants factories situated at different places in India in bulk companytainers. There, the Horlicks is put in unit companytainers packages and cleared after paying the duty. For the purpose of manufacturing Horlicks, the appellant purchases barley malt which was dutiable under Tariff Items 68. On June 4, 1979, the Central Government issued the aforesaid numberification No.201 of 1979 exempting all excisable goods on which the duty of excise is leviable and in the manufacture of which any goods falling under Item No.68 of the First Schedule to the Central Excises and Salt Act, 1944 have been used, as raw materials or companyponent parts hereinafter referred as the inputs from so mush of the duty of excise leviable thereon as is equivalent to the duty of excise already paid on the inputs. Controversy has arisen with respect to the application of the said numberification and it is this the appellant says that it is entitled to take credit of the entire duty paid on barley malt against the duty payable on the Horlicks cleared at Rajahmundry, numberwithstanding the fact that the entire quantity of Horlicks manufactured out of the said barley malt is number cleared removed at Rajahmundry by paying the duty. On the other hand, the Revenue says that the appellant is entitled to take credit at Rajahmundry only of the portion of duty paid on inputs barley malt as is proportionate to the Horlicks cleared on paying the duty vis-a-vis the total quantity of Horlicks manufactured out of the said barley malt. The Revenue further says that there is numberprovision and the appellant is number entitled to transfer the credit to its other factories from where the goods are cleared on payment of duty. The companytroversy between the parties can be best understood by taking an illustration unrelated to the actual facts of the case the manufacture respondent purchases 100 tons of barley malt on which the duty paid is Rs.10,000/-. By using the said 100 tons of barley malt, the respondent manufactures one thousand tons of Horlicks. Out of this one thousand tons, it clears 250 tons of Horlicks from the Rajahmundry factory on paying duty. The remaining 750 tons is sent to the factory situated at Bangalore without paying duty under a bond. The 750 tons is put in unit companytainers and packages at the Bangalore factory and cleared from there on payment of excise duty. According to the appellant, he is entitled to take credit for the entire duty of Rs.10,000/- paid on 100 tons of barley malt from out of the duty payable on 250 tons of Horlicks cleared from Rajahmundry factory, whereas according to the Revenue, since the quantity cleared at Rajahmundry on payment of duty is only 1/4th of the total quantity manufactured using 100 tons of barley malt, the appellant is entitled to take credit of only Rs.2,500/- against the duty payable at Rajahmundry. Revenue also says that the respondent is number entitled to take credit of b balance of Rs.7,500/- duty paid on 75 tons of barley malt from out of the duty paid on 750 tons at Bangalore. The question is who is right? Notification No.201 of 1979, insofar as it is relevant, reads In exercise of the powers companyferred by sub-rule 1 of rule 8 of the Central Excise Rules, 1944, and in supersession of the numberification of the Government of India in the Ministry of Finance India in the Ministry of Finance Department of Revenue No. 178/77- Central Excises, dated the 18th June, 1977, the Central Government hereby exempts all excisable goods hereinafter referred as the said goods , on which the duty of excise is leviable and in the manufacture of which any goods falling under Item No.68 of the First Schedule to the Central Excises and Salt Act, 1944 1 of 1944 have been used, as raw materials or companyponent parts hereinafter referred as the inputs, from so much of the duty of excise leviable thereon as is equivalent to the duty of excise already paid on the inputs Provided that the procedure set out in the Appendix to this numberification is followed Provided further that numberhing companytained in this numberification shall apply to the said goods which are exempted from the whole of the duty of excise leviable thereon or are chargeable to nil rate of duty APPENDIX A manufacturer of the said goods shall give a declaration to the Superintendent of Central Excise having jurisdiction over his factory, indicating the full description of the said goods intended to be manufactured in his factory and the full description of the inputs intended to be used in the manufacture of each of the said goods. 9. a The credit ofduty taken in respect of any inputs may be utilised towards payment of duty on any said goods for the manufacture of which such inputs were declared by the manufacturer to be brought into the factory, or where such inputs are cleared from the factory as such, on such inputs. No part of such credit shall be utilised save as provided in clause a or shall be refunded in cash or by cheque. 10. a If the manufacturer desires to discontinue availing of the exemption companytained in this numberification, he shall give to the proper officer seven days advance numberice of his intention to do so. The proper officer shall, on receipt of such numberice, ascertain the stock of the inputs in respect of which credit has been taken and whichare lying with the manufacture, whether in the store room or in the manufacturing room, and have been utilized in the manufacture of the said goods but such goods have number yet been removed from the factory. The total stock of inputs so ascertained shall be assessed to duty and the manufacturer shall pay the duty forthwith on receipt of a written demand from the proper officer. On an application from the manufacturer of the said goods, the Collector of Central Excise may permit a manufacturer to transfer the unutilized credit in his account in Form R.B.23 in Appendix I to the Central Excise Rules, 1944 or the stock of the inputs as such or in process on account of - shifting of the plant or factory, belonging to the manufacturer to another site merger of the factory within another factory transfer of business of the manufacturer to another manufacturer Provided that the manufacturer is availing of the exemption granted under this numberification in respect of the factory to which the credit or stock is transferred. emphasis added The first proviso to the numberification lays down that the procedure set out in the Appendix to the numberification will have to be followed for availing of the credit for the duty paid on the inputs. The Appendix provides that the manufacturer willhave to give a declaration to the Superintendent of Central Excise having jurisdiction over his factory giving full description of the goods intended to be manufactured in his factory as well as full description of the inputs intended to be used in the manufacture of such goods Rule 1 . The manufacturer may take credit ofthe duty already paid on the inputs which are received by him after submitting the declaration and utilise such credit for payment of duty of excise on the said goods Rule 2 . These rules do number specifically lay down that the credit of duty taken by the manufacturer must be setoff against the duty payable on the goods actually manufactured utilising these inputs. The manufacturer is entitled to take credit of the duty already paid on the inputs as soon as he receives the inputs and submits the necessary declaration to the Excise Officer. He is, thereafter, entitled to utilise the credit for payment o duty of excise on the goods manufactured by him. The rules do number require any exact companyrelation between the inputs and the finished products for claiming credit for the duty paid on the inputs. It is number a companydition precedent for claiming set-off that the manufacturer must prove that- a the credit was taken in respect of inputs and that b these very inputs were utilised in the manufacture of the goods on which duty is payable. Rule 2 merely provides that the manufacturer may take credit of the duty already paid on the inputs and utilise such credit for payment of duty of excise on the manufactured goods. The exact companyrelation of inputs with the manufacture of the goods is number companytemplated by this rule. The position is put beyond doubt by Rule 10 set out hereinabove which provides that if the manufacturer does number want to companytinue with the system of clearance of goods provided in the numberification, he will have to give a numberice to the proper officer to that effect. The proper officer will ascertain that stock of inputs in respect of which credit has been taken but were lying unutilized in the store-room or in the manufacturing room. The proper officer shall also ascertain the inputs which have been utilised in the manufacture of the goods but had number yet been cleared from the factory. The total stock of such goods has to be assessed to duty and the manufacturer will have to pay the duty forthwith on receipt of a written demand from the proper officer. This rule became necessary because it is permissible to take credit for duty paid on the inputs and make adjustment thereof against the duty payable on the goods manufactured and cleared by a manufacturer without actually utilising the inputs. A manufacturer may have taken and utilised the credit for inputs which are lying in the store-room. The manufacturer may also have utilised the inputs in manufacturing uncleared goods. In both the cases, duty will have to be paid on the inputs because the credit for the duty paid on such inputs has been availed of by setting off such credit against other goods cleared by the manufacturer. All these rules really go to show that there was numberrequirement of actual utilisation of the inputs in the manufacture of the goods for the purpose of claiming set-off of duty paid on the inputs against the duty payable on the goods manufactured by the manufacturer. With respect to the main companytroversy, the Revenue emphasises the words all excisable goods on which a duty of excise is leviable and in the manufacture of which any goods falling under Item No.68have been usedfrom so much of the duty of excise leviable thereon as is equivalent to the duty of excise already paid on the inputs. It says that the aforesaid words mean and imply the companycept o companyrelation. In other words, they say that only the duty paid on inputs which have been used for manufacturing the goods cleared from the factory where the inputs were received can be taken credit of, as explained in the illustration given hereinabove. On the other hand, the learned companynsel for the appellant submits that the words in the body of the numberification should be read alongwith the procedural rules mentioned in the Appendix. In particular, he relies upon clauses 9 and 10 of the Appendix. The learned companynsel also relies upon the instructions issued by the Central Board of Excise and Customs on 18.6.1979 to the following effect Central Excise - Simplification of procedure regarding Tariff Item 68 - Goods used as inputs in the manufacture of finished excisable goods. Attention is invited to Notification No.201/79-ce, dated the 4th June, 1979 page--- and a companyy of the Press Note issued by the Board is appended. In the Press Note the need for simplifying the procedure of set-off granted in relation to Tariff Item 68 goods under numberification No. 178/77-CE dated 18.6.77 has been explained. The revised procedure is based on the lines of rule 56-A of the Central Excise Rules, 1944. Consequently instructions of the Board issued with reference to rule 56-A will also mutatis mutandis be applicable here unless they are inconsistent with the provisions of numberification No.201/79. Attention is specification invited to the instructions companytained in the Boards letter F.No.211/11-M/77-CX. 6 dated 15.11.77, as amended relating to issue of subsidiary gate passes. B.E. C. F.NO.223/22/78-CX.6, dated 18.6.79. Cir.No.22/79-CX.6 PRESS NOTE When excise duty under Tariff Item 68 was increased from 2 to 5 ad valorem in the 1977 Budget, all excisable goods manufactured out of goods falling under that item were exempted from so much of the duty of excise leviable on them as was equivalent to the duty of excise already paid under it. The exemption was restricted to the duty payable on the finished goods when the duty paid on the inputs was more than that on the finished goods. The Trade had been earlier experiencing difficulties in availing of the set-off of duty in relation to those finished excisable goods which had number been numberified under rule 56-A the Central Excise Rules. The difficulties were aggravated where innumerable varieties of finished excisable goods were being manufactured and in the manufacture of which goods falling under Tariff Item 68 were used, number necessarily in relation to any fixed formula, but in a particular ratio that can change from time to time and from variety to variety. Some of the industries that had expressed difficulty on this account were tyres, chemicals, electrical manufactures and grinding-wheels. On account of the innumerable and products and the varying ratios, with alternative usages, manufacturers were furnish it difficult and irksome to furnish the input and output ratio that would remain companystant and e acceptable to the Department. For claiming set-off of duty paid on Tariff Item 68 furnishing on the input - output ratio was necessary as at the time of claiming the set-off while clearing the finished goods the manufacturers had to satisfy the Central Excise Department about the exact amount of set-off sought to be claimed with reference to the duty paying documents under which the input had been received. Government have given companysiderable thought to alleviating these difficulties. And, number, as measure of facilitation the procedure for claiming this exemption has been substantially simplified. Under the revised numberification No.201/79-C.E. issued on 4.6.1977, the cumbersome setoff procedure has been given up, and a self companytained procedure for claiming the exemption has been prescribed. This procedure is basically on the lines of the perform Credit System prescribed under rule 56-A of the Central Excise Rules, 1944. emphasis added With a view to explain the procedure obtaining under Rule 36-A, the learned companynsel for the appellant brought to our numberice Clause VI of sub-rule 3 of Rule 56-A of the Central Excise Rules, as it obtained prior to 1973 and as it obtains number i.e., as substituted by the 1973 Amendment Before Amendment? Except to the extent provided in the second proviso to sub-rule 2 , the credit allowed in respect of any material or companyponent parts shall be utilised towards payment of duty on the finished excisable goods in the manufacture of which such materials or companyponent parts are used or on the materials or companyponent parts themselves and numberpart of such credit shall be refunded in cash or by cheque. After Amendment vi a The credit of duty allowed in respect of any material or companyponent parts may be utilised towards payment of duty on any finished excisable goods for the manufacture of which such material or companyponent parts were permitted to be brought into the factory under sub-rule 2 or where such material or companyponents parts are cleared from the factory as such, on such material or companyponent parts. No part of such credit shall be utilised save as provided in subclause a or shall be refunded in cash or by cheque. emphasis added The portions underlined by us clearly bring about the companyceptual change brought about by the amendment. The companyrelation provided by the unamended clause vi has given way to a permission to utilise the credit of duty paid on inputs towards payment of duty on any finished excisable goods for the manufacture of which such materialwere permitted to be brought into the factory. It is significant to numbere that the language employed in the main body of the numberification, upon which strong reliance is placed by the Revenue, is schematically different from the unamended clause vi of Rule 56-A 3 as would be evident from a reading together of the two provisions whereas the language employed in clause 9 of the Appendix to the numberification is in part material with the amended clause vi . Be that as it may, if one reads only the first para of the numberification, one may possibly agree with the Revenue but if one reads the entire numberification including Rules 9 and 10 of the Appendix, the companytention of the appellant companymends itself as the only companyrect understanding. Not only Rule 9, even Rule 10 indicates, as pointed out above, the absence of a companyrelation between the inputs and the finished goods. The instructions of the Board do explain the background to Notification 201. We must make it clear that we are number relying upon the Boards instructions either as binding upon the Courts or as an aid to companystruction of the numberification but only as explaining the background to the issuance of Notification 201. The change in the language and companytent of clauses vi of sub-rule 3 of Rule 56-A in 1973 is equally relevant in this behalf. It explains why the companycept of companyrelation - or the rule of set-off, as it is referred to in the Press-note was given up and a different method adopted. Clause 9 of appendix to Notification 201, it is significant to numbere, is in part material with clause vi of Rule 56-A 3 as substituted in 1973 . The practical difficulties in implementing the method in force prior to the issuance of Notification 201 and the object underlying the said numberification as also the amendment of clause vi of Rule 56-A 3 in 1973 also induce us to accept the appellants companytention in preference to the Revenues companytention. By accepting the appellants companytention, the object underlying the enactment is in numberway defeated number is the objective underlying the numberification No.201 of 1979 defeated. The object underlying the numberification is to prevent the cascading effect of duties if levied both on inputs and the finish goods. With a view to make the goods available at companyparatively reasonable prices to the companysumer, the duty paid on the inputs is deducted out of the duty payable on the finished goods. Acceptance of the appellants companytention effectuates the said object whereas acceptance of the Revenues companytention would tend to defeat the aforesaid objective in a case like the present one. It is true that the numberification provides for an exemption and has to be strictly companystrued but it is equally well-settled that the exemption numberifications, as to be companystrued reasonably having due regard to the language employed. It may also be numbericed that both Rule 56-A and numberification No.201 of 1979 are actuated which similar companysiderations and provide for broadly similar companycessions. Indeed, that is how the Board has understood these two provisions. Mr. Sridharan, learned companynsel for the appellantmanufacturer, has made it clear that appellant is number asking for any transfer of credit to any other factory of the appellant. |
civil appellate jurisdiction civil appeal
number 1803 of 1070
from the judgment and order dated 6.8.1968 of patna
high companyrt in first appeal number 444 of 1967.
n. mukherjee ranjan mukherjee a.k. ganguli s.c.
ghosh for the appellant. b. datar and ms. vina tamta for the respondents. the judgment of the companyrt was delivered by
deasi j. appellant an employee of tata iron and steel
company limited companypany for short has been chasing a
mirage. to wit to recover a paltry sum of rs 14040 being the
amount of gratuity to which he was entitled for the
continuous service rendered by him from december 31 1929
till august 31 1959 under what are styled as retiring
gratuity rules 1937 gratuity rules for short from the
company and in this wholly unequal fight he laid down his
life before enjoying the pittance to which he was entitled
after three decades of loyal service. what a dreadful return
for abject loyalty? when the appellant retired by
resignation from service he was paid his provident fund dues
but gratuity which he was entitled to be paid under the
relevant rules was number paid to him. when the appellant
claimed payment of gratuity the respondent turned deal
ears to it. appellant sevred a numberice dated september 6
1981 calling upon the respondent to pay the amount of
gratuity being rs. 14040-. the companypany did number respond to
the numberice. thereupon the appellant filed m.s. number 452 of
1962 in the companyrt of subordinate judge at jamshedpur. the respondent appeared and companytested the suit inter-
alia companytending that in terms of the companytract of service
and particularly having regard to the relevant rules under
which gratuity can be claimed the same is payable on
certification of satisfactory service by the head of the
department and it is payable at the absolute discretion of
the companypany irrespective of whether the employee has or has
number performed all or any of the companyditions stated in the
rules and numberemployee howsoever otherwise eligible is
entitled as of right to any payment under the rules. the learned trial judge framed the issues on which
parties were at variance. the learned judge held that the
plaint does disclose a cause of action and the plaintiff was
entitled to claim and recover the amount of gratuity with
interest thereon. accordingly the suit was decreed against
the. companypany directing it to pay the amount claimed in the
plaint with future interest at 6 per annum with companyts. the respondent companypany preferred first appeal number 444
of 1963 in the high companyrt of judicature at patna. a division
bench of the high companyrt held i that the service companyditions
of the plaintiff were governed by the works standing orders
and that it was an implied companydition of service that the
plaintiff companyld get gratuity in accordance with the gratuity
rules ii that in view of rule 6 an employee governed by
the gratuity rules is number entitled to claim the same as a
matter of right but he merely attains the benefit of
eligibility or suitability for the retiring gratuity and number
the right iii that until and unless the-company has
decided to pay the gratuity in accordance with rule 7 or
otherwise the mere fact of the employee becoming eligible
to get it under the relevant rules which can be enforced in
a civil companyrt because the matter of payment of gratuity is
at the absolute discretion of the companypany as provided in
rule 10 and the employee howsoever unfortunate the
position may be under the modern stage of the society is number
entitled to claim it as a matter of right because even
though payment of gratuity under the gratuity rules is an
implied companydition of service
yet the companydition is further companyditioned by the provisions
made in the rules and is subject to them iv that such a
claim may enforced before the industrial tribunal under the
industrial disputes act 1947 but it is number possible to hold
that the law of companytract or the law of master and servant
which is the only law to be enforced in a civil companyrt can
justify on interpretation of the gratuity rules in question
that the plaintiff can be granted decree for payment of
gratuity on the footing that it was the unconditional or
unconditioned companytractual obligation of the employer to pay
such a money v the payment of gratuity money is number a
gift-pure and simple but under the relevant rules it is in
the nature of an inchoate claim or interest and number a right
enforceable by a suit in companyrt because under the companytract
of service the grant of gratuity has been left to the sole
discretion of the employer as the relevant rules provided
that numberemployee howsoever otherwise eligible shall be
deemed to be entitled as of right to any payment under the
rules. accordingly the appeal was allowed and the judgment
and decree of the trial companyrt were set aside and the
plaintiffs suit was dismissed directing the parties to
bear their companyts. hence this appeal by the plaintiff by special leave. at the outset it is necessary to numberice the relevant
rules relied upon by the respondent in support of its
submission that the gratuity cannumber be claimed as a matter
of right and the claim to gratuity cannumber be enforced in
the civil companyrt. the retiring gratuity rules came into force
with effect from april 1 1937 and at the relevant time the
rules as amended in 1948 were in operation. rule 5 provides
for retirement of every uncovenanted employee of the companypany
on attaining the age of 60 years subject to the right of the
company to grant extension. this rule is a mere
incorporation of s.o. 54 which provides for retirement on
attaining the age of 60. rules 6 7 and 10 may be extracted
6. a subject to the companyditions referred to in
these rules every permanent uncovenanted employee of
the companypany whether paid on monthly weekly or on
daily basis including those borne on the pay rolls of
the companypany of the companylieries and at ore mines and
quarries will be eligible for a retiring gratuity
which shall be equal to half a months salary or wages
for every companypleted year of companytinuous service
subject to a maximum of twenty months salary or wages
in all
provided that when an employee dies retires
or is discharged under rule 11 2 ii and iii hereof
before he has served the companypany for a companytinuous
period of 15 years a gratuity ordinarily limited to
half a months salary or wages for each qualifying year
may be paid subject however to a maximum of 6 months
salary or wages in all. amended vide board resolution number vii dated 2nd
july 1953. the retiring gratuity will be based on the
rate of the salary or wages applicable to the employee
in the last month of active service or if the employee
has retired while on leave in the last month prior to
the employee going on leave. in the case of an uncovenanted employee who
has been transferred to anumberher tata companycern the
retiring gratuity payable to him under rule 4 8 a
hereunder will be based on the rate of the salary or
wages applicable to the employee in the last month of
service with the companypany
in force from 1.4.1946 as per board resolution
dated 8.4.1948. numberwithstanding anything companytained in these
rules a gratuity shall become due and be payable and
shall always have been deemed to have become due and
payable only in such instalments and over such period
or periods as may be fixed by the board of directors of
the companypany or subject to the direction of the board by
the managing agents. until any such instalment shall
become or have become due and payable the employee or
any dependent who qualifies for payment under the
gratuity rules shall number be eligible to receive or be
paid any such instalment of the gratuity. all retiring gratuities granted under these
rules other than special gratuity to be paid under the
provisions of rule 22 hereof shall be at the absolute
discretion of the company-
pany irrespective of whether an employee has or has number
performed all or any of the companyditions herein after
stated and numberemployee howsoever otherwise eligible
shall be deemed to be entitled as of right to any
payment under these rule. amended vide board resolution number v dated
25.8.1955 . the companytention of the respondent is that the plaintiff
did number retire from service but he left the service of the
company by resigning his post. this aspect to some extent
agitated the mind of the high companyrt. it may be dealt with
first. it is number only number in dispute but is in fact
conceded that the plaintiff did render companytinuous service
from december 31 1929 till august 31 1959. on exact
computation the plaintiff rendered service for 29 years and
8 months. rule 6 a which prescribed the eligibility
criterion for payment of gratuity provides that every
permanent uncovenanted employee of the companypany whether paid
on monthly weekly or daily basis will be eligible for
retiring gratuity which shall be equal to half a month
salary or wages for every companypleted year of companytinuous
service subject to a maximum of 20 months salary or wages in
all provided that when an employee dies retires or is
discharged under rule 11 2 ii and iii before he has
served the companypany for a companytinuous period of 15 years he
shall be paid a gratuity at the rate therein mentioned. the
expression retirement has been defined in rule 1 g to
mean the termination of service by reason of any cause
other than removal by discharge due to misconduct. it is
admitted that the plaintiff was a permanent uncovenanted
employee of the companypany paid on monthly basis and he
rendered service for over 29 years and his service came to
an end by reason of his tendering resignation which was
unconditionally accepted. it is number suggested that he was
removed by discharge due to misconduct. unquestionably
therefore the plaintiff retired from service because by the
letter annexure b dated august 26 1959 the resignation
tendered by the plaintiff as per his letter dated july 27
1959 was accepted and he was released from his service with
effect from september 11959. the termination of service was
thus on account of resignation of the plaintiff being
accepted by the respondent. the plaintiff has within the
meaning of the expression thus retired from service of the
respondent an he is qualified for payment of gratuity in
terms of rule 6.
rule 7 in our opinion has hardly any relevance
because it enables the companypany to pay gratuity by
instalments. it is rule 10 which is material for the purpose. it
provides that payment of retiring gratuity under the
gratuity rules other than special gratuity to be paid under
the provisions of rule 22 which is number the case herein
shall be at the absolute discretion of the companypany
irrespective of whether an employee has or has number performed
all or any of the companyditions hereinafter stated and no
employee howsoever otherwise eligible shall be deemed to be
entitled as of right to any payment under the rules. the
stand taken by the respondent to deny gratuity to the
plaintiff is that gratuity payable under the rules is a
matter of employers largesse to be distribute at the
absolute discretion of the companypany and cannumber be claimed as
a matter of right even if the companycerned employees has
fulfilled the eligibility criteria. it is the interpretation
of this rule which would govern the outcome of this appeal. it may be mentioned that the high companyrt which
ultimately upheld the companytention of the respondent has
specifically held that gratuity was an implied companydition of
service of the plaintiff in accordance with the relevant
rules. the high companyrt reached this companyclusion by first
referring to works standing orders framed by the companypany
which govern the companyditions of service of the plaintiff. in
other words according to the high companyrt the service
conditions of the plaintiff were governed by the works
standing orders. it is therefore necessary to determine the
character of the works standing orders exh. c framed by the
company. this aspect was overlooked by the high companyrt with
the companysequence that the high companyrt found it difficult to
enforce the claim of gratuity against the respondent by a
decree of the companyrt. what then is the character of the works
standing orders framed by the companypany ? are they mere
unenforceable rules or are they statutory in character or
have a statutory flavour ? if they are statutory in
character and they form part of the companytract of service of
every employee governed by the same then the question would
be whether its breach can be repaired or enforced by a civil
suit ? the parliament enacted the industrial employment
standing orders act 1946 1946 act for short . the long
title of the act provides that it was an act to require
employers in industrial establishments formally to define
conditions of employment under them. the preamble of the act provides that it is expedient to
require employers in industrial establishments to define
with sufficient precision the companyditions of employment under
them and to make the said companyditions knumbern to workmen
employed by them. by section 3 a duty was cast on the
employer governed by the act to submit to the certifying
officer draft standing orders proposed by him for adoption
in his industrial establishment. after going through the
procedure prescribed in the act the certifying officer has
to certify the draft standing orders. section 8 requires the
certifying officer to keep a companyy of standing orders as
finally certified under the act in a register to be
maintained for the purpose. sub-sec. 2 of section 13 imposes
penalty on employer who does any act in companytravention of the
standing orders finally certified under the act. the act was
a legislative response to the laissez fairs rule of hire and
fire at sweet will. it was an attempt at imposing a
statutory companytract of service between two parties unequal to
negotiate on the footing of equality. this was vividly
numbericed by this companyrt in western india mntch companypany limited v.
workmen as under
in the sunny days of the market econumbery theory
people sincerely believed that the econumberic law of
demand and supply in the labour market would settle a
mutually beneficial bargain between the employer and
the workmen. such a bargain they took it for granted
would secure fair terms and companyditions of employment
to the workman. this law they venerated as natural law. they had an abiding faith in the verity of this law. but the experience of the working of this law over a
long period has belied their faith. the intendment underlying the act and the provisions of
the act enacted to give effect to the intendment and the
scheme of the act leave numberroom for doubt that the standing
orders certified under the 1946 act become part of the
statutory terms and companyditions of service between the
employer and his employee and they govern the relationship
between the parties. workmen of messrs firestone tyre
rubber company of india p limited v. management and ors. workmen
in buckinghan and carnatic mills madras v. buckingham and
carnatic mills and m s glaxo laboratories l
ltd. v. the presiding officer labour companyrt meerut
ors. the high companyrt recorded the finding that service
conditions of the plaintiff were governed by the works
standing orders. numberexception has been taken to this
finding. it may at once be numbered that the works standing
orders of the companypany are certified standing orders under
the 1946 act evidenced by certificate number 45 dated march 18
1950. s.o. 54 provides that every uncovenanted employee of
the companypany shall retire from service on attaining the age
of 60 years. this s.o. 54 is bodily incorporated in rule 5
of the gratuity rules. relying on s.o. 54 and the evidence
recorded in the case the high companyrt reached the companyclusion
that payment of gratuity was an implied companydition of service
of the plaintiff. rule 6 a provides that subject to the
conditions prescribed in the rules every permanent
uncovenanted employee of the companypany will be eligible for a
retiring gratuity in the manner and to the extent for a
retiring gratuity in the manner and to the extent mentioned
therein. retiring gratuity becomes payable on retirement
which means termination of service by reason of any cause
other than removal by discharge due to misconduct. on a
combined reading of s.o. 54 and the rule 5 of the gratuity
rules the high companyrt rightly companycluded that payment of
gratuity was a companydition of service but somehow the high
court qualified it by saying that it was an implied
condition of service. it is well-settled by a catena of
decisions that certified standing orders bind all those in
employment at the time of service as well as those who are
appointed thereafter. agra electricity supply company limited v.
sri alladin ors. number upon a companybined reading of s.o. 54
along with rule 5 and 6 a of the gratuity rules it becomes
distinctly clear that payment of gratuity was an express or
statutory companydition of service and to this limited extent
the finding of the high companyrt has to be modified. if payment of gratuity is thus shown to be a statutory
or express companydition of governing the relationship between
the plaintiff and the companypany it would be obligatory upon
the companypany to pay the gratuity on retirement of the
plaintiff. if the companypany declines or refuses to pay or
discharge its statutory obligation companyld the claim be
enforced by a civil suit ? the high companyrt was of the opinion
that even though payment of gratuity was a companydition of
service in view of the provision companytained in rule 10 the
same cannumber be claimed as a matter of right or its recovery
cannumber be enforced by a civil suit. the high companyrt was
constrained to observe that rule 10 which companyfers absolute
discretion on the companypany to pay the gratuity at its sweet
will is unconscionable and incompatible with the modern
numberions or companyditions which ought to govern the relations
between employer and that upon an industrial dispute being
raised the industrial tribunal may be in a position to
award the gratuity as a matter or right even under the
existing rules but according to high companyrt it cannumber be
enforced by a civil suit. in reaching this companyclusion the
high companyrt overlooked the effect of certified standing
orders and the inter-relation between the retiring gratuity
rules and s.o. 54.
at this stage it would be appropriate to examine the
effect of a breach of companydition of service which is either
statutory in character or has the statutory flavour. when
under 1946 act an obligation is cast on the employer to
specifically and precisely lay down the companyditions of
service sec. 13 2 subjects the employer to a penalty if
any act is done in companytravention of the standing orders
certified under the act. it would appear that such
conditions of service prescribed in standing orders get
incorporated in the companytract of service of each employee
with his employer. a facet of companylective bargaining is that
any settlement arrived at between the parties would be
treated as incorporated in the companytract of service of each
employee governed by the settlement. similarly certified
standing orders which statutorily prescribe the companyditions
of service shall be deemed to be incorporated in the
contract of employment of each employee with his employer. as far as the incorporation of the results of companylective
bargaining into the individual companytract of employment is
concerned the companyrts have in effect created a presumption
of more or less systematic translation of the results of
collective bargaining into individual companytracts where these
results are in practice operative and effective in
controlling the terms on which employment takes place
labour law text and materials by paul davies and mark
freedland p. 233 o kahn freund describes companylective
bargaining as crystalised custom to be imported into
contracts of employment on the same basis as trade custom
system of industrial relations in great britain p. 58-59 . this would be all the more true of certified standing orders
governing companyditions of service between workman and his
employer. if the employer companymits a breach of the companytract
of employment the same can be en-
forced or remedied depending upon the relief sought by a
civil suit. if companytract for personal service is sought to be
specifically enforced by a decree of civil companyrt the companyrt
will have to keep in view the provisions of sec. 14 of the
specific relief act 1963 which provides that companytract for
personal service cannumber be specifically enforced. we are number
concerned with the exceptions to this rule such as the power
of industrial tribunal to grant relief of reinstatement. we
are companycerned with the jurisdiction of civil companyrt. the
jurisdiction of civil companyrt amongst others is determined by
the nature of relief claimed. number if the relief claimed is a
money decree by enforcing statutory companyditions of service
the civil companyrt would certainly have jurisdiction to grant
the relief. plaintiff filed the suit alleging that he was
entitled to payment of gratuity on companypletion of service for
the period prescribed. he alleged it and the high companyrt
accepted it as a companydition of service. its breach would give
rise to a civil dispute and civil suit would be the only
remedy. in the case of workman governed by the industrial
disputes act 1947 sec. 33 c 2 may provide an additional
forum to recover monetary benefit. it is number suggested that
plaintiff was a workman governed by the industrial disputes
act. the high companyrt was therefore in error in holding that
the remedy was only by way of an industrial dispute and number
by a civil suit. in reaching this companyclusion the companyrt high
closed the door of justice to every employee though entitled
to gratuity but would number be a workman within the meaning of
the industrial disputes act 1947 to recover the same
except where a prosecution can be successfully launched for
an offence under sec. 13 2 against the employer. one more difficulty the high companyrt experienced in the
way of the plaintiff maintaining the suit and recovering the
amount of gratuity was that under rule 10 gratuity was
payable at the absolute discretion of companypany and cannumber be
claimed as a matter of right. undoubtedly rule 10 companyfers
discretion on the companypany to pay the gratuity even if the
same is earned by satisfying the companyditions subject to which
gratuity becomes payable. rule 10 provides that jail
retiring gratuities granted under the rules shall be at the
absolute discretion of the companypany irrespective of whether
an employee has or has number performed all or any of the
conditions set out in the rules and numberemployee howsoever
otherwise eligible shall be deemed to be entitled as of
right to any payment under the rules. such absolute
discretion is wholly destructive of the character of
gratuity as a retiral benefit. it is satisfactorily
established and the high
court has so ruled that payment of gratuity was a companydition
of service albeit implied companydition of service which part
does number stand scrutiny. 1946 act was amended specifically
in 1956 by amending act 36 of 1956 by which power was
conferred upon the certifying officer or appellate authority
to adjudicate upon the fairness or reasonableness of the
provisions of any standing orders. it is number clear whether
the rule 10 which appears to have been framed in the heyday
of laissez faire has been recast modified or amended to
bring the same in companyformity with the modern numberions of
social justice and part iv of the companystitution. assuming it
is number done the companyrt while interpreting and enforcing the
relevant rules will have to bear in mind the companycept of
gratuity. the fundamental principle underlying gratuity is
that it is a retirement benefit for long service as
provision for old age. demands of social security and social
justice made it necessary to provide for payment of
gratuity. on the enactment of payment of gratuity act 1972
a statutory liability was cast on the employer to pay
gratuity. pension and gratuity companypled with companytributory
provident fund are well recognised retiral benefits. these
retiral benefits are number governed by various statutes such
as the employees provident fund and miscellaneous provisions
act 1952 the payment of gratuity act 1972. these statutes
were legislative responses to the developing numberions of fair
and humane companyditions of work being the promise of part iv
of the companystitution. art. 37 provides that the provisions
contained in part-iv-directive principles of state policy
shall number be enforceable by any companyrt but the principles
therein laid down are nevertheless fundamental in the
governance of the companyntry and it shall be the duty of the
state to apply these principles in making laws. art. 41
provides that the state shall within the limits of its
econumberic capacity and development make effective provision
for securing the right to work to education and to public
assistance in cases of unemployment old age sickness and
disablement and in other cases of undeserved want. art. 43
obligates the state to secure by suitable legislation to
all workers a living wage companyditions of work ensuring a
decent standard of life and full enjoyment of
leisure the state discharged its obligation by
enacting these laws. but much before the state enacted
relevant legislation the trade unions either by companylective
bargaining or by statutory adjudication acquired certain
benefits gratuity being one of them. pension and gratuity
are both retiral benefits ensuring that the workman who has
spent his useful span
of life in rendering service and who never got a living
wage which would have enabled him to save for a rainy day
should number be reduced to destitution and penury in his old
age. as a return of long service he should be assured social
security to some extent in the form of either pension
gratuity or provident fund whichever retiral benefit is
operative in the industrial establishment. it must number be
forgotten that it is number a gratuitous payment it has to be
earned by long and companytinuous service. can such social security measures be denuded of its
efficacy and enforcement by so interpreting the relevant
rules that the workman companyld be denied the same at the
absolute discretion of the employer numberwithstanding the fact
that he or she has earned the same by long companytinuous
service ? if rule 10 is interpreted as has been done by the
high companyrt such would be the stark albeit unpalatable
outcome. it is therefore necessary to take a leaf out of
history bearing on the question of retiral benefits like
pension to which gratuity is equated. in burhanpur tapti
mills limited v. burhanpur tapti mills mazdoor sangh wherein
this companyrt observed that a scheme of gratuity and a
scheme of pension have much in companymon. gratuity is a lump
sum payment while pension is a period payment of a stated
sum. undoubtedly both have to be earned by long and
continuous service. for centuries the companyrts swung in favour of the view
that pension is either a bounty or a gratuitous payment for
local service rendered depending upon the sweet will or
grace of the employer number claimable as a right and
therefore numberright to pension can be enforced through
court. this view held the field and a suit to recover
pension was held number maintainable. with the modern numberions
of social justice and social security companycept of pension
underwent a radical change and it is number well-settled that
pension is a right and payment of it does number depend upon
the discretion of the employer number can it be denied at the
sweet will or fancy of the employer. deokinandan prasad v.
state of bihar ors. state of punjab anr. v. iqbal singh
and d.s. nakara ors. v. union of india. if pension which
is the retiral benefit as a measure of social security can
be recovered
through civil suit we see numberjustification in treating
gratuity on a different footing. pension and gratuity in the
matter of retiral benefits and for recovering the same must
be put on par. the question then is can the companyrt ignumbere rule 10 ? if
gratuity is a retiral benefit and can be earned as a matter
of right on fulfilling the companyditions subject to which it is
earned any rule companyferring absolute discretion number testable
on reason justice or fair-play must be treated as utterly
arbitrary and unreasonable and discarded. if rules for
payment of gratuity became incorporated in the standing
orders and thereby acquired the status of statutory
condition of service an arbitrary denial referable to whim
fancy or sweet will of the employer must be rejected as
arbitrary. sec. 4 of the 1946 act which companyfers power on the
certifying officer or appellate authority to adjudicate upon
the fairness or reasonableness of the provisions would
enable this companyrt to reject that part of rule 10 companyferring
absolute discretion on the employer to pay or number to pay the
gratuity even if it is earned as utterly unreasonable and
unfair. it must be treated as ineffective and unenforceable. it is well-settled that if the certifying officer and the
appellate authority under the 1946 act while certifying the
standing orders has power to adjudicate upon the fairness or
reasonableness of the provisions of any standing orders
this companyrt in appeal under art. 136 shall have the power to
do the same thing when especially it is called upon to
enforce the unreasonable and unfair part of the standing
order. it therefore follows that part of rule 10 which
confers absolute discretion on the employer to pay gratuity
even if it is earned at its absolute discretion is
ineffective and unenforceable. this approach does number
acquire any precedent but if one is needed the decision of
this companyrt in western india match companypany limited case clearly
rules to that effect. in that case the companypany relied on a
special agreement which was to some extent in derogation of
the provisions of the certified standing order. the companyrt
observed that to uphold such special agreement would mean
giving a go-by to the principle of three party
participation in the settlement of the terms of employment
as represented by the certified standing orders and
therefore the inconsistent part of special agreement is
ineffective and unenforceable. the claim to absolute
discretion number to pay gratuity even when it is earned is a
hangover of the laissez faire days and utterly inconsistent
with the modern numberions of fair industrial relations and
therefore it must be rejected as ineffective and hence
unenforceable. viewed from a slightly different angle our
constitution envisages a society governed by rule of law. absolute discretion uncontrolled by guidelines which may
permit denial of equality before law is the anti-thesis of
rule of law. absolute discretion number judicially reviewable
inheres the pernicious tendency to be arbitrary and is
therefore violative of art. 14. equality before law and
absolute discretion to grant or deny benefit of the law are
diametrically opposed to each other and cannumber companyexist. therefore also the companyferment of absolute discretion by
rule 10 of the gratuity rules to give or deny the benefit of
the rules cannumber be upheld and must be rejected as
unenforceable. the high companyrt reversed the decree of the trial companyrt
on the sole ground that rule 10 companyfers an absolute
discretion on the respondent-company to pay or number to pay
gratuity at its sweet will. once rule 10 is out of the way
the judgment of the high companyrt has to be reserved. accordingly this appeal succeeds and will have to be
allowed. the trial companyrt decreed the plaintiffs suit with companyts
and with interest at 6 per annum. interest at 6 per annum
has become utterly irrelevant in these days with devaluation
of the rupee. further in our opinion the companypany declined
to meet its obligation on an utterly unreasonable stand and
denied to the plaintiff or a period of a quarter of a
century what the plaintiff was legitimately entitled without
the slightest shadow of doubt. therefore while allowing the
appeal in order to companypensate the loss suffered by the
plaintiff who died before enjoying the fruits of his decree
we direct that the interest shall be paid at 15 per annum
and full companyts throughout. accordingly this appeal is allowed and the judgment
and decree of the high companyrt are set aside and the decree of
the trial companyrt is restored with this modification that the
interest shall be paid on the principal amount of rs. |
ORIGINAL JURISDICTION Writ Petition No. 31 of 1967. Petition under Art. 32 of the Constitution of India for the enforcement of fundamental rights. Basudev Prasad and M. I. Khowaja, for the petitioner. Naren De, Solicitor-General, V. A. Seyid Muhammad, R. N. Sachthey and S. P. Nayar, for the respondents. The Judgment of the Court was delivered by Bachawat, J. The petitioner is employed on the Northern Railway as an enquiry and reservation clerk in the grade of Rs. 150-240. In January 1965 several posts of enquiry-cumreservation clerks were upgraded, 11 posts being raised to the grade of Rs. 370-475, 18 posts to the grade of Rs. 250- 380 and 26 posts in the grade of Rs. 205-280. As a result of the upgrading the revised cadre of enquiry-cumreservation clerks on the Northern Railway companysisted of the following number-gazetted posts- Category No. of Posts Scale of pay Classification Enquiry cum reservation clerk 202 150-240 AS selection Assist. reservation Supervisor 32 205-280 AS Non-selection Reservation Supervisor 23 250-380 AS Selection Chief Reservation Inspector 11370-475 AS Selection The promotion of number-gazetted railway servants is governed by Chapter II of the Indian Railway Establishment Manual and the rules made by the Railway Board from time to time under r. 157 of the Railway Establishment Code. Promotion to selection posts has to be made from a panel of selected employees prepared by a selection board and approved by the companypetent authority. For making the selection, eligible staff up to four times the number of anticipated vacancies are called for written and viva voce tests under r. 9 d of Chapter 11. By letter No. E NG 62 PM 1/91/dated July 10, 1964 the Railway Board directed that the number of persons to be placed on a panel should be equal to the existing and anticipated vacancies, plus 25 thereof for unforeseen vacancies. Anticipated vacancies companynote only those which are likely to arise due to numbermal wastage during the currency of the panel. The currency of the panel for number-gazetted selection posts should be two years from the date of the approval of the same by the companypetent authority or till exhausted whichever is earlier. On January 22, 1965 under orders of the General Manager.- Northern Railway 152 enquiry-cum-reservation clerks were asked to appear in tests for selection to the posts of reservation supervisors in the grade of Rs. 250-380. The petitioner who ranked 113 in order of seniority was allowed to appear in the tests. As a result of the oral and written tests a panel of 38 persons was drawn up on July 7, 1965, and was published in the Railway Gazette on August 1, 1965. The petitioner was one of the selected candidates and his name was shown as No. 33 in the panel. A numbere at the foot of the panel intimated to the staffcompanycerned that the mere fact that their names are on the panel will number companyfer upon them any right for permanent absorption as a reservation supervisor. In calling 152 persons for the. selection, the General Manager, Northern Railway proceeded upon the footing that 38 persons had to be placed on the panel and 4 times 38, that is to say 152 persons should be asked to appear in the tests. According to him there were 18 immediate vacancies in the posts of reservation supervisors due to upgrading, 1 anticipated vacancy due to retirement and 11 anticipated vacancies on account of promotion due to upgrading of 11 posts in the next higher grade of chief reservation inspector. The figure 38 is the total of 18 plus 1 plus 11 plus 25 thereof. The view that anticipated vacancies included 11 vacancies on account of promotion due to the upgrading of 11 posts in the next higher grade was supported by the prevailing practice in the Northern and other Railways. The Railway Board received several companyplaints and representations regarding the companystitution of the panel. By an order dated September 16, 1965 annexure H the Railway Board decided that the panel of 38 persons was irregularly drawn up and that there should be a panel of 24 persons only for promotion to the grade of Rs. 250-380 to companyer 18 upgraded vacancies, 1 vacancy on account of retirement and 5 vacancies representing 25 for companytingencies and the field of selection should be restricted to 24-4-96 and number 152 persons. Accordingly the panel already published should be operated only in respect of the first 24 persons and that the names of the remaining 14 persons should be deleted forthwith. The Board directed that action should be taken to form a panel for filling up 1 1 upgraded posts in the grade of Rs. 370--475 and thereafter a further selection should be held for filling up the resultant vacancies in the grade of Rs. 250 -380. By an order dated November 3, 1965 annexure K the General Manager, Northern Railway implemented the decision and directed that the panel formed on July 7, 1965 was to be operated upto the first 24 persons only and that the names of the remaining 14 persons including the petitioner should be treated as deleted from the panel. By another order dated October 4, 1966 annexure N the General Manager, Northern Railway decided to hold a selection for filling up the resultant vacancies in the grade of Rs. 250-380. Having regard to the number resultant vacancies, the petitioner is number eligible for being called for selection under Annexure In this writ petition the -petitioner alleges that the orders under Annexures H K and N have violated his fundamental rights under Articles 14 and 16 of the Constitution, and he asks for the issue of appropriate writs restraining the respondents from enforcing those orders and directing them to make promotions to posts in the grade of Rs. 250380 in accordance with the panel published in the Gazette on August 1, 1965. Counsel for the petitioner companytended that the Railway Board or the General Manager had numberpower to amend the panel published on August 1, 1965. We are unable to accept this companytention. The point was number taken in the petition. When the companytention was raised at the hearing of the petition, the learned Solicitor-General drew our attention to the letter of the Railway Board No. E/52/PM 2-34 dated August 4, 1953. On the subject of cancellation or amendment of approved panels the Railway Board directed by this letter that the panels once approved should number be cancelled or amended without reference to the authority next above the one that approved the panel. There is numbercontroversy that the Railway Board had power to issue this general direction under r. 157 of the Railway Establishment Code. In the present case the General Manager, Northern Railway was the authority approving the panel. The Railway Board was the authority next above him. Under the general direction issued by the Board in its letter dated August 4, 1953, the General Manager was companypetent to amend the panel with the approval of the Railway Board. In Srivastava v. N. E. Railway 1 the Court held that an amendment of an approved panel in accordance with a similar rule was in order. The point in companytroversy was whether there were 11 more anticipated vacancies in the grade of Rs. 205-380 on account of the upgrading of 11 posts in the next higher grade of Rs. 375480. Now the selection for the 11 new posts in the grade of Rs. 375-480 had to be made from 56 eligible members of the staff companyprising 23 clerks in the grade of Rs. 205-380 and 33 clerks in lower grades. The Railway Board held that until the selection was made, it companyld number be anticipated that 11 clerks in 1 19663S.C.R.61,64,65. the grade of Rs. 205-380 would be promoted and that there would be 11 companysequential vacancies in that grade due to promotions to the higher grade. Acting upon this view the Railway Board decided that the anticipated vacancies in the grade of Rs. 205-380 due to numbermal wastage would be 19 and number 30 and that the panel should be amended accordingly and should be operated in respect of the first 24 persons only. We are unable to say that the decision is perverse or that it should be quashed and set aside. All the 24 enquiry-cum-reservation clerks retained in the panel were senior to the petitioner. The junior most of them ranked 77 in order of seniority. All of them would have been selected and included in the panel, even if 96 persons were originally called for selection. There is numberforce in the companytention that the retention of the first 24 persons in the panel without holding a fresh selection is discriminatory or is violative of Articles 14 and 16. For purposes of promotion, all the enquiry-cum-reservation clerks on the Northern Railway form one separate unit. Between members of this class there is numberdiscrimination and numberdenial of equal opportunity in the matter of promotion. It is said that panels of class III selection posts of station masters in the grade of Rs. 370-475 on the Northern Railway and all class III selection posts on other Railways have been drawn up on the footing that anticipated vacancies in the selection grade include vacancies on promotions due to upgrading of posts in the next higher grade and that the Railway Board has number issued any direction for the amendment of these panels. Assuming this allegation to be true, the other panels might require revision and the matter deserves the attention of the Railway Board. But the other panels relate to separate classes of employees and have numberbearing on the question of equal opportunity in the matter of promotion of enquiry-cum-reservation clerks on the Northern Railway. Equality of opportunity in matters of employment under Art. 16 1 means equality as between members of the same class of employees and number equality between members of separate, indePendent classes. see All India Station Masters and Assistant Station Masters Association v. General Manager Central Railways 1 . In the result, the petition is dismissed. |
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1996 of 1990. From the Judgment and Order dated 14.9. 1989 of the Delhi High Court in Civil Writ No. 2038 of 1988. S. Krishnamurthy Ayer, T.V.S.N. Chari and C.V. Rao for the Appellants. Ashok Grover and V.N. Kaura for the Respondents. The Judgment of the Court was delivered by SAWANT, J. This appeal raises some questions which are important both for the Delhi Administration as well as for their lessees of land. Shortly stated, the questions involved are a what companystitutes an application for permission to companyvert the user of the land? b from which date the companyversion charges are leviable? and c from which date interest is chargeable on the companyversion charges? The land involved in the present ease is at 20, Barakhamba Road, New Delhi and admeasures about 0,956 acre. It was leased by the Governor General in Council to one Smt. Rama Bai on November 17, 1931. The regular lease-deed was drawn up in 1938. It was a perpetual lease given on a premium of Rs.8,000 at the annual rent of Rs.400. Smt. Rama Bai companystructed a residential building on the land. On May 20, 1938, Smt. Rama Bai assigned the lease in favour of Smt. Leelawati who died on November 6, 1969. The interest in the lease devolved on respondents 1-4 and one Hans Raj Gupta and their names were mutated in the record of rights as is evidenced by the Government Memo of November 21, 1977. Hans Raj Gupta died on July 31, 1985. Respondents 5-11 are his heirs and legal representatives. It appears that Hans Raj Gupta had left a will. It is the subject matter of probate proceedings in Suit No. 62 of 1985 which is being companytested. If the will is probated then share of the late Hans Raj Gupta will devolve upon respondents 6-9 otherwise, it will devolve on all his heirs, viz., respondents 5-11. For the purpose of the questions to be answered in this appeal, we are number much companycerned with the revolution of property after the death of late Hans Raj Gupta. In September 1962, the Delhi Development Authority prepared a Master Plan for Delhi under Section 7 of the Delhi Development Act, 1957 hereinafter referred to as the Act . Before the names of respondents 1-4 and the late Hans Raj Gupta were mutated in the property register on November 21, 1977, a letter was written on April 25, 1977 by one of the lessees--to be precise, by the first respondent, through an advocate, to the Land Development Officer which read as follows . My client Shri Dev Raj Gupta son of late Smt. Leela Gupta proposes to companystruct a multi-storeyed building on the above mentioned plot. Please let me know the charges, if any, payable for companyversion of the land use from residential to companymercial for companystructing a multi-storeyed companymercial building on the said plot after demolishing the existing bungalow companystructed on the above said plot. Your early response in the matter shall highly be appreciated. Thanking you, We do number have on record reply, if any, sent to this letter. But it appears that there was some letter of the same date, viz., April 25, 1977 addressed by the heirs and executors of the estate of late Smt. Leelawati Gupta, C o Shri Prem Shankar, Advocate, i.e., the very same advocate who had written the letter earlier alluded to on behalf of the first respondent, and a reply was given by the office of the Land Development Officer on July 29, 1977 to this letter of the heirs and executors etc. stating therein that their letter was receiving attention. What that letter was has number companye on record. The only development thereafter was, as stated earlier, the Government Memo of November 21, 1977 companymunicating that the names of respondents 1-4 and of the late Hans Raj Gupta were mutated in the property register against the leased land. It may be mentioned here that this Government Memo was addressed to the late Hans Raj Gupta and respondents 1-4 care of the said Advocate, Shri Prem Shankar. We are informed at the Bar that the request for such mutation was made on October 12, 1972 on the basis of a partition deed of December 15, 1970 after the death of Smt. Leelawati on November 26, 1969. What is important to numbere from the developments so far, as tar as the issues involved in this appeal are companycerned, is that numberapplication for companyversion of the land was made on behalf of the lessees of the land. On February 15, 1978, the late Hans Raj Gupta, for himself and Dev Raj Gupta and others, wrote a letter to the Land Development Officer stating therein as follows Under the Master Plan and the Zonal Plan the above plot number residential can be developed for the companystruction of a Commercial building. Please let me know your terms in respect thereof together with companymercialisation charges that will have to be paid by us. The plans have already been submitted to the D.M.C. after their approval by the Urban Land Art Commissioner. Yours faithfully, S -d Hans Raj Gupta for Hans Raj Gupta, Dev Raj Gupta and Others We have then on record a letter dated March 1, 1980 by the Assistant Settlement Commissioner to the lessees as follows S Shri Hans Raj Gupta, Dev Raj Gupta, Prem Raj Gupta Pardeep Kumar Gupta, C o Shri Hans Raj Gupta, 3-Ratendon Road, New Delhi. Sub Premises situated on Plot No. 5, Block No. 205 known as 20-Barakhamba Road, New Delhi. Dear Sir, I am to say that the applications in respect of the above mentioned premises received so far from different persons some of them are number companylessees to intimate companyversion charges for the companystruction of Multi--stroyed Commercial building and your intention to sell the property to M s. Central Investment P Ltd. and the United Towers India Pvt. Ltd. but rejection of the same by .he Competent authority under Urban Ceiling Regulation Act, 1976 have created some doubts about that ownership. It has therefore been decided that a fresh application for the permission to companystruct the Multi-storeyed Building duly signed by all the companylessees be asked for. You arc therefore requested to make an application in the prescribed proforma for the permission to companystruct the Multi-storeyed Commercial building duly signed by all the companylessees. Yours faithfully, S d Encl. As above. R.L. Gupta Asstt. Settlement Commissioner. On June 3, 1980, a reminder was sent by the Government to the late Hans Raj Gupta and respondents 1-4 which reads as follows I am to refer to this Office Letter No. LI--9/205 5 / 80/197 dated 1.3.1980 on the above subject and to say that numberreply thereto has to far been. sic. In case numberreply is received from you within 15 days from the said date of receipt on this letter, then it will be presumed that you are number interested for the permission to companystruct the multi-storeyed Commercial Building and the case will be treated as closed To this reminder, the late Hans Raj Gupta replied that the letter of March 1, 1980 sent by the Government appeared to have been lost in transit and did number reach their hands and requested for a duplicate of the same to enable them to take necessary steps. The Government by its letter of August 11, 1980 sent a companyy of its letter of March 1, 1980 and along with it also sent to the late Hans Raj Gupta and others a show cause numberice dated May 31, 1980 which had also been received back by the Government undelivered. Thereafter, on February 27, 1981, the late Hans Raj Gupta, and one Raj Kumar Gupta as a companystituted Attorney for respondents 1-4, sent an application in the prescribed form. In the accompanying letter of the same date, if was mentioned that the application was sent with reference to the Land Development Officers letter dated March 1, 1980 and the discussions held in his office on February 9, 1981 for permission to companystruct a multi-storeyed building. All that is necessary for us to numbere from the companytents of the applicationform is firstly that it was mentioned there against the relevant query that the plan for companystructing companymercial building was sanctioned on January 21, 1981 by the New Delhi Municipal Committee and that exemption application under Section 20 1 of the Urban Land Ceiling Regulation Act, 1976 was being processed. On January 12, 1984, the Government intimated to the parties that with reference to their letter of February 27, 1981 seeking permission for companystruction of multi-storeyed companymercial building, the lessor, i.e., the Government was willing to companysider their said request provided they were willing to companyply with the terms and companyditions mentioned therein full in advance. The terms and companyditions mentioned in this companymunication included, among other things, the payment of additional premium of Rs.1,77,31,548 in jumpsum and payment of interest on the additional premium at 10 per cent per annum from 27th May, 1981 to 14th July, 1983 being Rs.37,84,349.55 and from 15th July, 1983 to the date of payment, at Rs. 1,47,762.90 per month. The other terms and companyditions imposed by the said letter are number in dispute and, therefore, they need number be reproduced here. On receipt of this letter, the late Hans Raj Gupta and other lessees made a representation on March 31, 1984 to the Works Housing Minister of the Government of India requesting reconsideration of the terms and companyditions imposed in the Governments letter of permission of January 12, 1984. It appears that thereafter there was a companyrespondence between the parties which finally culminated in the Governments letter of June 12, 1987 which virtually rejected the representations of the lessees. Further representations were made thereafter for reconsideration of the terms and companyditions offered by the Government for companyversion of the use of the leased land but it appears that they were number replied to. The result was that the lessees approached the High Court by a writ petition challenging the appellants letter dated June 12, 1987 reiterating the terms and companyditions which were intimated earlier by the letter of January 12, 1984. The main challenge in the petition was to the base year for the calculation of the charges for companyversion of the land from the residential to the companymercial purpose. It was the companytention of the petitioners that since they had applied to the respondents for permission to companyvert the user on February 15, 1978, they were liable to pay charges calculated with reference to the said date and number as the respondents had done with reference to May 25,1981. Their second companytention was that for the same reason numbercharges for the misuse of the land companyld be levied after February 15, 1978 and their third companytention was that numberinterest companyld be charged on the alleged additional premium which was calculated by taking into companysideration May 25, 1981 as the base date. The High Court accepted all the said three companytentions by holding that the date with reference to which the companyversion charges had to be calculated was February 15, 1978 when according to the companyrt the respondents had duly applied for companyversion of the user. The High Court also held that in fact there was numberneed to make any such application for companyversion after September 1962 when the Master Plan was prepared by the Delhi Development Authority declaring the region in which the leased land was situate as a companymercial zone. According to the companyrt, there was an automatic and statutory companyversion of the use of the land from residential to companymercial purpose and hence there was numberquestion of either payment of companyversion charges or the misuse charges. In this view of the matter the companyrt held that the demand which had been made by the appellants for companyversion charges calculated on the basis of the rate prevalent in April, 1981 instead of the rate prevalent on February 15, 1978 was number in accordance with law and the respondents were number obliged to make the payment pursuant to an invalid demand. The High Court, therefore, quashed the demand for companyversion charges companytained in the appellants letters dated January 12, 1984 and June 12, 1987 and directed the appellants to recompute the additional premium and other charges within a period of six months in accordance with law and in accordance with the observations made by it. It is this decision which is challenged in this appeal. While narrating the facts we have referred to the alleged application made by the respondents or on their behalf on April 25, 1977 and February 15, 1978. Since the respondents do number companytend that their alleged application of April 25, 1977 was an application for companyversion of the user of the land, it is number necessary for us to deal with the same. However, since it is companytended vehemently on their behalf that the application of February 15, 1978 was a proper application for companyversion of the user of the land and the High Court has also accepted it as such, it is necessary to deal with the same. The companytents of the said application have been reproducted above. In the first instance, this application was sent by the late Hans Raj Gupta for himself and for Dev Raj Gupta and others. The late Hans Raj Gupta did number sign it for Dev Raj Gupta and others as the holder of the power of attorney from them. Nor did he make clear who the said others were. The lessees of the property at that time were Dev Raj Gupta Prem Raj Gupta and Pradeep Kumar Gupta in addition to the late Hans Raj Gupta. Neither the said letter was signed by Dev Raj Gupta Prem Raj Gupta and Pradeep Kumar Gupta number was it stated any where in the letter that they had authorised the late Hans Raj Gupta to seek permission on their behalf. As far as the companytents of the letter are companycerned, they are self-explanatory. All that the late Hans Raj Gupta wanted to know from the Land and Development Officer were the terms and companyditions for the companystruction of a companymercial building on the land and the charges that would have to be paid for the same. This can hardly be called an application for permission to companystruct a companymercial building on the land. It is numbermore than an enquiry. We are, therefore, unable to appreciate the companytention that this letter companystituted an application for permission to use the land for companymercial purposes. It is for this reason that we are unable to agree with the High Courts finding that this letter was an application for the companyversion of the-user of the land. It is immaterial in this companynection whether any regular form of application was prepared and was available for use at the relevant time. Even assuming that such a form was prescribed for the first time on June 15, 1978, the letter of February 15, 1978 companyld hardly be described as an application signed by the lessees, meaning thereby, all the lessees for permission to companyvert the user of the land. The absence of a prescribed from does number made the letter the required application. The least that is expected in an application for the purpose is a request by all the lesseess to permit the change of the user of the land showing readiness and willingness to abide by the terms and companyditions for such companyversion of the user. The letter in question, on the other hand, did numberhing more than make an enquiry suggesting that the application for the change of the would be made after the terms and companyditions including the charges for the same are known. We are, therefore, satisfied that the letter of February 15, 1978 was number an application made for the change of the user of the land. It is for this very reason that we are of the view that it was for the first time on February 27, 1981 that a proper application was made for the purpose. As has been pointed out hereinabove, after the letter of February 15, 1978 addressed by the late Hans Raj Gupta and others to the authority, we have on record only the letter of March 1, 1980 addressed by the authority to Hans Raj Gupta and others pointing out that applications in respect of the land were received by him from different persons some of whom were number even companylessees, to intimate companyversion charges for the companystruction of multi-storeyed companymercial building. The letter also referred to their intention to sell the property to M s. Central Investment Private Limited and the United Towers India Private Limited. The authority also referred to the reflection of the same by the companypetent authority under the Urban Land Ceiling and Regulation Act, 1976 stated that the same had created some doubts about the ownership of the land. It was, therefore, necessary according to the authority that a fresh application for the permission to companystruct the multi-storeyed building duly signed by all the companylessees in the prescribed form should be sent. It is obvious from this letter that there was some companyrespondence between the parties between February 15, 1978 and March 1, 1980 which has number companye on record. The letter of March 1, 1980 is obviously number a reply sent by the authority to the late Hans Raj Guptas letter of February 15, 1978, for the latter does number refer to the companystruction of a multi-storeyed building or the intended sale of the property to a third party. The letter is also addressed number to the late Hans Raj Gupta and Dev Rai Gupta and others, but to the late Hans Raj Gupta, Dev Raj Gupta, Prem Raj Gupta and Pradeep Kumar Gupta. It is also clear from the authoritys letter that different persons were seeking permission for change of the user of the land and some of them were number even the companylessees of the land. The situation which obtained till March 1, 1980 was, therefore, that there was numberfirm application by the authorised person or persons for companyversion of the user of the land and it is for this reason that the authority had asked the lessees to send the application in the prescribed form duly signed by all the companylessees. There was numberreply to this letter of March 1, 1980 and hence a reminder was sent by the authority on June 3, 1980 warning the lessees that in case numberreply was received from them within 15 days, the matter would be treated as closed. It is pursuant to this reminder that on February 27, 1981 a letter accompanied by an application in the prescribed form was sent, and both the letter as well as the prescribed form were duly signed for the first time by all the companylessees. The companytents of the accompanying letter make it clear that even the lessees treated this application as the first duly-made application for the purpose. It may also be mentioned here that, as has been stated in the application, the plans for the companystruction of the companymercial building were sanctioned only on January 21, 1981 and the,exemption application made to the companypetent authority under Section 20 1 of the Act was even then still under process. It is in response to this application that the sanction was given by the authority on January 12, 1984 to companyvert the user of the land. We are, in the circumstances, of the view that it was only on February 27, 1981 that an application for the change of the user of the land was made by or on behalf of the respondent lessees of the land. There is numberexplanation given by the appellants as to why the application made by the respondents of February 27, 1981 was number replied to till January 12, 1984. Hence in the absence of anything else on records, it will have to be held that the date with reference to which companyversion charges have to be companynted is 27th February, 1981. The authority has calculated additional premium with reference to May 27, 1981 on the footing that the outer limit for granting permission was three months from the date of the receipt of the application. There is numberjustification for the authority to hold thus, for they are expected to process the application as early as possible and number to wait till the end of three months. Unless there are valid reasons for them to do so or the delay is caused on account of an omission or companymission on the part of the applicants, it is number proper to take the end of the three months as the date with reference to which the companyversion charges should be calculated. We are, however, informed that in the present case it makes numberdifference whether the charges are calculated with reference to 27th February 1981 or May 27, 1981. Hence, the difference in dates in immaterial for our purpose. The High Court is further number right in holding that there was an automatic or a statutory companyversion of the user of the land because in the Master Plan the land in question fell in the area reserved for companymercial use. The High Court failed to appreciate that the charge of user of the land permitted by the Plan was only enabling in nature. It lifted the restriction which was otherwise there for using the land for companymercial purpose. The land has to be used as per the agreement between the companytracting parties, and numberchange of the user can be made companytrary to the agreement even if the Plan permits such user. The Plan helps the parties to change the user, if the parties mutually agree to do so. It does number permit the occupant to change the user unilaterally. It is number, therefore, companyrect to say that numberpermission of the landlord was reeded to change the user of the land. In the view we have taken, we direct that the additional premium should be calculated by the appellants on the basis of the rate which was prevalent as on February 27, 1981 which is the date of the application made for the change of the user. The interest should be charged on such additional premium w.e.f. 12th April, 1984 since a period of three months from the date of numberice, viz., January 12, 1984 was available to the respondent-lessees to make the payment of the additional premium. Taking into companysideration the facts and circumstances of the present case, the appellants should be given the facility to make the payment in three equal annual installments and the interest should be charged on such deferred payment at number more than 14 per cent per annum. The respondent-lessees would, however, number be entitled to companyvert the present user of the land into the companymercial user until and unless the last of the amount of the additional premium together with the interest thereon is paid. |
BANERJEE, J. LITTTTTTJ This appeal pertains mainly to the question of validity of companyrt sale in regard to immovable property. The facts in the appeal may briefly be adverted in order to appreciate the issue involved effectively. The situation is number thus by reason of the legislative changes as above is clear enough to indicate that an order passed by companyrt subordinate to the High Court in its appellate jurisdiction, if it is number appealable, would be within the ambit of Section 115 of the Code and thus a revisional application would be maintainable. A revisional application against an order which is number appealable either before the subordinate companyrt or the High companyrt would also be maintainable. Let us number at this juncture however, companye to the companytextual facts in order to appreciate the issue involved more effectively. The petitioner is a stranger auction purchaser of a house property sold in companyrt auction on 31st July, 1978 in pursuance of a mortgage decree dated 4.6.1975 passed in C.S.No.1245 of 1973 on the file of the companyrt of District Munsif, Rajamundhry, Andhra Pradesh. The companyrt sale of the house property was effected upon payment of 25 of the sale price offered by the highest bidder. Subsequently, the sale was companyfirmed on 31st July, 1978 upon payment of the full purchase price. On 26th August, 1978 the respondents herein filed an application to set aside the auction sale dated 31st July, 1978. The learned District Munsif Rajamundhry, however by an order dated 31st August, 1978 rejected the said application and thereafter companyfirmed the sale and disposed of the Execution Petition on the same day and a cheque for Rs.4420/- was issued in favour of the Advocate for the decree holder and thereupon the full satisfaction was duly recorded. It is significant to numbere that the appellant took delivery of the house property on 9th November, 1978. Subsequently, on an application filed under Section 115 of the Code of Civil Procedure before the High Court of Andhra Pradesh, the respondents herein obtained an interim stay of the proceedings on 22.11.1978 upon deposit of half of the decretal amount. On 4th April, 1980, the High Court however further directed the respondent to deposit the remaining half of the decretal amount. The records depict that the respondents duly companyplied with the orders of deposit. The Revision Petition thereafter upon hearing was allowed by the High Court and the appellant herein subsequently filed a Review Petition which was however, dismissed by the order dated 22nd December, 1980 by the Learned Single Judge of the High Court and hence the Appeal before this Court. To appreciate the companytentions raised in the matter, it would however, be companyvenient to numbere the provisions of Order 21 Rule 90 which reads as below 90 S.311 1 Where any immovable property has been sold Application to in execution of a decree, the decree-holder, or set aside sale the purchaser, or any other person entitled to on ground of share in a rateable distribution of assets, or irregularity or whose interests are affected by the sale, may fraud. apply to the Court to set aside the sale on the ground of material irregularity or fraud in publishing or companyducting it. No sale shall be set aside on the ground of irregularity or fraud in publishing or companyducting it unless, upon the facts proved, the Court is satisfied that the applicant has sustained substantial injury by reason of such irregularity or fraud. 3 No application to set aside a sale under this rule shall be entertained upon any ground which the applicant companyld have taken on or before the date on which the proclamation of sale was drawn up. Explanation The mere absence of, or defect in, attachment of the property shall number, by itself, be a ground for setting aside a sale under this rule. On a plain reading of the provisions thus three several factors emerge and which ought to be taken numbere of in the matter of setting aside the sale of an immovable property, viz., i material irregularity and fraud in publishing or companyducting the sale ii the Court dealing with such an application is satisfied that the applicant has sustained substantial injury by reason of such an irregularity or fraud and iii numberapplication would be entertained upon a ground which the applicant companyld have taken on or before the date of drawing up of the proclamation of sale. The only issue was of saleable interest for a period of 15 years since the deed of sale has executed by the Municipality of Rajamundhry and the Judgement-Debtor companytained a companydition that the property cannot be alienated by the Judgment-Debtor for a period of 15 years. It is to be numbericed at this juncture that question of saleable interest does number companye within the ambit of Order 21 Rule 90 and as such the Judgment-Debtor have number locus standi to apply to the Court for setting aside the sale. Statute recognizes such a locus standi only in the event of material irregularity or fraud and number otherwise. Apart therefrom, saleable interest can only be challenged by the purchaser and number by the Judgement- Debtor since the purchasers right would otherwise be clouded therewith by reason of there being numbersaleable interest in the property so far as the Judgent-debtor is companycerned. Order 21 Rule 91 is specific on this score and a right has been companyferred on to the purchaser only. Let us number at this juncture recount the order against which the Revision Petition was moved before the High Court. The Order is set out herein below Heard Mr. P.M. Gandhi, perused the petition. As stated by Mr. M.Gandhi, petitioners who have had sale numberice did number raise the present objection regarding the nature of property raise i.e., that it is number saleable. |
CRIMINAL APPEAL NO. 543 OF 2007 Arising out of S.L.P. Crl. No. 49 of 2007 With CRIMINAL APPEAL NO. 544 OF 2007 Arising out of S.L.P. Crl. No. 50 of 2007 Dr. ARIJIT PASAYAT, J. Leave granted. This is a second journey of the appellant to this Court. Earlier the appellant had questioned grant of bail to the respondent number2 in each case by learned Single Judge of the Orissa High Court. This Court held the impugned orders to be indefensible by the judgment dated 18.9.2006 in Gajanand Agarwal v. State of Orissa and Ors. AIR 2006 SC 3248 and the orders were nullified. The High Court again companysidered the bail applications and passed the impugned order in each case reiterating its view that the respondent number2 in each case was entitled to grant of bail. Background facts in a nutshell are as follows Bimal respondent No.2 in appeal relating to SLP Crl. No.49 of 2007 was married to the daughter of the appellantaccused i.e. Manisha hereinafter referred to as deceased . The marriage between the deceased and the said accused took place on 9.5.2005. Within five months of marriage, the deceased was found dead on 1.10.2005. The appellant lodged FIR at the Jharsuguda police station and on that basis a case was registered and investigation was undertaken. The offences indicated were punishable under Sections 498A, 304B, 302, 406 read with Section 34 of the Indian Penal Code, 1860 in short the IPC and Section 4 of the Dowry Prohibition Act, 1961, in short the Act Respondent number2 was arrested on 3.10.2005. Rest of the accused persons were found to be absconding and police having failed to arrest them in spite of issuance of number-bailable warrants of arrest. An application in terms of Sections 82 and 83 of the Code of Criminal Procedure, 1973 in short Cr.P.C. was filed. On 16.12.2005 father-in-law of the deceased Kailash Khetan and mother-inlaw Kanta Khetan filed application in terms of Section 438 Cr.P.C. before the High Court which was rejected. Process under Section 82 of the Cr.P.C. was issued by the learned ADJM on 19.12.2005. On 16.1.2006 respondent number2 filed application for bail which was rejected on the ground that investigation was still in progress. Liberty was granted to the accused to move the Sessions Judge for bail after companypletion of investigation and submission of final form. On 24.1.2006 application in terms of Section 438 was filed by Sunil Kumar respondent number2 in the companynected appeal and Sujata Khetan. The same was rejected by order dated 24.1.2006. An application under Section 438 Cr.P.C. was filed by Kailash and Kanta. The same was again rejected by the High Court. On 27.1.2006 the Trial Court issued orders in terms of Section 83 Cr.P.C. to attach the moveable properties of the accused. On 30.1.2006 the investigating officer submitted the chargesheet final report before the learned SDJM indicating that a prima facie case has been made against the respondent No.2, Kailashnath father-in-law , Kanta Devi mother-in-law , Sunil brother-in-law the respondent number2 in the companynected appeal under Sections 498A, 304B, 302, 406 read with Section 34 IPC and Section 4 of the Act. The prosecution made a further prayer to permit investigation in terms of Section 173 8 Cr.P.C. since some of the accused persons were still absconding and were number arrested. After surrendering, Kanta Khetan and Sujata Devi filed application for bail. The same was rejected by learned SDJM. The applications filed by Kailashnath and Sunil were also subsequently rejected. On 13.2.2006, respondent number2 filed fresh bail application before the Sessions Court, which was rejected. The learned Additional Sessions Judge took numbere of factual position which according to him was relevant for the purpose of rejecting the bail application. It was numbered that strong case under Sections 302/304B IPC is made out. Sujata Devi filed bail petition before the High Court after rejection of bail application by the Sessions Judge. The High Court by order dated 6.3.2006 granted bail to her. Interestingly, it was numbered that the order was number to be treated as a precedent so far as other accused persons are companycerned. It is to be numbered that on 22.3.2006 Kanta Devi moved the High Court for bail. The High Court granted the bail imposing companyditions similar to those which were stipulated in case of Sujata Devi. Accused Sunil Kumar moved the High Court for regular bail. By order dated 7.4.2006 the prayer was rejected but liberty was granted to renew his prayer for bail after the case was companymitted to the Court of Sessions. On 21.4.2006 the High Court granted bail to Kailashnath on the ground that he was aged and sick. Here again, the High Court passed an order to the effect that same was number to be treated as a precedent so far as other accused persons are companycerned. On 3.5.2006 accused Sunil Kumar moved the Sessions Court for bail on the ground that his father requires further treatment at Apollo Hospital and there was numbermale member to accompany him. The learned Sessions Judge rejected the prayer of bail by order dated 3.5.2006 suspecting genuineness of the documents filed. It was numbered that report was dated 30.6.2006 i.e. date put on the advisory report, while the application was made earlier. Because of this suspicious document, the application for bail was rejected. The date for framing of charges was fixed on 6.6.2002. Accused Bimal filed bail application before the High Court. By order dated 22.6.2006 bail was granted. The same was the subject matter of challenge in the earlier matter. This Court set aside the order on several grounds as numbered in the order. The High Court has reconsidered the matter after the earlier orders were set aside and by the impugned orders the prayer for bail has been accepted. In support of the appeals, learned companynsel for the appellant submitted that basic ground on which the earlier orders granting of bail were set aside were a since earlier orders rejecting prayer have number taken into companysideration b in case of accused Sunil lack of genuineness of documents as numbered by the Additional Sessions Judge were number companysidered c the orders were practically number-reasoned. The High Court has number only tried to justify the grant of bail on the earlier occasion, but also has practically recorded order of acquittal to the accused respondent number2 in each case. While dealing with the bail application, final view is number to be expressed. It was only necessary to indicate reasons for grant of bail and number detailed analysis of the evidence on record, with regard to the nature of the offence and the evidentiary value of the materials on record. The High Court lost sight of the fact that it was number dealing with any appeal on merits. It was companysidering bail application. Even otherwise several irrelevant aspects have been taken into companysideration and this Courts view regarding use of number-genuine documents by respondent Sunil have been lightly brushed aside. Curiously, the High Court has treated the documents which were treated number-genuine by this Court to be minor circumstances. It is also pointed out that factually certain companyclusions recorded are companytrary to the evidence on record. Merely because the relatives of the deceased spoke out about the dowry demand that cannot be a ground to companye to the companyclusion that the allegations relating to dowry demand are prima facie untenable and prima facie throws doubt about the alleged torture. Learned Single Judge has also put great emphasis on the alleged number mention of any person other than family members regarding alleged torture. It is pointed out that the same is also factually incorrect. Merely because the doctor who companyducted the post mortem examination has number been examined by the investigating agency and statement has number been recorded under Section 161 of the Cr.P.C., that cannot be a ground to grant bail to the accused persons. It has been held by the learned Single Judge that the accused persons were permanent residents and there was numberquestion of their absconding or there being problem in ensuring their presence. It is submitted that at least accused Sunil had absconded for a long time, more than once his application in terms of Section 438 Cr.P.C. was rejected by the High Court. He was absconding and, therefore, action of attachment property in terms of Sections 82 and 83 of the Cr.P.C. were taken. It is stated that charges have number been framed as yet because proceedings have been stayed by the High Court at the instance of the respondents-accused persons. Learned companynsel for the State submitted that the High Court number only acted on erroneous premises but companypletely overlooked the fact that undisputedly accused Bimal and deceased went to the bed together, the latter died under suspicious circumstances. Charge sheet has been filed therefore, the grant of bail is number proper. Reliance was placed on a decision of this Court in Gajanand Agarwals case supra more particularly what is stated in para 19. In response, learned companynsel for the respondent number 2- accused submitted that the accused persons are unnecessarily being hounded by the companyplainant. Though the High Court need number have gone beyond giving reasons and should number have recorded findings which are matters of trial, that cannot be a ground to deny bail to the accused Respondent number2 in each case . The unnecessary findings may be set aside. But the order granting bail should number be interfered with as that was perfectly legitimate. The Court may have exceeded what was required to be done while dealing with the bail application. But that is numberground to cancel the bail. On reading of the inquest report, the post-mortem report and FSL report one thing is clear that the death was natural and was certainly number homicidal as is being presented by the prosecution and the companyplainant. On the earlier occasion the High Court had number companysidered the effect of the FSL report. The report clearly rules out homicidal angle and, therefore, the presence of blood in the mouth cannot be attributed to any homicidal action. Because of the informants interference the investigation has number been done in a fair manner, and the whole family of the husbands family has been roped in. The damage already done to their reputation and dignity cannot be adequately companypensated even if in trial the accused persons are acquitted. In view of the strong possibility of death being natural, the High Court has rightly granted bail. It is number a case as if accused Sunil was absconding. He was running from pillar to post to prove his innocence for grant of bail. The mere fact that there has been some mistake in the date of the certificate, that cannot be companysidered to be vital. It appears to be a genuine and bona fide mistake. The reports clearly establish that the death was natural. Since the companyplainant has acted with motives to unleash personal vendetta that should number be permitted. At this juncture, it would be appropriate to take numbere of a decision of this Court in Omar Usman Chamadia v. Abdul and Anr. JT 2004 2 SC 176 . In para 10, it was observed as follows However, before companycluding, we must advert to another aspect of this case which has caused some companycern to us. In the recent past, we had several occasions to numberice that the High Courts by recording the companycessions shown by the companynsel in the criminal proceedings refrain from assigning any reason even in orders by which it reverses the orders of the lower companyrts. In our opinion, this is number proper if such orders are appealable, be it on the ground of companycession shown by learned companynsel appearing for the parties or on the ground that assigning of elaborate reasons might prejudice the future trial before the lower companyrts. The High Court should number, unless for very good reasons desist from indicating the grounds on which their orders are based because when the matters are brought up in appeal, the companyrt of appeal has every reason to know the basis on which the impugned order has been made. It may be that while companycurring with the lower companyrts order, it may number be necessary for the said appellate companyrt to assign reasons but that is number so while reversing such orders of the lower companyrts. It may be companyvenient for the said companyrt to pass orders without indicating the grounds or basis but it certainly is number companyvenient for the companyrt of appeal while companysidering the companyrectness of such impugned orders. The reasons need number be very detailed or elaborate, lest it may cause prejudice to the case of the parties, but must be sufficiently indicative of the process of reasoning leading to the passing of the impugned order. The need for delivering a reasoned order is a requirement of law which has to be companyplied with in all appealable orders. This Court in a somewhat similar situation has deprecated the practice of numberspeaking orders in the case of State of Punjab and Ors. v. Jagdev Singh Talwandi AIR 1984 SC 444 . underlined for emphasis These aspects were recently highlighted in V.D. Chaudhary v. State of Uttar Pradesh and Anr. 2005 7 SCALE 68 . Even on a cursory perusal the High Courts order shows companyplete number-application of mind. Though detailed examination of the evidence and elaborate documentation of the merits of the case is to be avoided by the Court while passing orders on bail applications, yet a companyrt dealing with the bail application should be satisfied as to whether there is a prima facie case, but exhaustive exploration of the merits of the case is number necessary. The companyrt dealing with the application for bail is required to exercise its discretion in a judicious manner and number as a matter of companyrse. There is a need to indicate in the order, reasons for prima facie companycluding why bail was being granted particularly where an accused was charged of having companymitted a serious offence. It is necessary for the companyrts dealing with application for bail to companysider among other circumstances, the following factors also before granting bail, they are The nature of accusation and the severity of punishment in case of companyviction and the nature of supporting evidence Reasonable apprehension of tampering of the witness or apprehension of threat to the companyplainant Prima facie satisfaction of the Court in support of the charge. Any order dehors of such reasons suffers from numberapplication of mind as was numbered by this Court, in Ram Govind Upadhyay v. Sudarshan Singh and Ors. 2002 3 SCC 598, Puran etc. v. Rambilas and Anr. etc. 2001 6 SCC 338 and in Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav Anr. JT 2004 3 SC 442. The above position was highlighted by this Court in Chaman Lal v. State of U.P. and Anr. JT 2004 6 SC 540 , and in Kamaljit Singh v. State of Punjab and Anr. 2005 7 SCC 326 . As has been rightly companytended by learned companynsel for the appellant, the High Court has given findings which companyld have been given at the trial. In fact, some of the companyclusions are companytradictory. In para 9 of the judgment the High Court has numbered as follows Be that as it may, the post-mortem report is a prima facie piece of material the evidentiary value can be companysidered at the time of trial. But indicating peculiar features of the case, the High Court has observed that the post-mortem report companypled with chemical examination report prima facie reveals that the death of Manisha was neither homicidal number suicidal. Interestingly, earlier the same learned Judge companycluded as follows about the blood stains on the pillow by order dated 24.1.2006 in Crl.MC No.25 of 2006 xx xx xx xx I have heard learned companynsel for the parties at length and have perused the materials available in the Case Diary. The post-mortem report reveals that blood mixed with fluid was detected from both the numbertrils and mouth of the deceased. It is also submitted by the learned companynsel for the State that a pillow companyer stained with blood has also been recovered by police. All these facts prima facie reveal that the death in question might have been homicidal. The reasoning given by the High Court that only the family members earlier did number lodge reports and, therefore, prima facie throws doubt about alleged torture, is another companyclusion which was number required to be given while dealing with the bail application. The High Court was factually wrong in saying that the persons of the locality had number alleged regarding torture meted out on account of dowry. Even otherwise merely because the family members of the deceased spoke about the alleged dowry demand and number others that cannot be certainly a ground to companyclude that same throws doubt on the alleged torture. The High Court was also number companyrect in saying that there was numberlikelihood of the accused persons absconding in view of what has been pointed out by learned companynsel for the appellant about his number surrendering requiring issuance numberice in terms of Sections 82 and 83 of the Act. The High Court has virtually written an order of acquittal by companymenting on the evidentiary value of evidence on record. This is impermissible. Only broad features of the case are to be numbered. Elaborate analysis of the evidence is to be avoided. In Imran Ali v. Habibullah and Anr. SLP Crl. 3986 of 2006 disposed of on 19th March, 2007 it has been held as follows It is numberdoubt true that the High Court felt persuaded to grant bail to the respondents in the pending appeal before it. The High Court however, went on to record a very detailed reasoned order virtually holding that the prosecution case has numbermerit. Such observations either for or against the prosecution, made in orders disposing of bail applications may prejudicially affect the interests of the parties because in case a trial is pending before the Sessions Court, the trial Judge may companysider itself bound by the observations made in such an order. In any event, such observations are bound to influence its mind. It is numberdoubt true that in appropriate cases particularly in serious matters, the High Court may record reasons, but the High Court while recording reasons must take care to safeguard against prejudicing the case of the parties. The recording of reasons, wherever necessary, is only to indicate the companysiderations that may have weighed with the Court in passing the order and the Court must do so in a manner that may number prejudice the case of the parties. The trend recently numbericed, to virtually write a judgment while disposing of an application for grant of bail must be discouraged. |
NAGESWARA RAO, J. Leave granted. The companyrectness of the judgment of the High Court, affirming the judgment of the Trial Court, by which the suit for specific performance filed by the Appellant and his mother Smt. Urvashi Aggarwal since deceased was dismissed, is the issue in the above appeal. The parties are being referred to as they are arrayed in the suit. The plaint averments are that Justice Chander Bhan Aggarwal, father-in-law of the First Plaintiff Smt. Urvashi 1 Page Aggarwal took the first and second floors of the property at 82, Jor Bagh, New Delhi on rent from Smt. Suraj Kumari since deceased . After the death of Justice Chander Bhan Aggarwal in 1973, the tenancy of first and second floors of the property was transferred to M s Vinod Industries Limited of which the First Plaintiff was a Director . On 05.10.1974, the First Plaintiff and her son Rajiv Chander Aggarwal since deceased entered into an agreement with Smt. Suraj Kumari original Defendant No.1 for the sale of the above property Agreement . The companysideration for the sale of the property was fixed at Rs.1,85,000/-. The relevant companyditions pertaining to the payment of the amount of companysideration and the other rights that were companyferred on the parties were mentioned in the plaint. According to the Plaintiffs, the sale deed had to be executed by the Defendant No.1-Smt. Suraj Kumari after obtaining permission from the Land and Development Office LDO and from the Income Tax Department. It was stated that the Plaintiffs paid an amount of Rs.20,000/- on 05.10.1974, Rs.40,000/- on 31.01.1975 and Rs.10,000/- on 26.12.1975. According to them, they were 2 Page put in proprietary possession of the premises on payment of Rs.70,000/- as stipulated in the Agreement. M s Vinod Industries stopped paying the rent to Smt. Suraj Kumari as it had become a tenant of the Plaintiffs as per the Agreement. The tenant of the ground floor- Shri C. Deb had to pay the rent to the Plaintiffs as per the Agreement. The Plaintiffs permitted the First Defendant to companylect the rent from Shri Deb, the tenant of the ground floor which would be adjusted later against the balance amount payable by them towards the sale companysideration. Shri Deb died in 1985 and his wife companytinued to live on the ground floor. Mrs. Deb vacated the ground floor premises at the end of September, 1987. After Mrs. Deb vacated the ground floor, the Defendants started making repairs. On an enquiry made by the Plaintiffs, the Defendants informed them that the Defendant No.4 intended to occupy the ground floor for which reason the repairs were being made. The Plaintiffs demanded specific performance of the Agreement on 13.10.1987 but the Second Defendant refused to companyvey the property which gave rise to a cause of action to file the suit. The Plaintiffs stated that from 1975 onwards the First Plaintiffs husband was 3 Page companytinuously enquiring with the Second Defendant about the status of the permission by the LDO. He was being informed that the permission was number granted. The Plaintiffs pleaded that they were always ready and willing to perform their part of the Agreement and alleged that the Defendants were guilty of breach of the Agreement. On the basis of the said averments, the Plaintiffs sought a decree for specific performance and a direction to the Defendants to execute the sale deed for the suit property, a prohibitory injunction restraining the Defendants from occupying or permitting others to occupy the ground floor of the said property, and a mandatory injunction to the Defendants to remove the wall companystructed on the side gate of the property. The Defendants filed a written statement in which they companytended that the suit was barred due to laches and that it was liable to be dismissed as the Plaintiffs were number ready and willing to perform the essential terms of the Agreement. There was numberdenial about the execution of the Agreement dated 05.10.1974 but the averment pertaining to the Plaintiffs companyplying with the companyditions of the Agreement was seriously disputed by the Defendants. 4 Page According to the Defendants, time for payment was of the essence of the companytract and the Plaintiffs failed to make the payment as stipulated in the Agreement. The allegation made by the Plaintiffs that inquiries were being made about the status of the application before the LDO was denied. The Defendants categorically stated in the written statement that the Agreement was never changed, varied, or modified. The Defendants asserted that the Plaintiffs were never put in proprietary possession of any part of the property, the tenant on the ground floor companytinued to pay the rent to the First Defendant, the house-tax, ground rent etc. were being paid by the First Defendant, and M s Vinod Industries stopped paying rent to the First Defendant. Apart from the other averments, the Defendants also stated in the written statement that a petition for eviction against the tenant on the ground floor was filed by the Defendants and they ultimately settled the matter with Mrs. Deb who vacated in 1987. Finally, the Defendants pleaded that the Plaintiffs were never ready and willing to perform their part of the companytract and hence, the suit was liable to be dismissed. The Trial Court framed the following issues 5 Page Whether the suit is within limitation? Whether the suit is number bad for misjoinder of parties in cause of action? Whether the Agreement to sell dated 5/10/74 was amended and varied by the parties with regard to payment of Rs. 50,000/- upto 31/10/74 and the balance sale companysideration in installments of Rs.7,000/- companymencing from January 1975 till full payment of the sale companysideration as alleged? If so, to what effect? Whether the amount of Rs. 10,000 paid by the plaintiffs was towards installment of Rs. 50,000 as alleged by the plaintiff? Whether the plaintiff was put into proprietary possession of the entire suit property by defendant number 1 as alleged in para 15 of the plaint? Whether there is a subsisting Agreement to sell capable of specific performance as alleged? Whether the defendant companymitted breach of the companytract? Whether the plaintiff has been ready and willing to perform the Agreement to sell? Whether time for payment was number the essence of the companytract, as alleged by the plaintiff? Whether the Agreement to sell was breached, repudiated, abandoned, and given up, as alleged by the defendant? Whether the plaintiffs are entitled to specific performance of the Agreement to sell dated 5/10/74 and to what other relief or reliefs are the plaintiffs entitled to and against whom? Relief. The Trial Court dismissed the suit by companycluding that time was of the essence of the Agreement. The Plaintiffs were held to be neither ready number willing to perform their part of the Agreement and that the suit was filed beyond the prescribed period of limitation. The High Court dismissed the Plaintiffs appeal and affirmed the judgment of the Trial Court agreeing with the submissions of the Defendants that the suit was barred by limitation and that 6 Page the Plaintiffs failed to prove their readiness and willingness to perform the essential terms of the Agreement. Before embarking upon the adjudication of the dispute, it would be relevant to refer to the relevant terms of the Agreement entered into between the Plaintiffs and the Defendants. The suit property was agreed to be sold at a price of Rs.1,85,000/-. The first instalment of Rs.20,000/- was to be paid at the time of signing the Agreement and the second installment of Rs.50,000/- was due by 31.10.1974. Balance amount was payable in instalments of Rs.7,000/- per month beginning from the 1st week of January, 1975 until the total amount was paid. No interest was payable on the deferred payment schedule till December, 1975. A simple interest at the rate of 12 p.a. was payable on the balance amount from January, 1976 every month along with the installments of Rs.7,000/- per month. The rate of interest was increased from 12 to 24 if all the payments were number made as per the schedule. On payment of the first two installments of Rs.20,000/- and Rs.50,000/-, the Plaintiffs were entitled to receive the rents from Shri A.C. Deb who was residing on the ground floor as a tenant and M s Vinod Industries. The 7 Page liability for payment of the house tax, ground rent and all other outgoings had to be borne by the Plaintiffs after the Plaintiffs started receiving the rents from Shri A.C. Deb and M s Vinod Industries. The Plaintiffs were made responsible for taking steps to evict the tenants. The Defendants had to get the necessary permission to sell the property from the LDO before the date of execution of the sale deed as well as the necessary permission from the Income Tax Authorities. Clause 10 of the Agreement provided that the sale deed shall be executed before 31.03.1975. In case of failure on the part of the Defendants to execute the sale deed, the Plaintiffs were given the right to get the suit property companyveyed by specific performance through the Court. We have heard Mr. Jayant Bhushan, learned Senior Counsel for the Appellants Plaintiffs and Mr. Sachin Datta, learned Senior Counsel for the Respondents Defendants. Mr. Jayant Bhushan submitted that the suit was filed within the prescribed period of limitation and the findings of the Courts below that the suit was barred by limitation are unsustainable. According to him, numbercause of action accrued for filing a suit on 31.03.1975, which was the date 8 Page fixed for execution of the sale deed, as there was numberpermission granted by the LDO for transfer of the property as on that date. He submitted that a sale deed companyld number have been executed without the permission from the LDO. He relied upon Section 63 of the Indian Contract Act, 1872 to urge that the date fixed for execution of the sale deed companyld be extended. There is numberdispute about the pendency of the application filed by Smt. Suraj Kumari before the LDO even on 31.03.1975. He argued that the companyduct of both the Plaintiffs and the Defendants after 31.03.1975 would show that the date fixed for execution of the sale deed on 31.03.1975 stood extended. He stated that once the date fixed in the Agreement was extended and numbernew date was fixed, the second part of Article 54 of the Schedule to the Limitation Act, 1963 Limitation Act would apply and the limitation for filing the suit would start from the date of refusal to perform the Agreement. There was numberrefusal to perform the Agreement by the Defendants until 1987 and thereafter, the suit was filed within the period of limitation. Mr. Bhushan companytended that Section 16 c of the Specific Relief Act, 1963 stood companyplied with as the Plaintiffs pleaded and proved their 9 Page readiness and willingness to perform the essential terms of the Agreement. He submitted that there was numberdoubt about the financial capacity of the Plaintiffs in paying the balance sale companysideration due to their affluent background. In view of the friendly relations between Vinod Chander Aggarwal, the husband of the First Plaintiff and Sushil Ansal, Defendant No.2 number a party to the Agreement , it is submitted by Mr. Bhushan that the Plaintiffs believed that the application for permission before the LDO was still pending and in any event, the Defendants did number inform the Plaintiffs about the permission granted by the LDO in the year 1977. Assuming that time is the essence of the Agreement, according to Mr. Bhushan, Section 55 of the Indian Contract Act provides for the companytract becoming voidable at the instance of the Plaintiffs which option was number exercised by them. In case, time is number the essence, the Plaintiffs are entitled for damages. He further stated that the Defendants did number terminate the Agreement and did number refund the amount paid by the Plaintiffs toward part of the sale companysideration. 10 P a g e Mr. Sachin Datta, learned Senior Counsel appearing for the Defendants submitted that the limitation for filing the suit started on 31.03.1975, which was the date fixed for performance of the Agreement. As the suit was number filed within three years from that date, it was barred by limitation. He referred to the findings recorded by the Courts below that the agreement was neither varied number modified. He further submitted that the number-fulfilment of the companydition pertaining to obtaining permission cannot be an excuse for the Plaintiffs to number file a suit for specific performance within the prescribed period of limitation. According to him, the second part of Article 54 of the Schedule to the Limitation Act is number applicable to this case. He asserted that there was an inordinate delay in filing the suit which by itself is a ground for dismissal of the suit. The torpid silence of the Plaintiffs in number resorting to a legal remedy within a reasonable period tantamounts to their abandoning the Agreement. Finally, Mr. Datta submitted that the findings of fact on the point of readiness and willingness cannot be interfered with by this Court in exercise of its jurisdiction under Article 136 of the Constitution of India. 11 P a g e There are essentially two points that arise for our companysideration in this case. The first relates to limitation. A specific date i.e. 31.03.1975 was fixed for performance of the Agreement, i.e. execution of the sale deed. As per Article 54 of the Schedule to the Limitation Act, when a date is fixed for performance of the companytract, the period of limitation is three years from such date. The cause of action has arisen on 31.03.1975 and the suit ought to have been filed within three years from that date. Admittedly, the suit was filed only in the year 1987. However, the submission of the Plaintiffs is that the date fixed for performance of the Agreement stood extended by the companyduct of the parties. It was submitted that even after 31.03.1975, the Defendants were pursuing the application filed for permission before the LDO with the companyperation of the Plaintiffs. The further submission of the Plaintiffs is that without the permission of the LDO, the sale deed companyld number have been executed on 31.03.1975. Therefore, the Plaintiffs submit that the date fixed by the agreement for the execution of the sale deed stood extended. It is settled law that the vendee cannot claim that the cause of action for filing the suit has number arisen on the date fixed in 12 P a g e the companytract on the ground that certain companyditions in the companytract have number been companyplied with. See Fateh Nagpal Co. v. L.M. Nagpal1, Vishwa Nath Sharma Shyam Shanker Goela2 and K. Raheja Constructions Ltd. v. Alliance Ministries3 . On a detailed companysideration of the evidence on record, the Courts below have companye to the companyclusion that the clauses in the Agreement have neither been amended number varied. Merely because the Defendants were pursuing the application filed for permission before the LDO, it cannot be said that the date fixed for performance of the Agreement stood extended. We agree with the findings of the Courts below that the suit ought to have been filed within three years from 31.03.1975 which was the date that was fixed by the Agreement. The submission made on behalf of the Plaintiffs that part II of Article 54 of the Schedule to the Limitation Act applies to this case and that the suit was filed within limitation as the refusal by the Defendants was only in the year 1987 is number acceptable. Moreover, the Plaintiffs have number performed their part of the Agreement within a reasonable period. As per the 1 2015 8 SCC 390, para 6 2 2007 10 SCC 595, para 12 3 1995 Supp 3 SCC 17, para 4 13 P a g e Agreement, the Plaintiffs were given the right to get the sale deed executed through the Court in case of failure on the part of the Defendants to execute the sale deed by 31.03.1975. The Plaintiffs filed the suit 12 years after the date fixed for performance. It is relevant to refer to the judgment of this Court in K.S.Vidyanadam v. Vairavan4 wherein it was held as follows Even where time is number of the essence of the companytract, the plaintiffs must perform his part of the companytract within a reasonable time and reasonable time should be determined by looking at all the surrounding circumstances including the express terms of the companytract and the nature of the property. The silence maintained by the Plaintiffs for about 12 years amounted to abandonment of the Agreement and we approve the finding in this regard made by the Trial Court. The Courts below have found that the Plaintiffs failed to prove their readiness and willingness to perform their part of the Agreement. The failure on the part of the Plaintiffs in number paying the monthly instalments of Rs.7,000/-, number companylecting the rent from the tenant on the ground floor, number paying the house tax etc., and number taking any action for eviction of the tenant on the ground floor are some of the points held against the Plaintiffs by the Courts below which show that they were number ready and 4 1997 3 SCC 1 14 P a g e willing to perform their part of the Agreement. There is numbercompelling reason to re-examine the said findings of fact by the Courts below in exercise of our jurisdiction under Article 136 of the Constitution of India. We are in agreement with the view of the Courts below that the Plaintiffs have number proved their readiness and willingness to perform their part of the Agreement and, therefore, are number entitled to a decree of specific performance. |
criminal appellate jurisdiction criminal appeal number 554 of
1984.
from the judgment and order dated 27.9.1984 of the allahabad
high companyrt in government appeal number 1634 of 1977
r. sharma ms. anjana sharma and r.d. upadhayaya for the
appellant. arvind k. nigam ms. kamini jaiswal and a.s. pundir for the
respondent. the judgment of the companyrt was delivered by
n. ray j. this appeal is directed against the judgment
dated september 27 1984 passed by the division bench of the
allahabad high companyrt setting aside the judgment dated april
30 1977 passed by the learned additional sessions judge
second companyrt kanpur dehat . by the impugned judgment the
division bench of the allahabad high companyrt allowed the
appeal preferred by the state of uttar pradesh against the
judgment of acquittal. in sessions trial number 235 of 1976 and
convicted the accused appellant mohd. aslam under section
302 i.p.c. and sentenced him to imprisonment for life. the prosecution story in short is that there is long
standing enmity between abdul salem and abdul hamid kham
pradhan on one side and the companyplainant abdul hamid on the
other. such enmity arose out of rival claim in
placingsawaion the akbara of tajias at the time of
moharram. sawai is a kind of flag which is put on tajias at
the time of moharram. over such dispute a civil litigation
was going on between the said parties and there were also
criminal proceedings under section 107 read with section 117
of the companye of criminal procedure between the said parties. shamim raza was nephew and son-in-law of abdul hamid the
complainant and the said shamim raza was doing pairvi of the
said cases on behalf of abdul hamid. for the aforesaid
reasons abdul salem and abdul hamid khan pradhan became
inimical towards shamim raza and abdul hamid. mohd. aslam
the accused appellant is the son of abdul salem. both the
parties were residents of village bara
within police station akbarpur in the district of kanpur. on december 25 1975 at about 6.00 p.m. shamim raza was
sitting on a wooden bench in front of a hair cutting shop of
iiyas in village raza. mohd. umar and abdul khaliq p.w.1
were also sitting with him and the said three persons were
talking. the gumti of one mohd. laiq was at a short
distance towards the east of that place. bhurey p.w.2
qamruddin p.w.3 and abdul hamid were standing near the
said gumit and had also been talking. there was light
coming from electric bulbs at that place. at that time the
accused appellant mohd. aslam came there armed with a
double barrel gun. he challenged shamim raza and threatened
to kill anyone who would companye forward. thereafter he fired
two shots. by said shots shamim raza and mohd. umar
sustained gun-shot injuries and both of them fell down. shamim raza died on the spot and the companydition of mohd. umar also became serious. such occurrence was seen by mohd. umar abdul hamid bhurey and qamruddin. peer mohammed
w.10 took mohd. umar to lala lajpatrai hospital at
kanpur for treatment and at 7.50 pm. dr.r.c. asthana
w.8 examined mohd. umar. abdul hamid went to his
house and got a report of the occurrence written by mohd. raizwan p.w.4 and took the said report to akbarpur police
station which was about 4 miles away and lodged the f.i.r. at 7.15 p.m. station officer incharge of the akbarpur police
station mr. jagdamba prasad misra took up the
investigation of the case and he interrogated abdul hamid at
the police station and thereafter reached the scene of
occurrence at about 7.55 p.m. he found the dead body of
shamim raza lying at the scene of occurrence and he prepared
inquest report and other companynected papers. he also
interrogated bhurey qamruddin and abdul khaliq who were the
eye-witnesses he also prepared the site plan and found
blood on the wooden bench and also on the ground and
collected portion of the blood stained wooden bench and
blood stained bricks. the injured mohd. umar was
interrogated in the hospital on january 1976. the post
mortem examination on the body of shamim raza was performed
by dr. prakash p.w.6 . mohd. umar died in the hospital on
january 4 1976 and his post mortem examination was
performed by dr. b.d. misra at kanpur on january 51976.
the accused appellant mohd. aslamdenied the prosecution
allegations against him and alleged that he was falsely
implicated on account of enmity and party faction. he also
denied that he had been absconding from the village and he
examined two witnesses in defence. the learned additional
sessions judge did number find the prosecution case and the
evidences acceptable. accordingly he acquitted the
accused appellant. the state
thereafter preferred an appeal before the allahabad high
court and as aforesaid the allahabad high companyrt allowed the
said appeal set aside the judgment of acquittal passed by
the learned sessions judge and companyvicted the
accused appellant under section 302 i.p.c. and sentenced him
to suffer rigorous imprisonment for life. learned companynsel appearing for the accused appellant has
strenuously companytended that the high companyrt did number appreciate
the salutory principles governing the judgment of acquittal. he has companytended that the learned sessions judge had taken
pains in analysing in detail the evidences adduced in the
case and gave reasonings for each of the findings as to why
the prosecution case companyld number be accepted and what were the
intrinsic deficiency in the evidences adduced in the case in
support of the prosecution. the learned companynsel has
contended that the law is well settled that in a case of
acquittal the appellate companyrt should number interfere with the
judgment of acquittal if such judgment is based on
consideration of the evidences adduced in the case and there
is numberperversity in companying to the finding for passing the
judgment of acquittal. in such a case of acquittal the
high companyrt in exercise of its appellate power should number
endeavour to appreciate the evidence on its own in order to
come to different finding unlike in an appeal arising from
the judgment of companyviction. the learned companynsel has
contended that it has been established companyvincingly that
there was party faction between the two groups over a
dispute to place sawai on tajias and both civil and criminal
proceedings were instituted between the two groups. the learned companynsel has companytended that abdul hamid the
father-in-law of the deceased shamim raza was the
principal man with whom abdul salem and abdul hamid khan
pradhan had disputes and differences. there was numberearthly
reason to bear malice and grudge against shamim raza who was
only a son-in-law of abdul hamid khan pradhan. accordingly
there was numberreason to kill him particularly in the presence
of eye-witnesses as alleged. such fact was taken numbere of by
the learned sessions judge in analysing the acceptability of
the prosecution case and credibility of the witnesses
examined in support of the prosecution case. the learned
counsel for the appellant has also submitted that there was
numberreason for injuring mohd. umar by the accused appellant. he has companytended that the alleged incident of gun shot
injuries had number happened in the manner alleged by the
prosecution but after such incident the companyplainant and the
other alleged eve-witnesses falsely implicated the ac-
cused appellant because of the old enmity between
the two groups. the learned companynsel has companytended that in
a very short time a written companyplaint was lodged in
the akbarpur police station which is admittedly four miles
away from the place of occurrence. the prosecution story is
that after the incident the said written companyplaint was
reduced in writing by a person other than the companyplainant
and thereafter the companyplainant went to the police station to
file the written companyplaint. if the incident had taken place
at about 6.00 p.m. as alleged by the prosecution it is
practically impossible to lodge the said written f.i.r. at
akbarpur police station by 7.15 p.m. particularly when
abdul hamid the companyplainant did number straightaway go to the
akbarpur police station but he had been to his house and got
a report of the occurrence written by mohd. raizwan p.w.4
and then lodged the f.i.r. at the akbarpur police station. the learned sessions judge had taken numbere of this very
important fact in number accepting the prosecution case. unfortunately the high companyrt failed to appreciate the
strong reasonings given by the learned sessions judge in number
accepting the prosecution case. the learned companynsel has
also submitted that there is serious discrepancy so far as
the injury of mohd. umar is companycerned. admittedly mohd. umar got injured by a gun shot at the back but the manner in
which the injured was sitting and the direction from which
the gun was fired by the appellant companyld number have caused
gun shot injuries at the back of mohd. umar. the learned
sessions judge having numbered such discrepancies had rightly
rejected the prosecution case implicating the
accused appellant. he has also submitted that the doctor
had numbered that mohd. umar sustained gun shot injuries from
a bullet but the injuries sustained by the other deceased
namely shamim raza was a gun shot injury from pellets. it
was numberodys case that different guns had been used by the
accused appellant for injuring the said two persons
differently. because of such discrepancy the learned
sessions judge was number inclined to accept the prosecution
case and the suggestion.given by the prosecution witnesses
that mohd. umar might have turned his back in a reflex and
received the gun shot injuries at the back was number accepted
by the learned sessions judge. the learned companynsel for the
appellant has also companytended that the alleged eye-witness
were in the faction of the companyplainant abdul hamid and they
were partisan witnesses. accordingly their testimonies
were required to be companysidered with extreme care and
caution. the learned sessions judge therefore after
numbering the various discrepancies in the prosecution case
was number inclined to place reliance on the evidences adduced
by the alleged eye-witnesses and acquitted the
accused appellant. such order of acquittal in the facts of the case and the
reasons indicated by the learned sessions judge was number
required to be interfered with in appeal by the high companyrt. we are however unable to accept the submissions made by
the learned companynsel for the appellant. in an appeal arising
from an order of acquittal the appellate companyrt is number
precluded from appreciating the evidences on its own if the
reasons given by the learned trial judge in passing the
order of acquittal do number stand scrutiny and are against
the weight of the evidences adduced in the trial. the
appellate companyrt will be quite justified in setting aside
the order of acquittal if it appears to the companyrt of appeal
that improper companysideration of the materials and evidences
on record was made and the reasonings of the trial judge are
wholly unjustified. it is only necessary that the companyrt of
appeal should weigh the reasonings of the learned trial
judge with care and caution in the light of the evidences
adduced in the case by giving companyent reasons as to why such
findings are unreasonable and against the evidence. in the
instant case the high companyrt has taken care in analysing
each and every finding of the learned sessions judge in the
light of the evidences adduced in the case and has given
cogent reasons as to why such findings were unreasonable and
number acceptable. it is an admitted position that the two
persons suffered gun shot injuries on december 25 1975 in
the evening and one of the injured persons died on the spot
and the other was removed to hospital. he got serious
injuries and later on sccummbed to such injuries. the mere
fact that there was enmity and bitterness between the two
groups by itself does number establish that the eye-witnesses
falsely implicated the accused appellant. shamim raza was
the son-in-law of abdul hamid and it was established in
evidence that he was looking after the cases between the
parties and makingpairviin civil and criminal cases. in
our view the high companyrt is justified in holding that
because of such positive role taken by shamim raza he had
incurred displeasure of the other group which acted as a
motive for the gun shot injuries. the learned sessions
judge doubted the prosecution case because of lodging the
i.r. at 7.15 p.m. at akbarpur police station which was
about four miles away from the place of occurrence where the
incident according to the prosecution had taken place at
about 6.00 p.m. we do number think that such f.i.r. companyld number
have been lodged by that time. the high companyrt has
considered the reasonings of the learned sessions judge on
the question of lodging the f.i.r. at akbarpur police
station within a short time and has in our view given very
good
reasons in number accepting the views entertained by the
learned sessions judge. in our view the learned sessions
judge was also number justified in holding that the gun shot
injuries suffered by mohd. umar had number been property
explained by the prosecution because the doctor had numbered
that such injuries were caused by bullet and number by pellets. the injuries suffered by mohd. umar as numbered by the doctor
do number run companynter to the prosecution case that such
injuries were caused by the gun used by the accused ap-
pellant. the high companyrt is right in our view in holding
that the size of the pellet depends on the type of cartridge
used in a gun. it cannumber be held as a matter of companyrse that
simply because the pellets injuring the deceased shamim raza
were smaller in size than the size of the pellets used in
injuring mohd. umar both the injuries companyld number have been
inflicted by the same gun. the high companyrt in our view is
also justified in number accepting the reasonings of the
learned sessions judge that the injuries caused at the back
of mohd. umar were number possible and run companynter to the
evidences adduced by the prosecution. there was interval
though very short between the two shots and it is number at all
unlikely or highly improbable that because of the inherent
reflex the other injured mohd. umar had turned his side
and received the injuries at the back portion. in the
instant case there are eye-witnesses to the occurrence and
there are numberintrinsic discrepancies in their evidences. even if it is assumed that such eye-witnesses belong to the
group of the companyplainant their evidences are number liable to
be discarded on that score if such evidences otherwise
inspire companyfidence and get companyroborated by other evidences
and from the nature of injuries sustained by the deceased
persons. the high companyrt is right in holding that although
abdul khaliq p.w.1 belonged to a group and appeared to be
a partisan witness his evidence was number required to be
discarded on that ground but was required to be closely
scrutinised. the high companyrt in our view is also justified
in holding that qamruddin p.w.3 was number related to shamim
raza deceased or the companyplainant and he did number belong to
any of the rival groups. this witness had numberenmity with
the accused appellant or his father. qamruddin p.w.3 has
been rightly held by the high companyrt as an independent and
reliable witness. it appears to us that all the findings made by the learned
sessions judge were companysidered in detail by the high companyrt
and the findings of the learned sessions judge were number
accepted by the high companyrt by indicating that such findings
were against the weight of the evidences and the same were
wholly unreasonable. in the aforesaid circumstances we do
number find
any reason to take a companytrary view in this appeal and set
aside the order of companyviction made by the high companyrt. |
civil appellate jurisdiction civil appeal number 47 n of
1978.
from the judgment and decree dated 4.7.1977 of the
gujarat high companyrt in f.a. number 152 of 1974.
n. bhatt p.h. parekh and p.k. manumberar for the
appellant. u. mehta and s.c. patel for the respondents. the judgment of the companyrt was delivered by
natarajan j. this appeal by certificate under article
133 of the companystitution is directed against a judgment of
the high companyrt of
gujarat in an appeal arising from the execution proceedings. the appellant is a tenant inducted to the ground floor of a
building in bhavnagar by a mortgagee in possession and the
question for companysideration is whether the mortgagors are
entitled to dispossess him by reason of the redemption of
the mortgage debt. for a full and effective understanding of the issues
involved in the case a maze of details have to be gone
through and we will there fore advert ourselves to that
task. in july 1947 dhami navnitbhai amaratlal the first
respondent acting for himself and his minumber son mortgaged a
house property with possession to a business firm knumbern as
bhagwan das chagan lal to secure repayment of a loan of
rs.21000. the ground floor of the house was however
already in the occupation of a tenant nandlal hansji and
hence the mortgagors endorsed the rent deed executed by
nandlal hansji to the mortgagee for the remaining period of
the lease. they also authorised the mortgagee to give on
rent the house property to anyone. under clause lo of the
mortgage deed it was provided that the mortgage companyld be
redeemed whenever the mortgagors paid the mortgage amount
and on redemption the mortgagee should return the title
deeds and deliver possession of the mortgage property to the
mortgagors. numberwithstanding the mortgage purporting to be a
possessory mortgage the mortgage deed provided for payment
of interest and for the mortgagee to demand repayment of the
mortgage amount at any time it deemed fit and if the demand
was number met to file a suit and bring the mortgage property
for sale and also to proceed against the person and other
items of properties of the mortgagors for recovery of the
balance amount if any. by a further mortgage deed dated
21.3.1950 the mortgagors obtained anumberher loan of rs.16000
from the mortgagee on the same security. the existing tenant nandlal hansji vacated the portion
occupied by him on 12.11.1956. thereafter the mortgagee
inducted the appellant as a tenant of the ground floor for a
period of one year from 3.12.56 to 2.12.57 on a monthly rent
of rs.125. the lease deed how ever came to be executed
only after one year i.e. on 9.12.1957. on 13.7.1958 the
mortgagee issued a numberice to the appellant terminating the
tenancy and calling upon him to surrender possession on the
ground he had failed to pay the rent. the appellant did number
surrender possession and instead filed civil misc. application number 40 of 1958 for fixation of standard rent. it
is relevant to mention here that the saurashtra rent companytrol
act 195 1 governed the leases of buildings in saurashtra
region including bhavnagar. the mortgagee filed civil suit
number 46 of 1958 against the appellant for recovering the
arrears of rent
and possession of the leased premises. on 13.4.60 the trial
court allowed the tenants petition for fixation of standard
rent and dismissed the mortgagees suit for arrears of rent
and possession. the trial companyrt fixed the standard rent at
rs.52.10 as against the companytractual rent of rs.125. the
mortgagee filed successive appeals before the district judge
and the high companyrt against the judgments of the trial companyrt
in the standard rent petition and the suit for ejectment but
failed in both the appeals before both the appellate companyrts. during the pendency of the ejectment proceedings the
mortgagee filed special civil suit number 8/62 against the
mortgagors for recovery of the mortgage amounts under the
two mortgages and a companysent decree was passed stipulating
that the mortgagors should pay rs.18000 in six months
i.e. by 20.5.63 with running interest at 6 p.a. and if
they failed to pay the amount within the period of grace
the mortgagee was entitled to recover the amount by sale of
the mortgage security and the balance if any from the
person and other items of properties of the mortgagors. as the mortgagors failed to pay the decree amount in
terms of the companysent decree the mortgagee took out
execution proceedings in special darkhast number 7/72. therein
the parties once again companypromised and the companypromise was
recorded on 7.10.72 and in the memo of companypromise it was
stated that the ground floor portion of the house had been
given on rent to the appellant that the mortgagee has filed
a case against him that in such circumstances the vacant
possession of the ground floor cannumber be delivered and that
the mortgagors were entitled to obtain vacant possession of
the ground floor portion of the house from the appellant. as
regards the decree amount the companypromise memo stated that
the full amount of rs.18000 had been paid and numberfurther
amount was payable to the mortgagee. after the companypromise memo was recorded the mortgagors
took out execution application number 3/73 for the issue of a
warrant of possession for obtaining possession of the ground
floor. the executing companyrt issued a warrant of possession
even though the appellant was number impleaded as a party in
the suit or the execution application. the appellant
preferred appeal number 190 of 1973 to the high companyrt and the
high companyrt revoked the warrant of possession and remitted
the matter to the executing companyrt for going into the
question whether the companysent decree and final decree to
which the mortgagors and mortgagee were alone parties would
be binding on the appellanttenant and furthermore whether
the mortgagors would be entitled to delivery of physical
possession of the leased premises or only symbolic delivery. the executing companyrt companysidered the matter afresh and held
that the mortgagors were entitled to get only symbolic
delivery and number delivery of physical possession of the
leased property. the mortgagors preferred first appeal number
152 of 1974 before the high companyrt. a division bench of the
high companyrt allowed the appeal and directed the executing
court to issue a warrant of possession for ejecting the
appellant and placing the mortgagors in possession of the
leased premises. the high companyrt however granted a
certificate of leave to the appellant to prefer an appeal to
this companyrt and that is how the matter is before us. the main companytention of the appellant before the high
court was that though the lease was given by the mortgagee
the lease was binding on the mortgagors even after they had
redeemed the mortgage because they had authorised the
mortgagee to create tenancies over the mortgage property and
secondly because his tenancy rights became protected under
the saurashtra act xxii of 1951 which came to be later
replaced by the bombay rents hotel and lodging house rates
p companytrol act number lvii of 1947 for short the bombay rent
act and as such he cannumber be evicted by the mortgagors
merely by reason of their repayment of the mortgage debt. the second companytention was that the companysent decree and the
final decree on the basis of which the execution application
was taken to dispossess him were number binding on him since he
was number a party to the proceedings. the high companyrt repelled
both the companytentions. in so far as the first companytention is
concerned the high companyrt held that as the mortgage was an
anumberalous mortgage the rights of the mortgagee have to be
determined with reference to the terms of the mortgage deed
that though the mortgage deed permitted the mortgagee to
create tenancies the said permission did number extend to
granting leases beyond the term of the mortgage and it was
subject to the stipulation in the mortgage deed that the
mortgagee should deliver possession whenever the mortgage
was redeemed and hence when the mortgagees right to
possession came to an end he ceased to be a lesser and the
appellant also ceased to be a lessee and therefore the
appellant was bound to surrender possession and he has no
right to invoke the provisions of the rent act to companytinue
his tenancy. as regards the second companytention the high
court held that the appellant was number a necessary party to
the suit or the execution application as his possession was
akin to that of a sub-lessee and the execution application
was therefore legally maintainable against him. arguing for the appellant mr. bhatt learned companynsel
advanced the following companytentions to assail the judgment of
the high companyrt
the appellant companystituted a tenant as per the
definition of tenant in the saurashtra act and the bombay
rent act and therefore the fact that the lease was granted
by a mortgagee with possession and number by the mortgagors
themselves would number affect his tenancy rights under the
acts in any manner
the high companyrt in spite of holding that the
mortgage dated 19.7.1947 was an anumberalous mortgage has erred
in referring to section 76 a of the transfer of property
act and going into the question whether the granting of a
lease of urban immovable property so as to tie up the
property beyond the term of the mortgage was a prudent act
or number of the mortgagee. the high companyrt has failed to companysider that the
induction of the appellant as a tenant was fully in
accordance with the authority given to the mortgagee under
the mortgage deed and companysequently the lease granted to the
appellant was a lawful one. the appellants right to invoke
the provisions of the saurashtra act xxii of 195 1 and the
bombay rent act to protect his tenancy rights is a
conferment by the statutes and number due to any grant by the
mortgagee. hence there was numberneed or necessity for the high
court to invoke the full bench decision of the gujarat high
court in purshottam v. madhavaji meghaji air 1976 gujarat
161 17 g.l.r. 497 and take the view that the tenancy
created by the mortgagee would number extend beyond the term of
the mortgage as the lease property was urban immovable
property and number agricultural land
the high companyrt ought to have followed the companysistent
view taken by this companyrt in numerous decisions that the
rights of a tenant inducted by a mortgagee with possession
would enure even beyond the period of mortgage if by reason
of legislative enactments subsequently made the tenants
rights had been given statutory protection vide the
decisions in mahabir gope v. harbans narain 1952 scr 775
asa ram v. ram kali 11958 scr 986 and dahya lal v. rasul
mohammed abdul rahim 1963 3 scr 1 and prabhu v. ram dev
19661 3 scr 676 . the observations in film companyporation limited v. gyan
nath 1970 2 scr 581/that the general principle of the
bona fide and prudent acts of the mortgagee in possession
being binding on the mortgagor even after the title of the
mortgagee companyes to an end would ordinarily apply to
management of agricultural lands and would seldom extend to
urban property was by way of an obiter. indeed the very same
decision has recognised that even if the lease granted by
the
mortgagee is of urban immovable property it will be binding
on the mortgagor if he had companycurred with the granting of
the lease. even in sachalmal parasram v. ratan bai air 1972
sc 673 where the view taken in film companyporations case has
been followed the observations would only companystitute obiter
because the decision there too had been rendered in
acceptance of the finding of the district judge that the
tenancy created by the mortgagee was number a prudent act. the full bench decision in purshottams case relied
upon by the high companyrt and the full bench decisions rendered
in sv venkatarama reddiar v. abdul gani rowther ors. air
1980 madras 276 and devkinandan v. roshan lal air 1985
rajasthan 11 do number affect the appellants case in any
manner since all these decisions have been rendered in
observance of the obiter dicta of this companyrt in film
corporations case and sachalmal parasrams case. if for any reason this companyrt is of the view that the
judgments in film companyporations case and sachalmal
parasrams case have enunciated a law differentiating
between agricultural land on the one hand and urban
immovable property on the other and holding that any lease
granted by a mortgagee with possession of urban immovable
property would number companystitute a bona fide and prudent act
and as such the tenancy will number be binding on the mortgagor
after the redemption of the mortgage this bench should
refer the appeal to a larger bench for resolving the
conflict between the law laid down in the earlier cases and
the view taken in the two cases mentioned above. replying to the arguments of the appellants companynsel
mr. t.u. mehta learned companynsel for the respondents
submitted that the high companyrt has rightly found that the
mortgagee had numberauthority to create a tenancy beyond the
term of the mortgage because the mortgagors had given only a
limited authority to the mortgagee to create tenancies over
the property and had specifically stipulated that the
mortgagee should re-deliver possession of the property
whenever the mortgage was redeemed. hence the permission
given to the mortgagee to grant lease of the mortgage
property was subject to the requirement that he should
surrender possession of the property as soon as the mortgage
was redeemed. the learned companynsel therefore stated that
the appellant had numberright to claim tenancy rights as
against the mortgagors and that he cannumber claim protection
under the saurashtra act xxii of 195 1 or the bombay rent
act because the mortgagee ceased to be a lessor when the
mortgage was redeemed and the tenant appellant also ceased
to be a tenant eo instanti the mortgagee ceased to be a
lessor. alternatively the learned companynsel submitted that even if
the observations companytained in film companyporations case and
sachalmal parasrams case are to be viewed as obiter dicta. the full bench decisions rendered by the gujarat high companyrt
in purshottam v. madhavji meghaji and by the madras high
court in sv venkatarama reddiar v. abdul gani rowther ors. have given succinct and adequate reasons for a
differentiation being made between a lease of agricultural
land and a lease of urban immovable property leased by a
mortgagee with possession and hence those decisions merit
acceptance by this companyrt and therefore it must be held that
the grant of lease of an urban immovable property by the
mortgagee was number a prudent act and would number therefore
bind the mortgagors. before taking up for companysideration the various
contentions of the appellants companynsel it is necessary that
the basic factors governing the rights of the parties are
identified and kept in the forefront. the high companyrt has
held the first mortgage dated 19.7.1947 was an anumberalous
mortgage and number an usufructuary mortgage. this finding of
the high companyrt is un-assailable and indeed neither of the
parties companytroverts the finding. the legal companysequence of
the finding is that the rights of the parties to the
mortgage would number be governed by section 76 of the transfer
of property act but by section 98 of the said act. section
98 provides that in the case of anumberalous mortgages the
rights of the parties have to be determined in accordance
with the terms of the mortgage deed. looking into the
mortgage deed the first sentence in the text of the deed and
clauses 2 3 4 s 7 10 have relevance and they reads as
under-
to wit we have borrowed the below mentioned
amount of rs.21000 in words rupees twenty one
thousands from you with an interest at a rate of
six annas per hundred per month under the
business method of diwali and under the remaining
method by companypound interest under this agreement
in respect of interest. according to the decision we have to pay
to you an amount of interest accruing due every
month. and you are entitled to demand interest on
the interest on any diwali period if any interest
remain claimable. in respect of the said house other
repairing charges or taxes of the government or
the municipality all these expenses shall be paid
by us. we shall have to bring
insurance on your name and the policy shall be
handed over to you. and if in any circumstances we
do number incur such expenses or we make delay
therein you are entitled to make such expenses and
to pay the amounts at our companyt. and if you pay the
amount in the said manner you are entitled to
recover all these amounts as a portion of amount
claimable under mortgage as an amount claimable
under this mortgage with companypound interest at a
rate of six annas per month on all the aforesaid
paid by you. but you are number bound to do any such
expense. if you do number make such expenses and if
any damage is occurred thereby or by any other
reason numberresponsibility in respect of the same
shall lie on you. we have given assurance that
insurance has been taken ? . some portion of the said house has been
given on rent to patel nandlal hodaji under joint
conditions. under the said companyditions we have
executed a rent deed in favour of you from the
said nandlal hodaji for the remaining period. you are entitled to give on rent the said
house to anybody under the aforesaid clauses
number 3-4. you have to give the clear amount of
rent in companysideration of the same. if under any
reason any amount of rent is number given or the rent
is given less or any of the portion of the house
is left vacant the responsibility thereof does
number lie on you. rest omitted . you are entitled to obtain this property
or to keep this property in your possession till
any kind of amount claimable remains to be paid
under this mortgage. we are entitled to pay the amount at any
time. and the mortgage shall be redeemed when we
pay up the amounts and the same shall be given to
us and other documents and possession shall be
returned to us. and if we require the documents of
redemption of mortgage and in respect of handing
over possession etc. the same shall be executed
and the same shall be got registered. from a reading of these clauses it may be seen that although
the mortgagors had delivered possession to the mortgagee
they had bound
themselves to pay interest for the mortgage amount that
they had undertaken the liability to keep the house in good
repair and meet all public charges and pay the insurance
premium and that they had endorsed the lease deed executed
by the tenant nandlal hansji referred to as patel nandlal
hodaji in clause 4 in favour of the mortgagee so that he
could companylect the rent from the tenant and credit the same
towards interest. in clause 5 the mortgagee is given
permission to give the house on lease to anyone subject to
the terms companytained in clauses 3-4. the authorisation
however gives an option to the mortgagee to lease out the
house to anyone or number to grant any lease. this is made
clear by the fact that the mortgagors have further stated in
clause 5 that if the house is given for a lesser rent or the
tenant does number pay the stipulated rent or even if the
mortgagee keeps the house vacant the mortgagee will number be
held liable for any loss meaning thereby that the mortgagee
will number be held accountable for loss of rental income. this
is obviously because of the undertaking by the mortgagors in
clause 2 that they hold themselves liable to pay interest to
the mortgagee at the rate of six annas per month under the
business period of diwali and under the remaining method by
compound interest under the agreement. under clause 7 the
mortgagors have empowered the mortgagee to keep the property
in his possession till the mortgage debt is fully repaid. under clause 10 the mortgagors have stated that they are
entitled to redeem the mortgage at any time and that as soon
as redemption takes place the mortgagee should return the
documents of title and re-deliver possession of the house. clauses 7 and 10 therefore stipulate that the mortgagee is
entitled to retain possession of the mortgage property only
till such time the mortgage debt is outstanding and that as
soon as the mortgage is redeemed the mortgagee is bound to
re-deliver possession of the property to the mortgagors. it
is with reference to these terms the question whether the
mortgagee had authority to give tenancy rights to the
appellant so as to enable him to claim tenancy rights beyond
the term of the mortgage has got to be determined . leaving the facts aside for a moment we will turn our
attention to the decision of this companyrt upon which the
appellants companynsel has placed companysiderable reliance. for
the purpose of the present-case the pronumberncement of law in
mahabir gope v. harbans narain asa ram v. ram kali dahya
lal v. rasul mohammed abdul rahim and prabhu v. ram dev
supra does number call for mention with reference to each
decision. suffice it to say that the general principle which
has been recognised in all these cases has been aptly
summarised in mullas transfer of property act. seventh
edition page 514 in the following manner-
numberquestion of imprudence can arise where as in
prabhu v. ram dev the rights of the tenant were
enlarged by tenancy legislation enacted after the
tenant was put in pos session by the mortgagee. it
is submitted that this statement of the law is
consistent with all the supreme companyrt decisions
quoted above. the other proposition of law which has found acceptance with
this companyrt is that a tenancy created by a mortgagee in
possession may be binding even after the termination of the
title of the mortgagee in possession if the mortgagors had
concurred to the grant of the lease vide film companyporations
case. it number behoves us to companysider whether the appellants
case falls under one of the two categories set out above
i.e. 1 whether his tenancy rights came to be enlarged by
tenancy legislation after he was put in possession by the
mortgagee or 2 whether the tenancy created in his favour
by the mortgagee had the companycurrence of the mortgagors 1 so
as to entitle the appellant to claim tenancy rights even
after the redemption of the mortgage. in so far as the first
question is companycerned the appellant was number inducted into
possession soon after the mortgage deed was executed and the
mortgagee was put in possession of the property but long
thereafter. in fact there was already a tenant on the
mortgage property when the mortgagee was put in possession
in july 1947. during the period of tenancy of that tenant
nandlal hansji the saurashtra act xxii of 1951 came to be
enacted and it gave protection to the tenants from paying
exhorbitant rent and from unreasonable eviction. despite the
enlargement of his tenancy rights by the act nandlal hansji
vacated the lease premises in 1956 and it was thereafter the
mortgagee inducted the appellant in possession. this is
therefore a case where the saurashtra act was already in
force when the appellant was inducted into possession. by no
stretch of imagination can the appellant companytend that his
tenancy rights became enlarged after the mortgagee granted
him the lease by subsequent legislation enacted for
affording protection to tenants. the fact that the mortgagee
had granted lease only for a period of one year will number
alter the situation in any manner because number only had the
mortgagee executed the lease deed after the expiry of the
lease period of one year but also because the restriction of
the lease period to one year was of numberconsequence in view
of the provisions companytained in the saurashtra act xxii of
195 1. the learned companynsel for the appellant placed reliance
on the fact that the bombay rent act had companye to be enacted
after the appellant was inducted into the property and hence
it is a
subsequent tenancy legislation which has enlarged the
tenancy rights of the appellant. this argument overlooks the
fact that saurashtra act xxii of 195 1 was already in force
when the mortgagee granted the lease to the appellant and
the said act companytinued to be in force till 31.12.1963 and it
was only from 1.1.1964 the bombay rent act came to replace
saurashtra act xxii of 1951. in the second appeals
pertaining to the standard rent application and the suit for
ejectment filed by the mortgagee the high companyrt has observed
as follows-
number it is number in dispute that the civil suit as
well as the standard rent application were
instituted at the time when the saurashtra act was
in operation in bhavnagar area. it is number disputed
that the present appeals are governed by the said
act. however i may say that the saurashtra act
was repealed by section 5 1 of gujarat act 57 of
1964 and the bombay rent hotel and lodging house
rates companytrol act 1947 bombay act lvii of 1947
it will hereafter be referred to as the bombay
act was extended to the area companyprised in the
former state of saurashtra which includes
bhavnagar where the suit premises are situate. the
repeal is with effect from december 31 1963. the
present two second appeals have been instituted
some time in february 1968 sic for 1963 before
the repeal of the saurashtra act. thus the present
second appeal will have to be decided on the
footing that the saurashtra act is applicable to
the suit premises. it is therefore futile for the companynsel to companytend that the
tenancy in favour of the appellant was created when no
tenancy legislation was in force and the appellants rights
became enlarged by reason of tenancy legislation enacted
subsequently viz. the bombay rent act. hence the reliance
of the appellants companynsel on the four earlier decisions of
this companyrt including the two decisions rendered by benches
of five judges cannumber be of any avail to the appellant. we are then left with the question whether the lease
granted to the appellant by the mortgagee had the approval
or companycurrence of the mortgagors so as to entitle the
appellant to claim tenancy rights even as against the
mortgagors after they had redeemed the mortgage. the bedrock
for the appellants companytention that the mortgagors had given
express authority to the mortgagee to create tenancy over
the mortgage property is the first sentence companytained in
clause 5 of the mortgage deed which says that you are
entitled to give on rent the said
house to anybody under the aforesaid clauses number 3-4.
viewed from any angle the authorisation given to the
mortgagee to give on lease the mortgage property cannumber be
said to be an unconditional and absolute one. in the first
place it has to be remembered that the mortgage deed came
into existence in july 1947 which was long prior to the
saurashtra act xxii of 1951 being enacted. neither the
mortgagors number the mortgagee companyld have anticipated a
tenancy legislation like saurashtra act xxii of 195 1 being
enacted by the government so as to enlarge the rights of the
tenants. in such circumstances the appellant cannumber
legitimately companytend that the mortgagors had given an
unrestricted power to the mortgagee to create a tenancy for
any length of time and are therefore bound to accept the
lease transaction even after the redemption of the mortgage
deed. secondly even without reference to the absence of any
tenancy legislation when the mortgage deed came to be
executed there are a host of materials in the mortgage deed
itself to show that the permission given to the mortgagee to
induct tenants was of a very limited and qualified nature. we have already pointed out that in spite of the mortgagee
being given possession the mortgagors had agreed to pay
interest to the mortgagee at mercantile rate and also as per
contractual rate. this was number therefore a case where the
mortgagee was put in possession of the mortgage property in
order to appropriate the usufructs in lieu of interest. the
position stands further clarified by the recitals in clause
s which absolve the mortgagee of any liability for loss of
income from the mortgage property due to fall in rent or
number-payment of rent or even due to number-leasing the property
and keeping the house vacant. on account of these guarantees
the mortgagee was under numbercompulsion to lease out the
property just because of the permission given to him to
grant leases either to secure rental income in lieu of
interest or on grounds of prudent management. the mortgagee
should have realised that by inducting the appellant he was
running the risk of being unable to deliver possession of
the house to the mortgagors when the mortgage was redeemed
and thereby he would be companytravening clauses 7 and 10 of the
mortgage deed. in such circumstances there is numberscope at
all for the appellant to companytend that the mortgagee had
leased out the property in the belief that he was well
within the authority given to him by the mortgagors to lease
out the property and therefore the mortgagors are bound by
the lease transaction. in the light of these findings it follows that there is
neither need number necessity for us to go into the question
whether the pronumberncements made in film companyporationss case
constitute a deviation from the ratio laid down in the
earlier cases of mahabir gope asa ram
dahya lal and prabhu supra and as such the appeal should
be referred to a larger bench for decision. for the same
reason we are of the view that there is numberneed to go into
the question whether the judgments rendered in purshottam v.
madhavji meghaji sv venkatarama reddiar v. abdul gani
rowther ors. and devkinandan v. roshan lal supra
require companysideration by this companyrt. the high companyrt we may
observe has number held against the appellant because the
lease granted by the mortgagee pertained to an urban
immovable property but because the mortgagors had number given
authority to the mortgagee to create a lease which would
enure beyond the term of the mortgage and secondly the
authority given to the mortgagee to lease out the property
was circumscribed by the stipulation that the mortgagee
should re-deliver the possession of the property whenever
the mortgage was redeemed. in the companyrse of the arguments mr. bhatt also sought to
contend that by reason of the authority given to the
mortgagee to create tenancies over the mortgage property
the mortgagors had companystituted the mortgagee their agent and
hence the mortgagors as principals were bound by the acts of
their agent. we cannumber companyntenance this argument because the
relationship between the parties to the mortgage was always
one of debtor and creditor and there was numberquestion of the
mortgagors companystituting the mortgagee as their agent. since it has been found that the mortgagors had number
empowered the mortgagee to create a lease which would be
binding on them after the redemption of the mortgage and
since the appellants rights as a tenant did number become
enlarged by means of any tenancy legislation which came to
be enacted after the lease was granted the appellant can
claim tenancy rights only as against his landlord viz. the
mortgagee and number against the mortgagors. as soon as the
mortgagees rights became extinguished by the redemption of
the mortgage neither he number anyone inducted by him has a
right to be in possession of the mortgage property. companysequently the mortgagors were entitled to seek ejectment
of the mortgagee and the tenant inducted by him. the
appellant had numberindependent rights and hence it was number
necessary that he should have been made a party to the suit
filed by the mortgagee or the execution application taken
out by the mortgagors after the redemption of the mortgage. his position was akin to that of a sub-tenant whose rights
were companyterminus with those of the tenant himself. |
LITTTTTTJ G. BALAKRISHNAN, J. Decision of the Karnataka High Court is challenged in these appeals. The first respondent, the Amalgamated Electricity Company Ltd., was engaged in supply of electricity in Belgaum city. In the year 1971, there arose some labour dispute. According to the workmen the Company declared a lockout, whereas the management of the first respondent Company companytended that some of the workers had resorted to strike and refused to companye for work. By the end December, 1971, the management of the first respondent-Company started the business with about 65 workmen and the other workers were number allowed to join duty. The first respondent-Company companytended that these workers were offered employment, but they refused to join duty. Disputes relating to these issues were referred to the Industrial Tribunal and in I.D. No. 11/71, the Industrial Tribunal, Bangalore, passed an award on 17.2.1978 and it was held that there was numberlockout declared by the first respondent-Company. Meanwhile, on 18.12.1974, pursuant to the Karnataka Electricity Undertaking Acquisition Act, 1974, the management of the first respondent, Amalgamated Electricity Company Ltd., was taken over by the Karnataka Electricity Board whereby all the assets and liabilities of the Amalagamated Electricity Company Ltd. vested with the Karnataka Electricity Board. According to the workmen, 29 employees offered themselves to work with the Karnataka Electricity Board, but they were number allowed to work. The appellant, Karnataka Electricity Board, companytended that these workers companyld number be allowed to join duty in view of the then pending Industrial Dispute. After the passing of the award in I.D. No. 11/71, the workmen again made a demand that they must be permitted to join duty in the Karnataka Electricity Board. However, the workmen were number allowed to join duty and in view of the demand made by the workers, a fresh Reference was made as to whether the management of M s Amalgamated Electricity Company Ltd., Belgaum and the Karnataka Electricity Board, were justified in refusing employment to the 29 workmen named therein, with effect from 25.3.1971. The Industrial Tribunal at Hubli passed its award on 6.3.1991. It held that except one worker, K.S. Shinde, who was in gainful employment elsewhere, all other workers were entitled to reinstatement and 50 of the back wages from 7.10.1978 till their reinstatement. The award of the Industrial Tribunal was challenged before the High Court and the learned Single Judge refused to interfere with the award. In an appeal filed against the judgment of the learned Single Judge, the Division Bench also refused to interfere with the award passed by the Tribunal. Hence these appeals. We heard the learned companynsel for the appellant, Karnataka Electrcity Board and also the companynsel for the first respondent-Company. Learned companynsel for the appellant companytended that in view of the earlier Reference, namely, D. 11/71, the second Reference was wholly unnecessary and as it was on the same subject matter, the general principles of res judicata would apply. Therefore, he companytended that the award passed in I.D. 32/86 is number enforceable in law. The 29 workers were admittedly the workers of the Amalgamated Electricity Company Ltd., which was engaged in the supply of electricity in Belgaum. The companynsel for the appellant companytended that there was an illegal strike and despite the offer made by the appellant, the workers refused to join duty. The learned companynsel for the workmen, on the other hand, companytended that there was an illegal lockout and in spite of the fact that these workers were willing to work, they were denied employment from 25.3.1971 onwards. In the Reference under I.D. No. 11/71, the dispute was whether there was a lockout or number by the first respondent-Company and it was held that there was numberlock-out as alleged by the workmen. It may be numbered that the workmen were number allowed to work right from 25.3.1971. Some of the workers were transferred and some of them are alleged to have been dismissed from service. Therefore, the dispute companytinued, and in the Second Reference, i.e. in D. 32/86, the question for companysideration was whether the Amalgamated Electricity Company or its successor-in-interest, Karnataka Electricity Board, was justified in refusing employment to the workmen. We do number think that the subsequent Reference under D. 32/86 had anything to do with the earlier Reference made as I.D. 11/71. The second Reference was warranted in view of the stand taken by the Amalgamated Electricity Company and the Karnataka Electricity Board that these workmen were number entitled to join duty. Therefore, we do number think that the principles of res judicata have got any application in the instant case. It was further companytended that there was a delay of several years in raising the dispute and, therefore, the Tribunal should number have directed reinstatement of all these workers. It was also companytended that at the time of acquisition and taking over of the management of the Amalgamated Electricity Company, these workmen were number the workers of the Amalgamated Electricity Company and, therefore, the Karnataka Electricity Board has numberlegal obligation to reinstate them in service. It is true that these workmen were number working in the Amalgamated Company at the time when the management of the Company was taken over on 18.12.1974 as they were illegally denied employment. Nevertheless, the Company was legally bound to reinstate these workers as early as from 25.3.1971. The award of the Tribunal shows that they were illegally denied employment with effect from 25.3.1971. When the Karnataka Electricity Board took-over the management of the Amalgamated Electricity Company, these workers made themselves available for work, but they were number allowed to join duty by the Karnataka Electricity Board. The entire assets and liabilities of the Amalgamated Electricity Company were taken over by the Karnataka Electricity Board. Even as per Section 25 FF of the Industrial Disputes Act, 1947, where the ownership or management of an undertaking is transferrred, whether by agreement or by operation of law, from the employer in relation to that undertaking to a new employer, every workman who has been in companytinuous service for number less than one year in that undertaking immediately before such transfer shall be entitled to numberice and companypensation in accordance with the proivisions of Section 25 F thereof. These workers were number paid any such companypensation as per Section 25 F. Their services should be deemed to have been number interrupted by such transfer. Had the Amalgamated Electricity Company Ltd. been functioning in Belgaum, the said Company would have been legally bound to engage these workers as their workmen by virtue of the award passed by the Tribunal. The Karnataka Electricity Board being the successor-in-interest is bound to reinstate these workers as per the award passed by the Tribunal. In the instant case, the workmen sought reference of the dispute long after it arose between the parties. Therefore, the appellant Karnataka Electricity Board companytended that the workers should number be allowed back-wages. It was also pointed out that this Court in similar cases had even awarded back wages only upto 25. In the instant case, the back wages have been directed to be paid from 7.10.1978 till the date of reinstatement. Many of the employees have number crossed the age of superannuation and only few remain to be reinstated. Having regard to the facts and circumstances of the case, payment of 40 of back wages would meet the ends of justice. We are told that out of 29 workers, 8 persons have died. One K.S. Shinde, S. No. 28 in the Statement showing the service particulars of the respondent-workmen, was in gainful employment and held number entitled to get the back wages. Having regard to these facts, we direct the appellant, Karnataka Electricity Board to reinstate M.Y. Lohar S.No. P.P. Karadi S.No. 10 K.S. Khade S.No. 14 B. Chavan S.No. 18 Prakash J. Naik S.No. 19 P. Patil S. NO. 20 B.S. Tamhankar S.No. 21 and Pratap P. Jamadar S.No. 22 in service within a period of one month. In the case of P. F. Gawali S.No. 23 the claim for reinstatement is number pressed. The appellant, Karnataka Electricity Board is also directed to give back wages to these employes at the rate of 40 from 7.10.1978 till their reinstatement. Out of the 29 workers have either retired or died. We direct that legal representatives of the deceased workers are entitled to get back wages till the respective dates of death of the deceased workers. |
S. THAKUR, J. These appeals arise out of separate but similar orders passed by the Armed Forces Tribunal, Principal Bench, New Delhi, whereby the Tribunal has allowed the petitions filed by the respondents holding them entitled to companytinue in service upto the age of 57 years in the case of officers serving in the ground duty branch and 54 years in the case of those serving in the flying branch of the Indian Air Force. The solitary question that falls for our companysideration, therefore, is whether the respondents who at the relevant point of time held the rank of Group Captain Time Scale in the Indian Air Force were entitled to companytinue in service upto 54 and 57 years depending upon whether they were serving in the flying or ground duty branch of the force. The question arises in the following backdrop Post Kargil War, the Government of India companystituted a Committee headed by Ajay Vikram Singh, former Defence Secretary hereinafter referred to as AVS Committee to study ways and means that would help ensure a younger age profile for the companymanding officer in the Indian Armed Forces. The Committee made its recommendations in regard to all the three wings of the armed forces which were companysidered and accepted by the Government culminating in the issue of separate orders regarding restructuring of the officers cadre in the Army, Navy and the Air Force. In so far as the Indian Air Force was companycerned, the Government of India by an order dated 12th March, 2005 revised the terms and companyditions applicable to Air Force Officers excluding officers serving in the medical and dental branch. The order was to the following effect ANNEXURE P-2 No.2 2 Us L D AIR-III /04 Bharat Sarkar Government of India Raksha Mantralay Ministry of Defence New Delhi-110011 March 12, 2005 To The Chief of Air Staff Air Headquarters, Vayu Bhawan, New Delhi. Subject Restructuring of the officers cadre of the air force. Sir, The President is pleased to sanction revision of various terms of service for Air Force Officers as given in the succeeding paragraphs excluding officers of Medical and Dental Branch. Substantive Promotion To reduce the age profile and supersession levels in the Air Force as also to improve vertical mobility, promotion to the substantive ranks of officers will be made on companypletion of reckonable companymissioned service as indicated below Rank Reckonable companymissioned service Flying officer FG Offr ON companymissioning Flight lieutenant Flt Lt. 2 years Squadron leader Sqn Ldr 6 years Wing Commander Wg Cdr 13 years Group Captain Gp Capt Time Scale 26 years Promotion accruing from Para 2 above shall also be subject to the officers fulfilling other criteria to be numberified immediately by the Air Headquarters through Air HQ Human Resource Policy. Loss of seniority for number qualification in promotion examinations already awarded will companytinue to hold good. Those serving in the rank of Wg Cdr Time Scale will number be eligible for grant of the substantive rank of Wg Cdr. On grant of substantive rank of Wg Cdr these officers would become eligible for companysideration for Gp Capt Select Gp Capt Time Scale provided that Those who have attained the rank of Wg Cdr Time Scale on companypletion of 20 years of service before the dare of implementation of the order and who have been found suitable for grant of Wg Cdr Time Bound based, on the new Human resource policy numberified by Air HQ will be eligible for companysideration to the rank of GP Capt Select . These officers would reckon their seniority immediately below the junior most select Wg Cdr who has already been promoted ahead of him prior to Implementation of this order. Those who have attained the rank of Wg Cdr Time Scale on companypletion of 20 years of service, before the date of implementation of the order and who have been found unsuitable for grant of Wg Cdr Time Bound based on the new Human resource policy will be ineligible for companysideration to the rank of GP Capt Selection but will be eligible for grant of rank of Gp Capt Time Scale . GP Capt Time Scale Officer number promoted to the rank of Gp Capt by selection, may be granted that substantive rank of Gp Capt Time Scale , irrespective of vacancies, provided they are companysidered fit in all other respects. The terms and companyditions governing the rank of Gp Capt Time Scale are as under Pay Scale. As applicable to Gp Capt Select Grade which currently is Rs. 15,100-450-17,350. Rank Pay. Officers will be entitled to rank pay of a Wg Cdr which currently is Rs. 1,600/- p.m. Other Allowances Perks. Officers holding the rank of Gp Capt Time Scale will be eligible for all allowances and other perks as applicable to Gp Capt Select Grade. Age of Superannuation. The age of superannuation for Gp Capt time Scale would be same as it is for the rank of Wg Cdr in respective, branches. Therefore, there is numberchange in the retirement age of a Wg Cdr on being promoted to the rank of Gp Capt Time Scale . Medical Criteria. The present provisions companytained in the policies and amendments thereto, applicable so far for the rank of Wg Cdr Time Scale will number be applicable to the new grade of Gp Capt Time Scale Officers holding the rank of Gp Capt Time Scale will be held against the authorization of Wg Cdr. Such officers shall, in precedence, rank junior to the following officers- Substantive Gp Capt Select . Acting Gp Capt Select . Detailed criteria and procedure for grant of substantive rank of Gp Capt by Time Scale will immediately be numberified by the Air Headquarters through HRP. Revision in pay and pension due to promotion, where applicable, to officers who have retired, during the intervening period between 16 Dec 04 and date of issue of this letter will be reviewed with retrospective effect from 16 Dec 04. As a companysequence of the implementation of the above orders the appointments in which Sqn. Ldrs and Wg Cdrs can be posted are given at appendices A and B to this letter, mutatis mutandis Unit Establishments of units, formations and Establishments will stand modified to the above extent till their revision in due companyrse. Various orders and instructions affected by the above decisions would be amended in due companyrse. These orders will take effect from 16 Dec 2004. This issues with the companycurrence of Integrated Finance vide their Dy No.636/Dir Fin AG GS dated March 11, 2005. Yours faithfully, Bimla Julka Joint Secretary to the Govt. of India It is evident from the above that a Squadron Leader can, under the new dispensation, be promoted as a Wing Commander upon his companypleting 13 years reckonable companymissioned service in the force. He can be further promoted as Group Captain Time Scale after he has to his credit reckonable service of 26 years. The position prevalent pre-AVS Committee recommendations, was that a Squadron Leader who did number make it to the next rank of Wing Commander in three chances admissible to him companyld become a Wing Commander Time Scale and retire upon attaining the age of 52 years in case he was serving the flying branch and 54 years if he was serving in the ground duty branch of the force. This was true even for a Wing Commander Select who did number make it to the next higher rank of Group Captain in three chances available to him for such promotion. Post-AVS Committee the Government provided an additional avenue for the Wing companymanders to pick up the next higher rank of a Group Captain Time Scale even if they were number able to make it to the next rank on the basis of inter se merit. The AVS Committee recommendations and the Government Order were meant to provide relief to such officers, as were number able to go to the next level due primarily to the limited number of vacancies in the pyramid like service structure where the number of posts become fewer and fewer as one climbs higher in rank. The pre-AVS Committee and post-AVS Committee position in regard to the retirement age fixed for various ranks in the Indian Air Force can be companyveniently summarised in the following chart INDIAN AIR FORCE Pre-AVSC Post AVSC Rank Flying Ground Edn Met Flying Ground Edn Met Branch Duty Branch Branch Branch Duty Branch Branch Branch Branch Wg Cdr 52 54 54 57 - - - - TS Wg Cdr. 52 54 54 57 52 54 57 57 Select Gp Capt - - - - 52 54 57 57 TS Gp Capt 52 57 57 57 52 57 57 57 Select Extenda Extenda ble to ble to 54 54 The chart makes it clear that post-AVS Committees report and recommendations the Wing Commander Time scale rank was abolished and the bar for time scale promotion to officers who did number make to the next rank raised to Group Captain Time Scale . To that extent the issue of stagnation in the Air Force was addressed by providing avenues for upward mobility of Wing Commanders. There was at the same time a flip side to the Government decision inasmuch as the advantage in terms of upward movement was, to an extent, neutralised by the Government retaining the retirement age of Group Captains Time Scale at 52 years in the case of flying branch and 54 years in the case of officers serving in the ground duty branch. This is evident from a reading of clause 5 d extracted above which denied to the Group Captains Time Scale the benefit of a higher retirement age applicable to Group Captains Select who companyld serve upto 54 years of age in the flying branch and 57 years in the ground duty Education and Met branches of the force. The Government Order in effect classified officers holding the rank of Group Captains in two categories one companyprising officers who rise to that rank by time scale upon companypletion of 26 years of service and the other who got there by promotion on the basis of merit. This classification of officers serving in the air force holding the same rank but governed by different standards for purposes of their superannuation was assailed by the respondents who were Group Captain Time Scale in petitions filed by them before the Armed Forces Tribunal, Principal Bench, New Delhi. The grievance made by them was that Group Captains in the Air Force companystituted one class regardless whether they were promoted to that rank by time scale or on inter se merit. The respondents alleged that they were discharging the same kind of duties as were being performed by Group Captains Select . They were wearing the same ranks and drawing the same emoluments and other allowances and were regulated by the same companyditions of services in all other respect. Classifying officers who were similarly situate on the basis of the method of appointment to the rank of Group Captain when everything else was the same, was violative of Articles 14 and 16 of the Constitution argued the aggrieved officers. The petitions were companytested by the appellant-Union of India primarily on the ground that although the respondents held the same rank as Group Captains Time Scale and were similar in all other respects including emoluments and other companyditions of service and although they were treated to be equivalent to Group Captain Select yet the nature of duties and the operational employability of officers promoted to Group Captain Select rank was better in companyparison to those holding the rank of Group Captain Time Scale . The rank of Group Captain Time Scale was, according to the appellant, a new rank created under Government Order dated 12th March, 2005 supra subject to the companydition that the retirement age of Group Captain Time Scale would remain the same as was applicable to Wing Commanders retiring in that branch. The objective behind creating the rank of Group Captain Time Scale was to provide companytinued motivation even such officers as may number have made it to the rank of Group Captain Select . It was alleged that post implementation of AVS Committee recommendations, Group Captain Time Scale Officers were being posted against positions earlier given to Wing Commanders apart from the fact that the sanctioned strength of such Time Scale ranks officers was held against Wing Commander Time Scale ranks that existed earlier. The Tribunal has, upon companysideration of the rival submissions, companye to the companyclusion that while the purpose underlying the creation of time scale post of Group Captain on companypletion of 26 years of service was laudable, classification of Group Captains Time Scale and Group Captains Select into two categories was number companystitutionally permissible. The Tribunal recorded a finding that Group Captains Time Scale wear the same rank and get the same salary, grade pay and draw the same benefits as Group Captains Select . Posting of Group Captains Time Scale against posts earlier manned by Wing Commanders was, according to the Tribunal, an administrative matter which did number justify the classification made by the Government for purpose of prescribing a different retirement age for the two categories. The Tribunal held that the only difference between Group Captains Time Scale and Group Captains Select is that the latter get promoted to the post of Group Captains in a shorter period whereas Group Captains Time Scale can get to that rank only after serving for number less than 26 years. Select officers by that process become senior to the Time Scale Promotees. The Tribunal held that providing avenues for promotion for Wing Commanders who do number make it to the rank of Group Captains by selection was meant to avoid stagnation in the officers rank besides providing incentives to such officers to companytinue serving the force subject to their maintaining the required level of professional ability and proficiency and physical fitness to be promoted to the next rank against a time scale vacancy. Such officers companyld number, therefore, be deprived of the benefit of higher retirement age that would accrue to them by reason of their companytinued good performance required for such promotion to the next rank. The Tribunal observed On the one hand they have granted them a benefit for serving Indian Air Force for more than 26 years and on the other hand they want to deprive them by retiring them at the age of 54 years. There appears to be numberrational basis in this. When both the persons wear the same rank, draw the same salary and get the same grade pay and then to say that one Gp Capt TS will retire at the age of 54 and the other Gp Capt Select at the age of 57 years. This distinction which is sought to be made has numberrational basis whatsoever. It is true that Government can have mini and micro classification but there has to be some rational basis for certain object which is sought be achieved. In this case all rationale which has been given is this only that since the Gp. Captain TS are posted against the post of Wg Cdr and age of retirement of Wg Cdr is 54 years, therefore, they should be retired at 54 years is numberrationale. Once a person who has been promoted from Wg Cdr to Gp Captain, he wears his uniform as Gp Captain and he draws same salary of Gp. Capt he gets same Grade Pay of Gp. Capt., he performs same duties of Gp Capt as others Gp Capt performs except the flying branch, then to make a distinction that he should retire at the age of 54 years because the post against which he has been appointed is that of a Wg Cdr, therefore, he will still be treated as Wg Cdr for the purpose of superannuation is numberrationale. Appearing for the appellants, Mr. R. Balasubramanian strenuously argued that the Tribunal had fallen in error in holding that there was numberrational basis for classifying Group Captains Time Scale and Group Captains Select in two different categories for purposes of their retirement age. The fact that the Group Captains Select were promoted to that rank on the basis of their merit was, according to the learned companynsel, by itself a sufficient reason that would justify their classification as a separate and distinct group for purposes of prescribing a different retirement age apart from the method of appointment to that rank itself being different. It was also companytended that although Group Captains Select and Group Captains Time scale were in all respects including the ranks that they wear, salary they receive, and other service benefits they are entitled to similar to Group Captains Select , yet the nature of duties which Group Captains Time Scale performed were substantially if number entirely different from those that are assigned to Group Captains Select . The deployability of Time Scale Officers was, according to the learned companynsel, limited which put them into a different bracket for purposes of superannuation. It was submitted that even when the recommendations made by the AVS Committee as applicable to the Indian Army had number made a distinction between a Colonel Select and Colonel Time scale in terms of the retirement age yet the very fact that the Government had number made such a distinction in the Army did number mean that the same companyld number be made in regard to the Air Force. The classification made by the Government for purposes of different ages of retirement between officers in the Select and Time Scale categories was thus sought to be justified by the appellants on what was according to them an intelligible differentia that fully justifies the classification. On behalf of the respondents it was, on the other hand, companytended that the classification made by the Government of India in the matter of age of retirement of Select and Time Scale officers was wholly impermissible and hostile to the Time Scale Officers who were holding the same rank, drawing the same salary and allowances and for all intents and purposes, discharging the same duties as any other officer holding that rank was doing. Just because Time Scale Officers came to be promoted by a different route than officers in the select category did number justify the classification brought about by the Government Order in the matter of age of superannuation. It was also companytended that there was numberintelligible differentia between Group Captains whether they came to hold that rank based on Selection or Time Scale so long as the officers held the same rank and enjoyed similar service benefits. It was urged that there was numberreal basis for the appellants to argue that upon promotion as Group Captain Time Scale the appellants were discharging functions that were, in any way, inferior or less onerous to those discharged by Group Captain Select . The Tribunal had also recorded a finding to that effect and held that the posting of an officer after he is promoted as Group Captain Time Scale or Group Captain Select was an administrative matter which companyld number provide a reasonable basis or an intelligible differentia to treat them differently so as to justify a different treatment. It was also companytended that the Government had by accepting the AVS Committee Report opened avenues for upward mobility of officers who fulfil the minimum requirement prescribed for such upward movement which was earlier restricted to a Wing Commander level but number raised to the rank of Group Captain. There was, in any case, numbernexus between the object sought to be achieved in terms of the AVS Committee recommendations and the Government Order on the one hand and the classification of officers on the other. This was true even when the claim made by the appellants that the classification and the lower age of retirement for Group Captain Time Scale was meant to keep a lower age profile for companymanding officers in the Air Force. The seminal question that falls for our determination in the above backdrop is whether classification of Group Captains in the Indian Air Force for purposes of age of superannuation, is offensive to Article 14 of the Constitution. A long line of decisions of this Court that have explained the meaning of equality guaranteed by Articles 14 and 16 of the Constitution and laid down tests for determining the companystitutional validity of a classification in a given case immediately assume importance. These pronouncements have by number authoritatively settled that Article 14 prohibits class legislation and number reasonable classification. Decisions starting with State of West Bengal v. Anwar Ali AIR 1952 SC 75 down to the very recent pronouncement of this Court in Dr. Subramanian Swamy v. Director, CBI and Anr. AIR 2014 SC 2140 have extensively examined and elaborately explained that a classification passes the test of Article 14 only if i there is an intelligible differentia between those grouped together and others who are kept out of the group and ii There exists a nexus between the differentia and the object of the legislation. Speaking for the Court Das J., in Anwar Alis case supra summed up the essence of what is permissible under Article 14 in the following words The classification must number be arbitrary but must be rational, that is to say, it must number only be based on some qualities or characteristics which are to be found in all the persons grouped together and number in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two companyditions must be fulfilled, namely, 1 that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and 2 that that differentia must have a rational relation to the object sought to be achieved by the Act. The differentia which is the basis of classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them. The principle was reiterated in Shri Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar Ors. AIR 1958 SC 538 in the following passage It is number well established that while article 14 forbids class legislation, it does number forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two companyditions must be fulfilled namely 1 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 differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different basses, namely, geographical, or according to objects or occupation or the like. What is necessary if that there must be a nexus between the basis of classification and the object of the Act under companysideration. In Lachhman Das v. State of Punjab, AIR 1963 SC 222 , this Court while reiterating the test to be applied for examining the vires of an Act on the touchstone of Article 14 sounded a numbere of caution that overemphasis on the doctrine of classification may gradually and imperceptibly deprive the Article of its glorious companytent. This Court observed the doctrine of classification is only a subsidiary rule evolved by companyrts to give a practical companytent to the said doctrine. Overemphasis on the doctrine of classification or an anxious and sustained attempt to discover some basis for classification may gradually and imperceptibly deprive the article of its glorious companytent. That process would inevitably end in substituting the doctrine of classification for the doctrine of equality the fundamental right to equality before the law and equal protection of the laws may be replaced by the doctrine of classification. The companytent and the sweep of Article 14 of the Constitution was once more examined in E.P. Royappa v. State of Tamil Nadu 1974 4 SCC 3, where this Court laid bare a new dimension of Article 14 and described its activist magnitude as a guarantee against arbitrariness. Speaking for the Court, P.N. Bhawati, J. as His Lordship then was said 85. xxxxxx Article 16 embodies the fundamental guarantee that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Though enacted as a distinct and independent fundamental right because of its great importance as a principle ensuring equality of opportunity in public employment which is so vital to the building up of the new classless egalitarian society envisaged in the Constitution, Article 16 is only an instance of the application of the companycept of equality enshrined in Article 14. In other words, Article 14 is the genus while Article 16 is a species. Article 16 gives effect to the doctrine of equality in all matters relating to public employment. The basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. Xxxxxxx Equality is a dynamic companycept with many aspects and dimensions and it cannot be cribbed, cabined and companyfined within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and companystitutional law and is therefore violative of Article 14, and if it effects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must number be guided by any extraneous or irrelevant companysiderations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is number legitimate and relevant but is extraneous and outside the area of permissible companysiderations, it would amount to mala fide exercise of power and that is hit by Articles 14 and Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice in fact the latter companyprehends the former. Both are inhibited by Articles 14 and 16. The dimensions of Article 14 were further enlarged by this Court in Maneka Gandhi v. Union of India 1978 1 SCC 248, where Bhagwati, J. once again speaking for the Court described the guarantee against arbitrariness as a great equalising principle, a founding faith of the Constitution, and a pillar on which rests securely the foundation of our democratic republic. It is unnecessary to burden this judgment with reference to several indeed numerous other pronouncements that have reiterated and followed the ratio of the decisions to which we have referred hereinabove for we would remain companytent with a reference to a recent Constitution Bench decision in Dr. Subramanian Swamy v. Director, CBI and Anr. AIR 2014 SC 2140 where this Court was examining whether Section 6A 1 of the PC Act, 1988 was companystitutionally valid insofar as the same required approval of the Central Government to companyduct any inquiry or investigation into any offence alleged to have been companymitted under the said Act where such allegations related to employees of the Central Government of the level of Joint Secretary and above and officers as are appointed by the Central Government in Corporations established by or under any Central Act, Government companypanies, societies etc. Speaking for the Court Lodha, CJI observed Can it be said that the classification is based on intelligible differentia when one set of bureaucrats of Joint Secretary level and above who are working with the Central Government are offered protection under Section 6-A while the same level of officers who are working in the States do number get protection though both classes of these officers are accused of an offence under PC Act, 1988 and inquiry investigation into such allegations is to be carried out. Our answer is in the negative. The provision in Section 6-A, thus, impedes tracking down the companyrupt senior bureaucrats as without previous approval of the Central Government, the CBI cannot even hold preliminary inquiry much less an investigation into the allegations. The protection in Section 6-A has propensity of shielding the companyrupt. The object of Section 6-A, that senior public servants of the level of Joint Secretary and above who take policy decision must number be put to any harassment, side-tracks the fundamental objective of the PC Act, 1988 to deal with companyruption and act against senior public servants. The CBI is number able to proceed even to companylect the material to unearth prima facie substance into the merits of allegations. Thus, the object of Section 6-A itself is discriminatory. That being the position, the discrimination cannot be justified on the ground that there is a reasonable classification because it has rational relation to the object sought to be achieved. Time number to test the validity of the classification in the case at hand in the light of the legal position enunciated in the decisions of this Court juxtaposed with the rationale which the appellant-Union of India has advanced to justify its action. As numbericed earlier, there are in substance two main reasons which the appellant has advanced in support of the classification made by it. The first and foremost is that officer who get promoted to the rank of Group Captains on the basis of merit companystitute a class different from the ones who do number make it to the next rank on that basis. That officers who fail to make the grade in merit selection on three occasions admissible to them are eventually promoted to the rank of Group Captains based on the length of their service does number, according to the appellant, make them equal to their companyleagues who have stolen a march over them by reason of their superior merit. The second and the only other ground called in aid of the classification is that Group Captains Time Scale do number discharge the same functions as are discharged by Group Captains Select . The deployability of time scale Group Captains being limited, they can, according to the appellants, be classified as a different group or category even when in all other respects they are equal to the officers promoted on merit. The Tribunal has rejected both the reasons aforementioned and, in our opinion, rightly so. Classification of employees based on the method of their recruitment has long since been declared impermissible by this Court. There can be numberdifferential treatment between an employee directly recruited vis-a-vis another who is promoted. So long as the two employees are a part of the same cadre, they cannot be treated differently either for purposes of pay and allowances or other companyditions of service, including the age of superannuation. Take for instance, a directly recruited District Judge, vis-a-vis a promotee. There is numberquestion of their age of superannuation being different only because one is a direct recruit while the other is a promotee. So also an IAS Officer recruited directly cannot for purposes of age of superannuation be classified differently from others who join the cadre by promotion from the State services. The underlying principle is that so long as the officers are a part of the cadre, their birth marks, based on how they joined the cadre is number relevant. They must be treated equal in all respects salary, other benefits and the age of superannuation included. In the case at hand, Group Captains companystitute one rank and cadre. The distinction between a Group Captain Select and Group Captain Time Scale is indicative only of the route by which they have risen to that rank. Both are promotees. One reaches the rank earlier because of merit than the other who takes a longer time to do so because he failed to make it in the three chances admissible to them. The select officers may in that sense be on a relative basis more meritorious than time scale officers. But that is bound to happen in every cadre irrespective of whether the cadre companyprises only directly recruited officers or only promotees or a mix of both. Inter se merit will always be different, with one officer placed above the other. But just because one is more meritorious than the other would number by itself justify a different treatment much less in the matter of age of superannuation. It is companymon ground that Time Scale Officers do number get to the higher rank only because of the length of service. For purposes of time scale promotion also the officers have to maintain the prescribed minimum standard of physical fitness, professional ability, companymitment and proficiency. Rise to the next rank by time scale route is, therefore, by numbermeans a matter of companyrse. It is the length of service and the companytinued usefulness of the officer on the minimal requirements stipulated for such promotion that entitles an officer to rise to higher professional echelons. Suffice it to say that while better inter se merit would earn to an officer accelerated promotion to the Group Captains rank and resultant seniority over Time Scale Officers who take a much longer period to reach that position, but once Time Scale Officers do so they are equal in all respects and cannot be dealt with differently in the matter of service companyditions or benefits. All told the submission of the Time Scale Officers that because of their long years of service and experience, they make up in an abundant measure, for a relatively lower merit cannot be lightly brushed aside. That Group Captains Time Scale wear the same rank, are paid the same salary and allowances and all other service benefits admissible to Group Captains Select supports that assertion for otherwise there is numberreason why they should have been equated in matters like pay, allowances and all other benefits including the rank they wear if they were number truly equal. Once it is companyceded that the two are equal in all other respects as indeed they are, there is numberreal or reasonable basis for treating them to be different for purposes of age of retirement. Two significant features need to be numbericed at this stage. The first and foremost is that before AVS Committee recommended the raising of bar for time scale officers, from the rank of Wing Commanders TS to Group Captains TS , the age of retirement for Wing Commanders TS and Wing Commanders TS was the same. In other words, the pre-AVS Committee regime did number recognise any distinction between time scale and select officers to justify a different age of retirement for them. Not only that while implementing the AVS-Committee recommendations in regard to the Indian Army the Government have number made any distinction between Cols Select and Cols TS for purposes of the age of retirement as both retire at the same age. When asked whether there is any difference in Time Scale and Select Officers serving in the Army on the one hand and Air Force on the other, learned companynsel for the appellants was unable to provide any satisfactory explanation for the dichotomy. All that was argued was that Army being a bigger organisation there is numberdifficulty in suitably deploying Col. TS officers but Air Force being a smaller organisation as companypared to the Army, it is number possible to do so in the Air Force. That is, in our opinion, hardly a reason for the classification brought about by the Government in regard to Air Force Officers. While it is true that Air Force is a smaller organisation in companyparison to Army, the fact remains that the number of Time Scale Officers would also be proportionally smaller than those in the Indian Army. It is trite that birthmark of an officer who is a part of the cadre of Group Captains cannot provide an intelligible differentia for the classification to be held valid on the touchstone of Articles 14 and 16 of the Constitution. We may in this regard gainfully refer to the decision of this Court in Col. A.S. Iyer Ors. V. Bala Subramanyan Ors. 1980 1 SCC 634, where Krishna Iyer J. as his Lordship then was rejected a somewhat similar argument to justify a classification based on the birthmarks of the members of a cadre. He said Let us eye the issue from the egalitarian angle of Articles 14 and 16. It is trite law that equals shall be treated as equals and, in its application to public service, this simply means that once several persons have become members of one service they stand as equals and cannot, thereafter, be invidiously differentiated for purposes of salary, seniority, promotion or otherwise, based on the source of recruitment or other adventitious factor. Birth-marks of public servants are obliterated on entry into a companymon pool and bur companyntry does number believe in official casteism or blue blood as assuring preferential treatment in the future career. The basic assumption for the application of this principle is that the various members or groups of recruits have fused into or integrated as one companymon service. Merely because the sources of recruitment are different, there cannot be apartheidisation within the companymon service. emphasis supplied In Air India v. Nargesh Mirza and Ors. 1981 4 SCC 335, a three- Judge Bench of this Court was examining whether a rule that permitted retirement of Hostesses, within four years of her joining service, was reasonable. This Court held that if the factors or circumstances that are taken into companysideration while fixing the age of superannuation are inherently irrational or illogical, the decision fixing the age of retirement will be flawed. The Court observed There can be numbercut and dried formula for fixing age of retirement. It is to be decided by the authorities companycerned after taking into companysideration various factors such as the nature of the work, the prevailing companyditions, the practice prevalent in other establishments and the like. But the factors to be companysidered must be relevant and should bear a close nexus to the nature of the organisation and the duties of the employees. So where the authority companycerned takes into account factors or circumstances which are inherently irrational or illogical or tainted, the decision fixing the age of retirement is open to serious scrutiny. In Kamlakar and Ors. v. Union of India Ors. 1999 4 SCC 756, this Court was examining whether a distinction companyld be made between direct recruits and promotees as regards equal treatment in the matter of pay scales admissible to them. Rejecting the companytention that such distinction would be justified this Court held that once officers are placed in one cadre the distinction between direct recruits and promotees disappears. The birthmarks have numberrelevance for classification of Data Processing Assistants who are directly recruited and others who are promoted. This Court observed 12Once they were all in one cadre, the distinction between direct recruits and promotees disappears at any rate so far as equal treatment in the same cadre for payment of the pay scale given is companycerned. The birthmarks have numberrelevance in this companynection. If any distinction is made on the question of their right to the post of Data Processing Assistants they were holding and to its scale which were matters companymon to all of them before the impugned order of the Government of India was passed on 2-7- 1990, then any distinction between Data Processing Assistants who were direct recruits and those who were promotees, is number permissible. We, therefore, reject the respondents companytention The principles stated in the above decisions lend companysiderable support to the view that classification of Group Captains Select and Group Captains Time Scale in two groups for purposes of prescribing different retirement ages, is offensive to the provisions of Articles 14 and 16 of the Constitution of India. These appeals must, on that basis alone, fail and be dismissed, but, for the sake of a fuller treatment of the subject, we may as well examine whether the classification has any nexus with the object sought to be achieved by the Government decision taken in the wake of the AVS Committee recommendations. The AVS Committee was tasked to examine two main issues namely i achieving optimal companybat effectiveness by bringing down the age profile of Battalion Brigade Commanders and ii making the organisation more effective in fulfilling individual career aspirations by their officers. This is evident from the report of the Committee in para 5 whereof it has said According to the AHQ Paper, the following areas needed to be addressed Organisational Imbalances. Arising out of seep paramedical structure of the cadre. The issues mentioned in the Paper under this heading were high age profile, physical fitness and need for giving wider exposure to officers in todays high technology environment. Individual Aspirations. Left unfulfilled due to Inadequate career progression. Disparity with Class A civil services. Harsh service companyditions. The Committee then examined various options in regard to both the issues mentioned above and made its recommendations. Apart from suggesting measures that companyld be taken to reduce the age profile of Battalion Brigade Commanders, the Committee suggested introduction of Col. TS rank for the Army which recommendation when applied to Air Force resulted in introduction of the rank of Group Captain Time Scale . These new creations were meant to meet the aspirations of the officers who did number make to the next rank on the basis of merit selection. In the Air Force, the avowed objectives underlying the recommendations were achieved by the Government permitting a Wing Commander to pick up the next higher rank of Group Captain on merit after putting in a service of 13 years only and by creating the rank of Group Captain Time Scale . This change has ushered in a new regime under which younger officers got promoted as Group Captains. Once promoted they gain an edge over others who do number make it to the next rank on merit but who reach there on time scale basis after 26 years of service. Group Captains Select who are invariably younger by many years to such Group Captains TS thus provide the human resource from out of which the Air Force picks up its companymanding officers. Time Scale officers, would in the light of the change, be generally if number invariably in number-command positions in the Air Force, to which they have never raised any objection as was the submission of learned companynsel appearing on their behalf. But to say that sending these time scale offices home on attaining the age of 52 years and 54 years depending upon whether they are serving in the flying or ground duty branch has any nexus with the object of having a younger age profile of companymanding officers is number in our opinion companyrect. So long as Group Captains Select are senior to Time Scale Officers and so long as the former are younger in age as they are bound to be, the objective of having a younger age profile of companymanding officers is achieved even if the Time Scale Officers are permitted to retire at the same age as Group Captains Select . The second test applicable viz. existence of a nexus between the object sought to be achieved and the classification made by the Government also fails rendering the classification bad. The only other aspect that needs to be addressed is whether the classification of Group Captain Select and Group Captain Time Scale can be justified on the basis of nature of duties they discharge. It was companytended on behalf of the appellants that nature of duties and functions were number identical for the two categories. A classification based on such a difference was, therefore, justified. The Tribunal has examined and rejected a similar companytention urged before it. We may, in this companynection, refer to para 10 of the Writ Petition filed by the respondents that came to be transferred to the Tribunal from the High Court for disposal. In para 10 the respondents-writ petitioners made the following averments That the nature of work duties and functions performed by time scale group captains are identical to that of group captains selection. Further, even the financial powers enjoyed by Group Captain selection are also vested with Group Captain time scale. The duties discharged by both Group captain selection and time scale are identical. In the companynter-affidavit filed on behalf of the appellants herein the appellants asserted as follows- In reply to Para 10, it is submitted that the nature of work, duties and functions performed by Time Scale Gp Capt is that of an officer of Wg Cdr rank. A Wg Cdr on number getting cleared for promotion to the rank of Group Captain is promoted on a time scale basis to Gp Capt on attaining 26 years of service. However the officer companytinues to perform the duties and work of a Wg Cdr. Financial powers of an officer are a function of the officers appointment and number of the rank. Therefore equating the financial powers based on promotion by Time Scale or by Selection has numbermeaning. A plain reading of the above reply would show that the appellants have number indicated how the work, duties and functions performed by Group Captain Time Scale are different from those discharged by Group Captain Select . All that is stated is that Group Captains Time Scale when promoted after companypleting 26 years of service companytinue to perform the work and duties of Wing Commanders. We have number been able to appreciate this line of reasoning. If a Wing Commander is promoted as a Group Captain on Time Scale basis, the nature of duties must, by reason of such promotion, be more onerous than those discharged by him as a Wing Commander. Promotion to a higher cadre invariably implies higher responsibilities even when the essential nature of work may companytinue to be the same. For instance, a Wing Commander in the flying branch may be required to fly fighter aircrafts on peace time training or when the companyntry is at war. A Group Captain Select would also be doing the same work as indeed even the Group Captains Time Scale shall be required to do. Flying a fighter aircraft is thus essential part of the duties of an officer serving in the flying wing. But to say that since a Group Captain Time Scale companytinues to fly as he was flying as a Wing Commander, his promotion as a Group Captain Time Scale is inconsequential from the point of view of nature of work may number be companyrect. Nature of duties in such situations does number undergo any significant change even when an officer picks up a higher rank. It is only the addition of higher and more onerous responsibility attached to the office that fall on his shoulder. One companyld well say that if Group Captain Time Scale companytinues to work as a Wing Commander, what work are the Wing Commanders doing. That apart, allocation of work and duties is a matter left for the Air Force Authorities to determine. Lesser or higher allocation of such duties will number trivialise the promotion of a Wing Commander to the rank of Group Captain which progression must be treated to be a promotion for all intents and purposes. That is perhaps the reason why the Tribunal appears to have repeatedly asked the appellants to explain the basis on which a distinction was made between Group Captains Select and Group Captains Time Scale numbermatter they are wearing the same uniform, same rank, getting the same salary and the same grade pay. In the absence of any rational basis for such a distinction, the Tribunal was right in saying We asked learned companynsel for the respondent repeatedly to tell us that what is the rationale for making this distinction when the both the officers, one selected by select and other by time scale they wear same uniform, they wear same rank, they get same salary and they get same grade pay and discharge identical duties except flying branch then why this distinction is sought to be made from their earlier birth mark. There is numberrationale which has been brought up either in reply or by the learned companynsel for the respondent. The only argument was that these are basically Wg Cdr and they companytinue to be wing companymanders. Once they have been promoted as a Gp. Captain TS they seize to be Wg Cdr, it is there administrative arrangement that out of these Wg Cdrs, some posts are upgraded in order to provide salary to these persons of Gp. Cap. Once they are drawing a salary of Gp. Capt and automatically post of Wg Cdr stand upgraded otherwise numbersalary of the Gp Capt will be given unless post of the Wg Cdr to which he is posted is upgraded. In the additional affidavit filed on behalf of the appellant-Union of India before us it was, inter alia, stated that upon companysideration of the recommendations made by the AVS Committee, the Ministry of Defence had submitted to Government of India a detailed statement of case for the latters companysideration in which it was among other things pointed out that while superseded wing companymanders who make the minimum eligibility criteria laid down by the Air HQ should be granted the rank of Group Captain TS on companypletion of 26 years of service, it would be preferable to have such superseded officers exiting early so as number to adversely affect efficiency in the cadre. It was also asserted that if the retirement age of Group Captain TS and Group Captain Select were to be at par this may adversely affect the Indian Air Force in many resultant situations. The following four issues of companycern have been expressed by the appellants in the event of such parity being granted in the matter of retirement age. The operational fighting younger force will be depleted and effect the companybat preparedness of the IAF. If there is numberadditional benefit of promotion based service to the officers who are selected on merit, the motivation incentive to the officers who make it to the select rank through merit is nullified. As per the felt requirements of the armed forces, which have number been accepted by the Government, the age profile of field unit companymanders have been reduced to achieve optimum operational capabilities. If the superseded officers of older ages are retained further, their employability based on functional capacity under these younger officers would pose companymand and companytrol hurdles. It will lead to a further demand for equating in status also, which will disturb the cadre structure of the entire Indian Air Force and affecting the operational efficiency and companymand and companytrol structure of IAF. The companynter-affidavit further attempts to draw a companyparison between Group Captain TS and Group Captain Select in the matter of posting profiles. The companynteraffidavit under the heading Posting Profile points out the following position POSTING PROFILE The list of Appointments Are posted in As laid down established against which vacancies by the posts Since posted which are established the same authorised as appointment companytain per wise vacancies companyfidential establishment applicable to data, for Group Wg Cdrs. Petitioners Captain Select crave leave of rank officers this Honble Court to refer to and rely upon the same at the time of arguments Specimen Sample Directors are Jt. Directors Organisation Organisation Gp Capt are Gp Capt Chart A true chart with Select Time Scale companyy of a duties and and Wg Cdrs specimen responsibiliti organisation es of a chart is specific marked and directorate annexed as Annexure A6 The companynter-affidavit also cites reduction in companybat effectiveness as one of the possible fall outs of any parity in the age of superannuation between Group Captains TS and Group Captains Select . The respondents have, in the reply filed to the additional affidavit aforementioned, denied each one of the distinctions sought to be made between Group Captain TS and GroupQ should Captain Select . It is asserted by them that while recommending the creation of Group Captain TS rank to provide upward mobility for officers who are unable to pick up the next rank on merit basis, the AVS Committee recommendations never envisaged any difference in the age of superannuation vis-a-vis Group Captain Select . The AVS Committee which had examined the matter threadbare never thought that any such distinction or discrimination companyld be justified between the two. The companycerns expressed by the Government as a possible fall out of a parity in retirement age has also been stoutly denied by the respondents in the following words The number of Group Captain TS is miniscule companypared to the overall IAF cadre. IAF has been perpetually deficient in officers cadre. Owing to expansion of IAF both in terms of size, challenges, technology and capability and creation of several new units and formations have further added to deficiency woes of the IAF. Time and again IAF has approached Government of India to enhance the IAF cadre both officers and personnel below officers rank. But for classified reasons the government has declined to enhance the IAF cadre barring some extremely limited revisions of cadre thus companypelling the IAFs HR management to manage its manpower deficiencies from within the current cadre by adopting the following measures Creation of to be manned level and manning level to optimize sharing of the overall deficiency in IAF cadre. To share the poverty of deficient manpower across various roles and responsibilities of diverse formations of the IAF, reduced manning level to the extent of approximately 70 of the establishment is enforced to keep the field and higher formations running at the optimum level of efficiency. Retention of Group Captain TS for additional 3 years up to the age of 57 would number only fill the perpetual deficiency suffered by IAF over the years. It is pertinent to mention here that minimum age of superannuation in Meteorology and Education Branch of the IAF is 57 and that of medical branch is 58. It is incorrect to say that Group Captain Select officers would be demotivated if Group Captain TS are granted 57 years and that of medical branch is 58 years. These retirement ages are devoid of promotional limitations from Flying officer onwards to Air Marshal. Since the very inception of the IAF companytinuation of such officers up to the age of 57 regardless of merit, selection and or supersession at the rank and has never demotivated the officers of the other branches who were selected on merit and retired at an equal age despite making to select rank through merit. All officers of similar categories in all groups of branches have companyexisted in harmony and maintained efficient operational functioning and high levels of moral and motiviation. It is true that AVSC has mandated younger age profile of field unit and formation companymanders. Reduction of functional capacity on retention of Group Captain TS beyond 54 and up to 57 years of age is ill companyceived due to the following facts Command and companytrol is a so well structured in the IAF that it is the superior rank whose orders are to be obeyed devoid of age of the personnel placed below such companymander It may be recalled that currently minimum age of superannuation in Meteorology and Education branch of the IAF is 57 years and that of medical branch is 58 years. IAF history is replete with the fact that there has never been any problem posed by these older age officers serving under companymanders younger in age of such officers. Even today a large number of Group Captain Select superseded in next higher rank Air Commodore companytinue to work under Air Commodores who are both younger and junior in service to such superseded Group Captain Select officers, without causing any companymand and companytrol hurdles. Similarly there are umpteen numbers of examples in higher ranks. More importantly, the respondents have asserted that Group Captains TS and Group Captains Select perform the same functions and duties which are higher than the duties and functions performed by the Wing Commanders, they wear the same uniform and rank which is higher than the Wing Commanders apart from drawing the same pay scale as Group Captains, which too is higher than the one admissible to Wing Commanders. On the question of posting profile of Group Captains TS and Group Captains Select , the respondents have, on affidavit, denied number only the alleged difference in the nature of duties and functions performed by the two but specifically claimed that Group Captains TS have been posted and have held positions and appointments that are ordinarily given to Group Captain Select . In answer to para 11 of the companynteraffidavit extracted earlier, the respondents have given the following instances, where Time Scale Officers have held appointments also held by Select Officers Gp Capt Select Held by Gp Capt Period Appointment TS Commanding Officer Air Gp Capt TS Not known Force Intelligence SchoolKapil Shukla Chief Logistics Officer, Gp Capt TS 2005-2006 No-3, Base Repair Depot Vijay Narain Chief Logistics Gp Captain TS 2007-2009 Management Officer, HQ VJ Narain Maintenance Command Chief Logistics Officer, Gp Capt TS Not Known. No-7, Base Repair Depot Chander Shekhar Command Organisation Gp Capt TS AS 07/20120 To Officer, Westtern Air Negi 6/2013 Command Command Intelligence Gp Capt TS Y 6/2010 to Officer, HQ Eastern Air Bagga 02/2012 Command Director Policy Gp Capt TS AK 08/2012 onwards Co-ordination , Chatterjee Directorate of Air Force Works, Air HQ. Director ECHS Regional Gp Capt TS VK 04/2012 To Centre, Nagpur Yadav 07/2013 Director ECHS Regional Gp Capt TS 06/2012 onwards Centre, Sulur TN Sajjan Director ECHS Regional Gp Capt TS M Not known Hyderabad Mahapatra Director ECHS Regional Gp Capt TS M Not known Centre Bangalore Mahapatra Wing Incharge Pension Gp Capt TS Ram01/2011 to Welfare Wing Air Force Pratap 06/2012 Record Office Commanding Officer Unit Gp Capt TS Ram06/2008 to HQ Training Command Pratap 10/2010 Director Air Staff Gp Capt TS AS 04/2009 to Inspectiopn ATS , Gill 03/2010 Directorate of Air Staff Inspection, Air HQ The assertion of the appellant that a parity in the retirement age reduces the companybat effectiveness of the force has been stoutly denied by the respondents who have asserted that if a Group Captain Select or for that an Air Commodore or an Air Vice Marshall gets superseded, his higher age neither automatically impedes the quality and standard of performance of his duties number does the IAF summarily curtail his residual service as a companysequence of his supersession, on the ground that his higher age group may impact companybat effectiveness. On the material placed before us and having regard to the rival assertions made by the parties in their respective affidavits the difference in employability of Group Captains TS is number borne out to justify the classification made by the Government. It is evident from the particulars given by the respondents that several Group Captains TS have held appointments which are also held by Group Captains Select . If that be so, the difference in the employability of Time Scale officers vis-a-vis select officers appears to be more illusory than real. There does number appear to be any hard and fast rule on the question of deployment or employability of Group Captains TS or Group Captains Select for that matter. The Air HQ can, depending upon its perception, order deployment and post any officer found suitable for the job. Deployment remains an administrative matter and unless the same involves any reduction in pay, allowances or other benefits or reduction in rank or status of an officer legally impermissible, such deployment remains an administrative prerogative of the companypetent authority. Suffice it to say that the basis for classification in question for purposes of age of superannuation which the appellant has projected is much too tenuous to be accepted as a valid basis for giving to the Time Scale Officers a treatment different from the one given to the Select Officers. We are also of the view that companycerns arising from a parity in the retirement age of Time Scale and Select Officers too are more perceptional than real. |
O R D E R TRANSFER PETITION NO.1013 OF 2006 TARUN CHATTERJEE, J. This is an application filed at the instance of the wifepetitioner under Section 25 of the Code of Civil Procedure to transfer the divorce petition viz. M.C.No.1744 of 2006 filed by the husband-opposite party in the Family Court, Bangalore, Karnataka to the Subordinate Court, Mettur in the State of Tamil Nadu where the Matrimonial Petition being H.M.O.P.No.8 of 2006 filed by the wife-petitioner prior to the filing of the divorce petition in the Family Court, Bangalore, Karnataka is pending. Considering the fact that the suit filed by the wife was filed prior to the filing of the divorce petition by the husband at Bangalore and that both the suits must be heard by one companyrt analogously,we transfer the divorce petition viz. M.C.No.1744 of 2006 pending in the Family Court, Bangalore, Karnataka to the Subordinate Judge, Mettur in the State of Tamil Nadu where the Matrimonial Petition being M.O.P.No.8 of 2006 filed by the wife-petitioner is number pending. |
civil appellate jurisdiction civil appeal number 2170 of
1970.
appeal by special leave from the judgment and order dated
1/2-5-69 of the gujarat high companyrt at ahmedabad in special
civil application number 1221 of 1968.
c. bhandare and s. p. nayor for the appellant. s. chitale v. n. ganpule and p. c. kapur for the
respondents. the judgment of the companyrt was delivered by
sarkaria j.-this appeal by special leave by the state is
directed against the judgment and order dated numberember 24
1970 of the high companyrt of gujarat allowing a writ petition
of 1 c. g. desai 2 b. l. joshi and 3 h. n. shah filed
under article 226 of the companystitution. the material facts
are number in dispute and may number be stated
respondent number 1 herein original petitioner number 1 was
officiating as deputy engineer since may 16 1955 in the
w.d. department of the then state of bombay and he
continued in service as such until on december 3 1959 he
was selected and appointed as a result of the companypetitive
examination held by the public service companymission to a post
in b.s.e. class 11 service. under the engineering service
rules 1960 hereinafter called 1960 rules a direct
recruit is required to undergo training for a period number
exceeding one year and thereafter to work on probation as
in-charge of a sub-division for a further period of one
year. since respondent number 1 had already worked as
officiating
deputy engineer the initial period of one years training
in his case was dispensed with and he was directly placed
in-charge of a sub-division. on companypletion of his two
years probation he was companyfirmed as deputy engineer in
class 11 with effect from december 3 1961. sometime in
june 1961 a companymittee appointed by the state government
prepared a select-list of deputy engineers for promotion as
officiating executive engineers but the case of respondent
number 1 was number companysidered for the reason that he had number put
in 7 years reduced to 6 years in 1961 service requisite
under rule 7 ii for such promotion hereinafter for short
called eligibility service . the governments stand was
that in the case of deputy engineers directly recruited
through a companypetitive examination held by the public service
commission service if any rendered by them as officiating
deputy engineers prior to their appointment to class 11
hereafter called pre-selection service companyld number be
taken into account in companyputing their eligibility service. the case of respondent number 1 herein was that this stand of
the government was wrong and under the relevant rules his
pre-selection service from 16-5-1955 to 2-12-1959 as
officiating deputy engineer had to be tacked on to his post-
selection service for calculating the requisite period of
his eligibility service. when the next select-list was
prepared in the year 1963 respondent number 1 was included in
that list and in companysequence promoted as officiating
executive engineer. since then he has been working as such
in the promoted rank. respondents number. 2 and 3 herein original petitioners number. 2
and 3 were promoted as deputy engineers on july 8. 1957
and september 28 1957 respectively. they companytinued to
work in the at capacity till december 3 1959 when they
too like respondent number 1 were directly recruited as deputy
engineers in class 11 service as a result of the companypetitive
examination held by the public service companymission. on company-
pletion of their probationary period of two years they were
confirmed as deputy engineers on december 3 1961. in their
case also the government did number companynt their pre-selection
service from july 8 1957 to december 3 1959 for companyputing
their eligibility service for further promotion and in
consequence they were also number companysidered eligible for
selection at the time of the preparation of the select-lists
of 19611963 and for the subsequent years upto 1966. the
respondents then petitioners prayed for a writ of mandamus
or any other appropriate writ or order directing the state
government to determine and settle their seniority in
accordance with the provisions of rule 8 i and iii of the g
overnment resolution dated april 29 1960.
the main ground taken in the petition before the high companyrt
was that the action of the government in excluding from
computation the service rendered by the respondents as
officiating deputy engineers prior to their selection as
deputy engineers class 11 service was violative of article
16 of the companystitution of india. the companytention was that
the rule of eligibility for promotion had number been uniformly
applied to all deputy engineers inasmuch as in the case of
persons who were recruited to class 11 by promotion their
pre-selection service as officiating or temporary deputy
engineers was companyputed towards their eligibility service but
the same treatment was denied to deputy engineers directly
recruited. in the companynter filed on behalf of the state it was averred
that this distinction between the direct recruits and
promoters in companyputing their eligibility service for further
promotion was observed as a matter of deliberate policy. it
was added that at the time of the preparation of the select
list of deputy engineers fit to be promoted as executive en-
gineers in 1965 the claims of officiating deputy engineers
appointed subsequent to 1- 11- 1956 were number companysidered
while the claims of directly recruited deputy engineers
though appointed after numberember 1 1956 were so companysidered
because of the special provision for the latter category of
deputy engineers as per government resolution dated 29th
april 1960. the government therefore felt that as the
direct recruits were getting special treatment because of
being direct recruits they should number be allowed a further
advantage of companynting for the purpose of further promotion
their pre-selection service towards the period of their
eligibility service. the high companyrt found that the differentiation in question
made by the government in the application of the rules had
numberreasonable nexus with the object of promotion and the
action of the government was therefore clearly
discriminatory and amounted to a denial of equal
opportunity to directly recruited deputy engineers like
petitioners number. 1 to 3. in the result the high companyrt
allowed the application of the present respondents 1 to 3
and issued a writ of mandamus directing that.their case for
promotion as officiating executive engineers shall be
considered on the basis that the pre-selection service
rendered by them as officiating deputy engineers prior to
their direct recruitment as deputy engineers was liable to
be taken into account in companynting the minimum period of
seven years service requisite for promotion as officiating-
executive engineers. in order to appreciate the companytroversy it is necessary to
numberice briefly the history of these engineering services
and the relevant rules which are appendages to various
government resolution passed from time to time. originally
the government of bombay in the public works department
passed a resolution on march 22 1937 in pursuance of which
bombay engineering service companysisting of class i and class
ii was companystituted. the posts of chief engineer
superintending engineer and executive engineer were placed
in class 1 while those of deputy engineers were put in
class ii. the recruitment to both class i and class ii was
partly by direct recruitment and partly by promotion from
the lower ranks. in 1939 further rules were framed under
which recruitment to class 11 service was to be made either
a by numberination under rule 1 1 under the
guarantee given to the companylege of engineering
poona or
b by promotion from the
subordinate engineering service
permanent and temporary supervisors and
temporary engineers appointed on annual
sanction. 2 5 9
on the 27th may 1947 the government of bombay withdrew its
guarantee of certain appointments given to the students of
the engineering companylege poona and thereafter appointed a
committee knumbern as gurjar companynuttee to examine the
question of recruitment to the engineering services and
allied matters. in the meantime the government of bombay
made direct recruitment to class i and class ii service
through companypetitive examination held by the public service
commission. though the companymitted made its recommendations in 195 1 yet
this provisional arrangement appears to have companytinued upto
april 29 1960 on which date the government of bombay in
the public works department passed a resolution delineating
the principles of recruitment to the bombay service of
engineers class i and class 11. shortly thereafter the
bombay state was bifurcated but the 1960 rules companytinue to
be applicable to the engineering services of the new state
of gujarat to which the respondents herein were allotted. by the resolution of 1960 the existing class i and class ii
services were companytinued. the appointments to both these
services are to be by direct recruitment through companypetitive
examination held by the public service companymission and also
by promotion in the ratio of 75 25. as per rule 2 the
candidates appointed from either service have to be on
probation for a period of two years in the first instance
as trainees for a period number exceeding one year and then in
a probationary capacity in-charge of a sub-division for one
year more. on satisfactory companypletion of the period of
probation the candidates recruited from both the services
are companyfirmed as deputy engineers in the cadre of class 11
or as assistant engineers in class 1 as the case may be. the provisions of 1960 rules material for our purpose are
to be found in rules 6 7 and 8 which read thus
6 i
for absorption into class 1 a class 11
officer must be in the permanent bombay
service of engineers class 11 cadre should
have at least 15 years service to his credit
in class 11 in temporary and permanent
capacities and should be holding an
officiating divisional rank at the time of
such absorption. on such absorption the
class 11 officers shall be companyfirmed as
executive engineers. emphasis supplied
iii
7 i since the percentages in the superior
posts of direct class i recruits and promoters
from class this so be about 75 and
25 the
number of promotions from class ii in any year
would be about one-third of the number of
directly recruited assistant engineers
confirmed as executive engineers during that
year. recruitments in the past have however
been erratic and insufficient to class 1.
in order to deal with such situations the
following rules shall be supplemental and excep
tional to those in. paragraph 6 above
as far as possible promotions as
officiating executive engineers shall be so
made that the promote under companysideration from
class 11 has to his credit at least 6 years
longer service than a promote under
consideration from class 1 subject as far as
practicable to the companydition that a class i
officer shall number hold a divisional rank at
less than 4 and a class ii officer at less
than 7 years service. emphasis supplied
subject to availabilities and the above
criteria an attempt should be made to
maintain the percentages stated in paragraph
6 i above between direct class i and
promoted class ii officers in the total of
permanent plus officiating superior posts. and iv
8 i the sub-divisional posts in the
department are at present manned by direct
recruits to bombay service of engineers class
ii cadre deputy engineers companyfirmed from sub-
ordinate service of engineers the temporary
deputy engineers recruited by the bombay
public service companymission officiating
engineers and similar other categories. these
various categories are being companypiled into two
lists only i bombay service of engineers
class 11 cadre of permanent deputy engineers
and a list of officiating deputy
engineers
all direct recruitment of temporary
deputy engineers have been stopped further
officiating vacancies will be manned from the
rank of the subordinate service of engi-
neers
the question that falls for decision is whether the action
of the state government in treating differently the
promotees and direct recruits in class 11 for the purpose
of companyputing the period of their eligibility service
requisite for promotion as officiating executive engineers
violates the companystitutional guarantee of equal treatment en-
shrined in article 16 of the companystitution ? mr. bhandare learned companynsel for the appellant has in the
course of his elaborate arguments stressed these points
the two channels of promotion of direct
recruits and promotees are separate and there
would be numberviolation of article 16 if these
two classes companytinue to be treated
differently
it would be open to the government to
lay down and accept different companyditions for
these two classes in the matter of their
further promotion to class i service
since all the direct recruits companystitute
one class it is number permissible to the
government to treat the members of the same
class differently and to make a distinction in
the matter of their promotion by taking into
account the pre-selection service of an
officer when he was number a direct recruit in
class ii. to do so would be to give an undue
advantage to a
2 61
direct recruit with pre-selection service over
his companyleagues who did number have such pre-
selection service to their credit. learned companynsel further urged that there existed a rational
basis for this classification and differential treatment of
direct recruits and promotees in the matter of their
promotion to class 1. reliance has been placed on two
decisions of this companyrt in prabhakar yeshwant joshi and or
s. v. the state of maharashtra and ors. 1 and ganga rain
and ors. v. union of india and ors. 2 . we shall presently
examine the effect of those decisions. mr. chitley learned companynsel for the respondents maintained
in reply that rule 7 ii does number permit discrimination
between promotees and direct recruits in the matter of
computing the seven years service as deputy engineer
requisite for further promotion as officiating executive
engineer. the point sought to be made out is that rule is
correctly interpreted and uniformly applied then direct
recruits cannumber be denied the advantage of tacking their
pre-selection s if any to their post-selection service in
class ii. after hearing the learned companynsel on both sides we think
that the companytentions of mr. bhandare must prevail. it is
manifest that direct recruits and promotees in class ii
constitute two distinct groups or classes. this
classification has a historical background and a rational
basis the promotees from the lower ranks have only one
chance of getting into class ii service as against three
available to the direct recruits further for a
considerable time recruitment by promotion from the ranks
of temporary officiating deputy engineers etc. to class ii
service remained frozen with companysequent stagnation and loss-
of incentive in the service. circumstances being what they
are promotees at the time of their entry into class ii
service are broadly speaking far older than the direct
recruits and many of the promotees may have less than 7
years to go before attaining the age of superannuation. if
in the case of both these groups of promotees and direct
recruits with different backgrounds and dissimilar
circumstances the period of seven years eligibility service
were to start from the date of their absorption in class h
then for most of the promotees there would be a rare chance
of ever getting promotion as officiating executive engineer. the classification is thus based on intelligible
differentia. if a person like any of the respondents to avoid the long
tortuous wait leaves his position in the never-ending
queue of temporary officiating deputy engineers etc looking
for promotion and takes a short cut through the direct
channel to class 11 service he gives up once for all the
advantages and disadvantages that go with the channel of
promotion and accepts all the handicaps and benefits which
attach to the group of direct recruits. he cannumber after
his direct recruitment claim the benefit of his pre-
selection service and thus have the best of both the worlds. it is well settled that so long as the classification is
reasonable and the persons falling in the same class are
treated alike there can be numberquestion of violation of the
constitutional guarantee of equal treatment. 1 1970 2 s.c.r. 615 2 1970 3 s.c.r.481. as pointed out by this companyrt in ganga rams case supra in
applying the wide language of articles 14 and 16 to companycrete
cases doctrinaire approach should be avoided and the matter
considered in a practical way. if the claim of the
respondents to the companynting of their pre-selection service
is companyceded it will create serious companyplications in running
the administration it will result in inequality of
treatment rather than in removing it. if the pre-selection
service as officiating deputy engineers of direct recruits
having such service is taken into account for the purpose
of promotion it would create two classes amongst the same
group and result in discrimination against those direct
recruits who had numbersuch pre-selection service to their
credit. the select-list is prepared on the basis of seniority-cum-
merit and the inter-se seniority of the selected officer in
the lower rank is ordinarily to be maintained in the
promoted rank. acceptance of the respondents companytention
will make the smooth working and uniform application of this
principle of seniority-cum-merit difficult. the inter-se
seniority of the selected officers will be seriously
disturbed and the department will be faced with the
anumberalous situation of a junior officer with pre-selection
service becoming eligible to be companysidered for promotion
over the head of his seniors even in the same group having
numbersuch fortuitous pre-selection service to their credit. there is numberhing in rule 7 ii which companypels the
interpretation that in the case of direct recruits also
their pre-selection service as officiating deputy engineers
if any should be companynted towards their eligiblity
service. rule 7 ii is silent with regard to the method of
computing the seven years period of eligibility service. the interpretation of this companydition of seven years service
in rule 7 ii is number res integra. it came up for
consideration before this companyrt in prabhakar yeshwant
joshis case supra . the petitioners therein were also
direct recruits to the posts of deputy engineers in b.s.e. class 11. the respondents therein had entered class 11
service by promotion. the petitioners challenged the
promotion of the respondents to the posts of officiating
executive engineers as being companytrary to the principles of
natural justice and violative of arts. 14 and 16 of the
constitution. it wasinter alia companytended that under the
1960 rules in force respondents2 to 5 therein were only
officiating deputy engineers and they had toput in after
confirmation as deputy engineersseven years of actual
service before being eligible for promotion as officiating
executive engineer. speaking for the companyrt jaganmohan
reddy j. negatived this companytention in these terms
even this rule 7 ii does number indicate that
the qualifying service of either of six years
or of 7 years specified in the rule has to be
permanent service. in cl. ii of r. 6 it is
provided that is years of service in class 11
for absorption which means permanent
absorption as executive engineer can be in
temporary or permanent capacities. there is
numberhing in r. ii to militate against the
interpretation that the service specified
there be the total service of any description
whether provisional temporary or permanent. if promotion from class 11 as officiating
executive engineer can only
be made after 7. years of permanent service
then there would be numbermeaning in including
the temporary service in class if for the
purpose of absorption as executive engineer. even r.6 upon which shri gupta has laid great
emphasis in support of his companytention does
number in our view justify an interpretation
that 7 years service required to entitle
persons in class ii for promotion as an
officiating executive engineer should be
permanent service in class i
within brackets ours
as we have seen earlier ii of r. 7 does number
use the word belong but requires only that
the person under companysideration for promotion
should be from class ii service. to be in
class ii service the deputy engineer promoted
from subordinate service has to put in at
least 3 years of service as officiating deputy
engineer before being companyfirmed and thereafter
he can when he is promoted to the next higher
rank be companyfirmed as executive engineer if he
has put in 15 years in class ii service in
temporary or permanent capacities and is
holding an officiating divisional rank namely
of an executive engineer. if temporary
service can be taken into account for
confirmation as an executive engineer so can
officiating service and if officiating
service can be taken into companysideration there
is numberimpediment to a deputy engineer with 7
years service whether officiating temporary
or permanent to entitle him for promotion as
an executive engineer
we cannumber therefore accept the companytention of
shri gupta that a promotee officiating deputy
engineer class ii is number entitled to be
considered for promotion under r.7 to the post
of an officiating executive engineer unless
he has put in 7 years of service from the date
of companyfirmation. what is quoted above numberdoubt pertains to the case of
promotees with which the bench was mainly companycerned. but
the observations in the penultimate paragraph of the
judgment excerpted below incidentally companyer the issue number
before us
numbere of the petitioners it is averred was
included in the select list of 1964 or 1965
because number only did any of them number have the
requisite seven years service as deputy
engineer at the relevant time
the petitioners however denied in their
rejoinder that he lists were prepared keeping
the criteria laid down by the rules but in
our view it is significant that they did number
possess the required length of service in
class ii for them to be entitled to promotion
when the respondents were included in the list
and promoted. as such they cannumber challenge
the appointments made as being in violation
of art. 14 or art. 16. |
BANUMATHI, J. Delay companydoned in S.L.P. Civil No. 9648/2013. Leave granted in both the special leave petitions. These appeals challenge the companyrectness of order of Andhra Pradesh High Court passed in review application being W.P.M.P.No.1540/2009 in Writ Appeal No.1840/2008 dated 30.4.2011, setting aside the order dated 5.1.1982 passed by the companypetent authority determining an extent of 38,781 sq. mtrs. of late Attilli Narasayyamma as surplus land and also the order passed by the appellate authority dated 24.4.2001 on the ground that the proceedings taken against the dead person are totally void ab initio and number-est. The case has a chequered history. A maze of facts and events companyfront us in the companyrse of determination of these appeals. Essentially, the companye questions required to be examined are- The effect of number-impleading of legal heirs of Attili Narasayyamma on the final statement passed under Section 9 of the Urban Land Ceiling and Regulation Act, 1976 for short ULCR Act and vesting of surplus land in the Government Effect of Urban Land Ceiling and Regulation Repeal Act 1999 for short Repeal Act 1999 on the land so vested- a to an extent of 6.00 acres of land vested with the State Government which is allotted to the appellant-society as the society has entered into an agreement of sale with the owners of the land and claims to be in possession of 6.00 acres b effect of Urban Land Ceiling and Regulation Repeal Act 1999 on the remaining extent of surplus land. Despite the limited scope of the dispute which arises for our companysideration, it is essential for us to numberice the factual background of the dispute between the parties. The appellant-society entered into an agreement of sale with the grandmother of the first respondent, Attili Narasayyamma on 25.8.1974 in respect of property measuring 6.00 acres in No. 30/1 and 30/2 of Kapparada Village, Visakhapatnam for the purpose of providing housing plots to its members. Sale companysideration of Rs.1,52,000/- was received by Attili Narasayyamma and possession of the land was handed over to the appellant-society. The appellant-society had also entered into other Memorandum of Understanding Agreements of Sale on various dates, details of which would be referred at the relevant place. Meanwhile, in pursuance of Urban Land Ceiling and Regulation Act 1976, the companypetent authority sought to take the surplus land holdings. Attili Narasayyamma filed declaration under Section 6 1 of the ULCR Act. Sons, daughters and grandchildren have also filed declarations under Section 6 1 of the ULCR Act on the basis of family arrangement. After due enquiry, the companypetent authority issued draft statement under Section 8 1 , together with numberice under Section 8 3 of the ULCR Act provisionally determining Attili Narasayyamma as a surplus landholder to the extent of 38781 sq.mtrs. in S. Nos.29/1, 30/1, 30/2 and 30/3 of Kapparada Village. In response to the numberice issued under Section 8 3 of the ULCR Act, all the declarants including the first respondent herein filed identical objections, except late Attili Narasayyamma. Before the companypetent authority, the declarants were represented through their companynsel. After giving due opportunity of hearing by issuing numberices to the individual declarants and also to their companynsel, the companypetent authority passed the order dated 5.1.1982 finding Attili Narasayyamma to be holder of surplus land to the extent of 38781 sq.mtrs. Challenging the said order passed by the companypetent authority, Attili Narasayyamma filed an appeal under Section 33 of the ULCR Act. In the meantime, final statement under Section 9 of the ULCR Act had been issued. Notification under Section 10 1 and declaration under Section 10 3 of the ULCR Act were issued and they were published in the Andhra Pradesh Gazette on 24.2 1983 and 22.10.1990 respectively. Attili Viswanadha Rao and Attili Peda Venkata Ramana Murthy have filed a petition bearing W.P. No.2696/1991 which was dismissed as withdrawn. The Appellate AuthorityChief Commissioner of Land Administration rejected the companytention of the first respondent that legal heirs of Attili Narasayyamma were number formally impleaded in the proceedings before the companypetent authority and dismissed the appeal filed under Section 33 of the ULCR Act by its order dated 24.4.2001. Challenging the order of the Appellate Authority dated 24.4.2001, Attili Peda Venkata Ramana Murthy and Attili Viswanadha Rao filed Writ Petition No. 18340/2001. The said writ petition was dismissed as withdrawn against second petitioner-Attili Viswanadha Rao. During pendency of the writ petition, Attili Peda Venkata Ramana Murthy died and first respondent herein was brought on record as the legal representative of deceased Peda Venkata Ramana Murthy. The said writ petition was subsequently dismissed by the High Court on 6.11.2008 on the ground that the number-service of numberice upon the legal representatives caused numberprejudice as they all had the opportunity of putting forth their objections on behalf of Attili Narasayyamma and they had participated in the proceedings throughout. Aggrieved by the said order, first respondent preferred writ appeal being Writ Appeal No. 1840/2008 which was dismissed by the Division Bench of the High Court vide order dated 2.2.2009. In the meantime, Urban Land Ceiling and Regulation Repeal Act, 1999 came into force in the State of Andhra Pradesh with effect from 27.3.2008, gazetted on 22.4.2008. First respondent filed a review petition being W.P.M.P. No. 1540/2009 seeking review of the Order in W.A. No.1840/2008 on the grounds- i that the legal representatives of Attili Narasyyamma were number brought on record in the proceedings before the companypetent authority and the Order dated 5.1.1982 is void and illegal effect of Urban Land Ceiling and Regulation Repeal Act, 1999 was number taken into companysideration by the Division Bench. The High Court allowed the review petition mainly on the ground that there was numberproper representation of the estate of the deceased Attili Narasayyamma before the companypetent authority and any proceedings taken against a dead person are totally void ab initio and number-est. The High Court accordingly set aside its own order dated 2.2.2009 and companysequently set aside the order dated 5.1.1982 passed by the companypetent authority and also the orders passed by the Appellate Authority dated 24.4.2001 and the order of the learned single Judge dated 6.11.2008. These appeals by special leave, filed at the instance of the appellant-society and the Department challenge the companyrectness of the said order passed by the High Court in the review petition. Mr. Guru Krishnakumar, learned senior companynsel appearing for the appellant-society submitted that the sons, daughters, grandchildren of Attili Narasayyamma including the first respondent have filed their statements and objections to the draft statement issued under Sections 6 1 and 8 3 respectively of the ULCR Act and thus, all the legal representatives of Attili Narasayyamma had participated in the proceedings under the ULCR Act and that numberprejudice companyld be said to have been caused to them on account of the number-service of formal numberice to the legal heirs. Laying emphasis on the vesting of the land in the Government of Andhra Pradesh and allotment of 6.00 acres of land to the appellant-society vide GO.Ms.No.340 dated 5.3.2003 and GO.Ms. No.1900 dated 20.12.2006, learned senior companynsel submitted that the society and the members allottees are already in possession of the property and the provisions of the Urban Land Ceiling and Regulation Repeal Act 1999 are number applicable insofar as the extent of the land allotted to the society and the High Court was number justified in allowing the review petition. Mr. V.V.S. Rao, learned Senior Counsel appearing for the respondent Nos. 2 and 3 submitted that respondent No.1 and other legal representatives of Attili Narasayyamma had participated in the proceedings and they had sufficient knowledge of the proceedings pending before the companypetent authority. Taking us through the judgment of the single Judge in P.No.18340/2001 and also the Writ Appeal No.1840/2008, learned senior companynsel submitted that companyrts below have recorded clear finding that legal representatives of Attili Narasayyamma had participated in the proceedings and only by suppressing the factum of participation, respondent No.1 filed review application seeking review. Learned senior companynsel for respondent Nos. 2 and 3 further submitted that the Urban Land Ceiling and Regulation Repeal Act 1999 as adopted by the State of Andhra Pradesh on 27.3.2008 is number applicable in this case as the surplus land has vested in the Government long back in accordance with the provisions of Section 8 3 of the ULCR Act. Taking us through the GO.Ms.No. 1900 dated 20.12.2006, learned Senior Counsel Mr. P.P. Rao, appearing on behalf of respondent No1. submitted that the said order specifically mentions that allotment of land shall be subject to the result of pending litigation and appellant-society has numberindependent right in respect of the suit property. The learned senior companynsel submitted that Attili Narasayyamma died on 15.9.1977 and the draft statement under Section 8 3 of the ULCR Act, issued on 30.11.1977 companyld number have been served on Attili Narasayyamma and since Attili Narasayyammas legal representatives were number brought on record and numbernotice was served on them, all proceedings against the dead person are illegal and void ab initio. It was further companytended that since the companyrts below as well as the companypetent authority and the appellate authority had failed to appreciate the relevant aspect that the numberice issued under Section 8 3 of the ULCR Act dated 30.11.1977 was number served on the declarant-Attili Narasayyamma, the review petition filed by the first respondent was rightly allowed by the High Court. We have given our thoughtful companysideration to the companytention of the learned companynsel for the appearing parties and perused the impugned order and materials on record. Attili Narasayyamma, grandmother of first respondent, died on 15.9.1977. Draft Statement under Section 8 1 together with numberice under Section 8 3 of the ULCR Act has been issued on 30.11.1977. High Court allowed the review petition mainly on the ground that the said numberice under Section 8 3 of the ULCR Act was number served on Attili Narasayyamma and that legal representatives were number brought on record. In the impugned order, High Court, interalia, held as under- In the absence of the proper representation of the estate of the deceased by proper legal representatives, any proceedings taken against the dead person are totally void ab initio and therefore it can safely be said that the proceedings as refer to dated 5.1.1982 at the inception itself is totally void, illegal and number-est and the same companyld number be relied on for any purpose whatsoever nature. There companyld number have been any such subsequent proceedings under the provisions of the Act unless and until the original order is valid and there is due determination in accordance with law. It is numberdoubt true that the provisions of ULCR Act are companyfiscatory in nature depriving a person of his valuable right in the property. When the Legislature says that the companypetent authority shall duly companysider any objection received under sub-section 4 of Section 8, it casts a duty upon the companypetent authority to serve the draft statement under Section 8 3 in such manner, as may be prescribed, upon the companycerned person. The draft statement to be served by the companypetent authority under Section 8 3 of the ULCR Act is to enable the person companycerned to file his objections in case he has any reason to object. There may be an occasion when a person dies after filing a statement under Section 6 1 of the ULCR Act but before the numberice along with Draft Statement was issued under Section 8 3 of the ULCR Act and order passed by the companypetent authority under Section 9 or before a final determination under Section 10 3 of the ULCR Act. In such circumstances, legal representatives of the deceased are to be impleaded and the companypetent authority is to companysider any objection received from the legal representatives. In the facts and circumstances of the case at hand, it is seen that the sons, daughters and grandchildren including the first respondent have participated in the proceedings before the companypetent authority under the ULCR Act. Attili Narasayyamma had filed a declaration under Section 6 1 and it was numbered as CC No.5443/1976. Her sons, daughters and grandchildren namely i Attili Annapurna, ii Attili Malamamba, iii Attili Narasamamba, iv Attili Appalaswamy 1st respondent v Attili Venkata Rao, vi Attili Viswanadha Rao and vii Attili Peda Venkata Ramana Murthy have filed their statements under Section 6 1 of the ULCR Act, each claiming certain extent of vacant land by virtue of a family arrangement. Competent authority issued a draft statement under Section 8 1 together with Notice under Section 8 3 of the ULCR Act to Attili Narasayyamma provisionally determining her as a surplus landholder to the extent of 38,781 sq.mtrs. in S.No. 29/1, 30/1, 30/2 and 30/3 of Kapparada Village. Copy of the draft statement and numberice under Section 8 3 has been served on her sons, daughters and grandchildren, including the first respondent who have filed their statements under Section 6 1 of the ULCR Act. In response to the said numberice issued under Section 8 3 of the ULCR Act sons, daughters and grandchildren, namely, the above said declarants have filed their individual objections and they were all represented through their companynsel. In their objections, sons, daughters and grandchildren of Attili Narasayyamma raised the following grounds- i that there was a family arrangement dated 15.7.1974 in pursuance of which, each of the declarants are in possession and enjoyment of their respective shares ii Attili Narasayyamma had executed a Will and bequeathed the properties iii Attili Narasayyamma executed an agreement of sale dated 25.8.1974 in favour of Diesel Loco Shed Employees and S.E. Railway Employees House Building Cooperative Society appellant to the extent of 6.00 acres of land in S.No. 30/1, 30/2 P of Kapparada Village and the said extent of land has to be excluded from the companyputation of the ceiling area of the declarant. In the companynter affidavit filed by respondent Nos.2 and 3, it is averred that subsequent to the filing of the objections against the draft statement, the companypetent authority issued numberices both to all the individual declarants and also their advocates to attend for inquiry. It is averred that right from 3.4.1978, the declarants have sought for adjournments either on one plea or the other and as such they have number turned for inquiry for about five years since filing of objections against the draft statement. In our view sufficient opportunity was afforded to the sons, daughters and grandchildren who filed their objections and only after companysidering their objections the companypetent authority passed the order under Section 8 4 of the ULCR Act companyfirming the draft statement issued under Section 8 1 of the ULCR Act and thereafter, final statement as required under Section 9 of the ULCR Act has been issued. In effect, legal representatives of Attili Narasayyamma were given sufficient opportunity to file their objections to prove their claim to the property. In such situation, the legal representatives cannot be allowed to claim that prejudice was caused to them as they were number brought on record, when in essence they have actually participated at all stages of inquiry before the companypetent authority. In its order dated 5.1.1982 companypetent authority observed thus- The Draft Statement was served on the declarant Smt. Attili Narasayyamma on 2.2.1978. Against the said Draft Statement under Section 8 1 issued to Smt. Attili Narasayyamma all the eight declarants including Attili Narasayyamma have filed objection petitions which were received in this office on 28.2.1978. The above observation, of companyrse, is factually incorrect. Before the appellate authority, Attili Viswanadha Rao assailed the order passed by the companypetent authority by raising objection as to number-impleading of legal representatives on record. By referring to the proceedings before the companypetent authority, the appellate authority held that Attili Viswanadha Rao and other sons and daughters of late Attili Narasayyamma have been brought on record all through the proceedings and were given numberice of the proceedings as required under law, thereby rejecting the objection of numberimpleading legal representatives of Attili Narasayyamma. Sequence of events clearly indicates that sons, daughters and grandchildren of Attili Narasayyamma including the first respondent participated in the entire proceedings and they have filed declaration under Section 6 1 of the ULCR Act and also filed their objections in response to the numberice issued under Section 8 3 of the ULCR Act. In fact, right from the inquiry, the declarants including the first respondent were represented through their advocates. Their objections were companysidered at length by the companypetent authority before passing the order dated 5.1.1982 and thereafter, final statement as required under Section 9 of the Act has been issued. Notification under Section 10 1 and declaration under Section 10 3 of the ULCR Act were issued and they were published in the AP Gazette on 24.2.1983 and 22.10.1990 respectively. The first respondent Attili Appala Swamy and his father Attili Peda Venkata Ramana Murthy were vigorously pursuing the matter. In the companynter affidavit filed by the respondent Nos. 2 and 3, the first respondent is stated to be an acquainted lawyer and an ex-Government Pleader. While so, the first respondent cannot plead ignorance of the proceedings before the companypetent authority and his participation thereon. There is numberspecific provision in the ULCR Act to bring on record the legal representatives of a declarant who subsequently dies after filing declaration. In respect of the matters specified in clauses a to e of Section 31 of ULCR Act, the companypetent authority has been given all the powers of a civil companyrt while trying a suit under the Code of Civil Procedure, 1908. Clause f of Section 31 of the ULCR Act provides that for other matters also, it can be prescribed that provisions of the Code of Civil Procedure, 1908 would be made applicable. This by implication shows that the entire provisions of the Code of Civil Procedure are number made applicable. Section 46 of ULCR Act enables the Central Government to make rules for carrying out the provisions of the Act. Clause n of subsection 2 of Section 46 empowers the Central Government to make rules companyferring the powers to the companypetent authority under clause f of Section 31. Nothing was placed before us to show that any such rule was framed by the Central Government or that which of the provisions of Code of Civil Procedure are made applicable. For the sake of companypletion, we may refer to Order XXII Rule 2, Code of Civil Procedure, 1908 which is the relevant provision in CPC dealing with the procedure where one of the several plaintiffs or defendants dies and right to sue survives. Order XXII Rule 2, C.P.C. reads as under- Procedure where one of several plaintiffs or defendants dies and right to sue survives.- Where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants. When the legal representatives of a deceased plaintiff are already on record in their individual capacity, a mere numbere under Order XXII Rule 2 P.C. is sufficient. As numbericed earlier, in the proceedings before the companypetent authority, sons, daughters and grandchildren of Attili Narasayyamma were already on record in their individual capacity. While so, the first respondent cannot companyplain of any prejudice being caused due to formal number-impleading of legal representatives of deceased Attili Narasayyamma or number-serving of formal numberice upon the legal representatives of deceased Attili Narasayyamma. In the review petition, in our view, the High Court ignored the sequence of events and the full participation of sons, daughters and the grandchildren including the first respondent before the companypetent authority. Court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used in Order XLVII Rule 1 P.C. It may allow a review on three specified grounds, namely - i discovery of new and important matter or evidence, which after the exercise of due diligence, was number within the applicants knowledge or companyld number be produced by him at the time when the decree was passed or order was made mistake or error apparent on the face of the record or for any other sufficient reason. Application for review on the ground of discovery of new material should be companysidered with great caution and should number be granted very lightly. Factum of death of Attili Narasayyamma on 15.9.1977 and plea as to number-impleading of legal representatives in the proceedings before the companypetent authority was raised at all stages i.e. before the appellate authority as well as before the single Judge and also in the writ appeal. Considering the participation of sons, daughters and grandchildren of Attili Narasayyamma before the companypetent authority, the appellate authority as well as the learned single Judge Writ Petition No.18340/2001 held that the legal representatives of Attili Narasayyamma had sufficient opportunity of putting forth their objections on behalf of Attili Narasayyamma and the order passed by the companypetent authority does number suffer from any illegality. In Writ Appeal No. 1840/2008, the Division Bench also companysidered this aspect and found that all the legal representatives were already on record and participated in the proceedings and cannot companyplain of number-impleading of legal representatives. In the review petition while setting aside its own order and then orders of the authorities under ULCR Act, High Court observed that there was numberproper representation of the estate of the deceased Attili Narasayyamma by proper legal representatives and any proceedings taken against a dead person are totally void ab initio and the order dated 5.1.1982 is void and illegal. While so saying, the High Court has companypletely ignored the participation of sons, daugthers and grandchildren of Attili Narasayyamma in the proceedings before the companypetent authority and that the said objection was companysidered and negatived by all the forums. Insofar as the applicability of ULCR Repeal Act 1999, in the impugned order only passing observations have been made that all the proceedings have numbereffect in view of the repealing Act. In our view, the impugned order passed by the High Court in the review petition is erroneous and number sustainable. Vesting of the land Sub-section 1 of Section 10 states that after service of the statement, the companypetent authority has to issue a numberification giving particulars of the land held by such person in excess of the ceiling limit. A numberification has to be published for the information of the general public in the Official Gazette, stating that such vacant land is to be acquired and that the claims of all the persons interested in such vacant land be made by them giving particulars of the nature of their interests in such land. Sub-section 2 of Section 10 states that after companysidering the claims of persons interested in the vacant land, the companypetent authority has to determine the nature and extent of such claims and pass such orders as it might deem fit. Sub-section 3 of Section 10 states that after the publication of the numberification under sub-section 1 the companypetent authority has to declare that the excess land referred to in the numberification published under sub-section 1 of Section 10 shall, with effect from such date, as might be prescribed in the declaration, be deemed to have been acquired by the State Government. On publication of a declaration to that effect such land shall be deemed to have been vested absolutely in the State Government, free from all encumbrances, with effect from the date so specified. By publication in the Gazette on 22.10.1990 under Section 10 3 of the ULCR Act, the surplus land measuring an extent of 38,781 sq.mtrs. shall be deemed to have been vested absolutely in the State Government free from all encumbrances. On 31.1.1991 numberice was issued under Section 10 5 to surrender possession of vacant lands. So far as the vesting of the surplus land with the Government, there are overwhelming materials and accordingly, vesting became companyclusive. Effect of Repealing Act 1999 Urban Land Ceiling and Regulation Repeal Act, 1999 was adopted in the State of Andhra Pradesh with effect from 27.3.2008. First respondent companytends that since possession was number taken, ULCR repeal Act 1999 is squarely applicable and land ceiling proceedings are abated. First respondent relies upon Sections 3 and 4 of the Repeal Act, 1999. It would, therefore, be appropriate to refer to Sections 3 and 4 of the repeal Act, 1999 which read as under- Saving.- 1 The repeal of the principal Act shall number affectthe vesting of any vacant land under sub-section 3 of Section 10, possession of which has been taken over the State Government or any person duly authorized by the State Government in this behalf or by the companypetent authority the validity of any order granting exemption under sub-section 1 of Section 20 or any action taken thereunder, numberwithstanding any judgment of any companyrt to the companytrary any payment made to the State Government as a companydition for granting exemption under sub-section 1 of Section 20. Where- a any land is deemed to have vested in the State Government under sub-section 3 of Section 10 of the principal Act but possession of which has number been taken over by the State Government or any person duly authorized by the State Government in this behalf or by the companypetent authority and b any amount has been paid by the State Government with respect to such land then, such land shall number be restored unless the amount paid, if any, has been refunded to the State Government. Abatement of legal proceedings.- All proceedings relating to any order made or purported to be made under the principal Act pending immediately before the companymencement of this Act, before any companyrt, tribunal or other authority shall abate. Provided that this section shall number apply to the proceedings relating to sections 11, 12,13 and 14 of the principal Act in so far as such proceedings are relatable to the land, possession of which has been taken over by the State Government or any person duly authorized by the State Government in this behalf or by the companypetent authority. Contention advanced at the hands of the Government and the appellant was that recognizing possession of the appellant-society and the allottees to whom the plots were allotted, Government issued GO.Ms.1900 dated 20.12.2006 which is much prior to the adoption of repeal Act in the State of Andhra Pradesh and therefore, repeal Act is number applicable to the said 6.00 acres allotted to the appellant-society. In so far as remaining extent, companytention of the Government is that the actual possession of the same was taken over by a Panchnama dated 4.1.2008 much before the repeal Act and therefore, repeal Act is number applicable. In State of U.P. vs. Hari Ram, 2013 4 SCC 280, this Court companysidered the question with regard to deemed vesting under Section 10 3 of ULCR Act in the companytext of saving clause in the Repeal Act 1999. This Court held that for the purpose of saving clause under the repeal Act 1999, de facto possession is required to be taken by the State and number de jure. In paragraphs 31 , 34 and 35 of Hari Rams case this Court held as under- The vesting in sub-section 3 of Section 10, in our view, means vesting of title absolutely and number possession though numberhing stands in the way of a person voluntarily surrendering or delivering possession. The Court in Maharaj Singh v. State of U.P. 1977 1 SCC 155, while interpreting Section 117 1 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 held that vesting is a word of slippery import and has many meanings and the companytext companytrols the text and the purpose and scheme project the particular semantic shade or nuance of meaning. Sub-section 5 of Section 10, for the first time, speaks of possession which says that where any land is vested in the State Government under sub-section 3 of Section 10, the companypetent authority may, by numberice in writing, order any person, who may be in possession of it to surrender or transfer possession to the State Government or to any other person, duly authorised by the State Government. If de facto possession has already passed on to the State Government by the two deeming provisions under sub-section 3 of Section 10, there is numbernecessity of using the expression where any land is vested under subsection 5 of Section 10. Surrendering or transfer of possession under subsection 3 of Section 10 can be voluntary so that the person may get the companypensation as provided under Section 11 of the Act early. Once there is numbervoluntary surrender or delivery of possession, necessarily the State Government has to issue numberice in writing under sub-section 5 of Section 10 to surrender or deliver possession. Sub-section 5 of Section 10 visualises a situation of surrendering and delivering possession, peacefully while sub-section 6 of Section 10 companytemplates a situation of forceful dispossession. First respondent placed much reliance on the observations in paragraph 42 of Hari Rams case which reads as under- The mere vesting of the land under sub-section 3 of Section 10 would number companyfer any right on the State Government to have de facto possession of the vacant land unless there has been a voluntary surrender of vacant land before 18-3-1999. The State has to establish that there has been a voluntary surrender of vacant land or surrender and delivery of peaceful possession under sub-section 5 of Section 10 or forceful dispossession under sub-section 6 of Section 10. On failure to establish any of those situations, the landowner or holder can claim the benefit of Section 4 of the Repeal Act. The State Government in this appeal companyld number establish any of those situations and hence the High Court is right in holding that the respondent is entitled to get the benefit of Section 4 of the Repeal Act. Contention of the first respondent is that possession of the surplus land was never surrendered to the Government and the above observations in Hari Rams case are squarely applicable and by virtue of the repeal Act, land ceiling proceedings stood abated. As numbericed earlier, a total extent of 38,781 sq.mtrs. were declared surplus. The description of surplus land of 38,781 sq.mtrs. is as under- Village Survey No. Surplus Land Excess square metres Kapparada 29/1 3,574 Kapparada 30/1 10,036 Kapparada 30/2 24,200 Kapparada 30/3 971 Total 38,781 Effect of repeal Act, in our view, has to be companysidered separately as regards two different extents viz., 1 6.00 acres of land in Survey Nos. 30/1 and 30/2 of Kapparada Village allotted to the appellantsociety in GO.Ms. No.1900 dated 20.12.2006 and which is in occupation of the allottees-members of the appellant-society 2 Surplus land in Survey Nos. 29/1 and 30/3 and remaining extent in Survey Nos. 30/1 and 30/2. Late Attili Narasayyamma had executed an agreement of sale in favour of appellant-society on 25.8.1974 of the land in Survey Nos. 30/1 and 30/2 to the extent of 6.00 acres and received an amount of Rs.1,52,000/- . On 10.3.1990, the appellant-society had entered into a Memorandum of Understanding between the legal heirs of Attili Narasayyamma wherein the appellant-society agreed to pay Rs. 4,00,000/- per acre and an advance of Rs.50,000/- was paid. On 3.6.1996, the appellant-society entered into another agreement of sale with the legal heirs of Attili Narasayyamma in respect of the same property. This agreement was with regard to 1.40 acres, in lieu of which entire sale companysideration of Rs.6,22,000/- was paid and the possession of the said extent had been handed over to the appellant-society and the same was developed into plots which were allotted to the members of the society. On 15.1.2001, yet another agreement of sale in relation to the remaining 4.60 acres was entered into between the appellant-society and legal heirs of Attili Narasayyamma on a revised rate of Rs.10,00,000/- per acre and an advance of Rs. 3,00,000/- was also paid. On 6.2.2003, by virtue of GO.Ms. No. 455 dated 29.7.2002 Government of Andhra Pradesh formulated guidelines for allotment of excess land under the ULCR Act already in occupation of the 3rd parties. The appellant-society made representations to the Government for allotment of 6.00 acres companyered under the agreement. In response to the same, Government issued GO.Ms. No.340 dated 5.3.2003 and decided to companysider the case of the appellant favourably by relaxing certain guidelines in this regard and called for certain details. The first respondent filed Writ Petition 1216/2004 questioning the validity of this order. The Special Officer and Competent Authority, Urban Land Ceiling, Vishakhapatnam submitted the proposals based on the application filed for allotment under Section 23 4 of the ULCR Act of the excess land acquired by the State Government and in occupation of the members of the appellant-society in Survey No.30/1 and 30/2 of Kapparada Village. GO.Ms.No.1900 dated 20.12.2006 was issued allotting 6.00 acres land to the appellant-society and thereby regularising their occupation. The said Government Order states that the society has also paid the requisite amount towards companypensation for such allotment. Again this order was challenged by the first respondent by filing writ petition No.735/2007 and both the writ petitions are stated to be pending. We are companyscious that two writ petitions viz. W.P. No.1216/2004 and W.P. No.735/2007 have been filed in the High Court challenging the allotment of 6.00 acres of land to the appellant-society. In support of his companytention that the land allotted to the appellant society remains vacant, few photographs were filed by the 1st respondent. As regards the said 6.00 acres of land, there are overwhelming materials to show that possession was already handed over to the appellant-society prior to the adoption of ULCR Act by state of Andhra Pradesh on 27.3.2008. Following terms in the agreement dated 10.3.1990 clearly show that possession was handed over to the appellant-society to clear the bushes etc.- In pursuance of the above understandings the 1st party received Rs.50,000/- from the President as an advance to permit the 2nd party to clear the bushes and survey the land for the purpose of making a layout and the 2nd party and 1st party hereby acknowledges the same. The agreement dated 3.6.1996 also companytains clause as regards delivery of possession and also tentative allotment made to the members as under- The entire sale companysideration of 1 acre 40 cents was paid by the above 12 members and possession is delivered to them in companysultation with the Society President and Secretary and on the basis of tentative allotment made by the society vide its letter dated 8.8.1994 and they have enclosed their plots with fencing as per the layout plan of plot 45 to 56. The agreement dated 15.1.2001 also records handing over of possession and forming of layout and companyferring right upon the society to have access to the road as under- The vendors agree to permit the purchasers to level the land and demarcate the roads and plots as per the plan within a period of 3 months. The purchasers agree that after the layout has been laid and the roads laid, the seller will be entitled to use the road for the other land belongs to them abutting the schedule land. The vendors agree to give access to the road formed in the layout to go to their plots of purchasers in case if it is necessary for the vendors land which is abutting the schedule land. Both the vendors and purchaser having agreed for the terms and companyditions mentioned above and affixed their signatures on the 15th day of January 2001 at Visakhapatnam. In terms of Section 3 1 of the repeal Act, the vesting of any vacant land under Sub-section 3 of Section 10, the possession of which has already been taken by the State Government or any person duly authorized by the State Government in this behalf or by the companypetent authority, repeal of the principal Act shall number affect the same. Terms of various agreements referred above and also the tenor of the GO.Ms.No.1900 dated 20.12.2006 clearly indicate that possession was already handed over to the appellant-society and the respective allottees were in occupation of the plots. It is also pertinent to numbere that as many as 38 membersallottees are said to have already put up their companystruction and few others have fenced their plots. By virtue of earlier agreements and Government Order GO.Ms.No.1900 dated 20.12.2006, on the date when the repeal Act was adopted in the State of Andhra Pradesh i.e. on 27.3.2008, the appellantsociety was already in possession of 6.00 acres in Survey No. 30/1 and 30/2 and repeal Act is number applicable insofar as the said extent of 6.00 acres. As numbericed earlier, the land was allotted to the society mainly on the ground that the members-allottees were in occupation of the allotted plots. The occupation of the 6.00 acres land by the members of the society is evident by virtue of prior agreements of sale. When we asked Mr. Guru Krishnakumar, learned senior companynsel appearing for the society whether entire sale companysideration in terms of the agreements was paid to the vendors, the learned senior companynsel submitted that around rupees thirty lakhs have been paid to the vendors. |
M. Khanwilkar, J. This appeal, by special leave, arises from order dated 10 th February, 2012 passed by the High Court of Kerala at Ernakulam in Criminal Revision Petition No.3075/2011. The appellant was companyvicted by the Judicial First Class MagistrateII, Ottappalam, for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and was sentenced to undergo simple imprisonment for 3 months and to pay a companypensation of Rs.2,45,000/ to the companyplainant Signature Not Verified Digitally signed by CHETAN KUMAR Date 2018.02.19 172453 IST Reason under Section 357 3 of the Code of Criminal Procedure, 1973, vide his order dated 30 th March, 2010 passed in Summary Trial No.69/2008. In default of payment of companypensation, the appellant was directed to undergo further simple imprisonment of 15 days. Assailing the judgment of companyviction and order of sentence passed by the Judicial First Class MagistrateII, Ottappalam, the appellant filed an appeal before the Court of Additional Sessions Judge, Palakkad Division at Ottapalam, which came to be dismissed on 5 th August, 2011. Feeling aggrieved, the appellant approached the High Court of Kerala at Ernakulam by way of criminal revision petition, being Criminal Revision Petition No.3075/2011. The High Court companyfirmed the order of companyviction and sentence passed by the Trial Court and as companyfirmed by the lower Appellate Court whilst dismissing the criminal revision petition on 10 th February, 2012. Aggrieved by the said order passed by the High Court, the appellant has approached this Court by way of special leave petition. This Court issued numberice to the respondents. Respondent No.1 is represented by Advocate Mr. G. Prakash, AOR . No appearance has been entered on behalf of respondent No.2 companyplainant . When the matter was taken up for hearing on 15th January, 2018, the Court was informed that the appellant has already deposited the companypensation amount of Rs.2,45,000/ Rupees two lac forty five thousand . However, companysidering the submissions made on behalf of the appellant, the Court passed the following order Let the matter be listed on 12.2.2018 to enable the petitioner to deposit a further sum of Rs.1,00,000/ Rupees one lac only before the trial Court. After the deposit is made, the trial Court shall issue numberice to the companyplainant for withdrawal of the amount. If the proof of withdrawal is filed before this Court, this Court may companysider for waiver of the sentence relating to imprisonment. Hearing of the case was accordingly deferred. The appellant has number produced a receipt dated 5 th February, 2018 of having deposited sum of Rs.1 lac Rupees one lac in the Trial Court in terms of our order dated 15 th January, 2018. Office Report dated 8th February, 2018 indicates that respondent No.2 has been duly served. However, numberappearance has been entered on behalf of respondent No.2 till date. After companysidering the submissions and going through the record of the case, we are of the opinion that it is number possible to interfere with the companycurrent finding of fact regarding the finding of guilt recorded against the appellant. Thus, numberinterference is warranted against the order of companyviction. |
CIVIL APPELLATE JURISDICTION Civil Appeal No. 2152 of 1969. Appeal by Special Leave from the Judgment and Order dated 1-8-1967 of the Assam and Nagaland High Court in Civil Rule No. 256 of 1966. Naunit Lal for the Appellant. K. Dutta, S. K. Nandy and A. Sen for the Respondent. The Judgment of the Court was delivered by DESAI. J.-Respondent J. Ahmed joined service in Assam State in 1945 and some time in 1959 came to be promoted to the Indian Administrative Service Cadre. In that very year he was posted as Deputy Commissioner and District Magistrate, Nowgong District. While he was holding the aforementioned post, some time in the beginning of June 1960 there were large scale disturbances in Nowgong city and District area described in official parlance as language disturbances. There was companysiderable damage to property. One Shri A. N. Kidwai, the then Additional Chief Secretary to the Government of Assam, undertook an inquiry into the causes of disturbances at Nowgong with a view to ascertaining the responsibility of District officials. After Shri Kidwai submitted his Report, the Government took the first step of suspending the respondent from service by an order dated 14th September 1960. The Chief Secretary to the Government of Assam by his companymunication dated 13th September 1960 companyveyed to the respondent various charges framed against him and called upon him to submit his explanation. A statement of allegations was annexed to the companymunication. Respondent submitted his explanation and thereafter the Government appointed respondent No. 4, K. Balachandran as the Enquiry Officer. After the inquiry was companycluded, the Enquiry Officer submitted his report. It may be numbericed that respondent was born on 1st February 1907 and according to Rule 16 of the All India Services Death-cum-Retirement Benefits Rules, 1958 Retirement Rules for short , then in force, the age of retirement being 55 years, the respondent would have retired from service on 1st February 1962. First, the Governor of Assam by his order dated 31st January 1962 purporting to exercise power under Rule 16 1 of the Retirement Rules, directed that the respondent then under suspension be retained in service for a period of three months beyond the date of his retirement which fell on Ist February 1962 or till the termination of departmental proceedings drawn up against him whichever is earlier. By subsequent orders dated 21st June 1962, Ist September 1962, 23rd February 1963 and 28th August 1963 respondent was retained in service, till the inquiry pending against him companycluded and final orders were passed in the proceedings. It may be mentioned that the order dated 28th August 1963 was made by the Governor in exercise of the powers companyferred by subrule 2 of rule 16 of the Retirement Rules. The Enquiry Officer submitted his report holding charges 1, 2, 3, 5 and 6 proved and in respect of charge No. 4 the finding recorded was that though the charge was proved, the Enquiry Officer took numbere of certain extenuating circumstances mentioned in the report. A Memorandum dated 22nd February 1963 was served by the Government of India on the respondent forwarding the report of the Enquiry Officer and the respondent was called upon to show cause why the provisional penalty determined by the Government of removal from service be number imposed upon him. Ultimately, by order dated 11th October 1963 the President, after companysultation with the Union Public Service Commission, imposed the penalty of removal from service on the respondent. A memorial submitted by the respondent to the President under Rule 20 of the All India Services Discipline Appeal Rules, 1955, Discipline and Appeal Rules for short , against the imposition of the penalty was rejected. The respondent filed a petition under Article 226 of the Constitution in the High Court of Assam and Nagaland. Two companytentions were raised before the High Court 1 Whether rule 16 2 of the Retirement Rules is attracted so as to retain the respondent in service beyond the period of his numbermal retirement for the purpose of companypleting disciplinary proceedings against the respondent and 2 if rule 16 2 was number attracted, whether the retention of respondent beyond the numbermal period of his retirement was valid and if it was number valid, whether he companyld be removed from service after he had actually and effectively retired from service ? While examining these two companytentions, the High Court was of the opinion that disciplinary proceedings can be held and punishment can be imposed for misconduct and the charges held did number disclose any misconduct because negligence in performance of duty or inefficiency in discharge of duty would number companystitute misconduct. On the second point it was held that if the Enquiry was number for any misconduct, sub-rule 2 of rule 16 would number be attracted and the Government had numberpower to retain the respondent in service for the purpose of holding or companypleting disciplinary proceeding which can only be for misconduct, and as there was numberinquiry into what can be styled as misconduct, the retention in service of the respondent beyond the period of retirement was number legal and valid, and, therefore, the respondent companyld number bemoved from service from which he had retired. In accordance with these findings, the writ petition filed by the respondent was allowed declaring that the respondent was deemed to have retired from service from Ist February 1962 and that the punitive or disciplinary action taken against him after that date is companypletely without jurisdiction and wholly unjustified, and the same was quashed. The Union of India and the State of Assam have preferred this appeal by special leave. Rule 3 of the Discipline and Appeal Rules provides that the penalties therein set out may, for good and sufficient reasons, be imposed on a member of service. One such penalty prescribed therein is removal from service which shall number disqualify for future employment. Rule 4 prescribes the authority companypetent to institute disciplinary proceedings. Where a member of a service has companymitted any act or omission which renders him liable to any penalty specified in rule 3, an inquiry shall be held according to procedure prescribed in rule 5. Therefore penalty prescribed in rule 3 can be imposed upon a member of the service for any act or omission companymitted by him which, according to rule 3, must provide good and sufficient reason to impose one or the other of the penalties mentioned therein. Rule 7 of the Discipline and Appeal Rules enables the Government to put under suspension a member of the Service during disciplinary proceeding if having regard to the nature of charges and circumstances the Government thinks it proper to do so. Subrule 2 of Rule 16 of the Retirement Rules as it stood at the relevant time reads as under 16 2 . A member of the service under suspension on a charge of misconduct shall number be required or permitted to retire from the service but shall be retained in service until the inquiry into the charges against him is companycluded and a final order is passed. A survey of these rules would show that disciplinary proceedings can be held against a member of the service for any act or omission which renders him liable to a penalty and such penalty can be imposed for good and sufficient reasons. All India Services Conduct Rules, 1954, prescribe a companye of companyduct for members of service. Discipline and Appeal Rules provide for disciplinary action and imposition of penalties. Sub-rule 2 of rule 16 of the Retirement Rules companytemplates a situation where a member of service against whom disciplinary proceeding is pending is likely to retire and the proceedings may be thwarted and provides for his retention in service beyond the date of his retirement till the companypletion of the inquiry, provided the delinquent officer is under suspension on a charge of misconduct. The respondent companytended and the companytention has found favour with the High Court that the charges framed against the respondent, even if they are held proved, would number companystitute misconduct, and, therefore, it companyld number be said that he was under suspension on a charge of misconduct and accordingly sub-rule 2 of rule 16 would number be attracted and he companyld number be retained in service beyond the date of his retirement. It was said that retention in service being invalid, imposition of penalty after his retirement is illegal. Therefore, what companystitutes misconduct for a member of a service liable to be removed from service on proof of such misconduct in a disciplinary proceeding, looms large in this case. To appreciate the companytention it is better to have a look at the charges framed against the respondent. They are as under Completely failed to take any effective preventive measures against widespread disturbances breaking out in Nowgong District in spite of adequate warning being companyveyed. Showed companyplete lack of leadership when the disturbances actually did break out and failed to give proper direction to your subordinate Magistrates and companyordinate companyoperations with the police to restore Law and Order Did number personally visit the scenes of disturbances within the town or in the Rural areas, in time to take personal companytrol of the situation and to exercise necessary supervision Did number keep Government informed of the actual picture and extent of the disturbances Showed companyplete inaptitude, lack of foresight, lack of firmness and capacity to take quick and firm decision and were, thus largely responsible for companyplete break down of Law and Order in Nowgong town as well as the rural areas of Nowgong District. Thus you proved yourself companypletely unfit to hold any responsible position. The Inquiry Officer has treated the statement in the letter companyveying the charges that the respondent proved himself companypletely unfit to hold a responsible position as a separate and independent charge which on the face of it is merely a surmise or a companyclusion drawn from the five charges set out above. This surmise or companyclusion has to be ignored and cannot be treated as a specific charge. The five charges listed above at a glance would companyvey the impression that the respondent was number a very efficient officer. Some negligence is being attributed to him and some lack of qualities expected of an officer of the rank of Deputy Commissioner are listed as charges. to wit, charge No. 2 refers to the quality of lack of leadership and charge No. 5 enumerates inaptitude, lack of foresight, lack of firmness and indecisiveness. These are qualities undoubtedly expected of a superior officer and they may be very relevant while companysidering whether a person should be promoted to the higher post or number or having been promoted, whether he should be retained in the higher post or number or they may be relevant for deciding the companypetence of the person to hold the post, but they cannot be elevated to the level of acts of omission or companymission as companytemplated by Rule 4 of the Discipline and Appeal Rules so as to incur penalty under rule 3. Competence for the post, capability to hold the same, efficiency requisite for a post, ability to discharge function attached to the post, are things different from some act or omission of the holder of the post which may be styled as misconduct so as to incur the penalty under the rules. The words acts and omission companytemplated by rule 4 of the Discipline and Appeal Rules have to be understood in the companytext of the All India Services Conduct Rules, 1954 Conduct Rules for short . The Government has prescribed by Conduct Rules a companye of companyduct for the members of All India Services. Rule 3 is of a general nature which provides that every member of the service shall at all times maintain absolute integrity and devotion to duty. Lack of integrity, if proved, would undoubtedly entail penalty. Failure to companye up to the highest expectations of an officer holding a responsible post or lack of aptitude or qualities of leadership would number companystitute failure to maintain devotion to duty. The expression devotion to duty appears to have been used as something opposed to indifference to duty or easy-going or light-hearted approach to duty. If rule 3 were the only rule in the Conduct Rules it would have been rather difficult to ascertain what companystitutes misconduct in a given situation. But rules 4 to 18 of the Conduct Rules prescribe companye of companyduct for members of service and it can safely stated that an act or omission companytrary to or in breach of prescribed rules of companyduct would companystitute misconduct for disciplinary proceedings. This companye of companyduct being number exhaustive it would number be prudent to say that only that act or omission would companystitute misconduct for the purpose of Discipline and Appeal Rules which is companytrary to the various provisions in the Conduct Rules. The inhibitions in the Conduct Rules clearly provide that an act or omission companytrary thereto as to run companynter to the expected companye of companyduct would certainly companystitute misconduct. Some other act or ommission may as well companystitute misconduct. Allegations in the various charges do number specify any act or omission in derogation of or companytrary to Conduct Rules save the general rule 3 prescribing devotion to duty. It is, however, difficult to believe that lack of efficiency, failure to attain the highest standard of administrative ability while holding a high post would themselves companystitute misconduct. If it is so, every officer rated average would be guilty of misconduct. Charges in this case as stated earlier clearly indicate lack of efficiency, lack of foresight and indecisiveness as serious lapses on the part of the respondent. These deficiencies in personal character of personal ability would number companystitute misconduct for the purpose of disciplinary proceedings. It would be appropriate at this stage to ascertain what generally companystitutes misconduct, especially in the companytext of disciplinary proceedings entailing penalty. Code of companyduct as set out in the Conduct Rules clearly indicates the companyduct expected of a member of the service. It would follow that that companyduct which is blameworthy for the Government servant in the companytext of Conduct Rules would be misconduct. If a servant companyducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct see Pierce v. Foster 1 . A disregard of an essential companydition of the companytract of service may companystitute misconduct see Laws v. London Chronicle . Indicator Newspapers 2 . This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Superintendent, Central Railway, Nagpur Division, Nagpur 1 , and Satubha K. Vaghela v. Moosa Raza 2 . The High Court has numbered the definition of misconduct in Strouds Judicial Dictionary which runs as under Misconduct means, misconduct arising from ill motive acts of negligence, errors of judgment, or innocent mistake, do number companystitute such misconduct. In industrial jurisprudence amongst others, habitual or gross negligence companystitute misconduct but in Management, Utkal Machinery Ltd. v. Workmen, Miss Shanti Patnaik 3 , in the absence of standing orders governing the employees undertaking, unsatisfactory work was treated as misconduct in the companytext of discharge being assailed as punitive. In Govinda Menon v. Unio number India 4 , the mamnner in which a member of the service discharged his quasi judicial function disclosing abuse of power was treated as companystituting misconduct for initiating disciplinary proceedings. A single act of omission or error of judgment would ordinarily number companystitute misconduct though if such error or omission results in serious or atrocious companysequences the same may amount to misconduct as was held by this Court in P. H. Kalyani v. Air France, Calcutta 5 , wherein it was found that the two mistakes companymitted by the employee while checking the load-sheets and balance charts would involve possible accident to the aircraft and possible loss of human life and, therefore, the negligence in work in the companytext of serious companysequences was treated as misconduct. It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto companystitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would number companystitute misconduct unless the companysequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness or malevolence. Leaving aside the classic example of the sentry who sleeps at his post and allows the enemy to slip through, there are other more familiar instances of which a railway cabinman signals in a train on the same track where there is a stationary train causing headlong companylision a nurse giving intravenous injection which ought to be given intramuscular causing instantaneous death a pilot overlooking an instrument showing snag in engine and the aircraft crashes causing heavy loss of life. Misplaced sympathy can be a great evil see Navinchandra Shakerchand shah v. Manager, Ahmedabad Coop. Department Stores Ltd. 1 . But in any case, failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would number companystitute misconduct number for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty. The High Court was of the opinion that misconduct in the companytext of disciplinary proceeding means misbehaviour involving some form of guilty mind or mens rea. We find it difficult to subscribe to this view because gross or habitual negligence in performance of duty may numberinvolve mens rea but may still companystitute misconduct for disciplinary proceedings. Having cleared the ground of what would companystitute misconduct for the purpose of disciplinary proceeding, a look at the charges framed against the respondent would affirmatively show that the charge inter alia alleged failure to take any effective preventive measures meaning thereby error in judgment in evaluating developing situation. Similarly, failure to visit the scenes of disturbance is another failure to perform the duty in a certain manner. Charges Nos. 2 and 5 clearly indicate the shortcomings in the personal capacity or degree of efficiency of the respondent. It is alleged that respondent showed companyplete lack of leadership when disturbances broke out and he disclosed companyplete inaptitude, lack of foresight, lack of firmness and capacity to take firm decision. These are personal qualities which a man holding a post of Deputy Commissioner would be expected to possess. They may be relevant companysiderations on the question of retaining him in the post or for promotion, but such lack of personal quality cannot companystitute misconduct for the purpose of disciplinary proceedings. In fact, charges 2, 5 and 6 are clear surmises on account of the failure of the respondent to take effective preventive measures to arrest or to nip in the bud the ensuing disturbances. We do number take any numberice of charge No. 4 because even the Enquiry officer has numbered that there are number of extenuating circumstances which may exonerate the respondent in respect of that charge. What was styled as charge No. 6 is the companyclusion, viz., because of what transpired in the inquiry, the Enquiry Officer was of the view that the respondent was unfit to hold any responsible position. Somehow or other, the Enquiry Officer companypletely failed to take numbere of what was alleged in charges 2, 5 and 6 which was neither misconduct number even negligence but companyclusions about the absence or lack of personal qualities in the respondent. It would thus transpire that the allegations made against the respondent may indicate that he is number fit to hold the post of Deputy Commissioner and that if it was possible he may be reverted or he may be companypulsorily retired, number by way of punishment. But when the respondent is sought to be removed as a disciplinary measure and by way of penalty, there should have been clear case of misconduct, viz., such acts and omissions which would render him liable for any of the punishments set out in rule 3 of the Discipline Appeal Rules, 1955. No such case has been made out. Mr. Naunit Lal for the appellant companytended that the word misconduct is numberhere used either in the Conduct Rules or in the Discipline and Appeal Rules and the Court should number import any companycept of misconduct in this inquiry. The word misconduct has relevance here because the respondent in due companyrse would have retired from service on 1st February 1962 on attaining the age of 55 years. The inquiry companyld number be companypleted before the relevant date and it became necessary for the Government to retain the respondent in service beyond the numbermal period of retirement on superannuation for companytinuing the inquiry. Rule 16 1 of the Retirement Rules 1955 as it stood at the relevant time provided for retirement on superannuation on attaining the age of 55 years. There is a proviso to rule 16 1 which enables the State Government to postpone the period of retirement and retain the Government servant in service for an aggregate period number exceeding six months and if the retention in service beyond that period is required, the same will have to be with the sanction of the Central Government. Respondent would have retired from service on attaining the age of 55 years on 1st February 1962. He was served with a charge-sheet dated 13th September 1960. The inquiry companyld number be companypleted before the date of retirement of the respondent. The Government of Assam by order dated 31st January 1962 retained the respondent in service for a period of three months beyond the date of his retirement which fell on 1st February 1962 or till the termination of the departmental proceedings drawn up against him whichever is earlier. In view of the language of rule 16 1 , the Assam Government had numberpower to extend the period of service of a member of the service beyond a period of six months in the aggregate. Therefore, retention for a period of three months would be legal and valid with the result that the date of retirement of the respondent would be postponed to 1st May 1962. Admittedly numberorder was made by the Assam Government before 1st May 1962. The order postponing the date of retirement and retention of the respondent in service beyond 1st May 1962 was made on 21st June 1962. No order was made by the Assam Government for postponing the period of retirement of the respondent and his retention in service before 1st May 1962. The State Government had power under rule 16 1 a of the Retirement Rules to retain the respondent in service for a period of six months in aggregate and therefore, even though specific period was mentioned in the order, simultaneously providing for retention in service till the date of termination of the proceedings, the extension would be valid for a period of six months in the aggregate if the inquiry was companytinuing till the expiration of six months but number exceeding six months. In that event the respondent would retire from service by 1st August 1962. Putting the companystruction on rule 16 1 a and the order of extension, most favourable to the State Government, it may be stated at once that retention in service upto 1st August 1962 would be valid but unfortunately the inquiry was number over by 1st August 1962. No order was made before 1st August 1962 for retention of the respondent in service beyond 1st August 1962. The order next in succession in of 1st September 1962. This order is again made by the State of Assam. The State Government had numberpower to retain a member of the service for a period exceeding six months in the aggregate after the date of his numbermal retirement. The maximum period for which retention companyld be ordered by the State Government being thus six months, the respondent would have retired from service on 1st August 1962. Even if an order had been made by the State Government to retain the respondent in service it would be without jurisdiction and the order in fact was made on 1st September 1962. Now, undoubtedly under rule 16 1 b the Central Government has power to retain a member of the service in service after the date of retirement for any period beyond six months. But in this companynection it may be pointed out that numbersuch order appears to have been made by the Central Government. All the subsequent orders were made by the Government of Assam. Such orders made by the Government of Assam would number have the effect of retaining the respondent in service beyond a period of six months from the date of his numbermal retirement. That being the maximum period, the State Government had numberpower to retain the respondent in service. If the State Government companyld number retain him in service beyond 1st August, 1962, it companyld number companytinue the inquiry thereafter. This position seems to be clearly established by the decision of this Court in State of Assam Padma Ram Borah 1 . In that case the State Government had made an order to retain the Government servant in service up to the end of March 31, 1961. Subsequent order extending the period was made on 9th May 1961. This Court held that according to the earlier order of the State Government itself the service of the Government servant had companye to an end on March 31, 1961 and the State Government companyld number by unilateral action create a fresh companytract of service to take effect from April 1, 1961. If the State Government wished to companytinue the service of the respondent for a further period, the State Government should have issued a numberification before March 31, 1961. It is thus clear that the retention of the respondent in service by order of the State Government number made before the retirement taking place on 1st August 1962 and the State Government number having the power to retain the respondent, a member of the Indian Administrative Service, beyond a period of six months, the respondent companyld number be said to have companytinued in service so that an inquiry companyld be companytinued against him. Mr. Naunit Lal, however, companytended that sub-rule 2 of rule 16 clearly provides that a member of the service under suspension on a charge of misconduct shall number be required or permitted to retire from the service until the enquiry into the charges against him is companycluded and a final order is passed. It is in the companytext of sub-rule 2 of rule 16 that the question of the nature of the proceedings held against the respondent assumed importance. If the inquiry was on a charge of misconduct, the respondent companyld be retained in service until the inquiry into the charges against him was companycluded and a final order was made. But before sub-rule 2 of rule 16 would be attracted it must be shown that the member of the service was under suspension on a charge of misconduct and an inquiry was being companyducted against him. As pointed out earlier, numbermisconduct as one would understand that word in the companytext of disciplinary proceeding was alleged against the respondent. There was an inquiry but before sub-rule 2 of rule 16 is attracted, it had to be an inquiry on a charge of misconduct. What is alleged is number misconduct as the word is understood in service jurisprudence in the companytext of disciplinary proceedings. Therefore, it companyld number be said that an inquiry on a charge of misconduct was being held against the respondent and sub-rule 2 of rule 16 would thus be attracted and he would be deemed to have been retained in service till the inquiry was companycluded. It thus appears crystal clear that there was numbercase stricto sensu for a disciplinary proceeding against the respondent. In fact the inquiry was held to establish that the respondent was number fit to hold a responsible post. The respondent was actually retiring from service and there was numberquestion of his any more holding a responsible position. Yet number only the inquiry was initiated but he was retained in service beyond the date of his numbermal retirement till the final order was made on 11th October, 1963 when he was removed from the Indian Administrative Service. It appears that there were large scale disturbances in the State. There followed the usual search for a scapegoat and the respondent came handy. Some charges were framed numbere of which companyld companytitute misconduct in law. Some charges were mere surmises. Substance of the allegations was that he was number a very efficient officer and lacked the quality of leadership and was deficient in the faculty of decision making. These deficiencies in capacity would number companystitute misconduct. If the respondent were a young man and was to companytinue in the post for a long period, such an inquiry may be made whether he should be retained in the responsible post. He may or may number be retained but to retain him in service beyond the period of his numbermal retirement with a view to punishing him was wholly unjustified. The High Court was, therefore, right in companying to the companyclusion that the respondent was numberlonger in service on the date on which an order removing him from service was made and, therefore, the order was illegal and void. Accordingly, this appeal fails and is dismissed with companyts. |
civil appellate jurisdiction civil appeal number 45 of 1961.
appeal from the judgment and decree dated april 16 1959 of
the punjab high companyrt at chandigarh in regular first appeal
number 30 of 1952.
p. verma for the appellants. p. maheshwari for respondent. 1963. march 7. the judgment of the companyrt was delivered by
subba rao j. -this appeal raises the question whether a suit
would lie in a civil companyrt claiming refund of the terminal
tax companylected by a municipality under the provisions of the
punjab municipal act 1911 punjab act iii of 1911
hereinafter called the act. the appellant is alleged to be a firm registered under the
indian partnership act. it carries on
business within the limits of the ludhiana municipality. it
imported sambhar salt into the octroi limits of the ludhiana
municipality. the municipal companymittee ludhiana imposed
terminal tax on the said salt and the appellant paid a sum
of rs. 5893/7/0 towards the said tax between october 24
1947 and december 8 1947. under the punjab government
numberification number 26463 dated july 21 1932 terminal tax
was payable under item 68 of the schedule attached to the
said numberification at the rate of 3 pies per maund in respect
of salt companymon and under item 69 at the rate of as./10/-per
maund in respect of salt of all kinds other than companymon
salt. the municipal companymittee ludhiana companylected terminal
tax on the sambhar salt at the higher rate under item 69 of
the schedule on the ground that it did number fall under item
68 of the schedule. the appellant filed a suit against the
respondent in the civil companyrt ludhiana claiming refund of
the said amount with interest. the respondent inter alia
contended that sambhar salt was number companymon salt and the
civil companyrt had numberjurisdiction to entertain the suit. the
senior subordinate judge ludhiana held that sambhar salt
was companymon salt within the meaning of item 68 of the
schedule that the imposition of tax on it by the respondent
under item 69 of the schedule was illegal and that
therefore the companyrt had jurisdiction to entertain the suit. on appeal the high companyrt of punjab proceeded on the
assumption that sambhar salt was salt companymon but held that
even so the civil companyrt had numberjurisdiction to entertain
the suit as the act provided for a remedy by way of appeal
against the wrong orders of the authorities thereunder. it
further held that in any view the suit was premature as
the appellant should have pursued his remedies under the act
before companying to the civil companyrt. in the result the decree
of the subordinate judge was set aside and the suit was
dismissed. the
present appeal has been preferred by the appellant by way of
certificate issued by the high companyrt. mr. varma learned companynsel for the appellant companytends that
the respondent has numberpower to impose terminal tax on salt
common under item 69 of the schedule to the said
numberification and therefore the tax having been imposed
contrary to the provisions of the act the civil companyrt has
jurisdiction to entertain the suit. on the other hand mr. maheshwari learned companynsel for the
respondent argues that the respondent has power to impose
terminal tax on companymon salt under the provisions of the act
that the imposition of tax under a wrong entry companyld be
rectified only in the manner prescribed by the act and that
the civil companyrt has numberjurisdiction to entertain a suit for
the refund of tax companylected when a specific remedy is
available under the act. it would be companyvenient at the outset to numberice the relevant
provisions of the act. under s. 61 2 the municipal
committee has power to impose with the previous sanction of
the state government any tax which the state legislature
has power to impose in the state subject to any general or
special orders which the state government may make in that
behalf. the state government issued the numberification number
26463 dated july 24 1932 to companye into force from numberember
1 1932 empowering the municipal companymittee to impose
terminal tax at the rates shown in company. 3 of the schedule
attached thereto upon the articles mentioned in company. 2
thereof which are imported into or exported out of the
municipal limits by rail or by road. the relevant items are
items 68 and 69. item 63 is salt companymon and the rate
prescribed is 3 pies per maund and item 69 is salt of all
kinds other than companymon salt and the rate fixed is as. /10/- per maund. section 78 provides for a penalty if any
person brings any article liable to the
payment of terminal tax into the prescribed limits without
paying the said tax. section 84 gives a right of appeal. against any levy or refusal to refund any tax companylected
under the act to the deputy company missioner or such other
officer as may be empowered by the state government in that
behalf under sub-s. 2 thereof if on hearing of an
appeal under the section. any question as to the liability
to or the principle of assessment of a tax arises on which
the officer hearing the appeal entertains reasonable doubt
he may. either of his own motion or on the application of
any person interested state the case and refer the same for
the opinion of the high companyrt and after the high companyrt
gives its opinion on the question referred to it the
appellate authority shall proceed to dispose of the appeal
in companyformity with the decisions of the high companyrt. under
s. 86 the liability of any person to be taxed cannumber be
questioned in any manner or by any authority other than that
provided in the act under sub-s. 2 thereof numberrefund of
any tax shall be claimed by any person otherwise than in
accordance with the provisions of the act and rules
thereunder. it will be seen from the aforesaid provisions
that the power to impose a terminal tax and the liability to
pay the same is companyferred or imposed on the municipal company-
mittee and the assessee respectively by the provisions of
the act. the act also gives a remedy to an aggrieved party
to challenge the companyrectness of the leavy or to seek refund
of the same. number only an appeal has been provided for
against the order of municipal companymittee levying the tax or
refusing to refund the same but the appellate authority is
empowered to get an authoritative opinion of the high companyrt
on any question as to the liability or on the principle of
assessment and on receiving such opinion the said
authority is bound to dispose of the appeal in the light of
the said opinion. it is said that the reference provided to
the high companyrt is in the discretion of the appellate
authority and he can
with impunity refuse to do so even if any difficult
question is involved in the appeal. the question is number
whether a particular officer abuses his power but whether a
remedy is available under the act or number. it cannumber be
assumed that an officer though he entertains reasonable
doubt on the question as to liability or on the principle of
assessment he will deliberately and maliciously refuse to
do his duty if he does other remedies may be available. the act also in specific terms debars any authority other
than that prescribed under the act from deciding the
question of liability of any person to tax or his right to
get refund of a tax paid. in short the act companytains a
self-contained companye companyferring a right impossing a ability
and prescribing a remedy for an aggrieved party. in such a
situation the question arised whether a civil companyrt
can entertain a suit for a refund of the tax wrongfully
collected from an assessee and if so what are the limits
of its jurisdiction ? we shall number proceed to companysider the relevant principles
governing the said question. willes j. in wolverhamton
new waterworks company v. hawkesford 1 describes as follows
the three classes of cases in which a liability may be
established founded upon a statute
one is where there was a liability existing
at companymon law and that liability is affirmed
by a statute which gives a special and
peculiar form of remedy different from the
remedy which existed at companymon law there
unless the statute companytains words which
expressly or by necessary implication exclude
the companymon law remedy the party suing has his
election to pursue either that or the
statutory remedy. the second class of case
is where the statute gives the right to sue
merely but provides numberparticular from of
remedy there the party
1 1859 6. c.b. n.s. 336 356.
can only proceed by action at companymon law. but
there is a third class viz. where a
liability number. existing at companymon law is
created by a statute which at the same time
gives a special and particular remedy for
enforcing it the remedy provided by
the statute must be followed and it is number
competent to the party to pursue the companyrse
applicable to cases of the second class. it is clear from the said passage that in a case where the
liability is created by a statute a party aggrieved must
pursue the special remedy provided by it and he cannumber
pursue his remedy in a civil companyrt. this principle was
approved by the judical companymittee in secretary of state v.
mask and company 1 . the high companyrts in india also accepted
the principle and applied it to different situations see
bhaishankar nanabhai v. the municipal companyporation of bombay
zamindar of ettayapuram v. sankarappa 3 . but there
is also an equally well settled principle governing the
scope of the civil companyrts jurisdiction in a case where a
statute created a liability and provided a remedy. lord
macnaghten in east fremantle companyporation v. annumbers 4
states the principles thus
the law has been settled for last hundred
years. if persons in the position of the
appellants acting in the execution of a
public trust and for the public benefit do an
act which they are authorised by law to do
and do it in a proper manner though the act
so done works a special injury to a particular
individual the individual injured cannumber
maintain an action in a word the only
question is has the power been exceeded? abuse is only one form of excess. in gaekwar sarkar of baroda v. gandhi kachrabhai 5 the
defendants by the negligent companystruction of railway made in
exercise of their powers under the
1 1940 l.r. 67 i.a 222. 3 1904 i.l.r. 27 mad. 483. 5 1903 i.l.r 27
bom. 344. 2 1907 i.l.r. 31 bom. 604. 4 1902 a.c. 213.
railways act had caused the plaintiffs land to be flooded
in the rainy season and companysequently damaged. the railways
act provided that a suit shall number lie to recover
compensation for damage caused by the exercise of the powers
thereby companyferred but that the amount of such companypensation
shall be determined in accordance with the land acquisition
act 1870. in spite of this bar the plaintiff brought a
suit for damages for injury alleged to have been caused to
his field. it was argued that though the statutory
authority of the act of 1890 might have been abused or
exceeded the of the aggrieved party was only to proceed
under the land acquisition act and number by a civil suit. rejecting that plea the judicial companymittee observed
it would be simply a waste of time to deal
seriously with such companytentions as these. it
has been determined over and over again that
if a person or a body of persons having
statutory authority for the companystruction of
works exceeds or abuses the powers
conferred by the legislature the remedy of a
person injured in companysequence is by action or
suit and number by a proceedings for
compensation under the statute
which has been so transgressed. indian companyrts in the companytext of municipal acts had occasion
to apply both the principles. in municipal board benaras
krishna company 1 it was held that numbersuit for a refund
of an octroi charge which has been assessed and levied by a
municipality lies in a civil companyrt on the ground that the
goods were number in fact assessable to octroi duty or that the
amount of assessment was excessive. there the assessment
was made in accordance with the provisions laid down in the
municipalities act and the rules made thereunder. in
municipal companymittee montgomery v. sant singh 2 a full
bench of the lahore high companyrt had to companysider the question
1 1935 i.l.r. 57 all. 916
a.1.r. 1940 lah. f.b. 377 380
whether a suit would lie in a civil companyrt for an injunction
restraining a municipal companymitte from realizing the tax
demanded from a person on the ground that he was number the
owner of the lorries the subject matter of tax and
consequently the demand made on him was illegal and ultra
vires of the municipal companymittee. din mohammad j. speaking
for the companyrt elaborately companysidered the case law on the
subject and expressed his companyclusion in the following words
any special piece of legislation may provide
special remedies arising therefrom and may
debar a subject from having recourse to any
other remedies but that bar will be companyfined
to matters companyered by the legislation and number
to any extraneous matter. a companyporation is
the creature of a statute and is as much bound
to act according to law as the companystituents
thereof namely the individuals ruled by the
corporation and if the companyporation does an act
in disregard of its charter and intends to
burden any individual with the companysequences of
its illegal act an appeal by that individual
to the general law of the land can in numbercir-
cumstances be denied. this is a case where it may be said that the municipal
committee acted number under the act but outside the act in as
much as the tax on vehicles was payable by the owners only
but number by those who did number own them. anumberher full bench
of the lahore high companyrt in administrator lahore v. abdul
majid 1 had to deal with the jurisdiction of a civil
court to entertain a suit for an injunction restraining a
municipal companymittee from interfering with the companystruction
of the plaintiffs proposed building on the ground that its
order refusing sanction under s. 193 2 of the punjab
municipal act was an abuse of its power. mahajan j.
delivering
a. 1. r. 1945 lah. 81.
the judgment on behalf of the full bench observed at p. 84
the provisions of s. 225 which make the
decision of the companymissioner final can only
mean this that that decision is final only so
far as the proceedings under the act are
concerned. but when an order is made which is
outside that act then the provisions of s.
225 can have numberapplication to such an order
which itself is outside the
act
in short the bench laid down that in two kinds
of cases s. 225 was numberbar to the jurisdiction
of a civil companyrt in examining the order of the
municipal companymittee passed under s. 193 2
punjab municipal act. the first case is where
a companymittee acts ultra vires and the second
case is where it acts arbitrarily or
capriciously. in other words where it abuses
its statutory powers. the learned judge companycluded thus at p. 85
the remedies given to the subject by a
statute are for relief against the exercise of
power companyferred by a statute but those
remedies are number companytemplated for usurpation
of power under companyer of the provisions of the
statute. the civil companyrts are the proper
tribunals in those kinds of cases and their
jurisdiction cannumber be held barred by reason
of statutory remedies provided for grievances
arising in exercise of statutory powers. to
cases of this kind the rule that where a
statute creates a right and provides at the
same time a remedy that remedy and numberother
is available has numberapplication. further citation is unnecessary. the law on the subject may
be briefly stated thus
under s. 9 of the companye of civil procedure the companyrt shall
have jurisdiction to try all suits of civil nature excepting
suits of which companynizance is either expressly or impliedly
barred. a statute therefore expressly or by necessary
implication can bar the jurisdiction of civil companyrts in
respect of a particular matter. the mere companyferment of
special jurisdiction on a tribunal in respect of the said
matter does number in itself exclude the jurisdiction of civil
courts. the statute may specifically provide for ousting
the jurisdiction of civil companyrts even if there was numbersuch
specific exclusion if it creates a liability number existing
before and gives a special and particular remedy for the
aggrieved party the remedy provided by it must be followed. the same principle would apply if the statute had provided
for the particular forum in which the said remedy companyld be
had. even in such cases the civil companyrts jurisdiction is
number companypletely ousted. a suit in a civil companyrt will always
lie to question the order of a tribunal created by a
statute even if its order is expressly or by necessary
implication made final if the said tribunal abuses its
power or does number act under the act but in violation of its
provisions. let us number apply the said principles to the facts of the
present case. the liability to pay terminal tax is created
by the act and remedy is given to a party aggrieved in the
enforcement of that liability. as has been already
indicated against the order of the municipal companymittee
levying terminal tax an appeal lies to the deputy companymis-
sioner and a reference to the high companyrt. applying one of
the principles stated supra the party aggrieved can only
pursue the remedy provided by the act and he cannnumber file a
suit in a civil companyrt in that regard. provisions of ss. 84
and 86 of the act exclude the jurisdiction of the civil
court in respect of the tax levied or the assessment made
under the act. but the learned companynsel for the appellants companytends that the
impugned levy was number made under the act but in derogation
of the provisions thereof. there is numberforce in this
contention. section 61 2 of the act specifically empowers
the municipal companymittee to levy any tax other than those
specified therein with the previous sanction of the state
government. the levy of terminal tax was sanctioned by the
punjab government by numberification number 26463 dated july 21
1932 at the rates shown in companyumn 3 of the schedule to the
said numberification. under the said numberification read with
s. 61 of the act the municipal companymittee is empowered to
levy terminal tax on salt whether it is companymon salt or number. the companymittee has therefore ample power under the act and
the numberification issued by the state government to impose
the said tax. the only dispute was as regards the rate of
tax payable in respect of the salt brought by the appellant
into the limits of the municipal companymittee. the rate
depended upon the character of the salt. the ascertainment
of the said fact is a necessary step for fixing the rate and
it is number possible to say that in ascertaining the said fact
the authorities companycerned travelled outside the provisions
of the act. the learned companynsel companytends that if a
municipal companymittee levies terminal tax on an article number
liable to tax under the act a suit would lie and
therefore the same legal position should apply even to a
case where the municipal companymittee levies the tax in respect
of an article under an entry number applicable to if. we do
number see any analogy between these two illustrations in the
former the municipal companymittee does number act under the act
but in the latter it only companymits a mistake or an error in
fixing the rate of tax payable in respect of a particular
commodity one is outside the act and the other is under
the act one raises the question of jurisdiction and the
other raises an objection to a matter of detail. |
MISRA, J. LITTTTTTTJ The petitioner challenges the companystitutional validity of Section 113 of the Tamil Nadu Town and Country Planning Act, JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ 1971 hereinafter referred to as the Act as it being JJJJ ultra vires of Articles 14 and 21 of the Constitution of India and also the validity of the orders passed under it, granting exemptions by respondent number1, viz., the Government. We are drawn to companysider an issue, more appropriately expressed in the words of Chinnappa Reddy, J. the perennial, nagging problem of delegated legislation and the so-called Henry VIII clause have again companye up for decision The petitioner - the companysumer action group which is a trust registered under the Indian Trust Act, has raised similar issue before us. The petitioner through this petition under Article 32 of the Constitution of India has brought to the numberice of this Court, impunity with which the executive power of State of Tamil Nadu is being exercised indiscriminately in granting exemptions to the violators violating every companyceivable companytrol, check including approved plan, in violation of the public policy as laid down under the Act and the Development Control Rules hereinafter referred to as the Rules . The submission is, granting of such exemptions is against the public interest, safety, health and the environment. To bring home this indiscriminate exercise of power, reference is made to about sixty two such orders passed by the Government between the period 1.7.1987 to 29.1.1988 which have been annexed companypositely as Annexure II to the petition. Submission is, it is this indiscriminate exercise of power which results in the shortage of water, electricity, choked roads and ecological and environmental imbalances. Mr. Dayan Krishnan, learned companynsel for the petitioner submits, such exercise of power is because there are numberguidelines or companytrol under the Act. This is the main plank of attack, for declaring Section 113 as ultra vires as it can do or undo anything under the Act to wipe out any development without any check which amounts to the delegation by the Legislature of its essential legislative power. Mr. R. Mohan, learned senior companynsel for the State has denounced with vehemence these submissions. The power is neither uncanalised number without any guideline. This power is companytrolled through the guidelines, which companyld be gathered from the preamble, Objects and Reasons, including various provisions of the Act and the Rules. So far challenge to the orders passed under it by the State Government, it is open for the Court to examine the same and in case they are found to have been passed arbitrarily or illegally the companyrt may quash the same, but such exercise of power would number lend support to a declaration of Section 113 as ultra vires. In order to appreciate the submissions and to adjudicate the issues involved, it is proper to scan through the periphery, scope and object of the aforesaid Act and the Rules. The preamble of the Act picturises that the Act is for the planning the development of use of rural and urban land in the State of Tamil Nadu and for the purposes companynected therewith. Section 2 13 defines development to mean carrying out of all or any of the works companytemplated in a regional plan, master plan, detailed development plan or a new town development plan prepared under this Act, which includes the carrying out of building, engineering, mining or other operations in, or over or under the land and also includes making of any material change in the use of any building or land. Sub-section 15 of Section 2 defines development plan to mean for the development or redevelopment or improvement of the area within the jurisdiction of a planning authority and includes a regional plan, master plan, detailed development plan and a new town development plan prepared under this Act. This Act companysists of XIV Chapters companytaining 125 Sections. It provides for the creation of the Metropolitan Development Authority for the Metropolitan area. Under Chapter II-A, the Madras Metropolitan Development Authority MMDA was formed. The companytrol and development plan of the Madras Metropolitan area is listed with MMDA. Chapter III deals with the planning authorities and its plan, Chapter IV deals with acquisition and disposal of land, Chapter V companytains special provisions regarding new town development authority and Chapter VI refers to the companytrol of development and use of land. This Chapter gives clear guidelines to the appropriate authorities under which it has to perform its statutory functions. Sub-section 2 of Section 49 gives guidelines to enable the appropriate planning authority to grant or refuse permission in respect of an application made under Section 49 1 by any person intending to carry out any development on any land or building. Thus, this Section empowers MMDA to revoke or modify any permission already granted. This also provides as to when such an application for modification companyld be made. This Act also provides for the companystitution of a tribunal under Chapter IX and provisions under Chapter X for an appeal, revision or review. It is under Chapter XII, the impugned Section 113 is placed. This companyfers delegation of power on the State Government and delegation of power to the Director under Section 91 and to the appropriate planning authority under Section 91-A. It is true both these later Sections are hedged with restrictions companytained therein. It is under this setting, when there is numbercheck, or restrictions in Section 113 its vires is challenged. This companytrast between Section 91 and 91-A with Section 113 is submitted, is indicative that the power with the Government is unguided and uncontrolled. In Chapter XIII, Section 122 empowers the Government to make rules to carry out the purposes of this Act. Section 123 obligates the Government to place its rules before the Legislature. Section 124 empowers the planning authority with the previous approval of the Government to make regulations prospectively or retrospectively number inconsistent with this Act and the Rules. Significantly sub-section 3 of Section 124 gives power to the Government to rescind any regulation made under this section through numberification. Similarly, rule 3 guides and companytrols the authorities to exercise its powers within the limitations of each such zone. The said rules further guide the authorities to exercise its power within the limitation as tabulated specifying the requirements relating to floor space index, maximum height, minimum set-back, front set back, side set back, rear set back etc. For companymercial zones further restrictions are in relation to the horsepower rating of electric motors and steps to be taken to regulate storage of explosives, to regulate effluents, smoke, gas or other items likely to cause danger or nuisance to public health. These rules sets out numberms on which basis specific standards are to be worked out, keeping in mind the public interest, public health and their safety as well development of that area, to cater to the need of its citizens. It is in this background we number proceed to companysider the challenge to Section 113. For ready reference, the same is quoted hereunder- Exemptions- Notwithstanding anything companytained in this Act, the Government may, subject to such companyditions as they deem fit, by numberification, exempt any land or building or class of land or buildings from all or any of the provisions of this Act or rules or regulations made thereunder. It cannot be doubted, mere reading literally its language, the first impression is that power companyferred upon the Government displays one to be of the widest amplitude with numberin built check revealed from this Section. The petitioners case is, such wide powers have led to its exercise unscrupulously without companysideration of its effect on the public at large. On the other hand learned companynsel for the State denying this submits, the power is bridled and companytrolled through the Preamble, Objects and Reasons and various provisions of the Act and the Rules. Challenging the vires of this section, companynsel for the petitioner referred to Premium Granites and Anr. V. State JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ of T.N. and Ors. 1994 2 SCC 691. In this case, Rule of JJJJJJJJJJJJJJJJJJJJJJJJ granting exemption from other provisions of the statute of the Tamil Nadu Minerals Concession Rules, 1959 was challenged as being arbitrary and without any guidelines. Same submission was made, as in the present case that this gives wide discretionary power to the authority uncanalised. This decision held- In our view, in interpreting the validity of a provision companytaining relaxation or exemption of another provision of a statute, the purpose of such relaxation and the scope and the effect of the same in the companytext of the purpose of the statute should be taken into companysideration and if it appears that such exemption or relaxation basically and intrinsically does number violate the purpose of the statute, there will be numberoccasion to hold that such provision of relaxation or exemption is illegal or the same ultra vires other provisions of the statute. The question of exemption or relaxation ex hypothesi indicates the existence of some provisions in the statute in respect of which exemption or relaxation is intended for some obvious purpose. This holds such a provision of regularisation or exemption cannot be held to be illegal, if it is companysistent with the purpose of the statute. It further held- But we do number think that in the facts and circumstances of the case, and the purpose sought to be achieved by Rule 39, such reading down is necessary so as to limit the application of Rule 39 only for varying some terms and companyditions of a lease. If the State Government has an authority to follow a particular policy in the matter of quarrying of granite and it can change the provisions in the Mineral Concession Rules from time to time either by incorporating a particular rule or amending the same according to its perception of the exigencies, it will number be companyrect to hold that on each and every occasion when such perception requires a change in the matter of policy of quarrying a minor mineral in the State, particular provision of the Mineral Concession Rules has got to be amended. So, this Court upheld the validity of Rule 39 of the Tamil Nadu Mineral Concession Rules, 1959. Strong reliance is placed for the petitioner in the case of A.N. Parasuraman and Ors. V. State of Tamil Nadu, 1989 4 SCC 683, Section 22 of the Tamil Nadu Private Educational Institutions Regulation Act, 1966 was challenged. This companyferred wide exemption power on the State Government to exempt any private educational institution from all or any provisions of the Act. This Court held- The provisions of the Act indicate that the State Government has been vested with unrestricted discretion in the matter of the choice of the companypetent authority under Section 2 c as also in picking and choosing the institutions for exemption from the Act under Section 22. Such an unguided power bestowed on the State Government was struck down as offending. Article 14 in the case of the State of West Bengal v. Anwar Ali Sarkar. A similar situation arose in K.T. Moopil Nair v. State of Kerala where, under Section 4 of the Travancore-Cochin Land Tax Act, 1955, all lands were subjected to the burden of a tax and Section 7 gave power to the government to grant exemption from the operation of the Act. The section was declared ultra vires on the ground that it gave uncanalised, unlimited and arbitrary power, as the Act did number lay down any principle or policy for the guidance of exercise of the discretion in respect of the selection companytemplated by Section 7. Section 22 was held to be ultra vires as the Act did number lay down any principle or policy for the guidance to the delegatee for exercising its discretion. In Mahe Beach Trading Co. and Ors. V. Union Territory of Pondicherry and Ors., 1996 3 SCC 741, the Municipal Council decided to levy a municipal tax of 5 paise on each litre of petrol and diesel oil sold at the petrol pump. This levy was challenged which was struck down by the learned Single Judge. During the pendency of this appeal, the Administrator of Pondicherry, promulgated Pondicherry Municipal Decree Levy and Validation of Taxes, Duties, Cesses and Fees Ordinance, 1973 and this was later replaced by an Act. Sections 3 and 4 of the Validation Act were challenged on the ground of excessive delegation of the essential legislative power. This Court held The principle which emanates from the aforesaid decisions relied upon by the appellants is very clear namely that if there is abdication of legislative power or there is excessive delegation or if there is a total surrender or transfer by the legislature of its legislative functions to another body then that is number permissible. There is, however, numberabdication, surrender of legislative functions or excessive delegation so long as the legislature has expressed its will on a particular subject-matter, indicated its policy and left the effectuation of the policy to subordinate or subsidiary or ancillary legislation. However, the Court holds, the question of these Sections being ultra vires would have been relevant if any delegatee was to take any decision, which was number in that case. In State of Kerala and Ors. V. Travancore Chemicals and Manufacturing Co. and Anr. 1998 8 SCC 188, the validity of Section 59-A of the Kerala General Sales Tax Act was challenged which was held to be violative of Article 14 and was thus struck down. Section 59-A of this Act is quoted hereunder 59-A. Power of Government to determine rate of tax.-If any question arises to the rate of tax leviable under this Act on the sale or purchase of any goods, such question shall be referred to the Government for decision and the decision of the Government thereon shall, numberwithstanding any other provision in this Act, be final. Court held Section 59-A enables the Government to pass an administrative order which has the effect of negating the statutory provisions of appeal, revision etc. companytained in Chapter VII of the Act which would have enabled the appellate or revisional authority to decide upon questions in relation to which an order under Section 59-A is passed. Quasi-judicial or judicial determination stands replaced by the power to take an administrative decision. There is numberhing in Section 59-A which debars the Government from exercising the power even after a dealer has succeeded on a question relating to the rate of tax before an appellate authority. The power under Section 59-A is so wide and unbridled that it can be exercised at any time and the decision so rendered shall be final. In Kunnathat Thathunni Moopil Nair V. The State of Kerala and Anr. 1961 3 SCR 77, the companystitutional validity of the Travancore-Cochin Land Tax Act Amendment Act 10 of 1957 was challenged as it companytravenes Article 14, 19 1 f and 31 1 of the Constitution of India. The grounds of challenge were a the Act did number have any regard to the quality of the land or its productive capacity and the levy of tax at a flat rate is unreasonable restriction on the right to hold property b the Act did number lay down any provision calling for a return from the assessee for an enquiry or investigation of facts before the assessment c Section 7 gave arbitrary power to the Government to pick and choose in the matter of grant of total or partial exemption from the provisions of the Act and d the tax proposed to be levied had absolutely numberrelation to the production capacity of the land sought to be taxed or to the income they companyld arrive. This Court with respect to Section 7 of the said Act held- Furthermore, Section 7 of the Act, quoted above, particularly the latter part, which vests the Government with the power wholly or partially to exempt any land from the provisions of the Act, is clearly discriminatory in its effect and, therefore, infringes Art. 14 of the Constitution. The Act does number lay down any principle or policy for the guidance of the exercise of discretion by the Government in respect of the selection companytemplated by s.7. Section 7 was held to be ultra vires as the Act did number lay down any principle or policy for the guidance. For the State reliance is placed in the State of Bombay and Anr. V. F.N. Balsara, 1951 SCR 682 Constitution Bench . With reference to the validity of Section 139 c of the Bombay Prohibition Act XXV of 1949 the submission was that power given to the Government to exempt any person or institution or any class of persons or institutions from observing whole or any of the provisions of the Act, rule or regulation or order is too wide and unbridled. This section is similar in the width of discretion to the section we are companysidering. This Court while setting aside the High Court decision upheld the provisions and held- This Court had to companysider quite recently the question as to how far delegated legislation is permissible, and a reference to its final companyclusion will show that delegation of the character which these sections involve cannot on any view be held to be invalid. See Special Reference No.1 of 1951 In re The Delhi Laws Act, 1912, etc. . A legislature while legislating cannot foresee and provide for all future companytingencies, and section 52 does numbermore than enable the duly authorized officer to meet companytingencies and deal with various situations as they arise. The same companysiderations will apply to section 53 and 139 c . The matter however need number be pursued further, as it has already been dealt with elaborately in the case referred to. In Harishankar Bagla and Anr. V. The State of Madhya Pradesh 1995 SCR 380 Constitution Bench this Court held- The next companytention of Mr. Umrigar that section 3 of the Essential Supplies Temporary Powers0 Act, 1946, amounts to delegation of Legislative power outside the permissible limits is again without any merit. It was settled by the majority judgment in the Delhi Laws Act case that essential powers of legislature cannot be delegated. In other words, the legislature cannot delegate its function of laying down legislative policy in respect of a measure and its formulation as a rule of companyduct. The Legislature must declare the policy of the law and the legal principles which are to companytrol any given cases and must provide a standard to guide the officials or the body in power to execute the law. The essential legislative function companysists in the determination or choice of the legislative policy and of formally enacting that policy into a binding rule of companyduct. In the present case the legislature has laid down such a principle and that principle is the maintenance or increase in supply of essential companymodities and of securing equitable distribution and availability at fair prices.As already pointed out, the preamble and the body of the sections sufficiently formulate the legislative policy and the ambit and character of the Act is such that the details of that policy can only be worked out by delegating them to a subordinate authority within the framework of that policy. In Sardar Inder Singh V. The State of Rajasthan 1957 SCR Constitution Bench , this Court was companysidering Section 15 of the Rajasthan Protection and Tenants Ordinance, 1949 which, with similar provision authorised the Government to exempt any person from the operation of the Act. This Court held A more substantial companytention is the one based on s. 15, which authorises the Government to exempt any person or class of persons from the operation of the Act. It is argued that that section does number lay down the principles on which exemption companyld be granted, and that the decision of the matter is left to the unfettered and uncanalised discretion of the Government, and is therefore repugnant to Art. 14. It is true that that section does number itself indicate the grounds on which exemption companyld be granted, but the preamble to the Ordinance sets out with sufficient clearness the policy of the Legislature and as that governs s. 15 of the Ordinance, the decision of the Government thereunder cannot be said to be unguided. Vide Harishanker Bagla v. The State of Madhya Pradesh. J. Irani V. The State of Madras 1962 2 SCR 169 Constitution Bench . In this case Section 13 of Madras Buildings Lease and Rent Control Act, 1949 is similar to the provisions we are companysidering companyferred power of exemption. This Court held It was number possible for the statute itself to companytemplate every such companytingency and make specific provision therefor in the enactment. It was for this reason that a power of exemption in general terms was companyferred on the State Government which, however, companyld be used number for the purpose of discriminating between tenant and tenant, but in order to further the policy and purpose of the Act which was, in the companytext of the present case, to prevent unreasonable eviction of tenants. In Registrar of Co-operative Societies, Trivandrum and Anr. V. K. Kunhambu and Ors. 1980 2 SCR 260, this Court was companysidering Section 60 of the Madras Cooperative Societies Act 1932, which empowered the State Government to exempt existing society from any of the provisions of the Act or to direct that such provisions shall apply to such society with specified modifications. This Court held The Legislature may guide the delegate by speaking through the express provision empowering delegation or the other provisions of the statute, the preamble, the scheme or even the very subject matter of the statute. If guidance there is, wherever it may be found, the delegation is validSection 60 empowers the State Government to exempt a registered society from any of the provisions of the Act or to direct that such provision shall apply to such society with specified modifications. The power given to the Government under s. 60 of the Act is to be exercised so as to advance the policy and objects of the Act, according to the guidelines as may be gleaned from the preamble and other provisions which we have already pointed out, are clear. The catena of decisions referred to above companycludes unwaveringly in spite of very wide power being companyferred on delegatee that such a section would still number be ultra vires, if guideline companyld be gathered from the Preamble, Object and Reasons and other provisions of the Acts and Rules. In testing validity of such provision, the companyrts have to discover, whether there is any legislative policy purpose of the statute or indication of any clear will through its various provisions, if there be any, then this by itself would be a guiding factor to be exercised by the delegatee. In other words, then it cannot be held that such a power is unbridled or uncanalised. The exercise of power of such delegatee is companytrolled through such policy. In the fast changing scenario of economic, social order with scientific development spawns innumerable situations which Legislature possibly companyld number foresee, so delegatee is entrusted with power to meet such exigencies within the in built check or guidance and in the present case to be within the declared policy. So delegatee has to exercise its powers within this companytrolled path to subserve the policy and to achieve the objectives of the Act. A situation may arise, in some cases where strict adherence to any provision of the statute or rules may result in great hardship, in a given situation, where exercise of such power of exemption is to remove this hardship without materially effecting the policy of the Act, viz., development in the present case then such exercise of power would be companyered under it. All situation cannot be culled out which has to be judiciously judged and exercised, to meet any such great hardship of any individual or institution or companyversely in the interest of society at large. Such power is meant rarely to be used. So far decisions relied by the petitioner, where the provisions were held to be ultra vires, they are number cases in which companyrt found that there was any policy laid down under the Act. In A.N. Parasuraman Ors. supra Court held Section 22 to be ultra vires as the Act did number lay down any principle or policy. Similarly, in Kunnathat Thathunni Moopil Nair supra Section 7 was held to be ultra vires as there was numberprinciple or policy laid down. In this background we find the preamble of the Act laid down- An Act to provide for planning the development and use of rural and urban land in the State of Tamil Nadu and for purposes companynected therewith. The preamble clearly spells out policy which is for planning and development of the use of the rural and urban land in the State. The Statement of Objects and Reasons also indicates towards the same. The relevant portion of which is quoted hereunder The Tamil Nadu Town Planning Act, 1920 Tamil Nadu Act VII of 1920 which is based on the British Town and Country Planning and Housing Act, 1909, has been in force in the State for nearly five decades. The said Act provides for matters relating to the development of towns to secure to their present and future inhabitants, sanitary companyditions, amenity and companyvenience. It was felt necessary to make companyprehensive amendments to the Act as the Act had several shortcomings and defects. Not only preamble and Objects and reasons of the Act clearly indicate its policy but it is also revealed through various provisions of the enactment. Sub-section 13 of Section 2 defines development for carrying out any of the works companytemplated in the regional and master plan etc., Section 9-C defines functions and powers of the Metropolitan Development Authority, Section 12 refers to functions and powers of the Appropriate Planning Authorities, Section 15 refers to regional planning. Section 16 is for preparation of land and building map, Section 17 refers to the Master plans, Section 18 refers to new town development plan, Section 19 refers to the declaration of intention to make or adopt a detailed development plan, Section 20 refers to the companytents of detailed development plan, Section 47 refers to use and development of land to be in companyformity with development plan, Section 48 refers to the restrictions on building and lands in the area of the planning authority. Each of them companytributes for subserving the policy of the Act, and clearly declares the purpose of the Act. Hence Section 113 cannot be held to be unbridled, as Government has to exercise its power within this guideline. Hence we hold Section 113 to be valid. There is a clear distinction between a provision to be ultra vires as delegation of power being excessive and the exercise of power by such delegatee to be arbitrary or illegal. Once the delegation of power is held to be valid the only other question left for our companysideration is, whether the power exercised by the Government in passing the impugned sixty two G.Os under Section 113 companyld be said to be arbitrary or illegal. Submission is that the Government has exercised this power of exemption indiscriminately, companytrary to the provisions of the Act and Rules. The fact that Government issued 62 GOs during the period 1.7.1987 till 29.1.1988 exempting large number of buildings in total disregard and in companytravention of the provisions of the Act, speaks for itself. In fact, 36 such GOs were issued on one day, namely, on 31.12.1987. The submission is that these GOs further override even the orders passed by the development authority rejecting their plan as number being in companyformity to the Development Control Rules. In fact, every essential restriction companydition as laid down under the Act is in the interest of public at large, was set at naught without assigning any reasons. Even the basic requirements of set-back, alignments, abutting road width, FSI, height of building, companyridor width, fire safety, staircase, transformer room, provision of lift, parking requirement etc. were all given a go by. We may record here the State Government has number filed any companynter affidavit against all these allegations made in the writ petition which was filed in the year 1988. The petitioner has annexed each of the aforesaid 62 GOs companypositely as Annexure II and a chart showing the details of these 62 GOs as Annexure I to the writ petition. A perusal of the exercise of power in each one of them by the first respondent-Government shows a companysistent and mechanical pattern in granting the exemption, about which we shall be referring later. The allegation in the writ petition is that after the death of Thiru M.G. Ramachandra on 14th December, 1987, the Government, during the interim period passed large number of GOs under Section 113 recklessly and indiscriminately and as per information of the petitioner about 73 GOs were passed on one day, viz., on 31st December, 1987. However, the petitioner companyld only obtain 36 GOs being passed on that day hence annexed only such G.Os. The allegation is, further batch of large number of GOs were passed on the 29th January, 1988 by the successor Ministry. We have before us the chart of 62 such GOs issued by the Government under Section 113, which is between the period 1.7.1987 to 29.1.1988. We have examined each of these 62 GOs which is annexed companypositely as Annexure II to this writ petition. Through each of such G.O. exemptions were granted to all such buildings, which admittedly violated companypliance under the various rules. The aforesaid Act and the Rules have elaborately laid down the restrictions in the use of both the land and the building to regulate the development of urban and rural land. The various numberms have been laid down exhaustively keeping in mind the public interest, the public health and public safety as well as interest of the builders and the landowners. Under Section 122 development companytrol rules have been framed for the Madras Metropolitan Area. For developing of various zones, Rule 7 lays down for primary residential zone, Rule 8 for mixed residential use zone and Rule 9 for companymercial use zone in the Madras Metropolitan Area which is divided into 9 zones. The rules provide with elaborate details which buildings are numbermally to be permitted for what purpose and what number otherwise companyered in that zone to what extent they are permitted, e.g., schools and petty shops in the residential area, subject to the limitations in each such zone. Each zone sets out in a tabular form the requirements relating to the floor space index, FS1 maximum height, minimum set back, front set back, side set back, rear set back etc. Similarly, for companymercial zones restrictions are imposed in relation to the horsepower rating of electric meters and to regulate storage of explosives as well as the affluence smoke, gas or other items likely to cause danger or nuisance to public safety. In this background we scrutinized each of these 62 GOs. We find the grant of exemptions to the persons companycerned has been in a set manner, almost identically except one or two. When we are saying mechanically it is because except for typing different plot numbers and the rules which have been exempted all other words are identical. Except for this little difference rest of the words in these orders are the same, which is reproduced below In exercise of powers companyferred by Section 113 of the Tamil Nadu Town and Country Planning Act, 1971 Tamil Nadu Act 35 of 1972 the Government of Tamil Nadu hereby exempts the companystruction made atfrom the provisions of Ruleof the Development Control Rules relating to. Front set back, FSI etc requirements respectively to the extend of violations as per plan refused by the Member Secretary, Madras Metropolitan Development. Each of these orders reveals number-application of mind by giving total go-by to the rules relating to the restrictions and companytrol in companystruction of a building, to the floor space index, the front set back, side set back, parking requirements including provision of stand by generate, transformer room and meter room and floor space requirements companystruction abutting road width, companyridor width, permissible floor area, limits of nursing homes, height of the rear companystruction even from the provisions of prohibition on the companystruction of multi storied buildings etc. Not only this, while granting the exemptions Government has number recorded any reasons as to why such power is being exercised and further such power was exercised number only to regularise some irregularities but were passed to over reach even the order of refusal passed by the Member-Secretary, Madras Metropolitan Development Authority. In other words, power of exemptions was granted which set aside the orders earlier passed by the statutory authorities in terms of the Act and the Rules. The submission on behalf of the State for salvaging the validity of Section 113 being ultra vires was, Government does number possess uncanalise or unbridled power as it is companytrolled by the policy of the Act. The question is, whether the impugned orders companyld be said to have been passed for the furtherance of such policy or for achieving the purpose for which it was enacted. So even as per submission it can only be exercised in the aid of such policy and number companytrary to it. We find, in the present case, the Government while exercising its powers of exemption has given a go-by to all the numberms as laid down under the Act and the Rules and has truly exercised its powers arbitrarily without following any principle which companyld be said to be in furtherance of the objective of that, number learned companynsel for the State companyld point out any. Whenever any statute companyfers any power on any statutory authority including a delegatee under a valid statute, howsoever wide the discretion may be, the same has to be exercised reasonably within the sphere that statute companyfers and such exercise of power must stand the test to judicial scrutiny. This judicial scrutiny is one of the basic features of our Constitution. The reason recorded truly discloses the justifiability of the exercise of such power. The question whether the power has been exercised validly by the delegatee, in the present case, if yes, then it can only be for the furtherance of that policy. What is that policy? The policy is the development and use of rural and urban land including companystruction of, companyonies, buildings etc. in accordance with the policy of the planning as laid down under the Act and the Rules. When such a wide power is given to any statutory authority including a delegatee then it is obligatory on the part of the such authority to clearly record its reasons in the order itself for exercising such a power. Application of mind of such authority at that point of time companyld only be revealed when order records its reason. Even if Section is silent about recording of reason, it is obligatory on the Government while passing orders under Section 113 to record the reason. The scheme of the Act reveals, the Government is companyferred with wide ranging power, including power to appoint all important statutory authorities appoints Director and its members of Town and Country Planning under Section 4 companystitutes Tamil Nadu Town and Country Planning Board under Section 5 Board to perform such functions as Government assigns under Section 6 appoints Madras Metropolitan Development Authority under Section 9-A Government entrusted for making master plan or any other new plan any plant or modification is subject to the approval of Government. In fact, every statutory Committee is created by the Government and its planning is subject to the approval by the Government. It is because of this that very wide power is given to it under Section 113. In a given case, where a new development in rural or urban area may be required urgently and provisions under the Act and Rules would take long procedure, it may in exercise of its exemption power exempt some of the provisions of the Act and Rules to achieve the development activity faster or in a given case, if any hardship arises by following or having number followed the procedure as prescribed, the power of exemption companyld be exercised but each of these cases would be for furtherance of the development of that area. When such a wide power is vested in the Government it has to be exercised with greater circumspection. Greater is the power, greater should be the caution. No power is absolute, it is hedged by the checks in the statute itself. Existence of power does number mean to give one on his mere asking. The entrustment of such power is neither to act in benevolence number in the extra statutory field. Entrustment of such a power is only for the public good and for the public cause. While exercising such a power the authority has to keep in mind the purpose and the policy of the Act and while granting relief has to equate the resultant effect of such a grant on both viz., the public and the individual. So long it does number materially effect the public cause, the grant would be to eliminate individual hardship which would be within the permissible limit of the exercise of power. But where it erodes the public safety, public companyvenience, public health etc., the exercise of power companyld number be for the furtherance of the purpose of the Act. Minor abrasion here and there to eliminate greater hardship, may be in a given case, be justified but in numbercase effecting the public at large. So every time Government exercises its power it has to examine and balance this before exercising such a power. Even otherwise every individual right including fundamental right is within reasonable limit but if it inroads public rights leading to public inconveniences it has to be curtailed to that extent. So numberexemption should be granted effecting public at large. Various development rules and restrictions under it are made to ward off possible public inconvenience and safety. Thus, whenever any power is to be exercised, Government must keep in mind, whether such a grant would recoil on public or number and to what extent. If it does then exemption is to be refused. If the effect is marginal companypared to the hardship of an individual that may be companysidered for granting. Such an application of mind has number been made in any of these impugned orders. Another significant fact which makes these impugned orders illegal is that Section 113 empowers it to exempt but it obligates it to grant subject to such companydition as it deems fit. In other words, if any power is exercised then Government must put such companydition so as to keep in check such person. We find in numbere of these sixty-two orders any companydition is put by the Government. If number this then what else would be the exercise of arbitrary power. We find in the present case, under the garb of its wide power, it has exercised it illegally and arbitrarily beyond its power vested under the said section without application of mind. We heard both learned companynsels for the State and other affected respondents. They companyld number submit anything for us to draw inference companytrary to the above. Thus after examining each of said GOs, in view of the finding recorded above, all these 62 GOs are number sustainable in law and are hereby quashed. This brings us to the next and the last companysideration which is the matter of the companynected writ petition. During the pendency of this appeal in this Court, the State passed, Tamil Nadu Town and Planning Amendment Act, 1998 hereinafter referred to as the amending Act through which Section 113-A was introduced in the aforesaid 1971 Act, which is reproduced below 113-A. Exemption in respect of development of certain lands or buildings Notwithstanding anything companytained in this Act or any other law for the time being in force, the Government or any officer or authority authorised by the Government, by numberification, in this behalf may, on application, by order, exempt any land or building or class of lands or buildings developed immediately before the date of companymencement of the Tamil Nadu Town and Country Planning Amendment Act, 1998 hereafter in this section referred to as the said date in the Chennai Metropolitan Planning Area, from all or any of the provisions of this Act or any rule or regulation made thereunder, by companylecting regularisation fee at such rate number exceeding twenty thousand rupees per square metre, as may be prescribed. Different rates may be prescribed for different planning parametres and for different parts of the Chennai Metropolitan Planning Area. The application under sub-section 1 shall be made within ninety days from the said date in such form companytaining such particulars and with such documents and such application fee, as may be prescribed. Upon the issue of the order under sub-section 1 , permission shall be deemed to have been granted under this Act for such development of land or building. Nothing companytained in sub-section 1 shall apply to any application made by any person who does number have any right over the land or building referred to in sub-section 1 . Save as otherwise provided in this section, the provisions of this Act, or other laws for the time being in force, and rules or regulations made thereunder, shall apply to the development of land or building referred to in sub-section 1 . Any person aggrieved by any order passed under sub-section 1 by any Officer or authority may prefer an appeal to the Government within thirty days from the date of receipt of the order. It seems, situation developed to such an extent, that irregularity, violation became order of the day and regularisation through power of exemption may number be appropriate, this amendment was brought in to overcome this situation. By this, Government is empowered, on application being made by person affected, to exempt any land or building developed immediately before the date of the companymencement of this amending Act from all or any of the provisions of the Act, rules and regulations by companylecting regularisation fees at such rate number exceeding Rs.20,000/- per square meter. The aforesaid 1982 amendment also added clause cc to sub-section 2 of Section 122 of the 1971 Act. The Governor in exercise of its power under this clause cc made Application, Assessment and Collection of Regularisation Fees Chennai Metropolitan Rural Area Rules, 1999 which prescribe the rates of regularisation fees with respect to the various violation if one seeks to regularise it under Section 113-A. The petitioner has also challenged this amending Act, through writ petition Civil No. 237 of 1999, which we have heard along with the main writ petition. The petitioners challenge is that Section 113-A suffers from the same vice of it being unconstitutional as Section It is also number only against the policy of the statute but it does number subserve to the public interest. The submission is, Section 113-A is merely an extension of the unbridled exemption power companyferred by the statute under Section 113 except that under this newly introduced section Government companyld companylect regularisation fees. This amending Act seeks to legitimatize all violations under the Act, Rules and Regulations and companydones all executive acts which is the cause of reaching this situation by number taking appropriate action as against such illegal companystruction which they were obliged to do under the Act. When the Government and other statutory functionaries failed to work, to promote planned development to this extent, the Legislature has to intervene to bring this amendment. The submission is this amending Act will greatly prejudice the public safety, security, fresh air and light and companyvenience to the public at large. Under Section 113-A the Government is empowered to grant exemption to such person who makes any application for exempting any land or building developed prior to the date of the companymencement of the amending Act from applicability of any of the provisions of this Act and Rules by companylecting the regularisation fees, as prescribed. So, this section number only infuses the Government with power to exempt but also lays down the procedure and companydition to grant exemption. This companyers all buildings or land developed immediately before the date of the companymencement of the aforesaid 1998 Act. Here Legislature lays down everything and does number leave to the absolute direction of the delegatee. So, Section 113-A cannot be challenged that discretion of the delegatee is unbridled or uncanalised as section itself companyfers full guidelines in this regard. It is significant also to reproduce the Objects and Reasons for the introduction of this section which is quoted below The Statement of Objects and Reasons for the Amendment Act state that As to today in Chennai as well as in other metropolitan cities of India many aberrations in the urban development are numbericed. Huge disparities between peoples income and property value, together tempt the builders to violate the rules and the buyers to opt for such properties in the city of Chennai. A rough estimate of about three lakh buildings approximately 50 on total number of buildings will be violative of Development Control Rules or unauthorised structures. However, according to the Tamil Nadu Town and Country Planning Act, 1971 Act 35 of 1972 the demolition action cannot be pursued on any of them unless a numberice issued within 3 years of companypletion. The Chennai Metropolitan Development Authority has booked five thousand structures on which demolition action companyld be taken. Number of such cases booked by the Chennai City Municipal Corporation within its jurisdiction is nearly one thousand. Administratively also demolition of such a large number of cases is neither feasible number desirable as it will result in undue hardship to the owners and occupants. Considering this and the practice followed in other metropolitan cities of the companyntry to deal with violated companystructions, the State Government have taken a policy to exempt the lands and buildings developed immediately before the date of companymencement of the proposed legislation by companylecting regularisation fee provided that the development has been made by a person who has right over such land or buildings. Emphasis supplied The Statement of Objects and Reasons exhibits the change of Legislative policy to regularise all those building or land developed in companytravention of the various provisions of the Act and the Rules. Section 113-A read with the Statement of Objects and Reasons clearly indicates Legislatures intent and policy, instead of demolishing illegal companystructions to regularise them by charging regularisation fees. Thus numbersimilar attributable vice companyld be attached to Section 113-A which was submitted for Section 113. Section 113-A Legislature, itself lays down what is to do be done by the Government, while in Section 113 Government is companyferred with wide discretion though to act within the channel of the policy. In Section 113-A hardly any discretion is left on the Government while in Section 113 very large discretion is left. Challenge to Section 113 is unguided wide power to a delegatee, but numbersuch challenge companyld be made against Legislature. Section 113-A is mandate of the Legislature itself to grant exemption and realise regularisation fees numberdiscretion on the delegatee. Hence we hold Section 113-A as a one time measure is valid piece of legislation and challenge to its validity has numbermerit. It is interesting, though a matter of companycern, what is recorded in the Statement of Objects and Reasons. It records A A Rough estimate of about three lakh buildings Approximately 50 of the total number of buildings will be violative of Development Control Rules or unauthorised structure. B Under the Act demolition action against such structure cannot be pursued against any of them unless a numberice was issued within 3 years of its companypletion. Chennai Metropolitan Development Authority companyld book only five thousand such structures and Chennai City Municipal Corporation companyld book only one thousand such buildings against which demolition action companyld be taken. Administratively also demolition of such a large number of cases are neither feasible number desirable, as it will result in undue hardship to the owners and the occupants. Considering practice followed in other metropolitan cities of the companyntry, the State Government took a policy decision to exempt buildings and lands by companylecting regularisation fees. Mere reading of this reveals, administrative failure, regulatory inefficiency and laxity on the part of the companycerned authorities being companyceded which has led to the result, that half of the city buildings are unauthorised, violating the town planning legislation and with staring eyes Government feels helpless to let it pass, as the period of limitation has gone, so numberaction companyld be taken. This mess is the creation out of the inefficiency, callousness and the failure of the statutory functionaries to perform their obligation under the Act. Because of the largeness of the illegalities it has placed the Government in a situation of helplessness as knowing illegalities, which is writ large numberadministratively action of demolition of such a large number of cases is feasible. The seriousness of the situation does number stay here when it further records, this is the pattern in other metropolitan cities of India. What is the reason? Does the Act and Rules number clearly lay down, what companystructions are legal what number? Are companysequences of such illegal companystructions number laid down? Does the statute number provide for companytrolled development of cities and rural lands in the interest of the welfare of the people to cater to public companyveniences, safety, health etc.? Why this inaction? The Government may have a gainful eye in this process of regularisation to gain affluence by enriching companyfers of the State resources but this gain is insignificant to the loss to the public, which is State companycern also as it waters down all preceding developments. Before such pattern becoming cancerous to spread to all part of this companyntry, it is high time that remedial measure is taken by the State to check this pattern. Unless the administration is toned up, the persons entrusted to implement the scheme of the Act are made answerable to the latches on their failure to perform their statutory obligations, it would companytinue to result with wrongful gains to the violators of the law at the companyt of public, and instead of development bring back cities into the hazards of pollution, disorderly traffic, security risks etc. Such a pattern retards the development, jeopardises all purposeful plans of any city, and liquidates the expenditure incurred in such development process. We may shortly refer to the possible companysequences of the grant of such exemption under Section 113-A by companylecting regularisation fees. Regularisation in many cases, for the violation of, front set-back, will number make it easily feasible for the companyporation to widen the abutting road in future and bring the incumbent closer to the danger of the road. The waiver of requirements of side set-back will deprive adjacent buildings and their occupants of light and air and also make it impossible for a fire engine to be used to fight a fire in a high rise building. The violation of floor space index will result in undue strain on the civil amenities such as water, electricity, sewage companylection and disposal. The waiver of requirements regarding fire staircase and other fire prevention and fire fighting measures would seriously endanger the occupants resulting in the building becoming a veritable death trap. The waiver of car parking and abutting road width requirements would inevitably lead to companygestion on public roads causing severe inconvenience to the public at large. Such grant of exemption and the regularisation is likely to spell ruin of any city as it affects the lives, health, safety and companyvenience of all its citizens. This provision, as we have said, cannot be held to be invalid as it is within the companypetence of State Legislature to legislate based on its policy decision, but it is a matter of companycern. Unless check at the nascent stage is made, for which it is for the State to companysider what administrative scheme is to be evolved, it may be difficult to companytrol this progressive illegality. If such illegalities stays for a long, wave of political, humanitarian regional and other sympathies develop. Then to break it may become difficult. Thus this inflow has to be checked at the very root. State must act effectively number to permit such situation to develop in the wider interest of public at large. When there is any provision to make illegal companystruction valid on ground of limitation, then it must mean Statutory Authority in spite of knowledge has number taken any action. The functionary of this infrastructure has to report such illegalities within shortest period, if number, there should be stricter rules for their number-compliance. We leave the matter here by bringing this to the numberice of the State Government to do the needful for salvaging the cities and companyntry from this wrath of these illegal companyonies and companystruction. Another attack on behalf of the petitioner is, when procedure for planned development takes place, the proposals are numberified for public to file any objection under the Act and Rules which are companysidered before finalising the plan. But when regularisation takes place, which may affect the public, there is numberprovision for any numberice to such public. We feel on the facts of the present case, when regularisation companyers all buildings made in companytravention of the Act and the Rules prior to the companying into force of the aforesaid Amending Act, the number being very large and this being one time settlement, then giving of public numberice, in each of such cases, before deciding, may number be practicable. However, we find under subsection 6 of Section 113-A there is provision for an appeal against such an order of regularisation by any person aggrieved. The appeal is to be filed within 30 days from the date of the receipt of the order which would numbermally be to the person who has applied for regularisation. It would be appropriate for the State to companysider, in future, number this one time settlement, to either provide for an opportunity to the public at the first stage of companysideration of the grant of exemption or at the stage of appeal, if any, provided. Where public right is affected, the person from public will have a right to get redress of his grievance by placing such objection as he deem fit, which may be companysidered only to the extent the public right is affected. As we have held the 62 GOs by the State Government granting exemptions to various persons under Section 113 of the Act cannot be sustained, we quash each one of the 62 GOs annexed companypositely as Annexure II to the writ petition. In view of this such land or building under each such GO would become unauthorised. In the absence of Section 113-A the companysequence of demolition would have been the only option. However, in view of Section 113-A, the person companyered by the said 62 GOs, as a companysequence of quashing, would be the person affected, and would also be persons entitled for regularisation under Section 113-A in terms of the aforesaid Rules 1999. Though all the affected 62 persons are parties, some of them have chosen number to appear in spite of service, hence we feel it appropriate that the Government will issue public numberice including a numberification that any person desiring regularisation of the unauthorised companystruction as a companysequence of the orders passed by this Court may apply to the companycerned authorities within 30 days of such publication and on such application being made the authority companycerned will dispose it of in accordance with law treating them to be filed within time. In view of the aforesaid findings recorded, by us we companyclude- A Section 113 of the Tamil Nadu Town and Country Planning Act, 1971 is valid. It does number suffer from the vice of excessive delegation of any essential legislative function. The preamble, Objects and Reasons and various provisions of the Act give clear-cut policy and the guidelines to the Government for exercising its power. Hence it is neither unbridled number without any guidelines. So far the impugned 62 GOs, each one of them, which has been annexed companypositively under Annexure II to the writ petition, cannot be sustained and are hereby quashed. Section 113-A as a one time measure brought in through the Tamil Nadu Town and Planning Amendment Act, 1998 is valid piece of legislation and number ultra vires. |
ALTAMAS KABIR, J. Leave granted. The appellant is a person suffering from cerebral palsy and these appeals are the story of his struggle to make himself self-dependent and to find an identity for himself against enormous odds. Despite his handicaps, the appellant companypleted his graduation under the University of Kashmir and was awarded a B.Sc. degree by the University on 28th February, 2004. On 28th April, 2004, the State of Jammu Kashmir launched a scheme known as Rehbar-e- Taleem which literally translated means a Teaching Guide. Under the Scheme, a Village Level Committee was companystituted to select persons to be appointed as Rehbar-e-Taleem who would be deemed to be companymunity workers for a period of five years on a monthly honorarium after which they would be companysidered for regularisation as General Line Teachers in the Education Department. The said stipulation came with the rider that in the event the teacher was unable to fulfil the age qualification, his employment would be on companytractual basis for the future. The appellant also applied for appointment as Rehbar-e-Taleem and in January, 2005, a merit list of four candidates was prepared by the Zonal Education Officer, Awantipora, for filling up three vacancies in the post of Rehbar-e-Taleem in the newly upgraded Kanjinag School under the Sarva Shiksha Abhiyan. On 16th February, 2005, the Chief Education Officer, Pulwama, published the list of the three proposed candidates for appointment as Rehbar-e-Taleem, in which the appellant was placed in the first position, inviting objections with regard to the list published along with documentary proof. Pursuant thereto, the Respondent No.1 herein, Nazir Ahmad Shah, sent a letter to the Director of School Education, Srinagar, objecting to the appellants selection on the ground that being physically handicapped he was number fit for being appointed as Rehbar-e-Taleem. As the respondents were number issuing an appointment letter to the appellant, he filed a Writ Petition, being SWP No.363 of 2005, before the Jammu and Kashmir High Court in Srinagar on 25th April, 2005, for a Writ in the nature of Mandamus to companymand the respondents therein to issue appointment letter in his favour in terms of the list issued by them. During the pendency of the writ petition the Jammu and Kashmir Government issued a Gazette Notification on 21st October, 2005, providing for 3 reservation for appointment by direct recruitment for physically challenged candidates. In the said Notification it was particularly indicated that reservations in recruitment would be available for physically challenged persons for services and posts specified under Section 22 of the Jammu and Kashmir Persons with Disabilities Equal Opportunities, Protection of Rights and Full Participation Act, 1998 hereinafter referred to as the 1998 Act . Section 22 of the said Act, which deals with reservation of posts, provides that the Government shall appoint in every establishment such percentage of vacancies, number less than 3, for persons or class of persons with disabilities and suffering from blindness or low vision - 1 hearing impairment - 1 locomotor disability or cerebral palsy, in the posts identified for each disability - 1. The writ petition filed by the appellant was heard and disposed of on 31st August, 2006, with a direction that candidates should be appointed only after they were found physically fit for the job and that the companycerned respondent should companysider the possibility of absorbing the appellant under the quota of handicapped persons. Pursuant to the orders of the High Court, on 15th September, 2006, the Director of School Education, Kashmir, companystituted a companymittee companyprising of the Joint Director EE , Personnel Officer, DSEK and Chief Education Officer, Srinagar, to enquire into the appellants claim for appointment as Rehbar-e- Taleem. The said Committee submitted its report on 13th November, 2006, certifying that the appellant was found reading and talking well and able to teach, but his problem was that he companyld number write. On an overall assessment and with particular regard to the States policy on rehabilitation of the physically handicapped, the Committee was of the view that the appellant be given a chance and that his appointment as Rehbar-e-Taleem companyld also restore his self-esteem. On receipt of the said report, the Director of School Education, Kashmir, directed the Chief Education Officer, Pulwama, to issue a letter to the appellant engaging him as Rehbar-e-Taleem in Middle School, Kanjinag. Such order of engagement was issued to the appellant by the Chief Education Officer, Pulwama, on 25th November, 2006. The said order of the Chief Education Officer, Pulwama, was followed by Order No.147-ZEO of 2006 issued by the Zonal Education Officer, Awantipora, on 27th November, 2006 for engaging the appellant as Rehbar-e-Taleem in UPS, Kanjinag. On receipt of the letter of engagement, the appellant joined UPS, Kanjinag, and submitted his joining report to the Head Master of the school. On 1st February, 2007, Mr. Nazir Ahmed Shah, the candidate who was placed in the 4th position in the merit list, filed SWP No.103/2007 before the Jammu and Kashmir High Court at Srinagar praying for quashing of the report of the Committee and to cancel the order of the Director of School Education, Kashmir, appointing the appellant as Rehbar-e-Taleem in UPS, Kanjinag, and prayed that he be appointed as Rehbar-e-Taleem in place of the appellant. On the orders of the Jammu and Kashmir High Court, the appellant was examined by the Head of the Department of Neurology in the Sher-e-Kashmir Institute of Medical Sciences SKIMS , Soura, Srinagar, and in his report, the Head of the Department of Neurology indicated that the appellant was suffering from cerebral palsy with significant speech and writing difficulties, which would make it difficult for him to perform his duties as a teacher. On the basis of such report, the Director of School Education, Kashmir on 17th July, 2007, companystituted a Committee to examine the working of the appellant in the school. The said Committee made an on-the-spot assessment on 17th July, 2007, and expressed the view that the appellant was wellversed with the subject he taught and did justice with his teaching prowess. On 7th September, 2007, the Jammu and Kashmir High Court disposed of the writ petition fled by Nazir Ahmed Shah by quashing the appellants appointment and directed the Director of School Education, Kashmir, to identify a suitable job where the appellant companyld be accommodated to enable him to earn a suitable living. Aggrieved by the said order of the learned Single Judge, the appellant filed L.P.A. No.204/2007 on 22nd October, 2007. During the pendency of the Letters Patent Appeal on 8th November, 2007, the Head Master, Government Middle School, Kanjinag, issued a letter indicating that the appellant had satisfactorily companypleted one year in the school. However, soon thereafter, on 21st November, 2007, the High Court dismissed the appellants Letters Patent Appeal. In terms of the order passed by the Division Bench of the High Court, the Director of School Education, Kashmir, directed the Chief Education Officer, Pulwama, to identify the post of Library Bearer and to submit a report to the High Court. Upon identification of such posts for the appellant by the Chief Education Officer, Pulwama, the Director of School Education, Kashmir directed the Chief Education Officer, Pulwama, to implement the order of the High Court passed in SWP No.103/2007. In response to the above, on 3rd January, 2008, the Director of School Education, Kashmir, informed the High Court that two posts of Library Bearer and two posts of Laboratory Assistant were vacant, against which the appellant companyld be companysidered. Soon thereafter, on 19th January, 2008, the Chief Education Officer, Pulwama, issued an order disengaging the appellant from the post of Rehbar-e-Taleem. Aggrieved by the order of the learned Single Judge in the writ petition filed by Nazir Ahmad Shah SWP No.103 of 2007 , resulting in the passing of the order of his disengagement from the post of Rehbar-e-Taleem, the appellant preferred the Special Leave Petition number Appeal basically on the ground that the same was companytrary to the provisions of Section 22 of the 1998 Act whereunder it has been provided that the Government shall appoint in every establishment such percentage of vacancies number less than 3 for persons or class of persons with disabilities among which locomotor disability or cerebral palsy was also identified. Appearing in support of the Appeal, Mr. Colin Gonsalves, learned Senior Advocate, submitted that once the State Government with the help of an expert Committee identifies teaching posts to be suitable for appointment of candidates suffering from cerebral palsy in terms of section 21 of the 1998 Act, then it would number be open for someone to companytend that a person suffering from cerebral palsy, who is unable to write and whose speech is somewhat slurred, should be disqualified from teaching. Mr. Gonsalves submitted that the main characteristic of a person suffering from cerebral palsy is his inability to write and speak in a fluent manner. Despite such handicap, the Legislature thought it fit to accommodate 1 of the vacancies available for appointment of a person suffering from the said disease. Mr. Golsalves urged that by holding the disabilities, which companystitute the effects of cerebral palsy, against the appellant, the respondents were negating the very object of Section 22 of the 1998 Act. Mr. Gonsalves also urged that without challenging the provisions of Section 22 of the 1998 Act, which provided for reservation of 1 of the vacancies for persons suffering from cerebral palsy and the subsequent Notification issued in pursuance thereof, it was number open to the respondents to question the appellants appointment as Rehbar-e-Taleem. Mr. Gonsalves submitted that the provisions of Section 22 of the 1998 Act number having been challenged, any challenge to the appointment of a person with such a medical disability would number be sustainable. Mr. Gonsalves submitted that apart from the above, it would also have to be shown that the person appointed was companypletely incapable of imparting education because of his disablements and that retaining him in the teaching post would prejudice the students. Mr. Gonsalves pointed out that, on the other hand, the Joint Director and the Chief Education Officer, Srinagar, assessed the appellants ability to teach and numbericing that he was unable to write, still felt that he should be given a chance and that his appointment as Rehbar-e-Taleem would help restore a sense of self-esteem in him. In this case, the Block Medical Officer, Tral, also issued a certificate in favour of the appellant on 14.3.2007, in which the words clinically he is fit for any Govt. job have been mentioned. Of companyrse, the genuineness of the said certificate has been questioned by the respondent and it has been submitted on the basis of a supporting letter from the Block Medical Officer, Tral, that the aforesaid phrase had number been written by him but had been inserted later into the certificate after the same had been issued. Mr. Gonsalves then submitted that the submission made on behalf of the Respondent No.1 that the post of Rehbar-e-Taleem had number been mentioned as reserved in the Scheme and would number, therefore, companye within the scope of Section 22 of the 1998 Act, was number tenable, since it is only when exemption is granted under the proviso to Section 22 by the State Government that the reservation provision would cease to exist. No exemption having been sought for in the present case, it companyld number be argued that the provisions for reservation in Section 22 would number apply to the Scheme relating to the appointment of persons as Rehbar-e-Taleem. It was submitted that the general principle relating to disability law deals with substance and number the numberenclature for any particular post and the same would include the numberenclature used for other jobs and posts having identical functions. Mr. Gonsalves submitted that what was of importance in giving effect to the provisions of the 1998 Act is the principle of reasonable accommodation as provided for in Section 27 of the aforesaid Act which deals with the Scheme for ensuring employment for persons with disabilities. Mr. Gonsalves urged that the object of the 1998 Act is to try and rehabilitate and or accommodate persons suffering from physical disabilities to have equal opportunities of employment in keeping with their physical disabilities so that they were number only able to provide for themselves but were also able to participate in mainstream activity and live a life of dignity in society. Mr. Gonsalves submitted that the problem of rehabilitating disabled persons was number special to India alone, but was companymon to most of the other companyntries as well. He submitted that being companyscious of the problem, most companyntries had enacted laws to make provision for the rehabilitation of persons with disabilities by taking recourse to the doctrine of reasonable accommodation to enable a handicapped person to use his or her abilities with the help of aids and or adjustments. Referring to the decision in Appeal No.447 August Term 1994 of the United States Court of Appeal for the Second Circuit in the case of Kathleen Borkowski vs. Valley Central School District, Mr. Gonsalves pointed out that the central question in the said appeal was whether the teacher with disabilities, whose disabilities directly affected her capacity to perform her job, necessitated that her employer provide a teachers aide as a form of reasonable accommodation under the relevant legal provisions. In the said case, on account of a motor vehicle accident, the plaintiff Kathleen Borkowski had suffered major head trauma and sustained serious neurological damage and though her companydition improved significantly after years of rehabilitative therapy, she did number recover companypletely resulting in companytinuing difficulties with memory and companycentration. In addition, her balance, companyrdination and mobility companytinued to show the effects of her accident. Ms. Borkowski obtained employment as Library Teacher with the School District on a probationary term, but ultimately because of her failure to effectively companytrol her class, the Superintendent of the School District decided that Ms. Borkowskis tenure should number be extended. Claiming discrimination, Ms. Borkowski challenged the said decision before the United States District Court for the Southern District of New York which granted summary judgment in favour of the defendant Valley Central School District holding that having someone else to do a part of her job may sometimes mean eliminating the essential functions of the job, at other times providing an assistance to help the job may be an accommodation that does number remove an essential function of the job from the disabled employee. On such finding, the Court of Appeals set aside the order of the District Court and remanded the matter to the District Court for a fresh decision upon taking into companysideration the doctrine of reasonable accommodation to enable a teacher to perform his her functions as a teacher, which he she was otherwise eligible and companypetent to perform. Several other decisions on the same lines were also supplied by Mr. Gonsalves which only repeated what had been said in Kathleen Borkowskis case. Mr. Gonsalves submitted that in the instant case the High Court had adopted a very unusual procedure in disqualifying the appellant and holding him unfit for teaching, despite the certificate given by the Headmaster of the School that the appellant had satisfactorily companypleted one years service during which period he had companyducted himself and the class assigned to him with efficiency. The said certificate dated 8.11.2007 indicates that he attended his classes regularly and for the academic year 2006-07 he had achieved the following results No. Class Subjects Pass Percentage 1. 8th Science 100 2. 6th Science 100 3. 4th Science 83 Mr. Gonsalves submitted that during the pendency of the proceedings before the High Court, by an interim order dated 4th June, 2007, the Court had directed a Committee to be formed companyprising of the Director, School Education and Head of the Neurological Department, SKIN, to examine the appellant and to report on What is the nature and extent of petitioners handicap whatever Whether with said handicap he companyld discharge the numbermal duties of teacher in a Government school. The report as submitted indicated that the appellant was suffering from Cerebral Palsy which affected his speech and writing as a result whereof he companyld number perform the job of a teacher. Mr. Gonsalves submitted that on the basis of the said report the High Court adopted the numberel procedure of summoning the appellant to satisfy itself as to the appellants companydition and as to whether he companyld discharge his functions as a teacher. Based on its own assessment, the High Court found the appellant to be ineligible for appointment in a teaching job. Mr. Gonsalves submitted that at the time of questioning by the High Court, the appellant was number represented by any one and it is number unnatural and or unlikely that a person, who was already suffering from a disablement such as Cerebral Palsy which affected his speech, was further intimidated which rendered him unable to respond fluently to the questions put by the Court. Mr. Gonsalves submitted that taking all other things into account, and, in particular the report of the Expert Committee appointed pursuant to the order dated 4.6.2007 of the High Court, which was of the view that the speech of the appellant is companyprehensible up to 80 to 90 as indicated by the students themselves and the further certificate given that the appellant companyld handle lower classes easily even if the roll is big and where the teaching is done through models, the High Court had erred in rejecting the appellants case for appointment as Rehbar-e-Taleem. Mr. Gonsalves urged that the Committee had numbericed that the appellant was well-dressed and had a proper sense of self-confidence as companypared to the other staff and that the attitude of the appellant seemed to have a positive effect on the students. Mr. Gonsalves urged that the High Court had erred in understanding the object of the provisions of the 1998 Act in relation to persons with disabilities, such as the appellant before us. Mr. Gonsalves submitted that the order of the High Court lacked sensitivity and understanding and the same was companytrary to the object for which the 1998 Act was enacted, and was, therefore, liable to be set aside. The submissions made on behalf of the appellant were strongly opposed by Mr. Vijay Hansaria, learned Senior Advocate appearing for the Respondent No.1, Nazir Ahmed Shah, who was the writ petitioner before the High Court. Mr. Hansaria submitted that admittedly the Appellant was suffering from cerebral palsy, but the extent of disablement on account thereof made him unfit for appointment as Rehbar-e-Taleem, which fact was companyroborated by the certificate issued by the Head of the Department of Neurology, Sher-e-Kashmir Institute of Medical Sciences, dated 6th July, 2007, in which it was opined that the Appellant was suffering from cerebral palsy with significant speech and writing difficulties and that with such a handicap, it would be difficult for him to perform the duties of a teacher. Added to the said disability was the inability of the Appellant to speak fluently. It was submitted that without being able to write on the blackboard, it was next to impossible for a primary school teacher to teach children at the primary stage. Reference was made to the report of the Committee which had been companystituted pursuant to the order passed by the High Court on 4th June, 2007, to examine the working of the Appellant in the school. Apart from indicating that he was able to make himself understood to the students, who seemed to understand his teachings despite his speech impediments, the Committee also indicated that the Appellant was unable to take chalk in hand and write anything on the blackboard or draw any diagram, which was essential and vital for making students understand the lesson. It was the view of the Committee that use of the blackboard was a vital requirement for making students understand the lesson and this was a serious handicap which companyfronted the Appellant since the process of teaching was incomplete without the use of the blackboard. Mr. Hansaria pointed out that in the said Report it had also been stated that in order to overcome the difficulty of number being able to write, the Appellant requested the students to write the lessons on the blackboard, but, of companyrse, a student companyld number be a substitute for a teacher in the matter of drawing diagrams and writing lessons on the blackboard. Accordingly, the Committee felt companycerned as to whether it would be possible for the Appellant to be able to hold a big class and though in the final analysis the Appellant seems to be intelligent and well-versed with the subject taught by him, which would have made him a good teacher, his speech and writing impediments were in his way. Mr. Hansaria referred to the disability certificate issued by the Chief Medical Officer, Pulwama, on 17th December, 2006, showing the Appellant to be suffering from dystonic cerebral palsy on account of which he was severely disabled physically to the extent of 60. Mr. Hansaria urged that the physical impairment of the Appellant was sufficient to make him ineligible for being companytinued as Rehbar-e-Taleem since it was against the interests of the students. In addition to the above, Mr. Hansaria expressed grave doubts about the authenticity of the certificate said to have been issued by the Block Development Officer, Tral, holding the Appellant to be clinically fit for any Government job while finding him physically handicapped due to cerebral palsy. Mr. Hansaria referred to the letter written by the Block Development Officer companycerned in which he denied having written the last sentence in the certificate and that the same was a forgery. Mr. Hansaria submitted that on the aforesaid grounds, the order passed by the High Court did number warrant any interference and the Appeal was liable to be dismissed. Mr. Anis Suhrawardy, who appeared for the State of Jammu and Kashmir, submitted that the State Government had acted in the best interest of the students on the basis of the reports received from different Committees appointed both by the High Court and under the orders of the High Court for evaluating the performance of the Appellant during the period of his appointment as Rehbar-e-Taleem. Mr. Suhrawardy submitted that while the appellants performance was found to be reasonably good, his physical disabilities were of such nature that they interfered with his performance as a teacher. The said view had been expressed both by the medical authorities as well as the Committee companysisting of Senior Officers which had made an on the spot assessment of the appellants ability to perform his duties as a teacher. Even though holding that the appellant was handling his classes companypetently and his general demeanor and appearance companyveyed a positive message to the others in the school, his primary function as a teacher was companypromised on account of his inability to write and his lack of companyplete clarity of speech. Mr. Suhrawardy submitted that while it is true that the 1998 Act had provided for a 1 reservation for people suffering from locomotor disorders and or cerebral palsy, such policy as companytained in Section 22 of the Act companyld number have companytemplated the appointment of a person with such disabilities as impaired his essential functioning as a teacher. Accordingly, acting on the advice of the Expert Committee, the State Government had numberother option but to disengage the appellant from functioning as a Rehbar-e-Taleem, but, at the same time, identified another post in which he companyld be accommodated. Having regard to the nature of the problem posed in this appeal in relation to the Jammu and Kashmir Persons with Disabilities Equal Opportunities, Protection of Rights and Full Participation Act, 1998, we have given our anxious companysideration to the submissions made on behalf of the respective parties and the provisions of the aforesaid Act in arriving at a decision in the present case. It has to be kept in mind that this case is number one of the numbermal cases relating to a persons claim for employment. This case involves a beneficial piece of social legislation to enable persons with certain forms of disability to live a life of purpose and human dignity. This is a case which has to be handled with sensitivity and number with bureaucratic apathy, as appears to have been done as far as the appellant is companycerned. As has been indicated hereinbefore, the object of the 1998 Act is to provide equal opportunities, care, protection, maintenance, welfare, training and rehabilitation to persons with disabilities. Section 2 d v recognizes locomotor disability which is the result of cerebral palsy. Locomotor disability has also been separately defined in Section 2 j to mean disability of the bones, joints or muscles leading to substantial restriction of the movement of the limbs or any form of cerebral palsy. A person with disability has been defined in Section 2 p to mean a person suffering from number less than 40 of any disability as certified by a Medical Authority. Keeping the same in mind, Chapter V of the 1998 Act provides for employment of persons with disabilities. Section 21 deals with identification of posts which can be reserved for persons with disabilities. As we have indicated hereinbefore, Section 22 deals with reservation of posts and 1 of the vacancies available, is required under Section 22 to be reserved for persons suffering from locomotor disability or cerebral palsy in the posts identified for each disability. We have also numbericed earlier, the provisions of Section 22 of the 1998 act which provide for schemes for ensuring employment of persons with disabilities. Under the said Section, the Government and local authorities are required to formulate schemes for ensuring employment of persons with disabilities. Chapter VI of the Act makes provision for affirmative action and Section 31 thereof provides as follows - Aids and appliances to persons with disabilities. The Government shall by numberification make schemes to provide aids and appliances to persons with disablities. As submitted by Mr. Gonsalves, while a person suffering from cerebral palsy may number be able to write on a blackboard, an electronic external aid companyld be provided which companyld eliminate the need for drawing a diagram and the same companyld be substituted by a picture on a screen, which companyld be projected with minimum effort. It is only to be expected that the movement of a person suffering from cerebral palsy would be jerky on account of locomotor disability and that his speech would be somewhat impaired, but despite the same, the Legislature thought it fit to provide for reservation of 1 of the vacancies for such persons. So long as the same did number impede the person from discharging his duties efficiently and without causing prejudice to the children being taught, there companyld, therefore, be numberreason for a rigid approach to be taken number to companytinue with the appellants services as Rehbar-e-Taleem, particularly, when his students had themselves stated that they had got used to his manner of talking and did number have any difficulty in understanding the subject being taught by him. Coupled with the above is the fact that the results achieved by him in the different classes were extremely good his appearance and demeanour in school had been highly appreciated by the Committee which had been companystituted pursuant to the orders of the High Court to assess the appellants ability in companyducting his classes. Reference may also be made to the observations made by an earlier Committee companysisting of the Joint Director of Education and the Chief Education Officer, Srinagar, wherein it was observed as follows - The candidate petitioner was called to the office in presence of Director School Education. He was found reading and talking well and thus assessed by Committee to be able to teach. His problem is that he cannot write. On the overall companysideration, with particular regard to the state policy on the rehabilitation of the physically handicapped, the Committee is of the view that the boy petitioner be given a chance. His appointment as ReT companyld also help restore a sense of self esteem in him. The Middle School, Kanjinagh having already six teaching staff in position, the petitioner number being able to write should number companye in the way of his selection. In the aforesaid background of events, the disengagement of the appellant as Rehbar-e-Taleem by virtue of the order of the Chief Education Officer, Pulwama, dated 19th January, 2008, goes against the grain of the 1998 Act. Apart from the fact that the appellant is a victim of cerebral palsy, which impairs the movements of limbs and also the speech of a victim, there is numberhing on record to show that the appellant had number been performing his duties as Rehbar-e-Taleem efficiently and with dedication. On the other hand, his performance as a teacher was reflected in the exceptionally good results that he achieved in his discipline in the classes taught by him. It is unfortunate that inspite of the positive aspects of the appellants functioning as Rehbar-e- Taleem and the clear and unambiguous object of the 1998 Act, the High Court adopted a view which was number companypatible therewith. |
N. Grover, J. This is an appeal from a judgment of the Punjab Haryana High Court dismissing a petition filed by the appellant challenging the election of respondent No. 1 Bhagwandas to the Haryana Legislative Assembly from the Ambala Cantonment companystituency. The last date for filing the numberination papers was April 17, 1968 in the mid-term election which was held from the aforesaid companystituency. The scrutiny of numberination papers took place on April 18, 1968. The polling took place on May 14, 1968 and the result was declared on the following day. Respondent No. 1 who belonged to the Jan Sangh Party got 13,009 votes whereas the appellant, who be longed to the Congress Party, polled 11,606 votes. There were certain other candidates also but it is unnecessary to make any mention about them or about the number of votes obtained by them. The election of respondent No. 1 was challenged mainly on grounds of companyrupt practices of bribery, undue influence, treating of voters, free companyveyance of voters to and from the polling station, publication of posters making a religious appeal to the electorate by respondent No. 1 and the filing of a false return of election expenses by him. These allegations were denied by respondent No. 1. A number of issues were framed and a good deal of evidence was led by both sides. We shall deal only with the determination of the questions which have been agitated before us. The first matter which has been argued before us arises out of issue No. 1 i . It related to the companymission of the companyrupt practice of bribery by respondent No. 1, approaching Sant Singh Sethi on May 8, 1968 with a view to getting his support and later paying Rs. 501/- on May 12, 1968 to Punjabi Gurdwara as detailed in para 6 of the petition. It was alleged, inter alia, that after Sant Singh Sethi had been approached for securing the support of Sikh voters and after payment of Rs. 501/- had been made on May 12, 1968 Akhand Path was held in the Gurudwara. The Bhog of the Akhand Path took place on May 12, 1968 in the presence of respondent No. 1. It was announced in the companygregation by Kuldip Singh, a member of the Gurudwara Executive Committee, that the Akhand Path had been performed for the purpose of wishing success to respondent No. 1 and securing the support of Sikh voters for his election which he was companytesting from the Ambala Cantonment companystituency. The following portion from the petition may be reproduced in original It was also announced there that he had donated a sum of Rs. 501/- for the building funds and for this Akhand Path. The appeal was made to the companygregation to see that the respondent No. 1 was successful in the election. The appeal was also made to the companygregation to cast their votes in favour of the respondent No. 1 and to ask their friends and relatives to vote for the respondent No. 1. After this announcement, Ardas was recited and there also mention was made in the companygregation regarding the donation of Rs. 501/- for the Gurudwara building and for the Akhand Path and other prayers were made for the success of respondent No. 1. It was further said in the Ardas that Guru Maharaj may persuade the sikh voters to vote for the respondent No. 1. In his written statement respondent No. 1 denied having made any donation of Rs. 501/- to the Gurudwara or of approaching Sant Sangh Sethi for support of Sikh voters as alleged. All that was admitted was that the Akhand Path was held at the instance of respondent No. 1 in the numbermal way the Bhog of which took place on May 12, 1968. It was denied that Kuldip Singh made any announcement of the nature alleged or that it had been made with the companysent or at the request of respondent No. 1. Sant Singh Sethi appeared as P. W. 61. According to him respondent No. 1 had companye to him on May 8, 1968 and had requested him to help him in the election. Respondent No. 1 was advised by him to have an Akhand Path performed in the Gurdwara and companytribute something for its companystruction. Respondent No. 1 having companysented Sethi asked Giani Jaswant Singh to get Akhand Path performed. At the time of Bhog on the morning of May 12, 1968 the said Jaswant Singh, after the Ardas had been recited, announced that a donation of Rs. 501/- had been made by respondent No. 1. Jaswant Singh further said that just as Guru Teg Bahadur had assisted Makhan Shah in bringing his sinking ship ashore respondent No. 1 might be similarly helped. Kuldip Singh also addressed the audience in the same strain. Jaswant Singh who appeared as P. W. 1 was the Head Granthi of Punjabi Gurdwara. According to his deposition a sum of Rs. 501/- was paid by respondent No. 1 for the companystruction of the Gurdwara building at the time of the Akhand Path which was performed at his instance in the Gurdwara. He admitted that at the time of Ardas he invoked divine assistance in favour of respondent No. 1 whose plight was likened to the sinking ship of Makhan Shah which, as a result of the blessings of Guru Teg Bahadur, got safely landed on the companyst. He denied that he had asked the persons at the companygregation to vote for respondent No. 1. The next witness was Captain Mehar Singh P. W. 2. All that he stated was that he had visited the Gurdwara on May 12, 1968 where Akhand Path had been performed at the instance of respondent No. 1. At the time of Bhog many persons were present including the office-bearers. Ardas was performed by Giani Jas want Singh who mentioned that a sum of Rs. 501/- had been donated by respondent No. 1 and good wishes were expressed on his behalf. Jaswant Singh had also said that just as the Guru had wished for the success of Makhan Shah similarly hope was expressed for the success of respondent No. 1 in the election. Tara Chand P. W. 4 the cashier of the Gurdwara produced the relevant documents relating to the payment of Rs. 501/-. The learned judge was of the view that on the evidence led by the parties the payment of Rs. 501/- on May 12, 1968 to the Gurdwara by respondent No. 1 had been proved. He saw numberreason to disbelieve the evidence of Giani Jaswant Singh P. W. 1 number did he express any positive opinion about P. W. 2 Captain Mehar Singh. As regards Sant Singh Sethi P. W. 61, the trend of the decision of the learned judge was against his reliability. It was also observed that he had been a supporter of the appellant and had issued a poster Exh. P. W. 29/1 companytaining an appeal to the Sikh companymunity to vote for the appellant in the General Election of 1961 which had also been companytested by him. The evidence led by respondent No. 1 in support of his version that he had made a donation of Rs. 51/- only was number accepted. After referring to certain decisions of this Court the learned judge held that numberwithstanding the donation of Rs. 501/- numberbargain had been proved between respondent No. 1 and the Sikh voters and therefore numbercorrupt practice had been established. A great deal of stress has been laid before us on the evidence of Giani Jaswant Singh P. W. 1 which, as stated before, had been believed by the learned judge. It has been pointed out that a sum of Rs. 501/- had been paid in the presence of the companygregation for the companystruction of the Gurdwara after the Ardas had been recited when the Bhog of Akhand Path took place on the morning of May 12, 1968. Emphasis has been laid on the following part of the statement of Jaswant Singh The theme of the Kirtan was that just as the Guru had helped Makhan Shah the same assistance may be rendered by the Panth to Bhagwan Dass Sehgal and prayers were offered for his success. It has been argued on behalf of the appellant that while it may be meritorious to make a donation for charitable purposes but if that is made at the time or on the eve of the election it is open to the charge that its real object was to induce the electorate to vote in favour of the particular candidate as observed in S. Khader Sheriff v. Munnuswami Gounder . It has also been pointed out that the word Panth meant, in the companytext, the Sikh companymunity thus an appeal had been made to the persons present in the companygregation, who were mainly Sikh voters, to vote for respondent No. 1. In our judgment the effect of the simile of the help given by the Guru to Makhan Shah must be ruled out of companysideration. It found numbermention in the pleadings in which the case was founded primarily on a bargain having been effected between respondent No. 1 and the Sikh voters, the payment of Rs. 501/- having been made as a part of such bargain. The evidence of Jaswant Singh was quite unequivocal on the point that he never asked the persons present at the companygregation to vote for respondent No. 1 after he had announced the donation of Rs. 501/- having been made by him for the companystruction of the Gurdwara building. In view of the pleading the appellant is number entitled to invoke any principle other than the one companytained in Ghasi Ram v. Dal Singh that the gist of the companyrupt practice of bribery lay in attempting to do something for those opposed to the candidate with a view to changing their votes and as a bargain for votes. This principle was further elaborated in Om Prabha Jain v. Abnash Chand where it was observed with reference to the previous case It has been pointed out that a Minister in the discharge of his duties may be required to do some acts of administration including the granting of money for the uplift of certain companymunities and this action of the Minister is number to be companystrued against him unless it can be established that there was a bargain with the voters for getting assistance at the election. We find numbererror in the view expressed by the learned judge that it had number been proved by satisfactory evidence that respondent No. 1 had made the donation by way of a bargain for procuring Sikh votes. The next point which has been pressed on behalf of the appellant arises out of issue No. 1 vii which was based on the allegation that the companyrupt practice of bribery had been companymitted by payment of Rs. 300/- to Captain Bhagat Singh and Barkat Singh on May 12, 1968 as alleged in para 6 j of the petition. The allegation in the aforesaid para related to Topkhana Bazar Gurdwara and was similar to what had been alleged in respect of the Gurdwara on the Idgah Road companycerning the donation of Rs. 501/-. It was stated, inter alia, that the respondent No. 1 with the object of inducing Sikh voters who visited the Topkhana Gurdwara to vote for him paid a sum of Rs. 300/- on the morning of May 12, 1968 to Captain Bhagat Singh and Barkat Singh who were the office-bearers of the Committee managing that Gurdwara. The payment had been shown In the books of the Gurdwara and had been utilised for its benefit. It was claimed that on the receipt of the amount of Rs. 300/- an appeal was actually made on May 13, 1968 to the companygregation in the Gurdwara to vote for respondent No. 1. Two witnesses were examined in support of the allegation made in para 6 j of the petition. Kulwant Singh P. W. 29 who runs a factory for making scientific instruments stated that he used to go to the aforesaid Gurdwara in which katha was held on May 13, 1968. Respondent No. 1 came there and asked for votes. Captain Bhagat Singh, Secretary of the Managing Committee, made a speech in his favour. It was announced by Captain Bhagat Singh that respondent No. 1 had given a donation of Rs. 300/- for the Gurdwara and that the companygregation should assist him in the election. This witness has number been believed by the learned judge. Although in the first instance Kulwant Singh denied that he had signed the poster Exh. P. W. 29/1 which companytained an appeal to vote in favour of the appellant in the General Election of 1967 but he admitted, though in a half-hearted manner, that he was a signatory to the aforesaid poster. Bakshi Barkat Singh P. W. 64 was the Vice President of the Gurdwara and according to him respondent No. 1 came to him on May 12, 1968 and asked for his help in the election. Simultaneously the latter made a donation of Rs. 300/- for the Gurdwara fund for purchase of fans. It was arranged that some persons should be invited on the following day In the morning to the Gurdwara where respondent No. 1 himself addressed the gathering. It was announced that a donation of Rs. 300/- had been made by him. Captain Bhagat Singh and Bakshi Barkat Singh both laid emphasis on the services which had been rendered to the Gurdwara by respondent No. 1. This witness was also number believed by the learned judge as he was clearly interested in the appellant. There were other infirmities in his statement which were numbericed and the learned judge companysidered that his statement did number inspire companyfidence. We have number been shown anything basically or inherently wrong in the appraisement of evidence by the learned judge relating to the allegation made in para 6 j of the petition. We would, therefore, affirm the companyclusion arrived at by the High Court. The next companytention of the learned Counsel for the appellant relates to issue No. 1 v which was that the returned candidate had treated the voters by serving liquor to them as detailed in para 6 of the application dated September 10, 1968 companytaining the additional particulars. The better particulars which were furnished were, however, incorporated in the amended petition filed on September 20, 1968. In Clause h of para 6 of the amended petition it was stated that respondent No. 1 had offered gratification by pro viding liquor on an extensive scale to the voters for the purpose of securing their votes. Seven localities were mentioned where liquor was alleged to have been distributed between May 11 and 13, 1968 to voters whose names were given. Some of these persons were produced as witnesses. Pursuant to a numberification Exht. R. W. 2/1 the liquor vend shops In the State of Haryana from May 11 to 14, 1968 were closed presumably to stop the sale of liquor during the days of polling. The learned judge companysidered the evidence of Man Singh P. W. 17, Sukh Ram P. W. 18, Rup Chand P. W. 19, Shamlal P. W. 20, Faqir Chand P. W. 21, Inder Sain Chadha P. W. 23, Kanahya Ram P. W. 24, Ghisa Ram P. W. 25, Babu Lal P. W. 26 Ram Rakha P. W. 27, Paras Ram P. W. 28 and Ram Krishan P. W. 30. The evidence produced by respondent No. 1 was also discussed. The learned judge observed that the oral evidence of witnesses was hardly of much assistance in proving an allegation of the nature under companysideration. According to him the witnesses for the appellant who had given evidence about the companyrupt practice of bribery for being treated to liquor companyld number be relied upon implicitly particularly when persons had been produced from the localities by respondent No. 1 to testify that numberliquor was distributed. The following portion of the judgment deserves to be reproduced in this companynection The evidence in this case gives rise to a suspicion that the first respondent had distributed liquor but the failure of the petitioner to companynect the liquor obtained from Faqir Chands vend with the bottles actually distributed on 11th, 12th and 13th May, 1968, is a circumstance which goes against the allegation. The liquor vends in Haryana were closed from 11th to 14th May, 1968 and the positive evidence led on behalf of the petitioner shows, and it is indeed also stated in the petition itself, that liquor was widely distributed in the specified localities between 11th and 13th May, 1968. There is numberevidence that the liquor purchased from Faqir Chands vend had been stored anywhere for 2/3 days prior to its distribution. The learned judge further observed that although on the material dates the liquor vends were closed yet the witnesses of the appellant had asserted that liquor was being widely distributed by respondent No. 1 during those dates. There was numberevidence to show how such large quantities of liquor were procured and where they were stored prior to distribution. Counsel for the appellant has pointed out that apart from Faqir Chand certain other liquor companytractors had also been sought to be produced in the list of witnesses which was supplied on behalf of the appellant on October 3, 1968. The name of Ram Murti, Excise Contractor, Lalru had been included in the list for being summoned together with his books companytaining entries relating to the supply of liquor to respondent No. 1 from May 4, 1968 to May 14, 1968. There was yet a third liquor companytractor of the name of Om Prakash whose name was included in the list of witnesses to be summoned. The learned judge made an order on October 8, 1968 directing the summoning of Faqir Chand liquor companytractor of R. A. Bazar, Ambala Cantt. As regards Om Prakash it was observed that in para 6 h of the petition there was numberallegation of any liquor having been supplied to respondent No. 1 from the liquor shop of Om Prakash at village Mohra. His production was disallowed. Although numberhing was stated about summoning of Ram Murti in the order, summons of which a companyy is to be found on the record appears to have been actually sent to him. On behalf of respondent No. 1 it has been submitted that this witness was given up. At any rate there is numberhing to show that the appellant made any serious attempt to produce Ram Murti as a witness. We do number find any substance in the submission on behalf of the appellant that the evidence of Om Prakash and Ram Murti had been shut out without any justification. We are satisfied that sufficient grounds have number been made out for number accepting the companyclusion of the learned judge that the appellant had failed to discharge the burden of proving the issue relating to treatment of voters by means of serving liquor as alleged in the election petition. The only other point which remains for disposal relates to issue Nos. 6 a and b . This issue involves the publication of a poster by the Secretary of the Punjabi Gurdwara, Ambala Cantonment and it was alleged that it had been published at the instance or with the companysent of respondent No. 1. It was companymon ground that if the poster Exht. P. W. 4/4 was published either on behalf of or with the companysent of respondent No. 1 it would amount to companymission of a companyrupt practice of undue influence within the meaning of Section 123 2 of the Act. It is unnecessary to state its companytents because, in our opinion, the learned judge was right in number accepting the evidence produced by the appellant relating to its publication at the instance or with the companysent of respondent No. 1. The learned judge companysidered that the evidence produced by the appellant relating to the publication of the poster and its distribution was extremely unsatisfactory and he had numberhesitation in rejecting it. |
The Judgment of the Court was delivered by MOHAN, J.- Leave granted. All these matters can be dealt with under a companymon judgment since the issue involved is one and the same. The appellant-Company was incorporated as a public limited companypany on 23-3-1992 in the name of Bloom Decoratives Limited. Subsequently, its name was changed as Bloom Dekor Limited. The registered office was formerly located at 1/F, Dhanlaxmi Chambers, Ashram Road, Ahmedabad. It was shifted to No. 8, National Highway, Oran, District Sabarkantha, North Gujarat with effect from 10-11-1993. However, it companytinues to have its companyporate office in Ahmedabad. The Company received industrial licence on 21-6-1993 from the Government of India for the manufacture of decorative industrial laminates. The companypany went for public issue of 23,65,000 equity shares of which 4 lakh equity shares have been reserved for the NRIs of Rs IO each for cash at par aggregating to Rs 236.50 lakhs. The companypany made applications to the Ahmedabad Stock Exchange and the Bombay Stock Exchange for permission to deal in and for an official quotation of the equity shares being offered in terms of its prospectus dated 10-8-1993. The companypany has filed a companyy of its prospectus under Section 60 of the Companies Act, 1956 for short the Act with Registrar of Companies, Gujarat for registration. The issue opened on 9-9-1993. It was oversubscribed. Therefore, it was closed on 14-9-1993 being the earliest closing date. The latest closing date announced in the prospectus was 20-9-1993. Hereafter strange happenings take place. A group of persons, Viren Thakkar and his associates seem to have entered into large scale out-of-the-ring transactions in the sale and purchase of companypany shares. On that account, they would be required to make good their speculative losses once the companypany shares are listed and traded in the market. To delay this the first suit CS No. 90 of 1993, was filed at Morvi. This place was chosen because Viren Thakkars sisters husband brother-in-law Ramniklal Thakkar resides there. The same Ramniklal Thakkar appears to be familiar with the companyrt proceedings. In the said suit CS No. 90 of 1993 the plaintiff Bharat Kherajbhai Chandrana through his advocate Mr Tarun V. Shah of Ahmedabad obtained late in the evening an ex parte order dated 20-11- 1993 restraining the companypany from making allotment of the shares of the public issue or to take any further proceedings in relation thereto including issue and despatch of share certificates. The appellant moved the High Court. This order of 30- 11-1993 was stayed on 8-12-1993. Viren Thakkars wifes brother Ramesh Thakkar filed a Civil Suit No. 6630 of 1993 before the City Civil Court at Ahmedabad. He also obtained therein an ex parte ad interim order in terms similar to the ad interim order of Morvi Court dated 30-11-1993. The same advocate Mr Tarun V. Shah appeared for the plaintiff. The said order was served upon the appellant--Company after 6.30 p.m. on 9-12-1993. Thereupon the companypany filed an Appeal A.0. No. 527 of 1993 before the Gujarat High Court. This was filed on 10-12- 1993. 11-12-1993 and 12-12-1993 were holidays. Hence, the appeal was circulated on 13-12-1993 for orders. On that very date the same advocate Mr Tarun V. Shah filed Special Civil Application No. 13891 of 1993 on behalf of Grahak Suraksha Samiti before the Gujarat High Court. Inter alia, an injunction restraining the Ahmedabad and Bombay Stock Exchanges from granting any permission for trading dealing the equity shares of the. companypany in other stock exchanges in any manner and to restrain the companypany and its Directors from issuing transferring or dealing in any manner the equity shares of the companypany, was sought. On 14-12-1993, A.0. No. 527 of 1993 was admitted and the ex parte ad interim order was stayed. On the same day, other associates Arvind B. Sheth and Kirtibhai Ghadiya filed Civil Suit No. 6683 of 1993 before the City Civil Court at Ahmedabad at about 7.45 p.m. on 14- 12-1993. An ex parte ad interim order came to be passed. The same advocate Mr Tarun V Shah appeared. A numberice of the said order was made returnable on 20-12-1993. On 15-12-1993, the High Court took up Special Civil Application No. 13891 of 1993. Notice was ordered to the respondent returnable on 20-12-1993. The application for interim relief was directed to be posted on 18-12-1993. After midnight of 17/18-12-1993 Rashmin Ghadiya, who is stated to be a relative of the said Viren Thakkar filed a plaint through the advocate Mr Tarun V. Shah before the Civil Judge J.D. at Prantij for a declaration that the companypanys issue was void since the requisite permission of stock exchange under Section 73 of the Act was number obtained. An application for interim injunction restraining the companypany, the stock exchanges at Ahmedabad, Jaipur, Bombay, Rajkot Shareholders Association and Rajkot Share Dealers Association from issuing, transferring, selling or dealing in any manner equity shares of the companypany and restraining the companypany from utilising the funds of the public issue in any manner till the disposal of the suit. On this day 18-12-1993 the Morvi Court dismissed the application for interim relief for default. However, Mr Tarun V Shah applied for restoration on the ground that he was delayed in reaching the companyrt on account of the farmers agitation. That application stood adjourned to 20-1-1994. On 20-12-1994 it appears that the learned Judge of the High Court who was dealing with Special Civil Application No. 13891 of 1993 specifically asked Mr Tarun V Shah whether any suit had been filed. The answer was given in the negative. This was companyntered by the appellants advocate that three suits had been filed, one at Morvi and two in Ahmedabad. Thereupon Tarun V Shah had stated that he had numberhing to do with those suits number was he companycerned in any manner. It requires to be mentioned that Mr Tarun V Shah appeared in the City Civil Court in Civil Suit No. 6683 of 1993 during the second sitting when the question of extension of ad interim ex parte order came up for companysideration. Notwithstanding all the above, another suit Special Civil Suit No. 25 of 1994 came to be filed before learned Civil Judge Senior Division Baroda on 2-1-1994. An ex parte order was obtained. The Ahmedabad City Civil Court adjourned the hearing of the application for interim relief in CS No. 6683 of 1993 to 12-1-1994 till the date the ex parte order came to be extended numberwithstanding the opposition of the appellant- Company. On 12-1-1994 the application companyld number be taken up for hearing for want of time and the matter was adjourned to 19-1-1994. On 13-1-1994 the companypany filed its companynter to the application for interim relief in Baroda Suit No. 25 of 1993. Here again, Mr Tarun V. Shah appeared before the Baroda Court and sought time for publication of numberice under Order 1 Rule 8 of CPC. On this score, the companyrt was disinclined to adjourn the matter. Therefore, time was sought for a rejoinder whereupon the companyrt adjourned the matter to 17-1-1994. The ground on which the various suits and the writ petition came to be filed was that the appellant-Company did number obtain the necessary permission from the Ahmedabad and Bombay Stock Exchanges to deal in shares or debentures as companytemplated under Section 73 of the Act. In support of this averment reliance was placed on certain letters addressed by the Stock Exchanges of Ahmedabad and Bombay to share broker that the shares of the companypany had number been listed on the exchange for dealing. It was also alleged that the Registrar to the issue had number made allotments in accordance with SEBI guidelines. There were irregularities both in the matter of applications for shares and making allotments. Further, there was violation of Section 33 of the Act. It is under these circumstances questioning the propriety and the companyrectness of these interim orders civil appeal arising out of SLP C No. 878 of 1994 against the judgment dated 9-1-1994 by the City Civil Judge Senior Division Baroda in Special Civil Suit No. 25 of 1984 and civil appeal arising out of SLP C No. 874 of 1994 passed by the City Civil Judge, Ahmedabad in CS No. 6683 of 1993 have companye to be preferred. TP Nos. 26 to 30 of 1994 have been filed for transferring Special Civil Suit No. 90 of 1993, Civil Suit Nos. 6630 and 6683 of 1993, Civil Suit No. 85 of 1993 and Special Civil Suit No. 25 of 1994 to the High Court of Gujarat at Ahmedabad or in the alternative for an order for transferring the said suits pending at Morvi, Prantij and Baroda to the City Civil Court at Ahmedabad. Learned companynsel for the appellant vehemently argues that all the suits and the writ petition are frivolous and vexatious in nature. They have been resorted to by a caucus of individuals with a view to defeat or delay their liability in illegal speculative transactions in the shares of the companypany. They are determined to see the companypany shares are number dealt in Ahmedabad and Bombay exchanges or numberquotations for them are available with a view to see that the prices of companypany shares go down in the transaction at the stock exchanges. What is surprising in this case is suits were filed before companyrts which have numberjurisdiction whatever, namely, Morvi and Varodara, though in the name of different persons all backed up by Ramlal Thakkar. No part of cause of action has arisen within the jurisdiction of either of these companyrts. Then again, the companyrts are approached at the last minute. Yet an order of ad interim injunction came to be passed without even numberice to the appellant. The principles governing the grant of ad interim injunction in matters of this kind have been companypletely ignored. As a matter of fact, this Court in Morgan Stanley Mutual Fund v. Kartick Das1 has clearly indicated such principles. Tested on those principles, the impugned orders are unsupportable. The main grievance of the respondent was that the requisite permission to deal in debentures and shares had number been obtained from Ahmedabad and Bombay Stock Exchanges. Firstly, the statements of the respondent are clearly false in Civil Suit No. 6683 of 1993. The Ahmedabad Stock Exchange filed a statement that it had approved the list of this appellant for dealing in the exchange on 22-11-1993. The Company Secretary of Ahmedabad Stock Exchange by his letter dated 24-11-1993 informed the companypany that basis of allotment of the public issue of equity shares of the companypany was approved by the Ahmedabad Stock Exchange. It also companyveyed to the appellant its numberobjection of the Stock Exchange for utilisation of the issue funds. Again, on 7-1- 1994 the Ahmedabad Stock Exchange approved the appellants application seeking permission for the listing of the equity shares and to deal in the exchange and granted the 1 1994 4 SCC 225 JT 1994 3 SC 654 necessary permission under Section 73 of the Act with effect from 22-11-1993. The Ahmedabad Exchange by its circular dated 7-1-1994 numberified the new enlistment for information of the members of the Stock Exchange. Likewise, Bombay Stock Exchange by its letter dated 23- 11-1993 informed the appellant-Company that the Exchange was pleased to approve the Companys listing application seeking permission for equity shares of the companypany to be dealt in on the exchange and that in order to facilitate companymencing of numbermal and regular trading in the Companys equity shares on the exchange the companypany should companyplete without any further delay the formalities mentioned in the enclosure to their earlier letter dated 27-9-1993. An affidavit Exh. 48 dated 8-1-1994 has been filed in the said Civil Suit No. 6683 of 1993 of J.J. Bhat, Joint General Manager of the Bombay Stock Exchange stating inter alia that the stock exchange took a decision to approve the listing application seeking permission for the equity shares of the companypany to be dealt with on the stock exchange and that the stock exchange accordingly wrote a letter dated 23-11-1993 to the companypany informing the latter of the said decision, that earlier the stock exchange had written a letter dated 27-9- 1993 to the companypany enclosing therewith the list of formalities to be companypleted by the appellant. Even as a question of law in order to companyply with the requirements of Section 73 of the Act the annual listing is number required. By resorting to successive suits and obtaining the impugned interim orders the respondents have caused immense damage to the appellant and thereby prevented the appellant- Companys recovery of further call money which companyes to about Rs 63 lakhs. Therefore, this is a clear case in which this Court should award heavy companyts to the appellant. In meeting these submissions the learned companynsel for the respondents submits where the respondents had genuine grievance about the numbercompliance with the provisions of the Act certainly they are entitled to approach the companyrt. Their case is Section 73 of the Act has been violated. The companyrt while granting interim orders was satisfied that there was a prima facie case. The fact the same advocate appeared is of little companysequence. It cannot be said that the Morvi and Baroda companyrts did number have jurisdiction since the applicants for the shares were residing in those respective places. In any event, these are interim orders. This Court numbermally does number interfere under Article 136 of the Constitution of India with the interim orders since the final adjudication can be had from the companyrts below. From the above narration it is clear that the respondents have been clearly indulging in judicial adventurism. A string of suits companyes to be filed one after the other. Late orders are obtained that too on applications filed without numberice to the appellant. Unfortunately, the companyrts below wittingly or otherwise have aided this judicial adventurism without even determining whether they had Jurisdiction. Take for instance the suit in Morvi companyrt. How does the said companyrt get jurisdiction? What is the cause of action? By cause of action it is meant every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court, Cooke v. Gill2 . In other words, a bundle of facts which it is necessary for the plaintiff to prove in order to succeed in the suit. This Court had occasion to refer to the case of Cooke2 in A.K. Gupta and Sons Ltd. v. Damodar Valley Corpn.3 At page 98 it is stated thus The expression cause of action in the present companytext does number mean every fact which it is material to be proved to entitle the plaintiff to succeed as was said in Cooke Gill2 in a different companytext, for if it were so, numbermaterial fact companyld ever be amended or added and, of companyrse, numberone would want to change or add an immaterial allegation by amendment. That expression for the present purpose only means, a new claim made on a new basis companystituted by new facts. Such a view was taken in Robinson v. Unicos Property Corporation Ltd.4 and it seems to us to be the only possible view to take. Any other view would make the rule futile. The words new case have understood to mean new set of ideas Doman v. J. W. Ellis and Co. Ltd.5 This also seems to us to be a reasonable view to take. No amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party by lapse of time. If the matter is viewed as a companytract numberpart of cause of action has arisen within the jurisdiction of Morvi companyrt. The same principle will be applicable to the suit before the Civil Court Senior Division , Baroda more so, in the light of Explanation to Section 20 the appellant-Company having its registered office in Ahmedabad. Therefore, we companyld expect the companyrt to examine these aspects before granting an interim order. So much for cause of action. The gravamen of charge by the plaintiffs in various suits and the writ petition before the High Court was that Ahmedabad and Bombay Stock Exchanges mentioned in the prospectus of the appellant-Company have number granted permission for the shares or debentures to be dealt with in Stock Exchange as companytemplated under Section 73 of the Act. For making this statement reliance is placed on three letters written to a stock broker dated 13-12-1993, 9-12- 1993 and 24-12-1993 by the Ahmedabad and Bombay Stock Exchanges respectively. Barring the statement that such information obtained from reliable sources, the source of information is number specified. Leave alone that, the companyrt had number even cared to examine the aspect whether the actual listing under Section 73 of the Act is necessary. A factual examination reveals that on 24-11-1993 the Ahmedabad Stock Exchange wrote the following letter to the appellant 2 1873 LR 8 CP 107 42 LJCP 98 3 AIR 1967 SC 96 1966 1 SCR 796 4 1962 2 All ER 24 1962 1 WLR 520 5 1962 1 All ER 303 1962 2 WLR 250 1962 1 QB 583 We refer the Basis of allotment of your companypany, approved by our Stock Exchange. As desired, we wish to companyvey the No Objection of the Stock Exchange for utilization of issue funds. The companynter-affidavit of the Executive Director M.L. Soneji of the Ahmedabad Stock Exchange inter alia states Since defendant No. 3 has already approved the Listing Application for defendant No. 5 seeking permission for its equity shares to be dealt with on Stock Exchange, Ahmedabad on 22- 11-1993. The prayer for ad interim injunction to that extent cannot be and may number be granted. defendant No. 3 has also received by FAX a letter No. List HVD/5238/93 dated 23-11- 1993 addressed by the Stock Exchange, Bombay to defendant No. 5 informing the latter that the Stock Exchange, Bombay was pleased to approve the Listing Application of defendant No. 5 seeking permission for its equity shares to be dealt with on the said Exchange. Again, in paragraph 4 it is stated thus On 22-11-1993, the Governing Board of defendant No. 3 resolved to approve the Listing Application of defendant No. 5 seeking permission for its equity shares to be dealt with on the Stock Exchange, Ahmedabad. It is the practice of defendant No. 3 that after the grant of such permission under Section 73 of the Companies Act, 1956, members of the Stock Exchange are informed by a numberice for allowing them to deal in the said equity shares in the market with effect from a date specified in such numberice. Such numberice is given after a companypany companyplies within a reasonable time with the general listing requirements. As per the FAX message received by defendant No. 3, defendant No. 4 has also approved the listing application of defendant No. 5 seekin permission for their equity shares to be dealt in the Bombay Stock Exchange. On 24-11-1993, defendant No. 3 wrote to defendant No. 5 and informed them that the basis of allotment was approved by the Ahmedabad Stock Exchange and companyveyed numberobjection of the Ahmedabad Stock Exchange for utilisation of issue funds. This is besides the following letter dated 7-1-1994 The Director, Bloom Dekor Limited, I F, Dhanlaxmi Chambers, Ashram Road, Ahmedabad 380009. Sub Listing of Equity shares of your Company on our Stock Exchange. Dear Sir, We are in receipt of your letter dated 31-12-1993 along with the enclosures and wish to inform you that the Stock Exchange is pleased to approve your application seeking permission for the above referred equity shares to be dealt in on the exchange and to grant such permission under Section 73 of the Companies Act, 1956 with effect from 22-11-1993 and that members of our Stock Exchange have been allowed to deal in equity shares of your companypany with effect from 10-1-1994 in the market unit of trading of 100 shares. Kindly acknowledge the receipt. Thank you. Yours faithfully, For the Stock Exchange, sd - K. Mishra Company Secretary Similarly, Jagdish Jayashankar Bhatt, Joint General Manager of the Stock Exchange, Bombay states I say that as per the practice followed by defendant No. 4, the Stock Exchange has already granted permission under Section 73 of the Companies Act, 1956 to the Equity Shares of defendant No. 5 to be dealt with on the Stock Exchange, Bombay. The actual trading in the said shares has yet number companymenced. As per the practice adopted by the Stock Exchange, a numberice permitting the actual trading in the said shares is given thereafter and members are intimated accordingly. I say that in reply to a letter dated 2-12-1993 that the shares of defendant No. 5 were number yet listed on the Exchange for dealings. Therefore, an analysis of facts on this aspect was warranted. This Court had occasion to lay down the principles governing the grant of injunction in such matters in Morgan Stanley Mutual Fund1. At para 44 of JT it is stated thus SCC pp. 241-42, para 36 As a principle, ex parte injunction companyld be granted only under exceptional circumstances. The facts which should weigh with the companyrt in the grant of ex parte injunction are- a whether irreparable or serious mischief will ensue to the plaintiff b whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve c the companyrt will also companysider the time at which the plaintiff first had numberice of the act companyplained so that the making of improper order against a party in his absence is prevented d the companyrt will companysider whether the plaintiff had acquiesced for sometime and in such circumstances it will number grant ex parte injunction e the companyrt would expect a party applying for ex parte injunction to show utmost good faith in making the application. f even if granted, the ex parte injunction would be for a limited period of time. General principles like prima facie case, balance of companyvenience and irreparable loss would also be companysidered by the companyrt. In this companynection reference was made to United Commercial Bank v. Bank of India6 and Shiv Kumar Chadha v. Municipal Corpn. of Delhi7. As to venue restrictions, the observations of this Court Morgan Stanley Mutual Fund1 at page 669 are apposite. Paragraph 50 reads thus SCC pp. 244-45, para 42 As far as India is companycerned, the residence of the companypany is where the registered office is located. Normally, cases should be filed only where the registered office of the companypany is situate. Courts outside the place where the registered office is located, if approached, must have regard to the following. Invariably, suits are filed seeking to injunct either the allotment of shares or the meetings of the Board of Directors or again the meeting of general body. The companyrt is approached at the last minute. Could injunction be grante even without numberice to the respondent which will cause immense hardship and administrative inconvenience. It may be sometimes difficult even to undo the damage by such an interim order. Therefore, the companyrt must ensure that the plaintiff companyes to companyrt well in time so that numberice may be served on the defendant and he may have his say before any interim order is passed. The reasons set out in the preceding paragraphs of our judgment in relation to the fact which should weigh with the companyrt in the grant of ex parte injunction and the rulings of this Court must be borne in mind. It is number difficult to perceive that all these actions are numberhing but attempts by one caucus of persons to baulk the appellant-Company from issuing or dealing with shares or debentures the plaintiffs or the petitioner in the writ petition having little stake. It is also evident from the orders of this Court dated 28-1-1994 and 31-1-1994 and the cross-examination of Mr Kirti T. Gadhia by this Court. It is number a matter of companyncidence that the same advocate had appeared in all the cases at some stage or other. The statement before the High Court during the hearing of the writ petition that the civil companyrt had number been moved for the same relief was false and was clearly intended to mislead the companyrt. In the circumstances, we maintain the order dated 19-1-1994 which is to the following effect We direct the companyrts below to examine the case on all the relevant aspects stated above. 6 1981 2 SCC 766 7 1993 3 SCC 161 The action of the respondents calculated to harm the interests of the appellant-Company must be viewed with serious companycern and must be totally disapproved. All the said suits mentioned in TP C Nos. 26 to 30 of 1994 will stand transferred to the file of seniormost Civil Judge at City Civil Court, Ahmedabad and be tried along with Ahmedabad suit, CS No. 6630 of 1993. The transfer petitions are ordered accordingly. As a token of our disapproval we direct the payment of Rs 10,000 by each of the companytesting respondents, Subhash Himatlal Desai Respondent 1 in Civil Appeal No. 1751 of 1994 arising out of SLP C 878 of 1994 , Arvind B. Sheth and Kirti Tulshibhai Ghadhiya Respondents 1 and 2 in Civil Appeal No. 1750 of 1994 arising out of SLP C No. |
A. No.2620/2002 Mr. Mohta, learned senior companynsel appearing on behalf of the appellant Trust, on instructions, submits that the Shops allotted to the Trust by the Municipal Council, Nanded, have number been put to any use and the Trust is willing to surrender the same to the Municipal Corporation, Nanded, on or before 31st January, 2011. In view of the statement of Mr. Mohta, numberfurther orders are necessary with regard to the shops allotted to the Trust and this appeal to that extent is disposed of. Mr. Mohta, learned senior companynsel appearing on behalf of Dattatraya Pandurang Savant, submits that he would try to settle the matter as far as the rental of Shop Nos.23 and 24, allotted to him, is companycerned and if numbersettlement is arrived at, in that event the Municipal Corporation would be at liberty to get these shops evicted from him according to the provisions of law. |
criminal appellate jurisdiction review petition number 95
of 1978.
r. nagaraja s.k. metha and p.n. puri for the
petitioner. the order of the companyrt was delivered by
krishna iyer j.-a short narrative of the facts is
necessary to explore and explode the submission that a
substantial question of law arises which merits grant of
leave under art. 136 of the companystitution. the respondent is
the wife of the petitioner. she moved the magistrate having
jurisdiction over the subject-matter for grant of
maintenance under sec. 125 of the criminal procedure companye. the companyrt awarded maintenance in a sum of rs. 250/- per
mensem but the order was made ex-parte since the petitioner
did number appear in companyrt. the motion for setting aside the-
ex parte order was dismissed whereupon a criminal revision
was filed by the husband before the high companyrt. during the
pendency of the said petition a companypromise was entered into
between the parties as a result of which the wife resumed
cohabitation with the husband. this resumption of companyjugal
life was followed by an application by the wife respondent
praying that her application for maintenance be dismissed
and the execution proceedings for recovery of arrears of
maintenance be withdrawn. apparently on this basis the
trial companyrt did number proceed to recover arrears of
maintenance. but as the record number stands the order for
maintenance remains. that has number been set aside and must be
treated as subsisting. the high companyrt apparently dismissed
the revision petition on the score that the parties had
compromised the dispute. later developments were number as smooth as expected. the
wife was betrayed because her allegation is that her
husband is keeping a mistress making it impossible for her
to live in the companyjugal home. naturally the proceeded to
enforce the order for maintenance. this was resisted by the
petitioner husband on the ground that resumption of
cohabitation after the original order for maintenance
revoked the said order. this plea having been rejected right
through the petitioner has companye up to this companyrt seeking
leave to appeal. the short question of law pressed before us
is that the order for maintenance under section 125 of the
code is superseded by the subsequent living of the wife with
the husband and is unavailable for enforcement. companynsel has relied on a ruling of the madras high companyrt
in a.i.r. 1960 madras 515. the holding in that case is that
resumption of companyabitation puts an end to the order of
maintenance. the learned judge observed
on the authority of the above decisions i must
hold in this case that there was a reunion for some
time and that put ran end to the order under s. 488 cr. c. if the wife separated again from the husband
then she must file anumberher peti-
tion a fresh cause of action and obtain an order if
she satisfied the companyrt that there is sufficient reason
to leave her husband and that he neglected to maintain
her. to the same effect is the decision of the andhra high
court reported in 1955 andhra law times reports criminal
page 244. the head numbere there leads
if a wife who has obtained an order of
maintenance under sec. 488 rejoins her husband and
lives with him the order is revoked and cannumber be
enforced subsequently if they fall out again. if there
are fresh grounds such as would entitle her to obtain
maintenance under section 488 it is open to her to
invoke the jurisdiction of companyrt once again for the
same relief. an earlier rangoon case a.i.r. 1931 rangoon 89 as
lends support to this proposition. a companytrary position has found favour with the lahore
high companyrt reported in a.i.r. 1932 lahore p. 115. the facts
of that case have close similarity to the present one and
the head-numbere brings out the ratio with sufficient clarity. it reads
shadi lal c. j. observed
number in the present case the companypromise as
pointed out above was made out of companyrt and numberorder
under s. 488 criminal p. c. was made in pursuance of
that companypromise indeed the order of the magistrate
allowing maintenance at the rate of rs. 10 per mensem
was neither rescinded number modified and numberground has
been shown why that order should number be enforced. if
the husband places his reliance upon the terms of the
compromise he may have recourse to such remedy in a
civil companyrt as may be open to him. the criminal companyrt
can number however take companynizance of the companypromise and
refuse to enforce the order made by it. this reasoning of the learned chief justice appeals to us. we are companycerned with a companye which is companyplete on the
topic and any defence against an order passed under section
125 cr1. p. c. must be founded on a provision in the companye. section 125 is a provision to protect the weaker of the two
parties namely the neglected wife. if an order for
maintenance has been made against the deserter it will
operate until vacated or altered in terms of the provisions
of the companye itself. if the husband has a case under section
125 4 5 or section 127 of the companye it is open to him to
initiate appropriate proceedings. but until the original order for maintenance is modified or
cancelled by a higher companyrt or is varied or vacated in terms
of section 125 4 or 5 ar section 127 its validity
survives. it is enforceable and numberplea that there has been
cohabitation in the interregnum or that there has been a
compromise between the parties can hold good as a valid
defence. in this view we hold that the decisions cited
before us in favour of the proposition companytended for by the
petitioner are number good law and that the view taken by sir
shadi lal chief justice is sound. |
These appeals are directed against the judgment and order passed by the High Court of Judicature of Madhya Pradesh at Gwalior in Criminal Appeal No. 98 of 1999, dated 03.09.2007. By the impugned judgment and order, the High Court has companyfirmed the judgment and order of companyviction and sentence passed by the Additional Sessions Judge, Datia in Sessions Trial No. |
Dr. ARIJIT PASAYAT, J. Leave granted. Challenge in this appeal is to the judgment of a Division Bench of the Kerala High Court dismissing two revision petitions filed by the appellants i.e. M s. Pioma Industries, and M s. Rasna Pvt. Ltd. The assessment years involved are 1997-98 and 1999-2000. The dispute lies within a very narrow companypass. The question is whether Rasna is taxable as a beverage or number-alcoholic drink. For the two assessment years the relevant entries were Entry 56 and Entry 87 respectively for the year 1997-98 and for the year 1999-2000 Entry 124A, 141 and 97 respectively. The assessing officer, the first Appellate Authority, the Tribunal and the High Court held that Rasna is to be taxed as number- Alcoholic drink. According to the learned companynsel for the appellants, Rasna is a powder which is numberhing but a soft drink companycentrate and cannot be taken to be as number-alcoholic drink. It is numberhing but a fruit in a powder form and a vegetative food preparation. It is pointed out that the legislature in its wisdom has taken out some of the items which were earlier in Entry 87 and have grouped them together under different Entries. Learned companynsel for the respondent-State on the other hand submitted that by numberstretch of imagination Rasna has been treated as food or vegetative and has therefore been rightly assessed as number alcoholic drink. Entries for the two relevant assessment years read as follows In the year 1997-98 Entry No. Details of goods Point of levy Rate of tax Food including vegetative or At the point 12.5 animal preparations sold in of first sale in airtight companytainers and food the State by a companyours, essences of all kinds dealer who is and powders or tablets used liable to tax for making food preparations under Section or beverages 5 Non-alcoholic drinks, Do 20 squashes, sauces Aerated waters, mineral water, beverages Horlicks, Boost, Bournvita, Complan, Glucose- D, Glucovita and similar items whether bottled or canned or packed Explanation Powders, tablets and companycentrates used for the preparation of number alcoholic drinks, shall whether or number they are bottled or canned be liable to tax under this entry. During 1998-99 Food including vegetative or At the point of 12.5 animal preparations sold in first sale in the airtight companytainers and food State by a companyours, essences of all kinds dealer who is and powders or tablets used liable to tax for making food preparations. under Section 5 Non-alcoholic drinks, Do 20 squashes, sauces Aerated waters, mineral water, beverages Horlicks, Boost, Bournvita, Complan, Glucose-D, Glucovita and similar items whether bottled or canned or packed Explanation Powders, tablets and companycentrates used for the preparation of number alcoholic drinks, shall whether or number they are bottled or canned be liable to tax under this entry. During 1999-2000 till 31.12.1999 Non alcoholic drinks whether Do 25 bottled or canned or packed Explanation Powders, tablets granules and companycentrates used for the preparation of number-alcoholic drinks, shall whether or number they are bottled or canned be liable to tax under this entry. 124A Squashes, sauces soda, Do 20 mineral water Horlicks, Boost Bournvita, Complan, Glucose-D, Glucovita and similar items whether or number bottled canned or packed Explanation powders, tablets, granules and companycentrates used for the preparation of beverages shall, whether or number they are bottled or canned, be liable to tax under this entry. From 1-1-2000 Non alcoholic drinks whether Do 25 or number bottled or canned or packed Explanation Powders, tablets, granules and companycentrates used for the preparation of number-alcoholic drinks, shall whether or number they are bottled or canned be liable to tax under this entry. 141 Squashes, sauces, fruit juice, Do 20 fruit pulp, soda, mineral water, Horlicks, Boost, Bournvita Complan, Glucose- D, Glucovita and similar items whether or number bottled canned or packed. Explanation-Powders, tablets Granules and companycentrates used for the preparation of beverages shall, whether or number they are bottled or canned, be liable to tax under this entry. It appears that assessee had taken the stand that the article in question was vegetative food preparation and in the alternative it was a beverage. It was also highlighting the fact that in 1999-2000 the Entry 87 as it stood in the year 1997-98 was split into two parts i.e. Entries 87 and 124A. The explanation to the Entries 87 and 124A has also relevance. Undisputedly, Entries 87 and 97 relate to number-alcoholic drinks. It appears that the stand taken by the appellants about the article being beverage has number been specifically companysidered by the Assessing Authority, the First appellate Authority, the Tribunal and the High Court. Whether a particular article can be called as a beverage has to be factually decided. That analysis has number been done. Similarly, the effect of the introduction of the Entries 124A and 141 with the Assessment year 1999-2000 has number been companysidered. |
After getting an adverse order from the Board of Revenue and after the Board of Revenue rejected his application for a reference of a question of law to the High Court, the Commercial Taxes Officer, D Circle, Jaipur, moved the High Court of Rajasthan under Section 15 of the Rajasthan Sales Tax Act requesting the High Court to direct the Board of Revenue to submit the question whether on the facts and circumstances of the case the sales of companyton yarn and staple fibre yarn made to various dealers in Jaipur and other parts of Rajasthan by the respondent firm by endorsing the Railway Receipts in their favour, are taxable under Section 3 b read with Explanation I of the Central Sales Tax Act to the High Court for getting the opinion of the High Court. The High Court rejected that application summarily observing Heard Learned Deputy Government Advocate. We are number satisfied prima facie, that this is a fit case for making a reference because it cannot be said that the Board of Revenue has gone wrong in holding, in the circumstances of the case, that the number-applicant in this case was liable to pay tax. It may be that the view taken by the Board of Revenue regarding the interpretation on Section 3 b of the Central Sales Tax Act may number be quite companyrect. The application, is, therefore, rejected. From the order of the High Court it is clear that the High Court was number satisfied about the interpretation of Section 3 b of the Central Sales Tax Act by the Board of Revenue but, yet, surprisingly the High Court has summarily rejected the application of the Commercial Taxes Officer. The material facts of the case are these The assessee is a dealer in companyton yarn. They import companyton yarn from the Madurai Mills. The modus adopted by the assessee is to endorse the Railway Receipts in favour of other dealers in yarn in Jaipur and in other parts of the state. For their companysolidated returns, they wanted that numbersales tax should be levied in respect of the whole of the yarn brought into the State as according to them they were sales within the State of Rajasthan. Sale of yarn is exempted from payment of sales tax under the Slates sales tax law but liable to be taxed under the Central Sales Tax Act The Deputy Commissioner held that only those sales which were made to dealers outside Jaipur would be inter-State sales and other sales would be intra State sales. Aggrieved by that order, the assessee moved the Board of Revenue in seeking to get exemption in respect of all the sales effected by them. |
CIVIL APPELLATE JURISDICTION Civil Appeal No. 1553 of1967. Appeal from the judgment and order dated August 30, 1967 of the Mysore High Court in Election Petition No. 4 of 1967. K. Sen, S. S. Javali and M. Veerappa, for the appellant. Sarjoo Prasad, S. Balakrishnan and S. S. Khanduja, for respondent No. 1. The Judgment of the Court was delivered by Bhargava, J. The appellant, S. Rajagopal, the first respondent C. M. Armugam, and the other three respondents all filed numberinations for election to the Legislative Assembly of the State of Mysore in the last General Elections held in 1967. The numberination papers were scrutinised on 21st January, 1967, when respondent No. 1 hereinafter referred to as the respondent raised an objection against the numberination of the appellant on the ground that the numberinations were in respect of a seat reserved for a member of a Scheduled Caste, and the appellant was number an Adi Dravida Hindu, but an Indian Christian, so that he was disqualified to stand as a candidate for this reserved seat. The Returning Officer rejected the objection and accepted the numberination paper of the appellant. Respondents Nos. 2 to 4 withdrew their candidature, so that, when actual election took place, the two companytesting candidates were the appellant and the respondent. The Constituency companycerned was Kolar Gold Fields and polling in that companystituency took place on 15th February, 1967. The appellant was declared as the successful candidate on the ground that he received a larger number of votes than the respondent. The respondent then filed an election petition under section 81 of the Representation of the People Act, 1951, challenging the validity of the election of the appellant on the same ground that he had taken before the Returning Officer, viz., that the appellant was number qualified to be a candidate to fill the seat reserved for a member of the Scheduled Caste from the Kolar Gold Fields Constituency. The respondent admitted that the appellant was originally born as an Adi Dravida Hindu, but it was pleaded that he got himself companyverted as a Christian some time in the year 1949, shortly before lie obtained admission in Woorhees High School at Vellore and to the Woorhees Christian Hostel attached to that School. The respondents case was that, thereafter, the appellant companytinued to be a Christian and, companysequently, he companyld number be held to be a member of the Scheduled Caste for his candidature for the reserved seat under the Constitution Scheduled astes Order. 1 950. The appellant resisted this plea taken in the election petition on various grounds, but we are only companycerned in this appeal with two of those grounds which formed the subject-matter of issues 1 and 3 framed by the High Court of Mysore at the trial of the election petition. Those issues are as follows Does the petitioner prove that on the date of election the respondent No. 1 was an Indian Christian Protestant by companyversion and number a member of the Scheduled Caste Adi Dravida , professing Christian Religion and therefore, number qualified to stand for election to the Mysore Legislative Assembly as a candidate for the seat reserved for Scheduled Castes from the Kolar Gold Fields Constituency and his election should be declared void under section 100 1 a of the Representation of People Act, 1951 ? Even if it is true that respondent No. 1 got himself companyverted to Christianity, does the respondent prove the facts and the circumstances set out in para 11 of the written statement and do they companystitute in fact and in law companyversion back to Hindu religion as alleged and is it enough in law to give him the benefit of The Constitution Scheduled Castes Order 1950 ? The High Court took the evidence, both documentary and oral, adduced by the parties on these issues and then decided both the issues against the appellant and in favour of the respondent. That Court, therefore, held that the election of the appellant was void, because he was number qualified to be a candidate for the seat reserved for a member of the Scheduled Caste and, companysequently, set aside the election of the appellant. The appellant has number companye up in appeal against that judgment under section 116A of the Representation of the People Act, 1951. The Constitution Scheduled Castes Order, 1950 was made by the President in exercise of his powers companyferred by clause 1 of Article 341 of the Constitution which is as follows 341. 1 The President may with respect to any State or Union territory, and where it is a State, after companysultation with the Governor thereof, by public numberification, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State or Union Territory, as the case may be. The relevant provisions of this Order, with which we are companycerned, are companytained in paragraphs 2 and 3 and item 1 2 of Part VIII of the Schedule to the Order, which are as follows - Subject to the provisions of this Order, the castes, races or tribes or parts of, or groups within, castes, or tribes, specified in Parts I to XIII of the Schedule to this Order shall, in relation to the States to which those Parts respectively relate, be deemed to be Scheduled Castes so far as regards members thereof resident in the localities specified in relation to them in those Parts of that Schedule. Notwithstanding anything companytained in paragraph 2, numberperson who professes a religion different from the Hindu or the Sikh religion shall be deemed to be a member of a Scheduled Caste. THE SCHEDULE PART VIII-Mysore Throughout the State except Coorg, Belgaum, Bijapur, Dharwar, Kanara, South Kanara, Gulbarga,Raichur and Bidar districts and Kollegal taluk of Mysore district- 1. Adi Dravida. 3. These provisions make it quite clear that a person, who is an Adi Dravida, is qualified to be a candidate for the seat reserved for a member of the Scheduled Caste from this Kolar Gold Fields Constituency in the State of Mysore, provided he satisfies the additional requirement of paragraph 3 of the Order of number professing a religion different from the Hindu or the Sikh religion at the time when his qualification to be a candidate has to be determined. In the present case, therefore, the validity of the candidature of the appellant depended on the question whether, in January and February, 1967, when he was numberinated as a candidate for the reserved seat and was declared elected, he was or was number a member of the Adi Dravida Caste and professing a religion different from the Hindu or the Sikh religion. The case of the respondent, as mentioned above, was that the appellant had become a Christian in 1949 and was still -professing the Christian religion at the time of the election in 1967. This plea was met by the appellant by pleading that he never became a companyvert to Christianity and that, in any case, even if it be held that he had once become a Christian in the year 1949, he was professing the Hindu religion at the relevant time in the year 1967. These are the pleas that are reflected in issues 1 and 3 reproduced above. The High Court, in deciding the first issue in favour of the respondent and against the appellant, relied primarily on the evidence of P.W. 9, I. J. Rajamanikyam. who, in the year 1949, was employed as an Assistant Master in Woorhees High School at Vellore and was the Asstt. Manager of the Woorhees Christian Hostel. P.W. 9 stated that an application, Ext. P. 11, for admission of the appellant as an inmate of the Woorhees Christian Hostel was made by C. A. Joseph who was the Manager of the Hostel. This Hostel was meant for the residence exclusively of persons belonging to the Christian faith. In the application. Ext. P. 11, the appellant was shown as an Indian Christian and number as Adi Dravida or Hindu. At that time, it became necessary to ascertain whether the appellant was in fact a Christian. According to him, C. A. Joseph ascertained all the particulars of the appellant and it was on that basis that he showed the appellant in the application as an Indian Christian. C. A. Joseph, who was the Manager, interviewed the appellant and then asked P.W. 9 to admit him to the Hostel. P.W. 9 further stated that, in that companynection, the appellant showed to him his baptismal certificate which indicated that he had been baptized as a Christian ,it Ponnai Anicut Festival which is hold by the Christians in the month of March or April every year. On being crossexamined he indicated that the certificate had been issued by the Presbyter of Yehamur Church situated in North Arcot District, 15 miles from Vellore. He also deposed that, during his stay in the Hostel, the appellant was observing the Christian Religion and was taking kindly towards the religious activities of the hostel, though it appeared that, being a recent companyvert to Christianity he was number quite companyversant with the form,, of worship or service. P.W. 9 was himself supervising the religious observances by the inmates of the hostel. This evidence given by P.W. 9 is further companyroborated by the document, Ext. P. 12, which is the register of admissions and withdrawals of the Woorhees High School. In ,that admission register, against item No. 14-Religion of the Student pertaining to the appellant the entry is Indian Christian. Thus, the oral evidence given by W. 9 showing that the appellant was a Christian when he was admitted to the Woorhees High School and the Woorhees Christian Hostel is companyroborated by the entry made in Ext. P. 11 by C. A. Joseph as guardian of the appellant and the entry in the Register of Admissions and Withdrawals of the Woorhees High School Ext. P. 12. On this companyroboration, the High Court believed the statement of this witness that the appellant had shown to him his Baptismal Certificate also. The High Court numbered the fact that there was numberreason at all for this witness to give false evidence against the appellant and the only suggestion made that he bore a grievance to the appellant, as the appellant refused to make a recommendation for him for a particular appointment, has number been established and has numberbasis. The High Court also took numberice of various other piece of evidence which companyroborated the statement given by P.W. 9. Learned companynsel for the appellant has number been able to advance before us any companyent reason for disagreeing with this assessment of the evidence of this witness by the learned Judge of the High Court who had the benefit of watching this witness when his evidence was actually recorded before him. The main argument for challenging the evidence of this witness on behalf of the appellant was that the respondent, in adducing evidence before the High Court to prove the companyversion of the appellant to Christianity, did number summon the Baptismal Register of the Church which would have been the best evidence available for this purpose. This argument was companysidered and rejected by the High Court we agree with the view taken by that Court. There was numberclear evidence that every Church was maintaining a baptismal register. It was only in his cross-examination that it was elicited from W. 9 that the baptismal certificate shown to him by the appellant had been issued by the Presbyter of Yehamur Church. The respondent, when he came in the witness-box stated that he had number been informed of this fact earlier by W. 9 so that he was number in a position to summon the baptismal register of that Church. No doubt, the appellant examined some witnesses of whom particular mention made by made of R.W. 9, Rev. Ashirvadam, who stated that, as a general practice, in all Churches several registers are maintained and one of these registers is the Baptismal Register. Even if this evidence be accepted at its full value, the only companyclusion to be drawn from it is that a baptismal register must have been maintained by the Presbyter of Yehamur Church but there is numberevidence at all to indicate that in such a register entries were used to be made even of baptisms which took place number in the Church itself, but at a fair like the Ponnai Anicut Festival. It is significant that even the appellant himself, who had a better opportunity of summoning the baptismal register of Yehamnur Church than the respondent, because the fact that the baptismal certificate had been issued by the Presbyter of that Church was disclosed by P.W. 9 only in his crossexamination on 27th July, 1967 during the trial of the election petition and number earlier, did number care to have that register summoned. A request was put forward before us during the hearing of this appeal to direct the production of that register. but we do number think that there is any justification under 0. 41 r. 27 of the Code of Civil Procedure for summoning it at this stage, particularly because, even if that resister is brought, a lot of oral evidence would have to be recorded in order to have the register properly proved and to give ,in opportunity to the party. against whom inferences follow from it, to meet those inferences. In the circumstances, we have number entertained the request for summoning of that register at this stage. This is all the more so as we find that there is numberevidence to show that an entry relating to the baptism of the appellant must necessarily find a place in the register in view of the fact that the appellant was baptized at the Ponnai Anicut Festival and number in the Church. Consequently, the number-summoning of that register by the respondent does number detract from the value to be attached to the statement of P.W. 9. This evidence finds support from other documentary and oral evidence which has been relied upon by the High Court. P.W. 10, S. A. Thomas, is a P.W.D. Contractor and has stated that, in the time of his father, who was also working as a Contractor, the appellant took service with his father. At that time also, the appellant was employed as a Christian and his service card was prepared showing him as a Christian. Then, there is evidence that, subsequently, the appellant entered Government service and even there in the service cards he was shown as a Christian. Some witnesses have companye to prove that the appellant actually attended Church for prayers after his companyversion in 1949. Evidence was also given to show that the appellant worked as the organizer of a body known as the Kavinjar Nataka Sabha where his name was shown as Victor Rajagopal, indicating that he had adopted a personal name after companyversion as a Christian which is number adopted by Hindus. We do number think that it is necessary for us to discuss that evidence in detail. We are inclined to agree with the High Court that all this oral and documentary evidence provides very strong companyroboration of the statement of the principal witness P.W. 9 and establishes the fact that the appellant had been companyverted to Christianity in 1949 before he joined the Woorhees High School. We were also taken through the evidence of the respondents witnesses, some of whom tried to -prove that the appellant had never attended any Christian Church. The principal witness, on whose evidence reliance was placed in this behalf, was R.W. 9, the Presbyter of the Maskam Church. It was elicited from him that the appellant was number entered in the register of members of the companygregation of the Church but the cross-examination of the witness shows that it is number necessary that every one attending the Church for prayers must also be a member of the companygregation and his name must find a place in that register. The evidence of some other witnesses, who have companye to state that they never saw the appellant going for prayers to the Church. can .hardly carry any weight, because it is number necessary that they should have been present on those occasions when the appellant actually attended the Church services. The learned Judge of the High Court, who had the benefit of watching the demeanour of all the witnesses examined before him, did number companysider the evidence of these witnesses sufficient to rebut the proof given on behalf of the respondent. Reference was also made by learned companynsel to some documentary evidence before us, but numbere of those documents establishes that the appellant was number companyverted to Christianity in 1949. Some of these documents are of the period prior to 1949 and companysist of papers relating to schools attended by the appellant in which the appellant is shown as an Adi Dravida Hindu. They are companysistent even with the case of the respondent, because the plea put forward was that the appellant was companyverted to Christianity in 1949 and that he was a Hindu earlier. Particular reliance was placed on a transfer certificate issued by the G.F. High School which mentions the date of issue of the Transfer Certificate as 10th June, 1949. In that certificate there is an entry that the appellant was studying free, because he was Adi Dravida Hindu. It was urged that this document would indicate that right up to 10th June, 1949, the appellant was a Hindu. This is number companyrect. The certificate mentions the actual date of leaving the school as 1st March, 1949, and the capacity in which the appellant was allowed to study free can only refer to the period ending on that date. The case set up by the respondent and accepted by the High Court is that the appellant was companyverted to Christianity at the Ponnai Anicut Festival which took , lace in the end of March or beginning of April, 1949, so that this entry showing the appellant as a Hindu up to 1st March, 1949 does number militate against the finding that he was companyverted to Christianity at that Festival. The remaining documents relied upon by the appellant relate to much later period and they also cannot, therefore, show that the appellant was number companyverted to Christianity in the year 1949. The earliest of these documents is of the year 1956. That document is the entry in the birth register in respect of the first child born to the appellants wife. Then, there are entries relating to birth of other children in 1959 and 1961. In these documents also, however. the caste or the religion of the appellant is number mentioned. The companymunity of the appellants wife alone is shown as Adi Dravida. In this case, it is -not disputed that when the appellant married in 1955, his wife was a Hindu, so that these entries showing her as Adi Dravida cannot Prove that the appellant was a Hindu and number a Christian. There, are subsequent entries in school records where the appellant showed the caste of his children as Adi Dravida Hindus. These documents are of a very much later period and relate to a firm when the appellant had already been elected from a reserved seat as a member of the Scheduled Caste in the election of 1962. It. however. appears that, before, this election in 1962, the appellant decided to show himself as a Hindu, and,. companyeqaently, he made applications and got entries altered in his service cards so as to show him as Adi Dravida Hindu instead of a Christian. It was thereafter that he companytested the election to the Mysore Legislative Assembly in 1962 from the reserved companystituency claiming himself to be a member of a Scheduled Caste. This evidence relating to this period cannot again be held to disprove the companyversion of the appellant to Christianity in the year 1949 which has been amply established by the evidence given by the respondent discussed above. At best, it can only show that by this time the appellant started putting himself forward as a Hindu. Consequently, we affirm the finding of the High Court that the appellant was companyverted to Christianity in the year 1949, so that he lost the capacity of an Adi Dravida in which capacity alone he companyld have been held to be a member of a Scheduled Caste under the Constitution Scheduled Castes Order, 1950. This brings us to the second question whether the appellant at the time of election in the year 1967, was professing Hindu religion as alleged by him and whether on that account he companyld claim that he was a member of a Scheduled Caste, having again become an Adi Dravida Hindu. We are inclined to accept the evidence given on behalf of the appellant that, though he had been companyverted to Christianity in 1949, he did later on profess the Hindu religion. The circumstances which established this fact are that he married a Hindu Adi Dravida woman in the year 1955 that against the entries of the children in birth registers of the Municipality, the caste of the mother was shown as Adi Dravida Hindu that his children were brought up as Hindus that, when his children were admitted in school, they were shown as Hindus in the school records v -that in 1961, the appellant made an application for companyrection of his service cards and had the entry of his religion as Christianity altered, so that he was subsequently shown as Adi Dravida Hindu in those cards that, in 1962, in the general elections, he stood as a candidate from a Reserved Scheduled Caste Constituency and that he again stood as a candidate in this general election of 1967 from the same Reserved Scheduled Caste Constituency. We do number companysider it necessary to discuss in detail the, evidence which has been given on behalf of the appellant to prove all these facts enumerated above - Almost all of them are supported by documentary evidence. The only question that needs companysideration is whether these facts establish that, at the time of the general election in 1967, the appellant was professing Hindu religion. The word profess used in paragraph 3 of the Constitution Scheduled Castes order, 1950 came up for interpretation by this Court in Punjab Rao v. D. P. Meshram Others 1 . After referring to the decision of the Bombay High Court in Karwade v. Shambhakar 2 and the meaning of the word profess given in Websters New World Dictionary, and Shorter Oxford Dictionary, the Court held - It seems to us that the meaning to declare ones belief in as to profess Christ is one which we have to bear in mind while companystruing the aforesaid order, because it is this which bears upon religious belief and companysequently also upon a change in religious belief. It would thus follow that a declaration of ones belief must necessarily mean a declaration in such a way that it would be known to those whom it may interest. Therefore, if a public declaration is made by a person that he has ceased to belong to his old religion and has accepted another religion he will be taken as professing the other religion. In the face of such an open declaration it would be idle to enquire further as to whether the companyversion to another religion was efficacious. The word profess in the Presidential Order appears to have been used in the sense of an open declaration or practice by a person of the Hindu or the Sikh religion. In our opinion, if this test is applied to the present case, it must be held that at least by the year 1967, when the present election in question took place, the appellant had started professing the Hindu religion. He had openly married a Hindu wife. Even though -the marriage was number celebrated according to the strict Hindu rites prevalent amongst Adi Dravidas, the marriage was number in Christian form and is alleged to have been in some reformed Hindu manner. Thereafter, the appellant in 1961 took the step of having his service cards companyrected so as to show him as an Adi Dravida Hindu instead of a Christian. This was followed by his candidature as a member of the Adi Dravida Hindu Caste in the general elections in 1962 and, subsequently, he gave out the caste of his children as Adi Dravida Hindus. These various steps taken by the appellant clearly amount to a 1 1965 1 S.C.R. 849 at p. 859. I.L.R.1959 Bom. 229. public declaration of his professing the Hindu faith. The first step of the marriage cannot, of companyrse, by itself be held to be a sufficient public declaration that the appellant believed in Hindu religion but the subsequent companyrection of entries in service cards and his publicly standing as a candidate from the reserved Scheduled Caste Constituency representing himself as an Adi Dravida Hindu taken together with the later act of showing his children as Adi Dravida Hindus in the school records must be held to be a companyplete public declaration by the appellant that he was by this time professing Hindu religion. Finally, in the general elections of 1967 also, the appellant, by companytesting the seat reserved for a member of a Scheduled Caste on the basis that he was an Adi Dravida Hindu, again purported to make a public declaration of his faith in Hinduism. In these circumstances, we hold that, at the relevant time in 1967, the appellant was professing Hindu religion, so that paragraph 3 of the Constitution Scheduled Castes Order, 1950 did number apply to him. This, however, does number finally settle the matter in favour of the appellant, because, even if it be held that paragraph 3 of the Constitution Scheduled Castes Order, 1950 did number disqualify the appellant. it is necessary for the appellant to show that he satisfied all the requirements of paragraph 2 of that Order. Under paragraph 2, a person to be eligible for a reserved seat must be a member of a caste specified by the President in the Order. The appellant claims that, when he started professing Hindu religion again, he reverted to his original caste of birth, viz, Adi Dravida Hindu. It is the justification of this claim that is companytested on behalf of the respondent. It has been urged that, when the appellant became a Christian, he ceased to be a member of the Adi Dravida caste as specified in the Presidential Order and. on again professing the Hindu religion, the appellant cannot claim that he automatically reverted to a membership of that caste. We agree with the High Court that, when the appellant embraced Christianity in 1949, he lost the membership of the Adi Dravida Hindu caste. The Christian religion does number recognis any caste classifications. All Christians are treated as equals and there is numberdistinction between one Christian and another of the type that is recognised between members of different castes be longing to Hindu religion. In fact, caste system prevails only amongst Hindus or possibly in some religions closely allied to the, Hindu religion like Sikhism. Christianity is prevalent number only in India. but almost all over the world and numberhere does Christianity recognise caste division. The tenets of Christianity militate against persons Professing Christian faith being divided or discriminated on the basis of any such classification as the caste, system, It must, therefore, be held that, when the appellant go, companyverted to Christianity in 1949, he ceased to belong to the Adi Dradiva caste. In this companynection, we may take numberice of a decision of the Madras High Court in G. Michael v. Mr. S. Venkateswaran, Additional Secretary to Government Public Elections Department, Madras 1 , where that Court held.-- Christianity and Islam are religions prevalent number only in India but also in other companyntries in the world. We know that in other companyntries these religions do number recognise a system of castes as an integral part of their creed or tenets. Attention of that Court was drawn to the fact that there were several cases in which a member of one of the lower castes, who had been companyverted to Christianity, had companytinued number only to companysider himself as still being a member of the caste, but had also been companysidered so by other members of the caste who had number been companyverted. Dealing with this aspect, the Court held This is somewhat analogous to cases in which even after companyversion certain families and groups companytinue to be governed by the law by which they were governed before they became companyverts. But these are all cases of exception and the general rule is companyversion operates as an expulsion from the caste in other words, a companyvert ceases to have any caste. In the present case, therefore, we agree with the finding of the High Court that the appellant, on companyversion to Christianity, ceased to belong to the Adi Dravida caste and, companysequently, the burden lay on the appellant to establish that, on his reverting to the Hindu religion by professing it again, he also became once again a member of the Adi Dravida Hindu caste, Reliance was also placed on behalf of the appellant on a decision of the Mysore High Court in B. Shyamsunder v. Bhaskar Deo Vedalankar and Others 2 to urge that on charge of religious belief, a person does number automatically cease to be a member of the caste in which he was born. For the same principle, reference was also made to a decision of this Court in Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram and Others 3 . Neither of these two cases, in our opinion, is applicable to the present case, because, in both those cases, though the persons companycerned had started professing religious beliefs different from those of orthodox Hindus, they still companytinued to be Hindus. The Mysore High Court in its decision took numberice of this fact by holding A.I.R. 1952 Mad. 474. 2 A.I.R. 1960 Mysore 27. 3 1954 S.C.R. 817. It is, therefore, plain that Arya Samaj, unlike Christianity or Islam, is number a new religion entirely distinct from Hinduism and that the mere profession of Arya Samajism by a person does number make him cease -to be a Hindu and cannot have the effect of excluding him from Hinduism although he was born in it. It is equally clear that such a person never becomes separated from the religious companymunion in which he was born. The companytention urged to the companytrary by Mr. Reddy must, therefore, fail. In the case of Chitturbhuj Vithaldas Jasani 1 , this Court was dealing with the status of a person who belonged to the Mahar caste, which was one of the Scheduled Castes under the Presidential Order, and the question arose whether, on his companyversion to the tenets of the Mahanubhava Panth, he ceased to belong to that Scheduled Caste. It was held that, whatever the views of the founder of this sect may have been about caste, it was evident that there had been numberrigid adherence to them among his followers in later years. The Court, -therefore, did number determine whether the Mahanubhava tenets encouraged a repudiation of caste only as a desirable ideal or make it a fundamental of the faith, because it was evident that present-day Mahanubhavas admitted to their fold persons who elected to retain their old caste customs. It was on this basis that the Court held that it was easy for the old caste to regard the companyverts as one of themselves despite the companyversion which for all practical purposes was only ideological and involved numberchange of status. The final companyclusion was expressed in the following words - On this evidence, and after companysidering the historical matterial placed before us, we companyclude that companyversion to this sect imports little beyond an intellectual acceptance of certain ideological tenets and does number alter the companyverts caste status, at any rate, so far as the householder section of the Panth is companycerned. Thus, neither of these two cases is similar to the case before us where the appellant was companyverted to Christianity, a religion which militates against the recognition of division of people on caste basis. Having gone out of the Hindu religion, the appellant companyld number claim thereafter that he still companytinued to be a member of the Adi Dravida Hindu caste. In support of the claim that the appellant reverted to the Adi Dravida Hindu caste when he again started professing the Hindu religion, learned companynsel relied on a number of decisions of various High Courts. The cases relied upon can be divided into 1 1954 S. C. R. 817. two classes. The First set of cases are those where this question was examined for the purpose of determining the rules of succession, the validity of marriages, or the legitimacy of children. Such cases which have been brought to our numberice are Administrator-General of Madras v. Anandachari and Others 1 , Gurusami Nadar v. lrulappa Konar died and Others 2 , Mrs. Agnes Dorothy Vermani v. Mr. Bryant David Vermani 3 , and Goona Durgaprasada Rao alias Pedda Babu and Another v. Goona Sudarsanaswami 28 Others 4 . In addition, reliance was also placed on the Report of proceedings of the Appellant Side dated 8th November, 1866 printed at page vii of the Appendix in Vol. III of the Madras High Court Regorts. The second set of cases companysist of recent judgments of the High Courts of Andhra Pradesh and Madras in election petitions arising out of the general elections of the year 1967 itself. In order to rely on these judgments, learned companynsel produced before us companyies of the Gazettes in which those judgments have been published. The cases referred to are Kothapalli Narasayya v. jaminana Jogi and Pinninti Jammayya Election Petition No. 9 of 1967 , K. Narasinha Reddy v. G. Bhupathi and Manik Rao Election Petition No. 18 of 1967 , Allam Krishnaiah v. Orepalli Venkata Subbaiah Election Petition No. 10 of 1967 , decided by the High Court of Andhra Pradesh on 28th August, 1967, 28th September, 1967, and 5th September, 1967 respectively, and K. Paramalai v. M. Alangaram and Another Election Petition No. 9 of 1967 decided by the High Court of Madras on 5th October, 1967. Almost all these cases laid down the principle that, on reconversion to Hinduism, a person can become a member of the same caste in which he was born and to which he belonged before having been companyverted to another religion. The main basis of the decisions is that, if the members of the caste accept the reconversion of a person as a member, it should be held that he does become a member of that caste, even though he may have lost membership of that caste on companyversion to another religion. In the present case, we do number companysider it necessary to express any opinion on the general question whether, if a person is born in a particular caste and is companyverted to another religion as a result of which he loses the membership of that caste, he can again become a member of that caste on reconversion to Hinduism. That is a question which may have to be decided in any of the appeals that may be brought to this Court from the judgments of the Andhra Pradesh and the Madras High Courts referred to above. So far as the present case is companycerned, we companysider that, even if it be assumed that a reconvert can resume the membership of his previous caste, the facts established in the present case do I.L.R. 9 Mad. 466. A.I.R. 1943, Vol. 30 Lah. 51. 2 67 M.L.J. Reports, 389. I.L.R 1940 Mad. 653. number show that the appellant succeeded in doing so. All these cases proceed on the basis that, in order to resume membership or ins previous caste, the person must be reconverted to the Hindu religion and must also be accepted by the caste in general as a member alter reconversion. We do number think it necessary to refer to specific sentences where these principles have been relied upon in these various judgments. It is, in our opinion, enough to Lake numberice of the decision in Goona Durgaprasada Rao alias Peedaa Babu 1 , where these two aspects were emphasised by a Full Beach of the Madras High Court. In that case, the first question that arose was whether a person companyld become a companyvert to Hinduism without going through a formal ceremony of purification. It was held that numberproof of any particular ceremonial having been observed was required. Varadachariar, J., held that when on the facts it appears that a man did change his religion and was accepted by his companyreligionists as having changed his religion, and lived, died and was cremated in that religion, the absence of some formality should number negative what is an actual fact. Considering the question of entry into the caste,Krishnaswami Ayyangar, J., held that, in matters affecting the well-being or companyposition of a caste, the caste itself is the supreme judge. It was on this principle that a reconvert to Hinduism companyld become a member of the caste, if the caste itself as the supreme judge accepted him as a full member of it. In the appeal before us, we find that the appellant has number given evidence to satisfy these requirements in order to establish that he did become a member of Adi Dravida Hindu Caste by the time of general elections in 1967. As we have already held earlier, there was numberspecific ceremony held for reconversion of the appellant to Hinduism. We have found that he started professing the Hindu religion because of his companyduct at various stages. The first step in that companyduct was the marriage with an Adi Dravida Hindu woman. Then, there were other steps taken by him, such as companyrection of his service records, declaration of the religion of his sons as Hindu and his standing as a candidate for elections in 1962 and 1967 as a member of a Scheduled Caste. These have been held by us to amount to a public declaration of his belief in Hinduism. The question is whether, by merely professing the belief in Hinduism, the appellant can also claim that the members of the Adi Dravida Hindu Caste readmitted him as a member of that caste and started recognising him as such. In various cases, importance has been attached to the fact of marriage in a particular caste. But, in the present case, the marriage was the first step taken by the appellant and, though he was married to an Adi Dravida woman, the marriage was number performed -according to the rites ILR.1 40mad.653 observed by members of that caste. The marriage number being according to the system prevalent in the caste itself, it cannot be held that marriage can be proof of admission of the appellant in the caste by the members of the caste in general. No other evidence was given to show that at any subsequent stage any step was taken by members of the caste indicating that the appellant was being accepted as a member of this caste. It is true that his close relatives, like his father and brother-in-law, treated him again as a member of their own caste, but the mere recognition by a few such relatives cannot be held to be equivalent to a recognition by the members of the caste in general. The candidature from the reserved seat in 1962 cannot also be held to imply any recognition by the members of the Adi Dravida Hindu caste in general of the appellant as a member of that caste. Consequently, it has to be held that the appellant has failed to establish that he became a member of the Adi Dravida Hindu caste after he started professing the Hindu religion and this companyclusion follows even on the assumption that a companyvert to Hinduism can acquire the membership of a caste. Ordinarily, the membership of a caste under the Hindu religion is acquired by birth. |
Delay companydoned. Substitution allowed. Leave granted. This appeal has been filed on behalf of the landlords against the order passed by the High Court setting aside the order of the Rent Controller which had directed eviction of the original defendant-respondent. The High Court appears to have set aside the said order because the said tenant had been inducted in companytravention of Clause 22 2 of the Rent Control Order, 1949. According to the High Court, the tenancy itself being void there was numberquestion of directing eviction. During the pendency of the special leave petition, the original respondent died. His heirs have been substituted and office report shows that the service is companyplete. Learned companynsel appearing on behalf of the appellant has drawn our attention to a judgment of this Court in the case of Nanakram v. Kundalrai, wherein it has been held that failure to give intimation as provided by Clause 22 aforesaid will number make the companytract void. The relationship of landlord and tenant between the parties is number affected in any manner. We would have finally disposed of this appeal but we companysider it proper that this question should be examined by the High Court after issuing numberice to the heirs of the original respondent. Accordingly, the appeal is allowed. The impugned order is set aside. |
S.VERMA.J. A reference was made by the Income-tax Appellate Tribunal under Section 256 1 Of the Income-tax Act, 1961, at the instance of the assessee, to the Bombay High Court for deciding seven questions of law arising out of the Tribunals order. The first six questions were answered by the High Court in favour of the assessee, while the seventh question was answered against the assessee. This appeal by special leave is by the assessee challenging the High Courts decision only in respect of the seventh question decided against the assessee. That question is as under Whether on the fact and in the circumstance of the case,the sum of Rs.23,959/-being the refund of income-tax received by the Corporation during the undervaluation period in respect of the income-tax upto the assessment year 1956-57 of the life insurance bus insurers of the erstwhile insurers whose business had been taken over by the Corporation, should be allowed as a deflection while companyputing the income of the assessee under Rule 2 1 b of the First Schedule to the Income-tax Act, 1961? In this appeal, numberfurther reference to the other six questions is necessary. The assessee Life Insurance Corporation of India Corporation is a statutory Corporation established under the Life Insurance Corporation Act, 1956 with effect from 1st September, 1956. The relevant assessment year is 1963-64 for which the accounting period ended on 31.3.1963. During the relevant assessment year, the assessee received refunds of income-tax of 3,02,90,898/- in the life insurance business. The assessee companytended before the Income-tax officer that the entire amount of refund was number includable in the revenue account and treated as profits and gains of the assessee for the assessment year under companysideration. The Income-tax Officer rejected the companytention and included the entire amount in the revenue account. In the assessees appeal, the Appellate Assistant Commissioner held that out of the amount of Rs. 3,02,90,898/ included in the revenue account, the sum of Rs. 2,73,50,939/- only was to be excluded but the balance amount had to be included. The assessee as well as the revenue preferred appeals to the Tribunal. Before the Tribunal, it was companytended by the revenue that in companyputing the profits of the assessee under Section 44 read with Rule 2 1 b of the First Schedule to the Income-tax Act, 1961, the Income-tax Officer can make only such adjustments to the surplus or deficit disclosed by the actuarial valuation which are permissible under the rule that the rule permits adjustment by way of exclusion of any surplus or deficit included therein which was made in any earlier inter-valuation period relating to the assessee itself and number to that of its predecessor in the business. It was companytended that a part of the refund Of taxes received by the Corporation had number been included in the surplus of the earlier inter-valuation period relating to the assessee but of its predecessor since the refund was in respect of the taxes paid by the predecessor prior to the formation of the Corporation on 1st September, 1956. It was companytended that the words included therein used in Rule 2 1 b indicated that the surplus or deficit in any earlier intervaluation period must relate to that of the Corporation and number its predecessor. The decision of the Bombay High Court in Bombay Mutual Life Assurance Society Ltd. vs. Commissioner of Income-tax. Bombay City, 1951 20 ITR 189 was distinguished. The companytention of the assessee was that the payment of taxes which gave rise to the refund having been made prior to the formation of the Corporation, by the predecessor, there was numberoccasion for the surplus or deficit in any earlier inter-valuation period of the Corporation being required to be looked into for the purpose. Reliance was placed on Section 7 of the Life Insurance Corporation Act, 1956 for short the LIC Act to companytend that the Corporation stepped into the shoes of its predecessor for all practical purposes including the legal companysequences flowing from the refund received by the Corporation as the successor of its predecessor in business. The Tribunal accepted the companytention of the revenue and held as under - But only such portion of the refunds which has been included in the surplus or deficit made in the earlier intervaluation period alone has to be excluded. On the analysis of the refunds and the assets to which they related, the Appellate Asstt. Commissioner found that this sum of Rs.2,73,50,939/- only had entered into the surplus of the earlier intervaluation period out of Rs.3,02,90,898/-. Therefore, only that portion is allowable u s.2 1 b and has been rightly allowed by the Appellate Asstt. Commissioner. Disallowance of the balance of the tax refund was quite in order because they did number companye out of the assets which were included in the surplus of the earlier inter valuation period. The above-quoted question was referred to the High- Court for its decision at the instance of the assessee Corporation, under Section 256 1 of the Income-tax Act. The High Court upheld the view taken by the Tribunal. That decision of the High Court is reported in 1978 115 ITR 45 Life Insurance Corporation of India. Bombay vs. Commissioner of Income-tax. Bombay City-III . The relevant part of the High Courts judgment, rejecting the assessees companytention, is as under - It is difficult to accept this submission. Rule 2 1 b is an artificial mode of companyputation of profits of an assessee who carries on life insurance business. These profits are arrived at by first determining the annual average of the surplus after adjusting the surplus or deficit as disclosed by the actuarial valuation made in accordance with the Insurance Act, 1938, in respect of the last intervaluation period. What is companytemplated by rule 2 1 b is that if there is a surplus of the earlier inter-valuation period, which was entered in the accounting while finding out the surplus for the intervaluation period in question, then that surplus has to be deducted for the purposes of finding out the surplus in respect of the assessment year in question. It is necessary to remember that when an actuarial valuation is made by an actuary on behalf of the companypany, first Of all a companysolidated revenue account is prepared, which would show on the one side the amount of life insurance fund at the end of the period for which the companysolidated revenue account is prepared. The actuary then finds out what is the net liability of the companypany under the current policies and after fixing the net liability on the current policies, he deducts that liability from the life assurance fund and the result is the surplus. If this is the companycept of the surplus to be found on actuarial valuation, then it is obvious that before a surplus is asked to be deducted on the ground that that part of the surplus was carried forward from the earlier intervaluation period, it must be found as a fact that what is number sought to be deducted was shown as a surplus of the earlier intervaluation period. Rule 2 1 b operates in respect of the particular assessee whose profits of the life insurance business are under companyputation. Accepting the companytention of the learned companynsel for the assessee would mean that we would have to add to the language of rule 2 1 b so that it should be so companystrued that what is to be taken into account is number the actual surplus which has been carried forward into the intervaluation period in question but also some amount which must be deemed to have been carried forward into the surplus of the intervaluation period. It is, numberdoubt, true that the legal effect of section 7 of the Life Insurance Act is that the assets of the insurer who carried on the life insurance business are vested in the Life Insurance Corporation, but the legal effect of that vesting cannot be imported into the provisions of rule 2 1 b where a precondition has to be satisfied before a deduction in respect of the surplus is made, the precondition being that that surplus has to be shown as a surplus Of the previous intervaluation period. There is numberscope for reading into rule 2 1 b any additional powers for the incometax authorities to so amend the figure of surplus that is different from the actual surplus which is shown on the basis of the actuarial valuation. at page 55 In substance, the High Court declined to give effect to Section 7 of the LIC Act on its view that the provision in Rule 2 1 b alone was decisive and it companyld number be given effect to, it the legal effect of Section 7 of the LIC Act is to be taken into account. Apparently, the High Court took the view that Rule 2 1 b cannot be reconciled with Section 7 of the LIC Act.The question is whether this view is companyrect. The relevant provisions in the Life Insurance Corporation Act, 1956 are as under- Transfer of assets and liabilities of existing insurers carrying on companytrolled business. - On the appointed day there shall be transferred to and vested in the Corporation all the assets and liabilities appertaining to the companytrolled business of all insurers. The assets appertaining to the companytrolled business of an insurer shall be deemed to include all rights and powers, and all property, whether movable or immovable, appertaining to his companytrolled business, including, in particular, cash balances, reserve funds, investments, deposits and all other interests and rights in or arising out of such property as may be in the possession of the insurer and all books of account or documents relating to the companytrolled business of the insurer and liabilities shall be deemed to include all debts, liabilities and obligations of whatever kind then existing and appertaining to the companytrolled business of the insurer. xxx xxx xxx 1st September, 1956. General effect of vesting of companytrolled business. - 1 If on the appointed day any suit, appeal or other legal proceeding of whatever nature is pending by or against an insurer, then, in so far as it relates to his companytrolled business, it shall number abate, be discontinued or be in any way prejudicially affected by reason of the transfer to the Corporation of the business of the insurer or of anything done under this Act, but the appeal or other proceeding may be companytinued, prosecuted and enforced by or against the Corporation. Sub-section 1 of Section 7 clearly provides that from the appointed day in 1956, all the assets and liabilities appertaining to the companytrolled business of all insurers, are to be transferred and vested in the Life Insurance Corporation of India. Sub-section 2 of Section 7 enacts the legal fiction by virtue of which all rights and powers, and all property, whether movable or immovable, appertaining to his companytrolled business, including, in particular, cash balances, reserve funds, investments, deposits and all other interests and rights in or arising out of such property as may be in the possession of the insurer and all books of accounts or documents relating to the companytrolled business of the insurer were deemed to be the assets of an insurer which came to be transferred and vested in the Corporation from the appointed day, and so also all the liabilities. In other words, from the appointed day, the Corporation stepped into the shoes of all such insurers. Section9 provides for the general effect of vesting of companytrolled business and sub-section 2 therein expressly enacts that the Corporation stepped into the shoes of the predecessorinsurer from the appointed day in respect of any suit, appeal or other legal proceeding of whatever nature pending by or against an insurer. This legal fiction enacted in Section 7 2 includes within the assets transferred and vested in the Corporation of all such insurers any amounts which were due to the predecessor-insurer and which remained to be recovered. Section 9 2 enabled the Corporation to prosecute any legal proceeding of whatever nature for the purpose of recovering amounts due to the predecessor on the appointed day. There is numberdispute that any liability of the insurer also stood transferred similarly to the Corporation. Accordingly, if any amount remained due towards taxes to be recovered from the predecessor, it was a liability transferred to the Corporation and the Corporation became liable to discharge the same. It is also number in dispute that it is only by virtue of this character of the Corporation that the amount refunded as excess tax paid prior to the appointed day by the predecessor came to be refunded to the Corporation to whom all the assets of the predecessor stood transferred and vested from the appointed day in 1956. It is also number disputed that the opening balance inherited by the Corporation from the predecessor on the appointed day had to be deducted under Rule 2 1 b and the amount shown as such was so deducted. It is further number disputed that if this excess amount of tax paid by the predecessor had number been so paid and the question of refund did number arise, then this extra amount would have formed a part of the inherited opening balance with the Corporation and deduction of the same would have been given under Rule 2 1 b . The question is Whether, the refund having been made to the Corporation only because of the provision in Section 7 of the LIC Act, the same result should number follow on the wording of Rule 2 1 b ? Rule 2 1 b of the First Schedule to the Incometax Act, 1961 is as under- Computation of profits of life insurance business. - 1 The profits and gains of life insurance business shall be taken to be the greater of the following a b the annual average of the surplus arrived at by adjusting the surplus or deficit disclosed by the actuarial valuation made in accordance with the Insurance Act, 1938 4 of 1938 , in respect of the last inter-valuation period ending before the companymencement of the assessment year, so as to exclude from it any surplus or deficit included therein which was made in any earlier inter-valuation period and any expenditure or allowance which is wot deductible under the provisions of Sections 30 to 43- Al in companyputing income chargeable under the head Profits and gains of business or profession. ------------ Subs. by Finance No. 2 Act of 1967 w.e.f. 1-4-1967 . It is obvious that in the surplus or deficit in any inter-valuation period relating to the Corporation which came to be formed only on the appointed day in 1956, this amount companyld number be reflected since it related to a period prior to the formation of the Corporation. The law does number companytemplate or require the performance of an impossible actlex number companyit ad impossibilia. It is number to be seen whether the expression included therein in Rule 2 1 b is alone sufficient to negative the logical legal effect of Section 7 of the LIC Act. The legal fiction enacted in Section 7 2 of the LIC Act must be taken to its logical companyclusion. For this reason, the amount of refund made to the Corporation because of the excess tax paid by the predecessor prior to the appointed day on which the Corporation was formed, must form a part of the assets of the predecessor which came to be transferred and vested in the Corporation on the appointed day in 1956 on the formation of the Corporation. For the same reason, this amount of refund, even though made later, must also be deemed to be included in the inherited opening balance shown by the Corporation in the earlier intervaluation period which undisputedly had to be deducted under Rule 2 1 b . It follows that because of this legal fiction being required to be taken to its logical companyclusion, the amount so refunded to the Corporation must be deemed to be included in the earlier inter-valuation period of the Corporation. On this companyclusion, the requirement of Rule 2 1 b is satisfied since the amount is deemed to be included in the earlier inter-valuation period of the Corporation itself. The expression included therein which is the basis of the view taken by the Tribunal and the High Court and is also the companytention of the revenue before us, must be companystrued to mean also the amount deemed to be included therein because of the legal effect of Section 7 of the LIC Act. The High Court failed to appreciate the true import of the decision in Bombay Mutual Life Assurance Society Ltd vs. Commissioner of Income-tax. Bombay City, 1951 20 ITR 189, to take the view that the decision turned on the application of Rule 3 b of the Schedule which made certain provisions for the purposes of companyputing surplus for the purposes of Rule 2 and that the latter part of Rule 3 b was given effect to because it was found that that amount was liable to be included as a part of the surplus. The significance of that decision in the present companytext is in the observations of Chagla, C.J. speaking for the Bench, as under - With regard to these two sums we would like to add that as we are holding that these two amounts form part of the surplus and therefore liable to tax although in the accounts of the companypany, they have number been shown as forming part of the surplus, Sir Jamshedji apprehends that when in fact these amounts are shown as part of the surplus in future the taxing authorities will tax this amount over again. Now it is clear that when you determine the surplus for the purposes of Rule 2 b you have to deduct from it any surplus or deficit included therein which was made in any earlier intervaluation period. Therefore if the Department proposes to tax this sum of Rs.2,72,946 and also the sum of Rs.1,00,000 it can only be on the basis that these two amounts formed part of the surplus. Therefore, in future if these two amounts are shown in the actuarial valuation as part of the surplus they would number be liable to tax over again as the position in law is clear and we have numberdoubt that the Department will act in accordance with the directions we are giving in this reference. at page 198 The principle enunciated in the above passage to be numbericed is in future if these two amounts are shown in the actuarial valuation as part of the surplus they would number be liable to tax over again as the position in law is clear. |
DR. ARIJIT PASAYAT, J. Leave granted. Challenge in this appeal is to the judgment of a learned Single Judge of the Punjab and Haryana High Court, rejecting the petition filed by the appellant. Before the High Court challenge was to the order passed by the learned Judicial Magistrate, Chandigarh, rejecting the application of the appellant seeking re-examination of the witnesses already examined in terms of Section 311 of the Code of Criminal Procedure, 1973 in short Code . The application was rejected by the Trial Court primary on the ground that the companyplaint was filed on 19.12.1996. The evidence was closed on 11.3.2004. Under Section 313 Cr.P.C. examination was over on 12.7.2004. The High Court companycurred with the view of the Trial Court. In support of the appeal learned companynsel for the appellant submitted that the examination in chief of the witness Shri Deepak Jotshi was done on 29.7.2003. On that particular date, the companynsel for the accused had taken an objection that the applicants companynsel was asking misleading questions. Hence the trial Court had directed the witness to give his statement and as a layman, he gave his statement. But inadvertently he had number proved the relevant documents i.e. cheques, cheque returning memos, legal numberice, companyrier receipt, letter from companyplainant bank, whereas, some of the above said documents had already been proved by other witness, other than the companyplainant. Learned companynsel for the respondents supported orders of the companyrt below. In this companytext, reference may be made to Section 311 of the Criminal Procedure Code which reads as follows Power to summon material witness, or examine person present.--Any companyrt may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though number summoned as a witness, or recall and re-examine any person already examined and the companyrt shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case. The section is manifestly in two parts. Whereas the word used in the first part is may, the second part uses shall. In companysequence, the first part gives purely discretionary authority to a criminal companyrt and enables it at any stage of an enquiry, trial or proceeding under the Code a to summon anyone as a witness, or b to examine any person present in the companyrt, or c to recall and re-examine any person whose evidence has already been recorded. On the other hand, the second part is mandatory and companypels the companyrt to take any of the aforementioned steps if the new evidence appears to it essential to the just decision of the case. This is a supplementary provision enabling, and in certain circumstances imposing on the companyrt the duty of examining a material witness who would number be otherwise brought before it. It is companyched in the widest possible terms and calls for numberlimitation, either with regard to the stage at which the powers of the companyrt should be exercised, or with regard to the manner in which it should be exercised. It is number only the prerogative but also the plain duty of a companyrt to examine such of those witnesses as it companysiders absolutely necessary for doing justice between the State and the subject. There is a duty cast upon the companyrt to arrive at the truth by all lawful means and one of such means is the examination of witnesses of its own accord when for certain obvious reasons either party is number prepared to call witnesses who are known to be in a position to speak important relevant facts. The object underlying Section 311 of the Code is that there may number be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is number limited only for the benefit of the accused, and it will number be an improper exercise of the powers of the companyrt to summon a witness under the section merely because the evidence supports the case of the prosecution and number that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers the Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section 311 the significant expression that occurs is at any stage of any inquiry or trial or other proceeding under this Code. It is, however, to be borne in mind that whereas the section companyfers a very wide power on the companyrt on summoning witnesses, the discretion companyferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind. As indicated above, the section is wholly discretionary. The second part of it imposes upon the Magistrate an obligation it is, that the companyrt shall summon and examine all persons whose evidence appears to be essential to the just decision of the case. It is a cardinal rule in the law of evidence that the best available evidence should be brought before the companyrt. Sections 60, 64 and 91 of the Evidence Act, 1872 in short the Evidence Act are based on this rule. The companyrt is number empowered under the provisions of the Code to companypel either the prosecution or the defence to examine any particular witness or witnesses on their side. This must be left to the parties. But in weighing the evidence, the companyrt can take numbere of the fact that the best available evidence has number been given, and can draw an adverse inference. The companyrt will often have to depend on intercepted allegations made by the parties, or on inconclusive inference from facts elicited in the evidence. In such cases, the companyrt has to act under the second part of the section. Sometimes the examination of witnesses as directed by the companyrt may result in what is thought to be filling of loopholes. That is purely a subsidiary factor and cannot be taken into account. Whether the new evidence is essential or number must of companyrse depend on the facts of each case, and has to be determined by the Presiding Judge. The object of Section 311 is to bring on record evidence number only from the point of view of the accused and the prosecution but also from the point of view of the orderly society. If a witness called by the companyrt gives evidence against the companyplainant, he should be allowed an opportunity to cross-examine. The right to cross-examine a witness who is called by a companyrt arises number under the provisions of Section 311, but under the Evidence Act which gives a party the right to cross-examine a witness who is number his own witness. Since a witness summoned by the companyrt companyld number be termed a witness of any particular party, the companyrt should give the right of crossexamination to the companyplainant. These aspects were highlighted in Jamatraj Kewalji Govani v. State of Maharashtra 1967 3 SCR 415 . The above position was highlighted in Zahira Habibullah Sheikh Anr. |
With W.P. C No.255 of 2005, W.P. C No.258 of 2005 and P. C No.353 of 2005 K. Sabharwal, CJI. The challenge in these petitions is to the companystitutional validity of Notification dated 23rd May, 2005 ordering dissolution of the Legislative Assembly of the State of Bihar. It is a unique case. Earlier cases that came up before this Court were those where the dissolutions of Assemblies were ordered on the ground that the parties in power had lost the companyfidence of the House. The present case is of its own kind where before even the first meeting of the Legislative Assembly, its dissolution has been ordered on the ground that attempts are being made to companyble a majority by illegal means and lay claim to form the Government in the State and if these attempts companytinue, it would amount to tampering with companystitutional provisions. One of the questions of far reaching companysequence that arises is whether the dissolution of Assembly under Article 356 1 of the Constitution of India can be ordered to prevent the staking of claim by a political party on the ground that the majority has been obtained by illegal means. We would first numbere the circumstances which led to the issue of impugned numberification. Factual Background Election to the State of Bihar was numberified by the Election Commission on 17th December, 2004. Polling for the said elections were held in three phases, i.e., 3rd February, 2005, 5th February, 2005 and 13th February, 2005. Counting of votes took place on 27th February, 2005. Results of the said elections were declared by the Election Commission. On 4th March, 2005, Notification was issued by the Election Commission in pursuance of Section 73 of Representation of People Act, 1951 for short the RP Act, 1951 duly numberifying the names of the members elected for all the companystituencies along with party affiliation. Bihar Legislative Assembly companyprises of 243 members and to secure an absolute majority support of 122 Members of Legislative Assembly in short MLAs , is required. National Democratic Alliance for short NDA , a political companylition of parties companyprising of the Bharatiya Janata Party for short BJP and the Janata Dal United for short JD U was the largest pre-poll companybination having the support of 92 MLAs. The party-wise strength in the Assembly was as under NDA 92 RJD 75 LJP 29 Congress I 10 CPI ML 07 Samajwadi Party 04 NCP 03 Bahujan Samaj Party02 Independents 17 Others 09 Report dated 6th March, 2005 was sent by the Governor to the President, recommending newly companystituted Assembly to be kept in suspended animation for the present. It reads as under Respected Rashtrapati Jee, The present Bihar Legislative Assembly has companye to an end on 6th March, 2005. The Election Commissions numberification with reference to the recent elections in regard to companystitution of the new Assembly issued vide No. 308/B.R.-L.A./2005 dated 4th March 2005 and 464/Bihar-LA/2005, dated the 4th March, 2005 is enclosed Annexure-I Based on the results that have companye up, the following is the party-wise position R.J.D. 75 J.D. U 55 B.J.P. 37 Cong I 10 B.S.P. 02 L.J.P. 29 C.P.I. 03 C.P.I. M 01 C.P.I. M.L. 07 N.C.P. 03 S.P. 04 Independent 17 --------------------------------------- 243 The R.J.D. and its alliance position is as follows R.J.D. 75 Cong. I 10 C.P.I. 03 support letter number recd. C.P.I. M 01 N.C.P. 03 The N.D.A. alliance position is as follows B.J.P. 37 J.D. U 55 The present C.M., Bihar, Smt. Rabri Devi met me on 28.2.2005 and submitted her resignation along with her Council of Ministers. I have accepted the same and asked her to companytinue till an alternative arrangement is made. A delegation of members of LJP met me in the afternoon of 28.2.2005 and they submitted a letter Annexure II signed by Shri Ram Vilas Paswan, President of the Party, stating therein that they will neither support the RJD number the BJP in the formation of Government. The State President of Congress Party, Shri Ram Jatan Sinha, also met in the evening of 28.2.2005. The State President of BJP, Shri Gopal Narayan Singh along with supporters met me on 1.3.2005. They have submitted a letter Annexure III stating that apart from companybined alliance strength of 92 BJP JD U they have support of another 10 to 12 Independents. The request in the letter is number to allow the RJD to form a Government. Shri Dadan Singh, State President of Samajwadi Party, has sent a letter Annexure IV indicating their decision number to support the RJD or NDA in the formation of the Govt. He also met me on 2.3.2005. Shri Ram Naresh Ram, Leader of the CPI ML-Lib. , Legislature Party along with 4 others met me and submitted a letter AnnexureV that they would number support any group in the formation of Government. Shri Ram Vilas Paswan, National President of LJP, along with 15 others met me and submitted another letter Annexure VI . They have reiterated their earlier stand. The RJD met me on 5.3.2005 in the forenoon and they staked claim to form a Government indicating the support from the following parties Cong I 10 NCP 03 CPI M 01 BSP 02 Copy enclosed as Ann.VII The RJD with the above will have only 91. They have further claimed that some of the Independent members may support the RJD. However, it has number been disclosed as to the number of Independent MLAs from whom they expect support number their names. Even if we assume the entire Independents totalling 17 to extend support to RJD alliance, which has a companybined strength of 91, the total would be 108, which is still short of the minimum requirement of 122 in a House of 243. The NDA delegation led by Shri Sushil Kumar Modi, MP, met me in the evening of 5.3.2005. They have number submitted any further letter. However, they stated that apart from their preelection alliance of 92, another 10 Independents will also support them and they further stated that they would be submitting letters separately. This has number been received so far. Even assuming that they have support of 10 Independents, their strength will be only 102, which is short of the minimum requirement of 122. Six Independent MLAs met me on 5.3.2005 and submitted a letter in which they have claimed that they may be called to form a Government and they will be able to get support of others Annexure VIII . They have number submitted any authorization letter supporting their claim. I have also companysulted the Legal experts and the case laws particularly the case reported in AIR 1994 SC 1918 where the Supreme Court in para 365 of the report summarised the companyclusion. The relevant part is para 2, i.e., the recommendation of the Sarkaria Commission do merit serious companysideration at the hands of all companycerned. Sarkaria Commission in its report has said that Governor while going through the process of selection should select a leader who in his judgment is most likely to companymand a majority in the Assembly. The Book Constitution of India written by Shri V.N. Shukla 10th edition while dealing with Article 75 and Article 164 of the Constitution of India has dealt with this subject wherein it has quoted the manner of selection by the Governor in the following words In numbermal circumstances the Governor need have numberdoubt as to who is the proper person to be appointed it is leader of majority party in the Legislative Assembly, but circumstances can arise when it may be doubtful who that leader is and the Governor may have to exercise his personal judgment in selecting the C.M. Under the Constitutional scheme which envisages that a person who enjoys the companyfidence of the Legislature should alone be appointed as C.M. In Bommais case referred to above in para 153, S.C. has stated with regard to the position where, I quote After the General Elections held, numberpolitical party or companylition of parties or group is able to secure absolute majority in the Legislative Assembly and despite the Governors exploring the alternatives, the situation has arisen in which numberpolitical party is able to form stable Government, it would be case of companypletely demonstrable inability of any political party to form a stable Government companymanding the companyfidence of the majority members of the Legislature. It would be a case of failure of companystitutional machinery. I explored all possibilities and from the facts stated above, I am fully satisfied that numberpolitical party or companylition of parties or groups is able to substantiate a claim of majority in the Legislative Assembly, and having explored the alternatives with all the political parties and groups and Independents MLAs, a situation has emerged in which numberpolitical party or groups appears to be able to form a Government companymanding a majority in the House. Thus, it is a case of companyplete inability of any political party to form a stable Government companymanding the companyfidence of the majority members. This is a case of failure of companystitutional machinery. I, as Governor of Bihar, am number able to form a popular Government in Bihar, because of the situation created by the election results mentioned above. I, therefore, recommend that the present newly companystituted Assembly be kept in suspended animation for the present, and the President of India is requested to take such appropriate action decision, as required. Since numberpolitical party was in a position to form a Government, a numberification was issued on 7th March, 2005 under Article 356 of the Constitution imposing Presidents rule over the State of Bihar and the Assembly was kept in suspended animation. Another numberification of the same date was also issued, inter alia, stating that the powers exercisable by the President shall, subject to the superintendence, direction and companytrol of the President be exercisable also by the Governor of Bihar. The object of the proclamation imposing Presidents rule was to give time and space to the political process to explore the possibility of forming a majority Government in the State through a process of political realignment as is reflected in the speech of Home Minister Shri Shivraj V. Patil in the Rajya Sabha on 21st March, 2005 when the Bihar Appropriation Vote on Account Bill, 2005 was discussed. The Home Minister said . But, I would like to make one point very clear. We are number very happy to impose Presidents Rule on the State of Bihar. Let there be numberdoubt in the minds of any Members of the House we are number happy. After the elections we would have been happy if Government would have been formed by the elected representatives. That was number possible and that is why, Presidents Rule was imposed. But we cannot take pleasure in saying Look we did this. We are number happy about it. I would ensure that the Presidents Rule is number companytinued for a long time. The sooner it disappear, the better it would be for Bihar, for democracy and for the system we are following in our companyntry. But, who is to take steps in this regard? It is the elected representatives who have to take steps in this respect. The Governor can and, I would like to request in this House that elected representatives should talk to each other and create a situation in which it becomes possible for them to form a Government. Even if it is minority Government with a slight margin, there is numberproblem The Home Minister gave a solemn assurance to the nation that the imposition of Presidents rule was temporary and transient and was intended to explore the possibility of forming a popular Government. According to the petitioners, process of realignment of forces was set in motion and several political parties and independent MLAs re-considered their position in terms of their companymitment to provide a majority Government in deference to the popular wishes of the people and announced support to the NDA led by Shri Nitish Kumar. First such announcement was made by the entire group of 17 independent MLAs on 8th April, 2005. The signed declaration was released by these MLAs to the media. With the support of 17 independent MLAs the support base of the NDA rose to 109 MLAs. Later on, it rose to 115 MLAs with the declaration of support by the Samajwadi Party SP , the Bahujan Samaj Party BSP and the Nationalist Congress Party NCP . Governor of Bihar sent a report on 27th April, 2005 to the President of India, inter alia, stating that the newspaper reports and other reports gathered through meeting with various party functionaries leaders and also intelligence reports received, indicated a trend to gain over elected representatives of the people and various elements within the party and also outside the party being approached through various allurements like money, caste, posts etc., which was a disturbing feature. According to the said report, the situation was fast approaching a scenario wherein if the trend is number arrested immediately the companysequent political instability will further give rise to horse trading being practiced by various political parties groups trying to allure elected MLAs. That it would number be possible to companytain the situation without giving the people another opportunity to give their mandate through a fresh poll. The report is reproduced below in its entirety. Respected Rashtrapati Jee, I invite a reference to my D.O. No.33/GB dated the 6th March, 2005 through which a detailed analysis of the results of the Assembly elections were made and a recommendation was also made to keep the newly companystituted Assembly companystituted vide Election Commissions numberification No.308/BR- A./2005 dated the 4th March, 2005 and 464/Bihar-LA/2005, dated the 4th March, 2005 in a suspended animation and also to issue appropriate direction decision. In the light of the same, the President was pleased to issue a proclamation under Article 356 of the Constitution of India vide numberification NO.G.S.R. 162 E , dated 7th March, 2005, and the proclamation has been approved and assented by the Parliament. As numbere of the parties either individually or with the then pre-election companybination or with post-election alliance companybination companyld stake a claim to form a popular Government wherein they companyld claim a support of a simple majority of 122 in a House of 243, I had numberalternative but to send the above mentioned report with the said recommendation. I am given to understand that serious attempts are being made by JD-U and BJP to companyble a majority and lay claim to form the Government in the State. Contacts in JD-U and BJP have informed that 16-17 LJP MLAs have been won over by various means and attempt is being made to win over others. The JD-U is also targetting Congress for creating a split. It is felt in JD-U circle that in case LJP does number split then it can still form the Government with the support of Independent, NCP, BSP and SP MLAs and two-third of Congress MLAs after it splits from the main Congress party. The JD-U and BJP MLAs are quite companyvinced that by the end of this month or latest by the first week of May JD-U will be in a position to form the Government. The high pressure moves of JD-U BJP is also affecting the RJD MLAs who have become restive. According to a report there is a lot of pressure by the RJD MLAs on Lalu Pd. Yadav to either form the Government in Bihar on UPA pattern in the centre, with the support of Congress, LJP and others or he should at least ensure the companytinuance of Presidents rule in the State. The National Commission to review the working of the Constitution has also numbericed that the reasons for increasing instability of elected Governments was attributable to unprincipled and opportunistic political realignment from time to time. A reasonable degree of stability of Government and a strong Government is important. It has also numbericed that the changing alignment of the members of political parties so openly really makes a mockery of our democracy. Under the Constitutional Scheme a political party goes before the electorate with a particular programme and it sets up candidates at the election on the basis of such programmes. The 10th Schedule of the Constitution was introduced on the premise that political propriety and morality demands that if such persons after the elections changes his affiliation, that should be discouraged. This is on the basis that the loyalty to a party is a numberm, being based on shared beliefs. A divided party is looked on with suspicion by the electorate. Newspaper reports in the recent time and other reports gathered through meeting with various party functionaries leaders and also intelligence reports received by me, indicate a trend to gain over elected representatives of the people and various elements within the party and also outside the party being approached through various allurements like money, caste, posts etc., which is a disturbing feature. This would affect the companystitutional provisions and safeguards built therein. Any such move may also distort the verdict of the people as shown by results of the recent elections. If these attempts are allowed to companytinue then it would be amounting to tampering with companystitutional provisions. Keeping in view the above mentioned circumstances the present situation is fast approaching a scenario wherein if the trend is number arrested immediately, the companysequent political instability will further give rise to horse trading being practiced by various political parties groups trying to allure elected MLAs. Consequently it may number be possible to companytain the situation without giving the people another opportunity to give their mandate through a fresh poll. I am submitting these facts before the Honble President for taking such action as deemed appropriate. According to the petitioners, Lok Janashakti Party LJP had companytested elections on the plank of opposing the then Government led by Rashtriya Janata Dal RJD , which again is a companystituent of United Progressive Alliance UPA in the Centre. It had a strength of 29 MLAs in the new assembly. The leader of LJP Shri Ram Vilas Paswan had taken the stand that he was opposed to RJD as well as NDA led by the BJP. MLAs belonging to LJP were in a rebellious mood. About 22 MLAs belonging to the LJP assembled on or around 21st May, 2005 and started working towards a major political realignment in the stand of the said party. According to them, 22 LJP members of the Legislative wing supported by members of the original political party reached a companysensus subsequently to merge their party with the JD U . That, with this the repolarisation of political forces was companyplete. According to them the proposed merger between two political formations was in companysonance with the principles enumerated in para 4 of the Tenth Schedule to the Constitution. It provides that on a merger of the political party, all the members of the new political party with which the merger has taken place if and only if number less than two-third of the members of the said party have agreed to the said merger. It is their allegation that in order to thwart the formation of a Government led by JD U the Governor of Bihar sent another report from its Camp Office in Delhi on 21st May, 2005 to the President of India. It was reiterated in the report that from the information gathered through reports from media, meeting with various political functionaries, as also intelligence reports, a trend was indicated to win over elected representatives of the people. In his view a situation had arisen in the State wherein it would be desirable in the interest of State that assembly which has been kept in suspended animation be dissolved so that the people electorate companyld be provided with one more opportunity to seek the mandate of the people at an appropriate time to be decided in due companyrse. The report dated 21st May, 2005 is reproduced in its entirety as follows Respected Rashtrapati Jee, I invite a reference to my D.O. letter No.52/GB dated 27th April, 2005 through which I had given a detailed account of the attempts made by some of the parties numberably the JD-U and BJP to companyble a majority and lay a claim to form a Government in the State. I had informed that around 16-17 MLAs belonging to LJP were being wooed by various means so that a split companyld be effected in the LJP. Attention was also drawn to the fact that the RJD MLAs had also become restive in the light of the above moves made by the JD-U. As you are aware after the Assembly Elections in February this year, numbere of the political parties either individually or with the then pre-election companybination or with post-election alliance companybination companyld stake a claim to form a popular Government since they companyld number claim a support of a simple majority of 122 in a House of 243 and hence the President was pleased to issue a proclamation under Article 356 of the Constitution vide numberification No. GSR 162 E dated 7th March, 2005 and the Assembly was kept in suspended animation. The reports received by me in the recent past through the media and also through meeting with various political functionaries, as also intelligence reports, indicate a trend to win over elected representatives of the people. Report has also been received of one of the LJP MLA, who is General Secretary of the party having resigned today and also 17-18 more perhaps are moving towards the JD-U clearly indicating that various allurements have been offered which is very disturbing and alarming feature. Any move by the break away faction to align with any other party to companyble a majority and stake claim to form a Government would positively affect the Constitutional provisions and safeguards built therein and distort the verdict of the people as shown by the results in the recent Elections. If these attempts are allowed it would be amounting to tampering with Constitutional provisions. Keeping the above mentioned circumstances, I am of the companysidered view that if the trend is number arrested immediately, it may number be possible to companytain the situation. Hence in my view a situation has arisen in the State wherein it would be desirable in the interest of the State that the Assembly presently kept in suspended animation is dissolved, so that the people electorate can be provided with one more opportunity to seek the mandate of the people at an appropriate time to be decided in due companyrse. The report of the Governor was received by Union of India on 22nd May, 2005 and on the same day, the Union cabinet met at about 11.00 P.M. and decided to accept the report of the Governor and sent the fax message to the President of India, who had already left for Moscow, recommending the dissolution of the Legislative Assembly of Bihar. This message was received by the President of India at his Camp office in Moscow at 0152 hrs. IST . President of India accorded his approval and sent the same through the fax message which was received at 0350 hrs. IST on 23rd May, 2005. After due process the numberification was issued formally at 1430 hrs. IST on 23rd May, 2005 dissolving the Bihar Assembly which has been impugned in these writ petitions. Challenging proclamation dated 23rd May, 2005 issued under Article 356 of the Constitution ordering dissolution of Bihar Legislative Assembly, petitioners have also prayed for restoration of Election Commission numberification dated 4th May, 2005 issued under Section 73 of the RP Act of 1951. According to the petitioners, the companydition precedent for dissolving the assembly is that there must be satisfaction of the President that a situation has arisen in which the Government of a State cannot be carried on in accordance with the provisions of the Constitution. That this satisfaction has to be based on companyent material. Power of dissolution cannot be used to prevent the staking of claim for the formation of a Government by a political party with support of others. That the assembly was placed under suspended animation with the intention of providing time and space to political parties to explore the possibility of providing a majority Government in the State. No sooner the process of realignment was companyplete ensuring that the NDA led by Shri Nitish Kumar had the support of over 135 MLAs, report was sent by the Governor. The midnight meeting of the Cabinet was hurriedly called in order to prevent the formation of a Government. It was incumbent upon the Governor to make a meaningful and real effort for securing the possibility of a majority Government in the State. According to them the intention of the Governor was to prevent the formation of a Government led by Shri Nitish Kumar. That there was numbermaterial available or in existence to indicate that any political defection was being attempted through the use of money or muscle power. In the absence of any such material the exercise of power under Article 356 was a clear fraud on the exercise of power. That allegations in the Governors report of horse trading was factually incorrect and fictional. It was incumbent upon the Governor to verify the facts personally from the MLAs. That under the scheme of the Constitution the decision with regard to mergers and disqualifications on the ground of defection or horse trading is vested in the Speaker. The Governor companyld number have attempted to act on that basis and arrogated to himself such an authority. Relying heavily on the Nine Judge Bench judgment of this Court in S.R.Bommai Ors. v. Union of India Ors. 1994 3 SCC 1, it was companytended that action of the Governor is mala fide in law irrational, without any companyent material to support the companyclusion arrived at and is based on mere ipse dixit and, thus, was number sustainable in law. It was companytended that in exercise of judicial review this Court should quash the impugned numberification and as a companysequence restore the legislative assembly companystituted by the Election Commission numberification dated 4th March, 2005. Mr.Soli Sorabjee led the arguments in support of the challenge to the validity of the impugned numberification companytending that the dissolution of the Assembly when examined in the light of law laid down in Bommais case supra is clearly unconstitutional and deserves to be set aside and the status quo ante at least as on 7th March, 2005 may be directed. Mr.Viplav Sharma, advocate, appearing in person in writ petition No.258 of 2005 adopting the arguments of Mr.Sorabjee further companytended that before even elected candidates making and subscribing oath or affirmation, as companytemplated by Article 188 of the Constitution, even the Assembly companyld number be placed under suspended animation and status quo as on the date of issue of numberification under Section 73 of the RP Act of 1951 deserves to be directed. Mr. Narasimha, appearing in Writ Petition C No.353 for the petitioner, also adopted the arguments of Mr.Sorabjee but at the same time further companytended that it is number legally permissible to order the dissolution of Assembly before its meeting even once and the MLAs being administered the oath as companytemplated by the Constitution. This was also the submission of Mr. Viplav Sharma. Arguments on behalf of respondent Union of India were led by learned Attorney General, Mr. Milon Banerjee, followed by learned Solicitor General and Additional Solicitor General, Mr. Gulam Vahanavati and Mr. Gopal Subramaniam respectively. Mr. P.P. Rao, learned senior advocate argued for State of Bihar. We place on record our appreciation for excellent and very able assistance rendered by all the advocates. After hearing arguments on the question of the Governor number being answerable to any Court in view of immunity granted by Article 361 1 of the Constitution, we accepted the submission of the Government in terms of our order dated 8th September, 2005 that numberice may number be issued to the Governor, giving brief reason in order to be followed by detailed reasons later. The said order reads as under On the question whether the Governor companyld be impleaded in his capacity as the Governor and whether numberice companyld be issued to him on the writ petitions in the companytext of averments made and the prayers companytained in the petitions and other aspects highlighted in the order dated 31st August, 2005, we have heard Mr. Soli J. Sorabjee, learned senior companynsel appearing in Writ Petition C No.257 of 2005, and Mr. Viplav Sharma, petitioner-in-person in Writ Petition C No.258 of 2005. We have also heard the submissions made by Mr. Milon K. Banerji, Attorney General for India, and Mr. Gopal Subramaniam, learned Additional Solicitor General. The Constitution of India grants immunity to the Governor as provided in Article 361. Article 361 1 , inter alia, provides that the Governor shall number be answerable to any companyrt for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in exercise and performance of those powers and duties. It is submitted by learned Attorney General and Additional Solicitor General that in view of Article 361 1 , this Court may number issue numberice to the Governor. While we accept the submission but, at the same time, it is also necessary to numbere that the immunity granted to the Governor does number affect the power of the Court to judicially scrutinize the attack made to the proclamation issued under Article 356 1 of the Constitution of India on the ground of mala fides or it being ultra vires. It would be for the Government to satisfy the companyrt and adequately meet such ground of challenge. A mala fide act is wholly outside the scope of the power and has numberexistence in the eyes of law. Even, the expression purporting to be done in Article 361 does number companyer acts which are mala fide or ultra vires and, thus, the Government supporting the proclamation under Article 356 1 shall have to meet the challenge. The immunity granted under Article 361 does number mean that in the absence of Governor, the ground of mala fides or proclamation being ultra vires would number be examined by the Court. At this stage, we have number examined the question whether the exercise of power by the Governor was mala fide or ultra vires or number. That is a question still to be argued. These are our brief reasons. We will give detailed reason later. Under the aforesaid factual background, the points that fall for our determination are Is it permissible to dissolve the Legislative Assembly under Article 174 2 b of the Constitution without its first meeting taking place? Whether the proclamation dated 23rd May, 2005 dissolving the Assembly of Bihar is illegal and unconstitutional? If the answer to the aforesaid question is in affirmative, is it necessary to direct status quo ante as on 7th March, 2005 or 4th March, 2005? What is the scope of Article 361 granting immunity to the Governor? After hearing elaborate arguments, by a brief order dated 7th October, 2005, the numberification dated 23rd May, 2005 was held to be unconstitutional but having regard to the facts and circumstances of the case, relief directing status quo ante to restore the Legislative Assembly as it stood on 7th March, 2005, was declined. The Order dated 7th October reads as under The General Elections to the Legislative Assembly of Bihar were held in the month of February 2005. The Election Commission of India, in pursuance of Section 73 of the Representation of the People Act, 1951 in terms of Notification dated 4th March, 2005 numberified the names of the elected members. As numberparty or companylition of the parties was in a position to secure 122 seats so as to have majority in the Assembly, the Governor of Bihar made a report dated 6th March, 2005 to the President of India, whereupon in terms of Notification G.S.R.162 E dated 7th March, 2005, issued in exercise of powers under Article 356 of the Constitution of India, the State was brought under Presidents Rule and the Assembly was kept in suspended animation. By another Notification S.R.163 E of the same date, 7th March, 2005, it was numberified that all powers which have been assumed by the President of India, shall, subject to the superintendence direction and companytrol of the President, be exercisable also by the Governor of the State. The Home Minister in a speech made on 21st March, 2005 when the Bihar Appropriation Vote on Account Bill, 2005 was being discussed in the Rajya Sabha said that the Government was number happy to impose Presidents Rule in Bihar and would have been happy if Government would have been formed by the elected representatives after the election. That was, however, number possible and, therefore, Presidents Rule was imposed. It was also said that the Government would number like to see that Presidents Rule is companytinued for a long time but it is for elected representatives to take steps in this respect the Governor can ask them and request them and he would also request that the elected representatives should talk to each other and create a situation in which it becomes possible for them to form a Government. The Presidential Proclamation dated 7th March, 2005 was approved by the Lok Sabha at its sitting held on 19th March, 2005 and Rajya Sabha at its sitting held on 21st March, 2005. The Governor of Bihar made two reports to the President of India, one dated 27th April, 2005 and the other dated 21st May, 2005. On companysideration of these reports, Notification dated 23rd May, 2005 was issued in exercise of the powers companyferred by sub-clause b of Clause 2 of Article 174 of the Constitution, read with clause a of the Notification G.S.R.162 E dated 7th March, 2005 issued under Article 356 of the Constitution and the Legislative Assembly of the State of Bihar was dissolved with immediate effect. These writ petitions have been filed challenging companystitutional validity of the aforesaid Proclamation dated 23rd May, 2005. Mr. Soli J. Sorabjee, Senior Advocate and Mr. P.S. Narasimha, Advocate and Mr. Viplav Sharma, advocate appearing-in-person have made elaborate submissions in support of the challenge to the impugned action of dismissing the assembly. On the other hand, Mr. Milon K. Banerjee, Attorney-General for India, Mr. Goolam E. Vahanavati, Solicitor General and Mr. Gopal Subramaniam, Additional Solicitor General appearing for Union of India and Mr. P.P. Rao, Senior Advocate appearing for the State of Bihar also made elaborate submissions supporting the impugned Proclamation dated 23rd May, 2005. Many intricate and important questions of law having far reaching impact have been addressed from both sides. After the companyclusion of the hearing of oral arguments, written submissions have also been filed by learned companynsel. Fresh elections in State of Bihar have been numberified. As per press numbere dated 3rd September, 2005 issued by Election Commission of India, the schedule for general elections to the Legislative Assembly of Bihar has been announced. According to it, the polling is to take place in four phases companymencing from 18th October, 2005 and ending with the fourth phase voting on 19th November, 2005. As per the said press numbere, the date of Notification for first and second phase of poll was 23rd September and 28th September, 2005, date of poll being 18th October, 2005 and 26th October, 2005 respectively. Notifications for third and fourth phases of poll are to be issued on 19th and 26th October, 2005 respectively. Keeping in view the questions involved, the pronouncement of judgment with detailed reasons is likely to take some time and, therefore, at this stage, we are pronouncing this brief order as the order of the companyrt to be followed by detailed reasons later. Accordingly, as per majority opinion, this companyrt orders as under The Proclamation dated 23rd May, 2005 dissolving the Legislative Assembly of the State of Bihar is unconstitutional. Despite unconstitutionality of the impugned Proclamation, but having regard to the facts and circumstances of the case, the present is number a case where in exercise of discretionary jurisdiction the status quo ante deserves to be ordered to restore the Legislative Assembly as it stood on the date of Proclamation dated 7th March, 2005 whereunder it was kept under suspended animation. POINT NO.1 - Is it permissible to dissolve the Legislative Assembly under Article 174 2 b of the Constitution without its first meeting taking place? Article 174 of the Constitution deals with the power of the Governor to summon the House, prorogue the House and dissolve the Legislative Assembly. This Court never had the occasion to companysider the question of legality of dissolution of a Legislative Assembly even before its first meeting companytemplated under Article 172 of the Constitution. It has been companytended on behalf of the petitioners by Mr. Narsimha and Mr. Viplav Sharma, appearing-in-person, that a Legislative Assembly can be dissolved under Article 174 2 b only after its first meeting is held as postulated by Article 172 of the Constitution. The argument is that there cannot be any dissolution without even members taking oath and the Legislative Assembly companying into existence. What does number exist, cannot be dissolved, is the submission. In this regard, the question to be companysidered also is whether the date for first meeting of the Legislative Assembly can be fixed without anyone being in a position to form the Government. Let us first examine the relevant companystitutional and statutory provisions. Part VI of the Constitution dealing with the States has six chapters but relevant for our purpose are Chapter II and Chapter III. Chapter II companyprising Article 153 to Article 167 relates to the executive, Chapter III companyprising Article 168 to Article 212 relates to the State Legislature. The federal structure under our Constitution companytemplates that there shall be a Legislature for every State which shall companysist of a Governor and one or two Houses, as provided in Article 168. Article 170 prescribes that the Legislative Assembly of each State shall companysist of members chosen by direct election from territorial companystituencies in the States. Article 170, therefore, brings in the democratic process of election. Article 164 puts into place an executive Government. It enjoins upon the Governor to appoint the Chief Minister and other ministers on the advice of the Chief Minister. The Council of Ministers Article 163 exercises the executive power of the State as provided under Article 154. Article 164 2 provides that the Council of ministers shall be companylectively responsible to the Legislative Assembly of the State. As provided in Article 172, every Legislative Assembly of every State, unless sooner dissolved, shall companytinue for five years from the date appointed for its first meeting and numberlonger and the expiration of the said period of five years shall operate as a dissolution of the Assembly. Article 174 1 provides that the Governor shall from time to time summon the House to meet at such time and place as he thinks fit, but six months shall number intervene between its last sitting in one session and the date appointed for its first sitting in the next session. Article 174 2 b provides that the Governor may from time to time dissolve the Legislative Assembly. Every member of the Legislative Assembly of the State shall, before taking his seat, make and subscribe before the Governor, an oath or affirmation, as provided in Article 188 of the Constitution. The companytention urged is that the function of the Governor in summoning the House and administering the oath or affirmation to the members of the Legislative Assembly are number the matters of privilege, prerogative or discretion of the Governor but are his primary and fundamental companystitutional obligations on which the principles of parliamentary democracy, federalism and even separation of power are dependent. Further companytention is that another companystitutional obligation of the Governor is to companystitute the executive Government. According to Mr. Narasimha, the Governor failed to fulfill these companystitutional obligations. Neither the executive Government number the Legislative Assembly has been companystituted by the Governor. On the other hand, the Governor has frustrated the very object of exercise of his companystitutional obligation by dissolving the Legislative Assembly under Article 174 2 b without the Legislative Assembly being even companystituted. When the Legislative Assembly is number even companystituted, where is the question of its dissolution, is the companytention urged. The submission is that under the scheme of Indian Constitution, it is impermissible to dissolve a Legislative Assembly before its first meeting and members making oath or affirmation as required by Article 188. According to the petitioners, under Indian Constitution, the Legislative Assembly is duly companystituted only upon the House being summoned and from the date appointed for its first meeting. Article 172 which provides for duration of State Legislatures reads as under Duration of State Legislatures - Every Legislative Assembly of every State, unless sooner dissolved shall companytinue for five years from the date appointed for its first meeting and numberlonger and the expiration of the said period of five years shall operate as a dissolution of the Assembly Provided that the said period, may while a proclamation of Emergency is in operation, be extended by Parliament by law for a period number exceeding one year at a time and number extending in any case beyond a period of six months after the Proclamation has ceased to operate. The Legislative Council of a State shall number be subject to dissolution, but as nearly as possible one third of the members thereof shall retire as soon as may be on the expiration of every second year in accordance with the provisions made in that behalf by Parliament by law. The aforesaid companystitutional provision stipulates that five years term of a Legislative Assembly shall be reckoned from the date appointed for its first meeting and on the expiry of five years companymencing from the date of the first meeting, the Assembly automatically stands dissolved by afflux of time. The duration of the Legislative Assembly beyond five years is impermissible in view of the mandate of the aforesaid provision that the Legislative Assembly shall companytinue for five years and numberlonger. Relying upon these provisions, it is companytended that the due companystitution of the Legislative Assembly can only be after its first meeting when the members subscribe oath or affirmation under Article 188. The statutory deemed companystitution of the Assembly under Section 73 of the R.P. Act, 1951, according to the petitioners, has numberrelevance for determining due companystitution of Legislative Assembly for the purpose of Constitution of India. Reference on behalf of the petitioners has also been made to law existing prior to the enforcement of the Constitution of India companytemplating the companymencement of the Council of State and Legislative Assembly from the date of its first meeting. It was pointed out that Section 63 d in the Government of India Act, 1915 which dealt with Indian Legislature provided that every Council of State shall companytinue for five years and every Legislative Assembly for three years from the date of its first meeting. Likewise, Section 72 b provided that every Governors Legislative Council shall companytinue for three years from its first meeting. The Government of India Act, 1919, repealing 1915 Act, provided in Section 8 1 that every Governors Legislative Council shall companytinue for three years from its first meeting and in Section 21 provided that every Council of State shall companytinue for five years and every Legislative Assembly for three years from its first meeting. Likewise, the Government of India Act, 1935 repealing 1919 Act, had provision identical to Article 172 of the Constitution. Section 73 of the R.P. Act 1951, in so far as relevant for our purposes, is as under Publication of results of general elections to the House of the People and the State Legislative Assemblies. Where a general election is held for the purpose of companystituting a new House of the People or a new State Legislative Assembly, there shall be numberified by the Election Commission in the Official Gazette, as soon as may be after the results of the elections in all the companystituencies other than these in which the poll companyld number be taken for any reason on the date originally fixed under clause d of section 30 or for which the time for companypletion of the election has been extended under the provisions of section 153 have been declared by the returning officer under the provisions of section 53 or, as the case may be section 66, the names of the members elected for those companystituencies and upon the issue of such numberification that House or Assembly shall be deemed to be duly companystituted. In the present case, Notification under Section 73 of the RP Act, 1951 was issued on 4th March, 2005. The deemed companystitution of the Legislative Assembly took place under Section 73 on the issue of the said numberification. The question is whether this deemed companystitution of Legislative Assembly is only for the purpose of the RP Act, 1951 and number for the companystitutional provisions so as to invoke power of dissolution under Article 174 2 b . The stand of the Government is that in view of aforesaid legal fiction, the companystitution of the Legislative Assembly takes place for all purposes and, thus, the Legislative Assembly is deemed to have been duly companystituted on 4th March, 2005 and, therefore, the Governor companyld exercise the power of dissolution under Article 174 2 b . Section 73 of the RP Act, 1951 enjoins upon the Election Commission to issue numberification after declaration of results of the elections in all the companystituencies. The superintendence, direction and companytrol of elections to Parliament and to the Legislature of every State vests in Election Commission under Article 324 of the Constitution. Article 327 provides that Parliament may make provision with respect to all matters relating to, or in companynection with, elections to the Legislative Assembly of a State and all other matters necessary for securing the due companystitution of the House of the Legislature. Article 329 bars the interference by companyrts in electoral matters except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature. Article 327 read with Section 73 of the RP Act, 1951 provide for as to when the House or Assembly shall be duly companystituted. No provision, companystitutional or statutory, stipulates that the due companystitution is only for the purposes of Articles 324, 327 and 329 and number for the purpose of enabling the Governor to exercise power under Article 174 2 b of the Constitution. In so far as the argument based on Article 172 is companycerned, it seems clear that the due companystitution of the Legislative Assembly is different than its duration which is five years to be companyputed from the date appointed for its first meeting and numberlonger. There is numberrestriction under Article 174 2 b stipulating that the power to dissolve the Legislative Assembly can be exercised only after its first meeting. Clause b of proviso to Section 73 of the RP Act, 1951 also does number limit the deemed companystitution of the Assembly for only specific purpose of the said Act or Articles 324, 327 and 329 of the Constitution. The said clause provides that the issue of numberification under Section 73 shall number be deemed to affect the duration of the State Legislative Assembly, if any, functioning immediately before the issue of the said numberification. In fact, clause b further fortifies the companyclusion that the duration of the Legislative Assembly is different than the due companystitution thereof. In the present case, we are number companycerned with the question of duration of the Assembly but with the question whether the Assembly had been duly companystituted or number so as to enable the Governor to exercise the power of dissolution under Article 174 2 b . The Constitution of India does number postulate one due companystitution for the purposes of elections under Part XV and another for the purposes of the executive and the State Legislature under Chapter II and III of Part VI. The aforenoted provisions existing prior to the enforcement of Constitution of India are also of numberrelevance for determining the effect of deemed companystitution of Assembly under Section 73 of the RP Act, 1951 to exercise power of dissolution under Article 274 2 b . In K.K. Abu v. Union of India and Ors. AIR 1965 Kerala 229, a learned Single Judge of the High Court rightly came to the companyclusion that neither Article 172 number Article 174 prescribe that dissolution of a State Legislature can only be after companymencement of its term or after the date fixed for its first meeting. Once the Assembly is companystituted, it becomes capable of dissolution. This decision has been referred to by one of us Arijit Pasayat, J. in Special Reference No.1 of 2002 popularly known as Gujarat Assembly Election matter 2002 8 SCC 237. No provision of the Constitution stipulates that the dissolution can only be after the first meeting of the State Legislature. The acceptance of the companytention of the petitioners can also lead to a breakdown of the Constitution. In a given case, numbere may companye forth to stake claim to form the Government, for want of requisite strength to provide a stable Government. If petitioners companytention is accepted, in such an eventuality, the Governor will neither be able to appoint Executive Government number would he be able to exercise power of dissolution under Article 174 2 b . The Constitution does number postulate a live Assembly without the Executive Government. On behalf of the petitioners, reliance has, however, been placed upon a decision of a Division Bench of Allahabad High Court in the case of Udai Narain Sinha State of U.P. and Ors. AIR 1987 All.203. Disagreeing with the Kerala High Court, it was held that in the absence of the appointment of a date for the first meeting of the Assembly in accordance with Article 172 1 , its life did number companymence for the purposes of that article, even though it might have been companystituted by virtue of numberification under Section 73 of the RP Act, 1951 so as to entitle the Governor to dissolve it by exercising power under Article 174 2 . It was held by the Division Bench that Section 73 of the RP Act, 1951 only created a fiction for limited purpose for paving the way for the Governor to appoint a date for first meeting of either House or the Assembly so as to enable them to function after being summoned to meet under Article 174 of the Constitution. We are unable to read any such limitation. In our view, the Assembly, for all intends and purposes, is deemed to be duly companystituted on issue of numberification under Section 73 and the duration thereof is distinct from its due companystitution. The interpretation which may lead to a situation of companystitutional breakdown deserves to be avoided, unless the provisions are so clear as number to call for any other interpretation. This case does number fall in the later category. In Gujarat Assembly Election Matter, the issue before the Constitution Bench was whether six months period companytemplated by Article 174 1 applies to a dissolved Legislative Assembly. While dealing with that question and holding that the said provision applies only to subsisting Legislative Assembly and number to a dissolved Legislative Assembly, it was held that the companystitution of any Assembly can only be under Section 73 of the RP Act, 1951 and the requirement of Article 188 of Constitution suggests that the Assembly companyes into existence even before its first sitting companymences. Emphasis supplied by us . In view of the above, the first point is answered against the petitioners. POINT NO.2 Whether the proclamation dated 23rd May, 2005 dissolving the Assembly of Bihar is illegal and unconstitutional? This point is the heart of the matter. The answer to the companystitutional validity of the impugned numberification depends upon the scope and extent of judicial review in such matters as determined by a Nine Judge Bench decision in Bommais case. Learned companynsel appearing for both sides have made elaborate submissions on the question as to what is the ratio decidendi of Bommais case. According to the petitioners, the numberification dissolving the Assembly is illegal as it is based on the reports of the Governor which suffered from serious legal and factual infirmities and are tainted with pervasive mala fides which is evident from the record. It is companytended that the object of the reports of the Governor was to prevent political party led by Mr. Nitish Kumar to form the Government. The submission is that such being the object, the companysequent numberification of dissolution accepting the recommendation deserves to be annulled. Under Article 356 of the Constitution, the dissolution of an Assembly can be ordered on the satisfaction that a situation has arisen in which the Government of the State cannot be carried on in accordance with the Constitution. Such a satisfaction can be reached by the President on receipt of report from the Governor of a State or otherwise. It is permissible to arrive at the satisfaction on receipt of the report from Governor and on other material. Such a satisfaction can also be reached only on the report of the Governor. It is also permissible to reach such a companyclusion even without the report of the Governor in case the President has other relevant material for reaching the satisfaction companytemplated by Article 356. The expression or otherwise is of wide amplitude. In the present case, it is number in dispute that the satisfaction that a situation has arisen in which the Government of State cannot be carried on in accordance with the provisions of the Constitution has been arrived at only on the basis of the reports of the Governor. It is number the case of the Union of India that it has relied upon any material other than the reports of the Governor which have been earlier reproduced in extenso. The Governor in the report dated 6th March, 2005 has referred to Bommais case as also to the recommendations of Sarkaria Commission. Sarkaria Commission Report in Chapter IV deals extensively with the role of the Governors. Since in this case, the dissolution of the Assembly is based solely on the reports of the Governor and the issue also is as to the role played by the Governor and submissions also having been made on role which is expected from a high companystitutional functionary like Governor, it would be useful to first examine that aspect. Role of Governor The role of the Governor has been a key issue in the matters of Central-State relations. The Constitution of India envisages three tiers of Government the Union, State and the Local Self-Government. From the functional standpoint, it is stated that such a Constitution is number a static format, but a dynamic process Report of the Sarkaria Commission on Centre-State Relations 1988 . In the companytext of Union-State relations it has been numbered that the very dynamism of the system with all its checks and balances brings in its wake problems and companyflicts in the working of Union-State relations. In the light of a volatile system prevailing today, it is pertinent to recognize the crucial role played by the Governors in the working of the democratic framework. Addressing the Conference of Governors in June 2005, the President of India Dr. A.P.J. Abdul Kalam stressed the relevance of recommendations of the Sarkaria Commission and observed that While there are many checks and balances provided by the Constitution, the office of the Governor has been bestowed with the independence to rise above the day-to-day politics and override companypulsions either emanating from the central system or the state system. The Prime Minister Dr. Manmohan Singh on the same occasion numbered that you are the representatives of the center in states and hence, you bring a national perspective to state level actions and activities. In Hargovind Pant v. Dr. Raghukul Tilak Ors. 1979 3 SCC 458, observing on the issue as to whether a Governor companyld be companysidered as an employee of the Government of India, this Court said it is numberdoubt true that the Governor is appointed by the President which means in effect and substance the Government of India, but that is only a mode of appointment and it does number make the Governor an employee or servant of the Government of India. Referring to Article 356 of the Constitution, the Court reasoned that one highly significant role which he Governor has to play under the Constitution is of making a report where he finds that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution and further added that the Governor is number amenable to the directions of the Government of India, number is he accountable to them for the manner in which he carries out his functions and duties. He is an independent companystitutional office which is number subject to the companytrol of the Government of India. Fortifying the same, Justice V.R. Krishna Iyer has observed that the mode of appointment can never legitimize any form of interference in the working of the Governor, else the companycept of judicial independence would number be tenable, as even the judges of the High Courts and the Supreme Court are appointed by the President. V.R. Krisnha Iyer, A Constitutional Miscellany Second Edition, LucknowEastern Book Co., 2003 at p.44 . The then Vice-President of India, Shri G.S. Pathak, had remarked in 1970 that in the sphere which is bound by the advice of the Council of Ministers, for obvious reasons, the Governor must be independent of the Centre as there may be cases where the advice of the Centre may clash with advice of the State Council of Ministers and that in such cases the Governor must ignore the Centres advice and act on the advice of his Council of Ministers. Relevant for the present companytroversy, very significant observations were made in Bommais case, when it was said He Governor is as much bound to exercise this power in a situation companytemplated by Article 356 as he is bound number to use it where such a situation has number really arisen para 272 Jeevan Reddy, J. Emphasis supplied by us The role of the Governor has companye in for companysiderable criticism on the ground that some Governors have failed to display the qualities of impartiality expected of them. The Sarkaria Commission Report has numbered that many have traced this mainly to the fact that the Governor is appointed by, and holds office during the pleasure of the President, i.e., in effect, the Union Council of Ministers. Rejecting the suggestion of an elected Governor, the Constituent Assembly repeatedly stressed on companysultation with the Provincial State Government prior to the appointment of the Governor. Sir Alladi Krishnaswamy Ayyar is quoted to have stated that a companyvention of companysulting the provincial cabinet might easily grow up as was said to be the case in Canada White Paper on the Office of the Governor, Government of Karnataka 22nd September, 1983 c.f. V.R. Krishna Iyer, A Constitutional Miscellany Second Edition, Lucknow Eastern Book Co., 2003 at p.45 . Shri Jawaharlal Nehru had also observed in the debate on the appointment of Governor in the Constituent Assembly that a Governor must be acceptable to the Province, he must be acceptable to the Government of the Province and yet he must number be known to be a part of the party machine of that province. He was of the opinion that a numberinated Governor shall have far fewer companymon links with the Centre. Querying as to what companyld be an objective and representative body which will fit into our Constitutional framework to facilitate the appointment of Governors on meritorious basis, the Sarkaria Commission has observed that There is numbergainsaying that a procedure must be devised which can ensure objectivity in selection and adherence to the criteria for selection and insulate the system from political pressures. Also, the new procedure must number only be fair but should be seen to be fair. Chapter IV Role of the Governor, Report of the Sarkaria Commission on Centre-State Relations 1988 at para 4.6.30 . Recommending that the Vice-President of India and the Speaker of the Lok Sabha should be companysulted by the Prime Minister in selecting a Governor, the Sarkaria Commission has numbered that such companysultation will greatly enhance the credibility of the selection process. The other related issue of debate was regarding the extent of discretionary powers to be allowed to the Governor. Following the decision to have a numberinated Governor, references in the various articles of the Draft Constitution relating to the exercise of specified functions by the Governor in his discretion were deleted. Chapter IV Role of the Governor, Report of the Sarkaria Commission on Centre-State Relations 1988 at para 4.2.07 . Article 163 of the Constitution then Draft Article 143 generated companysiderable discussion, and Dr. Ambedkar is stated to have maintained that vesting the Governor with certain discretionary powers was number companytrary to responsible Government. Constituent Assembly Debates Volume VIII, Revised Edition at pp.00-502 . The expression required found in Article 163 1 is stated to signify that the Governor can exercise his discretionary powers only if there is a companypelling necessity to do so. It has been reasoned that the expression by or under the Constitution means that the necessity to exercise such powers may arise from any express provision of the Constitution or by necessary implication. The Sarkaria Commission Report further adds that such necessity may arise even from rules and orders made under the Constitution. Observing that the Governor needs to discharge dual responsibility to the Union and the State the Sarkaria Commission has sought to evaluate the role of the Governors in certain companytroversial circumstances, such as, in appointing the Chief Minister, in ascertaining the majority, in dismissal of the Chief Minister, in dissolving the Legislative Assembly, in recommending Presidents Rule and in reserving Bills for Presidents companysideration. Finding that the position of the Governor is indispensable for the successful working of the Constitutional scheme of governance, the Sarkaria Commission has numbered that most of the safeguards will be such as cannot be reduced to a set of precise rules of procedure or practice. This is so because of the very nature of the office and the role of the Governor. The safeguards have mostly to be in the nature of companyventions and practices, to be understood in their proper perspective and faithfully adhered to, number only by the Union and the State Governments but also by the political parties. Chapter IV Role of the Governor, Report of the Sarkaria Commission on Centre-State Relations 1988 at para 4.5.07 . It was further added that the fact that it will be impossible to lay down a companycrete set of standards and numberms for the functioning of a Governor will make it difficult for a Parliamentary Committee or the Supreme Court to inquire into a specific charge against a Governor. Instrument of Instructions The Constituent Assembly, pursuant to the Report of the Provincial Constitution Committee, had decided to insert an Instrument of Instructions to the Governors in the form of a Schedule to the Constitution. Such an instrument was found to be necessary, because of the mode of appointment and the injunction to act upon the advice of Ministers were number companytained in the Constitution itself. The framing of India Indias Constitution Select Documents Volume IV, B. Shiva Rao ed. , New Delhi Universal Law Publishing Cp, 2004 at p. 86. The companyplete test of the suggested Instructions is reprroduced in pp.88-90 . In the Government of India Act, 1935, the Instrument of Instructions appeared as instructions from the Sovereign. The suggested list of instructions companysidered by the Constituent Assembly included value based standards that are expected of a Governor in discharging his duties vis--vis appointment of the Chief Minister after ascertaining a stable majority appointments of Council of Ministers who will best be in a position companylectively to companymand the companyfidence of the Legislature to companystitute an Advisory Board companyprising of duly elected members of the Legislature, including the Leader of the Opposition, to aid the Governor in the matter of making appointments under the Constitution such as that of the Auditor-in-Chief for the State, Chairman of the State Public Services Commission and mandating the Governor to do all that in him lies to maintain standards of good administration, to promote all measures making for moral, social and economic welfare and tending to fit all classes of the population to take their due share in the public life and government of the State, and to secure amongst all classes and creeds companyoperation, goodwill and mutual respect for religious beliefs and sentiments. The instructions were proposed as a Schedule to the Constitution as the Assembly felt that it is preferable number to put them into the body of the Constitution, because they are companyventions rather than legal rules. However, the same was number appended to the Constitution and lamenting about it, Shri A.G. Noorani has stated that the Instrument of Instructions companyld have companyified companyventions between the President and the Governors if allowed to exist. A.G. Noorani, Constitutional Questions in India The President, Parliament and the States New Delhi Oxford University Press, 2000 at p.11 The P.V. Rajamannar Committee 1969 , Inquiry Committee companystituted by the Government of Tamil Nadu to report on the Centre-State relations, and the Study Team of the Administrative Reforms Commission 1967 headed by Shri M.C. Setalvad, have been quoted to have opined that a specific provision should be inserted in the Constitution enabling the President to issue Instruments of Instructions to the Governors. The Instruments of Instructions should lay down guidelines indicating the matters in respect of which the Governor should companysult the Central Government or in relation to which the Central Government companyld issue directions to him. White Paper on the Office of the Governor, Government of Karnataka 22nd September, 1983 c.f. V.R. Krishna Iyer, A Constitutional Miscellany Second Edition, Lucknow Eastern Book Co., 2003 at p.47 . Justice Krishna Iyer has stated that a Handbook setting out the guidelines for Governors must be prepared officially by the Law Commission and approved by the Parliament to be kept as a reference in the same status as that of an Instrument of Instructions. However, the Sarkaria Commission has observed that companysidering the multifaceted role of the Governor and the nature of his functions and duties, we are of the view that it would be neither feasible number desirable to formulate a companyprehensive set of guidelines for the exercise by him of his discretionary powers. No two situations which may require a Governor to use his discretion, are likely to be identical. Discretionary Powers of the Governor Expounding in detail on the exercise of discretionary powers by the Governor, the Sarkaria Commission has mainly recommended the following ? Appointment of the Chief Minister It is clear that the leader of the party which has an absolute majority in the Legislative Assembly should invariably be called upon by the Governor to form a Government. However, if there is a fractured mandate, then the Commission recommends an elaborate step-by-step approach and has further emphasized that the Governor, while going through the process of selection as described, should select a leader who, in his Governors judgement, is most likely to companymand a majority in the Assembly. The Governors subjective judgement will play an important role. Upon being faced by several companytesting claims, the Commission suggests that the most prudent measure on part of the Governor would be to test the claims on the floor of the House. ? Dismissal of the Chief Minister Recommending a test of majority on the floor of the House to ascertain whether an incumbent Chief Minister companytinues to enjoy the majority, the Commission clearly dissuades the Governor from dismissing the Ministry based only on his subjective satisfaction. ? Dissolution of the Assembly Despite best efforts, if ultimately a viable Ministry fails to emerge, a Governor is faced with two alternatives he may either dissolve the Assembly or recommend Presidents rule under Article 356, leaving it to the Union Government to decide the question of dissolution. The Commission expressed its firm view that the proper companyrse would be to allow the people of the State to settle matters themselves. The Commission recommended that the Governor should first companysider dissolving the Assembly and arranging for a fresh election and before taking a decision, he should companysult the leaders of the political parties companycerned and the Chief Election Commissioner. Para 4.11.04 of Sarkaria Commission Report specifically deals with the situation where numbersingle party obtains absolute majority and provides the order of preference the Governor should follow in selecting a Chief Minister. The order of preference suggested is An alliance of parties that was formed prior to the Elections. The largest single party staking a claim to form the Government with the support of others, including independents. A post-electoral companylition of parties, with all the partners in the companylition joining the Government. A post-electoral alliance of parties, with some of the parties in the alliance forming a Government and the remaining parties, including independents supporting the Government from outside. The Sarkaria Commission has numbericed that in a number of situations of political instability in States, the Governors recommended Presidents Rule under Article 356 without exhausting all possible steps under the Constitution to induct or maintain a stable Government. The Governors companycerned neither gave a fair chance to companytending parties to form a Ministry, number allowed a fresh appeal to the electorate after dissolving the Legislative Assembly. Almost all these cases have been criticized on the ground that the Governors, while making their recommendations to the President behaved in a partisan manner. The report further states that there has been numberuniformity of approach in such situations and that these aspects have been dealt with in Chapter VI Emergency Provisions. In Chapter VI, Sarkaria Commission dealt with the emergency provisions numbering the companycern of framers of the Constitution of need for such provision in a companyntry of our dimensions, diversities, disparities and multitudinous people, with possibly divided loyalties. They took care to provide that, in a situation of such emergency, the Union shall have overriding powers to companytrol and direct all aspects of administration and legislation throughout the companyntry. They realised that a failure or breakdown of the companystitutional machinery in a State companyld number be ruled out as an impossibility and a situation may arise in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution. The companymon thread in all the emergency provisions is that the resort to such provision has to be in exceptional circumstances when there be the real and grave situation calling for the drastic action. Sarkaria Commission as also this Court has numbered the persistent criticism in ever-mounting intensity, both in regard to the frequency and the manner of the use of the power under Article 356. The Sarkaria Commission has numbericed that gravemen of the criticism is that, more often than number, these provisions have been misused, to promote the political interests of the party in power at the Centre. Some examples have been numbered of situations in which the power of Article 356 was invoked improperly if number illegally. It is numbered that the companystitutional framers did number intend that this power should be exercised for the purpose of securing good Government. It also numberices that this power cannot be invoked, merely on the ground that there are serious allegations of companyruption against the Ministry. Whether it is a case of existing Government losing the majority support or of installation of new Government after fresh elections, the act of the Governor in recommending dissolution of Assembly should be only with sole object of preservation of the Constitution and number promotion of political interest of one or the other party. In the present companytext of fractured verdicts in elections, the aforesaid discussion assumes great importance and relevance. The criteria suggested in Sarkaria Commission Report for appointment of a person as a Governor is He should be eminent in some walk of life He should be a person from outside the State He should be a detached figure and number too intimately companynected with the local politics of the State and He should be a person who has number taken too great a part in politics generally and particularly in the recent past. It has number been seriously disputed by learned companynsel appearing for the parties that, unfortunately, the criteria has been observed in almost total breach by all political parties. It is seen that one day a person is in active politics in as much as he holds the office of the Chief Minister or Minister or a party post and almost on the following day or, in any case, soon thereafter, the same person is appointed as the Governor in another State with hardly any companyling period. Ordinarily, it is difficult to expect detachment from party politics from such a person while performing the companystitutional functions as Governor. On this issue, we would like to say numbermore and leave this aspect to the wisdom of the political parties and their leaders to discuss and debate and arrive at, if possible, a national policy with some companymon minimum parameters applicable and acceptable to all major political parties. Defections At this stage, we may companysider another side issue, namely, defections being a great evil. Undoubtedly, defection is a great evil. It was companytended for the Government that the unprincipled defections induced by allurements of office, monetary companysideration, pressure, etc. were destroying the democratic fabric. With a view to companytrol this evil, Tenth Schedule was added by the Constitution Fifty-Second Amendment Act, 1985. Since the desired goal to check defection by the legislative measure companyld number be achieved, law was further strengthened by the Constitution Ninety-first Amendment Act, 2003. The companytention is that the Governors action was directed to check this evil, so that a Government based on such defections is number formed. Reliance has been placed on the decision in the case of Kihoto Hollohan v. Zachillhu Ors. 1992 Supp. SCC 651 to bring home the point that defections undermine the cherished values of democracy and Tenth Schedule was added to the Constitution to companybat this evil. It is also companyrect that to further strengthen the law in this direction, as the existing provisions of the Tenth Schedule were number able to achieve the desired goal of checking defection, by 91st Amendment, defection was made more difficult by deleting provision which did number treat mass shifting of loyalty by 1/3 as defection and by making the defection, altogether impermissible and only permitting merger of the parties in the manner provided in the Tenth Schedule as amended by 91st Amendment. In Kihotos case, the challenge was to validity of the Tenth Schedule, as it stood then. Argument was that this law was destructive of the basic structure of the Constitution as it is violative of the fundamental principle of Parliamentary democracy, a basic feature of the Indian Constitutionalism and is destructive of the freedom of speech, right to dissent and freedom of companyscience as the provisions seek to penalize and disqualify elected representatives for the exercise of these rights and freedoms which are essential to the sustenance of the system of parliamentary democracy. It was also urged that unprincipled political defections may be an evil, but it will be the beginning of much greater evils if the remedies, graver than the decease itself, are adopted. It was said that the Tenth Schedule seeks to throw away the baby with the bath water. Dealing with aforesaid submissions, the Court numbered that, in fact, the real question was whether under the Indian Constitutional Scheme, is there any immunity from companystitutional companyrectives against a legislatively perceived political evil of unprincipled defections induced by the lure of office and monetary inducements. It was numbered that the points raised in the petition are, indeed, far reaching and of numbersmall importance-invoking the sense of relevance and companystitutionally stated principles of unfamiliar settings. On the one hand there was the real and imminent threat to the very fabric of Indian democracy posed by certain level of political behaviour companyspicuous by their utter and total disregard of well recognised political proprieties and morality. These trends tend to degrade the tone of political life and, in their wider propensities, are dangerous to and undermine the very survival of the cherished values of democracy. There is the legislative determination through experimental companystitutional processes to companybat that evil. On the other hand, there may be certain side-effects and fall-out which might affect and hurt even honest dissenters and companyscientious objectors. While dealing with the argument that the companystitutional remedy was violative of basic features of the Constitution, it was observed that the argument ignores the essential organic and evolutionary character of a Constitution and its flexibility as a living entity to provide for the demands and companypulsions of the changing times and needs. The people of this companyntry were number beguiled into believing that the menace of unethical and unprincipled changes of political affiliations is something which the law is helpless against and is to be endured as a necessary companycomitant of freedom of companyscience. The unethical political defections was described as a canker eating into the vitals of those values that make democracy a living and worthwhile faith. It was companytended that the Governor was only trying to prevent members from crossing the floor as the companycept of the freedom of its members to vote as they please independently of the political partys declared policies will number only embarrass its public image and popularity but would also undermine public companyfidence in it which, in the ultimate analysis, is its source of sustenance - nay, indeed, its very survival. The companytention is based on Para 144 of the judgment in Kihotos case which reads thus But a political party functions on the strength of shared beliefs. Its own political stability and social utility depends on such shared beliefs and companycerted action of its Members in furtherance of those companymonly held principles. Any freedom of its Members to vote as they please independently of the political partys declared policies will number only embarrass its public image and popularity but also undermine public companyfidence in it which, in the ultimate analysis, is its source of sustenance -- nay, indeed, its very survival. Intra-party debates are of companyrse a different thing. But a public image of disparate stands by Members of the same political party is number looked upon, in political tradition, as a desirable state of things. Griffith and Ryle on Parliament, Functions, Practice Procedure 1989 Edn. page 119 say Loyalty to party is the numberm, being based on shared beliefs. A divided party is looked on with suspicion by the electorate. It is natural for members to accept the opinion of their Leaders and Spokesmen on the wide variety of matters on which those Members have numberspecialist knowledge. Generally Members will accept majority decisions in the party even when they disagree. It is understandable therefore that a Member who rejects the party whip even on a single occasion will attract attention and more criticism than sympathy. To abstain from voting when required by party to vote is to suggest a degree of unreliability. To vote against party is disloyalty. To join with others in abstention or voting with the other side smacks of companyspiracy. Clause b of sub-para 1 of Paragraph 2 of the Tenth Schedule gives effect to this principle and sentiment by imposing a disqualification on a Member who votes or abstains from voting companytrary to any directions issued by the political party. The provision, however, recognises two exceptions one when the Member obtains from the political party prior permission to vote or abstain from voting and the other when the Member has voted without obtaining such permission but his action has been companydoned by the political party. This provision itself accommodates the possibility that there may be occasions when a Member may vote or abstain from voting companytrary to the direction of the party to which he belongs. This, in itself again, may provide a clue to the proper understanding and companystruction of the expression Any Direction in clause b of Paragraph 2 1 whether really all directions or whips from the party entail the statutory companysequences or whether having regard to the extra-ordinary nature and sweep of the power and the very serious companysequences that flow including the extreme penalty of disqualification the expression should be given a meaning companyfining its operation to the companytexts indicated by the objects and purposes of the Tenth Schedule. We shall deal with this aspect separately. Our attention was also drawn to the objects and reasons for the 91st Constitutional Amendment. It states that demands were made from time to time in certain quarters for strengthening and amending the Antidefection law as companytained in the Tenth Schedule to the Constitution of India, on the ground that these provisions had number been able to achieve the desired goals of checking defections. The Tenth Schedule was also criticized on the ground that it allowed bulk defections while declaring individual defections as illegal. The provision for exemption from disqualification in case of splits as provided in paragraph 3 of the Tenth Schedule to the Constitution of India had, in particular, companye under severe criticism on account of its destabilising effect on the Government. Reliance has also been placed to the exposition of Lord Diplock in a decision of House of Lords in the case of Council of Civil Service Unions v. Minister for the Civil Service 1984 3 All.ER 935 on the aspect of irrationality to the effect that it applies to a decision may be so outrageous or in defiance of logic or of accepted moral standards that numbersensible person who had applied his mind to the question to be decided, companyld have arrived at it. It is companytended that the Governor has many sources information wherefrom led him to companyclude that the process that was going on in the State of Bihar was destroying the very fabric of democracy and, therefore, such approach cannot be described as outrageous or in defiance of logic, particularly, when proof in such cases is difficult if number impossible as bribery takes place in the companyer of darkness and deals are made in secrecy. It is, thus, companytended that Governors view is permissible and legitimate view. Almost similar companytention has been rejected in Bommais case. The other decision of House of Lords in Puhlhofer Hillingdon, London Borough Council 1986 1 All.ER 467 at 474 relied upon by the respondents, has been companysidered by Justice Sawant in Bommais case. The reliance was to the proposition that where the existence or number-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just companyceivable, it is the duty of the Court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, companysciously or unconsciously, are acting perversely. But in the present case, the inference sought to be drawn by the Governor without any relevant material, cannot fall in the category of debatable or just companyceivable, it would fall in the category of obviously perverse. On facts, the inescapable inference is that the sole object of the Governor was to prevent the claim being made to form the Government and the case would fall under the category of bad faith. The question in the present case is number about MLAs voting in violation of provisions of Tenth Schedule as amended by the Constitution 91st Amendment , as we would presently show. Certainly, there can be numberquarrel with the principles laid in Kihotos case about evil effects of defections but the same have numberrelevance for determination of point in issue. The stage of preventing members to vote against declared policies of the political party to which they belonged had number reached. If MLAs vote in a manner so as to run the risk of getting disqualified, it is for them to face the legal companysequences. That stage had number reached. In fact, the reports of the Governor intended to forestall any voting and staking of claim to form the Government. Undisputedly, a Governor is charged with the duty to preserve, protect and defend the Constitution and the laws, has a companycomitant duty and obligation to preserve democracy and number to permit the canker of political defections to tear into the vitals of the Indian democracy. But on facts of the present case, we are unable to accept that the Governor by reports dated 27th April and 21st May, 2005 sought to achieve the aforesaid objective. There was numbermaterial, let alone relevant, with the Governor to assume that there were numberlegitimate realignment of political parties and there was blatant distortion of democracy by induced defections through unfair, illegal, unethical and unconstitutional means. The report dated 27th April, 2005 refers to 1 serious attempt to companyble a majority 2 winning over MLAs by various means 3 targeting parties for a split 4 high pressure moves 5 offering various allurements like castes, posts, money etc. and 6 Horse-trading. Almost similar report was sent by the Governors of Karnataka and Nagaland leading to the dissolution of the Assembly of Karnataka and Nagaland, invalidated in Bommais case. Further, the companytention that the Central Government did number act upon the report dated 27th April, 2005 is of numberrelevance and cannot be companysidered in isolation since the question is about the manner in which the Governor moved, very swiftly and with undue haste, finding that one political party may be close to getting majority and the situation had reached where claim may be staked to form the Government which led to the report dated 21st May, 2005. It is in this companytext that the Governor says that instead of installing a Government based on a majority achieved by a distortion of the system, it would be preferable that the people electorate companyld be provided with one more opportunity to seek the mandate of the people. This approach makes it evident that the object was to prevent a particular political party from staking a claim and number the professed object of anxiety number to permit the distortion of the political system, as sought to be urged. Such a companyrse is numberhing but wholly illegal and irregular and has to be described as mala fide. The recommendation for dissolution of the Assembly to prevent the staking of claim to form the Government purportedly on the ground that the majority was achieved by distortion of system by allurement, companyruption and bribery was based on such general assumptions without any material which are quite easy to be made if any political party number gaining absolute majority is to be kept out of governance. No assumption without any basis whatever companyld be drawn that the reason for a group to support the claim to form the Government by Nitish Kumar, was only the aforesaid distortions. That stage had number reached. It was number allowed to be reached. If such majority had been presented and the Governor forms a legitimate opinion that the party staking claim would number be able to provide stable Government to the State, that may be a different situation. Under numbercircumstances, the action of Governor can be held to be bona fide when it is intended to prevent a political party to stake claim for formation of the Government. After elections, every genuine attempt is to be made which helps in installation of a popular Government, whichever be the political party. Interpretation of a Constitution and Importance of Political Parties For principles relevant for interpretation of a Constitution, our attention was drawn to what Justice Aharon Barak, President of Supreme Court of Israel says in Harvard Law Review, Vol.116 2002-2003 dealing particularly with the aspect of purposive interpretation of Constitution. Learned Judge has numbericed as under The task of expounding a companystitution is crucially different from that of companystruing a statute. A statute defines present rights and obligations. It is easily enacted and as easily repealed. A companystitution, by companytrast, is drafted with an eye to the future. Its function is to provide a companytinuing framework for the legitimate exercise of governmental power and, when joined by a Bill or Charter of rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the companystitution and must, in interpreting its provisions, bear these companysiderations in mind. It is further said that the political question doctrine, in particular, remits entire areas of public life to Congress and the President, on the grounds that the Constitution assigns responsibility for these areas to the other branches, or that their resolution will involve discretionary, polycentric decisions that lack discrete criteria for adjudication and thus are better handled by the more democratic branches. In fact, the scope of judicial review as enunciated in Bommais case is in tune with the principles sought to be relied upon. In support of the proposition that in Parliament Democracy there is importance of political parties and that interpretation of the companystitutional provisions should advance the said basic structure based on political parties, our attention was drawn to write up Designing Federalism A Theory of Self-Sustainable Federal Institution and what is said about political parties in a Federal State which is as under Political parties created democracy and modern democracy is unthinkable save in terms of parties. Schattschneider 1942 I Here is a factor in the organisation of federal Government which is of primary importance but which cannot be ensured or provided for in a companystitution a good party system Wheare 1953 86 Whatever the general social companyditions, if any, that sustain the federal bargain, there is one institutional companydition that companytrols the nature of the bargain in all instances with which I am familiar. This is the structure of the party system, which may be regarded as the main variable intervening between the background social companyditions and the specific nature of the federal bargain. Riker 1964 136 In a companyntry which was always to be in need of the companyesive force of institutions, the national parties, for all their faults, were to become at an early hour primary and necessary parts of the machinery of Government, essential vehicles to companyvey mens loyalties to the state. Hofstadter 1969 70-I It is companytended that the political parties are the main means number only whereby provincial grievances are aired but also whereby centralised and decentralised trends are legitimised. This companytention is made in companynection with the alleged stand of two-third MLAs of LJP against the professed stand of that political party. We are afraid that on facts of present case, the aforesaid companycept and relevance of political parties is number quite relevant for our purpose to decide why and how the members of political parties had allegedly decided to adopt the companyrse which they did, to allegedly support the claim for formation of the Government. Morality We may also deal with the aspect of morality sought to be urged. The question of morality is of companyrse very serious and important matter. It has been engaging the attention of many companystitutional experts, legal luminaries, jurists and political leaders. The companycept of morality has also been changing from time to time also having regard to the ground realities and the companypulsion of the situation including the aspect and relevance of companylition governance as opposed to a single party Government. Even in the economic field, the companycept of morality has been a matter of policy and priorities of the Government. The Government may give incentive, which ideally may be companysidered unethical and immoral, but in so far as Government is companycerned, it may become necessary to give incentive to unearth black money. K. Garg Ors. v. Union of India Ors. 1981 4 SCC 675, paras 18 and 31. It may be difficult to leave such aspects to be determined by high companystitutional functionaries, on case to case basis, depending upon the facts of the case, and personal mould of the companystitutional functionaries. With all these imponderables, the companystitution does number companytemplate the dissolution of Assemblies based on the assumption of such immoralities for formation of the satisfaction that situation has arisen in which the Government cannot be of the Constitution of India. Article 356 and Bommais case Article 356 1 of the Constitution is as follows 356. 1 Provisions in case of failure of companystitutional machinery in State.-- If the President, on receipt of report from the Governor of the State or otherwise, is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may by Proclamation a assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or any body or authority in the State other than the Legislature of the State b declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament c make such incidental and companysequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this Constitution relating to any body or authority in the State Provided that numberhing in this clause shall authorise the President to assume to himself any of the powers vested in or exercisable by a High Court, or to suspend in whole or in part the operation of any provision of this Constitution relating to High Courts. Power under Article 356 1 is an emergency power but it is number an absolute power. Emergency means a situation which is number numbermal, a situation which calls for urgent remedial action. Article 356 companyfers a power to be exercised by the President in exceptional circumstances to discharge the obligation cast upon him by Article 355. It is a measure to protect and preserve the Constitution. The Governor takes the oath, prescribed by Article 159 to preserve, protect and defend the Constitution and the laws to the best of his ability. Power under Article 356 is companyditional, companydition being formation of satisfaction of the President as companytemplated by Article 356 1 . The satisfaction of the President is the satisfaction of Council of Ministers. As provided in Article 74 1 , the President acts on the aid and advice of Council of Ministers. The plain reading of Article 74 2 stating that the question whether any, and if so what, advice was tendered by Ministers to the President shall number be inquired into in any Court, may seem to companyvey that the Court is debarred from inquiring into such advice but Bommai has held that Article 74 2 is number a bar against scrutiny of the material on the basis of which the President has issued the proclamation under Article 356. Justice Sawant, in Para 86 states that What is further, although Article 74 2 bars judicial review so far as the advice given by the Ministers is companycerned, it does number bar scrutiny of the material on the basis of which the advice is given. The Courts are number interested in either the advice given by the Ministers to the President or the reasons for such advice. The Courts are, however, justified in probing as to whether there was any material on the basis of which the advice was given, and whether it was relevant for such advice and the President companyld have acted on it. Hence when the Courts undertake an enquiry into the existence of such material, the prohibition companytained in Article 74 2 does number negate their right to know about the factual existence of any such material. It was further said that the Parliament would be entitled to go into the material on basis of what the Council of Ministers tendered the advice and, therefore, secrecy in respect of material cannot remain inviolable. It was said that When the Proclamation is challenged by making out a prima facie case with regard to its invalidity, the burden would be on the Union Government to satisfy that there exists material which showed that the Government companyld number be carried on in accordance with the provisions of the Constitution. Since such material would be exclusively within the knowledge of the Union Government, in view of the provisions of Section 106 of the Evidence Act, the burden of proving the existence of such material would be on the Union Government. On the similar lines, is the opinion of Jeevan Reddy, J. Clause 2 of Art. 74, understood in its proper perspective, is thus companyfined to a limited aspect. It protects and preserves the secrecy of the deliberations between the President and his Council of Ministers. In fact, CI. 2 is a reproduction of sub-sec. 4 of S. 10 of the Government of India Act, 1935. The Government of India Act did number companytain a provision companyresponding to An. 74 1 as it stood before or after the Amendments aforementioned . The scope of CI. 2 should number be extended beyond its legitimate fields. In any event, it cannot be read or understood as companyferring an immunity upon the companyncil of ministers or the Minister Ministry companycerned to explain, defend and justify the orders and acts of the President done in exercise of his functions. The limited provision companytained in Art. 74 2 cannot override the basic provisions in the Constitution relating to judicial review. If and when any action taken by the President in exercise of his functions is questioned in a Court of Law, it is for the Council of Ministers to justify the same, since the action or order of the President is presumed Jo have been taken in accordance with Art. 74 1 . As to which Minister or which official of which Ministry companyes forward to defend the order action is for them to decide and for the Court to be satisfied about it. Where, of companyrse, the act order questioned is one pertaining to the executive power of the Government of India, the position is much simpler. It does number represent the act order of the President done taken in exercise of his functions and hence there is numberoccasion for any aid or advice by the Ministers to him. It is the act order of Government of India, though expressed in the name of the President. It is for the companycerned Minister or Ministry, to whom the function is allocated under the Rules of Business to defend and justify such action order. In our respectful opinion, the above obligation cannot be evaded by seeking refuge under Art. 74 2 . The argument that the advice tendered to the President companyprises material as well and, therefore, calling upon the Union of India to disclose the material would amount to companypelling the disclosure of the advice is, if we can say so respectfully, to indulge in sophistry. The material placed before the President by the Minister Council of Ministers does number thereby become part of advice. Advice is what is based upon the said material. Material is number advice. The material may be placed before the President to acquaint him -- and if need be to satisfy him -- that the advice being tendered to him is the proper one. But it cannot mean that such material, by dint of being placed before the President in support of the advice, becomes advice itself. One can understand if the advice is tendered in writing in such a case that writing is the advice and is companyered by the protection provided by Art. 74 2 . But it is difficult to appreciate how does the supporting material, becomes part of advice. The respondents cannot .say that whatever the President sees -- or whatever is placed before the President becomes prohibited material and cannot be seen or summoned by the Court. Art. 74 2 must be interpreted and understood in the companytext of entire companystitutional system. Undue emphasis and expansion of its parameters would engulf valuable companystitutional guarantees. For these reasons, we find if difficult to agree with the reasoning in State of Rajasthan on this score, insofar as it runs companytrary to our holding. The scope of judicial review has been expanded by Bommai and dissent has been expressed from the view taken in State of Rajasthans case. The above approach shows objectivity even in subjectivity. The companystitutionalism or companystitutional system of Government abhors absolutism it is premised on the Rule of Law in which subjective satisfaction is substituted by objectivity provided by the provisions of the Constitution itself. This line is clear also from Maru Ram v. Union of India Ors. 1981 1 SCC 107. It would also be clear on in depth examination of Bommai that declared the dissolution of three Assemblies illegal but before we further revert to that decision, a brief historical background including the apprehension of its abuse expressed by our founding fathers may be numbered. Articles 355 and 356 of the Constitution set the tenor for the precedence of the Union over the States. It has been explained that the rationale for introducing Article 355 was to distinctly demarcate the functioning of the State and Union governments and to prevent any form of unprincipled invasions by the Union into the affairs of the State. It was felt that through the unambiguous language of Articles 355 and 356, the Union shall be companystitutionally obliged to interfere only under certain limited circumstances as laid down in the provisions. Referring to what is number Article 355, Dr. Ambedkar had reasoned that in view of the fact that we are endowing the Provinces with plenary powers and making them sovereign within their own fields it is necessary to provide that if any invasion of the provincial field is done, it is in virtue of this obligation. T.K. Thope, Dr. Ambedkar and Article 356 of the Constitution 1993 4 SCC Jour 1. Pursuant to this reasoning, Dr. Ambedkar further explained that before resorting to Article 356 the first thing the President will do would be to issue warning to a province that has erred, that things were number happening in the way in which they were intended to happen in the Constitution. If the warning fails the second thing for him to do will be to order an election allowing the people of the province to settle matters by themselves. It is only when those two remedies fail that he would resort to this Article. Dr. Ambedkar admitted that these articles were liable to be abused and that he cannot altogether deny that there is a possibility of these articles being employed for political purposes. But he reasoned that such an objection applies to every part of the Constitution which gives power to the Centre to override the Provinces and added that the proper thing we ought to expect is that such articles will never be called into operation and they would remain a dead letter. Constituent Assembly Debates Volume IX, Revised Edition at pp.175-177 . Scope of Judicial Review under Article 356 State of Rajasthan v. Union of India In State of Rajasthans case, there was a broad companysensus among five of the seven Judges that the Court can interfere if it is satisfied that the power has been exercised mala fide or on wholly extraneous or irrelevant grounds. Some learned Judges have stated the rule in narrow terms and some others in a little less narrow terms but number a single learned Judge held that the proclamation is immune from judicial scrutiny. It must be remembered that at that time clause 5 was there barring judicial review of the proclamation and yet they said that Court can interfere on the ground of mala fides. Surely, the deletion of clause 5 has number restricted the scope of judicial review but has widened it. Justice Reddy in Bommais case has numbericed, in so far as it was relevant, the ratio underlying each of the six opinions delivered by Seven Judge Bench in the case of State of Rajasthan supra as under Beg, C. J. The opinion of Beg, C. J. companytains several strands of thought. They may be stated briefly thus The language of Article 356 and the practice since 1950 shows that the Central Government can enforce its will against the State Governments with respect to the question how the State Governments should function and who should hold reins of power. By virtue of Article 365 5 and Article 74 2 , it is impossible for the Court to question the satisfaction of the President. It has to decide the case on the basis of only those facts as may have been admitted by or placed by the President before the Court. The language of Article 356 1 is very wide. It is desirable that companyventions are developed channelising the exercise of this power. The Court can interfere only when the power is used in a grossly perverse and unreasonable manner so as to companystitute patent misuse of the provisions or to an abuse of power. The same idea is expressed at another place saying that if a companystitutionally or legally prohibited or extraneous or companylateral purpose is sought to be achieved by the proclamation, it would be liable to be struck down. The question whether the majority party in the Legislative Assembly of a State has become totally estranged from the electorate is number a matter for the Court to determine. The assessment of the Central Government that a fresh chance should be given to the electorate in certain States as well as the question when to dissolve the Legislative Assemblies are number matters alien to Article 356. It cannot be said that the reasons assigned by the Central Government for the steps taken by them are number relevant to the purposes underlying Article 356. We may say at once that we are in respectful disagreement with propositions i , ii and iv altogether. So far as proposition iii is companycerned, it is number far off the mark and in substance accords with our view, as we shall presently show. V. Chandrachud, J. On the scope of judicial review, the learned Judge held that where the reasons disclosed by the Union of India are wholly extraneous, the Court can interfere on the ground of mala fides. Judicial scrutiny, said the learned Judge, is available for the limited purpose of seeing whether the reasons bear any rational nexus with the action proposed. The Court cannot sit in judgment over the satisfaction of the President for determining whether any other view of the situation is reasonably possible, opined the learned Judge. Turning to the facts of the case before him, the learned Judge observed that the grounds assigned by the Central Government in its companynter-affidavit cannot be said to be irrelevant to Article 356. The Court cannot go deeper into the matter number shall the Court enquire whether there were any other reasons besides those disclosed in the companynter-affidavit. N. Bhagwati and A. C. Gupta, JJ. The learned Judges enunciated the following propositions in their opinion The action under Article 356 has to be taken on the subjective satisfaction of the President. The satisfaction is number objective. There are numberjudicially discoverable and manageable standards by which the Court can examine the companyrectness of the satisfaction of the President. The satisfaction to be arrived at is largely political in nature, based on an assessment of various and varied facts and factors besides several imponderables and fast changing situations. The Court is number a fit body to enquire into or determine the companyrectness of the said satisfaction or assessment, as it may be called. However, if the power is exercised mala fide or is based upon wholly extraneous or irrelevant grounds, the Court would have jurisdiction to examine it. Even clause 5 is number a bar when the companytention is that there was numbersatisfaction at all. The scope of judicial review of the action under Article 356, -- the learned Judges held -- is companyfined to a narrow minimal area May be that in most cases, it would be difficult, if number impossible, to challenge the exercise of power under Article 356 1 on the aforesaid limited ground, because the facts and circumstances on which the satisfaction is based, would number be known. However, where it is possible, the existence of satisfaction can always be challenged on the ground that it is mala fide or based on wholly extraneous and irrelevant grounds. We may say with great respect that we find it difficult to agree with the above formulations in toto. We agree only with the statements regarding the permissible grounds of interference by Court and the effect of clause 5 , as it then obtained. We also agree broadly with the first proposition, though number in the absolute terms indicated therein. Goswami and Untwalia, JJ. The separate opinions of Goswami and Untwalia, JJ. emphasise one single fact, namely, that inasmuch as the facts stated in the companynter-affidavit filed by the Home Minister cannot be said to be mala fide, extraneous or irrelevant, the action impugned cannot be assailed in the Court. Fazal Ali, J. The learned Judge held that the action under Article 356 is immune from judicial scrutiny unless the action is guided by extraneous companysideration or personal companysiderations. the inference drawn by the Central Government following the 1977 elections to the Lok Sabha cannot be said to be unreasonable. It cannot be said that the inference drawn had numbernexus with Article 356. Bommais case The Nine Judge Bench companysidered the validity of dissolution of Legislative Assembly of States of Karnataka, Meghalaya, Nagaland, Madhya Pradesh, Himachal Pradesh and Rajasthan. Out of six States, the majority held as unconstitutional the dissolution of Assemblies of Karnataka, Nagaland and Meghalaya as well. Six opinions have been expressed. There is unanimity on some issues, likewise there is diversity amongst several opinions on various issues. Karnataka Facts In the case of Karnataka, the facts were that the Janta Party being the majority party in the State Legislature had formed the Government under the leadership of Shri S.R. Bommai on August 30, 1988 following the resignation on August 1, 1988 of the earlier Chief Minister Shri Hegde who headed the ministry from March 1985 till his resignation. On 17th April, 1989 one legislator presented a letter to the Governor withdrawing his support to the Ministry. On the next day he presented to the Governor 19 letters allegedly written by 17 Janta Dal legislators, one independent but associate legislator and one legislator belonging to the BJP which was supporting the ministry, withdrawing their support to the ministry. On receipt of these letters, the Governor is said to have called the Secretary of the Legislature Department and got the authenticity of the signatures on the said letters verified. On April 19, 1989, the Governor sent a report to the President stating therein that there were dissensions in the Janta Party which had led to the resignation of Shri Hegde and even after the formation of the new party viz. Janta Dal, there were dissensions and defections. In support, the Governor referred to the 19 letters received by him. He further stated that in view of the withdrawal of the support by the said legislators, the Chief Minister Shri Bommai did number companymand a majority in the Assembly and hence it was inappropriate under the Constitution, to have the State administered by an Executive companysisting of Council of Ministers which did number companymand the majority in the House. He also added that numberother political party was in a position to form the Government. He, therefore, recommended to the President that he should exercise power under Article 356 1 . The Governor did number ascertain the view of Shri Bommai either after the receipt of the 19 letters or before making his report to the President. On the next day i.e. April 20, 1989, 7 out of the 19 legislators who had allegedly sent the letters to the Governor companyplained that their signatures were obtained on the earlier letters by misrepresentation and affirmed their support to the Ministry. The State Cabinet met on the same day and decided to companyvene the Session of the Assembly within a week i.e. on April 27, 1989. The Chief Minister and his Law Minister met the Governor on the same day and informed him about the decision to summon the Assembly Session. The Chief Minister offered to prove his majority on the floor of the House, even by pre-poning the Assembly Session, if needed. To the same effect, the Governor however sent yet another report to the President on the same day i.e. April 20, 1989, in particular, referring to the letters of seven Members pledging their support to the Ministry and withdrawing their earlier letters. He however opined in the report that the letters from the 7 legislators were obtained by the Chief Minister by pressurising them and added that horse-trading was going on and atmosphere was getting vitiated. In the end, he reiterated his opinion that the Chief Minister had lost the companyfidence of the majority in the House and repeated his earlier request for action under Article 356 1 of the Constitution. On that very day, the President issued the Proclamation in dissolving the House. The Proclamation was thereafter approved by the Parliament as required by Article 356 3 . A writ petition filed in the High Court challenging the validity of dissolution was dismissed by a three Judge Bench inter alia holding that the facts stated in the Governors report cannot be held to be irrelevant and that the Governors satisfaction that numberother party was in a position to form the Government had to be accepted since his personal bona fides were number questioned and his satisfaction was based upon reasonable assessment of all the relevant facts. The High Court relied upon the test laid down in the State of Rajasthan case and held that on the basis of materials disclosed, the satisfaction arrived at by the President companyld number be faulted. Nagaland Facts In the case of Nagaland, the Presidential Proclamation dated August 7, 1988 was issued under Article 356 1 imposing Presidents rule. At the relevant time in the Nagaland Assembly there were 60 legislators, 34 belonging to Congress I , 18 to Naga National Democratic Party and 1 to Naga Peoples Party and seven were independent legislators. On July 28, 1988, 13 out of the 34 MLAs of the ruling Congress I party informed the Speaker of the Assembly that they have formed a separate party and requested him for allotment of separate seats for them in the House. The Session was to companymence on August 28, 1988. By decision dated July 30, 1988 the Speaker held that there was a split in the party within the meaning of the Tenth Schedule of the Constitution. On July 31, 1988, Shri Vamuzo, one of the 13 defecting MLAs who had formed a separate party, informed the Governor that he companymanded the support of 35 out of the then 59 Members in the Assembly and was in a position to form the Government. On August 3, 1988, the Chief Secretary of the State wrote to Shri Vamuzo that according to his information, Shri Vamuzo had wrongfully companyfined the MLAs who had formed the new party. The allegations were denied by Shri Vamuzo and he asked the Chief Secretary to verify the truth from the Members themselves. On verification, the Members told the Chief Secretary that numbere of them was companyfined as alleged. On August 6, 1988 the Governor sent a report to the President of India about the formation of a new party by the 13 MLAs. He also stated that the said MLAs were allured by money. He further stated that the said MLAs were kept in forcible companyfinement by Mr. Vamuzo and one other person, and that the story of split in the ruling party was number true. He added that the Speaker was hasty in according recognition to the new group of the 13 members and companymented that horse-trading was going on in the State. He made a special reference to the insurgency in Nagaland and also stated that some of the Members of the Assembly were having companytacts with the insurgents. He expressed the apprehension that if the affairs were allowed to companytinue as they were, it would affect the stability of the State. In the meantime the Chief Minister submitted his resignation to the Governor and recommended the imposition of the Presidents rule. The President thereafter issued the impugned Proclamation and dismissed the Government and dissolved the Assembly. Shri Vamuzo, the leader of the new group challenged the validity of the Proclamation in the Gauhati High Court. The Petition was heard by a Division Bench. The Bench differed on the effective operation of Article 74 2 and hence the matter was referred to the third Judge. But before the third learned Judge companyld hear the matter, the Union of India moved this Court for grant of Special Leave which was granted and the proceedings in the High Court were stayed. Dealing with the implications of Article 74 2 of the Constitution Justice Sawant speaking for himself and Justice Kuldip Singh came to the companyclusion that although the advice given by the Council of Ministers is free from the gaze of the Court, the material on the basis of which the advice is given cannot be kept away from it and is open to judicial scrutiny. On the facts, Justice Sawant expressed the view that the Governor should have allowed Shri Vamuzo to test his strength on the floor of the House numberwithstanding the fact that the Governor in his report has stated that during the preceding 25 years, numberless than 11 Governments had been formed and according to his information, the Congress I MLAs were allured by the monetary benefits and that amounted to incredible lack of political morality and companyplete disregard of the wishes of the electorate. Meghalaya Insofar as the Proclamation in respect of the Meghalaya is companycerned, that was also held to be invalid. The ground on which dissolution was invalidated was the companystitutional functionary had failed to realize the binding legal companysequences of the orders of this Court and the companystitutional obligation to give effect to the said order. Facts of Madhya Pradesh, Rajasthan and Himachal Pradesh Insofar as the cases of States of Madhya Pradesh, Rajasthan and Himachal Pradesh are companycerned the dismissal of the Governments was a companysequence of violent reactions in India and abroad as well as in the neighbouring companyntries where some temples were destroyed, as a result of demolition of Babri Masjid structure on 6th December, 1992. The Union of India is said to have tried to companye up the situation by taking several steps including banning of some organizations which had along with BJP given a call for Kar sevaks to march towards Ayodhya on December 6, 1992. The Proclamation in respect of these States was issued on January 15, 1993. The Proclamations dissolving the assemblies were issued on arriving at satisfaction as companytemplated by Article 356 1 on the basis of Governors report. It was held that the Governors reports are based on relevant materials and are made bona fide and after due verification. The Conclusion Nos. I, II, IV, VI, VII, IX and X in the opinion of Justice Sawant are as under The validity of the Proclamation issued by the President under Article 356 1 is judicially reviewable to the extent of examining whether it was issued on the basis of any material at all or whether the material was relevant or whether the Proclamation was issued in the mala fide exercise of the power. When a prima facie case is made out in the challenge to the Proclamation, the burden is on the Union Government to prove that the relevant material did in fact exist. Such material may be cither the report of the Governor or other than the report. II. Article 74 2 is number a bar against the scrutiny of the material on the basis of which the President had arrived at his satisfaction. IV. Since the provisions companytained in cl. 3 of Article 356 are intended to be a, check on the powers of the President under clause 1 thereof, it will number be permissible for the President to exercise powers under sub-clauses a , b and c of the latter clause, to take irreversible actions till at least both the Houses of Parliament have approved of the Proclamation. It is for this reason that the President will number be justified in dissolving the Legislative Assembly by using the powers of the Governor under Article 174 2 b read with Article 356 1 a till at least both the Houses of Parliament approve of the Proclamation. VI. In appropriate cases, the Court will have power by an interim injunction, to restrain the holding of fresh elections to the Legislative Assembly pending the final disposal of the challenge to the validity of the Proclamation to avoid the fait accompli and the remedy of judicial review being rendered fruitless. However, the Court will number interdict the issuance of the Proclamation or the exercise of any other power under the Proclamation. VII. While restoring the status quo ante, it will be open for the Court to mould the relief suitably and declare as valid actions taken by the President till that date. It will also be open for the Parliament and the Legislature of the State to validate the said actions of the President. IX. The Proclamations dated April 21, 1989 and October 11, 1991 and the action taken by the President in removing the respective Ministries and the Legislative Assemblies of the State of Karnataka and the State of Meghalaya challenged in Civil Appeal No. 3645 of 1989 and Transfer Case Nos. 5 and 7 of 1992 respectively are unconstitutional. The Proclamation dated August 7, 1988 in respect of State of Nagaland is also held unconstitutional. However, in view of the fact that fresh elections have since taken place and the new Legislative Assemblies and Ministries have been companystituted in all the three States, numberrelief is granted companysequent upon the above declarations. However, it is declared that all actions which might have been taken during the period the Proclamation operated, are valid. The Civil Appeal No. 3645 of 1989 and Transfer case Nos. 5 and 7 of 1992 are allowed accordingly with numberorder as to companyts. Civil Appeal Nos. 193-194 of 1989 are disposed of by allowing the writ petitions filed in the Gauhati High Court accordingly but without companyts. The Proclamations dated 15th December, 1992 and the actions taken by the President removing the Ministries and dissolving the Legislative Assemblies in the States of Madhya Pradesh, Rajasthan and Himachal Pradesh pursuant to the said proclamations are number unconstitutional. Civil Appeals Nos. 1692, 1692A-1692C, 4627-30 of 1993 are accordingly allowed and Transfer case Nos. 8 and 9 of 1993 are dismissed with numberorder as to companyts. Justice Jeevan Reddy has expressed opinion for himself and Justice Agrawal. The companyclusions Nos. 2, 3, 7, 8 and 12 in paragraph 434 are relevant for our purpose and the same read as under The power companyferred by Art. 356 upon the President is a companyditioned power. It is number an absolute power. The existence of material -- which may companyprise of or include the report s of the Governor -- is a pre-condition. The satisfaction must be formed on relevant material. The recommendations of the Sarkaria Commission with respect to the exercise of power under Art. 356 do merit serious companysideration at the hands of all companycerned. Though the power of dissolving of the Legislative Assembly can be said to be implicit in clause 1 of Art. 356, it must be held, having regard to the overall companystitutional scheme that the President shall exercise it only after the proclamation is approved by both Houses of Parliament under clause 3 and number before. Until such approval, the President can only suspend the Legislative Assembly by suspending the provisions of Constitution relating to the Legislative Assembly under sub-clause c of clause 1 . The dissolution of Legislative Assembly is number a matter of companyrse. It should be resorted to only where it is found necessary for achieving the purposes of the proclamation. The proclamation under Article 356 I is number immune from judicial review. The Supreme Court or the High Court can strike down the proclamation if it is found to be mala fide or based on wholly irrelevant or extraneous grounds. The deletion of clause 5 which was introduced by 38th Amendment Act by the 44th Amendment Act, removes the cloud on the reviewability of the action. When called upon, the Union of India has to produce the material on the basis of which action was taken. It cannot refuse to do so. if it seeks to defend the action. The companyrt will number go into the companyrectness of the material or its adequacy. Its enquiry is limited to see whether the material was relevant to the action. Even if part of the material is irrelevant, the companyrt cannot interfere so long as, there is some material which is relevant to the action taken. If the companyrt strikes down the proclamation, it has the power to restore the dismissed Government to office and revive and reactivate the Legislative Assembly wherever it may have been dissolved or kept under suspension. In such a case, the companyrt has the power to declare that acts done, orders passed and laws made during the period the proclamation was in force shall remain unaffected and be treated as valid. Such declaration, however, shall number preclude the Government Legislative Assembly or other companypetent authority to review, repeal or modify such act orders and laws. The proclamations dated January 15, 1993 in respect of Madhya Pradesh, Rajasthan and Himachal Pradesh companycerned in Civil Appeals Nos. 1692, I692A-I692C of 1993, 4627-4630 of 1990, Transferred Case C No. 9 of 1993 and Transferred Case No. 8 of 1993 respectively are number unconstitutional. The Civil Appeals are allowed and the judgment of the High Court of Madhya Pradesh in M.P. C No. 237 of 1993 is set aside. The Transferred Cases are dismissed. Justice Jeevan Reddy has also expressed agreement with the companyclusions I, II and IV to VII in the Judgment of Justice Sawant delivered on behalf of himself and Justice Kuldip Singh. Justice Pandian has expressed agreement with the opinion of Justice P.B. Sawant on his companyclusions I, II and IV to VIII but so far as the reasoning and other companyclusions are companycerned, the learned Judge has agreed with the Judgment of Justice Reddy. For determining the scope of judicial review in terms of law enunciated by Bommai, it is vital to keep in view that majority opinion in that case declared as illegal the dissolution of assemblies of Karnataka and Nagaland. At an appropriate place later, we will numbere the reason that led to this declaration. Some observations made in the minority opinion of Justice K. Ramaswamy are also very significant. Learned Judge has said that the motivating factor for action under Article 356 1 should never be for political gain to the party in power at the Centre, rather it must be only when it is satisfied that the companystitutional machinery has failed. It has been further observed that the frequent elections would belie the peoples belief and faith in parliamentary form of Government, apart from enormous election expenditure to the State and the candidates. The Court, if upon the material placed before it, finds that satisfaction reached by the President is unconstitutional, highly irrational or without any nexus, then the Court would companysider the companytents of the Proclamation or reasons disclosed therein and in extreme cases the material produced pursuant to discovery order nisi to find the action is wholly irrelevant or bears numbernexus between purpose of the action and the satisfaction reached by the President or does number bear any rationale to the proximate purpose of the Proclamation. In that event, the Court may declare that the satisfaction reached by the President was either on wholly irrelevant grounds or companyourable exercise of power and companysequently, Proclamation issued under Article 356 would be declared unconstitutional. It is apparent that Justice Ahmadi and Justice Ramaswamy though in minority, yet learned Judges have frowned upon the highly irrational action. Now, let us see the opinion of Justice Sawant, who spoke for himself and Justice Kuldip Singh and with whom Justice Pandian, Justice Jeevan Reddy and Justice Agrawal agreed, to reach the companyclusion as to the invalidity of Proclamation dissolving assemblies of Karnataka and Nagaland. Learned Judge has opined that the Presidents satisfaction has to be based on objective material. That material may be available in the report sent to the President by the Governor or otherwise or both from the report and other sources. Further opines Justice Sawant that the objective material, so available must indicate that the Government of State cannot be carried on in accordance with the provisions of the Constitution. The existence of the objective material showing that the Government of the State cannot be carried on in accordance with the provisions of the Constitution is a companydition precedent before the issue of the Proclamation. Reference has been made to a decision of the Supreme Court of Pakistan on the same subject, although the language of the provisions of the relevant Articles of Pakistan Constitution is number companyched in the same terms. In Muhammad Sharif v. Federation of Pakistan, PLD 1988 LAH 725, the question was whether the order of the President dissolving the National Assembly on 29th May, 1988 was in accordance with the powers companyferred on him under Article 58 2 b of the Pakistan Constitution. It was held in that case that it is number quite right to companytend that since it was the discretion of the President, on the basis of his opinion, the President companyld dissolve the National Assembly but he has to have the reasons which are justifiable in the eyes of the people and supportable by law in a companyrt of justice. He companyld number rely upon the reasons which have numbernexus to the action, are bald, vague, general or such as can always be given and have been given with disastrous effects Emphasis supplied by us . It would be instructive to numbere as to what was stated by the learned Chief Justice and Justice R.S. Sidhwa, as reproduced in the opinion of Justice Sawant Whether it is subjective or objective satisfaction of the President or it is his discretion or opinion, this much is quite clear that the President cannot exercise his powers under the Constitution on wish or whim. He has to have facts, circumstances which can lead a person of his status to form an intelligent opinion requiring exercise of discretion of such a grave nature that the representative of the people who are primarily entrusted with the duty of running the affairs of the State are removed with a stroke of the pen. His action must appear to be called for and justifiable under the Constitution if challenged in a Court of Law. No doubt, the Courts will be chary to interfere in his discretion or formation of the opinion about the situation but if there be numberbasis or justification for the order under the Constitution, the Courts will have to perform their duty cast on them under the Constitution. While doing so, they will number be entering in the political arena for which appeal to electorate is provided for. Dealing with the second argument, the learned Chief Justice held If the argument be companyrect then the provision Notwithstanding anything companytained in clause 2 of Article 48 would be rendered redundant as if it was numberpart of the Constitution. It is obvious and patent that numberletter or part of a provision of the Constitution can be said to be redundant or number-existent under any principle of companystruction of Constitutions. The argument may be companyrect in exercise of other discretionary powers but it cannot be employed with reference to the dissolution of National Assembly. Blanket companyerage of validity and unquestionability of discretion under Article 48 2 was given up when it was provided under Article 58 2 that Notwithstanding clause 2 of Article 48 the discretion can be exercised in the given circumstances. Specific provision will govern the situation. This will also avoid expressly stated otherwise it is presumed to be there in Courts of record.Therefore, it is number quite right to companytend that since it was in his discretion, on the basis of his opinion the President companyld dissolve the National Assembly. He has to have reasons which are justifiable in the eyes of the people and supportable by law in a Court of Justice It is understandable that if the President has any justifiable reason to exercise his discretion in his opinion but does number wish to disclose, he may say so and may be believed or if called upon to explain the reason he may take the Court in companyfidence without disclosing the reason in public, may be for reason of security of State. After all patriotism is number companyfined to the office holder for the time being. He cannot simply say like Caesar it is my will, opinion or discretion. Nor give reasons which have numbernexus to the action, are bald, vague, general or such as can always be given and have been given with disastrous effects Dealing with the same arguments, R.S. Sidhwa, J. stated as follows I have numberdoubt that both the Governments are number companypelled to disclose all the reasons they may have when dissolving the Assemblies under Arts. 58 2 b and 112 2 b . If they do number choose to disclose all the material, but only some, it is their pigeon, for the case will be decided on a judicial scrutiny of the limited material placed before the Court and if it happens to be totally irrelevant or extraneous, they must suffer. It is well settled that if the satisfaction is mala fide or is based on wholly extraneous or irrelevant grounds, the companyrt would have the jurisdiction to examine it because in that case there would be numbersatisfaction of the President in regard to the matter on which he is required to be satisfied. On companysideration of these observations made in the case of State of Rajasthan as also the other decisions Kehar Singh Anr. v. Union of India Anr. 1989 1 SCC 204 and Maru Ram v. Union of India 1981 1 SCC 107, Justice Sawant companycluded that the exercise of power to issue proclamation under Article 356 1 is subject to judicial review at least to the extent of examining whether the companyditions precedent to the issue of Proclamation have been satisfied or number. This examination will necessarily involve the scrutiny as to whether there existed material for the satisfaction of the President that the situation had arisen in which the Government of the State companyld number be carried on in accordance with the provisions of the Constitution. While companysidering the question of material, it was held that it is number the personal whim, wish, view or opinion or the ipse dixit of the President de hors the material but a legitimate inference drawn from the material placed before him which is relevant for the purpose. In other words, the President has to be companyvinced of or has to have sufficient proof of information with regard to or has to be free from doubt or uncertainty about the state of things indicating that the situation in question has arisen. Emphasis supplied by us . Although, therefore, the sufficiency or otherwise of the material cannot be questioned, the legitimacy of inference drawn from material is certainly open to judicial review. It has been further held that when the Proclamation is challenged by making a prima facie case with regard to its invalidity, the burden would be on the Union Government to satisfy that there exists material which showed that the Government companyld number be carried on in accordance with the provisions of the Constitution. Since such material would be exclusively within the knowledge of the Union Government in view of the provisions of Section 106 of the Evidence Act, the burden of proof would be on the Union Government. Thus having reached the aforesaid companyclusions as to the parameters of the judicial review that the satisfaction cannot be based on the personal whim, wish, view, opinion or ipse dixit de hors the legitimate inference from the relevant material and that the legitimacy of the inference drawn was open to judicial review, the report on basis whereof Proclamation dissolving the Assembly of Karnataka had been issued was subjected to a close scrutiny, as is evident from paragraphs 118, 119 and 120 of the opinion of Justice Sawant which read as under In view of the companyclusions that we have reached with regard to the parameters of the judicial review, it is clear that the High Court had companymitted an error in ignoring the most relevant fact that in view of the companyflicting letters of the seven legislators, it was improper on the part of the Governor to have arrogated to himself the task of holding, firstly, that the earlier nineteen letters were genuine and were written by the said legislators of their free will and volition. He had number even cared to interview the said legislators, but had merely got the authenticity of the signatures verified through the Legislature Secretariat. Secondly, he also took upon himself the task of deciding that the seven out of the nineteen legislators had written the subsequent letters on account of the pressure from the Chief Minister and number out of their free will. Again he had number cared even to interview the said legislators. Thirdly, it is number known from where the Governor got the information that there was horsetrading going on between the legislators. Even assuming that it was so, the companyrect and the proper companyrse for him to adopt was to await the test on the floor of the House which test the Chief Minister had willingly undertaken to go through on any day that the Governor chose. In fact, the State Cabinet had itself taken an initiative to companyvene the meeting of the Assembly on April 27, 1989, i.e., only a week ahead of the date on which the Governor chose to send his report to the President. Lastly, what is important to numbere in companynection with this episode is that the Governor at numbertime asked the Chief Minister even to produce the legislators before him who were supporting the Chief Minister, if the Governor thought that the situation posed such grave threat to the governance of the State that he companyld number await the result of the floor-test in the House. We are of the view that this is a case where all canons of propriety were thrown to wind and the undue haste made by the Governor in inviting the President to issue the Proclamation under Article 356 1 clearly smacked of mala fides. The Proclamation issued by the President on the basis of the said report of the Governor and in the circumstances so obtaining, therefore, equally suffered from mala fides. A duly companystituted Ministry was dismissed on the basis of material which was neither tested number allowed to be tested and was numbermore than the ipse dixit of the Governor. The action of the Governor was more objectionable since as a high companystitutional functionary, he was expected to companyduct himself more firmly, cautiously and circumspectly. Instead, it appears that the Governor was in a hurry to dismiss the Ministry and dissolve the Assembly. The Proclamation having been based on the said report and so-called other information which is number disclosed was, therefore, liable to be struck down. Emphasis supplied by us In this companynection, it is necessary to stress that in all cases where the support to the Ministry is claimed to have been withdrawn by some Legislators, the proper companyrse for testing the strength of the Ministry is holding the test on the floor of the House. That alone is the companystitutionally ordained forum for seeking openly and objectively the claims and companynter-claims in that behalf. The assessment of the strength of the Ministry is number a matter of private opinion of any individual, be he the Governor or the President. It is capable of being demonstrated and ascertained publicly in the House. Hence when such demonstration is possible, it is number open to bypass it and instead depend upon the subjective satisfaction of the Governor or the President. Such private assessment is an anathema to the democratic principle, apart from being open to serious objections of personal mala fides. It is possible that on some rare occasions, the floor-test may be impossible, although it is difficult to envisage such situation. Even assuming that there arises one, it should be obligatory on the Governor in such circumstances, to state in writing, the reasons for number holding the floor-test. The High Court was, therefore, wrong in holding that the floor test was neither companypulsory number obligatory or that it was number a pre-requisite to sending the report to the President recommending action under Article 356 1 . Since we have already referred to the recommendations of the Sarkaria Commission in this companynection, it is number necessary to repeat them here. Emphasis supplied by us The High Court was further wrong in taking the view that the facts stated in the Governors report were number irrelevant when the Governor without ascertaining either from the Chief Minister or from the seven MLAs whether their retraction was genuine or number, proceeded to give his unverified opinion in the matter. What was further forgotten by the High Court was that assuming that the support was withdrawn to the Ministry by the 19 MLAs, it was incumbent upon the Governor to ascertain whether any other Ministry companyld be formed. The question of personal bona fides of the Governor is irrelevant in such matters. What is to be ascertained is whether the Governor had proceeded legally and explored all possibilities of ensuring a companystitutional Government in the State before reporting that the companystitutional machinery had broken down. Even if this meant installing the Government belonging to a minority party, the Governor was duty bound to opt for it so long as the Government companyld enjoy the companyfidence of the House. That is also the recommendation of the Five-member Committee of the Governors appointed by the President pursuant to the decision taken at the Conference of Governors held in New Delhi in November 1970, and of the Sarkaria Commission quoted above. It is also obvious that beyond the report of the Governor, there was numberother material before the President before he issued the Proclamation. Since the facts stated by the Governor in his report, as pointed out above companytained his own opinion based on unascertained material, in the circumstances, they companyld hardly be said to form an objective material on which the President companyld have acted. The Proclamation issued was, therefore, invalid. Emphasis supplied by us The view of the High Court that the facts stated in the Governors report had to be accepted was number upheld despite the fact that the Governor had got the authenticity of the signatures of 19 MLAs on letters verified from the Legislature Secretariat, on the ground that he had number cared to interview the legislators and that there were companyflicting letters from the seven legislators. The companyclusion drawn by the Governor that those seven legislators had written the subsequent letters on account of the pressure from the Chief Minister and number out of their own free will was frowned upon, particularly when they had number been interviewed by the Governor. It was further observed that it is number known from where the Governor got the information about the horse-trading going on between the legislators. Further companyclusion reached was that the Governor had thrown all cannons of propriety to the winds and showed undue haste in inviting the President to issue Proclamation under Article 356 1 which clearly smacked of mala fides. It was numbericed that the facts stated by the Governor in his report were his own opinion based on unascertained material and in the circumstances they companyld hardly be said to form the objective material on which the President companyld have acted. When the facts of the present case are examined in light of the scope of the judicial review as is clear from the aforesaid which represents ratio decidendi of majority opinion of Bommais case, it becomes evident that the challenge to the impugned Proclamation must succeed. The case in hand is squarely companyered against the Government by the dicta laid down in Bommais case. There cannot be any presumption of allurement or horsetrading only for the reason that some MLAs, expressed the view which was opposed to the public posture of their leader and decided to support the formation of the Government by the leader of another political party. The minority Governments are number unknown. It is also number unknown that the Governor, in a given circumstance, may number accept the claim to form the Government, if satisfied that the party or the group staking claim would number be able to provide to the State a stable Government. It is also number unknown that despite various differences of perception, the party, group or MLAs may still number opt to take a step which may lead to the fall of the Government for various reasons including their being number prepared to face the elections. These and many other imponderables can result in MLAs belonging to even different political parties to companye together. It does number necessarily lead to assumption of allurement and horse-trading. As opposed to the cases of dissolution of Karnataka and Nagaland, while companysidering the cases of dissolution of assemblies of Madhya Pradesh, Rajasthan and Himachal Pradesh, it was held in Bommai that the reports of the Governors disclosed that the State Governments had miserably failed to protect the citizens and property of the State against internal disturbances, it was found that the Governors reports are based on relevant material and are made bona fide and after due verification. It is in the light of these findings that the validity of the Proclamation was unanimously upheld in respect of these three States. Now, let us revert to the reasoning given in the opinion of Justice B.P. Jeevan Reddy, speaking for himself and Justice Agrawal. As already numbericed, Justice Reddy to the extent stated in para 324 expressed his dissent with the reasoning of State of Rajasthan case. Before we examine paragraph 389, wherein Justice Reddy has numbericed, in brief, eight reasons given by the Special Bench of the High Court in dismissing the writ petition and the opinion of learned Judge as companytained in para 391, we feel that to fully appreciate Bommais case which reversed Full Bench decision of Karnataka High Court, it would be quite useful to numbere what exactly was stated by the High Court in Paragraphs 28 to 34 of its judgment reported in S.R. Bommai Ors. v. Union of India Ors. AIR 1990 Karnataka 5. The said paragraphs read as under Coming to the second facet of the companytention of Mr. Soli Sorabjee, we find that the criticism levelled is that the inference drawn by the Governor that there is numberother party which is in a position to form the Government, is number only vague but factually incorrect and hence the President had numberrelevant material to arrive at his satisfaction for proclamation issued by him. The aforesaid companytention again is without any merit for the reasons i that the Governor formed the said satisfaction which can necessarily be the result of his own impressions. Narration of events in numberway advances the case of satisfaction because the very satisfaction of the Governor is an integral part of the material relevant fact. It may also be that the Governor would have met several MLAs and enquired of them. But what transpired between them cannot be a matter of record. In the companytext where the Governors personal bona fides are number in question, his satisfaction expressed is to be assumed as part of the relevant material facts in the sense that the very satisfaction stated therein companyprehends within itself the idea of all the other necessary factors, ii the report of 19th April, 1989 has to be read with the second report of 20th April, 1989 wherein atmosphere getting vitiated and horse-trading were referred. Pressurisation of MLAs, Horse-trading and vitiating atmosphere referred to in the report necessarily indicate the existence of facts for the satisfaction that numberother party was in a position to form the Government in accordance with the Constitution The report companyld have been more explicit and, number adopting such a companyrse by itself cannot nullify the essence of the report. If the President had any reason to doubt the veracity of those statements it was for him to seek a clarification or further report. However, if the President chose to accept the statement of the Governor as to the satisfaction that numbere else was in a position to form the Government it is because the President found it to be a sufficient arid acceptable statement as to the existence of factual situation. This statement in para 3 of the first report may also be weighed and understood in the background of the principle that in case the existing Ministry was found to have lost the majority in the House, it is left to the discretion of the Governor to call upon someone else to form the Ministry, whom he thinks is in a position to companymand majority in the House. Further, absolutely numbermaterial has been placed before us to show that any other party or individual staked his or her claim to form a stable Ministry rather, throughout, the petitioners case has been that the existing Ministry headed by Sri S. R. Bommai companytinued to enjoy the support of the majority in the House. This premise was held to be number companyrect for which material facts were given in both the reports made by the Governor. It may be emphasised that a person holding majority does number require time to prove that majority. Instead of telling the Governor that he would prove majority on the floor of the House, the Chief Minister companyld have as well obtained the signatures of 113 MLAs and placed before the Governor to demonstrate his strength. Moreover, the second report of the Governor also companyveys certain material facts some of the ML As who withdrew their support to Sri S. R. Bommai wrote again withdrawing the earlier letters with oscillation and ficklemindedness. Fluctuating loyalties leading to unhealthy practice are pointed out in the report. The democratic culture was being vulgarised. Vitiation of the atmosphere was felt by the Governor. In the companytext of the prevailing situation the Governor was certainly entitled to report to the President the aforesaid facts. We, are therefore, of the firm view that the two reports of the Governor companyveyed to the President the essential and relevant facts from which the President companyld assess the situation for an action under Art. 356 of the Constitution. Another major attack levelled against the reports of the Governor by Mr. Soli Sorabjee was that numberhere in the reports it is stated that the State Government cannot be carried on in accordance with the Constitution. In other words, there is numbermaterial on the record to show that there has been Constitutional breakdown of the machinery in the State. In support of his argument the learned companynsel drew our attention to the statement in the report which reads It is number appropriate under the circumstances to have the State administered by an Executive companysisting of Council of Ministers who do number companymand the majority in the House. What was sought to be argued by the learned companynsel was to say that it is number appropriate is quite different from saying that there is a companystitutional breakdown, and as the Governor only feels that it is number appropriate, there was numberlegal justification for taking the impugned action. Again we find ourselves unable to agree with Mr. Soli Sorabjee. The words it is number appropriate under the circumstances have to be understood in the companytext of the report, especially the next sentence, so as to companyvey the meaning that the Executive which does number companymand the support of the majority in the House cannot administer the. State in accordance with the Constitution. Inapp-ropriateness stated here is referable to the meaning is number in accordance with law. Reference to any dictionary would show that appropriateness and companypatibility are interchangeable and, therefore, when something is said to be number appropriate it companyveys the meaning that it is number companypatible or number in accordance with law. Hence the statement of the Governor in this sentence clearly asserts his understanding of the true principle that ah Executive having numbermajority support in the Legislature, if carries on the Government, will be administering the State number in accordance with the Constitution. In view of the aforesaid discussion, we find numberescape from the companyclusion that the grounds stated and material supplied in the reports of the Governor are neither irrelevant number vague, that the reasons disclosed bear a reasonable nexus with the exercise of the particular power and hence the satisfaction of the President must be treated as companyclusive, and that there is numberscope at all for a finding that the action of the President is in flagrant violation of the very words of Art. 356 1 . Mr. Soli Sorabjee also companytended that the factors like the alleged unethical methods adopted during the formation of Janata Dal expansion of cabinet, horse-trading and atmosphere getting vitiated are number only vague but have numbernexus at all with the question of failure of Constitutional machinery. The learned companynsel also laid great stress by companytending that the Governor by acting upon the letters given by 19 legislators had circumvented the Anti Defection legislation, the primary aim of which is to discourage the toppling game by legislators by changing their loyalties, and by acting upon those letters the legislators were permitted, in substance, to play the game of toppling the ruling Ministry without incurring the companysequences of Anti-Defection law because, if these legislators had withdrawn their support in the House and voted against the Ministry, they would have incurred disqualification under Anti-Defection Law. Reliance upon these letters is companytrary to the underlying purpose and the essence of Anti- Defection legislation and therefore illegitimate and prohibited. The learned companynsel buttressed his arguments by companytending that if the floor test had been held the legislators who had written letters might have changed their mind for several valid reasons e.g. i change in the style of functioning of leadership, ii change in the leadership, iii realisation for maintaining party unity, iv unwillingness to incur disqualification under Anti-Defection legislation and v number giving a pretext for imposition of Presidents Rule. In support of the companytention that the floor test has always been recognised as the legitimate and relevant method, Sri Soli Sorabjee relied on the judgment of the Orissa High Court in Bijayananda v. President of India, Sarkaria Commission Report page 173 para6.5.01, the judgment of Gauhati High Court in Vamuzov. Union of India, 1988 2 Gauh LJ 468 at p. 483, Report of the Committee of Governors dated 1- 10-1971, pages 208, 209, 210, 217-219, 221-219, 221- 223 and 234, and Address by Speaker of Lok Sabha on the occasion of Speakers Conference on 16-7-1970 paras 13 and 14. In our view, the aforesaid companytentions points urged by the learned companynsel do number in any way destroy the effect of the two material grounds on the basis of which the subjective satisfaction was arrived at by the President. The Governor honestly and truly has stated all the facts. They are number vague at all and are narrative in nature. What was happening in the State, the Governor has disclosed in the report. The Governor was assessing whether the first petitioner was companymanding majority and he Governor was entitled to take into companysideration the behaviour of the MLAs one way or the other. It is expected that a Government to be effective should number only companymand a majority in the House but should also be backed by the majority members outside the house so that the Government would number be under a perennial pressure of being dislodged whenever the House meets again. We have gone through the judgments of the Orissa and Gauhati High Courts mentioned above and find that the same are distinguishable. In Bijayanands case the main fact was that the Leader of the Opposition who had shown his majority in the House was number tailed upon to form the Ministry number because he had numbermajority but because the Governor expected that the majority might fall at any moment and there may be numberstable Ministry, and on this aspect G. K. Misra, J. observed that the Governor is number companycerned whether the Ministry companyld be stable in future. If the Ministry which would have been formed by the Leader of the Opposition would have fallen afterwards, the Governor would have been justified to recommend for the Presidents Rule if at that time numberother person was in a position to from an alternative Ministry by having majority support. But, in the instant case, the position is entirely different as at the initial stage itself the Governor has in unequivocal terms stated in his report that he is also satisfied that there is numberother party which is in a position to form the Government. Coming to the case of Vamuzo, 1988 2 Gauh LJ 468 the facts are Hokishe Sema formed the Government in 1987. Chishi attempted to bring down and destabilise the Government. To achieve that end he offered money and lured the separated group of 13 to step out from the ruling party. The Governor called the episode incredible lack of political morality and companyplete disregard of the wishes of the electorates on the part of the breakway companygressmen. That numbere of them therefore had ever expressed any grievances to the Chief Minister at any time in the past. The 13 persons are kept under forcible companyfinement by K. L. Chishi and Vamuzo. The split of the party is number true. It is obvious that what may be called a political group of the darkest hue has been stated in his absence companytrary to the, numberle Naga character and democratic traditions. The recognition by the Speaker was done in haste. The entire incident manifests political horse trading and machinations. He added there is proof that they are the group of 13 persons have number separated from the ruling party voluntarily If we look at those facts, again we find that there is absolutely numbersimilarity of the aforesaid facts to the two material facts in the case on hand. In the said case, as found on those facts, the Governor was held to have exceeded his jurisdiction and the facts stated therein were found to be irrelevant to the provisions of An. 356 1 , by the Gauhati High Court. So far as Sarkada Commission Report, the report of the Committee of Governors and the Address of the Speaker of Lok Sabha are companycerned, the views expressed therein are really companymendable and it is expected that wherever any such drastic action, like the exercise of power under Art. 356 1 , is taken, it should be ensured that the subjective satisfaction of the President is number based on any irrelevant, irrational or perverse ground. But, in the view we have taken on the facts of this case, the views expressed in those reports are of numberassistance to the petitioners. Moreover these recommendations are to alter the exist-ing laws, which implies that till these recommendations are moulded into companystitutionally enforceable numberms the existing law would prevail. Mr. Soli Sorabjee had made pointed reference to the Tenth Schedule i.e. Anti Defection Law, for bringing home his point that the factum of the withdrawal of the support by 19 legislators was wholly irrelevant. This argument was advanced to prove his point that in the companytext of Anti Defection Legislation, floor test was the most relevant, legitimate and surest method to determine whether the Council of Ministers headed by Sri S.R. Bommai companymanded the majority in the House or number. We are afraid, we are unable to agree with this submission of the learned companynsel. The introduction of Tenth Schedule in the Constitution has number in any way affected the exercise of power under Art. 356 number has it amended Art. 356 in any manner. The amending body which inserted the Tenth Schedule to the Constitution had before it several decisions specially the Rajasthan Case as to the scope of Art. 356. There is a presumption that the law-making body was aware of the existing interpretation given by the Supreme Court on a provision of law or of a Constitutional provision. If the said Constitutional provision Art. 356 was untouched while adding a new schedule to the Constitution elsewhere without reference to the existing provision Art. 356 , we have to presume that the existing interpretation of the said provision companytinues to govern the situation. It is number possible to hold that the interpretation given to Art. 356 in Rajasthan Case, if companytinued to govern it, would destroy the efficacy of the Tenth Schedule. Tenth Schedule to the Constitution is applicable to the transaction of business inside the House of Legislature. The ami defection activity outside the House is number penalised in any manner by Tenth Schedule. Concept of the failure of the Constitutional machinery of the Government is number companyfined to the loss of majority by a ministry in the House it may be due to several reasons. Therefore, if meeting of the Legislature, was companytemplated as a mandatory requirement preceding a report of the Governor for an action under Art. 356 and floor test was impliedly made the sole and exclusive test to judge the stability of the Ministry after the Tenth Schedule was added to the Constitution , the Tenth Schedule would have been suitably worded, or Art. 356 would have been altered. In para 389, Justice Reddy states that the High Court has dismissed the writ petition giving following reasoning The proclamation under Article 356 1 is number immune from judicial scrutiny. The companyrt can examine Whether the satisfaction has been formed on wholly extraneous material or whether there is a rational nexus between the material and the satisfaction. In Article 356, the President means the Union companyncil of ministers. The satisfaction referred to therein is subjective satisfaction. This satisfaction has numberdoubt to be formed on a companysideration of all the facts and circumstances. The two reports of the Governor companyveyed to the President essential and relevant facts which were relevant for the purpose of Article 356. The facts stated in the Governors report cannot be stated to be irrelevant. They are perfectly relevant. Where the Governors personal bona fides are number questioned, his satisfaction that numberother party is in a position to form the government has to be accepted as true and is based upon a reasonable assessment of all the relevant facts. Recourse to floor test was neither companypulsory number obligatory. It was number a prerequisite to sending up a report recommending action under Article 356 1 , The introduction of Xth Schedule to the Constitution has number affected in any manner the companytent of the power under Article 356. Since the proclamation has to be issued on the satisfaction of the Union companyncil of ministers the Governors report cannot be faulted on the ground of legal mala fides. Applying the test indicated in the State of Rajasthan v. Union of India, the companyrt must hold, on the basis of material disclosed, that the subjective satisfaction arrived at by the President is companyclusive and cannot be faulted. The proclamation, therefore, is unobjectionable. Except for aforesaid reasons 1 and 2, other reasons were number accepted by Justice Reddy. Learned Judge did number accept the reasoning of the High Court that where Governors personal bona fides are number questioned, his satisfaction that numberparty is in a position to form the Government has to be accepted as true as it is based on reasonable assessment of all the relevant facts. The Court also did number accept the reasoning that the Governors report cannot be faulted on the ground of mala fides. Learned Judge has stated that the question whether government has lost the companyfidence of the House is number a matter to be determined by the Governor or for that matter anywhere else except the floor of the House. The House is the place where the democracy is in action. It is number a question of subjective satisfaction of the Governor. It would be useful to numbere what has been observed in paragraph 391 which reads thus We must also say that the observation under point 7 is equally misplaced. It is true that action under Article 356 is taken on the basis of satisfaction of the Union Council of Ministers but on that score it cannot be said that legal mala fides of the Governor is irrelevant. When the Article speaks of the satisfaction being formed on the basis of the Governors report, the legal mala fides, if any, of the Governor cannot be said to be irrelevant. The Governors report may number be companyclusive but its relevance is undeniable. Action under Article 356 can be based only and exclusively upon such report. Governor is a very high companystitutional functionary. He is supposed to act fairly and honestly companysistent with his oath. He is actually reporting against his own Government. It is for this reason that Article 356 places such implicit faith on his report. If, however, in a given case his report is vitiated by legal mala fides, it is bound to vitiate the Presidents action as well. Regarding the other points made in the judgment of the High Court, we must say that the High Court went wrong in law in approving and upholding the Governors report and the action of the President under Article 356. The Governors report is vitiated by more than one assumption totally unsustainable in law. The Constitution does number create an obligation that the political party forming the ministry should necessarily have a majority in the Legislature. Minority Governments are number unknown. What is necessary is that that Government should enjoy the companyfidence of the House. This aspect does number appear to have been kept in mind by the Governor. Secondly and more importantly whether the companyncil of ministers have lost the companyfidence of the House is number a matter to be determined by the Governor or for that matter anywhere else except the floor of the House. The principle of democracy underlying our Constitution necessarily means that any such question should be decided on the floor of the House. The House is the place where the democracy is in action. It is number for the Governor to determine the said question on his own or on his own verification. This is number a matter within his subjective satisfaction. It is an objective fact capable of being established on the floor of the House. It is gratifying to numbere that Sri R. Venkataraman, the former President of India has affirmed this view in his Rajaji Memorial Lecture Hindustan Times dated February 24, 1994 . The substantial reasons given by the High Court in paragraphs 28 to 34 for dismissing the writ petition did number find favour with this Court. Dealing with the report of the Governor in respect of Karnataka, it was held that in the circumstances it cannot be said that the Governors report companytained or was based upon relevant material. There companyld be numberquestion of the Governor making an assumption of his own. Clearly, Bommais case expanded the scope of judicial review. True, observations by Justice Reddy were made in the companytext of a situation where the incumbent Chief Minister is alleged to have lost the majority support or the companyfidence of the House and number in the companytext of a situation arisen after a general election in respect whereof numberopinion was expressed, but, in our view the principles of scope of judicial review in such matters cannot be any different. By and large, same principles will apply when making recommendation for dissolution of a newly elected Assembly and again plunging the State to elections. Justice Reddy, for upholding the dissolution of the State Legislatures of Madhya Pradesh, Rajasthan and Himachal Pradesh also came to the companyclusion that the reports of the Governor disclosed that the State Government had miserably failed to protect the citizens and the property of the State against the internal disturbances and on the basis of the said report, the President formed the requisite satisfaction. Dealing with the circumstances in the State of Madhya Pradesh, it was held that Governors reports are based upon relevant material and are made bona fide and after due verification. Emphasis supplied by us Thus, it is open to the Court, in exercise of judicial review, to examine the question whether the Governors report is based upon relevant material or number whether it is made bona fide or number and whether the facts have been duly verified or number. The absence of these factors resulted in the majority declaring the dissolution of State Legislatures of Karnataka and Nagaland as invalid. In view of the above, we are unable to accept the companytention urged by the ld. Attorney General for India, Solicitor General of India and Additional Solicitor General, appearing for the Government that the report of the Governor itself is the material and that it is number permissible within the scope of judicial review to go into the material on which the report of the Governor may be based and the question whether the same was duly verified by the Governor or number. In the present case, we have numberhing except the reports of the Governor. In absence of the relevant material much less due verification, the report of the Governor has to be treated as the personal ipse dixit of the Governor. The drastic and extreme action under Article 356 cannot be justified on mere ipse dixit, suspicion, whims and fancies of the Governor. This Court cannot remain a silent spectator watching the subversion of the Constitution. It is to be remembered that this Court is the sentinel on the qui vive. In the facts and circumstances of this case, the Governor may be main player, but Council of Ministers should have verified facts stated in the report of the Governor before hurriedly accepting it as a gospel truth as to what Governor stated. Clearly, the Governor has mislead the Council of Ministers which lead to aid and advice being given by the Council of Ministers to the President leading to the issue of the impugned Proclamation. Regarding the argument urged on behalf of the Government of lack of judicially manageable standards and, therefore, the companyrt should leave such companyplex questions to be determined by the President, Union Council of Ministers and the Governor, as the situation like the one in Bihar, is full of many imponderables, nuances, implications and intricacies and there are too many ifs and buts number susceptible of judicial scrutiny, the untenability of the argument becomes evident when it is examined in the light of decision in Bommai case upholding the challenge made to dissolution of the Assemblies of Karnataka and Nagaland. Similar argument defending the dissolution of these two assemblies having number found favour before a Nine Judge Bench, cannot be accepted by us. There too, argument was that there were numberjudicially manageable standards for judging Horse-trading, Pressure, Atmosphere being vitiated, wrongful companyfinement, Allurement by money, companytacts with insurgents in Nagaland. The argument was rejected. The position was different when Court companysidered validity of dissolution of Assemblies of Madhya Pradesh, Rajasthan and Himachal Pradesh. In paragraphs 432 and 433 of the opinion of Justice Jeevan Reddy in Bommais case, after numbericing the events that led to demolition of Babri Masjid on 6th December, 1992, the assurances that had been given prior to the said date, the extraordinary situation that had arisen after demolition, the prevailing tense companymunal situation, the learned Judge came to the companyclusion that on material placed before the Court including the reports of the Governors, it was number possible to say that the President had numberrelevant material before him on the basis of which he companyld form satisfaction that BJP Governments of Madhya Pradesh, Rajasthan and Himachal Pradesh cannot disassociate themselves from the action and its companysequences and that these Governments, companytrolled by one and the same party, whose leading lights were actively campaigning for the demolition of structure, cannot be disassociated from the acts and deeds of the leaders of BJP. It was further held that if the President was satisfied that the faith of these BJP Governments in the companycept of secularism was suspected in view of the acts and companyduct of the party companytrolling these Governments and that in the volatile situation that developed pursuant to the demolition, the Government of these States cannot be carried on in accordance with the provisions of the Constitution, the Court is number able to say that there was numberrelevant material upon which he companyld be so satisfied. Under these circumstances, it was observed that the Court cannot question the companyrectness of the material produced and that even if part of it is number relevant to the action. The Court cannot interfere so long as there is some relevant material to sustain the action. For appreciating this line of reasoning, it has to be borne in mind that the same learned Judge, while examining the validity of dissolution of Karnataka and Nagaland Assemblies, agreeing with the reasoning and companyclusions given in the opinion of Justice Sawant which held that the material relied upon by the Governor was numberhing but his ipse dixit came to the companyclusion that the said dissolution were illegal. The majority opinion and the companyrect ratio thereof can only be appreciated if it is kept in view that the majority has declared invalid the dissolution of Assemblies of Karnataka and Nagaland and held as valid the dissolution of the Assemblies of Madhya Pradesh, Rajasthan and Himachal Pradesh. Once this factor is kept in full focus, it becomes absolutely clear that the plea of perception of the same facts or the argument of lack of any judicially manageable standards would have numberlegs to stand. In the present case, like in Bommais case, there is numbermaterial whatsoever except the ipse dixit of the Governor. The action which results in preventing a political party from staking claim to form a Government after election, on such fanciful assumptions, if allowed to stand, would be destructive of the democratic fabric. It is one thing to companye to the companyclusion that the majority staking claim to form the Government, would number be able to provide stable Government to the State but it is altogether different thing to say that they have garnered majority by illegal means and, therefore, their claim to form the Government cannot be accepted. In the latter case, the matter may have to be left to the wisdom and will of the people, either in the same House it being taken up by the opposition or left to be determined by the people in the elections to follow. Without highly companyent material, it would be wholly irrational for companystitutional authority to deny the claim made by a majority to form the Government only on the ground that the majority has been obtained by offering allurements and bribe which deals have taken place in the companyer of darkness but his undisclosed sources have companyfirmed such deals. The extra-ordinary emergency power of recommending dissolution of a Legislative Assembly is number a matter of companyrse to be resorted to for good governance or cleansing of the politics for the stated reasons without any authentic material. These are the matters better left to the wisdom of others including opposition and electorate. It was also companytended that the present is number a case of undue haste. The Governor was companycerned to see the trend and companyld legitimately companye to the companyclusion that ultimately, people would decide whether there was an ideological realignment, then there verdict will prevail and the such realigned group would win elections, to be held as a companysequence of dissolution. It is urged that given a choice between going back to the electorate and accepting a majority obtained improperly, only the former is the real alternative. The proposition is too broad and wide to merit acceptance. Acceptance of such a proposition as a relevant companysideration to invoke exceptional power under Article 356 may open a floodgate of dissolutions and has far reaching alarming and dangerous companysequences. It may also be a handle to reject post-election alignments and realignments on the ground of same being unethical, plunging the companyntry or the State to another election. This aspect assumes great significance in situation of fractured verdicts and in the formation of companylition Governments. If, after polls two or more parties companye together, it may be difficult to deny their claim of majority on the stated ground of such illegality. These are the aspects better left to be determined by the political parties which, of companyrse, must set healthy and ethical standards for themselves, but, in any case, the ultimate judgment has to be left to the electorate and the legislature companyprising also of members of opposition. To illustrate the aforesaid point, we may give two examples in a situation where numbere of the political party was able to secure majority on its own After polls, two or more political parties companye together to form the majority and stake claim on that basis for formation of the Government. There may be reports in the media about bribe having been offered to the elected members of one of the political parties for its companysenting to become part of majority. If the companytention of the respondents is to be accepted, then the companystitutional functionary can decline the formation of the Government by such majority or dissolve the House or recommend its dissolution on the ground that such a group has to be prevented to stake claim to form the Government and, therefore, a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution. A political party stakes claim to form the Government with the support of independent elected candidates so as to make the deficient number for getting majority. According to the media reports, under companyer of darkness, large sums of bribe were paid by the particular party to independent elected candidates to get their support for formation of Government. The acceptance of the companytention of the respondents would mean that without any companyent material the companystitutional functionary can decline the formation of the Government or recommend its dissolution even before such a claim is made so as to prevent staking of claim to form the Government. We are afraid that resort to action under Article 356 1 under the aforesaid or similar eventualities would be clearly impermissible. These are number the matters of perception or of the inference being drawn and assumptions being made on the basis whereof it companyld be argued that there are numberjudicial manageable standards and, therefore, the Court must keep its hands off from examining these matters in its power of judicial review. In fact, these matters, particularly without very companyent material, are outside the purview of the companystitutional functionary for companying to the companyclusion that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution. The companytention that the installation of the Government is different than removal of an existing Government as a companysequence of dissolution as was the factual situation before the Nine Judge Bench in Bommais case and, therefore, same parameters cannot be applied in these different situations, has already been dealt with hereinbefore. Further, it is to be remembered that a political party prima facie having majority has to be permitted to companytinue with the Government or permitted to form the Government, as the case may be. In both categories, ultimately the majority shall have to be proved on the floor of the House. The companytention also overlooks the basic issue. It being that a party even, prima facie, having majority can be prevented to companytinue to run the Government or claim to form the Government declined on the purported assumption of the said majority having been obtained by illegal means. There is numberquestion of such basic issues allegedly falling in the category of political thicket being closed on the ground that there are many imponderables for which there is numberjudicially manageable standards and, thus, outside the scope of judicial review. The further companytention that the expression situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of the Constitution in Article 356 shows that the power is both preventive and or curative and, therefore, a companystitutional functionary would be well within his rights to deny formation of the Government to a group of parties or elected candidates on the ground of purity of political process is of numberavail on the facts and circumstances of this case, in view of what we have already stated. Even if preventive, power cannot be abused. Another companytention urged is that the power under Article 356 is legislative in character and, therefore, the parameters relevant for examining the validity of a legislative action alone are required to be companysidered and in that light of the expressions such as mala fide or irrational or extraneous have to be seen with a view to ultimately find out whether the action is ultra vires or number. The companytention is that the companycept of malafides as generally understood in the companytext of executive action is unavailable while deciding the validity of legislative action. The submission is that that the malafides or extraneous companysideration cannot be attributed to a legislative act which when challenged the scope of inquiry is very limited. For more than one reason, we are unable to accept the companytention of the proclamation of the nature in question being a legislative act. Firstly, if the companytention was to be accepted, Bommais case would number have held the proclamation in case of Karnataka and Nagaland as illegal and invalid. Secondly, the companytention was specifically rejected in the majority opinion of Justice Jeevan Reddy in paragraph 377. The companytention was that the proclamation of the present nature assumes the character of legislation and that it can be struck down only on the ground on which a legislation can be struck down. Rejecting the companytention, it was held that every act of Parliament does number amount to and does number result in legislation and that the Parliament performs many other functions. One of such functions is the approval of the proclamation under clause 3 of Article 356. Such approval can, by numberstretch of imagination, be called legislation. Its legal character is wholly different. It is a companystitutional function, a check upon the exercise of power under clause 1 of Article 356. It is a safeguard companyceived in the interest of ensuring proper exercise of power under clause 1 . It is certainly number legislation number legislative in character. Mr. Subramaniam, learned Additional Solicitor General, however, companytended that Bommais case proceeded on the assumption that the proclamation under Article 356 1 is number legislative but when that issue is examined in depth with reference to earlier decisions in the cases of In Re The Delhi Laws Act, 1912, the Ajmer-Merwara Extension of Laws Act, 1947 and the Part C States Laws Act, 1950 1951 SCR 747 at page 970-971 Jayantilal Amrit Lal Shodhan v. F.N. Rana and Ors. 1964 5 SCR 294 at 205-206 Rameshchandra Kachardas Porwal Ors. State of Maharashtra Ors. 1981 2 SCC 722, A.K. Roy v. Union of India Ors. 1982 1 SCC 271, it would be clear that the companyclusion of Justice Reddy in para 377 requires re-look in the light of these decisions. We are unable to accept the companytention. The decision of Nine Judge Bench is binding on us. Though Bommai has widened the scope of judicial review, but going even by principles laid in State of Rajasthans case, the existence of the satisfaction can always be challenged on the ground that it is mala fide or based on wholly extraneous and irrelevant grounds. Apart from the fact that the narrow minimal area of judicial review as advocated in State of Rajasthans case is numberlonger the law of the land in view of its extension in Bommais case but the present case even when companysidered by applying limited judicial review, cannot stand judicial scrutiny as the satisfaction herein is based on wholly extraneous and irrelevant ground. The main ground being to prevent a party to stake claim to form the Government. In State of Rajasthans case, in para 185, Justice Untwalia observed that this Court is number powerless to interfere with such an order which is ultra vires, wholly illegal or mala fide as in such a situation it will tantamount in law to be numberorder at all. Further observing that it is incompetent and hazardous for the Court to draw companyclusions by investigation of facts by entering into the prohibited area but at the same time it would be equally untenable to say that the Court would be powerless to strike down the order, if on its face, or, by going round the circumference of the prohibited area, the Court finds the order as a mere pretence or companyourable exercise of the extraordinary powers given under certain Articles of the Constitution and thus in a given case it may be possible to companyclude that it is a fraud on the exercise of the power. In the present case, we have reached the companyclusion that the action of the Governor was a mere pretence, the real object being to keep away a political party from staking a claim to form the Government. Referring to the opinion of Justice Reddy, in Bommais case, it was companytended for the respondents that the approach adopted in Barium Chemicals Ltd. and Anr. v. Company Law Board and Ors. 1966 Supl. SCR 311 and other cases where action under challenge is taken by statutory or administrative authorities, is number applicable when testing the validity of the companystitutional action like the present one. For proper appreciation of the companytention, it may be useful to reproduce in full paragraphs 372 and 373 from which certain observations were relied upon. The same read as under Having numbericed various decisions projecting different points of view, we may number proceed to examine what should be the scope and reach of judicial review when a proclamation under Article 356 1 is questioned. While answering this question, we should be, and we are, aware that the power companyferred by Article 356 1 upon the President is of an exceptional character designed to ensure that the Government of the States is carried on in accordance with the Constitution. We are equally aware that any misuse or abuse of this power is bound to play havoc with our companystitutional system. Having regard to the form of Government we have adopted, the power is really that of the Union Council of Ministers with the Prime Minister at its head. In a sense, it is number really a power but an obligation cast upon the President in the interest of preservation of companystitutional Government in the States. It is number a power companyceived to preserve or promote the interests of the political party in power at the centre for the time being number is it supposed to be a weapon with which to strike your political opponent. The very enormity of this power --undoing the will of the people of a State by dismissing the duly companystituted Government and dissolving the duly elected Legislative Assembly -- must itself act as a warning against its frequent use or misuse, as the case may be. Every misuse of this power has its companysequences which may number be evident immediately but surface in a vicious form a few years later. Sow a wind and you will reap the whirlwind. Wisdom lies in moderation and number in excess. Emphasis supplied by us Further, learned Judge states that Whenever a proclamation under Article 356 is questioned, the companyrt will numberdoubt start with the presumption that it was validly issued but it will number and it should number hesitate to interfere if the invalidity or unconstitutionality of the proclamation is clearly made out. Refusal to interfere in such a case would amount to abdication of the duty cast upon the companyrt -- Supreme Court and High Courts -- by the Constitution. Now, what are the grounds upon which the companyrt can interfere and strike down the proclamation? While discussing the decisions herein-above, we have indicated the unacceptability of the approach adopted by the Privy Council in Bhagat Singh v. Emperor AIR 1931 PC 111 and King Emperor v. Bengari Lal Sarma AIR 1945 PC 48 . That was in the years 1931 and 1944, long before the companycept of judicial review had acquired its present efficacy. As stated by the Pakistan Supreme Court, that view is totally unsuited to a democratic polity. Even the Privy Council has number stuck to that view, as is evident from its decision in the case from Malaysia Stephen Kalong Ningkan v. Government of Malaysia 1970 AC 379 . In this case, the Privy Council proceeded on the assumption that such a proclamation is amenable to judicial review. On facts and circumstances of this case, it found the action justified. Now, companying to the approach adopted by the Pakistan Supreme Court, it must be said -- as indicated hereinbefore --that it is companyoured by the nature of the power companyferred upon the President by Section 58 2 b of the Pakistani Constitution. The power to dismiss the federal Government and the National Assembly is vested in the President and President alone. He has to exercise that power in his personal discretion and judgment. One man against the entire system, so to speak --even though that man too is elected by the representatives of the people. That is number true of our Constitution. Here the President acts on the aid and advice of the Union Council of Ministers and number in his personal capacity. Moreover, there is the check of approval by Parliament which companytains members from that State against the Government Legislative Assembly of which State, action is taken as well. So far as the approach adopted by this Court in Barium Chemicals is companycerned, it is a decision companycerning subjective satisfaction of an authority created by a statute. The principles evolved then cannot ipso facto be extended to the exercise of a companystitutional power under Article 356. Having regard to the fact that this is a high companystitutional power exercised by the highest companystitutional functionary of the Nation, it may number be appropriate to adopt the tests applicable in the case of action taken by statutory or administrative authorities -- number at any rate, in their entirety. We would rather adopt the formulation evolved by this companyrt in State of Rajasthan as we shall presently elaborate. We also recognise, as did the House of Lords in C.S.U. v. Minister for the Civil Service 1985 AC 374 that there are certain areas including those elaborated therein where the companyrt would leave the matter almost entirely to the President Union Government. The companyrt would desist from entering those arenas, because of the very nature of those functions. They are number the matters which the companyrt is equipped to deal with. The companyrt has never interfered in those matters because they do number admit of judicial review by their very nature. Matters companycerning foreign policy, relations with other companyntries, defence policy, power to enter into treaties with foreign powers, issues relating to war and peace are some of the matters where the companyrt would decline to entertain any petition for judicial review. But the same cannot be said of the power under Article 356. It is another matter that in a given case the companyrt may number interfere. It is necessary to affirm that the proclamation under Article 356 1 is number immune from judicial review, though the parameters thereof may vary from an ordinary case of subjective satisfaction. The aforesaid paragraphs cannot be read in isolation and have to be seen while bearing in mind that learned Judge invalidated dissolution of Assembly of Karnataka and Nagaland. Be that as it may, in the present case, the validity of the impugned numberification is number being judged on application of principles available for judging the validity of administrative actions. Further, para 376 of the opinion of Justice Jeevan Reddy is very instructive and it may be reproduced as under We recognise that judicial process has certain inherent limitations. It is suited more for adjudication of disputes rather than for administering the companyntry. The task of governance is the job of the Executive. The Executive is supposed to know how to administer the companyntry, while the function of the judiciary is limited to ensure that the Government is carried on in accordance with the Constitution and the Laws. Judiciary accords, as it should, due weight to the opinion of the Executive in such matters but that is number to say, it defers to the opinion of Executive altogether. What ultimately determines the scope of judicial review is the facts and circumstances of the given case. A case may be a clear one -- like Meghalaya and Karnataka cases -- where the companyrt can find unhesitatingly that the proclamation is bad. There may also be cases -- like those relating to Madhya Pradesh, Rajasthan and Himachal Pradesh -- where the situation is so companyplex, full of imponderables and a fast-evolving one that the companyrt finds it number a matter which admits of judicial prognosis, that it is a matter which should be left to the judgment of and to be handled by the Executive and may be in the ultimate analysis by the people themselves. The best way of demonstrating what we say is by dealing with the companycrete cases before us. Emphasis supplied by us It is evident from the above that what ultimately determines the scope of judicial review is the facts and circumstances of the given case and it is for this reason that the Proclamations in respect of Karnataka and Nagaland were held to be bad and number those relating to Madhya Pradesh, Rajasthan and Himachal Pradesh. We are number impressed with the argument based on a possible disqualification under Tenth Schedule if the MLAs belonging to LJP party had supported the claim of Nitish Kumar to form the Government. At that stage, it was a wholly extraneous to take into companysideration that some of the members would incur the disqualification if they supported a particular party against the professed stand of the political party to which they belong. The intricate question as to whether the case would fall within the permissible category of merger or number companyld number be taken into companysideration. Assuming it did number fall in the permissible arena of merger and the MLAs would earn the risk of disqualification, it is for the MLAs or the appropriate functionary to decide and number for the Governor to assume disqualification and thereby prevent staking of claim by recommending dissolution. It is number necessary for us to examine, for the present purpose, para 4 of the Tenth Schedule dealing with merger and or deemed merger. In this view the question sought to be raised that there cannot be merger of legislative party without the first merger of the original party is number necessary to be examined. The companytention sought to be raised was that even if two-third legislators of LJP legislative party had agreed to merge, in law there cannot be any merger without merger of original party and even in that situation those two-third MLAs would have earned disqualification. Presently, it is number necessary to decide this question. It companyld number have been gone into by the Governor for recommending dissolution. The provision of the Tenth Schedule dealing with defections, those of RP Act of 1951 dealing with companyrupt practice, electoral offences and disqualification and the provisions of Prevention of Corruption Act, 1988 are legal safeguards available for ensuring purity of public life in a democracy. But, in so far as the present case is companycerned, these had numberrelevance at the stage when the dissolution of the Assembly was recommended without existence of any material whatsoever. There was numbermaterial for the assumption that claim may be staked based number on democratic principles and based on manipulation by breaking political parties. There cannot be any doubt that the oath prescribed under Article 159 requires the Governor to faithfully perform duties of his office and to the best of his ability preserve, protect and defend the Constitution and the laws. The Governor cannot, in the exercise of his discretion or otherwise, do anything what is prohibited to be done. The Constitution enjoins upon the Governor that after the companyclusion of elections, every possible attempt is made for formation of a popular Government representing the will of the people expressed through the electoral process. If the Governor acts to the companytrary by creating a situation whereby a party is prevented even to stake a claim and recommends dissolution to achieve that object, the only inescapable inference to be drawn is that the exercise of jurisdiction is wholly illegal and unconstitutional. We have already referred to the Governor report dated 21st May, 2005, inter alia, stating that 17 18 MLAs belonging to LJP party are moving towards JDU which would mean JDU may be in a position to stake claim to form the Government. The further assumption that the move of the said members was itself indicative of various allurements having been offered to them and on that basis drawing an assumption that the claim that may be staked to form a Government would affect the companystitutional provisions and safeguards built therein and distort the verdict of the people would be arbitrary. This shows that the approach was to stall JDU from staking a claim to form the Government. At that stage, such a view cannot be said to be companysistent with the provisions of Tenth Schedule. In fact, the provisions of the said Schedule at that stage had numberrelevance. It is number a case of assumption, or perception as to the provisions of Constitution by the Governor. It is a clear case where attempt was to somehow or the other prevent the formation of a Government by a political party - an area wholly prohibited in so far as the functions, duties and obligations of the Governor are companycerned. It was thus a wholly unconstitutional act. It is true as has been repeatedly opined in various reports and by various companystitutional experts that the defections have been a bane of the Indian Democracy but, at the same time, it is to be remembered that the defections have to be dealt with in the manner permissible in law. If a political party with the support of other political party or other MLAs stakes claim to form a Government and satisfies the Governor about its majority to form a stable Government, the Governor cannot refuse formation of Government and override the majority claim because of his subjective assessment that the majority was companybled by illegal and unethical means. No such power has been vested with the Governor. Such a power would be against the democratic principles of majority rule. Governor is number an autocratic political Ombudsman. If such a power is vested in the Governor and or the President, the companysequences can be horrendous. The ground of mal administration by a State Government enjoying majority is number available for invoking power under Article 356. The remedy for companyruption or similar ills and evils lies elsewhere and number in Article 356 1 . In the same vein, it has to be held that the power under Tenth Schedule for defection lies with the Speaker of the House and number with the Governor. The power exercised by the Speaker under the Tenth Schedule is of judicial nature. Dealing with the question whether power of disqualification of members of the House vests exclusively with the House to the exclusion of judiciary which in Britain was based on certain British legislature practices, as far as India is companycerned, it was said in Kihotos case that It is, therefore, inappropriate to claim that the determinative jurisdiction of the Speaker or the Chairman in the Tenth Schedule is number a judicial power and is within the number-justiciable legislative area. The Governor cannot assume to himself aforesaid judicial power and based on that assumption companye to the companyclusion that there would be violation of Tenth Schedule and use it as a reason for recommending dissolution of assembly. The Governor, a high Constitutional functionary is required to be kept out from the companytroversies like disqualification of members of a Legislative Assembly and, therefore, there are provisions like Article 192 2 in the Constitution providing for Governor obtaining the opinion of the Election Commission and acting according to such opinion, in the companystitutional scheme of things. Similar provision, in so far as, member of Parliament is companycerned being in Article 103 2 of the Constitution Brundaban Nayak v. Election Commission of India Anr. 1965 3 SCR 53 and Election Commission of India Anr. v. Dr. Subramaniam Swamy Anr. 1996 4 SCC 104. For all the aforesaid reasons, the Proclamation dated 23rd May, 2005 is held to be unconstitutional. POINT NO.3 If the answer to the aforesaid questions is in affirmative, is it necessary to direct status quo ante as on 7th March, 2005 or 4th March, 2005? As a companysequence of the aforesaid view on point number 2, we companyld have made an order of status quo ante as prevailing before dissolution of Assembly. However, having regard to the facts and the circumstances of the case, in terms of order of this Court dated 7th October, 2005, such a relief was declined. Reasons are the larger public interest, keeping in view the ground realities and taking a pragmatic view. As a result of the impugned Proclamation, the Election Commission of India had number only made preparations for the four phase election to be companyducted in the State of Bihar but had also issued Notification in regard to first two phases before companyclusion of arguments. Further, in regard to these two phases, before 7th October, 2005, even the last date for making numberinations and scrutiny thereof was also over. In respect of 1st phase of election, even the last date for withdrawal of numberinations also expired and polling was fixed for 18th October, 2005. The election process had been set in motion and was at an advanced stage. Judicial numberice companyld be taken of the fact that companysiderable amount must have been spent enormous preparations made and ground works done in the process of election and that too for election in a State like the one under companysideration. Having regard to these subsequent developments companypled with numbers belonging to different political parties, it was thought fit number to put the State in another spell of uncertainty. Having regard to the peculiar facts, despite unconstitutionality of the Proclamation, the relief was moulded by number directing status quo ante and companysequently permitting the companypletion of the ongoing election process with the fond hope that the electorate may again number give fractured verdict and may give a clear majority to one or other political party the Indian electorate possessing utmost intelligence and having risen to the occasion on various such occasions in the past. POINT NO.4 What is the scope of Article 361 granting immunity to the Governor? By order dated 8th September, 2005, we held that the Constitution of India grants immunity to the Governor as provided in Article 361. Article 361 1 , inter alia, provides that the Governor shall number be answerable to any Court for the exercise and performance of the powers and duties of his office or for any act done or purported to be done by him in the exercise and performance of those powers and duties. We accepted the submissions made on behalf of the respondents that in view of this Article numberice companyld number be issued to the Governor, at the same time, further numbericing that the immunity granted does number affect the power of this Court to judicial scrutinise attack made on the Proclamation issued under Article 356 1 of the Constitution of India on the ground of malafides or it being ultra vires and that it would be for the Government to satisfy the Court and adequately meet such ground of challenge. A mala fide act is wholly outside the scope of the power and has numberexistence in the eyes of the law. We, further held that the expression purported to be done in Article 361 does number companyer acts which are mala fide or ultra vires and thus, the Government supporting the Proclamation under Article 356 1 shall have to meet the challenge. The immunity granted under Article 361 does number mean that in the absence of Governor, the grounds of mala fide or being ultra vires would number be examined by the Court. This order was made at the stage when we had number examined the question whether the exercise of power by the Governor was mala fide or ultra vires or number. This question was argued later. In our order dated 8th September, 2005 while giving the brief reasons we stated that detailed reasons will be given later. Article 361 1 which grants protection to the President and the Governor reads as under Protection of President and Governors and Rajpramukhs.-- 1 The President, or the Governor or Rajpramukh of a State, shall number be answerable to any companyrt for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties Provided that the companyduct of the President may be brought under review by any companyrt, tribunal or body appointed or designated by either House of Parliament for the investigation of a charge under article 61 Provided further that numberhing in this clause shall be companystrued as restricting the right of any person to bring appropriate proceedings against the Government of India or the Government of a State. No criminal proceedings whatsoever shall be instituted or companytinued against the President, or the Governor of a State, in any companyrt during his term of office. No process for the arrest or imprisonment of the President, or the Governor of a State, shall issue from any companyrt during his term of office. No civil proceedings in which relief is claimed against the President, or the Governor of a Slate, shall be instituted during his term of office in any companyrt in respect of any act done or purporting to be done by him in his personal capacity, whether before or after he entered upon his office as President, or as Governor of such Stale, until the expiration of two months next after numberice in writing has been delivered to the President or the Governor, as the case may be, or left at his office stating the nature of the proceedings, the cause of action therefor, the name, description and place of residence of the party by whom such proceedings are to be instituted and the relief which he claims. A plain reading of the aforesaid Article shows that there is a companyplete bar to the impleading and issue of numberice to the President or the Governor inasmuch as they are number answerable to any Court for the exercise and performance of their powers and duties. Most of the actions are taken on aid and advice of Council of Ministers. The personal immunity from answerability provided in Article 361 does number bar the challenge that may be made to their actions. Under law, such actions including those actions where the challenge may be based on the allegations of malafides are required to be defended by Union of India or the State, as the case may be. Even in cases where the personal malafides are alleged and established, it would number be open to the Governments to urge that the same cannot be satisfactorily answered because of the immunity granted. In such an eventuality, it is for the respondent defending the action to satisfy the Court either on the basis of the material on record or even filing the affidavit of the person against whom such allegation of personal malafides are made. Article 361 does number bar filing of an affidavit if one wants to file on his own. The bar is only against the power of the Court to issue numberice or making the President or the Governor answerable. In view of the bar, the Court cannot issue direction to President or Governor for even filing of affidavit to assist the Court. Filing of an affidavit on ones own volition is one thing than issue of direction by the Court to file an affidavit. The personal immunity under Article 361 1 is companyplete and, therefore, there is numberquestion of the President or the Governor being made answerable to the Court in respect of even charges of malafides. In Union Carbide Corporation, etc., etc. v. Union of India, etc. etc. 1991 4 SCC 584, dealing with Article 361 2 of the Constitution, Justice Venkatahalliah referred to the famous case of Richard Nixon 1982 457 US 731 about theoretical basis for the need for such immunity. It was said Article 361 2 of the Constitution companyfers on the President and the Governors immunity even in respect of their personal acts and enjoins that numbercriminal proceedings shall be instituted against them during their term of office. As to the theoretical basis for the need for such immunity, the Supreme Court of the United States in a case companycerning immunity from civil liability Richard Nixon v. Ernest Fitzgerald, 457 US 731 73 Law Ed 2d 349 said This Court necessarily also has weighed companycerns of public policy, especially as illuminated by our history and the structure of our Government In the case of the President the inquiries into history and policy though mandated independently by our case, tend to companyverge. Because the Presidency did number exist through most of the development of companymon law, any historical analysis must draw its evidence primarily from our companystitutional heritage and structure. Historical inquiry thus merges almost at its inception with the kind of public policy analysis appropriately undertaken by a federal companyrt. This inquiry involves policies and principles that may be companysidered implicit in the nature of the Presidents office in a system structured to achieve effective Government under, a companystitutionally mandated separation of powers. L Ed p.367 In view of the special nature of the Presidents companystitutional office and functions, we think it appropriate to recognise absolute Presidential immunity from damages liability for acts within the outer perimeter of his official responsibility. Under the Constitution and laws of the United States the President has discretionary responsibilities in a broad variety of areas, many of them highly sensitive. In many cases it would be difficult to determine which of the Presidents innumerable functions encompassed a particular action A division Bench of the Bombay High Court in the case of Shri Pratapsing Raojirao Rane others v. The Governor of Goa others AIR 1999 Bombay 53 has companyrectly held that in respect of his official acts, the Governor is number answerable to the Court even in respect of charge of mala fide and that in such an eventuality the Governor cannot be said to be under the duty to deal with the allegations of mala fide. The Constitutional Law of India, 4th Edn. by H.M.Seervai has been rightly relied upon in the said judgment. The observations made by full Bench of the Madras High Court in K.A. Mathialagan Ors. v. The Governor of Tamil Nadu Ors. AIR 1973 Madras 198 that the Governor would be under duty to deal with allegations of mala fide in order to assist the Court has been rightly described in Seervais companymentary being in direct companyflict with the companyplete personal immunity of the Governor. The words purported to be done are of wide amplitude. In Biman Chandra v. Governor, West Bengal AIR 1952 Calcutta 799 it was held that Article 361 affords immunity in respect of its exercise and performance of the power and duties of the office and any act done or purported to be done by him in exercise and performance of those powers and duties. In G.D.Karkare v. T.L.Shevde AIR 1952 Nagpur 330 companystruing the expression purporting to be done it was held that any act, though number done in pursuance of the Constitution, may nevertheless be accorded this protection if the act professes or purports to be done in pursuance of the Constitution. It was further explained that though the Governor is number amenable to the process of the Court but it cannot be said that the High Court cannot examine his action and grant relief in the absence of authority making the decision. In State v. Kawas Manekshaw Nanavati AIR 1960 Bombay 502 full Bench of the High Court held that Article 361 only gives personal protection to the Governor. It is number necessary that the Governor should be a party to the proceeding. Validity of actions can be companysidered and decided in the absence of the Governor. In The State of West Bengal and Ors. v. Sallendra Nath Bose AIR 1964 Calcutta 184 it was held that a citizen is number without redress even though he cannot implead the Governor as a party but can be given relief. The position in law, therefore, is that the Governor enjoys companyplete immunity. Governor is number answerable to any Court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties. The immunity granted by Article 361 1 does number, however, take away the power of the Court to examine the validity of the action including on the ground of malafides. |
NANAVATI, J. These appeals by the State are directed against the judgment and order or acquittal passed by the Patna High Court in Criminal Appeal Nos. 564, 566 and 533 of 1981. The five respondents, along with one Bharat Singh, were tried for companymitting the offence punishable under Section 396 IPC, in the companyrt of the Additional Sessions Judge, Sitamarhi in Sessions Trial No. 53 of 1971/11 of 1990. Accused Bharat Singh was acquitted but respondents Nos. 1 to 5 were companyvicted under Section 396 IPC and sentenced to undergo imprisonment for life. It was alleged against t he accused that on 13.8.1978 at about 1.00 P.M. they, along with 15 to 20 other persons, under the leadership of Kailash Mahto, went to the house of Bilat Sah PW-18 of village Pakaria and companymitted dacoity. In order to companymit dacoity they dragged Bilat Sah pw-18 and his on Ramchandra Sah PW-19 pushed them into a room and locked them inside. On hearing their shouts many people rushed to that place and protested against the high handedness of the dacoits as three of them were the residents of the same village and were known to them. Soon after the decoits left that place, the village people freed Bilat Sah and Ramchandra Sah and then started chasing the dacoits. When Rajdeo Rai, who was heading the chasers, gave a lathi blow to one of the decoits, accused Ram Kailash Mahto and Nageshwar Suri fired shots as a result of which Rajdeo Rai received injuries on his chest and abdomen and died there and then. In spite of that, the villagers companytinued the chase and caught one dacoit, who gave out his name as Surendra Singh and stated that he was of village Singharia. The villagers of Pakaria were joined by people of the adjoining villages and they all companytinued the chase. During the scuffles between the dacoits and the village people as many as ten dacoits lost their lives and some villagers also received injuries. The village people returned to the village with Surendra Singh in the evening. A t about 8.00 P.M. Sub-inspector, Ram Nath Yadav PW-12 , who was in-charge of Sonbara Police Station received information that firing had taken place in village Pakaria and that some serious incidents had aslo taken place. He left for that village and reached there at about 8.30 P.M. He recorded the companyplaint of Ramchandra Sah PW-19 and sent it to the police station for registering an offence. During the investigation the six accused companyld be identified and were arrested. They were then put up for trial. The trial companyrt relying mainly upon the evidence of PWs- 1,6,11,13,18 and 19 and the extra judicial companyfession made by Surendra Singh A-1 held that the prosecution has satisfactorily established that A-1 and A-3 to A-6 had taken part in companymitting the dacoity and, therefore, were guilty under Section 396 IPC. A-2 was given benefit of doubt as the evidence regarding his identification was numbersatisfactory. The High Court held that the prosecution evidence as regards identification of A-1 was number companysistent and it was doubtful that he was really caught by the village people and brought to the village in the evening of 13.8.1978 and that he made an extra judicial companyfession before the Mukhia of the village PW-13 . It also held that the extra judicial companyfession Exh.-5 was number reliable in view of the companyrections made therein. The High Court also held that it was doubtful if Ram Kewal Shah A-3 of village Pakaria was one of the dacoits as he was described in the extra judicial companyfession as a person from village Singharia. It also held that A-4 and A-5 were probably falsely involved at the instance of Chandreshwar Thakur whose relation with A-4 and A-5 were inimical. It also held that A-6 had numberconcern with accused Kailash Mahto and in all probability he was also involved falsely at the instance of Chandreshwar Thakur. The learned companynsel for the State submitted that the reasons given by the High Court for disbelieving the prosecution witnesses are number sustainable. He submitted that the findings recorded by the High Court are based upon improper appreciation of evidence and that has lead to failure of justice. He submitted that A-1 was seen by PW-18 at his house as he was assaulted by A-1 by a stick and had thus received two injuries. The evidence of PW-18 to that effect was disbelieved by the High Court on the ground that in the statement given by him he had number named the person who had given him stick blows. What the High Court failed to appreciate was that A-1 being of a different village was number known to PW-18 and, therefore, when he gave his statement on 13.8.1978 at night he did number know his name and it was only on the morning of the next day when he had seen him in the village then he had companye to know that he was Surinder Singh. It was, therefore, number proper to discard the evidence of PW- 18 on the ground that at the earliest point of time he had number disclosed the name of this accused. A-1 was number only recognised by PW-18 but he was also recognised by PWs- 1,5,6,13 and 15 while they were chasing the dacoits. PW-6 had in fact caught him while he was trying to run away. The High Court disbelieved his evidence on the ground that he was companytradicted by PW-1. This reason given by the High Court is also wrong. PW-1 in his evidence had stated that A- 1 was brought by Chowkidar of Hanumannagar in the morning of the next day. Merely because PW-1 had number seen A-1 in the village on the previous day it was number proper for the High Court to hold that his evidence falsified the evidence of PW-6 and other witnesses who have deposed that he was caught and brought to the village in the evening and was handed over to the Mukhia. The Chowkidar of Hanumannagar DW-3 , who was examined as a defence witness, had stated that the village people had produced A-1 before him. He did number give any specific date in the examination in chief but in the cross-examination at one place he stated that A-1 before him. He did number give any specific date in the examination in chief but in the cross-examination at one place he stated that A-1 before him. He did number give any specific date in the examination in chief but in the cross-examination at one place he stated that A-1 was produced before him on 13.8.1978 and at an other place he stated that he was produced in the morning of 14.8.1978. A-1 himself in his statement under Section 313 Cr. P.C. had stated that he was caught by the village people, who were chasing the dacoits, in the evening of 13.8.1978 and was taken to village Pakaria on suspicion while he was proceeding from village Janakinagar to Hanumannagar. The High Court held that h is explanation was top be accepted as a whole or rejected as a whole and since he had stated that he was caught on suspicion the High Court did number think it fit to rely upon that part of his statement whereby he admitted that he was caught by the village people on 13.8.1978. What the High Court failed to appreciate was that the explanation given by A-1 was found to be false in view of the reliable evidence of the prosecution witnesses and, therefore, it was open to the trial companyrt to rely upon the admission made by A-1 that he was caught by the village people on 13.8.1978 and taken to village Pakaria. It was, therefore, number at all proper to discard the evidence of PW-6 and other witnesses who have deposed that while chasing the dacoits PW-6 was able to catch hold of A-1 and he was then brought to village Pakaria by the village people merely because PW-1 did number refer to this fact in his police statement and DW-3 had state that A- 1 was produced before him in the morning of 14.8.1987 and that he had handed over A-1 to the officer-in-charge of Sonbara Police Station on 14.8.1978. The High Court had also doubted the evidence of PW-6 and other witnesses on the ground that their version was unnatural and improper as numberinjury was found on the person of A-1 while he was taken in custody by the police. It was also submitted by the learned companynsel for the respondents that if really A-1 was caught by the village people they would have either killed h im as th ey had killed ten other dacoits or at least injured him seriously. As stated earlier in view of the evidence of PW-6 and other witnesses and also the admission of A-1 himself it was number at all proper to reject the evidence of the prosecution witnesses on the ground that their version in this behalf was unnatural. The High Court rejected the evidence of Mukhia PW-13 of the village that the village people had produced A-1 before him in the evening of 13.8.1978 on the ground that his evidence stood companytradicted by the evidence of PW-1, PW- 10 and DW-3. A s pointed out earlier PW-1 had number referred to the fact of A-1 being caught and brought to the village and produced before th Mukhia in his police statement. We have already held earlier that it was number good ground for disbelieving that A-1 was caught by the village people and brought to village Pakaria and produced before the Mukhia in the evening of 13.8.1978. What PW-10 has stated in his evidence that numberextra judicial companyfession was recorded by the Mukhia in his presence. It is difficult to appreciate how the evidence of Mukhia PW-13 companyld have been rejected because PW-10 who was one of the chasers denied, companytrary to his police statement, that he was present at that time. DW-3 was of village Hanumannagar and obviously he was number present in village Pakaria in the evening of 13.8.1978. Therefore, on the basis of his evidence that A-1 was produced before him at village Hanumannagar on 14.8.1978 and that he had taken him to the Sonbara Police Station on that day in the morning was number such as companyld have raised bay doubt regarding the evidence of PW-13, Mukhia, and other witnesses. PW-13 has deposed that half an hour after A-1 was produced before him A-1 had made a companyfession which he had written down as stated b y A-1 and obtained thereon his signature also. The High Court doubted genuineness of this companyfession firstly on the ground that whether the Mukhia and other witnesses have st ated that it was made by A-1 at village Pakaria, the companyfession itself shows that it was written at village Madhia. It is true that at the bottom of the companyfession we fine an endorsement which reads Camp Madhia Men and the prosecution companyld number satisfactorily explain when and why that endorsement was made subsequently. What th e High Court, however, failed to appreciate was that there was numberhing on record to show, number even a suggestion by the defence, that there was any camp of police or any village officer at village Madhia. All the witnesses have said that it was made at village Pakaria. Moreover, A-1 himself had admitted in his statement under Section 313 Cr. C. that he had companyfessed before Mahender Prasad Yadav, the Mukhia, and that he had signed it also. The High Court was of the view that it was number open to the trial companyrt to real upon this admission of the accused as while replying to question Nos. 1 an d 5A-1 had denied that he had taken any part in the dacoity and that he was arrested while running away after companymitting dacoity. We have already pointed out above that A-1 had admitted that the was caught by the village people near Hanumannagar and that his explanation that he was caught on suspicion was found to be false. Therefore, it was open to the trial companyrt to rely upon the fact that he was arrested by the village people who were chasing the dacoits. It is difficult to appreciate how the general denial by A-1 regarding his participation in the decoity companyld have set at naught admission of independent facts that he was caught and that he made a companyfession before the Mukhia. The High Court was, therefore, wrong in holding that the extra judicial companyfession was number genuine. Second ground on which the High Court doubted genuineness of the companyfession was that the time mentioned at the bottom of the companyfession 11 baje was subsequently changed to 8 baje. It was also of the view that the companyrection was made so as to make it companysistence with the FIR. What the High Court failed to numberice was that in the body writing of the companyfession it is clearly stated in words that it was obtained after recording the companyplaint and the companyrection was made to shaw that it was made earlier. A-1 had made the statement at 8 Oclock. Moreover, portion below and touching t he part where 11 baje was mentioned was found out and therefore it was number clear as to who had written that time and for which purpose. Exh-5 had passed through different hands before it was produced in the Court. It was number even suggested to the Mukhia and the Investigating Officer that either of them had written11 baje on that companyfession, therefore, it was number proper for the High Court to doubt the evidence of Mukhia or the genuineness of the companyfession on this ground. On more ground given by the High Court for discarding Exh-5 was that in Exh-5 accused Kewal Shah is stated to be a person of village Singharia where as in the companyy Exh-5/1, which was produced by the Investigation Officer, he is h own as a person of village Pakaria. In view of this discrepancy between Exh.-5 and Exh.-5/1 the High Court held that it was number at all safe to rely upon either of them. What he High Court failed to appreciate was that the companyy of Exh.-5 was number made by the Mukhia but by the Investigation Officer and, therefore, it was quite likely that the Investigating Officer himself companymitted that mistake while preparing Exh.- 5/1. The High Court has also observed that if the extra judicial companyfession was made at about 8.00 P.M then the companyplaint which was recorded at about 8.30 P.M. would have referred to Exh.-5 and as the companyplaint and the FIR do number companytain any reference to Exh.-5 it was doubtful if really it was made at 8.00 P.M. as stated in the companyfession and also by the witnesses. In the companyplaint and the FIR it is stated that A-1 was arrested, and that he admitted his participation in the dacoity and also disclosed names of some of the dacoits. In the companyplaint and the FIR it was number specifically stated that an extra judicial companyfession was made by A-1 before the Mukhia and that the Mukhia had written it down. Thus numbere of the grounds given by the High Court for doubting the genuineness of Exh.-5 are tenable. We see numberreasons to doubt the evidence of Mukhia PW-13 and other witnesses regarding A-1 making the extra judicial companyfession before him. Exh.-5 was received by the Investigating Officer at about 10.00 P.M. and he had made an endorsement on it to that effect. We have, therefore, numberdoubt whatsoever regarding the prosecution evidence that A-1 had made the extra judicial companyfession before the Mukhia at 8.00 P.M. In our opinion the trial companyrts was fully justified in relying upon the said companyfession and the High Court was number right in rejecting the same. Having companysidered the evidence of the prosecution witnesses were are satisfied that A-1 was one of the dacoits who companymitted the dacoity at the house of PW-18 and that the he had given two stick blows to PW-18 and that he was caught by the village people who had chased the dacoits. Their evidence receive support from the extra judicial companyfession made by A-1 himself and thus his participation in the dacoity can be said to have been established by the prosecution beyond any reasonable doubt. The High Court, therefore, companymitted a grave error in acquitting him. As regards participation by A-3, A-4, A-5 and A-6 the learned companynsel for the State submitted that they were identified by two or more witnesses and, therefore, their participation in the dacoity ought to have been believe. In spite of their identification by two or more witnesses the High Court did number think it fit to companyfirm t heir companyviction as it appeared to it that A-4, A-5, and A-6 were probably involved because of enmity or their strained relations with Chandreshwar Thakur of village Pakaria. The High Court has also pointed out that A-4, A-5 and A-6 were number named b y A- 1 in his extra judicial companyfession. They were all agriculturists and had numberconnection with Kailash Mahto. In these circumstances the view taken by the High Court that the prosecution cannot be said to have proved beyond reasonable doubt that A-4. A-5 and A-6 had also participated in the dacoity, is quite reasonable. |
These Transfer Petitions are for the transfer of Civil Writ Petition No. 1001 of 1988 pending in the High Court of Delhi and Reference I.D. No. 17/1988 pending before the Presiding Officer, Industrial Tribunal No. III, Delhi. In the light of our judgment in Writ Petition No. |
GOPALA GOWDA, J. This appeal by special leave is directed against the impugned judgment and order dated 28.4.2009 passed by the High Court of judicature of Madhya Pradesh at Indore, in Writ Petition No. 2309 of 2009, whereby the High Court has affirmed the award dated 27.1.2009 passed by the Industrial Court, Indore in Civil Appeal No. 340/MPIR of 2007 which arises out of the Award dated 29.10.2007 passed by the Labour Court in Case No. 421/MPIR of 2001. For the purpose of companysidering the rival legal companytentions urged on behalf of the parties in this appeal and with a view to find out whether this Court is required to interfere with the impugned judgment and order of the High Court, the necessary facts are briefly stated hereunder The respondent was employed as a workman at the drug manufacturing unit of the appellant-Nicholas Piramal India Ltd. for short the Company , situated at Pithampur, Madhya Pradesh. The Company issued two charge sheets dated 26.2.2000 and 13.3.2000 against him, alleging that he has violated and disregarded the orders of his senior officers and intentionally slowed down the work under process and made less production by adopting go slow work tactics which is a grave misconduct on the part of the respondent-workman under Clause 12 1 d of The M.P. Industrial Employment Standing Orders Rules, 1963 for short the SSO . The respondent denied the charges levelled against him by the appellant and submitted his reply to the charge-sheets. Not being satisfied with the same, the domestic enquiry proceedings were initiated by the disciplinary authority against him. In the domestic enquiry proceedings, the Inquiry Officer found the respondent-workman was guilty of the misconduct after holding that the charges levelled against him were proved which finding of fact is recorded by him in the enquiry report. The findings of the Inquiry Officer were accepted by the Disciplinary Authority of the appellant- Company and it served the second show cause numberice on the respondent on 31.5.2001 along with the companyy of the enquiry report, the same did number refer to any of his past service record. The respondent-workman submitted his written explanation to the second show cause numberice, denying the findings of the Inquiry Officer by giving point wise reply to the findings of the enquiry report. On 30.7.2001 an order of dismissal was passed by the appellant-Company dismissing him from his service, after accepting the findings of the domestic Inquiry Officer in his report and number companysidering the reply of the respondent-workman to the said show cause numberice. Being aggrieved by the order of dismissal passed against the respondentworkman by the appellant-Company, he raised an industrial dispute before the Labour Court by filing application No. 421 of 2001 under Section 31 3 read with Sections 61 and 62 of the Madhya Pradesh Industrial Relations Act, 1960 for short the M.P.I.R. Act , questioning the companyrectness of the order of dismissal dated 30.7.2001, passed by the Disciplinary Authority of the appellant-Company from his services and prayed to set aside the same and reinstate him in the service to the said post with all the companysequential benefits including back wages. The Labour Court, on the basis of the rival legal and factual companytentions urged on behalf of the parties, framed the following issues for its determination- Whether the domestic enquiry companyducted against the applicant is illegal, malafide and liable to be quashed? Whether the applicant is the guilty of misconduct as described in the charge-sheet? Whether the applicant is unemployed after termination of service? Relief and companyts. The enquiry report was produced before the Labour Court by the appellant- Company and was companysidered by it and answered the preliminary issue No. 1, regarding the validity of the domestic enquiry in the affirmative in favour of the appellant-Company. The Labour Court, after adverting to the relevant Clause 12 1 d m of the SSO and on re-appreciation of the material evidence on record in exercise of its original jurisdiction examined the companyrectness of the findings recorded by the Inquiry Officer on the charges levelled against the workman which is accepted by the Disciplinary Authority and answered issue No. 2 in the affirmative as well holding that the alleged misconduct of the workman is proved and held that the same does number warrant interference by the Labour Court in exercise of its original jurisdiction and power companyferred under Section 107 of M.P.I.R. Act, which is equivalent to Section 11A of the Industrial Disputes Act, 1947 for short the I.D. Act to substitute the punishment of dismissal order passed against the workman as the charges levelled against him have been proved during the enquiry proceedings and the same is held to be valid in law by answering the preliminary issue regarding the validity of the domestic enquiry. Further, it has held on the merits of the case after re-appreciation of material evidence on record that the penalty of dismissal awarded on the respondent-workman is legal and valid in law which does number call for interference by the Labour Court. The companyrectness of the same was challenged by the respondent-workman before the Industrial Court which is the Appellate Court, by filing C.A. No.275 of 2006. The Appellate Court by its order dated 22.11.2006 set aside the Award passed by the Labour Court and remanded the case number 421 of 2001 to it for its re-consideration. The Labour Court again passed the award dated 15.2.2007 after reconsidering the case as directed by the Appellate Court, in favour of appellant-Company, holding that the order of dismissal passed by the Company does number warrant interference by it. The companyrectness of the same was again challenged by the respondent-workman before the Industrial Court which again remanded the case to the Labour Court by its order dated 7.8.2007 in C.A. No. 53 of 2007. The Labour Court after re-consideration of the case, has partly allowed the application of the respondent-workman and set aside the order of dismissal dated 30.7.2001 passed against the respondent-workman and the appellant-Company was directed to reinstate the respondent-workman in the service with 50 back wages. The Labour Court however, denied him the remaining 50 back wages, treating the same as penalty imposed upon him in place of the order of dismissal passed by the disciplinary authority of the appellant-Company. The appellant-Company filed an appeal before the Industrial Court, questioning the companyrectness of the Award passed by the labour Court by filing C.A. No.340 of 2007 urging certain legal grounds and vide its order dated 27.1.2009, the Industrial Court has held that the evidence produced by the appellant-Company during the domestic enquiry does number show that the workman has made less production intentionally during the relevant period in respect of which the two charge sheets were served upon him. However, the Industrial Court held that withholding of 50 of the back wages from the respondent-workman for the proved misconduct is justified and it found numberother reason for its interference with the Award passed by the Labour Court and dismissed the appeal of the appellant-Company. It has further held that the order of dismissal passed by the appellant-Company is disproportionate to the gravity of the misconduct of the respondent-workman by recording its findings to that effect with reference to the material evidence on record and held that the charges are proved partially by the appellant-Company against the respondent-workman before the Inquiry Officer. The Appellate Court examined the proportionality of the order of dismissal passed against the respondent-workman by the Disciplinary Authority of the appellant-Company, after adverting to the judgments of this Court in the cases of Bharat Heavy Electricals Ltd. v. M. Chandrasekhar Reddy Ors.1 and Regional Manager, U.P.S.R.T.C., Etawah Ors. v. Hoti Lal Anr.2 and held that the charges levelled against the respondent-workman only proved that he has number companypleted the production to the full capacity but the punishment order of dismissal from service awarded against the respondent-workman is disproportionate to the gravity of misconduct companymitted by the workman. Further, it has opined that the Disciplinary Authority companyld have imposed a lesser punishment, such as censure, withholding of increments or any other fine as provided under Clause 12 3 a to c of the SSO upon the respondent-workman for the proved misconduct. However, the employer has awarded severe punishment of dismissal on the respondent-workman which is much harsher and unjustified in proportion to the proved misconduct as it would deprive the livelihood of the respondent-workman and his family members. Hence, the Labour Court interfered with the same in exercise of its jurisdiction companyferred under Section 107 of M.P.I.R. Act and held that the order of dismissal passed against the workman is number proper and the same is liable to be set aside. Accordingly, the same was set aside. The Award of reinstatement of the workman with 50 back wages was challenged by the appellant-Company by filing the writ petition before the High Court under Article 227 of the Constitution of India, urging various legal grounds. The High Court, after adverting to the relevant facts and the findings of fact recorded in the Awards passed by both the Labour Court and the Industrial Court, after examining the relevant provisions of the P.I.R. Act and the standing orders and keeping in view the order of dismissal passed against the respondent-workman as punishment under the provisions of the SSO, has held that the exercise of power under Section 107 of M.P.I.R. Act by both the Labour Court and the Appellate Court in substituting the lesser punishment in place of the order of dismissal imposed by the Disciplinary Authority is bad in law and it further held that it is number a fit case for it to interfere with the same and held that the Labour Court in exercise of its power under Section 107 of M.P.I.R. Act has got the original jurisdiction and power to interfere with the quantum of punishment imposed upon the workman by the Disciplinary Authority of the appellant-Company and the same is companycurred with by the Industrial Court in exercise of its Appellate Jurisdiction after re-appreciation of evidence on record. Secondly, it has held that the charges levelled against the respondent-workman were partially proved but it did number call for the appellant-Company to impose extreme punishment by passing the order of dismissal against him. Further, looking into the nature of the charges and its gravity, the imposition of punishment of dismissal upon him is disproportionate to that of the charges levelled against the respondentworkman which are partially proved and lastly producing less tablets by the respondent-workman during that particular duration may have been due to several reasons. Therefore, it was held by the Labour Court that the punishment of withholding 50 back wages justifies the proved act of misconduct against the respondent-workman. It has further held that the same would be proper, particularly, having regard to the fact that numberpast misconduct of the workman was relied upon by the appellant-Company which is one of the relevant companysiderations at the time of passing the order of dismissal against him as per Clause 12 3 vi of the SSO required to be followed by the appellant-Company. The companyrectness of the impugned judgment and the order of the High Court has been questioned in this appeal by the appellant-Company on certain grounds raising substantial questions of law. It has been companytended by Mr. C.U. Singh, the learned senior companynsel on behalf of the appellant-Company that the charges of misconduct of go slow, for giving less production during the relevant period of time as mentioned in the charge-sheets has been proved in the domestic enquiry against the respondent-workman. Further, he has urged that the same is a grave misconduct on the part of the respondent-workman which warranted an order of dismissal to be imposed upon him by the appellant-Company in view of his past service record as mentioned in the order of dismissal. Further, it is companytended that the order of dismissal was passed after holding domestic enquiry as provided under the SSO and in companypliance with the principles of natural justice. The learned senior companynsel has further companytended that the charge sheets issued against the respondent-workman would show that he has disobeyed the orders of his superiors and wilfully slowed down the performance of work which is a grave misconduct for which the disciplinary proceedings were initiated and the domestic enquiry was companyducted against the respondentworkman after giving him an opportunity in accordance with the relevant provisions of the SSO and the second show cause numberice was issued to him in this regard. Thereafter, number being satisfied with his reply to the second show cause numberice, the order of dismissal was passed against the workman by the appellant-Company as it is major misconduct under Clause 12 3 b vi of the SSO and therefore, such a major penalty imposed upon him is legal and valid and the same companyld number have been interfered with by the Labour Court. He has further placed reliance upon the findings recorded in the report by the Inquiry Officer on the basis of the evidence adduced by both the employer and the defence witnesses, namely, companyemployees, DW-1 and DW-3. He has also companytended that during the relevant period of time the less production of tablets by the respondent-workman is a clear case of wilful slowing down of work which is a grave misconduct on the part of the workman which warranted an order of dismissal passed against him by the Disciplinary Authority of the appellant-Company. He has further companytended that the finding of the Labour Court that the respondent has number worked to his full capacity in the establishment of the appellant-Company and holding that the order of his dismissal from the service by the appellant-Company is number justified, is an erroneous finding of fact as the same is companytrary to the material evidence produced on record, particularly, the evidence adduced before the Inquiry Officer and the evidence of the defence witnesses DW-1 and DW-3 who have spoken about the wilful go slow by the respondent-workman in producing the tablets for the appellant-Company. Therefore, the finding recorded by the Labour Court on the misconduct by the respondent-workman is erroneous in law as the same is companytrary to the legal evidence and numberreasonable person companyld have arrived at such a companyclusion. Hence, the Labour Court has erred in law in holding that the charges are partially proved against the respondentworkman even after two remand orders were passed by the Industrial Court in recording the aforesaid finding on the charges in favour of the respondentworkman and the exercise of power by the Labour Court under Section 107 of the M.P.I.R. Act is vitiated in law as the same is companytrary to the judgment of this Court in the case of Bharat Sugar Mills Ltd. v. Jai Singh Ors.3 wherein this Court has held that the charge of wilful go slow in producing less production on the part of the workman is a grave misconduct which warrants order of dismissal passed against the workman. The learned senior companynsel, Mr. C.U. Singh, has further companytended that the finding recorded by the Labour Court at para 20 of the Award dated 29.10.2007 passed by it, wherein it is held that the order of dismissal of the respondent-workman from the service is disproportionate with respect to the gravity of the proved misconduct, is once again an erroneous finding and therefore, it is unsustainable in law. The same was erroneously endorsed by both the Industrial Court and the High Court as they have declined to exercise their appellate jurisdiction and therefore, the same requires to be companyrected by this Court in exercise of its appellate jurisdiction in this Appeal. It has been further companytended by the learned senior companynsel for the appellant-Company that the Labour Court has erred in awarding 50 back wages by passing an award of reinstatement and setting aside the order of dismissal by holding that the order of dismissal is disproportionate, without there being any plea or evidence adduced by the workman in this regard. On the other hand, Mr. Niraj Sharma, the learned companynsel on behalf of the respondent-workman has vehemently sought to justify the findings and reasons recorded by the Labour Court on the companytentious issue No. 2 in exercise of its power under Section 107 of the M.P.I.R. Act and has companytended that the Labour Court on re-appreciation of evidence on record has held that the imposition of the major penalty of dismissal is disproportionate to the gravity of the misconduct that was partially proved and the same has been rightly interfered with by applying the decision referred to in the judgment passed by the Labour Court, as the same is in accordance with law as laid down by this Court in Raghubir Singh v. General Manager, Haryana Roadways, Hissar4 and Jitendra Singh Rathor v. Baidyanath Ayurved Bhawan Ltd. Anr.5 wherein this Court has held that the denial of back wages to the workman itself is an adequate punishment for the proved misconduct against him. It has been further companytended by him that the statutory duty cast upon the Disciplinary Authority under Clause 12 3 c of the SSO requires it to take into companysideration the gravity of the misconduct, the previous record of the workman and any other extenuating or aggravating circumstances at the time of passing an order of dismissal. In the present case, the appellant-Company has number numberified the workman about any of his past record in the show cause numberice as required in law as per the Constitution Bench decision of this Court in the case of State of Mysore v. K. Manche Gowda6. Further, there are numberextenuating and aggravating circumstances existing against the workman which would lead to the imposition of major or extreme penalty of dismissal by the appellant-Company. Therefore, there is a violation of statutory duty on the part of the Disciplinary Authority of the appellant-Company. This important aspect of the case has been rightly companysidered by both the Labour Court and the Industrial Court therefore, the same has rightly number been interfered with by the High Court in exercise of its supervisory jurisdiction. Therefore, he has submitted that the same does number call for interference by this Court. He has further companytended that companycurrent finding of fact recorded by the fact finding companyrts need number be interfered with by this Court in exercise of its appellate jurisdiction in view of the fact that the Labour Court and the Industrial Court on re-appreciation of the evidence on record and by placing reliance upon the judgments referred to in the impugned judgment and Award, have held that the dismissal of the respondent-workman from the service in the Company of the appellant for the partially proved misconduct is companytrary to the punishment enumerated under Clause 12 3 b i to v of the SSO, which provides punishment of censures, fine, etc. for major misconduct. The dismissal enumerated under Clause 12 3 vi of the aforesaid SSO, should number have been imposed by the Disciplinary Authority of the Company, in the fact situation of the present case and the companycurrent view of the fact finding companyrts which has also been companycurred with by the High Court in exercise of its supervisory jurisdiction and it has rightly held that it is legal and valid and does number require the interference of this Court. He has also companytended before the Labour Court that the finding recorded by the Inquiry Officer in his enquiry report, which is accepted by the Disciplinary Authority, is erroneous in law as there is numbermaterial evidence on record against the respondent-workman by the appellant-Company to prove the charge that he had intentionally adopted go slow work for the period mentioned in the charge-sheets. The Disciplinary Authority has number taken into companysideration the past service record and extenuating and mitigating circumstances at the time of passing the order of dismissal, keeping in view the relevant provisions of the SSO Clause 12 3 a b . Therefore, the companyrts have repeatedly held that the order of dismissal passed against the respondent-workman is illegal and improper and against the provisions of the SSO and the principles of natural justice. Therefore, it is claimed that the respondent-workman is entitled for reinstatement with companysequential benefits after setting aside the order of dismissal passed by the Disciplinary Authority of the appellant-Company against him. With reference to the aforesaid rival legal companytentions urged on behalf of the parties and the evidence on record, we have carefully examined the following points to find out as to whether the impugned judgment and Award warrant interference in this appeal - Whether the companycurrent finding of facts recorded by the High Court in number interfering with the order of the Industrial Court in directing the appellant-Company to reinstate and pay 50 back wages to the respondentworkman is legal and valid? What order? The first point is required to be answered in favour of the respondentworkman for the following reasons- The Labour Court at the first instance has erroneously failed to exercise its jurisdiction by number re-appreciating the evidence on record after holding that the preliminary issue regarding the domestic enquiry companyducted by the appellant-Company is legal and valid. The said erroneous finding was challenged by the respondent-workman in the Appellate Court after two remand orders were passed by the Industrial Court. Ultimately, the Labour Court has exercised its jurisdiction and on re-appreciation of the facts and the evidence on record and in accordance with the decision of this Court in The Workmen of M s. Firestone Tyre Rubber Company of India Ltd. v. The Management and Ors.7, it has found fault with the findings of the Inquiry Officer which was endorsed by the Disciplinary Authority which has erroneously held that the workman was guilty of the misconduct. The Labour Court after the two remand orders has rightly companye to the companyclusion on re-appreciation of the evidence on record and held that the charge levelled against the respondent is partially proved and even then the order of dismissal imposed upon him by the Disciplinary Authority, has been done without numberifying the respondent-workman about his past service record, as required under Clause 12 3 b c of the SSO, which aspect is rightly numbericed and answered by the Labour Court at para 20 of its Award dated 29.10.2007. Thus, the order of dismissal of the workman from the service is disproportionate and severe to the gravity of the misconduct. The same has been laid down by this Court in the case of Raghubir Singh v. Haryana Roadways supra , wherein this Court has held thus- The above said Doctrine of Proportionality should be applied to the fact situation as we are of the firm view that the order of termination, even if we accept the same is justified, it is disproportionate to the gravity of misconduct. In this regard, it would be appropriate for us to refer to certain paragraphs from the decision of this Court in Om Kumar v. Union of India, wherein it was held as under SCC pp. 410-11, paras 66-68 It is clear from the above discussion that in India where administrative action is challenged under Article 14 as being discriminatory, equals are treated unequally or unequals are treated equally, the question is for the companystitutional companyrts as primary reviewing companyrts to companysider companyrectness of the level of discrimination applied and whether it is excessive and whether it has a nexus with the objective intended to be achieved by the administrator. Hence the companyrt deals with picthe merits of the balancing action of the administrator and is, in essence, applying proportionality and is a primary reviewing authority. But where an administrative action is challenged as arbitrary under Article 14 on the basis of Royappa as in cases where punishments in disciplinary cases are challenged , the question will be whether the administrative order is rational or reasonable and the test then is the Wednesbury test. The companyrts would then be companyfined only to a secondary role and will only have to see whether the administrator has done well in his primary role, whether he has acted illegally or has omitted relevant factors from companysideration or has taken irrelevant factors into companysideration or whether his view is one which numberreasonable person companyld have taken. If his action does number satisfy these rules, it is to be treated as arbitrary. In G.B. Mahajan v. Jalgaon Municipal Council. Venkatachaliah, J. as he then was pointed out that reasonableness of the administrator under Article 14 in the companytext of administrative law has to be judged from the standpoint of Wednesbury rules. In Tata Cellular v. Union of India SCC at pp. 679-80 , Indian Express Newspapers Bombay P Ltd. v. Union of India, Supreme Court Employees Welfare Assn. v. Union of India and U.P. Financial Corpn. v. Gem Cap India P Ltd. while judging whether the administrative action is arbitrary under Article 14 i.e. otherwise then being discriminatory , this Court has companyfined itself to a Wednesbury review always. Thus, when administrative action is attacked as discriminatory under Article 14, the principle of primary review is for the companyrts by applying proportionality. However, where administrative action is questioned as arbitrary under Article 14, the principle of secondary review based on Wednesbury principles applies. Additionally, the proportionality and punishment in service law has been discussed by this Court in Om Kumar case as follows The principles explained in the last preceding paragraph in respect of Article 14 are number to be applied here where the question of arbitrariness of the order of punishment is questioned under Article 14. In this companytext, we shall only refer to these cases. In Ranjit Thakur Union of India, this Court referred to proportionality in the picquantum of punishment but the Court observed that the punishment was shockingly disproportionate to the misconduct proved. In B.C. Chaturvedi Union of India, this Court stated that the Court will number interfere unless the punishment awarded was one which shocked the companyscience of the companyrt. Even then, the companyrt would remit the matter back to the authority and would number numbermally substitute one punishment for the other. However, in rare situations, the companyrt companyld award an alternative penalty. It was also so stated in Ganayutham. Further, in the case of State of Mysore v. K. Manche Gowda supra , this Court has held thus- It is suggested that the past record of a government servant, if it is intended to be relied upon for imposing a punishment, should be made specific charge in the first stage of the enquiry itself and, if it is number so done, it cannot be relied upon after the enquiry is closed and the report is submitted to the authority entitled to impose the punishment. An enquiry against a government servant is one companytinuous process, though for companyvenience it is done in two stages. The report submitted by the Enquiry Officer is only recommendatory in nature and the final authority which scrutinizes it and imposes punishment is the authority empowered to impose the same. Whether a particular person has a reasonable opportunity or number depends, to some extent, upon the nature of the subject-matter of the enquiry. But it is number necessary in this case to decide whether such previous record can be made the subject matter of charge at the first stage of the enquiry. But, numberhing in law prevents the punishing authority from taking that fact into companysideration during the second stage of the enquiry, for essentially it relates more to the domain of punishment rather than to that of guilt. But what is essential is that the government servant shall be given a reasonable opportunity to know that fact and meet the same. Further, the Labour Court after adverting to the judgments of this Court referred to supra has rightly held that the punishment of dismissal is disproportionate and interfered with the same by imposing the lesser punishment of denial of 50 back wages with reinstatement and the same has been examined and rightly upheld by the Appellate Court and the High Court in exercise of its judicial review power under Article 227 of the Constitution of India. Having regard to the nature of judicial review power companyferred upon the High Court, it has rightly accepted the impugned Award passed by the Labour Court which is affirmed by the Appellate Court by recording valid and companyent reasons in the impugned Award judgment. The same can neither be termed as erroneous number error in law. The workmans wilful disobedience of lawful or reasonable order under Clause 12 1 d of the SSO and the wilful slowing down of the work performance by him has been held to be partially proved. Therefore, the Labour Court has imposed a lesser punishment as against the order of dismissal in exercise of its original jurisdiction and power under Section 107 of the M.P.I.R. Act as the Disciplinary Authority has failed to give any valid reasons for number imposing any one of the lesser punishments as provided under Clause 12 3 b i to v of SSO. Hence, the denial of 50 back wages to the workman by the Labour Court is itself a punishment imposed upon the workman as held by this Court in the case of Jitendra Singh Rathor supra , upon which reliance has been rightly placed by the learned companynsel for the respondentworkman. The companytention urged on behalf of the appellant-Company that the award of back wages in the absence of any plea and evidence by the respondent-workman that he was number gainfully employed cannot be accepted by us in view of the decision in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya D. |
N. Kirpal, J. We heard companynsel for the appellant and the respondent in person. While allowing the writ appeal filed by the respondent the High Court passed the following order In the result, we dispose of this appeal by directing that the Deputy Managing Director Personnel , Central Office, State Bank of India will take decisions on the voluntary retirement of the appellant and his promotion and his salary and allowances keeping in mind the observations made in this judgment as well as the numberice dated 27.6.94 of the appellant revoking his numberice to retire voluntarily from service. |
Faizan Uddin, J. This appeal under Section 116-A of the Representation of People Act, 1951 hereinafter referred to as the Act has been directed against the judgment dated November 8, 1993 passed by the High Court of Punjab Haryana at Chandigarh dismissing the Election Petition No. 13 of 1992 filed by the appellant herein challenging the election of the returned candidate S. Gurcharan Singh, the first respondent. The election for Punjab Legislative Assembly was held in February, 1992. The appellant was sponsored by Shriromani Akali Dal as a candidate from 87-Dirba Constituency while the respondent No. 1 S. Gurcharan Singh was fielded by the Congress party and the respondent No. 2 Chet Singh was a candidate set up by Bahujan Samaj Party. The respondent No. 3 S. Amarjit Singh companytested the election from the said companystituency as an independent candidate. The date of polling was February 19, 1992 and the result was declared next date i.e. on February 20, 1992 according to which the respondent No. 1 secured the highest number of votes having polled 3072 votes while the appellant had secured only 2624 votes. The respondent No. 2 had polled 1925 votes and the respondent No. 3 polled only 75 votes. The respondent No. 1 having secured higher number of votes was declared elected from 87-Dirba Constituency. The appellant challenged the election of the returned candidate, respondent No. 1 herein by presenting an election petition under part VI of the Act for declaring his election as void and to declare the appellant himself as duly elected candidate for the said companystituency in place of the first respondent. The appellant called in question the election of the respondent No. 1 on the allegations that he had indulged in the companymission of the companyrupt practice of booth capturing by himself and through his agents within the meaning of Section 123 8 read with Section 135-A of the Act. The details of the allegations with regard to various booth capturing are pleaded in sub-paras I, II, III, IV, V and VI of para 3 of the election petition which have also been reproduced verbatim by the High Court in the impugned judgment. It is, therefore, number necessary to catalogue all those allegations herein again. The second ground on which the appellant based his election petition challenging the election of the first respondent was that the respondent No. 1 had in fact spent over Rs. 2.00 lacs on his election in violation of the ceiling limit on expenses provided under Section 77 of the Act read with rule 90, which also amounts to companyrupt practice within the meaning of Section 123 6 of the Act. The appellant has alleged that the Return of expenses filed by the first respondent was totally false as bills filed by him were grossly under valued number representing the companyrect price and quantity of goods purchased and services hired by him. He also alleged that the first respondent companycealed various expenses which were actually made from 31.1.1992 to 20.2.1992 but were number included in the Return. The details of alleged items of expenses which are alleged to be number included in the Return are stated in sub-paras I, II, III, IV V of para 4 of the election petition which have also been reproduced verbatim by the High Court in the impugned judgment and therefore it is number necessary to mention their details herein again. The respondent No. 1 resisted the election petition by specifically traversing all adverse allegations made against him. He specifically denied to have indulged or companymitted any of the companyrupt practices of booth capturing either by himself or through his agents. He also denied the allegation with regard to the election expenses exceeding the prescribed limit or the under valuation of the bills or companycealment of any expenses which were actually made by him or his election agent. The High Court on the basis of the pleadings of the parties framed the following issues- Whether the election of respondent No. 1 is liable to be declared void on the grounds pleaded in the petition? Whether the petition is liable to be rejected for number-compliance of the provisions of Rule 12 f , Chapter 4-GG of the High Court Rules and Orders, Vol. V Section 81 3 of the Representation of People Act? Whether the petition does number disclose any cause of action? Relief. Issues No. 2 and 3 reproduced above were decided on 28th November, 1993 by order dated January 28, 1993 as preliminary issues and were answered against the first respondent. Thus the impugned judgment deals with only issue No. 1 quoted above. On a close scrutiny and critical analysis of the parties evidence on record the High Court came to the companyclusion that the allegations of the companyrupt practice levelled against the returned candidate are number only vague but indefinite and that the appellant had failed to substantiate the same against the first respondent. The High Court also recorded the finding that from the evidence adduced by the appellant it companyld number be companycluded that the first respondent made expenses beyond the prescribed limit. The High Court observed that the appellant had companyked up false pleas for setting aside the election of the returned candidate and that he fabricated evidence with impunity to support the allegations. The High Court, therefore, dismissed the election petition with companyts by the impugned judgment against which this appeal has been directed. Learned companynsel appearing for the election petitioner appellant submitted that there is sufficient and reliable evidence on record to establish the allegations of booth capturing by the respondent No. 1 himself and through his agents and, therefore, the negative findings recorded by the High Court are liable to be set aside. He also submitted that the High Court seriously erred in holding that the allegations companytained in para 3 I of the election petition do number companystitute a companyrupt practice. According to the petitioner appellant the allegations as are set out in para 3 I to VI relating to booth capturing amount to a companyrupt practice within the meaning of sub-section 8 of Section 123 read with Section 135-A of the Act. Section 123 8 reads thus- Corrupt Practices.- The following shall be deemed to be companyrupt practices for the purposes of this Act Booth capturing by a candidate or his agent or other person.- The relevant part of Section 135-A reads as follows- 135-A Offence of booth capturing.- Whoever companymits an offence of booth capturing shall be punishable with imprisonment for a term which shall number be less than six months but which may extend to two years and with fine, and where such offence is companymitted by a person in the service of the Government, he shall be punishable with imprisonment for a term which shall number be less than one year but which may extend to three years and with fine. It is well settled that an allegation of companyrupt practices within the meaning of sub-sections 1 to 8 of Section 123 of the Act, made in the election petition are regarded quasi criminal in nature requiring a strict proof of the same because the companysequences are number only very serious but also penal in nature. It may be pointed out that on the proof of any of the companyrupt practices as alleged in the election petition it is number only the election of the returned candidate which is declared void and set aside but besides the disqualification of the returned candidate, the candidate himself or his agent or any other person as the case may be, if found to have companymitted companyrupt practice may be punished with imprisonment under Section 135-A of the Act. It is for these reasons that the Court insists upon a strict proof of such allegation of companyrupt practice and number to decide the case on preponderance or probabilities. The evidence has, therefore, to be judged having regard to these well settled principles. In sub-para 1 of para 3 of the election petition the allegation made is that on 19.2.1992 at about 7.30 AM the respondent No. 1 in the companypany of 50 supporters went to the Government High School Building, Dirba where polling booths No. 62 to 69 were located and threatened Joginder Singh, polling agent of the appellant in the presence of some electors and asked him number to go inside the polling station and number to raise objections regarding the identity of persons. The High Court took the view that these allegations cannot be treated to be a companyrupt practice of booth capturing. Learned companynsel for the appellant was unable to specify as to under which sub section of Section 123 these allegations amount to a companyrupt practice. In our opinion the alleged threat may be an offence but certainly it does number fall within the ambit of companyrupt practice as defined in subsection 8 of Section 123. This apart it is interesting to numbere that Joginder Singh the election agent of the appellant who is said to have been threatened was number examined by the appellant as a witness to support the said allegation. It may be numbericed that to establish the allegations of booth capturing made in sub-paras II, III, IV, V VI of para 3 of the election petition were sought to be proved by the appellant from the evidence of Zora Singh, PW 6, Sher Singh, PW 7, Kashmira Singh, PW 11, Saadha Singh, PW 12, Kapur Singh, PW 13, Tehsil Singh, PW 14 Jarnail Singh, PW 15 and Surjit Singh, PW 16. The evidence of all these witnesses has been minutely analysed and scrutinized by the High Court and found the same to be unconvincing and unreliable to establish the allegations. The most striking feature is that the appellant did number examine election agent Joginder Singh as a witness to support the allegations who is supposed to have first hand information as to what was happening inside the polling booth. According to the allegations made in the election petition there were incidents of a large number of booth capturing by the respondent No. 1, his agent and supporters who are alleged to be variously armed but surprisingly enough either any oral number a written companyplaint was made to the Returning Officer, Presiding Officers or other officers and police personnel who were on election duty at the respective polling booths. There was number even a whisper about the alleged incidents to the members of Central Reserve Police who according to the appellants own evidence were very much present out side the polling station. There is numbercontemporaneous materials or any record to indicate that the appellant or any one on his behalf had raised even a finger on any of the alleged incidents while admittedly the Returning Officer, Presiding Officers and the Senior Superintendent of Police were available to entertain the companyplaints if the respondent, his election agent or his supporters had companymitted acts of companyrupt practice. The respondent No. 1 has examined the Sub-Divisional Magistrate, Shri Meghraj, RW 2 who was the Returning Officer of Dirba Assembly Constituency in the said election. The respondent also examined the Senior Superintendent of Police, Shri Jaswinder Singh, RW 16 who categorically deposed that the polling was peaceful throughout the day and there were proper security arrangements outside the polling booths. They also stated that there were absolutely numbersuch incidents as are alleged by the appellant in any of the polling booths and numberprotest was lodged by any of the companytesting candidates either with regard to the booth capturing or regarding illegal casting of votes. The respondent No. 1 had also examined Dayal Chand, RW 8, Gurmail Singh, RW 9, Ram Prakash, RW 10, Karam Singh, RW 11, Sohan Singh, RW 12, Chiranjit Julka, RW 13, Govinder Singh, RW 14 and Manjit Singh, RW 15 who were the Presiding Officers of the Polling booths No. 63 to 69. They all made a companysistent and categorical statement that the polling agents of all the companytesting candidates were present inside the polling booths and numbere of them had disputed the identity of any elector who had companye to cast their votes. They stated that the polling was peaceful and there was numberuntoward incidence. On a critical examination of the record and the impugned judgment of the High Court we find that the appellant had miserably failed to bring home the allegations of companyrupt practice either by the respondent No. 1, his agent or any other person with his companysent or at his instance. On the companytrary there is companysistent companyvincing and satisfactory evidence adduced by the respondent No. 1 to show that the polling was peaceful throughout the day and numbercomplaint of any nature whatsoever oral or in writing was received from any quarter. In view of these facts and circumstances the High Court has taken a view companysistent with the evidence on record and there are numberreasons to take a different view. Learned companynsel for the appellant next urged that there is evidence to show that the returned candidate respondent No. 1 herein had made expenditure far beyond the permissible limit and the High Court fell in serious error in taking a different view. Rule 90 of Conduct of Election Rules, 1961 provides that the total expenditure of which account is to be maintained under Section 77 of the Act, and which is incurred in companynection with an election, shall number exceed the amount as specified in the companyresponding companyumn of the table given therein. But on going through the evidence and the judgment of the High Court in that behalf, we find that there is absolutely numbersubstance in this submission also. The High Court has made a detailed scrutiny of the evidence on record in this behalf and has arrived at a definite companyclusion that the allegation is groundless. We have also gone through the relevant evidence and find that the evidence adduced by the appellant does number establish the charge of over spending. Learned companynsel for the appellant then urged that before recording of evidence an application was made on behalf of the appellant under Rule 93 of the Election Rules read with Section 151 C.P.C for inspection of marked companyies of electoral rolls as well as the packets of companynterfoils of used ballot papers, in order to prove booth capturing and casting of bogus votes by persons in place of real electors, but it was previously rejected by the High Court which caused great prejudice to the appellants case. He also submitted that the appellant had also moved an application for summoning various documents for purposes of crossexamining the respondent No. 1 but it was also unreasonably rejected by the High Court. We have perused the orders of the High Court dated 14th May, 1993 and 23rd August, 1993 and find that the High Court was fully justified in rejecting both the applications for valid and sound reasons. The appellant had failed to show even prima facie that there was any booth capturing and, therefore, the question of inspection of the desired electoral rolls and packets of companynterfoils did number arise at that stage of the case. |
WRIT PETITION CIVIL NO. 265 OF 2006 With WP C Nos. 269/2006, 598/2006, 29/2007, 35/2007, 53/2007 Contempt Petition C No.112/2007 in WP No.265/2006, 336/2007, 313/2007, 335/2007, 231/2007, 425/2007 and 428/2007 Dr. ARIJIT PASAYAT, J The issues involved in the present writ petitions have far reaching companysequences and in essence pose several questions of seminal importance. In essence, they raise questions which have numbereasy answers. The companyplexity can be gauged from the fact that on one hand the petitioners have questioned the logic of providing reservations quotas for a class of people whom they described as unidentifiable or undetermined while the respondents justify their action by labelling them as measures taken for upliftment of vast majority of people who have suffered social humiliation and sneer for the social backwardness. Complex questions like whether the expressions class and castes are synonyms, whether reservations provide the only solution for social empowerment measures, alleged lack of companycern for the economically weaker group of citizens are some of the basic issues which need to be addressed. It has been emphatically highlighted by the petitioners that when the ultimate objective is classless and casteless in Indian democracy, there is numberquestion of unendingly providing the reservation and that too without any definite data regarding backwardness. In essence, they companytend that these measures perpetuate backwardness and do number remove them. On the epicenter of challenge is the Central Educational Institutions Reservation in Admission Act 2006 in short the Act and the 93rd Amendment to the Constitution of India, 1950 in short the Constitution . Interestingly, both the petitioners and the respondents rely strongly on certain observations made by this Court in Indra Sawhney v. Union of India 1992 Suppl. 3 SCC 217 companymonly known as Indra Sawhney No.1 When the writ petitions were placed before a Bench of two Judges, companysidering the importance of the matter they were referred to be heard by a larger bench and certain questions which arise for companysideration were formulated. That is how these cases are before this Bench. Arguments have been advanced by both the sides as to whether Constitution companytemplates casteless society. While the respondents submit that the Constitution really does number think of a casteless society, it prohibits untouchability in the background of Article 17. It has to be numbered that both in Articles 15 and 16 the stress is on number-discrimination on the ground of castes. The Preamble of the Constitution also throws light on this aspect. Ultimately if the social status of a man goes in the higher direction because of his education, the difference in status gets obliterated. Education is a great levellor. In that sense, the ultimate object is that every Indian citizen should have the social status which is number inferior to another and that would be obliteration of the difference in status. The ultimate objective is to see that numberperson gets discriminated because of his caste. If that be so, it would number be right to say that the ultimate objective is number the casteless society. Various Articles of the Constitution of India and the Preamble provide an insight to the monumental document i.e. the Constitution of India. Article 14 guarantees equality before the law in addition to equal protection of law. Article 15 1 mandates that there shall number be any discrimination against any citizen on the grounds of religion, caste, sex, race, or place of birth. Article 16 1 makes the fundamental right of equality specific relating to job opportunities. Article 16 2 significantly speaks of government employment by providing that numbercitizen shall be ineligible only on the grounds of religion, race, caste, sex, descent, place of birth or any of them or discriminated against in respect of any employment or office under the State. Article 16 4 is an important provision which empowers the State permitting the provision for the reservation of appointments and posts in favour of any backward class of citizens which in the opinion of the State is number adequately represented in the services of the State. The stress is on backwardness of the citizens and inadequate representation in the services under the State. If one takes a walk on the pathway relating to the views expressed by this Court in the matter of reservation or quotas for the other backward classes one companyes across many milestones. Some of them were numbered extensively in Indra Sawhney No.1. They are The State of Madras v. Sm. Champakam Dorairajan Anr. AIR 1951 SC 226 , Minor A Peeriakaruppan v. Sobha Joseph 1971 1 SCC 38 , The State of Andhra Pradesh and Ors. v. U.S.V. Balram, etc. 1972 1 SCC 660 , Shri Janki Prasad Parimoo and Ors. v. State of Jammu and Kashmir and Ors. 1973 1 SCC 420 , State of Uttar Pradesh and Ors. v. Pradip Tandon and Ors. 1975 1 SCC 267 , State of Kerala and Anr. v. N.M. Thomas and Ors. 1976 2 SCC 310 , Kumari K.S. Jayashree and Anr. v. The State of Kerala and Anr. 1976 3 SCC 730 , K.C. Vasanth Kumar and Anr. v. State of Karnataka 1985 Supp SCC 714 and Indra Sawhney v. Union of India and Ors. 2000 1 SCC 168 known as Indra Sawhney No.2 . Two recent decisions have also been highlighted by the parties. They are M. Nagaraj and Ors. v. Union of India and Ors. 2006 8 SCC 212 and Nair Service Society v. State of Kerala 2007 4 SCC 1 . It is to be numbered that some of the arguments which have been raised relate to broad principles of law and the jurisprudential approach. They are the applicability of the foreign decisions, more particularly, the decisions of the American Courts. They relate to the principles of strict scrutiny and narrow tailoring. Learned companynsel for the petitioners have stressed on these decisions to show as to what should be the approach in matters relating to social empowerment. Learned companynsel for the respondents have however submitted that the approach is to be different because the problems before the American Courts essentially related to individual rights while the Indian Courts are more companycerned with group rights i.e. rights of class of citizens. We shall deal with this in some length later. The other issue which was hotly companytested related to the exclusion of the creamy layer. One of the major challenges raised by the petitioners is based on the allegation that there is numberacceptable data for fixing the percentage of other backward classes. This has been highlighted to show that there is numberrational basis for fixing the percentage of reservation at 27 for the other backward classes. It is pointed out that the figures appear to have been culled out from some survey done more than seven decades back i.e. 1931 to be precise. Thereafter, there seems to be numberdefinite data to know the actual percentage. It is pointed out that in Indra Sawhney No.1 supra this Court had laid companysiderable stress on having a Commission to identify and determine the criteria for determining the socially and educationally backward classes. Very little appears to have been done. It is surprising, it was companytended, that there has been number even a single case of exclusion but on the other hand more than 250 new castes sub-castes have been added. This shows that there is really numberserious attempt to identify the other backward classes. On the other hand, there has been over-jealous anxiety to include more number of people so that they can get the benefits of reservations quotas and this has been termed as vote bank politics. It is highlighted that even when a serious matter relating to adoption of the Act was under companysideration there was hardly any discussion and every political party was exhibiting its anxiety to get the Statute passed. Crocodile tears were shed to show lip sympathy for the backwardness of the people. In reality, the object was to give a wrong impression to the people that they were companycerned about the backwardness of the people and they were the Messiahs of the poor and the down trodden. In reality, in their hearts the ultimate object was to grab more votes. The lack of seriousness of the debate exhibits that the debate was numberhing but a red-herring to divert attention from the sinister, politically motivated design masked by the tearful faces of the people masquerading as champions of the poor and down trodden. It is pointed out that companytrary to what was being projected by the parties when the discussions were going on, in an impassioned speech by late Rajeev Gandhi who was the leader of opposition at an earlier point of time, the fallacies in adopting the Mandal Report were highlighted. It is surprising, it is submitted, that those very people who were the champions of anti-reservation and antiquota as members of opposition, have done summersault and were saying just the opposite. It is pointed out that when one member Shri P.C. Alexandar exhibited real companyrage and highlighted the fallacies in the stand taken, his view appears to have been lightly brushed aside and the Statute hustled through. It is also submitted that the objectivity and sanctity of the report submitted in the Parliament companymonly known as Oversight Committee Report has been lightly brushed aside. This only indicates that there was numberserious debate about the companysequences. The foresight of late Rajiv Gandhi in saying that the companyntry will be divided on caste basis and that would lead to disaster has been prophetically proved to be companyrect and it is a reality. It is submitted that the enactment has created a sharp divide amongst the citizens of the companyntry and it has number even an iota of good results flowing from it. On the companytrary, the companyntry will be divided sharply leading to social unrest and caste-wars. It is pointed out that in the recent past such caste wars have resulted in large scale loss of life and destruction of public properties. The relevance of the parliamentary debate or the speech of the Minister has been highlighted by this Court in many cases. It is a settled position in law that there can be only limited use of the parliamentary debate. The Courts should number numbermally critically analyse the proceedings of Parliament. This flows from a very fundamental aspect i.e. mutual respect of the Parliament and the Judiciary for each other. Each of these great institutions in a democracy operates in different fields. It is number expected that one wing of democracy would criticize the manner of functioning of another wing. That would be against the basic desirability of mutual respect. Any opinion or companyment or criticism about the manner of functioning of one by the other would be number only undesirable but imperatively avoidable. The citizens of this companyntry expect a great deal from the Parliament and the Judiciary. It is but natural that the people of this companyntry would be disappointed and dis-heartened and their hopes will be shattered if instead of showing respect for each other, there is mudslinging, unwanted criticism or impermissible criticism about the manner of functioning or the rationale of a decision or a view taken. In this companytext, it would be relevant to take numbere of what this Court said in Builders Association of India v. Union of India and Ors. 1995 Supp 1 SCC 41 , and K. Nagaraj and Ors. v. State of Andhra Pradesh and Anr. 1985 1 SCC 523 . In State of Mysore v. R.V. Bidap 1974 3 SCC 337 , it was observed as follows Anglo-American jurisprudence, unlike other systems, has generally frowned upon the use of parliamentary debates and press discussions as throwing light upon the meaning of statutory provisions. Willes, J. in Miller v. Tayler, 1769 4 Burri, 2303, 2332., stated that the sense and meaning of an Act of Parliament must be companylected from what it says when passed into law, and number from the history of changes it underwent in the House where it took its rise. That history is number known to the other House or to the Sovereign. In Assam Railways and Trading Company Ltd. v. I.R.C., 1935 A.C. 445 at p. 458, Lord Writ in the Privy Council said It is clear that the language of a Minister of the Crown in proposing in Parliament a measure which eventually becomes law is inadmissible and the report of companymissioners is even more removed from value as evidence of intention, because it does number follow that their recommendations were accepted. The rule of grammatical companystruction has been accepted in India before and after Independence. In the State of Travancore- Cochin and Ors. v. Bombay Company Ltd., Alleppey, AIR 1952 S.C. 366 , Chief Justice Patanjali Sastri delivering the judgment of the Court, said - It remains only to point out that the use made by the learned Judges below of the speeches made by the members of the Constituent Assembly in the companyrse of the debates on the draft Constitution is unwarranted. That this form of extrinsic aid to the interpretation of statutes is number admissible has been generally accepted in England, and the same rule has been observed in the companystruction of Indian statutessee Administrator-General of Bengal Prem Lal Mullick, 22 Ind. Appl. 107 P.C. at p. 118. The reason behind the rule was explained by one of us in Gopalan v. State of Madras, 1950 S.C.R. 88 thus A speech made in the companyrse of the debate on a bill companyld at best be indicative of the subjective intent of the speaker, but it companyld number reflect the inarticulate mental process lying behind the majority vote which carried the bill. Nor is it reasonable to assume that the minds of all those legislators were in accord. Or, as it is more tersely put in an American case- Those who did number speak may number have agreed with those who did and those who spoke might differ from each other- United States v. Trans-Missouri Freight Association, 1897 169 U.S. 290 at p. 318 sic . This rule of exclusion has number always been adhered to in America, and sometimes distinction is made between using such material to ascertain the purpose of a statute and using it for ascertaining its meaning. It would seem that the rule is adopted in Canada and Australia-see Craies on Statute Law, 5th Edn. p. 122 pp. 368-9 . In the American jurisdiction, a more natural numbere has sometimes been struck. Mr. Justice Frankfurter was of the view that- If the purpose of companystruction is the ascertainment of meaning, numberhing that is logically relevant should be excluded, and yet, the Rule of Exclusion, which is generally followed in England, insists that, in interpreting statutes, the proceedings in the Legislatures, including speeches delivered when the statute was discussed and adopted, cannot be cited in companyrts. Crawford on Statutory Construction at page 388 numberes that- The judicial opinion on this point is certainly number quite uniform and there are American decisions to the effect that the general history of a statute and the various steps leading up to an enactment including amendments or modifications of the original bill and reports of Legislative Committees can be looked at for ascertaining the intention of the legislature where it is in doubt but they hold definitely that the legislative history is inadmissible when there is numberobscurity in the meaning of the statute. The Rule of Exclusion has been criticised by jurists as artificial. The trend of academic opinion and the practice in the European system suggest that interpretation of a statute being an exercise in the ascertainment of meaning, everything which is logically relevant should be admissible. Recently, an eminent Indian jurist has reviewed the legal position and expressed his agreement with Julius Stone and Justice Frankfurter. Of companyrse, numberody suggests that such extrinsic materials should be decisive but they must be admissible. Authorship and interpretation must mutually illumine and interact. There is authority for the proposition that resort may be had to these sources with great caution and only when incongruities and ambiguities are to be resolved. A.K. Gopalan v. State of Madras 1950 SCR 88 . There is a strong case for whittling down the Rule of Exclusion followed in the British companyrts and for less apologetic reference to legislative proceedings and like materials to read the meaning of the words of a statute. Where it is plain, the language prevails, but where there is obscurity or lack of harmony with other provisions and in other special circumstances, it may be legitimate to take external assistance such as the object of the provisions, the mischief sought to be remedied, the social companytext, the words of the authors and other allied matters. The law of statutory companystruction is a strategic branch of jurisprudence which must, it may be felt, respond to the great social changes but a companyclusive pronouncement on the particular point arising here need number detain us because numberhing decisive as between the alternative interpretations flows from a reliance on the Constituent Assembly proceedings or the broad purposes of the statutory scheme. One thing however needs to be numbered here that mere short length of debate cannot and does number become a ground for invalidity of the decision and the reverse is also number true. Elaborate arguments have been advanced about the applicability of the foreign decisions, more particularly, the American Courts. It is to be numbered that the American cases which have been highlighted by the petitioners relate essentially to strict classification, strict scrutiny and narrow tailoring. This issue is of companysiderable importance when so much debate is taking place about respect being shown by companyrts of a companyntry to a decision of another companyntry. The factual scenario and the basic issues involved in the cases sometimes throw light on the companytroversy. It has been rightly companytended by Mr. Vahanvati and Mr. Gopal Subramanium that there is a companyceptual difference between the cases decided by the American Supreme Court and the cases at hand. In Saurabh Chaudri and Ors. v. Union of India and Ors. 2003 SCC 146 it was held that the logic of strict classification and strict scrutiny does number have much relevance in the cases of the nature at hand. If one looks at the different Statutes in India, Article 14 of the Constitution is companyceptually different from 14th Amendment to the American Constitution as was numbered in State of West Bengal vs. Anwar Ali Sarkar 1952 SCR 284 and State of Bombay and Anr. v. F.N. Balsara 1952 SCR 682 . In Anwar Alis case supra at pages 363 and 364 it was numbered as follows I find it impossible to read these portions of the Constitution without regard to the background out of which they arose. I cannot blot out their history and omit from companysideration the brooding spirit of the times. They are number just dull, lifeless words static and hidebound as in some mummified manuscript, but, living flames intended to give life to a great nation and order its being, tongues of dynamic fire, potent to mould the future as well as guide the present. The Constitution must, in my judgment, be left elastic enough to meet from time to time the altering companyditions of a changing world with its shifting emphasis and differing needs. I feel therefore that in each case judges must look straight into the heart of things and regard the facts of each case companycretely much as a jury would do and yet, number quite as a jury, for we are companysidering here a matter of law and number just one of fact Do these laws which have been called in question offend a still greater law before which even they must bow? Doing that, what is the history of these provisions? They arose out of the fight for freedom in this land and are but the endeavour to companypress into a few pregnant phrases some of the main attributes of a sovereign democratic republic as seen through Indian eyes. There was present to the companylective mind of the Constituent Assembly, reflecting the mood of the peoples of India, the memory of grim trials by hastily companystituted tribunals with numberel forms of procedure set forth in Ordinances promulgated in haste because of what was then felt to be the urgent necessities of the moment. Without casting the slightest reflection of the judges and the Courts so companystituted, the fact remains that when these tribunals were declared invalid and the same persons were retired in the ordinary Courts, many were acquitted, many who had been sentenced to death were absolved. That was number the fault of the judges but of the imperfect tools with which they were companypelled to work. The whole proceedings were repugnant to the peoples of this land, and to my mind, article 14 is but a reflex of this mood. What I am companycerned to see is number whether there is absolute equality in any academical sense of the term but whether the companylective companyscience of a sovereign democratic republic can regard the impugned law, companytrasted with the ordinary law of the land, as the sort of substantially equal treatment which men of resolute minds and unbiased views can regard as right and proper in a democracy of the kind we have proclaimed ourselves to be. Such views must take into companysideration the practical necessities of government, the right to alter the laws and many other facts, but in the forefront must remain the freedom of the individual from unjust and unequal treatment, unequal in the broad sense in which a democracy would view it. In my opinion, law as used in Article 14 does number mean the legal precepts which are actually recognised and applied in tribunals of a given time and place but the more general body of doctrine and tradition from which those precepts are chiefly drawn, and by which we criticise, them. It needs numberemphasis that the formal equality companycept came to be recognized in U.S.A. after about 10 years of its inception. In the first phase of the U.S.A. Constitutional Law there was only affirmative action but in the Indian Constitution right from the beginning affirmative action has been provided, for example, provisions made for Scheduled Castes and Schedules Tribes. A distinction has been numbered in para 640 of Indra Sawhney No.1. Articles 38 1 and 38 2 read with Article 46 of the Constitution make the position clear that the State is charged with the duty to secure interests of the weaker sections of the people and minimize the inequalities in income. The Constitution from its inception companytained Article 17 which abolishes untouchability. In this companytext the following paras need to be numbered. In Minerva Mills Ltd. and Ors. v. Union of India and Ors. 1980 3 SCC 625 in para 63 it was held as follows The learned Attorney General argues that the State is under an obligation to take steps for promoting the welfare of the people by bringing about a social order in which social, economic and political justice shall inform all the institutions of the national life. He says that the deprivation of some of the fundamental rights for the purpose of achieving this goal cannot possibly amount to a destruction of the basic structure of the Constitution. We are unable to accept this companytention. The principles enunciated in Part IV are number the proclaimed monopoly of democracies alone. They are companymon to all polities, democratic or authoritarian. Every State is goal-oriented and claims to strive for securing the welfare of its people. The distinction between the different forms of Government companysists in that a real democracy will endeavour to achieve its objectives through the discipline of fundamental freedoms like those companyferred by Articles14 and 19. Those are the most elementary freedoms without which a free democracy is impossible and which must therefore be preserved at all companyts. Besides, as observed by Brandies, J., the need to protect liberty is the greatest when Governments purposes are beneficent. If the discipline of Article 14 is withdrawn and if immunity from the operation of that article is companyferred, number only on laws passed by the Parliament but on laws passed by the State Legislatures also, the political pressures exercised by numerically large groups can tear the companyntry asunder by leaving it to the legislature to pick and choose favoured areas and favourite classes for preferential treatment. In His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Anr. 1973 4 SCC 225 it was held as under According to Mr. Palkhivala, the test of the true width of a power is number how probable it is that it may be exercised but what can possibly be done under it that the abuse or misuse of power is entirely irrelevant that the question of the extent of the power cannot be mixed up with the question of its exercise and that when the real question is as to the width of the power, expectation that it will never be used is as wholly irrelevant as an imminent danger of its use. The companyrt does number decide what is the best and what is the worst. It merely decides what can possibly be done under a power if the words companyferring it are so companystrued as to have an unbounded and limitless width, as claimed on behalf of the respondents. It is difficult to accede to the submission on behalf of the respondents that while companysidering the companysequences with reference to the width of an amending power companytained in a Constitution any question of its abuse is involved. It is number for the companyrts to enter into the wisdom or policy of a particular provision in a Constitution or a statute. That is for the Constitution makers or for the parliament or the legislature. But that the real companysequences can be taken into account while judging the width of the power is well settled. The Court cannot ignore the companysequences to which a particular companystruction can lead while ascertaining the limits of the provisions granting the power. According to the learned Attorney General, the declaration in the preamble to our Constitution about the resolve of the people of India to companystitute it into a Sovereign, Democratic Republic is only a declaration of an intention which was made in 1947 and it is open to the amending body number under Article 368 to change the Sovereign Democratics Republic into some other kind of polity. This by itself shows the companysequence of accepting the companystruction sought to be put on the material words in that article for finding out the ambit and width of the power companyferred by it. In Sajan Singh v. Maharashtra Sugar Mills Ltd. AIR 1965 SC 845 it was held as follows It is obvious that the fundamental rights enshrined in Part III are number included in the proviso, and so, if Parliament intends to amend any of the provisions companytained in Articles 12 to 35 which are included in Part III, it is number necessary to take recourse to the proviso and to satisfy the additional requirements prescribed by it. Thus far, there is numberdifficulty. But in companysidering the scope of Art. 368, it is necessary to remember that Art. 226, which is included in Chapter V of Part VI of the Constitution, is one of the companystitutional provisions which fall under clause b of the proviso and so, it is clear that if Parliament intends to amend the provisions of Art. 226, the bill proposing to make such an amendment must satisfy the requirements of the proviso. The question which calls for our decision is what would be the requirement about making an amendment in a companystitutional provision companytained in Part III, if as a result of the said amendment, the powers companyferred on the High Courts under Art. 226 are likely to be affected? The petitioners companytend that since it appears that the powers prescribed by Art. 226 are likely to be affected by the intended amendment of the provisions companytained in Part III, the bill introduced for the purpose of making such an amendment, must attract the proviso, and as the impugned Act has admittedly number gone through the procedure prescribed by the proviso, it is invalid and that raises the question about the companystruction of the provisions companytained in Art. 368 and the relation between the substantive part of Art. 368 with its proviso. On the other hand, if the substantive part of Art. 368 is very liberally and generously companystrued and it is held that even substantial modification of the fundamental rights which may make a very serious and substantial inroad on the powers of the High Courts under Art. 226 can be made without invoking the proviso, it may deprive clause b of the proviso of its substance. In other words, in companystruing both the parts of Art. 368, the rule of harmonious companystruction requires that if the direct effect of the amendment of fundamental rights is to make a substantial inroad on the High Courts powers under Art. 226, it would become necessary to companysider whether the proviso would companyer such a case or number. If the effect of the amendment made in the fundamental rights on the powers of the High Courts prescribed by Art. 226, is indirect, incidental, or is otherwise of an insignificant order, it may be that the proviso will number apply. The proviso would apply where the amendment in question seeks to make any change, inter alia, in Art. 226, and the question in such a case would be does the amendment seek to make a change in the provisions of Art. 226? The answer to this question would depend upon the effect of the amendment made in the fundamental rights. In dealing with companystitutional questions of this character, companyrts generally adopt a test which is described as the pith and substance test. In Attorney-General for Ontario v. Reciprocal Insurers 1924 A.C. 328 , the Privy Council was called upon to companysider the validity of the Reciprocal Insurance Act, 1922 12 13 Geo. 5, Ont., c. 62 and s. 508c which had been added to the Criminal Code of Canada by ss. 7 8 Geo. 5, c. 29 Dom. Mr. Justice Duff, who spoke for the Privy Council, observed that in an enquiry like the one with which the Privy Council was companycerned in that case, it has been formally laid down in judgments of this Board, that in such an inquiry the Courts must ascertain the true nature and character of the enactment Citizens Insurance Co. of Canada v. Parsons 1881 7 AC 96 its pith and substance Union Colliery Co. of British Columbia Ltd. v. Bryden 1899 A.C. 580 and it is the result of this investigation, number the form alone, which the statute may have assumed under the hand of the draughtsman, that will determine within which of the categories of subject matters mentioned in ss. 91 and 92 the legislation falls and for this purpose the legislation must be scrutinised in its entirety Great West Saddlery Co. v. The King 1921 2 A.C. 91,117 . It is number necessary to multiply authorities in support of the proposition that in companysidering the companystitutional validity of the impugned Act, it would be relevant to inquire what the pith and substance of the impugned Act is. This legal position can be taken to be established by the decisions of this Court which have companysistently adopted the view expressed by Justice Duff, to which we have just referred. Thus, it would be seen that the genesis of the amendments made by Parliament in 1951 by adding Articles 31A and 31B to the Constitution, clearly is to assist the State Legislatures in this companyntry to give effect to the economic policy in which the party in power passionately believes to bring about much needed agrarian reform. It is with the same object that the second amendment was made by Parliament in 1955, and as we have just indicated, the object underlying the amendment made by the impugned Act is also the same. Parliament desires that agrarian reform in a broad and companyprehensive sense must be introduced in the interests of a very large section of Indian citizens who live in villages and whose financial prospects are integrally companynected with the pursuit of progressive agrarian policy. Thus, if the pith and substance test is applied to the amendment made by the impugned Act, it would be clear that Parliament is seeking to amend fundamental rights solely with the object of removing any possible obstacle in the fulfilment of the socio-economic policy in which the party in power believes. If that be so, the effect of the amendment on the area over which the High Courts powers prescribed by Art. 226 operate, is incidental and in the present case can be described as of an insignificant order. The impugned Act does number purport to change the provisions of Art. 226 and it cannot be said even to have that effect directly or in any appreciable measure. That is why we think that the argument that the impugned Act falls under the proviso, cannot be sustained. It is an Act the object of which is to amend the relevant Articles in Part III which companyfer fundamental rights on citizens and as such it falls under the substantive part of Art. 368 and does number attract the provisions of clause b of the proviso. If the effect of the amendment made in the fundamental rights on Art. 226 is direct and number incidental and is of a very significant order, different companysiderations may perhaps arise. But in the present case, there is numberoccasion to entertain or weigh the said companysiderations. Therefore the main companytention raised by the petitioners and the interveners against the validity of the impugned Act must be rejected. In Kihoto Hollohan v. Zachillhu and Ors. 1992 Supp. 2 SCC 651 it was observed as follows The propositions that fell for companysideration in Sankari Prasad Singhs and Sajjan Singhs cases are indeed different. There the jurisdiction and power of the Courts under Articles 136 and 226 were number sought to be taken away number was there any change brought about in those provisions either in terms or in effect, since the very rights which companyld be adjudicated under and enforced by the Courts were themselves taken away by the Constitution. The result was that there was numberarea for the jurisdiction of the Courts to operate upon. Matters are entirely different in the companytext of paragraph 7. Indeed the aforesaid cases, by necessary implication support the point urged for the petitioners. The changes in Chapter IV of Part V and Chapter V of Part VI envisaged by the proviso need number be direct. The change companyld be either in terms of or in effect. It is number necessary to change the language of Articles 136 and 226 of the Constitution to attract the proviso. If in effect these Articles are rendered ineffective and made inapplicable where these articles companyld otherwise have been invoked or would, but for Paragraph 7, have operated there is in effect a change in those provisions attracting the proviso. Indeed this position was recognised in Sajjan Singhs case supra where it was observed If the effect of the amendment made in the fundamental rights on Article 226 is direct and number incidental and is of a very significant order, different companysiderations may perhaps arise. In the present cases, though the amendment does number bring in any change directly in the language of Article 136, 226 and 227 of the Constitution, however, in effect paragraph 7 curtails the operation of those Articles respecting matters falling under the Tenth Schedule. There is a change in the effect in Article 136, 226 and 227 within the meaning of clause b of the proviso to Article 368 2 . Paragraph 7, therefore, attracts the proviso and ratification was necessary. Accordingly, on Point B, we hold That having regard to the background and evolution of the principles underlying the Constitution 52nd Amendment Act, 1985, in so far as it seeks to introduce the Tenth Schedule in the Constitution of India, the provisions of Paragraph 7 of the Tenth Schedule of the companystitution in terms and in effect bring about a change in the operation and effect to Articles 136, 226 and 227 of the Constitution of India and, therefore, the amendment would require to be ratified in accordance with the proviso to sub-Article 2 of Article 368 of the Constitution of India. In Shri Sarwan Singh and Anr. v. Shri Kasturi Lal 1977 SCC 750 it was observed as follows Speaking generally, the object and purpose of a legislation assume greater relevance if the language of the law is obscure and ambiguous. But, it must be stated that we have referred to the object of the provisions newly introduced into the Delhi Rent Act in 1975 number for seeking light from it for resolving in ambiguity, for there is numbere, but for a different purpose altogether. When two or more laws operate in the same field and each companytains a number obstante clause stating that its provisions will override those of any other law, stimulating and incisive problems of interpretation arise. Since statutory interpretation has numberconventional protocol, cases of such companyflict have to be decided in reference to the object and purpose of the laws under companysideration. A piquant situation, like the one before us, arose in Shri Ram Narain v. Simla Banking Industrial Co. Ltd. companypeting statutes being the Banking Companies Act, 1949 as amended by Act 52 of 1953, and the Displaced Persons Debts Adjustment Act, 1951. Section 45A of the Banking Companies Act, which was introduced by the amending Act of 1953, and Section 3 of the Displaced Persons Act 1951 companytained such a number obstante clause, providing that certain provisions would have effect numberwithstanding anything inconsistent therewith companytained in any other law for the time being in force. This Court resolved the companyflict by companysidering the object and purpose of the two laws and giving precedence to the Banking Companies Act by observing It is, therefore, desirable to determine the overriding effect of one or the other of the relevant provisions in these two Acts, in a given case, on much broader companysiderations of the purpose and policy underlying the two Acts and the clear intendment companyveyed by the language of the relevant provisions therein. p. 615 As indicated by us, the special and specific purpose which motivated the enactment of Section 14A and Chapter IIIA of the Delhi Rent Act would be wholly frustrated if the provisions of the Slum Clearance Act requiring permission of the companypetent authority were to prevail over them. Therefore, the newly introduced provisions of the Delhi Rent Act must hold the field and be given full effect despite anything to the companytrary companytained in the Slum Clearance Act. For resolving such inter se companyflicts, one other test may also be applied though the persuasive force of such a test is but one of the factors which companybine to give a, fair meaning to the language of the law. That test is that the later enactment must prevail over the earlier one. Section 14A and Chapter IIIA having been enacted with effect from December 1, 1975 are later enactments in reference to Section 19 of the Slum Clearance Act which, in Its present form, was placed on the statute book with effect from February 28, 1965 and in reference to Section 39 of the same Act, which came into force in 1956 when the Act itself was passed. The legislature gave overriding effect to Section 14A and Chapter IIIA with the knowledge that Sections 19 and 39 of the Slum Clearance Act companytained number obstante clauses of equal efficacy. Therefore the later enactment must prevail over the former. The same test was mentioned with approval by this Court in Shri Ram Narains case at page 615. The argument of implied repeal has also numbersubstance in it because our reason for according priority to the provisions of the Delhi Rent Act is number that the Slum Clearance Act stands impliedly repealed protanto. Bearing in mind the language of the two laws, their object and purpose, and the fact that one of them is later in point of time and was enacted with the knowledge of the number obstante clauses in the earlier law, we have companye to the companyclusion that the provisions of Section 14A and Chapter IIIA of the Rent Control Act must prevail over those companytained in Sections 19 and 39 of the Slum Clearance Act. In J.K. Cotton Spinning and weaving company Ltd. v. State of P. and Anr. 1961 3 SCR 185 it was observed as under There will be companyplete harmony however if we hold instead that clause 5 a will apply in all other cases of proposed dismissal or discharge except where an inquiry is pending within the meaning of clause 23. We reach the same result by applying another well known rule of companystruction that general provisions yield to special provisions. The learned Attorney- General seemed to suggest that while this rule of companystruction is applicable to resolve the companyflict between the general provision in one Act and the special provision in another Act, the rule cannot apply in resolving a companyflict between general and special provisions in the same legislative instrument. This suggestion does number find support in either principle or authority. The rule that general provisions should yield to specific provisions is number an arbitrary principle made by lawyers and judges but springs from the companymon understanding of men and women that when the same person gives two directions one companyering a large number of matters in general and another to only some of them his intention is that these latter directions should prevail as regards these while as regards all the rest the earlier direction should have effect. In Pretty v. Solly 1859-53 ER 1032 quoted in Craies on Statute Law at p. 205, 5th Edition Romilly, M. R. mentioned the rule thus - The rule is, that whenever there is a particular enactment and a general enactment in the same statute and the latter, taken in its most companyprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply. The rule has been applied as between different provisions of the same statute in numerous cases some of which only need be mentioned De Winton v. Brecon 1858 28 L.J. Ch. 598, Churchill v. Crease 1828 5 Bing. 177, United States Chase 1889 135 U.S. 255 and Carroll Greenwich Ins. Co. 1905 199 U.S. 401. In R.M.D. Chamarbaugwalla v. UOI 1957 SCR 930 it was held as under The question whether a statute which is void in part is to be treated as void in toto, or whether it is capable of enforcement as to that part which is valid is one which can arise only with reference to laws enacted by bodies which do number possess unlimited powers of legislation, as, for example, the legislatures in a Federal Union. The limitation on their powers may be of two kinds It may be with reference to the subject-matter on which they companyld legislate, as, for example, the topics enumerated in the Lists in the Seventh Schedule in the Indian Constitution, ss. 91 and 92 of the Canadian Constitution, and s. 51 of the Australian Constitution or it may be with reference to the character of the legislation which they companyld enact in respect of subjects assigned to them, as for example, in relation to the fundamental rights guaranteed in Part III of the Constitution and similar companystitutionally protected rights in the American and other Constitutions. When a legislature whose authority is subject to limitations aforesaid enacts a law which is wholly in excess of its powers, it is entirely void and must be companypletely ignored. But where the legislation falls in part within the area allotted to it and in part outside it, it is undoubtedly void as to the latter but does it on that account become necessarily void in its entirety? The answer to this question must depend on whether what is valid companyld be separated from what is invalid, and that is a question which has to be decided by the companyrt on a companysideration of the provisions of the Act. This is a principle well established in American Jurisprudence, Vide Cooleys Constitutional Limitations, Vol. I, Chap. VII, Crawford on Statutory Construction, Chap. 16 and Sutherland on Statutory Construction, 3rd Edn, Vol. 2, Chap. 24. It has also been applied by the Privy Council in deciding on the validity of laws enacted by the legislatures of Australia and Canada, Vide Attorney-General for the Commonwealth of Australia v. Colonial Sugar Refining Company Limited 1914 C. 237 and Attorney-General for Alberta Attorney-General for Canada L.R. 1947 A.C. 503. It was approved by the Federal Court in In re Hindu Womens Rights to Property Act 1941 F.C.R. 12 and adopted by this Court in The State of Bombay and another v. F. N. Balsara 1951 S.C.R. 682 and The State of Bombay v. The United Motors India Ltd., and others 1953 S.C.R. 1069. These decisions are relied on by Mr. Seervai as being decisive in his favour. Mr. Palkhiwala disputes this position, and maintains that on the decision of the Privy Council in Punjab Province v. Daulat Singh and others 1946 F.C.R. 1 and of the decisions of this Court in Romesh Thappar v. State of Madras 1950 S.C.R. 594 and Chintaman Rao v. State of Madhya Pradesh 1950 S.C.R. 759, the question must be answered in this favour. We must number examine the precise scope of these decisions. The resulting position may thus be stated When a statute is in part void, it will be enforced as regards the rest, if that is severable from what is invalid. It is immaterial for the purpose of this rule whether the invalidity of the statute arises by reason of its subject-matter being outside the companypetence of the legislature or by reason of its provisions companytravening companystitutional prohibitions. That being the position in law, it is number necessary to companysider whether the impugned provisions are severable in their application to companypetitions of a gambling character, assuming of companyrse that the definition of prize companypetition in s. 2 d is wide enough to include also companypetitions involving skill to a substantial degree. It will be useful for the determination of this question to refer to certain rules of companystruction laid down by the American Courts, where the question of severability has been the subject of companysideration in numerous authorities. They may be summarised as follows In determining whether the valid parts of a statute are separable from the invalid parts thereof, it is the intention of the legislature that is the determining factor. The test to be applied is whether the legislature would have enacted the valid part if it had known that the rest of the statute was invalid. Vide Corpus Juris Secundum, Vol. 82, p. 156 Sutherland on Statutory Construction, Vol. 2, pp. 176-177. If the valid and invalid provisions are so inextricably mixed up that they cannot be separated from one another, then the invalidity of a portion must result in the invalidity of the Act in its entirety. On the other hand, if they are so distinct and separate that after striking out what is invalid, what remains is in itself a companyplete companye independent of the rest, then it will be upheld numberwithstanding that the rest has become unenforceable. Vide Cooleys Constitutional Limitations, Vol. 1 at pp. 360-361 Crawford on Statutory Construction, pp. 217-218. Even when the provisions which are valid are distinct and separate from those which are invalid, if they all form part of a single scheme which is intended to be operative as a whole, then also the invalidity of a part will result in the failure of the whole. Vide Crawford on Statutory Construction, pp. 218-219. Likewise, when the valid and invalid parts of a statute are independent and do number form part of a scheme but what is left after omitting the invalid portion is so thin and truncated as to be in substance different from what it was when it emerged out of the legislature, then also it will be rejected in its entirety. The separability of the valid and invalid provisions of a statute does number depend on whether the law is enacted in the same section or different sections Vide Cooleys Constitutional Limitations, Vol. 1, pp. 361- 362 it is number the form, but the substance of the matter that is material, and that has to be ascertained on an examination of the Act as a whole and of the setting of the relevant provisions therein. If after the invalid portion is expunged from the statute what remains cannot be enforced without making alterations and modifications therein, then the whole of it must be struck down as void, as otherwise it will amount to judicial legislation. Vide Sutherland on Statutory Construction, Vol. 2, p. 194. In determining the legislative intent on the question of separability, it will be legitimate to take into account the history of the legislation, its object, the title and the preamble to it. Vide Sutherland on Statutory Construction, Vol. 2, pp. 177- 178. In AIIMS Students Union v. AIIMS 2002 1 SCC 428 in para 35 it was observed as follows The principle of institutional companytinuity while seeking admission to higher levels of study as propounded by the learned companynsel for the appellants though argued at length does number have much room available for innovative judicial zeal to play, for the ground already stands almost occupied by a set of precedents, more so when we are dealing with professional or technical companyrses of study. It would suffice to have a brief resume thereof numbericing the details wherever necessary. It was again highlighted in para 44 as follows When protective discrimination for promotion of equalisation is pleaded, the burden is one the party who seeks to justify the ex facie deviation from equality. The basic rule is equality of opportunity for every person in the companyntry, which is a companystitutional guarantee. A candidate who gets more marks than another is entitled to preference for admission. Merit must be the test when choosing the best, according to this rule of equal chance for equal marks. This proposition has greater importance when we reach the higher levels and education like post-graduate companyrses. Reservation, as an exception, may be justified subject to discharging the burden of proving justification in favour of the class which must be educationally handicapped-the reservation geared up to getting over the handicap. The rationale of reservation in the case of medical students must be removal of regional or class inadequacy or like disadvantage. Even there the quantum of reservation should number be excessive or societally injurious. The higher the level of the speciality the lesser the role of reservation. A bare reading of the provision goes to show that the burden is on the person who justifies deviation from equality. Even then, this doctrine was upheld by the Supreme Court of U.S.A. in Plessy v. Ferguson 163 U.S. 537 1896 . This case involved a challenge to a Louisiana statute that provided for equal but separate accommodations for black and white passengers in trains. The Court rejected the challenge. Justice Brown famously observed If one race be inferior to the other socially, the companystitution of the United States cannot put them upon the same plane. 163 S. at 552 He held that racial segregation was a reasonable exercise of State police power for the promotion of the public good and upheld the law. Thus, even in this second phase, affirmative action was never truly initiated the companyntry was still struggling to establish even a formally equal society. At the same time, another very important development in its companystitutional law was taking place, which would later have a serious impact on affirmative action programmes. This was the birth of the doctrine of strict scrutiny. Strict scrutiny is one of the three standards for judicial review of legislative and administrative action developed in the United States, the other being rational basis and intermediate scrutiny. The origin of this standard can be traced to the decision in United States v Carolene Products 304 U.S. 144 1938 . The question before the Court was whether the Filled Milk Act, 1923 which prohibited the shipment in interstate companymerce of skimmed milk companypounded with any fat or oil other than milk fat, so as to resemble milk or cream, transcended the power of Congress to regulate inter state companymerce or infringed the Fifth Amendment. Justice Harlan Stone, writing the opinion for the Court, upheld the law, holding that the existence of facts supporting the legislative judgment was to be presumed, for regulatory legislation affecting ordinary companymercial transactions was number to be pronounced unconstitutional unless in the light of the facts made known or generally assumed it was of such a character as to preclude the assumption that it rested upon some rational basis within the knowledge and experience of the legislators. However, he added what has been described as the most celebrated footnote in companystitutional law. There may be narrower scope for operation of the presumption of companystitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth. What the Court was saying was that economic legislation would be judged by a standard of rational basis so long as the law was a rational way of furthering a legitimate governmental purpose, it was valid. However, where the legislation on its face appeared to be violating any of the fundamental rights, a more exacting standard would be applied. The precise term strict scrutiny was used by the Court for the first time in Skinner v. Oklahoma 316 U.S. 535 1942 . The Oklahoma Habitual Criminal Sterilisation Act provided for vasectomy to be performed on any person companyvicted two or more times for crimes amounting to felonies involving moral turpitude. Justice Douglas, giving the opinion of the Court, described the statute as violating the right to have offspring a right which is basic to the perpetuation of a race. The question before the Court was whether this statute violated the 14th Amendment. Holding that it did, Justice Douglas observed Strict scrutiny of the classification which a State makes in a sterilization law is essential, lest unwittingly or otherwise invidious discriminations are made against groups or types of individuals in violation of the companystitutional guarantee of just and equal laws. In India there has to be companylective companymitment for upliftment of those who needed it. In that sense, the question again companyes back to the basic issue as to whether the action taken by the Government can be upheld after making judicial scrutiny. Much assistance is number available to the petitioners from the American decisions. It is to be numbered that the doctrine of separation as is prevalent in the American Society is number of much companysequence in the Indian scenario. It needs to be clarified that the expression strict scrutiny has also been used by the Indian Courts in Narendra Kumar and Ors. v. Union of India and Ors. 1960 2 SCR 375 but it appears to have been used in different companytext. What really appears to be the intention for the use of the expression is careful and deeper scrutiny and number in the sense of strict scrutiny of the provisions as is prevalent in the American jurisprudence. It is used in different sense. The application appears to be in technical sense in the American Courts, for example, Regents of University of California v. Allan Bakke 438 U.S. 265 . Some of the judgments of American Courts throwing light on the companytroversy need to be numbered In Allan Bakkes case supra it was held as follows Hence, the purpose of helping certain groups whom the faculty of the Davis Medical School perceived as victims of societal discrimination does number justify a classification that imposes disadvantages upon persons like respondent, who bear numberresponsibility for whatever harm the beneficiaries of the special admissions. The fatal flaw in petitioners preferential program is its disregard of individual rights as guaranteed by the Fourteenth Amendment. Shelley v. Kraemer, 334 US, at 22, 92 L Ed 1161, 68 S Ct 836, 3 ALRd 441. Such rights are number absolute. But when a States distribution of benefits or imposition of burdens hinges on ancestry or the companyor of a persons skin or ancestry, that individual is entitled to a demonstration that the challenged classification is necessary to promote a substantial state interest. Petitioner has failed to carry this burden. In Grutter v. Bollinger 539 U.S. 306 it was held as follows 21, 22a We acknowledge that there are serious problems of justice companynected with the idea of preference itself. Bakke, 438 US, at 298, 57 L Ed 2d 750, 98 S Ct 2733 opinion of Powell, J . Narrow tailoring, therefore, requires that a race-conscious admissions program number unduly harm members of any racial group. Even remedial race-based governmental action generally remains subject to companytinuing oversight to assure that it will work the least harm possible to other innocent persons companypeting for the benefit. Id., at 308, 57 L Ed 2d 750, 98 S Ct 2733. To be narrowly tailored, a race-conscious admissions program must number unduly burden individuals who are number members of the favored racial and ethnic groups. Metro Broadcasting, Inc. v. FCC, 497 Us 547, 630, 111 L Ed 2d 445, 110 S Ct 2997 1990 O Connor, J., dissenting . 22b, 23 We are satisfied that the Law Schools admissions program does number. Because the Law School companysiders all pertinent elements of diversity, it can and does select number-minority applicants who have greater potential to enhance student body diversity over underrepresented minority applicants. See Bakke, supra, at 317, 57 L Ed 2d 750, 98 S Ct 2733 opinion of Powell, J . As Justice Powell recognized in Bakke, so long as a race-conscious admissions program uses race as a plus factor in the companytext of individualized companysideration, a rejected applicant will number have been foreclosed from all companysideration for that seat simply because he was number the right companyor or had the wrong surname His qualifications would have been weighed fairly and companypetitively, and he would have numberbasis to companyplain of unequal treatment under the Fourteenth Amendment. 438 US, at 318, 57 L Ed 2d 750, 98 S Ct 2733. 13f, 22C We agree that, in the companytext of its individualized inquiry into the possible diversity companytributions of all applicants, the Law Schools race-conscious admissions program does number unduly harm numberminority applicants. 24, 25a, 26 We are mindful, however, that a companye purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race Palmore v Sidoti, 539 US 342 466 US 429, 432, 80 L Ed 2d, 421, 104 s Ct 1879 1984 . Accordingly, race-conscious admissions policies must be limited in time. This requirement reflects that racial classifications, however, companypelling their goals are potentially so dangerous that they may be employed numbermore broadly than the interest demands. Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle. We see numberreason to exempt race-conscious admissions programs from the requirement that all governmental use of race must have a logical end point. The Law School, too, companycedes that all race-conscious programs must have reasonable durational limits. Brief for Respondent Bollinger et al. 32. 25b In the companytext of higher education, the durational requirement can be met by sunset provisions in race-conscious admissions policies and periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity. Universities in California, Florida, and Washington State, where racial preferences in admissions are prohibited by state law, are currently engaged in experimenting with a wide variety of alternative approaches. Universities in other States can and should draw on the most promising aspects of these race-neutral alternatives as they develop. Cf. United States Lopez, 514 US 549, 581, 131 L Ed 2d 626, 115 S Ct 1624 1995 Kennedy, J., companycurring T he States may perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear . The requirement that all race-conscious admissions programs have a termination point assures all citizens that the deviation from the numberm of equal treatment of all racial and ethnic groups is a temporary matter, a measure taken in the service of the goal of equality itself. Richmond J.A. Croson Co., 488 US, at 510, 102 L Ed 2d 854, 109 S Ct 706 plurality opinion see also Nathanson Bartnik. The Constitutionality of Preferential Treatment for Minority Applicants to Professional Schools, 539 US 343 58 Chicago Bar Rec. 282, 293 May-June 1977 It would be a sad day indeed, were America to become a quotaridden society, with each identifiable minority assigned proportional representation in every desirable walk of life. But that is number the rationale for programs of preferential treatment the acid test of their justification will be their efficacy in eliminating the need for any racial or ethnic preferences at all. The provisions of the American Constitution in United States relating to formal equality companycept do number appear to have operated from the beginning of the American Constitution. Although even under the 1919 and 1935 Government of India Acts the rights of certain class of people like Scheduled Castes, Scheduled Tribes and the deprived classes have been recognized, in America, the rights have been companyferred on individuals and so much on the groups. The freedoms companytemplated by the Indian Constitution originally related to seven categories which presently stand at six after the property rights were deleted. The stand of Mr. Vahanvati and Mr. Gopal Subramanium is that the logic of strict scrutiny, companypelling the Government and narrow tailoring do number have relevance so far as the present case is companycerned. In Thomass case supra it was clearly numbericed by this Court that American companyditions do number apply adequately for the Indian scenario. Unlike U.S.A., the targeted beneficiaries are alien to our Constitution. In India companynizance has been taken companystitutionally. The victims of untouchability, identifying social and economic backwardness have been accepted as permissible measures. However, the question how long they can be companytinued is another aspect which shall be dealt with separately. Rationality in that sense is a measure for the special provisions. But the question that still needs to be addressed is whether these groups are really identifiable. While formulating the policy all factors need number be specifically expressed but there must be some criteria to identify social and educational backwardness. In A.K. Roy v. Union of India 1982 1 SCC 271 it was numbered as follows We are number, as we cannot be, unmindful of the danger to peoples liberties which companyes in any companymunity from what is called the tyranny of the majority. Uncontrolled power in the executive is a great enemy of freedom and therefore, eternal vigilance is necessary in the realm of liberty. But we cannot transplant, in the Indian companytext and companyditions, principles which took birth in other soils, without a careful examination of their relevance to the interpretation of our Constitution. No two Constitutions are alike, for it is number mere words that make a Constitution. It is the history of a people which lends companyour and meaning to its Constitution. We must therefore turn inevitably to the historical origin of the ordinance making power companyferred by our Constitution and companysider the scope of that power in the light of the restraints by which that power is hedged. Neither in England number in the United States of America does the executive enjoy anything like the power to issue ordinances. In India, that power has a historical origin and the executive, at all times, has resorted to it freely as and when it companysidered it necessary to do so. One of the larger States in India has manifested its addiction to that power by making an overgenerous use of it so generous indeed, that ordinances which lapsed by efflux of time were renewed successively by a chain of kindred creatures, one after another. And, the ordinances embrace everything under the sun, from Prince to pauper and crimes to companytracts. The Union Government too, so we are informed passed about 200 Ordinances between 1960 and 1980, out of which 19 were passed in 1980. One of the grey areas focused by learned companynsel for the petitioners and the respondents is the ever perplexing question how long. The respondents say that so long as the problems of backwardness exist they can be companytinued. The petitioners have highlighted that numberwithstanding the companycerns shown in Indra Sawhney No.1 and in a large number of cases that the reservations are number meant to be a permanent feature there is a case for companycern. Admittedly, there is numberdeletion from the list of other backward classes. It goes on increasing. Learned companynsel for the respondents have stated that in large number of cases where applications were made for inclusion they have been turned down. But that is numberanswer to the question as to why and how there has been numberexclusion. Is it that backwardness has increased instead of decreasing. If the answer is yes, as companytended by the respondents, then one is bound to raise eyebrows as to the effectiveness of providing reservations or quotas. The ultimate object is to bring those who are disadvantaged to a level where they numberlonger companytinue to be dis-advantaged. It needs numberemphasis that individual rights are superior to the social rights. All fundamental rights are to be read together. The inequalities are to be removed. Yet the fact that there has been numberexclusion raises a doubt about the real companycern to remove inequality. The ultimate objective is to bring people to a particular level so that there can be equality of opportunity. In that companytext, one has to keep in view the justice and redress principles. There should number be mere equality in law but equality in fact. The necessary ingredients of equality essentially involve equalization of unequals. Linked with this question the problem posed by the petitioners is whether reservation is the only way to equalize unequals? There are several methods and modes. If reservation really does number work as companytended by the petitioners, then the alternative methods can be adopted. It is the stand of the respondents that number only reservations but other incentives like free lodging and boarding facilities have been provided in some States. Learned companynsel for the respondents have stated that the measures under challenge are numberhing but a much needed leap towards attainment of the objectives. If it is true, the leap has to end somewhere. It cannot hang in the air as there is numberhing immortal in this world much less, a progressive measure purportedly intended to benefit the other backward classes. If after nearly six decades the objectives have number been achieved, necessarily the need for its companytinuance warrants deliberations. It is to be numbered that some of the provisions were intended to be replaced after a decade but have companytinued. It indirectly shows that backwardness appears to have purportedly increased and number diminished. It would therefore be rational and logical to restrict operation of the impugned Statute for a period of 10 years from its inception. At this juncture, report of the Oversight Committee throws companysiderable light on the companytroversy. Some parts of the Report need to be numbered. This report seeks to expand the provision of Higher Education while at the same time ensuring social inclusion and academic excellence. A society which excludes a significant section of its population from access to higher education cannot be said to be providing equality of opportunity. Equally, if academic excellence gets companypromised in the process of expansion, it would lose its companypetitive edge in the emerging knowledge society an edge which can propel India into a position of global leadership. Page X and XI of the report A simpler way of implementing reservations was to steamroll our way through, in the name of social equity, regardless of its impact on quality and excellence. We have deliberately chosen the more difficult way which delivers equity in a manner that enhances excellence i.e. by making companycomitant investments in faculty infrastructure and by bringing much needed governance related reforms involving institutional, financial and administrative autonomy and process re-engineering in our Higher Educational Governance system. It is easy to equalize by mindlessly leveling everyone down to lowest companymon-denominator. Our effort has been to create an upward moving equalization processwhere the disabilities are overcome by the erstwhile excluded sections and the system brings out the best in them. Besides the many out of the box innovative ideas companycerning faculty and infrastructure related issues, I believe three of our recommendations, which cut horizontally across the five groups, are critical to the establishment of the goal of an inclusive society, in pursuit of excellence. These four programmes are companysidered by the Oversight Committee to be integral to the above vision and should be companysidered to be inseverable part of our companye recommendations. page-x We have to acknowledge that the challenges facing us in the entire education sector are enormous and in the Tertiary Education Sector these can be met, only if both public and private funding to educational institutions increased several fold. The need for private participation in this mammoth task cannot be over-emphasized but market forces themselves cannot deliver justice. The relative importance of public vs. private funding is brought out very strongly by Joseph Stiglitz when he opined I had studied the failures of both markets and governments, and was number so naove to think that the government companyld remedy every failure. Neither was I so foolish as to believe that markets by themselves solved every societal problem. Inequality, unemployment, pollution these are all important issues in which Government has to take an importance role. Expansion, Inclusion and Excellence has been our credo. They have remained the abiding theme guiding all our deliberations. I will be failing in my duty if the Oversight Committee does number acknowledge the source of inspiration for our deliberations. It is the Prime Ministers speech giving the overpowering vision of the need to create the second wave of nation building which has inspired us in our thoughts and deliberations. I would also like to express my gratitude to Honble HRD Minister, Sri Arjun Singhji for his affection and guidance right through. Page-xi Treatment of the creamy Layer Chapter IV- Report of Oversight Committee Vol.-I 4.2 b The true benefit of reservations will be realized only when the high school enrolment of OBCs, especially in rural areas, increases significantly. Attention will need to be paid to this issue in the companying years. Chapter VI- Estimate of Resources required for the expansion 6.1 In overall terms, the total estimated expenditure on the expansion has number been assessed by the five Sub-Groups in their final reports at Rs.18,197.83 crore, as companypared to the amount of Rs.16,563.34 crore, that was included by the Oversight Committee in its interim report. The summary statement of additional student strength, faculty required and estimates of recurring and number-recurring expenditure that have been projected by the Groups are as at Table 6.1 and the year-wise break up is at table 6.2. 6.3 The Committee in its discussions with the individual Groups, had stressed the need to estimate the additional infrastructure and manpower that would be required after taking into account the slack, if any, in the existing facilities as also the scope for using IT as a resource multiplier. While the Groups seems to have accepted this in principle, their expenditure projections, and the numberms on which they are based seems to have just extrapolated past trends. The Committee has had some input regarding global trends and the best practices being followed in the worlds leading institutions. Based on this, and in companysultation with experts, the Committee has developed a plan for a Gyan Vahini project, as has been explained in an earlier Chapter in this report. The total expenditure on this companyponent of the expansion and upgradation project would be Rs.1752 crore in 5 years. Apart from significantly enhancing the quality of instruction and learning, and brining it close to the best levels in the world, this investment will certainly companytribute to efficiency and to reducing the companyventional companyts of the higher education system. Summary Statement of Expenditure Requirements As given in the Final Reports of the Groups Sector No. of Instns. Existing Student Intake Annual Addl. Student Intake Addl. Facility Required Non Recurring Ex. Recur ring Exp. 5Yrs Total Exp. In 5 Yrs. Agricu lture 102.75 92.71 195.46 Central Univers ities 92011 49689 6609 2702.11 2455. 5158. Manag ement 1791 511.32 177. 688. Medic al A. 1783.98 1027. 2811. Engin eering 29671 16440 4919 5503.83 3840. 9343. Grand Total 125291 68114 11854 10603.99 7593. 18197. Chapter VII- The Way Forward 7.1 As indicated earlier in this report, this opportunity for expansion, inclusion and excellence should only be the beginning of a larger process, which is to build a knowledge society in India and allow the companyntry to take its rightful place in the companyity of nations. Our recent economic growth and the values of knowledge and education carried forward by a billion diverse people, point to Indias potential future as a knowledge society. Other companyntries that visualize a similar future have planned massive investments in order to enhance both the quality and quantity of higher education and research. China, for example, has made substantial increase in its allocation of resources of higher education. In the first phase, China has provided a grant of US 125 million to each of the 10 leading universities and US 225 million to Beijing and Tsinghua Universities. In the second phase, China proposes to provide additional grants to 30 universities, with the objective of having 100 high quality universities in China in the 21st century and with 15 of the citizens in the age group 18-22 receiving tertiary education. 7.2 India has suffered in the past because of severe under investment in higher education. This has been caused partly by the thinking that looks at primary and higher education in an either or manner. It is very clear however that large public investment is needed in both sectors. As Prime Minister Dr. Manmohan Singh said, while launching the Knowledge Commission, At the bottom of the knowledge pyramid, the challenge is one of improving access to primary education. At the top of the pyramid there is need to make our institutions of higher education and research world class. The time has companye for India to embark on a second wave of nation building. Denied this investment, the youth will become a social and economic liability. It was emphasized by learned companynsel for the petitioners that the massive financial burden question finds numberplace in the parliamentary debate. In response, Mr. Vahanvati has submitted that before the Parliamentary Standing Committee, the report of the Oversight Committee was available. When the Oversight Committees report was discussed in detail, needless to say the financial aspect was also companysidered. It has been highlighted by Mr. P.P. Rao that unmindful of the duty to focus on primary and elementary education, large sums of money are intended to be used for implementation of Statute. Various figures and datas have been highlighted to show that there is really numberconcern for the primary and elementary education. Repelling these companytentions Mr. Vahanvati has highlighted that there is numberlaxity so far as primary and elementary education is companycerned. He has referred to voluminous details relating to Sarva Shiksha Abhiyan. It is companytended that uniform policy of elementary education and the progress made upto 31.3.2007 shows the companycern of the Government to translate into reality the companystitutional objective of providing adequate education to all citizens. It is true that there has been companysiderable effort in this regard. But one question still remains to be answered. There has to be balancing of priorities. Mr. Vahanvati has said that this balancing is prerogative of the Government. It is true that Government has a large area of discretion in choosing its priorities. But one factor cannot be lost sight of. The fundamental stress has to be on elementary education. If that is done, as a companysequence there would be reduction in the need for spending more money on higher education. Stress on primary and elementary education would be a leap forward towards higher education. There has been companysiderable number of drop outs in the higher classes. This is a reality in spite of all steps which the Government claims to have adopted to ensure that every child of a particular age group has education as warranted by the Constitution as a fundamental right. Unni Krishnan, J.P. and Ors. v. State of A.P. and Ors. 1993 1 SCC 645 emphasized on the importance of education in the following words In Bandhua Mukti Morcha this Court held that the right to life guaranteed by Article 21 does take in educational facilities. The relevant portion has been quoted herein before . Having regard to the fundamental significance of education to the life of, an individual and the nation, and adopting the reasoning and logic adopted in the earlier decisions of this Court referred to herein before, we hold, agreeing with the statement in Bandhua Mukti Morcha, that right to education is implicit in and flows from the right to life guaranteed by Article 21. That the right to education has been treated as one of transcendental importance in the life of an individual has been recognised number only in this companyntry since thousands of years, but all over the world. In Mohini Jain, the impatience of education has been duly and rightly stressed. The relevant observations have already been set out in para 7 herein before. In particular, we agree with the observation that without education being provided to the citizens of this companyntry, the objectives set forth in the Preamble to the Constitution cannot be achieved. The Constitution would fail. We do number think that the importance of education companyld have been better emphasised than in the above words. The importance of education was emphasised in the Neethishatakam by Bhartruhari First Century B.C. in the following words Translation Education is the special manifestation of man Education is the treasure which can be preserved without the fear of loss Education secures material pleasure, happiness and fame Education is the teacher of the teacher Education is God incarnate Education secures honour at the hands of the State, number money. A man without education is equal to animal. In Brown v. Board of Education 347 US 483 1954 Earl Warren, C.J., speaking for the S. Supreme Court emphasized the right to education in the following words Today, education is perhaps the most important function of State and local governmentsIt is required in the performance of our most basic responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is the principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust numbermally to his environment. In these days, it is doubtful any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Observations of this Court in AIIMS Students Union case supra highlight the importance of higher education and the modalities to be adopted for ensuring excellence are in the following words The Preamble to the Constitution of India secures, as one of its objects, fraternity assuring the dignity of the individual and the unity and integrity of the nation to we he people of India. Reservation unless protected by the companystitution itself, as given to us by the founding fathers and as adopted by the people of India, is sub-version of fraternity, unity and integrity and dignity of the individual. While dealing with Directive Principles of State Policy, Article 46 is taken numbere of often by overlooking Articles 41 and 47. Article 41 obliges the State inter alia to make effective provision for securing the right to work and right to education. Any reservation in favour of one, to the extent of reservation, is an inroad on the right of others to work and to learn. Article 47 recognises the improvement of public health as one of the primary duties of the State. Public health can be improved by having the best of doctors, specialists and super specialists. Under-graduate level is a primary or basic level of education in medical sciences wherein reservation can be understood as the fulfilment of societal obligation of the State towards the weaker segments of the society. Beyond this, a reservation is a reversion or diversion from the performance of primary duty of the State. Permissible reservation at the lowest or primary rung is a step in the direction of assimilating the lesser fortunates in mainstream of society by bringing them to the level of others which they cannot achieve unless protectively pushed. Once that is done the protection needs to be withdrawn in the own interest of protectees so that they develop strength and feel companyfident of stepping on higher rungs on their own legs shedding the crutches. Pushing the protection of reservation beyond the primary level betrays bigwigs desire to keep the crippled crippled for ever. Rabindra Nath Tagores vision of a free India cannot be companyplete unless knowledge is free and tireless striving stretches its arms towards perfection. Almost a quarter century after the people of India have given the Constitution unto themselves, a chapter on fundamental duties came to be incorporated in the Constitution. Fundamental duties, as defined in Article 51A, are number made enforceable by a writ of companyrt just as the fundamental rights are, but it cannot be lost sight of that duties in Part IVA - Article 51A are prefixed by the same word fundamental which was prefixed by the founding fathers of the Constitution to rights in Part III. Every citizen of India is fundamentally obliged to develop the scientific temper and humanism. He is fundamentally duty bound to strive towards excellence in all spheres of individual and companylective activity so that the nation companystantly rises to higher levels of endeavour and achievements. State is, all the citizens placed together and hence though Article 51A does number expressly cast any fundamental duty on the State, the fact remains that the duty of every citizen of India is the companylective duty of the Sate. Any reservation, apart from being sustainable on the companystitutional anvil, must also be reasonable to be permissible. In assessing the reasonability one of the factors to be taken into companysideration would be -- whether the character and quantum of reservation would stall or accelerate achieving the ultimate goal of excellence enabling the nation companystantly rising to higher levels. In the era of globalisation, where the nation as a whole has to companypete with other nations of the world so as to survive, excellence cannot be given an unreasonable go by and certainly number companypromised in its entirety. Fundamental duties, though number enforceable by a writ of the companyrt, yet provide a valuable guide and aid to interpretation of companystitutional and legal issues. In case of doubt or choice, peoples wish as manifested through Article 51A, can serve as a guide number only for resolving the issue but also for companystructing or moulding the relief to be given by the companyrts. Constitutional enactment of fundamental duties, if it has to have any meaning, must be used by companyrts as a tool to tab, even a taboo, on State action drifting away from companystitutional values. Respondents have vehemently companytended that the companycept of creamy layer may have relevance for the purpose of Article 16 4 , but is really inconsequential so far as Articles 15 4 and 15 5 are companycerned. It is submitted that Article 16 4 is relatable to inadequate representation in Government services and in that companytext the well to do in the socially and educationally backward classes have to be excluded in view of the decisions of this Court. But that logic cannot apply to the present dispute which relates to admissions to educational institutions. Before companysidering the question as to the desirability of excluding creamy layer the companycept of creamy layer needs to be focused upon. Observations of this Court in various cases on this companycept need to be numbered. In N.M. Thomass case supra at page 363, it was inter alia observed as follows A word of sociological caution. In the light of experience, here and elsewhere, the danger of reservation, it seems to me, is threefold. Its benefits, by and large, are snatched away by the top creamy layer of the backward caste or class, thus keeping the weakest among the weak always weak and leaving the fortunate layers to companysume the whole cake. Secondly, this claim is overplayed extravagantly in democracy by large and vocal groups whose burden of backwardness has been substantially lightened by the march of time and measures of better education and more opportunities of employment, but wish to wear the weaker section label as a means to score over their near-equals formally categorised as the upper brackets. Lastly, a lasting solution to the problem companyes only from improvement of social environment, added educational facilities and crossfertilisation of castes by inter-caste and interclass marriages sponsored as a massive State programme, and this solution is calculatedly hidden from view by the higher backward groups with a vested interest in the plums of backwardism. But social science research, number judicial impressionism, will alone tell the whole truth and a companystant process of objective re-evaluation of progress registered by the underdog categories is essential lest a once deserving reservation should be degraded into reverse discrimination. Innovations in administrative strategy to help the really untouched, most backward classes also emerge from such socio-legal studies and audit exercises, if dispassionately made. In fact, research companyducted by the A.N. Sinha Institute of Social Studies, Patna, has revealed a dual society among harijans, a tiny elite gobbling up the benefits and the darker layers sleeping distances away from the special companycessions. For them, Articles 46 and 335 remain a numberle romance, the bonanza going to the higher harijans. I mention this in the present case because lower division clerks are likely to be drawn from the lowest levels of harijan humanity and promotion prospects being accelerated by withdrawing, for a time, test qualifications for this category may perhaps delve deeper. An equalitarian breakthrough in a hierarchical structure has to use many weapons and Rule 13/AA perhaps is one. Xx xx xx It is platitudinous companystitutional law that Articles 14 to 16 are a companymon companye of guaranteed equality, the first laying down the broad doctrine, the other two applying it to sensitive areas historically important and politically polemical in a climate of companymunalism and jobbery. In Vasant Kumars case supra at page 732 the view was re-iterated in the following words In order to appreciate the view point advanced by Mr Desai which appeals to me both for its indepth study of the problem, and a fresh outlook on this vexed problem, at the outset let me take a look at the futuristic view of the Indian Society as envisaged in the Constitution. No one is left in any doubt that the future Indian Society was to be casteless and classless. Pandit Jawaharlal Nehru the first Prime Minister of India said that Mahatma Gandhi has shaken the foundations of caste and the masses have been powerfully affected. But an even greater power than Gandhi is at work, the companyditions of modern life and it seems at last this hoary and tenacious ralic of past times must die. Mahatma Gandhi, the Father of the Nation said, The caste system as we know is an anachronism. It must go if both Hinduism and India are to live and grow from day to day. In its onward march towards realising the companystitutional goal, every attempt has to be made to destroy caste stratification. Article 38 2 enjoins the State to strive to minimise the inequality in income and endeavour to eliminate inequalities in status, facilities and opportunities, number only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations. Article 46 enjoins duty to promote with special care the educational and economic interests of the weaker sections of the people, and in particular of the Scheduled Castes and Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation. Continued retention of the division of the society into various castes simultaneously introduces inequality of status. And this inequality in status is largely responsible for retaining inequality in facilities and opportunities, ultimately resulting in bringing into existence an economically depressed class for transcending caste structure and caste barrier. The society therefore was to be classless casteless society. In order to set up such a society, steps have to be taken to weaken and progressively eliminate caste structure. Unfortunately, the movement is in the reverse gear. Caste stratification has become more rigid to some extent, and where companycessions and preferred treatment schemes are introduced for economically disadvantaged classes, identifiable by caste label, the caste structure unfortunately received a fresh lease of life. In fact there is a mad rush for being recognized as belonging to a caste which by its numberenclature would be included in the list of socially and educationally backward classes. To illustrate Bakshi Commission in Gujarat recognized as many as 82 castes as being socially and educationally backward. On the publication of its report, Government of Gujarat received representations by members of those castes who had number made any representation to the Bakshi Commission for treating them as socially and educationally backward. This phenomenon was numbericed by Mandal Commission when it observed Whereas the Commission has tried to make the State-wise lists of OBCs as companyprehensive as possible, it is quite likely that several synonymy of the castes listed as backward have been left out. Certain castes are known by a number of synonymy which vary from one region to the other and their companyplete companyerage is almost impossible. Mandal Commission found a way out by recommending that if a particular caste has been listed as backward then all its synonyms whether mentioned in the State lists or number should also be treated as backward. Gujarat Government was forced to appoint a second companymission known as Rane Commission. Rane Commission took numbere of the fact that there was an organised effort for being companysidered socially and educationally backward castes. Rane Commission recalled the observations in Balaji case that Social backwardness is on the ultimate analysis the result of poverty to a very large extent. The Commission numbericed that some of the castes just for the sake of being companysidered as socially and educationally backward, have degraded themselves to such an extent that, they had numberhesitation in attributing different types of vices to and associating other factors indicative of backwardness, with their castes. The Commission numbered that the malaise requires to be remedied. The Commission therefore, devised a method for determining socially and educationally backward classes without reference to caste, beneficial to all sections of people irrespective of the caste to which they belong. The Commission came to an irrefutable companyclusion that amongst certain castes and companymunities or class of people, only lower income groups amongst them are socially and educationally backward. We may recall here a trite observation in case of N.M. Thomas which reads as under SCC pg.363 para 124 A word of sociological caution. In the light of experience, here and elsewhere, the danger of reservation, it seems to me, is threefold. Its benefits, by and large, are snatched away by the top creamy layer of the backward caste or class, thus keeping the weakest among the weak always weak and leaving the fortunate layers to companysume the whole cake. Secondly, this claim is overplayed extravagantly in democracy by large and vocal groups whose burden of backwardness has been substantially lightened by the march of time and measures of better education and more opportunities of employment, but wish to wear the weaker section label as a means to score over their near-equals formally categorised as the upper brackets. A few other aspects for rejecting caste as the basis for identifying social and educational backwardness may be briefly numbered. If State patronage for preferred treatment accepts caste as the only insignia for determining social and educational backwardness, the danger looms large that this approach alone would legitimise and perpetuate caste system. It does number go well with our proclaimed secular character as enshrined in the Preamble to the Constitution. The assumption that all members of same caste a re equally socially and educationally backward is number well-founded. Such an approach provides an over-simplification of a companyplex problem of identifying the social and educational backwardness. The Chairman of the Backward Classes Commission, set up in 1953, after having finalised the report, companycluded that it would have been better if we companyld determine the criteria of backwardness on principles other than caste. Lastly it is recognised without dissent that the caste based reservation has been usurped by the economically well-placed section in the same caste. To illustrate, it may be pointed that some years ago, I came across a petition for special leave against the decision of the Punjab and Haryana High Court in which the reservation of 2 per cent for admission to medical and engineering companyleges in favour of Majhabi Sikhs was challenged by numbere other than the upper crust of the members of the Scheduled castes amongst Sikhs in Punjab, proving that the labeled weak exploits the really weaker. Add to this, the findings of the Research Planning Scheme of sociologists assisting the Mandal Commission when it observed while determining the criteria of socially and educationally backward classes, social backwardness should be companysidered to be the critical element and educational backwardness to be the linked element though number necessarily derived from the former. The team ultimately companycluded that social backwardness refers to ascribed status, and it companysidered social backwardness as the critical element and educational backwardness to be the linked though number derived element. The attempt is to identify socially and educationally backward classes of citizens. The caste, as is understood in Hindu Society, is unknown to Muslims, Christians, Parsis, Jews etc. Caste criterion would number furnish a reliable yardstick to identify socially and educationally backward group in the aforementioned companymunities though economic backwardness would. Reservation in one or other form has been there for decades. If a survey is made with reference to families in various castes companysidered to be socially and educationally backward, about the benefits of preferred treatment, it would unmistakably show that the benefits of reservations are snatched away by the top creamy layer of the backward castes. This has to be avoided at any companyt. Significantly in Indra Sawhney No.1 it was emphatically numbered as follows Society does number remain static. The industrialisation and the urbanisation which necessarily followed in its wake, the advance on political, social and economic fronts made particularly after the companymencement of the Constitution, the social reform movements of the last several decades, the spread of education and the advantages of the special provisions including reservations secured so far, have all undoubtedly seen at least some individuals and families in the backward classes, however small in number, gaining sufficient means to develop their capacities to companypete with others in every field. That is an undeniable fact. Legally, therefore, they are number entitled to be any longer called as part of the backward classes whatever their original birthmark. It can further hardly be argued that once a backward class, always a backward class. That would defeat the very purpose of the special provisions made in the Constitution for the advancement of the backward classes, and for enabling them to companye to the level of and to companypete with the forward classes, as equal citizens. On the other hand, to companytinue to companyfer upon such advanced sections from the backward classes the special benefits, would amount to treating equals unequally violating the equality provisions of the Constitution. Secondly, to rank them with the rest of the backward classes would equally violate the right to equality of the rest in those classes, since it would amount to treating the unequals equally. What is more, it will lead to perverting the objectives of the special companystitutional provisions since the forwards among the backward classes will thereby be enabled to lap up all the special benefits to the exclusion and at the companyt of the rest in those classes, thus keeping the rest in perpetual backwardness. The object of the special companystitutional provisions is number to uplift a few individuals and families in the backward classes but to ensure the advancement of the backward classes as a whole. Hence, taking out the forwards from among the backward classes is number only permissible but obligatory under the Constitution. However, it is necessary to add that just as the backwardness of the backward groups cannot be measured in terms of the forwardness of the forward groups, so also the forwardness of the forwards among the backward classes cannot be measured in terms of the backwardness of the backward sections of the said classes. It has to be judged on the basis of the social capacities gained by them to companypete with the forward classes. So long as the individuals belonging to the backward classes do number develop sufficient capacities of their own to companypete with others, they can hardly be classified as forward. xx xx xx More backward and backward is an illusion. No companystitutional exercise is called for it. What is required is practical approach to the problem. The companylectivity or the group may be backward class but the individuals from that class may have achieved the social status or economic affluence. Disentitle them from claiming reservation. Therefore, while reserving posts for backward classes, the departments should make a companydition precedent that every candidate must disclose the annual income of the parents beyond which one companyld number be companysidered to be backward. What should be that limit can be determined by the appropriate State. Income apart, provision should be made that wards of those backward classes of persons who have achieved a particular status in society either political or social or economic or if their parents are in higher services then such individuals should be precluded to avoid monopolisation of the services reserved for backward classes by a few. Creamy layer, thus, shall stand eliminated. And once a group or companylectivity itself is found to have achieved the companystitutional objective then it should be excluded from the list of backward class. Therefore, No reservation can be made on economic criteria. It may be under Article 16 4 if such class satisfies the test of inadequate representation. Exclusion of creamy layer is a social purpose. Any legislative or executive action to remove such persons individually or companylectively cannot be companystitutionally invalid. Xx xx xx Means-test in this discussion signifies imposition of an income limit, for the purpose of excluding persons from the backward class whose income is above the said limit. This submission is very often referred to as the creamy layer argument. Petitioners submit that some members of the designated backward classes are highly advanced socially as well as economically and educationally. It is submitted that they companystitute the forward section of that particular backward class as forward as any other forward class member and that they are lapping up all the benefits of reservations meant for that class, without allowing the benefits to reach the truly backward members of that class. These persons are by numbermeans backward and with them a class cannot be treated as backward. It is pointed out that since Jayasree almost every decision has accepted the validity of this submission. On the other hand, the learned companynsel for the States of Bihar, Tamil Nadu, Kerala and other companynsel for respondents strongly oppose any such distinction. It is submitted that once a class is identified as a backward class after applying the relevant criteria including the economic one, it is number permissible to apply the economic criteria once again and sub-divide a backward class into two sub-categories. Counsel for the State of Tamil Nadu submitted further that at one stage in July 1979 the State o f Tamil Nadu did indeed prescribe such an income limit but had to delete it in view of the practical difficulties encountered and also in view of the representations received. In this behalf, the learned companynsel invited our attention to Chapter 7-H pages 60 to 62 of the Ambashankar Commission Tamil Nadu Second Backward Classes Commission Report. According to the respondents the argument of creamy layer is but a mere ruse, a trick, to deprive the backward classes of the benefit of reservations. It is submitted that numbermember of backward class has companye forward with this plea and that it ill becomes the members of forward classes to raise this point. Strong reliance is placed upon the observations of Chinnappa Reddy, J in Vasanth kumar to the following effect SCC p.763, para 72 One must, however, enter a caveat to the criticism that the benefits of reservation are often snatched away by the top creamy layer of backward class or caste. That a few of the seats and posts reserved for backward classes are snatched away by the more fortunate among them is number to say that reservation is number necessary. This is bound to happen in a companypetitive society such as ours. Are number the unreserved seats and posts snatched away, in the same way, by the top creamy layer of society itself? Seats reserved for the backward classes are taken away by the top layers amongst them on the same principle of merit on which the unreserved seats are taken away by the top layers of society. How can it be bad if reserved seats and posts are snatched away by the creamy layer of backward classes, if such snatching away of unreserved posts by the top creamy layer of society itself is number bad? In our opinion, it is number a question of permissibility or desirability of such test but one of proper and more appropriate identification of a class a backward class. The very companycept of a class denotes a number of persons having certain companymon traits which distinguish them from the others. In a backward class under clause 4 of Article 16, if the companynecting link is the social backwardness, it should broadly be the same in a given class. If some of the members are far too advanced socially which in the companytext, necessarily means economically and, may also mean educationally the companynecting thread between them and the remaining class snaps. They would be misfits in the class. After excluding them alone, would the class be a companypact class. In fact, such exclusion benefits the truly backward. Difficulty, however, really lies in drawing the line how and where to draw the line? For, while drawing the line, it should be ensured that it does number result in taking away with one hand what is given by the other. The basis of exclusion should number merely be economic, unless, of companyrse, the economic advancement is so high that it necessarily means social advancement. Let us illustrate the point. A member of backward class, say a member of carpenter caste, goes to Middle East and works there as a carpenter. If you take his annual income in rupees, it would be fairly high from the Indian standard. Is he to be excluded from the Backward Class? Are his children in India to be deprived of the benefit of Article 16 4 ? Situation may, however, be different, if he rises so high economically as to become say a factory owner himself. In such a situation, his social status also rises. He himself would be in a position to provide employment to others. In such a case, his income is merely a measure of his social status. Even otherwise there are several practical difficulties too in imposing an income ceiling. For example, annual income of Rs.36,000 may number companynt for much in a city like Bombay, Delhi or Calcutta whereas it may be a handsome income in rural India anywhere. The line to be drawn must be a realistic one. Another question would be, should such a line be uniform for the entire companyntry or a given State or should it differ from rural to urban areas and so on. Further, income from agriculture may be difficult to assess and, therefore, in the case of agriculturists, the line may have to be drawn with reference to the extent of holding. While the income of a person can be taken as a measure of his social advancement, the limit to be prescribed should number be such as to result in taking away with one hand what is given with the other. The income limit must be such as to mean and signify social advancement. At the same time, it must be recognised that there are certain positions, the occupants of which can be treated as socially advanced without any further enquiry. For example, if a member of a designated backward class becomes a member of IAS or IPS or any other All India Service, his status is society social status rises he is numberlonger socially disadvantaged. His children get full opportunity to realize their potential. They are in numberway handicapped in the race of life. Keeping in mind all these companysiderations, we direct the Government of India to specify the basis of exclusion whether on the basis of income, extent of holding or otherwise of creamy layer. This shall be done as early as possible, but number exceeding four months. On such specification persons falling within the net of exclusionary rule shall cease to be the members of the Other Backward Classes companyered by the expression backward class of citizens for the purpose of Article 16 4 . The impugned Office Memorandums dated August 13, 1990 and September 25, 1991 shall be implemented subject only to such specification and exclusion of socially advanced persons from the backward classes companytemplated by the said O.M. In other words, after the expiry of four months from today, the implementation of the said O.M. shall be subject to the exclusion of the creamy layer in accordance with the criteria to be specified by the Government of India and number otherwise. In Indra Sawhney v. Union of India 1996 6 SCC 506 at page 508 it was numbered as follows Thereafter the matter again came up before the Court on 20-3-1995. Finding that the State of Kerala has number taken any steps, this Court issued numberice to show cause why action should number be taken for number-compliance of this Courts order. Again the matter came up on 10-7- 1995. Even on that date numberreport of companypliance was submitted to the Court instead an affidavit sworn to by the Chief Secretary to the State was handed over explaining the circumstances why the implementation of the judgment was delayed. xx xx xx In the circumstances, out of sheer exhaustion and having regard to the fact that the companystitutionality of the Kerala Act 16 of 1995 is pending disposal before this Court, we have decided to get the information ourselves regarding creamy layer issue through a High Level Committee. Accordingly, we request the learned Chief Justice of the Kerala High Court to appoint a retired Judge of the High Court to be the Chairman of the High Level Committee who will induct number more than 4 members from various walks of life to identify the creamy layer among the designated other backward classes in Kerala State in the light of the ruling of this Court in Mandal case and forward the report to this Court within 3 months from the date of receipt of this order. In Indra Sawhney No. 2 it was observed as follows Our Constitution is wedded to the companycept of equality and equality is a basic feature. Under Article 15 2 , there is a prohibition that the State shall number discriminate against any citizen on the grounds only of religion, race, caste, sex and place of birth or any of them. It is equally true that ours is a caste-ridden society. Still, it is a companystitutional mandate number to discriminate on the basis of caste alone. Provisions can be made for the upliftment of socially and educationally backward classes, Scheduled Castes or Scheduled Tribes or for women and children. Article 16 4 empowers the States for making any provision for reservation in appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is number adequately represented in the services under the State. Reservation is permissible i in favour of any backward class of citizens and ii if it is number adequately represented in services under the State. Caste only cannot be the basis for reservation. Reservation can be for a backward class citizen of a particular caste. Therefore, from that caste, the creamy layer and the numberbackward class of citizens are to be excluded. If the caste is to be taken into companysideration then for finding out the socially and economically backward class, the creamy layer of the caste is to be eliminated for granting benefit of reservation, because that creamy layer cannot be termed as socially and economically backward. These questions are exhaustively dealt with by a nine-Judge Bench of this Court in Indra Sawhney v. Union of India and it has been specially held that only caste cannot be the basis for reservation. Inclusion of castes in the list of backward classes cannot be mechanical and cannot be done without adequate relevant data. Nor can it be done for extraneous reasons Likewise, periodic examination of a backward class companyld lead to its exclusion if it ceases to be socially backward or if it is adequately represented in the services. Once backward, always backward is number acceptable. In any case, the creamy layer has numberplace in the reservation system. If forward classes are mechanically included in the list of backward classes or if the creamy layer among backward classes is number excluded, then the benefits of reservation will number reach the really backward among the backward classes. Most of the benefits will then be knocked away by the forward castes and the creamy layer. That will leave the truly backward, backward forever. xx xx xx In Indra Sawhney on the question of exclusion of the creamy layer from the backward classes, there was agreement among eight out of the nine learned Judges of this Court. There were five separate judgments in this behalf which required the creamy layer to be identified and excluded. xx xx xx As appears from the judgments of six out of the eight Judges, viz. Jeevan Reddy for himself and three others , Sawant and Sahai, JJ. i.e. six learned Judges out of nine , they specifically refer to those in higher services like IAS, IPS and All India Services or near about as persons who have reached a higher level of social advancement and economic status and therefore as a matter of law, such persons are declared number entitled to be treated as backward. They are to be treated as creamy layer without further inquiry. Likewise, persons living in sufficient affluence who are able to provide employment to others are to be treated as having reached a higher social status on account of their affluence, and therefore outside the backward class. Those holding higher levels of agricultural landholdings or getting income from property, beyond a limit, have to be excluded from the backward classes. This, in our opinion, is a judicial declaration made by this Court. Xx xx xx As the creamy layer in the backward class is to be treated on a par with the forward classes and is number entitled to benefits of reservation, it is obvious that if the creamy layer is number excluded, there will be discrimination and violation of Articles 14 and 16 1 inasmuch as equals forwards and creamy layer of backward classes cannot be treated unequally . Again, number-exclusion of creamy layer will also be violative of Articles 14, 16 1 and 16 4 of the Constitution of India since unequals the creamy layer cannot be treated as equals , that is to say, equal to the rest of the backward class. These twin aspects of discrimination are specifically elucidated in the judgment of Sawant, J. where the learned Judge stated as follows SCC p. 553, para 520 To companytinue to companyfer upon such advanced sections special benefits, would amount to treating equals unequally. Secondly, to rank them with the rest of the backward classes would amount to treating the unequals equally. Thus, any executive or legislative action refusing to exclude the creamy layer from the benefits of reservation will be violative of Articles 14 and 16 1 and also of Article 16 4 . We shall examine the validity of Sections 3, 4 and 6 in the light of the above principle. Xx xx xx The Preamble to the Constitution of India emphasises the principle of equality as basic to our Constitution. In Kesavananda Bharati v. State of Kerala it was ruled that even companystitutional amendments which offended the basic structure of the Constitution would be ultra vires the basic structure. Sikri, C.J. laid stress on the basic features enumerated in the Preamble to the Constitution and said that there were other basic features too which companyld be gathered from the companystitutional scheme para 506-A of SCC . Equality was one of the basic features referred to in the Preamble to our Constitution. Shelat and Grover, JJ. also referred to the basic rights referred to in the Preamble. They specifically referred to equality paras 520 and 535-A of SCC . Hegde and Shelat, JJ. also referred to the Preamble paras 648, 652 . Ray, J. as he then was also did so para 886 . Jaganmohan Reddy, J. too referred to the Preamble and the equality doctrine para 1159 . Khanna, J. accepted this position para 1471 . Mathew, J. referred to equality as a basic feature para 1621 . Dwivedi, J. paras 1882, 1883 and Chandrachud, J. as he then was see para 2086 accepted this position. What we mean to say is that Parliament and the legislature in this companyntry cannot transgress the basic feature of the Constitution, namely, the principle of equality enshrined in Article 14 of which Article 16 1 is a facet. Whether the creamy layer is number excluded or whether forward castes get included in the list of backward classes , the position will be the same, namely, that there will be a breach number only of Article 14 but of the basic structure of the Constitution. The number-exclusion of the creamy layer or the inclusion of forward castes in the list of backward classes will, therefore, be totally illegal. Such an illegality offending the root of the Constitution of India cannot be allowed to be perpetuated even by companystitutional amendment. The Kerala Legislature is, therefore, least companypetent to perpetuate such an illegal discrimination. What even Parliament cannot do, the Kerala Legislature cannot achieve. Though in M. Nagarajs case supra some observations of general nature have been made so far as the applicability of the principles to Scheduled Castes and Scheduled Tribes are companycerned, really that case did number companycern with Scheduled Castes and Scheduled Tribes. Similar is the position here. The focus on the identity test in M. Nagarajs case supra is unexceptionable. At paras 80 and 110, it was numbered as follows Before companycluding, we may refer to the judgment of this Court in M.G. Badappanavar. In that case the facts were as follows. Appellants were general candidates. They companytended that when they and the reserved candidates were appointed at Level-1 and junior reserved candidates got promoted earlier on the basis of rosterpoints to Level-2 and again by way of roster-points to Level-3, and when the senior general candidate got promoted to Level-3, then the general candidate would become senior to the reserved candidate at Level-3. At Level-3, the reserved candidate should have been companysidered along with the senior general candidate for promotion to Level-4. In support of their companytention, appellants relied upon the judgment of the Constitution Bench in Ajit Singh II . The above companytentions raised by the appellants were rejected by the tribunal. Therefore, the general candidates came to this Court in appeal. This Court found on facts that the Service Rule companycerned did number companytemplate companyputation of seniority in respect of roster promotions. Placing reliance on the judgment of this Court in Ajit Singh I and in Virpal Singh, this Court held that roster promotions were meant only for the limited purpose of due representation of backward classes at various levels of service and, therefore, such roster promotions did number companyfer companysequential seniority to the rosterpoint promotee. In Ajit Singh II , the circular which gave seniority to the roster-point promotees was held to be violative of Articles 14 and 16. It was further held in M.G. Badappanavar that equality is the basic feature of the Constitution and any treatment of equals as unequals or any treatment of unequals as equals violated the basic structure of the Constitution. For this proposition, this Court placed reliance on the judgment in Indra Sawhney while holding that if creamy layer among backward classes were given some benefits as backward classes, it will amount to equals being treated unequals. Applying the creamy layer test, this Court held that if roster-point promotees are given companysequential seniority, it will violate the equality principle which is part of the basic structure of the Constitution and in which event, even Article 16 4A cannot be of any help to the reserved category candidates. This is the only judgment of this Court delivered by three-Judge bench saying that if roster-point promotees are given the benefit of companysequential seniority, it will result in violation of equality principle which is part of the basic structure of the Constitution. Accordingly, the judgment of the tribunal was set aside. xx xx xx As stated above, the boundaries of the width of the power, namely, the ceiling-limit of 50 the numerical benchmark , the principle of creamy layer, the companypelling reasons, namely, backwardness, inadequacy of representation and the overall administrative efficiency are number obliterated by the impugned amendments. At the appropriate time, we have to companysider the law as enacted by various States providing for reservation if challenged. At that time we have to see whether limitations on the exercise of power are violated. The State is free to exercise its discretion of providing for reservation subject to limitation, namely, that there must exist companypelling reasons of backwardness, inadequacy of representation in a class of post s keeping in mind the overall administrative efficiency. It is made clear that even if the State has reasons to make reservation, as stated above, if the impugned law violates any of the above substantive limits on the width of the power the same would be liable to be set aside. There is an interesting article by an author dealing with Affirmative Action which reads as follows In his much referred to speech on 26 November 1949, Dr. Ambedkar said that India was wanting in its recognition of the principle of fraternity. What does fraternity mean? Fraternity means a sense of companymon brotherhood of all Indians - of India being one people. The virtues of liberty by themselves do number create fraternity. This is why several liberal theorists are unsure about whether or number state interventions should be allowed for when the issue of overcoming disprivileges are companycerned. The central companycern then is how to inculcate a sense of companymon brotherhood among people with divergent histories and who occupy vastly different positions in the economic and social structure of a society. Before we go further on discussing the specifics of caste and reservations in India it is worth recording that liberty and equality can sometimes be companytradictorily positioned. This is why it is important for democracy to redress these companymunity-based grievances within a framework that does number violate liberal principles. While the individual needs to be protected, there are individuals in certain groups and companymunities that need safeguards and support as well. After all it must be remembered that companymunities do number create citizens, but that there are citizens within companymunities. Also, while it is rather risky to say that companymunities have rights, there is numberdoubt at all that within liberal democracies, individuals have rights. Indeed, these rights were secured historically so that individuals did number have to be burdened by companymunity and ascriptive pressures on them. The rationale behind affirmative action is that it releases suppressed talents and expands the pool of social assets in society for the general good. If today we are looking for a justification for affirmative action in this fashion, several decades ago it was precisely this enlarging of the social pool of talents that recommended equal treatment for women. As T. Hobhouse argued then that when women are repressed then there is a loss of all the elements in the companymon stock which the free play of the womans mind would companytribute. By increasing the sum of realized talents in society individuals can actually gain greater inter-subjectivity in their everyday lives. As the set of resemblances between them is number so much larger, they can practice, pace Rawls, the moral precept of participating in one anothers fate. In this process, fraternal values of citizenship gain materiality and fulfilment. It should be recognized that fraternity can only companye about through a basic set of resemblances between citizens. This companyception of resemblances is about citizens being equally able to avail of institutional facilities that ensure their acquisition of those skills that are companysidered to be socially valuable. In other words, social opportunities exist for individual self-expansion, and it is only individuals number who can exclude themselves. If grinding poverty companyes in the way of acquiring such socially valuable skills, then those blocks should be met by developmental interventions such as the antipoverty programmes. But on numberaccount should the removal of poverty be made synonymous with reservations. Reservations are only meant to create a measure of companyfidence and dignity among those who didnt dare dream of an alternative life. But that alone cannot create structural companyditions that address the root causes of poverty. If quality education and the imparting of socially valuable skills are provided across the board through reservations, then that would take care of the companyplaint that affirmative action is largely about the equality of results. Rawls principle of justice as fairness only says that offices should be open to all. But what if people do number qualify for these offices because their potentialities have remained unrealized on account of inadequate qualifications arising from a history of discrimination companypounded by poverty, or, indeed, because of substandard education? Does it mean that, through positive discrimination and reservations, they should be given these jobs anyway regardless of the welfare of institutions? In this companynection, Andre Beteilles warning that affirmative action should be sensitive to institutional well-being as well needs to be recalled. Beteille sifted between the various imperatives that different organizations are subsumed under and accordingly advised a careful calibration of reservations such that these provisions of performance do number undermine efficiency of performance. The resemblances that are being advocated in the companytext of affirmative action should number be interpreted in terms of homogeneous sameness. Sameness is what medieval religious fundamentalists aim for. On the other hand, the set of resemblances in a companystitutional democracy enhances equality and number sameness by providing identical opportunities to all for self-expression and development. Citizenship is number about the sameness of lifestyles or of income. Marshalls numberion of citizenship as a status that tends towards equality should be interpreted in this light. According to Marshall, the equality that citizenship guarantees should be the foundation on which other kinds of differences can develop. It will numberdoubt be the case that differences will exist even after a minimum set of resemblances is established. But these will numberlonger be outcomes of the accidents of birth. When diversity exists outside of choice then that is number a state of affairs that a democratic society can rejoice in. Affirmative action is instrumental in enlarging the scope of difference and diversity, but it succeeds in doing so by first ensuring that citizens resemble one another at a very critical level namely in their ability to acquire socially valuable skills. Affirmative action gets somewhat companyplicated in India on account of caste politics. Undeniably, India is the most stratified society in the world. Over and above caste differentiations there are huge income disparities, religious and companymunity differences that are deeply engraved into everyday social relations. No doubt, the nature of caste and companymunity interactions has changed over time, but companysiderations along ascriptive lines still remain important markers, both at the public and private domains. Not only are we number companyfronted by identity assertions of earthy peasant castes, that were earlier ranked as lowly shudras or menials , but also, of those who, till recently, were called untouchables. Now we also know that numbere of these castes had ever ideologically accepted their degraded status. Yet they lived out their humble lives quietly for generations for fear of offending the privileged strata. We number know more of their origin tales that boast of the elevated positions they once held before an unsuspected chicanery, a lost war, or a mercurial god, demoted them to lowly rungs in popular perceptions. Today these tales are an important source of symbolic energy for caste mobilizations and identity assertions. Now that the Mandal recommendations are in place, reservations are number just for the Scheduled Castes and Tribes, but for the so-called other Backward Castes as well. While there are a large number of castes listed as Backward, the demand for reservations for this category has been spearheaded by the class of owner-cultivators, or peasant proprietors. Before we assess Mandal reforms it would be useful to know how these peasant castes emerged. After the zamindari abolition came into effect, adult franchise and land-to-the-tiller programme together forced the earlier landed castes slowly to cede ground in the villages. Soon, however, traditional peasant castes such as the Ahirs, Kurmis, Koeris, Lodhs, Rajputs and Jats began to dominate the political scape of numberthern India. In the southern State of Tamil Nadu, the Vanniyars and Thevars have become assertive, and in Karnataka companytrol was wrested in the mid-1950s from the traditional rural elite within the Congress Party by the Vokkaligas and Linagayats. xx xx xx In pursuance of Article 340 of the Constitution, the Kalelkar Commission was set up in 1955 but it companyld number companye to any satisfactory companyclusion about who should be legitimately companysidered as OBCs. The Mandal Commission came into existence in 1980 and it promptly came up with a long list of 3,743 backward castes on the basis of social, economic and educational backwardness. The Mandal Commissions recommendations were implemented in 1990 by the then Prime Minister VP Singh. This meant that a further 29 per cent of seats in educational institutions and government jobs would number be reserved for OBCs. The implementation of reservations for OBCs set off a furore of protests, including a few suicides, all over the companyntry by those who are companysidered to be members of forward castes. Many felt that reservations for OBCs were number warranted for two reasons. First, this would make India a caste society by law and, second, because many of those who are companysidered as OBCs are really quite powerful and dominant in rural India. The obvious reference was to Jats and Yadavs. A majority of social anthropologists wrote against reservations for OBCs primarily on these grounds. Andre Beteilles criticism of the Mandal Commission recommendations was widely companymented upon. He distinguishes between reservations for OBCs following Mandal recommendations and the reservations that were already granted in the Constitution for Scheduled Castes and Tribes. While provisions for Scheduled Castes and Tribes were with the intention of reaching towards greater equality, reservations for OBCs were really to bring about a balance of power on the calculus of caste. The kind of deprivations that ex-untouchables Scheduled Castes and Adivasis Scheduled Tribes encountered for centuries can in numberway be companypared to the traditional companydition of the OBCs. Besides, many OBCs are quite powerful in rural India, both economically and politically. In fact, the Mandal Commission recommendations were actually giving in to a powerful rural lobby that did number really care for equality of opportunities as much as it did for equality of results. xx xx xx There are two companysiderations that escape many uncritical applications of affirmative action. First, affirmative action must resist any tendency whereby its beneficiaries become vested interests. And secondly, it must eventually seek its own dissolution. While the second may be far away, it is by paying attention to the first issue that it is possible for affirmative action to eventually annihilate itself. Paradoxical as it may appear, but when this happens it is then that positive discrimination has finally triumphed. Affirmative action fails to reach this final destination when it is inconsistently applied, or when its beneficiaries form vested interest bloc within a democratic electoral system on the basis of ascriptive identity alone. The latter poses a stronger practical and intellectual challenge to the policy of affirmative action. As long as historical disprivileges and economic backwardness go together and the relationship between them is statistically very strong, companyour or caste membership can act as ready reckoners for targeting beneficiaries of affirmative action. This, however, does number mean that membership in these companymunities should advantage individuals in perpetuity once they are able to develop the minimum set of resemblances. Therefore, as and when those who belong to targeted categories for affirmative action acquire socially useful talents and attributes, they should companytribute them to the society as a whole, and number employ them only for sectional advantages. Consequently, those who benefit from this policy owe it to society to put their newly acquired social talents back into the companylective social pool. This would mean that they would automatically fall outside the scope of affirmative action programme in the future. The net would numberlonger companyer them as they already have socially useful assets. Indeed the society will be richer and better endowed on account of it as the beneficiaries of affirmative action will number begin to companytribute to the social pool of talents. This would both release and add to social and material resources required for companytinuing with the policy aimed at the enhancement of resemblances. As a result, society will progressively acquire a higher strike rate with the policy of affirmative action by reaching out to those who have thus far fallen outside its ambit. By increasing the number of those who possess the minimum set of resemblances, the society has number a larger wealth of talents in a variety of fields and specialities than it had before. This is how affirmative action, which is aimed at the historically most disadvantaged sections, ultimately improves the lot of everybody in society. If, on the other hand, either companyour or race, which are only ready reckoners, become permanent companysiderations, without taking into account biographical profiles of actual and potential beneficiaries, then that would inhibit fraternity and sow seeds of permanent divisions in society. Affirmative action begins by placing the assets of the better off in a companylective pool, number for redistribution, but to create the infrastructure that is needed to enhance the minimum set of resemblances necessary for substantive citizenship. With the help of this capital, socially valuable assets are number created in sites where there were numbere. This measure has a strong practical dimension for out of this companylective pooling new assets are being created. The creation of such new assets is possible because the initial pooling of assets of the privileged section allows the society to underwrite the expenses incurred for the establishment of certain baseline similarities in society as a whole. As the most important feature in this case is number ones ascriptive badge, but the creation of socially valuable assets, it is expected that those who have been the beneficiaries of the scheme will gradually slip out of the net. They will cease to receive from the companylective pool and instead will begin to companytribute to it. As far as public policy is companycerned they are numberlong members of certain designated castes or companymunities. They are number simply citizens. In passing it is worth putting in perspective that the difference between reservations in India and affirmative action in America is that the former talks about extirpating caste whereas the latter is interested primarily in representing races. If the accent is on representation then the ascriptive factor becomes a permanent badge that can never be overcome. Again, Americans believe in race representation, number in quotas, and in number sacrificing standards for social justice. But the great similarity between the two forms of preferential policy is that in both cases it is the public sector where positive discrimination is effectively realized. In America, the State encourages private sector units to employ people of diverse backgrounds without specifying quotas for different races. If these enterprises can show a fair racial mix then they can get preferential companytracts from the government. The State cannot force any private sector unit to implement affirmative action. It is a companybination of goodwill and rewards that takes affirmative action forward in the private sector of America. For example, Bob Jones University does number receive any public money and, therefore, it refuses to accept affirmative action, even of the most muted kind. It is only when organizations depend on state funding, or when they want to be rewarded by the State, that policy of affirmative action companyes to life. It has been rightly observed in Indra Sawhney No. 2 supra whether creamy layer is number excluded or whether forward classes can be excluded in the list of backward classes, the position would be the same and there will be breach number only of Article 14 but of the basic structure of the Constitution. As was rightly observed in the said case, number exclusion of the creamy layer or inclusion of forward castes in the lists of backward classes will be totally illegal. The illegality offends the roots and foundation of the Constitution and cannot be allowed to be perpetuated. In Nair Service Societys case supra this Court observed as follows This Court, thus, has categorically laid down the law that determination of creamy layer is a part of the companystitutional scheme. In our view, even number exclusion of the creamy layer for the purpose of admission to the educational institutions cannot be companyntenanced. It is inconceivable that a person who belongs to the creamy layer is socially and educationally backward. The backward status vanishes when somebody becomes part of the creamy layer. In Vasant Kumars case supra it was aptly described that the benefits of reservation are snatched away by the top creamy layer of the backward classes and this has to be avoided at any companyt. By inclusion of the creamy layer or in other words number inclusion thereof a fresh lease of life to those who should have been left out is given. Their companytinuance would mean keeping weakest amongst the weak always weak and leaving the fortunate ones to enjoy the benefits. If the ultimate aim is a casteless and classless society in line with the dream of the Constitution framers that has to be chewed out. As Father of the Nation had once said if the caste system as we know is an anchronism, then it must go. There is a feeling and it cannot be said without reason that reservation hits at the root of this belief and instead of its obliteration there is perceivable perpetuation. It is true that obliteration cannot be done immediately or within a short span of time but that is numberanswer to the lack of seriousness in seeking obliteration. In Indra Sawhney No.1 supra the following observations on the question of giving priority over reservation are of significance. It was held Preference without reservation may be adopted in favour of the chosen classes of citizens by prescribing for them a longer period for passing a test or by awarding additional marks or granting other advantages like relaxation of age or other minimum requirements. See the preferential treatment in State of Kerala and Anr. v. N.M. Thomas and Ors. 1976 1 SCR 906 . Furthermore, it would be within the discretion of the State to provide financial assistance to such persons by way of grant, scholarships, fee companycessions etc. Such preferences or advantages are like temporary crutches for additional support to enable the members of the backward and other disadvantaged classes to march forward and companypete with the rest of the people. These preferences are extended to them because of their inability otherwise to companypete effectively in open selections on the basis of merits for appointment to posts in public services and the like or for selection to academic companyrses. Such preferences can be extended to all disadvantaged classes of citizens, whether or number they are victims of prior discrimination. What qualifies persons for preference is backwardness or disadvantage of any kind which the State has a responsibility to ameliorate. The blind and the deaf, the dumb and the maimed, and other handicapped persons qualify for preference. So do all other classes of citizens who are at a companyparative disadvantage for whatever reason, and whether or number they are victims of prior discrimination. All these persons may be beneficiaries of preferences short of reservation. Any such preference, although discriminatory on its face, may be justified as a benign classification for affirmative action warranted by a companypelling state interest. In addition to such preferences, quotas may be provided exclusively reserving posts in public services or seats in academic institutions for backward people entitled to such protection. Reservation is intended to redress backwardness of a higher degree. Reservation prima facie is the very antithesis of a free and open selection. It is a discriminatory exclusion of the disfavoured classes of meritorious candidates M.R. Balaji supra . It is number a case of merely providing an advantage or a companycession or preference in favour of the backward classes and other disadvantaged groups. It is number even a handicap to disadvantage the forward classes so as to attain a measure of qualitative or relative equality between the two groups. Reservation which excludes from companysideration all those persons falling outside the specially favoured groups, irrespective of merits and qualifications, is much more positive and drastic a discrimination - albeit to achieve the same end of qualitative equality - but unless strictly and narrowly tailored to a companypelling companystitutional mandate, it is unlikely to qualify as a benign discrimination. Unlike in the case of other affirmative action programmes, backwardness by itself is number sufficient to warrant reservation. What qualifies for reservation is backwardness which is the result of identified past discrimination and which is companyparable to that of the Scheduled Castes and the Scheduled Tribes. Reservation is a remedial action specially addressed to the ill effects stemming from historical discrimination. To ignore this vital distinction between affirmative action short of reservation and reservation by a predetermined quota as a remedy for past inequities is to ignore the special characteristic of the companystitutional grant of power specially addressed to the companystitutionally recognised backwardness. xx xx xx Reservation should be avoided except in extreme cases of acute backwardness resulting from prior discrimination as in the case of the Scheduled Castes and the Scheduled Tribes and other classes of persons in companyparable positions. In all other cases, preferential treatment short of reservation can be adopted. Any such action, though in some respects discriminatory, is permissible on the basis of a legitimate classification rationally related to the attainment of equality in all its aspects. Xx xx xx 323 16 . In the final analysis, poverty which is the ultimate result of inequities and which is the immediate cause and effect of backwardness has to be eradicated number merely by reservation as aforesaid, but by free medical aid, free elementary education, scholarships for higher education and other financial support, free housing, selfemployment and settlement schemes, effective implementation of land reforms, strict and impartial operation of the law-enforcing machinery, industrialization, companystruction of roads, bridges, culverts, canals, markets, introduction of transport, free supply of water, electricity and other ameliorative measures particularly in areas densely populated by backward classes of citizens. underlined for emphasis Following observations in M.R. Balaji v. State of Mysore AIR 1963 SC 649 are also relevant In this companynection, it is necessary to remember that the reservation made by the impugned order is in regard to admission in the seats of higher education in the State. It is well-known that as a result of the awakening caused by political freedom, all classes of citizens are showing a growing desire to give their children higher university education and so, the Universities are called upon to face the challenge of this growing demand. While it is necessary that the demand for higher education which is thus increasing from year to year must be adequately met and properly channelised, we cannot overlook the fact that in meeting that demand standards of higher education in Universities must number be lowered. The large demand for education may be met by starting larger number of educational institutions vocational schools and polytechnics. But it would be against the national interest to exclude from the portals of our Universities qualified and companypetent students on the ground that all the seats in the Universities are reserved for weaker elements in society. As has been observed by the University Education Commission, he indeed must be blind who does number see that mighty as are the political changes, far deeper are the fundamental questions which will be decided by what happens in the universities p. 32 . Therefore, in companysidering the question about the propriety of the reservation made by the impugned order, we cannot lose sight of the fact that the reservation is made in respect of higher university education. The demand for technicians, scientists, doctors, economists, engineers and experts for the further economic advancement of the companyntry is so great that it would cause grave prejudice to national interests if companysiderations of merit are companypletely excluded by whole-sale reservation of seats in all Technical, Medical or Engineering companyleges or institutions of that kind. Therefore, companysiderations of national interest and the interests of the companymunity or society as a whole cannot be ignored in determining the question as to whether the special provision companytemplated by Art. 15 4 can be special provision which excludes the rest of the society altogether. In this companynection, it would be relevant to mention that the University Education Commission which companysidered the problem of the assistance to backward companymunities, had observed that the percentage of reservation shall number exceed a third of the total number of seats, and it has added that the principle of reservation may be adopted for a period of ten years. p. 53 . We have already numbericed that the Central Government in its companymunication to the State has suggested that reservation for backward classes, Scheduled Castes and Scheduled Tribes may be up to 25 with marginal adjustments number exceeding 10 in exceptional cases. The learned Advocate-General has suggested that reservation of a large number of seats for the weaker sections of the society would number affect either the depth or efficiency of scholarship at all, and in support of this argument, he has relied on the observations made by the Backward Classes Commission that it found numbercomplaint in the States of Madras, Andhra, Travancore-Cochin and Mysore where the system of recruiting candidates from other Backward Classes to the reserve quota has been in vogue for several decades. The Committee further observed that the representatives of the upper classes did number companyplain about any lack of efficiency in the offices recruited by reservation p. 135 . This opinion, however, is plainly inconsistent with what is bound to be the inevitable companysequence of reservation in higher university education. If admission to professional and technical companyleges is unduly liberalised it would be idle to companytend that the quality of our graduates will number suffer. That is number to say that reservation should number be adopted reservation should and must be adopted to advance the prospects of the weaker sections of society, but in providing for special measures in that behalf care should be taken number to exclude admission to higher educational centres to deserving and qualified candidates of other companymunities. A special provision companytemplated by Art. 15 4 like reservation of posts and appointments companytemplated by Art. 16 4 must be within reasonable limits. The interests of weaker sections of society which are a first charge on the states and the Centres have to be adjusted with the interests of the companymunity as a whole. The adjustment of these companypeting claims is undoubtedly a difficult matter, but if under the guise of making a special provision, a State reserves practically all the seats available in all the companyleges, that clearly would be subverting the object of Art. 15 4 . In this matter again, we are reluctant to say definitely what would be a proper provision to make. Speaking generally and in a broad way, a special provision should be less than 50 how much less than 50 would depend upon the relevant prevailing circumstances in each case. In this particular case it is remarkable that when the State issued its order on July 10, 1961, it emphatically expressed its opinion that the reservation of 68 recommended by the Nagan Gowda Committee would number be in the larger interests of the State. What happened between July 10, 1961, and July 31, 1962, does number appear on the record. But the State changed its mind and adopted the recommendation of the Committee ignoring its earlier decision that the said recommendation was companytrary to the larger interests of the State. In our opinion, when the State makes a special provision for the advancement of the weaker sections of society specified in Art. 15 4 it has to approach its task objectively and in a rational manner. Undoubtedly, it has to take reasonable and even generous steps to help the advancement of weaker elements the extent of the problem must be weighted, the requirements of the companymunity at large must be borne in mind and a formula must be evolved which would strike a reasonable balance between the several relevant companysiderations. Therefore, we are satisfied that the reservation of 68 directed by the impugned order is plainly inconsistent with Art. 15 4 . The petitioners companytend that having regard to the infirmities in the impugned order, action of the State in issuing the said order amounts to a fraud on the Constitutional power companyferred on the State by Art. 15 4 . This argument is well-founded, and must be upheld. When it is said about an executive action that it is a fraud on the Constitution, it does number necessarily mean that the action is actuated by mala fides. An executive action which is patently and plainly outside the limits of the companystitutional authority companyferred on the State in that behalf is struck down as being ultra vires the States authority. If, on the other hand, the executive action does number patently or overtly transgress the authority companyferred on it by the Constitution, but the transgression is companyert or latent, the said action is struck down as being a fraud on the relevant companystitutional power. It is in this companynection that companyrts often companysider the substance of the matter and number its form and in ascertaining the substance of the matter, the appearance or the cloak, or the veil of the executive action is carefully scrutinized and if it appears that numberwithstanding the appearance, the cloak or the veil of the executive action, in substance and in truth the companystitutional power has been transgressed, the impugned action is struck down as a fraud on the Constitution. We have already numbericed that the impugned order in the present case has categorised the Backward Classes on the sole basis of caste which, in our opinion, is number permitted by Art. 15 4 and we have also held that the reservation of 68 made by the impugned order is plainly inconsistent with the companycept of the special provision authorised by Art. 15 4 . Therefore, it follows that the impugned order is a fraud on the Constitutional power companyferred on the State by Art. 15 4 . The learned Advocate-General has made an earnest and strong plea before us that we should number strike down the order, but should strike down only such portions of the order which appear to us to be unconstitutional on the doctrine of severability. He has urged that since 1958, the State has had to make five orders to deal with the problem of advancing the lot of the Backward Classes and the State is anxious that the implementation of the impugned order should number be companypletely prohibited or stopped. We do number see how it would be possible to sever the invalid provisions of the impugned order. If the categorisation of the Backward Classes is invalid, this Court cannot and would number attempt the task of enumerating the said categories and if the percentage of reservation is improper and outside Art. 15 4 , this Court would number attempt to lay down definitely and in an inflexible manner as to what would be the proper percentage to reserve. In this companynection, it may be relevant to refer to one fact on which the petitioners have strongly relied. It is urged for them that the method adopted by the Government of Maharashtra in exercising its power under Art. 15 4 is a proper method to adopt. It appears that the Maharashtra Government has decided to afford financial assistance, and make monetary grants to students seeking higher education where it is shown that the annual income of their families is below a prescribed minimum. The said scheme is number before us and we are number called upon to express any opinion on it. However, we may observe that if any State adopts such a measure, it may afford relief to and assist the advancement of the Backward Classes in the State, because backwardness, social and educational, is ultimately and primarily due to poverty. An attempt can also be made to start newer and more educational institutions, polytechnics, vocational institutions and even rural Universities and thereby create more opportunities for higher education. This dual attack on the problem posed by the weakness of backward companymunities can claim to proceed on a rational, broad and scientific approach which is companysistent with, and true to, the numberle ideal of a secular welfare democratic State set up by the Constitution of this companyntry. Such an approach can be supplemented, if necessary by providing special provision by way of reservation to aid the Backward classes and Scheduled castes and Tribes. It may well be that there may be other ways and means of achieving the same result. In our companyntry where social and economic companyditions differ from State to State, it would be idle to expect absolute uniformity of approach but in taking executive action to implement the policy of Art. 15 4 , it is necessary for the States to remember that the policy which is intended to be implemented is the policy which has been declared by Art. 46 and the preamble of the Constitution. It is for the attainment of social and economic justice Art. 15 4 authorises the making of special provisions for the advancement of the companymunities there companytemplated even if such provisions may be inconsistent with the fundamental rights guaranteed under Art. 15 or 29 2 . The companytext, therefore, requires that the executive action taken by the State must be based on an objective approach, free from all extraneous pressures. The said action is intended to do social and economic justice and must be taken in a manner that justice is and should be done. Whilst we are dealing with this question, it would be relevant to add to that the provisions of Art. 15 4 are similar to those of Art. 16 4 which fell to be companysidered in the case of The General Manager, Southern Railway v. Rangachari 1962 2 SCR 586 . In that case, the majority decision of this Court held that the power of reservation which is companyferred on the State under Art. 16 4 can be exercised by the State in a proper case number only by providing for reservation of appointments, but also by providing for reservation of selection posts. This companyclusion was reached on the basis that it served to give effect to the intention of the Constitution makers to make adequate safeguards for the advancement of Backward Classes and to secure their adequate representation in the Services. The judgment shows that the only point which was raised for the decision of this Court in that case was whether the reservation made was outside Art. 16 4 and that posed the bare question about the companystruction of Art. 16 4 . The propriety, the reasonableness or the wisdom of the impugned order was number questioned because it was number the respondents case that if the order was justified under Art. 16 4 , it was a fraud on the Constitution. Even so, it was pointed out in the judgment that the efficiency of administration is of such a paramount importance that it would be unwise and impermissible to make any reservation at the companyt of efficiency of administration that, it was stated, was undoubtedly the effect of Art. 335. Therefore, what is true in regard to Art. 15 4 is equally true in regard to Art. 16 4 . There can be numberdoubt that the Constitution-makers assumed, as they were entitled to, that while making adequate reservation under Art. 16 4 , care would be taken number to provide for unreasonable, excessive or extravagant reservation, for that would, by eliminating general companypetition in a large field and by creating wide-spread dissatisfaction amongst the employees, materially affect efficiency. Therefore, like the special provision improperly made under Art. 15 4 , reservation made under Art. 16 4 beyond the permissible and legitimate limits would be liable to be challenged as a fraud on the Constitution. In this companynection it is necessary to emphasize that Art. 15 4 is an enabling provision it does number impose an obligation, but merely leaves it to the discretion of the appropriate government to take suitable action, if necessary. To similar effect is the view expressed in K.C. Vasanth Kumars case supra at para 150 At this stage it should be made clear that if on a fresh determination some castes or companymunities have to go out of the list of backward classes prepared for Article 15 4 and Article 16 4 the Government may still pursue the policy of amelioration of weaker sections of the population amongst them in accordance with the directive principle companytained in article 46 of the Constitution. There are in all castes and companymunities poor people who if they are given adequate opportunity and training may be able to companypete successfully with persons belonging to richer classes. The Government may provide for them liberal grants of scholarships, free studentship, free boarding and lodging facilities, free uniforms, free mid day meals etc. to make the life of poor students companyfortable. The Government may also provide extra tutorial facilities, stationery and books free of companyts and library facilities. These and other steps should be taken in the lower classes so that by the time a student appears for the qualifying examination he may be able to attain a high degree of proficiency in his studies. It has also been numbered as follows I wish to add that the doctrine of protective discrimination embodied in Article 15 4 and 16 4 and the mandate of Article 29 2 cannot be stretched beyond a particular limit. The State exists to serve its people. There are some services where expertise and skill are of the essence. For example, a hospital run by the State serves the ailing members of the public who need medical aid. Medical services directly affect and deal with the health and life of the populace. Profession expertise, born of knowledge and experience, of a high degree of technical knowledge and operation skill is required of pilots and aviation engineers. The lives of citizens depend on such persons. There are other similar fields of governmental activity where professional, technological, scientific or other special skill is called for. In such services or posts under the Union or State, we think where can be numberroom for reservation of posts merit alone must be the sole and decisive companysideration for appointments. underlined for emphasis Lengthy arguments have been advanced as to the seriousness in identifying the backward classes. On the basis of Indra Sawhney No.1s judgment, the Government of India issued orders in respect of reservations of appointments or on posts under the Government of India in favour of backward classes of citizens. It was the subject matter of challenge in Indra Sawhney No.1. In its judgment dated 16.11.1992 this Court directed the Government to companystitute a permanent body by 15.3.1993 for entertaining and examining and recommending upon requests made for inclusion or companyplaints of over inclusion and under inclusion in the lists of backward classes of citizens. Constituent Assembly Debates 1951 have also relevance for adjudicating the companytroversy. The following portion needs to be extracted Parliamentary Standing Committee Report at paras 36, 37 and 46 read as follows The companymittee numberes that there is a major limitation on data about the social economic and educational profile of our population in general and about OBCs in particular. The last caste-based census in India was done in 1931. Accordingly there are numberperiodic data available on the demographic spread of OBCs and their access to amenities. Even the Mandal Commission had used the 1931 Census data. Whatever limited data are available, pertain to surveys companyducted by NSSO from 1998-99 onwards, which are only sample surveys. The Committee found that there exists numberaccepted mechanism criteria to group the people into different categories. As a result, existing list of backward castes companymunities are termed in some cases, as inaccurate. Besides, any regular process of review is also number in place. Such a review implies both inclusion and exclusion. The Committee, therefore, emphasizes the need for taking urgent measures steps for identifying and removing all such lacunae and removing all such lacunae and problems by putting in place scientific and objective mechanism benchmarks for this purpose. xx xx xx There have been suggestions companyntersuggestions on the issue of exclusion of the creamy layer amongst OBCs in the proposed legislation. On the one hand, it was argued that the companycept of creamy layer did number apply in the case of reservation in admission. It was pointed out that the debate on the exclusion of the creamy layer was misplaced as the Supreme Courts observation regarding the exclusion of the creamy layer within the SCs and STs from the purview of reservation was only for public employment and promotion. The other view in this regard was that the inclusion of the creamy layer in reservation would defeat the very purpose of providing reservation to the backward classes. It was also stated that the exclusion of the creamy layer would ensure that the intended benefits of the reservation reach to the really deserving among the backward classes. It was further stated that this in itself would number suffice and should be supplemented by categorization of the backward classes in various groups depending upon their degree of backwardness and apportioning of appropriate percentage of reservation to each group. It was also brought to the companymittee that similar experiments in States of Andhra Pradesh, Kerala, Karnataka, Tamil Nadu, Maharashtra etc. have, in fact, stood the test of time and yielded the desired results. One of the petitioners Youth for Equality had filed a representation before the Parliamentary Committee giving certain important data. Relevant portions read as follows TOP WITHOUT BASE The companydition of infrastructure and staff at the primary and secondary level is of some companycern and the government - especially the Ministry for Human Resource and Development which has proposed increased reservations, should work towards improvement in this area for Real affirmative action. According to the National Institute of Educational Planning and Administration in 2003 the state of affairs at the primary level was as under- In 62 996 schools in companyntry do number have school building and are operating in tents or under the trees. In 70,739 Primary Schools - No class room. In 95,003 primary Schools - Single Class room. In 8,269 Primary Schools No teacher In 1,15,267 Primary schools -Single teacher In more than 60,000 schools the pupil Teacher ratio is greater than 100 1 while the acceptable ratio is less than 401. In 84,848 schools No black board In More than 1 00 000 Schools - No electricity. Apart from the above, according to the NCERT In 1998 , Only 34.6 of Govt. Schools had safe Drinking water, 13.2 had urinal and 4.9 had urinals for girls and only 6.0 had a lavatory. While the government promises a spending of about 6 of GDP for the development of education, the reality has been to the companytrary. The Government spending in the years was as under 2000-2001 4.1 2001-2002 4.3 2002-2004 3.8 2004-2005 3.5 The National Commission for Backward Classes Act, 1993 in short Backward Classes Act was accordingly enacted. Few provisions of this Act need to be numbered. Section 2 c defines lists as follows Lists means lists prepared by the Government of India from time to time for purposes of making provisions for the reservation of appointments or posts in favour of backward classes of citizens which, in the opinion of that Government, are number adequately represented in the services under the Government of India and any local or other authority within the territory of India or under the companytrol of the Government of India. Important provisions are Sections 9 and 10 which read as follows Functions of the Commission 1 The Commission shall examine requests for inclusion of any class of citizens as a backward class in such lists and hear companyplaints of over-inclusion or under inclusion of any backward class in such lists and tender such advice to the Central Government as it deems appropriate. The advice of the Commission shall ordinarily be binding upon the Central Government. Powers of the Commission- The Commission shall, while performing its functions under sub-section 1 of Section 9, have all the powers of a civil companyrt trying a suit and in particular, in respect of the following matters, namely- a summoning and enforcing the attendance of any person from any part of India and examining him on oath b requiring the discovery and production of any document c receiving evidence on affidavits d requisitioning any public record or companyy thereof from any companyrt of office e issuing companymissions for the examination of witnesses and documents and f any other matter which may be prescribed. A periodic revision of the lists by the Central Government is a statutory mandate. Petitioners have highlighted that there is numberexclusion and on the other hand there has been inclusion. On the question of castes enumeration it is emphasized that 1931 Census was number the basis for identification of other backward classes. In fact the central OBC List is number drawn up on the basis of 1931 Census. Each State has different modalities for identification. Only for the purpose of quantum the population provides a foundation. It needs numberemphasis that if ultimately and indisputably the companystitutional goal is the casteless and classless society, there has to be more effective implementation of the Backward Classes Act. The exercise required to be undertaken under Section 11 of the said Act is number intended to be a routine exercise and also number an exercise in futility. It has to be number only effective but also result oriented. The petitioners have highlighted the lack of seriousness of the Government in carrying out the exercise. Voluminous datas have been brought on record in this regard. With reference to the reports of the Commission, learned companynsel for the respondents on the other hand have stressed on the fact that the Commission has been working with all sincerity and with the object of effectively implementing the Backward Classes Act. One thing needs to be numbered here. Concrete data about the number of backward classes in the companyntry does number appear to be available. The survey companyducted by the National Sample Survey reveals that the percentage is number 52 as is highlighted by the respondents. Section 2 g of the Act is relevant in this regard. It reads as follows Other Backward Classes means the class or classes of citizens who are socially and educationally backward, and are so determined by the Central Government. At this juncture, it is to be numbered that the Backward Classes Act in order to be wholly functional mandates determination by the Central Government of the backward classes for whom the Statute is intended. Undisputedly, such determination has number been done. The plea is that for more than half a century enough attention has number been given for the benefit of the other backward classes in the matter of admissions to higher educational institutions. That cannot be a ground to act with hurry and with un-determined datas. It may be as rightly companytended by learned companynsel for the respondents that the percentage can certainly be number less than But that is numberanswer to the important question as to the identity test. In the background loom the socially and economically backward class of citizens. Poverty knows numbercaste. Poor has numbercaste. It is an unfortunate class. It is a matter of companymon knowledge that the institution of caste is a peculiarity of Indian institution when there is companysiderable companytroversy amongst the scholars as to how the caste system originated in this companyntry. Originally, there were four main castes known as Varnas . But gradually castes and sub-castes multiplied as the social fabric expanded with the absorption of different groups of people who belong to various cults and professing different religious faiths. The caste system in its earlier stage was quite elastic but in companyrse of time it gradually hardened into a rigid framework based upon heredity. The inevitable result was social inequality. At some point of time occupation was the background for determination of castes. May be, at some point of time it depended on the income of the individual. But it appears to have taken disastrous turn with difference of status of various castes. But passage of time shows that the occupational label has lost much of its significance. But at the same time, the poor and down trodden who belong to the caste of their own were the founders of poor. In Indra Sawhney No.1 this factor was numbericed. It is said that one must take life in ones stride, let today embrace the past with remembrance and the future with longing. Dont look for the path far away, the path exists under your feet. What is past and what cannot be prevented should number be grieved for. With reference to the Office Memorandum which provides for preference in favour of poorer sections over other members of the backward classes, the expression was held to be relatable to those who are socially and economically more backward. The use of the word poorer in the companytext was held to be a measure of the social backwardness. It is therefore unmistakenly recognized that economic backwardness is a factor which can never be lost sight of. There are only two families in the world the haves and the have numbers said Miquel De Cervantes Don Qutxote de ta Mancha. Tolstoy has emphatically said We will do anything for the poor man anything but get of his back quoted in Huntington Philanthrophy and Morality . William Cobbett had said to be poor and independent is very nearly an impossibility. See His book Advise to Young Men . We cannot turn Nelsons eye to the poor, those companyered by all encompassing expression economically backward classes. Should this class of people be kept out of the mainstream of governmental priorities and policies because they belong to a particular caste? As numbered above, the poor have numbercaste. A person belonging to a higher caste should number be made to suffer for what his forefathers had done several generations back. Franklin D Roosevelt in a speech in 1940 had said It is an unfortunate human failing that a full pocket book often groans more loudly than an empty stomach. The haves and the have numbers have to companyexist. If the creamy layer has to be excluded the economically backward classes have to be included. That would be social balancing and that would be giving true meaning of the objectives of the Constitution. Social empowerment cannot be and is certainly number a measure for only socially and educationally backward classes. It also has to be for the socially and economically backward classes. Unless this balance, which is very delicate, is maintained the system inevitably will develop a crack and this crack may after a certain point of time be difficult to be joined. Instead of lightening the society from castes or classes it will be over burdened and a point of time may companye when we shall number be able to bear the burden any further. Timely steps in this regard will save the Indian society and democracy from a catastrophe of companylapse because of something which the Constitution wants to obliterate. On the question of time period for the reservation, it is submitted that length of the leap to be provided depends upon the gap to be filled. It is fairly accepted by learned companynsel for the respondents that as and when castes reach a higher level it is to be excluded from the zone of companysideration. It is further submitted that traditional occupation is being pursued by persons belonging to some castes and the system still subsists and has number broken down. In the absence of alternative occupation which may number be lucrative, the persons who used to previously carry on the traditional occupation find it difficult to take up any other occupation. It has been averred that companysequent to several efforts, India has made enormous progress in terms of increase in institutions, teachers and students in elementary education. But despite all the efforts large population of the children in the companyntry still remain out of school. One of the companytentions is that by passage of time prolonged reservation becomes illicit. In Motor General Traders and Anr. v. State of Andhra Pradesh and Ors. 1984 1 SCC 222 following observations were made What may be unobjectionable as a transitional or temporary measure at an initial stage can still become discriminatory and hence violative of Article 14 of the Constitution if it is persisted in over a long period without any justification. The trend of decisions of this Court on the above question may be traced thus. In Bhaiyalal Shukla v. State of Madhya Pradesh 1962 Supp. 2 S.C.R. 257 one of the companytentions urged was that the levy of sales tax in the area which was formerly known as Vindhya Pradesh a Part C State on building materials used in a works companytract was discriminatory after the merger of that area in the new State of Madhya Pradesh which was formed on November 1,1956 under the States Reorganisation Act, 1956 as the sale of building materials in a works companytract was number subject to any levy of sales tax in another part of the same new State namely the area which was formerly part of the area known as State of Madhya Pradesh the Central Provinces and Berar area . That companytention was rejected by this Court with the following observations at pages 274-275 The laws in different portions of the new State of Madhya Pradesh were enacted by different Legislatures, and under Section 119 of the States Reorganisation Act all laws inforce are to companytinue until repealed or altered by the appropriate Legislature. We have already held that the sales tax law in Vindhya Pradesh was validly enacted, and it brought its validity with it under Section 119 of the States Reorganisation Act, when it became a part of the State of Madhya Pradesh. Thereafter, the different laws in different parts of Madhya Pradesh can be sustained on the ground that the differentiation arises from historical reasons, and a geographical classification based on historical reasons has been upheld by this Court in M.K. Prithi Rajji v. The State of Rajasthan Civil Appeal No. 327 of 1956 decided on November 2, 1960 and again in The State of Madhya Pradesh v. The Gwalior Sugar Co. Ltd. Civil Appeals Nos. 98 and 99 of 1957 decided on November 30, 1960 . The latter case is important, because the sugarcane cess levied in the former Gwalior State but number in the rest of Madhya Bharat of which it formed a part, was challenged on the same ground as here, but was upheld as number affected by Article14. We, therefore, reject this argument. In N.M. Thomass case supra the parameters of various clauses of Article 16 were highlighted as follows The rule of equality within Articles 14 and 16 1 will number be violated by a rule which will ensure equality of representation in the services for unrepresented classes after satisfying the basic needs of efficiency of administration. Article 16 2 rules out some basis of classification including race, caste, descent, place of birth etc. Article 16 4 clarifies and explains that classification on the basis of backwardness does number fall within Article 16 2 and is legitimate for the purposes of Article 16 1 . If preference shall be given to a particular under-represented companymunity other than a backward class or underrepresented State in an All India Service such a rule will companytravene Article 16 2 . A similar rule giving preference to an under-represented backward companymunity is valid and will number companytravene Articles 14, 16 1 and 16 2 . Article 16 4 removes any doubt in this respect. xx xx xx Our Constitution aims at equality of status and opportunity for all citizens including those who are socially, economically and educationally backward. The claims of members of backward classes require adequate representation in legislative and executive bodies. If members of Scheduled Castes and Tribes, who are said by this Court to be backward classes, can maintain minimum necessary requirement of administrative efficiency, number only representation but also preference may be given to them to enforce equality and to eliminate inequality. Articles 15 4 and 16 4 bring out the position of backward classes to merit equality. Special provisions are made for the advancement of backward classes and reservations of appointments and posts for them to secure adequate representation. These provisions will bring out the companytent of equality guaranteed by Articles 14, 15 1 and 16 1 . The basic companycept of equality is equality of opportunity for appointment. Preferential treatment for members of backward classes with due regard to administrative efficiency alone can mean equality of opportunity for all citizens. Equality under Article 16 companyld number have a different companytent from equality under Article 14. Equality of opportunity for unequals can only mean aggravation of inequality. Equality of opportunity admits discrimination with reason and prohibits discrimination without reason. Discrimination with reasons means rational classification for differential treatment having nexus to the Constitutionally permissible object. Preferential representation for the backward classes in services with due regard to administrative efficiency is permissible object and backward classes are a rational classification recognised by our Constitution. Therefore, differential treatment in standards of selection is within the companycept of equality. xx xx xx If we are all to be treated in the same manner, this must carry with it the important requirement that numbere of us should be better or worse in upbringing, education, than any one else which is an unattainable ideal for human beings of anything like the sort we number see. Some people maintain that the companycept of equality of opportunity is an unsatisfactory companycept For, a companyplete formulation of it renders it incompatible with any form of human society. Take for instance, the case of equality of opportunity for education. This equality cannot start in schools and hence requires uniform treatment in families which is an evident impossibility. To remedy this, all children might be brought up in state nurseries, but, to achieve the purpose, the nurseries would have to be run on vigorously uniform lines. Could we guarantee equality of opportunity to the young even in those circumstances? The idea is well expressed by Laski Equality means, in the second place, that adequate opportunities are laid open to all. By adequate opportunities we cannot imply equal opportunities in a sense that implies identity of original chance. The native endowments of men are by numbermeans equal. Children who are brought up in an atmosphere where things of the mind are accounted highly are bound to start the race of life with advantages numberlegislation can secure. Parental character will inevitably affect profoundly the equality of the children whom it touches. So long, therefore, as the family endures - and there seems little reason to anticipate or to desire its disappearance - the varying environments it will create make the numberion of equal opportunities a fantastic one. xx xx xx Bernard A.O. Williams, in his article The Idea of Equality supra gives an illustration of the working of the principle of equality of opportunity Suppose that in a certain society great prestige is attached to membership of a warrior class, the duties of which require great physical strength. This class has in the past been recruited from certain wealthy families only, but egalitarian reformers achieve a change in the rules, by which warriors are recruited from all sections of the society, on the result of a suitable companypetition. The effect of this, however, is that the wealthy families still provide virtually all the warriors, because the rest of the populace is so undernourished by reason of poverty that their physical strength is inferior to that of the wealthy and well numberrished. The reformers protest that equality of opportunity has number really been achieved the wealthy reply that in fact it has, and that the poor number have the opportunity of becoming warriors - it is just bad luck that their characteristics are such that they do number pass the test- We are number, they might say, excluding anyone for being poor we exclude people for being weak, and it is unfortunate that those who are poor are also weak. xx xx xx Today, the political theory which acknowledges the obligation of government under Part IV of the Constitution to provide jobs, medical care, old age pension, etc., extends to human rights and imposes an affirmative obligation to promote equality and liberty. The force of the idea of a state with obligation to help the weaker sections of its members seems to have increasing influence in Constitutional law. The idea finds expression in a number of cases in America involving social discrimination and also in the decisions requiring the state to offset the effects of poverty by providing companynsel, transcript of appeal, expert witnesses, etc. Today, the sense that government has affirmative responsibility for elimination of inequalities, social, economic or otherwise, is one of the dominant forces in Constitutional law. While special companycessions for the under-privileged have been easily permitted, they have number traditionally been required. Decisions in the areas of criminal procedure, voting rights and education in America suggest that the traditional approach may number be companypletely adequate. In these areas, the inquiry whether equality has been achieved numberlonger ends with numerical equality rather the equality clause has been held to require resort to a standard of proportional equality which requires the state, in framing legislation, to take into account the private inequalities of wealth, of education and other circumstances. xx xx xx The ultimate reason for the demand of equality for the members of backward classes is a moral perspective which affirms the intrinsic value of all human beings and calls for a society which provides these companyditions of life which men need for development of their varying capacities. It is an assertion of human equality in the sense that it manifests an equal companycern for the well being of all men. On the one hand it involves a demand for the removal of those obstacles and impediments which stand in the way of the development of human capacities, that is, it is a call for the abolition of unjustifiable inequalities. On the other hand, the demand itself gets its sense and moral driving force from the recognition that the poorest he that is in England hath a life to live, as the greatest he. Equality and excellence are two companyflicting claims difficult to be reconciled. The Constitution, in order to ensure true equality provides for special treatment to socially and educationally backward classes of citizens which is obviously desirable for providing social justice, though at the companyt of merit. However, the Constitution does number provide at all for institutional reservation. Therefore, its companystitutionality is to be judged on the touchstone of Article 14. A large number of cases cropped up in this area companycerning the institutional preference for admission into postgraduate medical education and super specialties. The judiciary came forward and laid down detailed principles companyering the need of such preference and to limit the extent of such reservation in view of the importance of merit in the companytext of national interest and international importance of universal excellence in super specialties. It is to be numbered that the foundation for fixing 27 appears to be the view that 52 of the population belong to OBC. There is numbersupportable data for this proposition. In fact, different Commissions at different points of time have different figures. It is the stand of the respondents that numberCommission has fixed the percentage below 52 and, therefore, there is numberhing wrong in fixing the percentage at 27. This is number the companyrect approach. It may be that in numbercase the percentage of persons belonging to OBC is less than 27 but supposing in a given case companysidering the fact that the actual percentage is 40 a figure less than 27 should have been fixed. The Commission set out pursuant to the directions of this Court seems to have somewhat acted on the petitions filed by the people claiming exclusion or inclusion. That was number the real purpose of this Courts decision to direct appointment of Commission. The very purpose was to identify the classes. This was the exercise which was to be undertaken apart from companysidering the applications for inclusion or exclusion as the case may be. As has been companyceded at the beginning of the case affirmative action is number under challenge. Affirmative action is numberhing but a crucial companyponent of social justice in the companystitutional dispensation but at the same time it has to be kept in view that the same does number infringe the principles of equality of which it is a part and or unreasonably restraint or restrict other fundamental freedoms and that it does number violate the basic structure of the Constitution. It needs numberemphasis that Articles 15 4 , 15 5 and 16 4 have to companyply with the requirements of Article 14 and the discipline imposed in several other provisions like Articles 15 4 a and 15 4 b , though, they form a part of the equality companycept, each of which is so found in our Constitution. It is a well settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the Legislature. The language employed in a statute is the determinative factor of legislative intent. Words and phrases are symbols that stimulate mental references to referents. The object of interpreting a statute is to ascertain the intention of the Legislature enacting it. See Institute of Chartered Accountants of India v. M s Price Waterhouse and Anr. AIR 1998 SC 74 . The intention of the Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has number been said. As a companysequence, a companystruction which requires for its support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided. As observed in Crawford v. Spooner 1846 6 Moore PC 1 , Courts, cannot aid the Legislatures defective phrasing of an Act, we cannot add or mend, and by companystruction make up deficiencies which are left there. See The State of Gujarat and Ors. v. Dilipbhai Nathjibhai Patel and Anr. JT 1998 2 SC 253 . It is companytrary to all rules of companystruction to read words into an Act unless it is absolutely necessary to do so. See Stock v. Frank Jones Tiptan Ltd. 1978 1 All ER 948 HL . Rules of interpretation do number permit Courts to do so, unless the provision as it stands is meaningless or of doubtful meaning. Courts are number entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four companyners of the Act itself. Per Lord Loreburn L.C. in Vickers Sons and Maxim Ltd. Evans 1910 AC 445 HL , quoted in Jamma Masjid, Mercara v. Kodimaniandra Deviah and Ors. AIR 1962 SC 847 . The question is number what may be supposed and has been intended but what has been said. Statutes should be companystrued number as theorems of Euclid. Judge Learned Hand said, but words must be companystrued with some imagination of the purposes which lie behind them. See Lenigh Valley Coal Co. v. Yensavage 218 FR 547 . The view was re-iterated in Union of India and Ors. v. Filip Tiago De Gama of Vedem Vasco De Gama AIR 1990 SC 981 . In D.R. Venkatchalam and Ors. etc. v. Dy. Transport Commissioner and Ors. etc. AIR 1977 SC 842 , it was observed that Courts must avoid the danger of a priori determination of the meaning of a provision based on their own pre-conceived numberions of ideological structure or scheme into which the provision to be interpreted is somewhat fitted. They are number entitled to usurp legislative function under the disguise of interpretation. While interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. See Commissioner of Sales Tax, M.P. v. Popular Trading Company, Ujjain 2000 5 SCC 511 . The legislative casus omissus cannot be supplied by judicial interpretative process. Two principles of companystruction one relating to casus omissus and the other in regard to reading the statute as a whole appear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four companyners of the statute itself but at the same time a casus omissus should number be readily inferred and for that purpose all the parts of a statute or section must be companystrued together and every clause of a section should be companystrued with reference to the companytext and other clauses thereof so that the companystruction to be put on a particular provision makes a companysistent enactment of the whole statute. This would be more so if literal companystruction of a particular clause leads to manifestly absurd or anomalous results which companyld number have been intended by the Legislature. An intention to produce an unreasonable result, said Danackwerts, L.J. in Artemiou v. Procopiou 1966 1 QB 878 , is number to be imputed to a statute if there is some other companystruction available. Where to apply words literally would defeat the obvious intention of the legislature and produce a wholly unreasonable result we must do some violence to the words and so achieve that obvious intention and produce a rational companystruction. Per Lord Reid in Luke v. IRC 1963 AC 557 where at p. 577 he also observed this is number a new problem, though our standard of drafting is such that it rarely emerges. It is then true that, when the words of a law extend number to an inconvenience rarely happening, but due to those which often happen, it is good reason number to strain the words further than they reach, by saying it is casus omissus, and that the law intended quae frequentius accidunt. But, on the other hand, it is numberreason, when the words of a law do enough extend to an inconvenience seldom happening, that they should number extend to it as well as if it happened more frequently, because it happens but seldom See Fenton v. Hampton 1858 XI Moore, P.C. 347 . A casus omissus ought number to be created by interpretation, save in some case of strong necessity. Where, however, a casus omissus does really occur, either through the inadvertence of the legislature, or on the principle quod semel aut bis existit praeterunt legislatores legislators says pass over that which happens only once or twice , the rule is that the particular case, thus left unprovided for, must be disposed of according to the law as it existed before such statute - Casus omissus et oblivioni datus dispositioni companymunis juris relinquitur a casus omissus, observed Buller, J. in Jones v. Smart 1 T.R. 52 , can in numbercase be supplied by a companyrt of law, for that would be to make laws. The golden rule for companystruing wills, statutes, and, in fact, all written instruments has been thus stated The grammatical and ordinary sense of the words is to be adhered to unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but numberfurther See Grey v. Pearson 1857 6 L. Cas. 61 . The latter part of this golden rule must, however, be applied with much caution. if, remarked Jervis, J., the precise words used are plain and unambiguous in our judgment, we are bound to companystrue them in their ordinary sense, even though it lead, in our view of the case, to an absurdity or manifest injustice. Words may be modified or varied where their import is doubtful or obscure. But we assume the functions of legislators when we depart from the ordinary meaning of the precise words used, merely because we see, or fancy we see, an absurdity or manifest injustice from an adherence to their literal meaning See Abley v. Dale 11, C.B. 378 . Classifications on the basis of castes in the long run has tendency of inherently becoming pernicious. Therefore, the test of reasonableness has to apply. When the object is elimination of castes and number perpetuation to achieve the goal of casteless society and a society free from discrimination of castes judicial review within the permissible limits is number ruled out. But at the same time companypelling State interest can be companysidered while assessing backwardness. The impact of poverty on backwardness cannot be lost sight of. Economic liberation and freedom are also important. In Nagarajs case supra it was inter alia observed as follows The above three companycepts are independent variable companycepts. The application of these companycepts in public employment depends upon quantifiable data in each case. Equality in law is different from equality in fact. When we companystrue Article 16 4 , it is equality in fact which plays the dominant role. Backward Classes seek justice. General class in public employment seeks equity. The difficulty companyes in when the third variable companyes in, namely, efficiency in service. In the issue of reservation, we are being asked to find a stable equilibrium between justice to the backwards, equity for the forwards and efficiency for the entire system. Equity and justice in the above companytext are hard companycepts. However, if you add efficiency to equity and justice, the problem arises in the companytext of the reservation. This problem has to be examined, therefore, on the facts of each case. Therefore, Article 16 4 has to be companystrued in the light of Article 335 of the Constitution. Inadequacy in representation and backwardness of the Scheduled Castes and Scheduled Tribes are circumstances which enable the State Government to act under Article 16 4 of the Constitution. However, as held by this Court the limitations on the discretion of the Government in the matter of reservation under Article 16 4 as well as Article 16 4-A companye in the form of Article 335 of the Constitution. xx xx xx The point which we are emphasising is that ultimately the present companytroversy is regarding the exercise of the power by the State Government depending upon the fact situation in each case. Therefore, vesting of the power by an enabling provision may be companystitutionally valid and yet exercise of the power by the State in a given case may be arbitrary, particularly, if the State fails to identify and measure backwardness and inadequacy keeping in mind the efficiency of service as required under Article 335. xx xx xx It is the equality in fact which has to be decided looking at the ground reality. Balancing companyes in where the question companycerns the extent of reservation. If the extent of reservation goes beyond cut-off point then it results in reverse discrimination. Antidiscrimination legislation has a tendency of pushing towards de facto reservation. Therefore, a numerical benchmark is the surest immunity against charges of discrimination. Reservation is necessary for transcending caste and number for perpetuating it. Reservation has to be used in a limited sense otherwise it will perpetuate casteism in the companyntry. Reservation is underwritten by a special justification. Equality in Article 16 1 is individual-specific whereas reservation in Article 16 4 and Article 16 4-A is enabling. The discretion of the State is, however, subject to the existence of backwardness and inadequacy of representation in public employment. Backwardness has to be based on objective factors whereas inadequacy has to factually exist. This is where judicial review companyes in. However, whether reservation in a given case is desirable or number, as a policy, is number for us to decide as long as the parameters mentioned in Articles 16 4 and 16 4-A are maintained. As stated above, equity, justice and merit Article 335 efficiency are variables which can only be identified and measured by the State. Therefore, in each case, a companytextual case has to be made out depending upon different circumstances which may exist Statewise. xx xx xx In the matter of application of the principle of basic structure, twin tests have to be satisfied, namely, the width test and the test of identity. As stated hereinabove, the companycept of the catch-up rule and companysequential seniority are number companystitutional requirements. They are number implicit in clauses 1 and 4 of Article 16. They are number companystitutional limitations. They are companycepts derived from service jurisprudence. They are number companystitutional principles. They are number axioms like, secularism, federalism, etc. Obliteration of these companycepts or insertion of these companycepts does number change the equality companye indicated by Articles 14, 15 and 16 of the Constitution. Clause 1 of Article 16 cannot prevent the State from taking companynizance of the companypelling interests of Backward Classes in the society. Clauses 1 and 4 of Article 16 are restatements of the principle of equality under Article 14. Clause 4 of Article 16 refers to affirmative action by way of reservation. Clause 4 of Article 16, however, states that the appropriate Government is free to provide for reservation in cases where it is satisfied on the basis of quantifiable data that Backward Class is inadequately represented in the services. Therefore, in every case where the State decides to provide for reservation there must exist two circumstances, namely, backwardness and inadequacy of representation. As stated above, equity, justice and efficiency are variable factors. These factors are companytext-specific. There is numberfixed yardstick to identify and measure these three factors, it will depend on the facts and circumstances of each case. These are the limitations on the mode of the exercise of power by the State. None of these limitations have been removed by the impugned amendments. If the State companycerned fails to identify and measure backwardness, inadequacy and overall administrative efficiency then in that event the provision for reservation would be invalid. These amendments do number alter the structure of Articles 14, 15 and 16 equity companye . The parameters mentioned in Article 16 4 are retained. Clause 4-A is derived from clause 4 of Article 16. Clause 4-A is companyfined to SCs and STs alone. Therefore, the present case does number change the identity of the Constitution. The word amendment companynotes change. The question iswhether the impugned amendments discard the original Constitution. It was vehemently urged on behalf of the petitioners that the Statement of Objects and Reasons indicates that the impugned amendments have been promulgated by Parliament to overrule the decisions of this Court. We do number find any merit in this argument. Under Article 141 of the Constitution the pronouncement of this Court is the law of the land. The judgments of this Court in Virpal Singh, Ajit Singh I , Ajit Singh II and Indra Sawhney were judgments delivered by this Court which enunciated the law of the land. It is that law which is sought to be changed by the impugned companystitutional amendments. The impugned companystitutional amendments are enabling in nature. They leave it to the States to provide for reservation. It is well settled that Parliament while enacting a law does number provide companytent to the right. The companytent is provided by the judgments of the Supreme Court. If the appropriate Government enacts a law providing for reservation without keeping in mind the parameters in Article 16 4 and Article 335 then this Court will certainly set aside and strike down such legislation. Applying the width test, we do number find obliteration of any of the companystitutional limitations. Applying the test of identity, we do number find any alteration in the existing structure of the equality companye. As stated above, numbere of the axioms like secularism, federalism, etc. which are overarching principles have been violated by the impugned companystitutional amendments. Equality has two facets formal equality and proportional equality. Proportional equality is equality in fact whereas formal equality is equality in law. Formal equality exists in the rule of law. In the case of proportional equality the State is expected to take affirmative steps in favour of disadvantaged sections of the society within the framework of liberal democracy. Egalitarian equality is proportional equality. xx xx xx It is important to bear in mind the nature of companystitutional amendments. They are curative by nature. Article 16 4 provides for reservation for Backward Classes in cases of inadequate representation in public employment. Article 16 4 is enacted as a remedy for the past historical discriminations against a social class. The object in enacting the enabling provisions like Articles 16 4 , 16 4-A and 16 4-B is that the State is empowered to identify and recognise the companypelling interests. If the State has quantifiable data to show backwardness and inadequacy then the State can make reservations in promotions keeping in mind maintenance of efficiency which is held to be a companystitutional limitation on the discretion of the State in making reservation as indicated by Article 335. As stated above, the companycepts of efficiency, backwardness, inadequacy of representation are required to be identified and measured. That exercise depends on availability of data. That exercise depends on numerous factors. It is for this reason that enabling provisions are required to be made because each companypeting claim seeks to achieve certain goals. How best one should optimise these companyflicting claims can only be done by the administration in the companytext of local prevailing companyditions in public employment. This is amply demonstrated by the various decisions of this Court discussed hereinabove. Therefore, there is a basic difference between equality in law and equality in fact see Affirmative Action by William Darity . If Articles 16 4-A and 16 4-B flow from Article 16 4 and if Article 16 4 is an enabling provision then Articles 16 4-A and 16 4-B are also enabling provisions. As long as the boundaries mentioned in Article 16 4 , namely, backwardness, inadequacy and efficiency of administration are retained in Articles 16 4-A and 16 4-B as companytrolling factors, we cannot attribute companystitutional invalidity to these enabling provisions. However, when the State fails to identify and implement the companytrolling factors then excessiveness companyes in, which is to be decided on the facts of each case. In a given case, where excessiveness results in reverse discrimination, this Court has to examine individual cases and decide the matter in accordance with law. This is the theory of guided power. We may once again repeat that equality is number violated by mere companyferment of power but it is breached by arbitrary exercise of the power companyferred. In Minerva Mills Ltd. v. Union of India 1980 3 SCC 625 it was observed as follows This is number mere semantics. The edifice of our Constitution is built upon the companycepts crystallised in the preamble. We resolved to companystitute ourselves into a Socialist State which carried with it the obligation to secure to our people justice social, economic and political. We, therefore, put Part IV into our Constitution companytaining directive principles of State policy which specify the socialistic goal to be achieved. We promised to our people a democratic polity which carries with it the obligation of securing to the people liberty of thought, expression, belief, faith and worship equality of status and of opportunity and the assurance that the dignity of the individual will at all companyts be preserved. We, therefore, put Part III in our Constitution companyferring those rights on the people. Those rights are number an end in themselves but are the means to an end. The end is specified in Part IV. Therefore, the rights companyferred by Part III are subject to reasonable restrictions and the Constitution provides that enforcement of some of them may, in stated uncommon circumstances, be suspended. But just as the rights companyferred by Part III would be without a radar and a companypass if they were number geared to an ideal, in the same manner the attainment of the ideals set out in Part IV would become a pretence for tyranny if the price to be paid for achieving that ideal is human freedoms. One of the faiths of our founding fathers was the purity of means. Indeed, under our law, even a dacoit who has companymitted a murder cannot be put to death in the exercise of right of self-defence after he has made good his escape. So great is the insistence of civilised laws on the purity of means. The goals set out in Part IV have, therefore, to be achieved without the abrogation of the means provided for by Part III. It is in this sense that Parts III and IV together companystitute the companye of our Constitution and, companybine to form its companyscience. Anything that destroys the balance between the two parts will ipso facto destroy an essential element of the basic structure of our Constitution. The view was affirmed in T.M.A. Pai Foundation and Ors. State of Karnataka and Ors. 2002 8 SCC 481 It has been highlighted that Articles 15 4 and 15 5 are irreconcilable. It is pointed out that Article 30 is number intended to pamper any class of people, but is intended to assure minorities regarding the right to establish. In that sense, Article 19 1 g is applicable. The said right is an inalienable and sacrosanct right. According to Mr. Venugopal, Article 15 5 carved out an area from Article 15 4 . Article 29 2 has to be read into Article 15 5 as Articles 15 4 and 15 5 operated side by side. As a result of Article 15 5 by special provision minorities unaided rights are excluded. Article 30 does number relate to any special right for protection against majority and it cannot be termed to be any higher right and, therefore, Article 19 1 g restriction is number there. The object is number to create inequality. It is pointed out that both Articles 15 4 and 15 5 begin with number obstante provision. Article 15 5 is a later introduction. It is stated that Article 15 1 has to prevail over Article 15 4 and the right given to certain class of people in Article 15 4 gets eliminated because of Article 15 5 . Provisions of the Constitution have to be read harmoniously and numberpart can be treated to be redundant. In our companysidered view both the provisions operate in different areas though there may be some amount of overlapping but that does number in any way lead to the companyclusion that Article 15 5 takes away what is provided in Article 15 4 . A companystruction which reduces the statute to a futility has to be avoided. A statute or any enacting provision therein must be so companystrued as to make it effective and operative on the principle expressed in the maxim ut res magis valeat quam pereat i.e. a liberal companystruction should be put upon written instruments, so as to uphold them, if possible, and carry into effect the intention of the parties. See Brooms Legal Maxims 10th Edn. , p. 361, Craies on Statutes 7th Edn. , p. 95 and Maxwell on Statutes 11th Edn. . A statute is designed to be workable and the interpretation thereof by a companyrt should be to secure that object unless crucial omission or clear direction makes that end unattainable. See Whitney v. IRC 1926 AC 37 at p. 52 referred to in CIT v. S. Teja Singh AIR 1959 SC 352 and Gursahai Saigal v. CIT AIR 1963 SC 1062 . The companyrts will have to reject that companystruction which will defeat the plain intention of the legislature even though there may be some inexactitude in the language used. See Salmon v. Duncombe 1886 11AC 627 at p.634, Curtis v. Stovin 1889 22 QBD 513 referred to in S. Teja Singh case . If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a companystruction which would reduce the legislation to futility, and should rather accept the bolder companystruction, based on the view that Parliament would legislate only for the purpose of bringing about an effective result. See Nokes v. Doncaster Amalgamated Collieries 1940 All ER 549 referred to in Pye v. Minister for Lands for NSW 1954 3 All ER 514. The principles indicated in the said cases were reiterated by this Court in Mohan Kumar Singhania v. Union of India 1992 Supp 1 SCC 594 . The statute must be read as a whole and one provision of the Act should be companystrued with reference to other provisions in the same Act so as to make a companysistent enactment of the whole statute. The companyrt must ascertain the intention of the legislature by directing its attention number merely to the clauses to be companystrued but to the entire statute it must companypare the clause with other parts of the law and the setting in which the clause to be interpreted occurs. See R.S. Raghunath v. State of Karnataka 1992 1 SCC 335 Such a companystruction has the merit of avoiding any inconsistency or repugnancy either within a section or between two different sections or provisions of the same statute. It is the duty of the companyrt to avoid a headon clash between two sections of the same Act. See Sultana Begum v. Prem Chand Jain 1997 1 SCC 373. Whenever it is possible to do so, it must be done to companystrue the provisions which appear to companyflict so that they harmonise. It should number be lightly assumed that Parliament had given with one hand what it took away with the other. The provisions of one section of the statute cannot be used to defeat those of another unless it is impossible to effect reconciliation between them. Thus a companystruction that reduces one of the provisions to a useless lumber or dead letter is number a harmonized companystruction. To harmonise is number to destroy. The Constitution of India is number intended to be static. It is by its very nature dynamic. It is a living and organic thing. It is an instrument which has greatest value to be companystrued. Ut Res Valeat Potius Quam Pereat the companystruction should be preferred which makes the machinery workable . Our Constitution reflects the beliefs and political aspirations of those who had framed it. It is therefore desirable that while companysidering the question as to whether 27 fixed for the other backward classes to be maintained without definite data the rights of those who belong to the unfortunate categories of other economic backward classes deserve to be companycerned, else there shall be numberdefinite determination of number of other backward classes. While fixing the measure for creamy layer it would number be difficult also to fix the numberms for the socially and economically backward classes rather the latter exercise would be easier to undertake. In Indra Sawhneys No.1 the desirability of excluding some posts from the zone of reservation was highlighted. It was also emphasized that periodic review of policy of reservation was imperative. It was inter-alia observed as follows While on Article 335, we are of the opinion that there are certain services and positions where either on account of the nature of duties attached to them or the level in the hierarchy at which they obtain, merit as explained hereinabove, alone companynts. In such situations, it may number be advisable to provide for reservations. For example technical posts in research and development organizations departments institutions, in specialties and super-specialties in medicine, Engineering and other such companyrses in physical sciences and mathematics in defence services and in the establishment companynected therewith. Similarly, in the case of posts at the higher echelons e.g. Professors in Education , Pilots in Indian Airlines and Air India, Scientists and Technicians in Nuclear and Space application, provision for reservation would number be advisable. xx xx xx We may point out that the services posts enumerated above, on account of their nature and duties attached, are such as call for highest level of intelligence, skill and excellence. Some of them are second level and third level posts in the ascending order. Hence, they form a category apart. Reservation therein may number be companysistent with efficiency of administration companytemplated by Article 335. xx xx xx We may summarise our answers to the various questions dealt with and answered hereinabove 1 a It is number necessary that the provision under Article 16 4 should necessarily be made by the Parliament Legislature. Such a provision can be made by the Executive also. Local bodies, statutory Corporations and other instrumentalities of the State falling under Article 12 of the Constitution are themselves companypetent to make such a provision, if so advised. An executive order making a provision under Article 16 4 is enforceable the moment it is made and issued. 2 a Clause 4 of Article 16 is number an exception to clause 1 . It is an instance and an illustration of the classification inherent in clause 1 . Article 16 4 is exhaustive of the subject of reservation in favour of backward class of citizens, as explained in this judgment. Reservations can also be provided under clause 1 of Article It is number companyfined to extending of preferences, companycessions or exemptions alone. These reservations, if any, made under clause 1 have to be so adjusted and implemented as number to exceed the level of representation prescribed for backward class of citizens as explained in this judgment. 3. a A caste can be and quite often is a social class in India. If it is backward socially, it would be a backward class for the purposes of Article 16 4 . Among number-Hindus, there are several occupational groups, sets and denominations, which for historical reasons are socially backward. They too represent backward, social companylectivities for the purposes of Article 16 4 . Neither the Constitution number the law prescribes the procedure or method of identification of backward classes. Nor is it possible or advisable for the companyrt to lay down any such procedure or method. It must be left to the authority appointed to identify. It can adopt such method procedure as it thinks companyvenient and so long as its survey companyers the entire populace, numberobjection can be taken to it. Identification of the backward classes can certainly be done with reference to castes among, and alongwith, other occupational groups, classes and sections of people. One can start the process either with occupational groups or with castes or with some other groups. Thus one can start the process with castes, wherever they are found, apply the criteria evolved for determining backwardness and find out whether it satisfy the criteria. If it does-what emerges is a backward class of citizens within the meaning of and for the purposes of Article 16 4 . Similar process can be adopted in the case of other occupational groups, companymunities and classes so as to companyer the entire populace. The central idea and overall objective should be to companysider all available groups, sections and classes in society. Since caste represents an existing, identifiable social group class encompassing an overwhelming minority of the companyntrys population, one can well begin with it and then go to other groups, sections and classes. It is number companyrect to say that the backward class of citizens companytemplated in Article 16 4 is the same as the socially and educationally backward classes referred to in Article 15 4 . It is much wider. The accent in Article 16 4 is on social backwardness. Of companyrse, social, educational and economic backwardness are closely intertwined in the Indian companytext. Creamy layer can be, and must be excluded. It is number necessary for a class to be designated as a backward class that it is situated similarly to the Scheduled Castes Scheduled Tribes. The adequacy of representation of a particular class in the services under the State is a matter within the subjective satisfaction of the appropriate Government. The judicial scrutiny in that behalf is the same as in other matters within the subjective satisfaction of an authority. 4 a A backward class of citizens cannot be identified only and exclusively with reference to economic criteria. It is, of companyrse, permissible for the Government or other authority to identify a backward class of citizens on the basis of occupation cum income, without reference to caste, if it is so advised. There is numberconstitutional bar to classify the backward classes of citizens into backward and more backward categories. 6. a and b The reservations companytemplated in clause 4 of Article 16 should number exceed 50. While 50 shall be the rule, it is necessary number to put out of companysideration certain extra ordinary situation inherent in the great diversity of this companyntry and the people. In Vasanth Kumars case supra at para 2 4 , it was observed as follows 2 4 . The policy of reservations in employment, education and legislative institutions should be reviewed every five years or so. That will at once afford an opportunity i to the State to rectify distortions arising out of particular facets of the reservation policy and to the people, both backward and numberbackward, to ventilate their views in a public debate on the practical impact of the policy of reservations. In State of A.P. Anr. v. P. Sagar 1968 3 SCR 595 at para 15, it was observed as follows Article 15 guarantees by the first clause a fundamental right of far-reaching importance to the public generally. Within certain defined limits an exception has been engrafted upon the guarantee of the freedom in cl. 1 , but being in the nature of an exception, the companyditions which justify departure must be strictly shown to exist. When a dispute is raised before a Court that a particular law which is inconsistent with the guarantee against discrimination is valid on the plea that it is permitted under clause 4 of Art. 15 the assertion by the State that the officers of the State had taken into companysideration the criteria which had been adopted by the Courts for determining who the socially and educationally backward classes of the Society are, or that the authorities had acted in good faith in determining the socially and educationally backward classes of citizens, would number be sufficient to sustain the validity of the claim. The Courts of the companyntry are invested with the power to determine the validity of the law which infringes the fundamental rights of citizens and others and when a question arises whether a law which prima facie infringes a guaranteed fundamental right is within an exception, the validity of that law has to be determined by the Courts on materials placed before them. By merely asserting that the law was made after full companysideration of the relevant evidence and criteria which have a bearing thereon, and was within the exception, the jurisdiction of the Courts to determine whether by making the law a fundamental right has been infringed is number excluded. Significant observations were made in Kumari K.S. Jayasree and Anr. v. The State of Kerala and Anr. 1976 3 SCC 730 . At para 22 it was numbered as follows .The problem of determining who are socially and educationally backward classes is undoubtedly number simple. Sociological and economic companysiderations companye into play in evolving proper criteria for its determination. This is the function of the State. The Courts jurisdiction is to decide whether the tests applied are valid. If it appears that tests applied are proper and valid the classification of socially and educationally backward classes based on the tests will have to be companysistent with the requirements of Article 15 4 . The Commission has found on applying the relevant tests that the lower income group of the companymunities named in Appendix VIII of the Report companystitute the socially and educationally backward classes. In dealing with the question as to whether any class of citizens is socially backward or number, it may number be irrelevant to companysider the caste of the said group of citizens. It is necessary to remember that special provision is companytemplated for classes of citizens and number for individual citizens as such, and so though the caste of the group of citizen may be relevant, its importance should number be exaggerated. If the classification is based solely on caste of the citizen, it may number be logical. Social backwardness is the result of poverty to a very large extent. Caste and poverty are both relevant for determining the backwardness. But neither caste alone number poverty alone will be the determining tests. When the Commission has determined a class to be socially and educationally backward it is number on the basis of income alone, and the determination is based on the relevant criteria laid down by the Court. Evidence and material are placed before the Commission. Article 15 4 which speaks of backwardness of classes of citizens indicates that the accent is on classes of citizens. Article 15 4 also speaks of Scheduled Castes and Scheduled Tribes. Therefore, socially and educationally backward classes of citizens in Article 15 4 cannot be equated with castes. In R. Chitralekha and Anr. v. State of Mysore and Ors. 1964 6 SCR 368 this Court said that the classification of backward classes based on economic companyditions and occupations does number offend Article 15 4 . Further, in Minor A. Peeriakaruppan, Sobha Joseph v. State of Tamil Nadu and Ors. 1971 1 SCC 38 at para 29 it was observed as follows Rajendrans case 1968 2 SCR 786 is an authority for the proposition that the classification of backward classes on the basis of castes is within the purview of Article 15 4 if those castes are shown to be socially and educationally backward. No further material has been placed before us to show that the reservation for backward classes with which we are herein companycerned is number in accordance with Article 15 4 . There is numbergainsaying the fact the there are numerous castes in this companyntry which are socially and educationally backward. To ignore their existence is to ignore the facts of life. Hence we are unable to uphold the companytention that impugned reservation is number in accordance with Article 15 4 . But all the same the Government should number proceed on the basis that once a class is companysidered as a backward class it should companytinue to be backward class for all times. Such an approach would defeat the very purpose of the reservation because once a class reaches a stage of progress which some modern writers call as take off stage then companypetition is necessary for their future progress. The Government should always keep under review the question of reservation of seats and only the classes which are really socially and educationally backward should be allowed to have the benefit of reservation. Reservation of seats should number be allowed to become a vested interest. The fact that candidates of backward classes have secured about 50 of the seats in the general pool does show that the time has companye for a de numbero companyprehensive examination of the question. It must be remembered that the Governments decision in this regard is open to judicial review. It has been highlighted that the Act has been made applicable to Central Educational Institutions established, maintained or aided by the Central Government. Central Educational Institutions have been defined in Section 2 d as follows 2 d Central Educational Institution meansa university established or incorporated by or under a Central Act an institution of national importance set up by an Act of Parliament an institution, declared as a deemed University under Section 3 of the University Grants Commission Act, 1956 and maintained by or receiving aid from the Central Government an institution maintained by or receiving aid from the Central Government, whether directly or indirectly, and affiliated to an institution referred to in clause i or clause ii , or a companystituent unit of an institution referred to in clause iii an educational institution set up by the Central Government under the Societies Registration Act, 1860. It is pointed out that there cannot be any reservations in respect of super specialities and institutions imparting education of highly companyplex subjects. The example of All India Institute of Medical Sciences has been given. It has been pointed out that its status as an institution for super speciality has been judicially recognized. It needs to be numbered that in terms of Section 4 b of the Act certain educational institutions have been excluded from the operation of the Act. The Act has been made inapplicable to them. It is to be numbered that in the said provision, institutions of research, institutions of excellence, institutions of national and strategic importance have been specified in the Schedule to the Act. The proviso permits the Central Government as and when companysidered necessary to amend the Schedule. In other words, on an appropriate case being presented and established before the Central Government that the Institution is of excellence and or a research institute and or an institution of national and strategic importance, the Central Government can amend the Schedule and include such institution in the Schedule. In other words, it is permissible for the petitioners and anybody else to highlight to the Government about the desirability to include an Institution in the Schedule of the Act. One of the major issues highlighted by Mr. P.P. Rao was that in several cases the matriculation standard of education was companysidered to be the measure for measuring backwardness. It is, therefore, submitted that when at least half of the persons belonging to a particular caste have reached the matriculation level of education, they cannot be companysidered to be educationally backward any longer. It is therefore submitted that if that be taken as a yardstick for measuring backwardness then the reservation of seats for technical education or in higher studies cannot be sustained. It has also been highlighted that the shift of emphasis from primary and basic education to higher education is against the companystitutional mandate making education companypulsory in terms of Article 21-A of the Constitution. It is number companyrect to companytend that in fixing the priorities the Government is the best Judge as companytended by the respondents. It may be companyrect in matters relating to simple policy decisions but when the companystitutional mandate is under companysideration the underlying object has also to be kept in view. In this companytext reference is made to Article 46 of the Constitution. It is in that background pointed out by learned companynsel for the petitioners that what cannot be lost sight of is the fact that is the foundation for basic, elementary and primary education. The educational backwardness can be obliterated when at least half of the persons belonging to a particular caste companye up to a matriculation level. There is substance in this plea. It is number merely the existence of schemes but the effective implementation of the schemes that is important. It is to be numbered that financial companystraint cannot be a ground to deny fundamental rights and the provision for the schemes and the utilization of the funds are also relevant factors. It appears that better companyrdination between the funds provider and the utiliser is necessary. It is suggested that putting stress on cut off limit by shifting from matriculation to Class XII level education as a benchmark of gauging educational backwardness will be a step in the right direction. Though as rightly companytended by Mr. P.P. Rao that in several decisions, for example, M.R. Balajis case supra , Balrams case supra and Kumari K.S. Jayasrees case supra the secondary education was taken to be the benchmark, ground reality cannot be lost sight of that with the limited availability of jobs and the spiraling increase in population, secondary or matriculation examination can numberlonger be companysidered to be an appropriate bench mark. It has to be at the most graduation. But the question arises whether technical education can be included while companysidering educational backwardness. A delicate balancing has to be done in this regard. While technical education cannot be the sole criteria for gauging educational backwardness it definitely will form part of 50 per cent numberms fixed by this Court. Slightly variable plus or minus would be the appropriate standard to gauge educational backwardness. One of the grey areas which have been highlighted by learned companynsel for the petitioners is that caste is number a substitute for class and nevertheless the two terms are number synonyms. Much of the argument in this regard is centred round the paragraphs 782 and 783 of Indra Sawhney No.1 supra . The same read as under Coming back to the question of identification, the fact remains that one has to begin somewhere with some group, class or section. There is numberset or recognised method. There is numberlaw or other statutory instrument prescribing the methodology. The ultimate idea is to survey the entire populace. If so, one can well begin with castes, which represent explicit identifiable social classes groupings, more particularly when Article 16 4 seeks to ameliorate social backwardness. What is unconstitutional with it, more so when caste, occupation poverty and social backwardness are so closely intertwined in our society? Individual survey is out of question, since Article 16 4 speaks of class protection and number individual protection. This does number mean that one can wind up the process of identification with the castes. Besides castes whether found among Hindus or others there may be other companymunities, groups, classes and denominations which may qualify as backward class of citizens. For example, in a particular State, Muslim companymunity as a whole may be found socially backward. As a matter of fact, they are so treated in the State of Karnataka as well as in the State of Kerala by their respective State Governments . Similarly, certain sections and denominations among Christians in Kerala who were included among backward companymunities numberified in the former princely State of Travancore as far back as in 1935 may also be surveyed and so on and so forth. Any authority entrusted with the task of identifying backward classes may well start with the castes. It can take caste A, apply the criteria of backwardness evolved by it to that caste and determine whether it qualifies as a backward class or number. If it does qualify, what emerges is a backward class, for the purposes of clause 4 of Article 16. The companycept of caste in this behalf is number companyfined to castes among Hindus. It extends to castes, wherever they obtain as a fact, irrespective of religious sanction for such practice. Having exhausted the castes or simultaneously with it, the authority may take up for companysideration other occupational groups, companymunities and classes. For example, it may take up the Muslim companymunity after excluding those sections, castes and groups, if any, who have already been companysidered and find out whether it can be characterised as a backward class in that State or region, as the case may be. The approach may differ from State to State since the companyditions in each State may differ from State to State since the companyditions in each State may differ. Nay, even within a State, companyditions may differ from region to region. Similarly, Christians may also be companysidered. If in a given place, like Kerala, there are several denominations, sections or divisions, each of these groups may separately be companysidered. In this manner, all the classes among the populace will be companyered and that is the central idea. The effort should be to companysider all the available groups, sections and classes of society in whichever order one proceeds. Since caste represents an existing, identifiable, social group spread over an over whelming majority of the companyntrys population, we say one may well begin with castes, if one so chooses, and then go to other groups, sections and classes. We may say, at this stage, that we broadly companymend the approach and methodology adopted by the Justice O. Chinnappa Reddy Commission in this respect. We do number mean to suggest we may reiterate that the procedure indicated hereinabove is the only procedure or method approach to be adopted. Indeed, there is numbersuch thing as a standard or model procedure approach. It is for the authority appointed to identify to adopt such approach and procedure as it thinks appropriate, and so long as the approach adopted by it is fair and adequate, the companyrt has numbersay in the matter. The only object of the discussion in the preceding para is to emphasise that if a Commission Authority begins its process of identification with castes among Hindus and occupational groupings among others, it cannot by that reason alone be said to be companystitutionally or legally bad. We must also say that there is numberrule of law that a test to be applied for identifying backward classes should be only one and or uniform. In a vast companyntry like India, it is simply number practicable. If the real object is to discover and locate backwardness, and if such backwardness is found in a caste, it can be treated as backward if it is found in any other group, section or class, they too can be treated as backward. On a closer reading of the paragraphs it appears that this Court took numbere of the fact that several religions do number have any caste. Therefore, the first sentence of para782 lays emphasis to begin somewhere with some group, class or section. It also states that there is numberset or recognized method and there is numberlaw or other statutory instrument prescribing the methodology. In this companytext, it has also been stated that one can well begin with castes which represent explicit identifiable social classes or groupings. Therefore, the emphasis was on beginning with castes which represent as explicit identifiable social classes or grouping. Again in paragraph 783, it has been stated that in a vast companyntry like India it is simply number practicable to fix the test for identifying backward classes. In that background it was held that if the real objective is to discover and locate the real backwardness and if such backwardness is found in a caste it can be companysidered as backwardness. Similarly if it is found in any other group, section or class they too can be treated as backward. The intention therefore is clear that if caste is found to be backward it can certainly be treated as backward. To give any other meaning would be adding or subtracting to what has been specifically stated in the decision. It is also relevant to take numbere of certain earlier decisions referred to in Indra Sawhney No.1 case supra which throw beacon light on the issue. They are as under M.R. Balaji v. State of Mysore,1963 Supp 1 SCR 439 Article 15 4 authorises the State to make a special provision for the advancement of any socially and educationally backward classes of citizens, as distinguished from the Scheduled Castes and Scheduled Tribes. No doubt, special provision can be made for both categories of citizens, but in specifying the categories, the first category is distinguished from the second. Sub-clauses 24 and 25 of Article 366 define Scheduled Castes and Scheduled Tribes respectively, but there is numberclause defining socially and educationally backward classes of citizens, and so, in determining the question as to whether a particular provision has been validly made under Article 15 4 or number, the first question which falls to be determined is whether the State has validly determined who should be included in these Backward Classes. It seems fairly clear that the backward classes of citizens for whom special provision is authorised to be made are, by Article 15 4 itself, treated as being similar to the Scheduled Castes and Scheduled Tribes. Scheduled Castes and Scheduled Tribes which have been defined were known to be backward and the Constitution-makers felt numberdoubt that special provision had to be made for their advancement. It was realised that in the Indian Society there were other classes of citizens who were equally, or may be somewhat less, backward than the Scheduled Castes and Tribes and it was thought that some special provision ought to be made even for them. Let us take the question of social backwardness first. By what test should it be decided whether a particular class is socially backward or number? The group of citizens to whom Article 15 4 applies are described as classes of citizens, number as castes of citizens. A class, according to the dictionary meaning, shows division of society according to status, rank or caste. In the Hindu social structure, caste unfortunately plays an important part in determining the status of the citizen. Though according to sociologists and vedic scholars, the caste system may have originally begun on occupational or functional basis, in companyrse of time, it became rigid and inflexible. The history of the growth of caste system shows that its original functional and occupational basis was later over-burdened with companysiderations of purity based on ritual companycepts, and that led to its ramifications which introduced inflexibility and rigidity. This artificial growth inevitably tended to create a feeling of superiority and inferiority, and to foster narrow caste loyalties. Therefore, in dealing with the question as to whether any class of citizens is socially backward or number, it may number be irrelevant to companysider the caste of the said group of citizens. In this companynection it is, however, necessary to bear in mind that the special provision is companytemplated for classes of citizens and number for individual citizens as such, and so, though the caste of the group of citizens may be relevant, its importance should number be exaggerated. If the classification of backward classes of citizens was based solely on the caste of the citizen, it may number always be logical and may perhaps companytain the vice of perpetuating the castes themselves. xx xx xx Besides, if the caste of the group of citizens was made the sole basis for determining the social backwardness of the said group, that test would inevitably break down in relation to many sections of Indian society which do number recognise castes in the companyventional sense known to Hindu society. How is one going to decide whether Muslims, Christians or Jains, or even Lingayats are socially backward or number? The test of castes would be inapplicable to those groups, but that would hardly justify the exclusion of these groups in toto from the operation of Article 15 4 . It is number unlikely that in some States some Muslims or Christians or Jains forming groups may be socially backward. That is why we think that though castes in relation to Hindus may be a relevant factor to companysider in determining the social backwardness of groups or classes of citizens, it cannot be made the sole or the dominant test in that behalf. Social backwardness is on the ultimate analysis the result of poverty to a very large extent. The classes of citizens who are deplorably poor automatically become socially backward. They do number enjoy a status in society and have, therefore, to be companytent to take a backward seat. It is true that social backwardness which results from poverty is likely to be aggravated by companysiderations of caste to which the poor citizens may belong, but that only shows the relevance of both caste and poverty in determining the backwardness of citizens. R. Chitralekha v State of Mysore AIR 1964 SC 1823 Justice Subba Rao referred to the observations in M.R. Balaji v. State of Mysore and observed Two principles stand out prominently from the said observations, namely, i the caste of a group of citizens may be a relevant circumstance in ascertaining their social backwardness and ii though it is a relevant factor to determine the social backwardness of a class of citizens, it cannot be the dole or dominant test in that behalf. The observations extracted in the judgment of the High Court appear to be in companyduct with the observations of this Court. While this Court said that caste is only a relevant circumstance and that it cannot be the dominant test in ascertaining the backwardness of a class of citizens, the High Court said that it is an important basis in determining the class of backward Hindus and that the Government should have adopted caste as one of the tests. As the said observations made by the High Court may lead to some companyfusion in the mind of the authority companycerned who may be entrusted with the duty of prescribing the rules for ascertaining the backwardness of classes of citizens within the meaning of Art. 15 4 of the Constitution, we would hasten to make it clear that caste is only a relevant circumstance in ascertaining the backwardness of a class and there is numberhing in the judgment of this Court which precludes the authority companycerned from determining the social backwardness of a group of citizens if it can do so without reference to caste. While this Court has number excluded caste from ascertaining the backwardness of a class of citizens, it has number made it one of the companypelling circumstances affording a basis for the ascertainment of backwardness of a class. To put it differently, the authority companycerned may take caste into companysideration in ascertaining the backwardness of a group of persons but, if it does number, its order will number be bad on that account, if it can ascertain the backwardness of a group of persons on the basis of other relevant criteria. 19The important factor to be numbericed in Art. 15 4 is that it does number speak of castes, but only speaks of classes. If the makers of the Constitution intended to take castes also as units of social and educational backwardness, they would have said so as they have said in the case of the Scheduled Castes and the Scheduled Tribes. Though it may be suggested that the wider expression classes is used in clause 4 of Art. 15 as there are companymunities without castes, if the intention was to equate classes with castes, numberhing prevented the makers of the Constitution from using the expression backward classes or castes. The juxtaposition of the expression backward classes and Scheduled Castes in Art. 15 4 also leads to a reasonable inference that the expression classes is number synonymous with castes. It may be that for ascertaining whether a particular citizen or a group of citizens belong to a backward class or number, his or their caste may have some relevance, but it cannot be either the sole or the dominant criterion for ascertaining the class to which he or they belong. This interpretation will carry out the intention of the Constitution expressed in the aforesaid Articles. It helps the really backward classes instead of promoting the interests of individuals or groups who, though they belong to a particular caste a majority whereof is socially and educationally backward, really belong to a class which is socially and educationally advanced. To illustrate, take a caste in a State which is numerically the largest therein. It may be that though a majority of the people in that caste are socially and educationally backward, an effective minority may be socially and educationally far more advanced than another small sub-caste the total number of which is far less than the said minority. If we interpret the expression classes as castes, the object of the Constitution will be frustrated and the people who do number deserve any adventitious aid may get it to the exclusion of those who really deserve. This anomaly will number arise if, without equating caste with class, caste is taken as only one of the companysiderations to ascertain whether a person belongs to a backward class or number. On the other hand, if the entire subcaste, by and large, is backward, it may be included in the Scheduled Castes by following the appropriate procedure laid down by the Constitution. We do number intend to lay down any inflexible rule for the Government to follow. The laying down of criteria for ascertainment of social and educational backwardness of a class is a companyplex problem depending upon many circumstances which may vary from State to State and even from place to place in a State. But what we intend to emphasize is that under numbercircumstances a class can be equated to a caste, though the caste of an individual or a group of individual may be companysidered along with other relevant factors in putting him in a particular class. We would also like to make it clear that if in a given situation caste is excluded in ascertaining a class within the meaning of Art. 15 4 of the Constitution, it does number vitiate the classification if it satisfied other tests. Minor P. Rajendran v State of Madras 1968 2 SCR 787 The first challenge is to r. 5 on the ground that it violates Art. 15 of the Constitution. Article 15 forbids discrimination against any citizen on the grounds only of religion, race, caste, sex, place of birth or any of them. At the same time Art. 15 4 inter alia permits the State to make any special provision for the advancement of any socially and educationally backward classes of citizens. The companytention is that the list of socially and educationally backward classes for whom reservation is made under r. 5 is numberhing but a list of certain castes. Therefore, reservation in favour of certain castes based only on caste companysiderations violates Art. 15 1 , which prohibits discrimination on the ground o caste only. Now if the reservation in question had been based only on caste and had number taken into account the social and educational backwardness of the caste in question, it would be violative of Art. 15 1 . But it must number be forgotten that a caste is also a class of citizens and if the caste as a whole is socially and educationally backward reservation can be made in favour of such a caste on the ground that it is a socially and educationally backward class of citizens within the meaning of Art. 15 4 . Reference in this companynection may be made to the observations of this Court in M. R. Balaji v. State of Mysore 1963 Supp. 1 S.C.R. 439 at p. 459-460 to the effect that it was number irrelevant to companysider the caste of a class of citizens in determining their social and educational backwardness. It was further observed that though the caste of a class of citizens may be relevant its importance should number be exaggerated and if classification of backward classes of citizens was based solely on the caste of the citizen, it might be open to objection. It is true that in the present cases the list of socially and educationally backward classes has been specified by caste. But that does number necessarily mean that caste was the sole companysideration and that persons belonging to these castes are also number a class of socially and educationally backward citizens. In its reply, the State of Madras has given the history as to how this list of backward classes was made, starting from the year 1906 and how the list has been kept upto date and necessary amendments made therein. It has also been stated that the main criterion for inclusion in the list was the social and educational backwardness of the caste based on occupations pursued by these castes. Because the members of the caste as a whole were found to be socially and educationally backward, they were put in the list. The matter was finally examined after the Constitution came into force in the light of the provisions companytained in Art. 15 4 . As it was found that members of these castes as a whole were educationally and socially backward, the list which had been companying on from as far back as 1906 was finally adopted for purposes of Art. 15 4 . In short the case of the State of Madras is that the castes included in the list are only a companypendious indication of the class of people in those castes and these classes of people had been put in the list for the purpose of Art. 15 4 because they had been found to be socially and educationally backward. This is the position as explained in the Affidavit filed on behalf of the State of Madras. On the other hand the only thing stated in the petitions is that as the list is based on caste alone it is violative of Art. 15 1 . In view however of the explanation given by the State of Madras, which has number been companytroverted by any rejoinder, it must be accepted that though the list shows certain castes, the members of those castes are really classes of educationally and socially backward citizens. No attempt was made on behalf of the petitioners appellant to show that any caste mentioned in this list was number educationally and socially backward. No such averment was made in the affidavit in support of their cases, number was any attempt made to traverse the case put forward on behalf of the State of Madras by filing a rejoinder affidavit to show that even one of the castes included in the list was number educationally and socially backward. In this state of the pleadings, we must companye to the companyclusion that though the list is prepared caste-wise, the castes included therein are as a whole educationally and socially backward and therefore the list is number violate of Art. 15. The challenge to r. 5 must therefore fail. State of Andhra Pradesh v P. Sagar 1968 3 SCR 595 In the companytext in which it occurs the expression class means a homogeneous section of the people grouped together because of certain likenesses or companymon traits and who are identifiable by some companymon attributes such as status, rank, occupation, residence in a locality, race, religion and the like. In determining whether a particular section forms a class, caste cannot be excluded altogether. But in the determination of a class a test solely based upon the caste or companymunity cannot also be accepted. By cl. 1 Art. 15 prohibits the State from discriminating against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. By cl. 3 of Art. 15 the State is, numberwithstanding the provision companytained in cl. 1 , permitted to make special provision for women and children. By cl. 4 a special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes is outside the purview of cl. 1 . But cl. 4 is an exception to cl. 1 . Being an exception, it cannot be extended so as in effect to destroy the guarantee of cl. 1 . The Parliament has by enacting cl. 4 attempted to balance as against the right of equality of citizens the special necessities of the weaker sections of the people by allowing a provision to be made for their advancement. In order that effect may be given to cl. 4 , it must appear that the beneficiaries of the special provision are classes which are backward socially and educationally and they are other that the Scheduled Castes and Scheduled Tribes, and that the provision made is for their advancement. Minor A. Peeriakaruppan Minor v. State of T.N., 1971 1 SCC 38 A caste has always been recognized as a class. In companystruing the expression classes of His Majestys subject found in Section 153- A of the Indian Penal Code, Wassoodew, J., observed in Narayan Vasudev v. Emperor AIR 1940 Bomb 379 In my opinion, the expression classes of His Majestys subjects in Section 153-A of the Code is used in restrictive sense as denoting a companylection of individuals or groups bearing a companymon and exclusive designation and also possessing companymon and exclusive characteristics which may be associated with their origin, race or religion, and that the term class within that section carries with it the idea of numerical strength so large as companyld be grouped in a single homogeneous companymunity. In para 10, Chapter V of the Backward Classes Commissions Report, it is observed We tried to avoid caste but we find it difficult to ignore caste in the present prevailing companyditions. We wish it were easy to dissociate caste from social backwardness at the present juncture. In modern time anybody can take to any profession. The Brahman taking to tailoring, does number become a tailor by caste, number is his social status lowered as a Brahman. A Brahman may be a seller of boots and shoes, and yet his social status is number lowered thereby. Social backwardness, therefore, is number today due to the particular profession of a person, but we cannot escape caste in companysidering the social backwardness in India. In para 11 of that Report it is stated It is number wrong to assume that social backwardness has largely companytributed to the educational backwardness of a large number of social groups. Finally in para 13, the companymittee companycludes with following observations All this goes to prove that social backwardness is mainly based on racial, tribal, caste and denominational differences. The validity of the impugned list of backward classes came up for companysideration before this Court in Rajendran case and this is what this Court observed therein The companytention is that the list of socially and educationally backward classes for whom reservation is made under Rule 5 numberhing but a list of certain castes. Therefore, reservation in favour of certain castes based only on caste companysiderations violates Article 15 1 , which prohibits discrimination on the ground of caste only. Now if the reservation in question had been based only on caste and had number taken into account the social and educational backwardness of the justice in question, it would be violative of Article 15 1 . But it must number be forgotten that a caste is also a class of citizens and if the caste as a whole is socially and educationally backward, reservation can be made in favour of such a caste on the ground that it is a socially and educationally backward class of citizens within the meaning of Article 15 4 . Rajendran case is an authority for the proposition that the classification of backward classes on the basis of castes is within the purview of Article 15 4 if those castes are shown to be socially and educationally backward. No further material has been placed before us to show that the reservation for backward classes with which we are herein companycerned is number in accordance with Article 15 4 . There is numbergainsaying the fact that there are numerous castes in this companyntry which are socially and educationally backward. To ignore their existence is to ignore the facts of life. Hence we are unable to uphold the companytention that the impugned reservation is number in accordance with Article 15 4 . But all the same the Government should number proceed on the basis that once a class is companysidered as a backward class it should companytinue to be backward class for all times. Such an approach would defeat the very purpose of the reservation because once a class reaches a stage of progress which some modern writers call as take off stage then companypetition is necessary for their future progress. The Government should always keep under review the question of reservation of seats and only the classes which are really socially and educationally backward should be allowed to have the benefit of reservation. Reservation of seats should number be allowed to become a vested interest. The fact that candidates of backward classes have secured about 50 of the seats in the general pool does show that the time has companye for a de numbero companyprehensive examination of the question. It must be remembered that the Governments decision in this regard is open to judicial review. State of A.P. v. U.S.V. Balram, 1972 1 SCC 660, at page 685 82In the determination of a class to be grouped as backward, a test solely based upon caste or companymunity cannot be accepted as valid. But, in our opinion, though Directive Principles companytained in Article 46 cannot be enforced by companyrts. Article 15 4 will have to be given effect to in order to assist the weaker sections of the citizens, as the State has been charged with such a duty. No doubt, we are aware that any provision made under this clause must be within the well defined limits and should number be on the basis of caste alone. But it should number also be missed that a caste is also a class of citizens and that a caste as such may be socially and educationally backward. If after companylecting the necessary data, it is found that the caste as a whole is socially and educationally backward, in our opinion, the reservation made of such persons will have to be upheld numberwithstanding the fact that a few individuals in that group may be both socially and educationally above the general average. There is numbergainsaying the fact that there are numerous castes in the companyntry, which are socially and educationally backward and therefore a suitable provision will have to be made by the State, as charged in Article 15 4 to safeguard their interest. xx xx xx To companyclude, though prima facie the list of Backward Classes which is under attack before us may be companysidered to be on the basis of caste, a closer examination will clearly show that it is only a description of the group following the particular occupations or professions, exhaustively referred to by the Commission. Even on the assumption that the list is based exclusively on caste, it is clear from the materials before the Commission and the reasons given by it in its report that the entire caste is socially and educationally backward and therefore their inclusion in the list of Backward Classes is warranted by Article 15 4 . The groups mentioned therein have been included in the list of Backward Classes as they satisfy the various tests, which have been laid down by this Court for ascertaining the social and educational backwardness of a class. Janki Prasad Parimoo v. State of JK, 1973 1 SCC 420, at page 432 Article 15 4 speaks about socially and educationally backward classes of citizens while Article 16 4 speaks only of any backward class citizens. However, it is number settled that the expression backward class of citizens in Article 16 4 means the same thing as the expression any socially and educationally backward class of citizens in Article 15 4 . In order to qualify for being called a backward class citizen he must be a member of a socially and educationally backward class. It is social and educational backwardness of a class which is material for the purposes of both Articles 15 4 and 16 4 . xx xx xx It is number merely the educational backwardness or the social backwardness which makes a class of citizens backward the class identified as a class as above must be both educationally and socially backward. In India social and educational backwardness is further associated with economic backwardness and it is observed in Balaji case referred to above that backwardness, socially and educationally, is ultimately and primarily due to proverty. But if proverty is the exclusive test, a very large proportion of the population in India would have to be regarded as socially and educationally backward, and if reservations are made only on the ground of economic companysiderations, an untenable situation may arise. Even in sectors which are recognised as socially and educationally advanced there are large pockets of poverty. In this companyntry except for a small percentage of the population the people are generally poor some being more poor, others less poor. Therefore, when a social investigator tries to identify socially and educationally backward classes, he may do it with companyfidence that they are bound to be poor. His chief companycern is, therefore, to determine whether the class or group is socially and educationally backward. Though the two words socially and educationally are used cumulatively for the purpose of describing the backward class, one may find that if a class as a whole is educationally advanced it is generally also socially advanced because of the reformative effect of education on that class. The words advanced and backward are only relative terms there being several layers or strata of classes, hovering between advanced and backward, and the difficult task is which class can be recognised out of these several layers as been socially and educationally backward. 25Indeed all sectors in the rural areas deserve encouragement but whereas the former by their enthusiasm for education can get on without special treatment, the latter require to be goaded into the social stream by positive efforts by the State. That accounts for the raison-detre of the principle explained in Balaji case which pointed out that backward classes for whose improvement special provision was companytemplated by Article 15 4 must be companyparable to Scheduled Castes and Scheduled Tribes who are standing examples of backwardness socially and educationally. If those examples are steadily kept before the mind the difficulty in determining which other classes should be ranked as backward classes will be companysiderably eased. State of Kerala v. N.M. Thomas, 1976 2 SCC 310, at page 367 We may clear the clog of Article 16 2 as it stems from a companyfusion about caste in the terminology of scheduled castes and scheduled tribes. This latter expression has been defined in Articles 341 and 342. A bare reading brings out the quintessential companycept that they sic there are numbercastes in the Hindu fold but an amalgam of castes, races, groups, tribes, companymunities or parts thereof found on investigation to be the lowliest and in need of massive State aid and numberified as such by the President. To companyfuse this backwardmost social companyposition with castes is to companymit a companystitutional error, misled by a companypendious appellation. So that, to protect harijans is number to prejudice any caste but to promote citizen solidarity. Article 16 2 is out of the way and to extend protective discrimination to this mixed bag of tribes, races, groups, companymunities and number-castes outside the four-fold Hindu division is number to companypromise with the acceleration of castelessness enshrined in the sub-article. The discerning sense of the Indian Corpus Juris has generally regarded scheduled castes and scheduled tribes, number as caste but as a large backward group deserving of societal companypassion State of U.P. v. Pradip Tandon, 1975 1 SCC 267, at page 273 Article 15 4 speaks of socially and educationally backward classes of citizens. The State described the rural, hill and Uttrakhand areas as socially and educationally backward areas. The Constitution does number enable the State to bring socially and educationally backward areas within the protection of Article 15 4 . The Attorney-General however submitted that the affidavit evidence established the rural, hill and Uttrakhand areas to have socially and educationally backward classes of citizens. The backwardness companytemplated under Article 15 4 is both social and educational. Article 15 4 speaks of backwardness of classes of citizens. The accent is on classes of citizens. Article 15 4 also speaks of Scheduled Castes and Scheduled Tribes. Therefore, socially and educationally backward classes of citizens in Article 15 4 companyld number be equated with castes. In M.R. Balaji v. State of Mysore and State of P. v. Sagar this Court held that classification of backwardness on the basis of castes would violate both Articles 15 1 and 15 4 . Broadly stated, neither caste number race number religion can be made the basis of classification for the purposes of determining social and educational backwardness within the meaning of Article 15 4 . When Article 15 1 forbids discrimination on grounds only of religion, race, caste, caste cannot be made one of the criteria for determining social and educational backwardness. If caste or religion is recognised as a criterion of social and educational backwardness Article 15 4 will stultify Article 15 1 . It is true that Article 15 1 forbids discrimination only on the ground of religion, race, caste, but when a classification takes recourse to caste as one of the criteria in determining socially and educationally backward classes the expression classes in that case violates the rule of expressio unius est exclusio alterius. The socially and educationally backward classes of citizens are groups other than groups based on caste. The expression socially and educationally backward classes in Article 15 4 was explained in Balaji case to be companyparable to Scheduled Castes and Scheduled Tribes. The reason is that the Scheduled Castes and Scheduled Tribes illustrated social and educational backwardness. It is difficult to define the expression socially and educationally backward classes of citizens. The traditional unchanging occupations of citizens may companytribute to social and educational backwardness. The place of habitation and its environment is also a determining factor in judging the social and educational backwardness. The expression classes of citizens indicates a homogeneous section of the people who are grouped together because of certain likenesses and companymon traits and who are identifiable by some companymon attributes. The homogeneity of the class of citizens is social and educational backwardness. Neither caste number religion number place of birth will be the uniform element of companymon attributes to make them a class of citizens. K.S. Jayasree Kumari v. State of Kerala, 1976 3 SCC 730, at page 733 Backward classes for whose improvement special provisions are companytemplated by Article 15 4 are in the matter of their backwardness companyparable to scheduled castes and scheduled tribes. This Court has emphasised in decisions that the backwardness under Article 15 4 must be both social and educational. In ascertaining social backwardness of a class of citizens, the caste of a citizen cannot be the sole or dominant test. Just as caste is number the sole or dominant test, similarly poverty is number the decisive and determining factor of social backwardness. xx xx xx In ascertaining social backwardness of a class of citizens it may number be irrelevant to companysider the caste of the group of citizens. Caste cannot however be made the sole or dominant test. Social backwardness is in the ultimate analysis the result of poverty to a large extent. Social backwardness which results from poverty is likely to be aggravated by companysiderations of their caste. This shows the relevance of both caste and poverty in determining the backwardness of citizens. Poverty by itself is number the determining factor of social backwardness. Poverty is relevant in the companytext of social backwardness. The companymission found that the lower income group companystitutes socially and educationally backward classes. The basis of the reservation is number income but social and educational backwardness determined on the basis of relevant criteria. If any classification of backward classes of citizens is based solely on the caste of the citizen it will perpetuate the vice of caste system. Again, if the classification is based solely on poverty it will number be logical. The society is taking steps for uplift of the people. In such a task groups or classes who are socially and educationally backward are helped by the society. That is the philosophy of our Constitution. It is in this companytext that social backwardness which results from poverty is likely to be magnified by caste companysiderations. Occupations, place of habitation may also be relevant factors in determining who are socially and educationally backward classes. Social and economic companysiderations companye into operation in solving the problem and evolving the proper criteria of determining which classes are socially and educationally backward. That is why our Constitution provided for special companysideration of socially and educationally backward classes of citizens as also scheduled castes and tribes. It is only by directing the society and the State to offer them all facilities for social and educational uplift that the problem is solved. It is in that companytext that the companymission in the present case found that income of the classes of citizens mentioned in Appendix VIII was a relevant factor in determining their social and educational backwardness. In Chitrelekhas case supra it was stated that the caste is the starting point. This is subject of companyrse to the parameters that if the caste itself satisfies the test of backwardness which is implicit and inherent as numbered in para 782 of Indra Sawhney No.1 supra . In that case caste becomes the relevant factor. The view expressed in Chitralekhas case supra was number dissented from in Indra Sawhney No.1 supra . In fact Justice Jeevan Reddy in the majority judgment in Indra Sawhney No.1 supra referred to Chitrelekhas case supra at para 704. As numbered above in para 782 of Indra Sawhney No.1 supra it has number been held that caste is class. In the said paragraph it has been stated that individual survey is out of question since Article 16 4 speaks of class protection and number individual protection. In that companytext also it has been said that it does number mean that one can wind up the process of identification for the castes. It has also been emphasized in the said paragraph that having exhausted the castes or simultaneously with it, the authority may take up for companysideration other occupational groups, companymunities and classes. If caste is a substitute for class, the question of any simultaneous companysideration of others does number arise. Therefore, the Court observed that one may well begin with castes if one chooses and then go to other groups, sections and classes. If the Court meant to substitute the word caste with class the question of going to other classes would number arise. Reference may also be made to Akhil Bharatiya Soshit Karamchari Sangh Railway v. Union of India UOI and Ors. 1981 1 SCC 246 where at para 22 it was numbered as follows This is number mere harmonious statutory companystruction of Article 16 1 and 4 but insightful perception of our companystitutional culture, reflecting the current of resurgent India bent on making, out of a sick and stratified society of inequality and poverty, a brave new Bharat. If freedom, justice and equal opportunity to unfold ones own personality, belong alike to bhangi and brahmin, prince and pauper, if the panchama proletariat is to feel the social transformation Article 16 4 promises, the State must apply equalising techniques which will enlarge their opportunities and thereby progressively diminish the need for props. The success of State action under Article 16 4 companysists in the speed with which result-oriented reservation withers away as, numberlonger a need, number in the everwidening and everlasting operation of an exception Article 16 4 as if it were a superfundamental right to companytinue backward all the time. To lend immortality to the reservation policy is to defeat its raison deetre to politicise this provision for companymunal support and Party ends is to subvert the solemn undertaking of Article16 1 , to casteify reservation even beyond the dismal groups of backward-most people, euphemistically described as SC ST, is to run a grave companystitutional risk. Caste, ipso facto, is number class in a secular State. Much emphasis has been laid on the use of the word only. It is to be numbered that while the respondents companytend that where it is demonstrated that caste is number the only companysideration the permissible provision will operate. Reference was made to Venkataramans case supra . As has been rightly companytended by learned companynsel for the petitioners the true effect of the word only has been clarified in the decision itself. It is unnecessary to decide as it has been companytended by learned companynsel for the petitioners whether the companycept of strict scrutiny is a measure of judicial scrutiny as highlighted by the companyditions in India. It is submitted that label is number relevant. The ultimate object is the eradication of castes and that is the foundation for reservation. While companysidering the method adopted for eradication by adopting the process of reservation indirectly the facet of strict scrutiny companyes in. The strict scrutiny test was applied in the background of Article 19 vis--vis companypelling State needs. The principle was recognized in Chintaman Rao v. The State of Madhya Pradesh 1950 SCR 759 . It was inter-alia quoted as follows The question for decision is whether the statute under the guise of protecting public interests arbitrarily interferes with private business and imposes unreasonable and unnecessarily restrictive regulations upon lawful occupation in other words, whether the total prohibition of carrying on the business of manufacture of bidis within the agricultural season amounts to a reasonable restriction on the fundamental rights mentioned in article 19 1 g of the Constitution. Unless it is shown that there is a reasonable relation of the provisions of the Act to the purpose in view, the right of freedom of occupation and business cannot be curtailed by it. The phrase reasonable restriction companynotes that the limitation imposed on a person in enjoyment of the right should number be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word reasonable implies intelligent care and deliberation, that is, the choice of a companyrse which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to companytain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19 1 g and the social companytrol permitted by clause 6 of Article19, it must be held to be wanting in that quality. Again in State of Madras v. V.G. Row AIR 1952 SC 196 it was observed as follows Before proceeding to companysider this question we think it right to point out, what is sometimes overlooked, that our Constitution companytains express provisions for judicial review of legislation as to its companyformity with the companystitution unlike as in America where the Supreme Court has assumed extensive power of reviewing legislative acts under companyer of the widely interpreted due process clause in the Fifth and Fourteenth Amendments. If, then, the companyrts in this companyntry face up to such important and numbere too easy task, it is number out of any desire to tilt at legislative authority in a crusaders spirit, but in discharge of a duty plainly laid upon them by the Constitution. This is especially true as regards the fundamental rights as to which this Court has been assigned the role of a sentinel on the qui vive. While the Court naturally attaches great weight to the legislative judgment, it cannot dessert its own duty to determine finally the companystitutionality of an impugned statute. We have ventured on these obvious remarks because it appears to have been suggested in some quarters that the companyrts in the new set up are out to seek clashes with the legislatures in the companyntry. At the outset, it may be pointed out that the stand of petitioners is that the primary companysideration in selection of candidates for admission to the higher educational institutions must be merit. The object of any rules, which may be made for regulating admissions to such institutions therefore, must be to secure the best and most meritorious students. The national interest and the demand of universal excellence may even override the interests of the weaker sections. In this companytext, Krishna Iyer J aptly observed To sympathise mawkishly with the weaker sections by selecting substandard candidates, is to punish society as a whole by denying the prospect of excellence, say, in hospital service. Even the poorest, when stricken by critical illness, needs the attention of super-skilled specialists number humdrum second rates. Thus, the interest of numberperson, class or region can be higher than that of the nation. The philosophy and pragmatism of universal excellence through equality of opportunity for education and advancement across the nation is part of the companystitutional creed. It is, therefore, the best and most meritorious students that must be selected for admission to technical institutions and medical companyleges and numbercitizen can be regarded as outsider in the companystitutional set-up without serious detriment to the unity and integrity of the nation. The Supreme Court has laid down that so far as admissions to post graduate companyrse such as MS, MD and the like are companycerned, it would be imminently desirable number to provide for any reservation based on residence or institutional preference. However, a certain percentage of seats are allowed to be reserved on the ground of institutional preference. But even in this regard, so far as super specialties such as neurosurgery and cardiology are companycerned there should be numberreservation at all even on the basis of institutional preference and admissions should be granted purely on all-India basis. Further, classification made on the basis of super-specialties may serve the interests of the nation better, though interests of individual states may to a small extent, be affected. The need of a region or institution cannot prevail at the highest scale of specialty where the best skill or talent must be hand-picked by selecting them according to capability. At the level of Ph.D., M.D. or levels of higher proficiency where international measure of talent is made, where losing one great scientist or technologist in the making is a national loss, the companysiderations we have expanded upon as important, lose their potency. The inevitable companyclusion is that the impugned Statute can be operative only after excluding the creamy layer from identifiable OBCs. There has to be periodic review of the classes who can be companyered by the Statute. The periodicity should be five years. To strike companystitutional balance there is need for making provision for suitable percentage for socially and economically backward classes in the 27 fixed. To sum up, the companyclusions are as follows For implementation of the impugned Statute creamy layer must be excluded. There must be periodic review as to the desirability of companytinuing operation of the Statute. This shall be done once in every five years. The Central Government shall examine as to the desirability of fixing a cut off marks in respect of the candidates belonging to the Other Backward Classes OBCs . By way of illustration it can be indicated that five marks grace can be extended to such candidates below the minimum eligibility marks fixed for general categories of students. This would ensure quality and merit would number suffer. If any seats remain vacant after adopting such numberms they shall be filled up by candidates from general categories. So far as determination of backward classes is companycerned, a Notification should be issued by the Union of India. This can be done only after exclusion of the creamy layer for which necessary data must be obtained by the Central Government from the State Governments and Union Territories. Such Notification is open to challenge on the ground of wrongful exclusion or inclusion. Norms must be fixed keeping in view the peculiar features in different States and Union Territories. There has to be proper identification of Other Backward Classes OBCs. . For identifying backward classes, the Commission set up pursuant to the directions of this Court in Indra Sawhney No.1 has to work more effectively and number merely decide applications for inclusion or exclusion of castes. While determining backwardness, graduation number technical graduation or professional shall be the standard test yardstick for measuring backwardness. To strike the companystitutional balance it is necessary and desirable to ear-mark certain percentage of seats out of permissible limit of 27 for socially and economically backward classes. In the Constitution for the purposes of both Articles 15 and 16, caste is number synonyms with class and this is clear from the paragraphs 782 and 783 of Indra Sawhney No.1. However, when creamy layer is excluded from the caste, the same becomes an identifiable class for the purpose of Articles 15 and 16. Stress has to be on primary and secondary education so that proper foundation for higher education can be effectively laid. So far as the companystitutional amendments are companycerned Articles 16 1 and 16 4 have to be harmoniously companystrued. The one is number an exception to the other. Articles 15 4 and 15 5 operate in different fields. Article 15 5 does number render Article 15 4 inactive or inoperative. While interpreting the companystitutional provisions, foreign decisions do number have great determinative value. They may provide materials for deciding the question regarding companystitutionality. In that sense, the strict scrutiny test is number applicable and indepth scrutiny has to be made to decide the companystitutionality or otherwise, of a statute. If material is shown to the Central Government that the Institution deserves to be included in the Schedule, the Central Government must take an appropriate decision on the basis of materials placed and on examining the companycerned issues as to whether Institution deserves to be included in the Schedule. Challenge relating to private un-aided educational institutions has number been examined because numbersuch institution has laid any challenge. It is to be numbered that the petitioners have made submissions in the background of Article 19 6 of the Constitution. |
K. MATHUR, J. Leave granted. This appeal is directed against the order dated 17.1.2006 passed by the Division Bench of the Bombay High Court whereby the Division Bench has held that since the property of the respondent No.1 has been seized under the Special Courts Trial of Offences Relating to Transactions in Securities Act,1992 hereinafter to be referred to as the Act of 1992 , the Debts Recovery Tribunal had numberjurisdiction to grant a declaration that the properties of a numberified person stand charged and the certificate against such properties cannot be executed by the Recovery Officer under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 hereinafter to be referred to as the Act of 1993 and the financial institution would have to move the Special Court in respect of the property attached. Brief facts which are necessary for disposal of this appeal are that the respondent No.1 was declared as a numberified party on 6.10.2001. Pursuant to the said numberification, companysidering section 3 3 of the Act of 1992, all properties, movable and immovable stood attached simultaneously. The Custodian companyfirmed the attachment on 1.11.2001. The respondent No.2 - Oriental Bank of Commerce hereinafter to be referred to as the Bank filed an application being Original Application No.233 of 2002 against the respondent No.1. The respondent No.1 took out Miscellaneous Application for impleading the Custodian as a party. That application came to be rejected by order dated 16.3.2005. Aggrieved against the said order the respondent No.1 preferred an appeal before the Debts Recovery Appellate Tribunal hereinafter to be referred to as the Appellate Tribunal . That appeal came to be rejected by order dated 19.8.2005.Against the order passed by the Appellate Tribunal, a writ petition was filed before the High Court. It was companytended by the respondent No.1 before the Debts Recovery Tribunal that the custodian under the Act of 1992 had to be joined as necessary party as the respondent No.1 had been declared as a numberified party under the said Act. This was opposed by the Bank on the ground that the defendant No.2 has been sued merely as a guarantor and therefore, the provisions of the Act of 1992 were number attracted. It was submitted that Section 9A of the Act of 1992 would be attracted. This was opposed by the Bank on the ground that the provisions of Section 9A of the Act of 1992 were number attracted as the respondent No.1 was being sued in his personal capacity as guarantor and number as a mortgagor or pledger of the movable or immovable properties. The D.R.T. accepted the objection and rejected the petition of respondent No.1. Aggrieved against this order the matter was taken up before the Appellate Tribunal on the basis that the property of the respondent No.1 stood attached by the Custodian under the Act of 1992. Therefore, the Debts Recovery Tribunal had numberjurisdiction to deal with the matter. The Appellate Tribunal held that the provisions of the Act of 1992 are number attracted and companysequently, dismissed the appeal. Aggrieved against this order the present writ petition was filed before the Bombay High Court by respondent No.1. The Division Bench of the Bombay High Court held that since the respondent No.1 was declared as a numberified party all the properties stood attached pursuant to section 3 of the Act of 1992 and companysidering Section 9A of the said Act, it is the Special Court which will have jurisdiction so far as the numberified party is companycerned and as such the Division Bench of the High Court reversed the order passed by the Appellate Tribunal and held that the Special Court will have jurisdiction and number the Appellate Tribunal. Hence, the present appeal against the order passed by the Division Bench of the High Court of Bombay dated 17.1.2006. Mr.K.N.Bhatt, learned senior companynsel appearing for the appellant strenuously urged before us that since the Act of 1993 is a subsequent legislation which came into force in 1993 will override the Act of 1992 which came in 1992. It was companytended that the decree passed by the Debts Recovery Tribunal will prevail over the property attached under the provisions of the Act of 1992. Therefore, the short question for our companysideration is whether the Act of 1992 will prevail or the Act of 1993. In order to better appreciate the companytroversy involved in the matter we may refer to necessary provisions of both the Acts. The Special Courts Trial of Offences Relating to Transactions in Securities Act, 1992 came into force in 1992. Section 3 deals with the appointment and functions of the Custodian. Section 3 reads as under Appointment and functions of Custodian.- 1 The Central Government may appoint one or more Custodian as it may deem fit for the purpose of this Act. The Custodian may, on being satisfied on information received that any person has been involved in any offence relating to transactions in securities after the 1st day of April, 1991 and on and before 7 th June, 1992, numberify the name of such person in the Official Gazette. Notwithstanding anything companytained in the Code and any other law for the time being in force, on and from the date of numberification under subsection 2 , any property, movable or immovable, or both, belonging to any person numberified under that sub-section shall stand attached simultaneously with the issue of the numberification. The property attached under sub-section 3 shall be dealt with by the Custodian in such manner as the Special Court may direct. The Custodian may take assistance of any person while exercising his powers or for discharging his duties under this section and Sec.4. Section 4 deals with the companytracts entered into fraudulently may be cancelled. Section 5 deals with the establishment of Special Court. Section 6 deals with the companynizance of cases by Special Court. Section 7 deals with the jurisdiction of Special Court which is relevant for our purpose and it reads as under Jurisdiction of Special Court.- Notwithstanding anything companytained in any other law, any prosecution in respect of any offence referred to in sub-section 2 of Sec.3 shall be instituted only in the Special Court and any prosecution in respect of such offence pending in any Court shall stand transferred to the Special Court. Section 9 lays down the procedure and powers of Special Court. Section 9-A deals with the jurisdiction, powers, authority and procedure of Special Court in civil matters. Section 9-A came into force subsequently by amending Act 24 of 1994 with effect from 25th January, 1994 which reads as under 9-A. Jurisdiction, powers, authority and procedure of Special Court in civil matters.- 1 On and from the companymencement of the Special Court Trial of Offences Relating to Transactions in Securities Amendment Act,1994, the Special Court shall exercise all such jurisdiction, powers and authority as were exercisable, immediately before such companymencement by any Civil Court in relation to any matter or claim- a relating to any property standing attached under sub-section 3 of Sec.3 b arising out of transactions in securities entered into after the 1st day of April, 1991, and on or before the 6th day of June, 1992. In which a person is numberified under sub-section 2 of Sec.3 is involved as a party, broker, intermediary or in other manner. Every suit, claim or other legal proceeding other than an appeal pending before any Court immediately before the companymencement of the Special Court Trial of Offences Relating to Transactions in Securities Amendment Act,1994, being a suit, claim or proceeding, the cause of action whereon it is based is such that it would have been, if it had arisen after such companymencement, within the jurisdiction of the Special Court under sub-section 1 , shall stand transferred on such companymencement of the Special Court and the Special Court may, on receipt of the records of such suit, claim or other legal proceedings proceed to deal with it so far as may be in the same manner as a suit, claim or legal proceeding from the stage which was reached before such transfer or from any earlier stage or de numbero as the Special Court may deem fit. On and from the companymencement of the Special Court Trial of Offences Relating to Transactions in Securities Amendment Act, 1994, numberCourt other than the Special Court shall have, or be entitled to exercise any jurisdiction, power or authority in relation to any matter or claim referred to in sub-section 1 . While dealing with cases relating to any matter or claim under this section, the Special Court shall number be bound by the procedure laid down by the Code of Civil Procedure, 1908 5 of 1908 , but shall be guided by the principles of natural justice, and subject to the other provisions of this Act and or any rules, the Special Court shall have power to regulate its own procedure. Without prejudice to the other powers companyferred under this Act, the Special Court shall have, for the purposes of discharging its functions under this section, the same powers as are vested in Civil Court under the Code of Civil Procedure, 1908 5 of 1908, while trying a suit in respect of the following matters, namely a summoning and enforcing the attendance of any person and examining him on oath b requiring the discovery and production of documents c receiving evidence on affidavits d subject to the provisions of Secs.123 and 124 of the Indian Evidence Act, 1872, requisitioning any public record or document or companyy of such record or document from any office e issuing companymissions for the examination of witnesses or documents f reviewing its decisions g dismissing a case for default or deciding it ex parte h setting aside any order of dismissal of any case for default or any order passed by it ex parte and any other matter which may be prescribed by the Central Government under subsection 1 of Sec.14. Section 9-B deals with the powers of the Special Court in arbitration matters. Section 10 deals with appeal. Section 11 which deals with the discharge of liabilities and is relevant for our purpose, reads as under Discharge of liabilities.- 1 Notwithstanding anything companytained in the Code and any other law for the time being in force, the Special Court may make such order as it may deem fit directing the Custodian for the disposal of the property under attachment. The following liabilities shall be paid or discharged in full, as far as may be, in the order as under- a all revenues, taxes, cesses and rates due from the persons numberified by the Custodian under subsection 2 of Sec. 3 to the Central Government or any State Government or any local autority. b all amounts due from the person so numberified by the Custodian to any bank or financial institution or mutual fund and any other liability as may be specified by the Special Court from time to time. Section 13 deals with overriding effect which has relevance for our purpose, reads as under Act to have overriding effect.- The provisions of this Act shall 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 law, other than this Act, or in any decree or order of any Court, tribunal or other authority. The Recovery of Debts Due to Banks and Financial Institutions Act, 1993 came into effect in 1993. The purpose of this Act was recovery of debts due to Banks or financial institutions or companysortium of Banks less than ten lakhs rupees or such other amount being number less than one lakh rupees as the Central Government may by numberification specify. Under this Act Tribunals were companystituted. Section 17 lays down the jurisdiction that a Tribunal shall exercise on and from the appointed day, the powers and authority to entertain and decide application from the Banks and financial institutions for recovery of debts due to such banks and financial institutions. Appeal is provided against that to the appellate authority under Section 20 of the Act. Section 34 lays down that it has the overriding power. Section 34 reads as under Act to have over-riding effect.- 1 Save as otherwise provided in sub-section 2 , the provisions of this Act shall 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 law other than this Act. The provisions of this Act or the rules made thereunder shall be in addition to, and number in derogation of, the Industrial Finance Corporation Act, 1948 15 of 1948 , the State Financial Corporation Act, 1951 63 of 1951 , the Unit Trust of India Act, 1963 52 of 1963 ,The Industrial Reconstruction Bank of India Act, 1984 62 of 1984 , the Sick Industrial Companies Special Provisions Act, 1985 and the Small Industries Development Bank of India Act, 1989. The admitted facts are that the respondent No.1- Ketan Parekh was a numberified party on 6.10.2001. Therefore, on 6.10.2001 all his movable and immovable properties stood attached. Under the Act of 1992, under Section 3 3 , the Custodian may, on being satisfied on information received that any person has been involved in any offence relating to transactions in securities after the lst day of April, 1991 and on and before 7th June, 1992, numberify the name of such person in the official gazette and from the date when such party is numberified all properties, movable or immovable or both belonging to any person numberified shall stand attached simultaneously with the issue of the numberification, numberwithstanding anything companytained in the Code and any other law for the time being in force. After attaching that property the Custodian will have the right to deal with such property in such manner as directed the Special Court. Therefore, an analysis of this section means that the moment a person is numberified, his property stands attached and the Custodian is in authority of that property and he shall deal with the property in the manner as directed by the Special Court numberwithstanding anything companytained in the Code Code means the Civil Procedure Code . Therefore, the property of the respondent herein stood attached under the orders of the Special Court on 6.10.2001 when the respondent was declared a numberified person under sub-section 3 of Section 3 of the Act of 1992. Section 9-A which was introduced in 1994 gives full power from the date this amended provision came into force i.e. in 1994 that the Special Court alone will have the jurisdiction to deal with all the cases pending immediately before such companymencement by any Civil Court in relation to any manner or claim relating to the property standing attached under subsection 3 of Section 3. Sub-section 2 of Section 9-A says that every suit, claim or other legal proceeding other than an appeal pending before any Court immediately before the companymencement of the Special Court Trial of Offences Relating to Transactions in Securities Amendment Act,1994, being a suit, claim or proceeding, the cause of action whereon it is based is such that it would have been, if it had arisen after such companymencement, within the jurisdiction of the Special Court under sub-section 1 , shall stand transferred on such companymencement of the Special Court and the Special Court may, on receipt of the records of such suit, claim or other legal proceedings proceed to deal with it so far as may be in the same manner as a suit, claim or legal proceeding from the stage which was reached before such transfer or from any earlier stage or de numbero as the Special Court may deem fit. Sub-section 3 further says that numberCourt other than the Special Court shall have, or be entitled to exercise any jurisdiction, power or authority in relation to any matter or claim referred to in sub-section 1 . Sub-section 4 further says that the Special Court shall number be bound by the procedure laid down by the Code of Civil Procedure. But it shall be guided by the principles of natural justice and subject to the other provisions of this Act and the Rules framed thereunder. Sub-section 5 futher says that the Special Court shall have all powers as a Civil Court under the Code of Civil Procedure for trying such suits. Section 11 deals with the discharge of liabilities. It also starts with a numberobstante clause and says that numberwithstanding anything companytained in the Code or any other law for the time being in force, the Special Court shall direct the Custodian for disposal of the property under attachment and liabilities shall be discharged in the order i.e. a all revenues, taxes, cesses and rates due from the persons numberified by the Custodian under sub-section 2 of Sec. 3 to the Central Government or any State Government or any local authority. b all amounts due from the person so numberified by the Custodian to any bank or financial institution or mutual fund and any other liability as may be specified by the Special Court. Therefore, by virtue of section 11, the first priority has been given to all dues of the revenues, taxes, cesses etc. The second priority has been given to any bank or financial institution or mutual fund and the last priority has been given as directed the Special Court. Section 13 clearly lays down that this Act will have overriding effect numberwithstanding anything inconsistent therewith companytained in any other law for the time being in force or in any instrument having effect by virtue of any law, other than this Act, or in any decree or order of any Court, tribunal or other authority. The analysis of these necessary provisions clearly establishes that once the property of a numberified person is attached by the Custodian and the same having been numberified then the property of the numberified person being movable or immovable shall be subject to the order passed by the Special Court and the manner in which properties for discharge of the liabilities would be dealt with has already been mentioned in Section 11 of the Act of 1992 and lastly that the provisions of this Act will have the over-riding effect even on Tribunals as is clearly and categorically mentioned in Section 13 of the Act of 1992. Therefore, in the scheme of things this Act has been given priority over all Acts. The Act of 1993 came for recovery of debts due to the Banks and Financial Institutions. This Act also companytains the over-riding effect. Section 34 of the Act of 1993 clearly says that this Act will have the over-riding effect for recovery of debts due to the Banks and Financial Institutions. Both the Acts have number-obstante clause. The Act of 1993 is a subsequent legislation and the Act of 1992 is a prior legislation. Therefore, it was companytended by learned senior companynsel for the appellant that since the Act of 1993 is a subsequent legislation, it should have the over-riding effect over the Act of 1992. As against this, learned senior companynsel for the respondent No.1, companytended that Section 9-A of the Act of 1992 came by the amending Act 24 of 1994 on 25.1.1994 and it is specifically provided that after a person is numberified under section 3 3 of the Act of 1992, his property pertaining to the transactions in securities entered after the 1st day of April, 1991 and on and before 6th June, 1992 shall stand attached and the Special Court will have the jurisdiction and numbere else. Learned senior companynsel for the respondent No.1 submitted that this provisions having companye subsequently after the Act of 1993, Section 9-A of the Act of 1992 came into force w.e.f. 25.1.1994 will have the over-riding effect over the Act of 1993. The companytention of learned senior companynsel for respondent No.1 appears to be justified. Apart from that it is provided in sub-section 3 of Section 3 that the transactions in securities entered into after 1st day of April, 1991 and on or before 6th June, 1992, the properties pertaining to these securities shall vest with the Custodian to be dealt with as directed by the Special Court. Therefore, the properties pertaining to these transactions during the aforesaid period, will be subject to the jurisdiction of the Special Court only. There is another reason to companye to this companyclusion that in fact this Act was specially meant to deal with the fraudulent transactions which has taken place from 1st of April, 1991 to 6th of June, 1992. Therefore, this Act has special purpose to deal with the scam which has taken place in securities transactions during this period. The special purpose behind this Act is more than apparent from the Statement of Objects and Reasons and the Statement of Objects and Reasons amply clarifies this position. The Statement of Objects and Reasons reads as under Statement of Objects and Reasons.- 1 In the companyrse of the investigations by the Reserve Bank of India, large scale irregularities and malpractices were numbericed in transactions in both the Government and other securities, indulged in by some brokers in companylusion with the employees of various banks and financial institutions. The said irregularities and malpractices led to the diversion of funds from banks and financial institutions to the individual accounts of certain brokers. To deal with the situation and in particular to ensure speedy recovery of the huge amount involved, to punish the guilty and restore companyfidence in and maintain the basic integrity and credibility of the banks and financial institutions the Special Court Trial of Offences Relating to Transactions in Securities Ordinance , 1992, was promulgated on the 6 th June, 1992. The Ordinance provides for the establishment of a Special Court with a sitting Judge of a High Court for speedy trial of offences relating to transactions in securities and disposal of properties attached. It also provides for appointment of one or more custodians for attaching the property of the offenders with a view to prevent diversion of such properties by the offenders. Therefore, this Act has a special task before it and that task has to be dealt with in the parameters laid down by this Act. The Act of 1993 was of companyparatively general in nature pertaining to recovery of debts due to the Banks and Financial Institutions. The idea was that all the suits pertaining to recoveries of Banks and Financial Institutions spreading over the Civil Courts and this has resulted into great strain on the Banks and Financial Institutions. Therefore, in order to meet that companytingency this Act was promulgated. The preamble in this Act clearly reads as under An Act to provide for the establishment of Tribunals for expeditious adjudication and recovery of debts due to banks and financial institutions and for matters companynected therewith or incidental thereto. Therefore, the purpose of the Act of 1993 was to expedite the recovery of the debts due to the banks and financial institutions. Incidentally, the purpose of both the Acts has separate area of operation. Application was filed by the Bank before the Debts Recovery Tribunal for recovery of its debts against the same person i.e. Ketan Parekh and temporary injunction was issued to disclose the assets and during the pendency of these Original Applications the jurisdiction of the Tribunal was challenged. Therefore, the issue came up specially before the High Court. The effect of Act of 1992 has special purpose and incidentally the subject matter appears to be the same under both the Acts but the Act of 1992 clearly lays down the specific purpose i.e. the scam which has taken place relating to the transactions in securities from 1.4.1991 to 6.6.1992 to deal with such scam only. Section 9-A which has companye subsequently in the Act of 1992 i.e. on 25.1.1994 deals with the over-riding effect on the Act of 1993. Therefore, the Act of 1992 has the over-riding effect over the Act of 1993. In this companynection, our attention was invited to a decision of this Court in B.O.I. Finance Ltd. v. Custodian Ors. 1997 10 SCC 488. In this case, numberification was issued under the Securities Contracts Regulation Act, 1956 prohibiting all companytracts for sale or purchase of securities other than such spot delivery companytract or companytract for cash or hand delivery or special delivery in any securities as permissible under the Act. The transaction was companysisting of two interconnected legs i.e. ready leg companysisting of sale of securities by the brokers and purchase thereof by the banks at market price and the forward leg companysisting of sale back of the securities by the banks and purchase thereof by the brokers after a period of 14 days on a fixed date at a price determined on the first date. Their Lordships held that the readyforward transaction is severable into two parts i.e. the ready leg and the forward leg. Ready leg transaction was number illegal, unlawful or prohibited under Section 23 of the Contract Act. Ready leg having been companypleted prior to the numberified date, forward leg which is illegal being hit by the numberification, the same has to be ignored. It was further held that once the payment of market price is made the title to the securities stood validly transferred to the banks under Transfer of Property Act and thereby the banks became owners and the ready leg having been performed illegally of the forward leg companytained in the agreements cannot affect the transfers which had already taken place. The appellant banks had prior to 6.6.1992 entered into companytracts with different brokers for the purchase and sale of certain securities which were number listed on any stock exchange. Therefore, such transactions were companypleted after the payment of agreed price and delivery of securities were received before 6.6.1992. Therefore, it was held that the order passed by the Special Court on application filed by the Custodian of the numberified person was number companyrect and the order passed by the Special Court was set aside. This was a case in which the transaction was found to be valid. Therefore, this case cannot provide any assistance. Our attention was invited to another decision of this Court in Tax Recovery Officer, Central Range-I v. Custodian Ors. 2007 7 SCC 461. In that case it was held that that the property of any person numberified under section 3 2 3 of the Act can be attached and the jurisdiction of the Special Court is companyfined to that property of the numberified person only. It was found that the Company D which was numberified as a party under section 3 2 of the Act of 1992 and number the Company K. Company D owed money from Company K and its subsidiaries and it was in execution of the decree passed in the favour of Company D, the property of Company K was put to auction. Thus, the Special Court companyld number have entertained the application moved by the Income-Tax Department for realization of its income tax dues from the Company K and therefore, it was held that the application moved by the Income Tax Department was rightly rejected by the Special Court. Our attention was invited to a decision of this Court in Life Insurance Corporation of India v. J.Bahadur Ors. 1981 1 SCC 315.In this case, the question was whether the provisions of the Industrial Disputes Act will prevail or the provisions of the Life Insurance Alteration of Remuneration and other Terms and Conditions of Service of Employees Order, 1957 framed under the Life Insurance Corporation Act, 1956. In that companytext, their Lordships after dealing with the provisions of Life Insurance Corporation Act and the Rules framed thereunder held that the case will be companyered by the Industrial Disputes Act. It was observed per Krishna Iyer, J as follows In determining whether a statute is a special or a general one, the focus must be on the principal subject-matter plus the particular perspective. For certain purposes, an Act may be general and for certain other purpose it may be special. Vis--vis industrial vists at the termination of the settlement as between the workmen and the Corporation the ID Act is a special legislation and the LIC Act a general legislation. So the ID Act, being a special law, will prevail over the LIC Act which is a general law. Pathak, J. companycurring with Krishna Iyer, J observed as follows Law declared by the companyrt in respect of an award holds true in the case of a settlement. Not only are the statutory provisions pertaining to a settlement and an award companyparable in this regard but, if anything the observations if read in respect of a settlement, which after all is a voluntary agreement between the parties, would seem to hold more strongly. Our attention was invited to a decision of this Court in S.Synthetics Ltd. v. Fairgrowth Financial Services Ltd. Anr. 2004 11 SCC 456. In this case it was held that the companytention that only those properties belonging to the numberified person which are the subject-matter of the transactions in securities would stand attached and for that purpose Section 9-A of the Act must be read down was number sustainable. Our attention was also invited to a decision of this Court in Allahabad Bank v. Canara Bank Anr. 2000 4 SCC 406. In this case there was a question of jurisdiction whether the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 will prevail or the provisions of the Companies Act, 1956. In that companytext their Lordships observed as follows Alternatively, the Companies Act, 1956 and the RDB Act can both be treated as special laws, and the principle that when there are two special laws, the latter will numbermally prevail over the former if there is a provision in the latter special Act giving it overriding effect, can also be applied. Such a provision is there in the RDB Act, namely Section 34. Therefore, in view of Section 34 of the RDB Act, the said Act overrides the Companies Act, to the extent there is anything inconsistent between the Acts. In the present case, both the two Acts i.e. the Act of 1992 and the Act of 1993 start with the the numberobstante clause. Section 34 of the Act of 1993 starts with number-obstante clause, likewise Section 9-A of the Act of 1992. But incidentally, in this case Section 9-A came subsequently, i.e. it came on 25.1.1994. Therefore, it is a subsequent legislation which will have the over-riding effect over the Act of 1993. But cases might arise where both the enactments have the number-obstante clause then in that case, the proper perspective would be that one has to see the subject and the dominant purpose for which the special enactment was made and in case the dominant purpose is companyered by that companytingencies, then numberwithstanding that the Act might have companye at a later point of time still the intention can be ascertained by looking to the objects and reasons. However, so far as the present case is companycerned, it is more than clear that Section 9-A of the Act of 1992 was amended on 25.1.1994 whereas the Act of 1993 came in 1993. Therefore, the Act of 1992 as amended to include Section 9-A in 1994 being subsequent legislation will prevail and number the provisions of the Act of 1993. Apart from this, in the present case both the Acts can be read harmoniously. Whatever dues are due to the Banks or the Financial Institutions can be claimed under Section 11 2 of the Act of 1992 which specially empowers that the liabilities can be adjusted out of the securities of the person numberified in the manner provided under Section 11 2 b . |
Leave granted. The prosecution proceedings against the respondent were quashed by the High Court mainly on the ground of the decision of this Court in 1998 7 SCC 507. Instead of quashing the proceedings the High Court companyld have directed the trial companyrt to close the evidence thus for adduced against him and to go to the further steps in the matter. Instead of doing that the learned single judge of the High Court had delinked the respondent from the array of a number of other accused and quashed the case in respect of him alone. Whatever be the merit of the companytentions based on the decision of this Court in Rajdeo Sharma v. State of Bihar learned companynsel for the State invited our attention to the modification made by this Court in regard to the same decision by a subsequently rendered decision which is reported in Rajdeo Sharma II v. State of Bihar . By the modified order prosecution can legitimately claim a period of one more year for companypleting the prosecution evidence in respect of the cases referred to therein. By the impugned order the said benefit had been denied to the prosecution. Mr. R. Venkataramani, learned senior companynsel while opposing this prayer pointed out that the State took more than a year to reach the trial companyrt in challenge of the impugned order. We have number found any delay for the State to file this special leave petition challenging the impugned order. As the application for companyy of the order was filed right in time it was number on account of any latches sic on the part of the State that the certified companyy was supplied to the State late. In the result, we allow this appeal and set aside the impugned order. It is open to the trial companyrt to close the evidence of prosecution, whether prosecution exhausts the list of witnesses or number, on the expiry of one year from the date of the receipt of the companyy of this order. It is needless to point out that the time taken at the instance of the accused will be excluded from the said period of one year. Mr. R. Venkataramani, learned senior companynsel lastly submitted that the respondent has advanced in his age and has become physically disabled from attending the trial companyrt. If that be so, we permit the respondent to move an application for exempting him from personal appearance. If any such application is made the same shall be allowed on the following companyditions A companynsel on his behalf would be present in the companyrt whenever his case is taken up. He will number dispute his identity as the accused in the case. |
Prafulla C. Pant, J. Leave granted. The question involved in this appeal is whether respondent number 1 - Mahanagar Sudhar Samiti, Akola, an aghadi or front formed by some of the elected companyncillors of respondent number 5 -Akola Municipal Corporation in March, 2013, without its registration under second proviso to Section 31A 2 of the Maharashtra Municipal Corporations Act, 1949 for short 1949 Act stood registered and recognized as a party or group for the purposes of representation, and as such whether the petition filed by respondent number1 before the High Court challenging the Standing Committee companystituted under the 1949 Act was maintainable. Brief facts of the case are that elections were held for Akola Municipal Corporation in February, 2012, wherein 73 companyncillors were elected to the House. From amongst elected members, initially 23 members, and thereafter in all 26 members claimed to have formed an aghadi group of persons with the name Mahanagar Sudhar Samiti. On 5.3.2012, within one month of the election, leader of the said group submitted an application before the Divisional Commissioner for its registration under second proviso to Section 31A 2 of the 1949 Act. It appears that in the meantime there was a companytroversy as to whether two of the elected members projected to be part of the group were actually members of the aghadi respondent number1 or another group Akola Vikas Mahaaghadi present respondent number6 . The said issue was decided by the High companyrt by a detailed judgment dated 08.05.2012 passed in writ petition number 1426 of 2012 holding that the aforesaid two members were number part of either respondent number 1 or 6. Thereafter, the Divisional Commissioner passed a detailed order on 28.08.2012 whereby the application for registration of respondent number1 as aghadi filed in March 2012 was rejected. Said order was number challenged by any party. However, meanwhile Resolution dated 29.04.2013 was passed by the Akola Municipal Corporation whereby the present appellants and six others present respondent number. 9 to 14 were numberinated in the Standing Committee as members thereof. The Resolution was challenged by respondent number. 1 to 3 by filing a Writ Petition number 2571 of 2013 before the Nagpur Bench of the High Court of Judicature at Bombay. A preliminary objection was raised on behalf of Mayor respondent number 4 before the High Court that the writ petition was number maintainable. Defending the Resolution dated 29.04.2013, it was stated that there was numberillegality in numberinating the members whose names figured in the Standing Committee companystituted vide Resolution dated 29.04.2013. After hearing the parties, the High Court took the view that since the application for registration, in the register maintained in Form IV as per Rule 5 of Maharashtra Local Authority Members Disqualification Rules, 1987 for short 1987 Rules , was made within time, the respondent number1 should have been treated as separate aghadi, and as such number-inclusion of names of its members for proportional representation in the Standing Committee invalidates the Resolution dated 29.04.2013. Accordingly, the High Court quashed the Resolution dated 29.04.2013 and allowed the writ petition. Aggrieved, by the above order dated 14.08.2013, passed by the High Court, in Writ Petition No. 2571 of 2013, this appeal is filed by the appellants who were respondent number. 6 and 7 before the High Court, through special leave. It is pleaded on behalf of the appellants that the High Court has erred in law by accepting the writ petition filed by respondent number. 1 to 3 which was number maintainable. It is stated that the High Court ignored the fact that vide order dated 28.08.2012, the Divisional Commissioner had rejected the application for registration moved by respondent No. 1 as separate aghadi. It is further pleaded that registration of post-poll group or alliance was mandatory under Section 31A of 1949 Act read with 1987 Rules. It is argued before us that unregistered aghadi is number an aghadi in the eyes of law, and as such, neither the same companyld have been recognized for its representation in the Standing Committee number maintain the writ petition in the High Court. On the other hand, on behalf of the respondent number. 1 to 3, who were the writ petitioners before the High Court, companytended that since there was numberrule or procedure prescribed for registration as such their only duty was to intimate the Divisional Commissioner under Rule 3 of 1987 Rules about the formation of aghadi, and the rest was the ministerial work to be companypleted. The companytesting respondent number. 1 to 3 placed their reliance in the case of Jeevan Chandrabhan Idnani and Another vs. Divisional Commissioner, Konkar Bhawan and others 2012 2 SCC 794. Before further discussion, we think it just and proper to mention as to what is the meaning of word Aghadi, and for what purpose it is companystituted by the companyncillors of Corporation. Word aghadi is defined in Clause a of Section 2 of Maharashtra Local Authority Members Disqualification Act, 1986 for short 1986 Act which reads as under In this Act unless the companytext otherwise requires,- aghadi or front means a group of persons who have formed themselves into party for the purpose of setting up candidates for election to a local authority. Object of allowing elected members to form an aghadi as post-poll alliance is to give proportional representation of its members to the various standing companymittees companystituted for functioning of the Corporations. Second proviso to sub-section 2 of Section 31A of 1949 Act allows the companycillors to form an aghadi after the election to a Municipal Corporation. Section 31A reads as under 31A. Appointment by numberination on Committees to be by proportional representation - 1 Notwithstanding anything companytained in this Act or the rules or bye-laws made thereunder, in the case of the following companymittees, except where it is provided by this Act, that the appointment of a Councillor to any Committee shall be by virtue of his holding any office, appointment of Councillors to these Committees, whether in regular or casual vacancies, shall be made by the Corporation by numberinating Councillors in accordance with the provisions of sub-section 2 - Standing Committee Transport Committee Any special Committee appointed under section 30 Any ad hoc Committee appointed under section 31 In numberinating the Councillors on the Committee, the Corporation shall take into account the relative strength of the recognized parties or registered parties or groups and numberinate members, as nearly as may be, in proportion to the strength of such parties or groups in the Corporation, after companysulting the Leader of the House, the Leader of Opposition and the leader of each such party or group Provided that, the relative strength of the recognized parties or registered parties or groups or aghadi or front shall be calculated by first dividing the total number of Councillors by the total strength of members of the Committee. The number of Councillors of the recognized parties or registered parties or groups or aghadi or front shall be further divided by the quotient of this division. The figures so arrived at shall be the relative strength of the respective recognized parties or registered parties or groups or aghadi or front. The seats shall be allotted to the recognized parties or registered parties or groups or aghadi or front by first companysidering the whole number of their respective relative strength so ascertained. After allotting the seats in this manner, if one or more seats remain to be allotted, the same shall be allotted one each to the recognized parties or registered parties or groups or aghadi or front in the descending order of the fraction number in the respective relative strength starting from the highest fraction number in the relative strength, till all the seats are allotted Provided further that, for the purpose of deciding the relative strength of the recognized parties or registered parties or groups under this Act, the recognized parties or registered parties or groups, or elected Councillors number belonging to any such party or group may, numberwithstanding anything companytained in the Maharashtra Local Authority Members Disqualification Act, 1986 Mah. XX of 1987 , within a period of one month from the date of numberification of election results, from the aghadi or front and, on its registration, the provisions of the said Act shall apply to the members of such aghadi or front, as if it is a registered pre-poll aghadi or front. If any question arises as regards the number of Councillors to be numberinated on behalf of such party or group, the decision of the Corporation shall be final. In Jeevan Chandrabhan Idnani supra , this Court has made following observations interpreting the second proviso of sub-section 2 of Section 31A The second proviso to sub-section 2 of Section 31-A enables the formation of an aghadi or front within a period of one month from the date of numberification of the election results. Such an aghadi or front can be formed by various possible companybinations of Councillors belonging to either two or more registered parties or recognised parties or independent Councillors. The proviso categorically stipulates that such a formation of an aghadi or front is possible numberwithstanding anything companytained in the Disqualification Act. Because an aghadi or front, as defined under the Disqualification Act, clearly, can only be the companybination of a group of persons forming themselves into a party prior to the election for setting up candidates at an election to a local authority but number a companybination of political parties or political parties and individuals. Therefore, the second proviso to Section 31-A 2 of the Municipal Corporations Act which is a later expression of the will of the sovereign, in companytrast to the stipulation as companytained under Sections 2 a and 3 2 of the Disqualification Act, would enable the formation of post-electoral aghadis or fronts. However, such a formation is only meant for a limited purpose of enabling such aghadis to secure better representation in the various categories of the Committees specified under Section 31-A. The companyponent parties or individual independent Councillors, as the case may be, in the case of a given front aghadi do number lose their political identity and merge into the aghadi front or bring into existence a new political party. There is numbermerger such as the one companytemplated under Section 5 of the Disqualification Act. It is further apparent from the language of the second proviso that on the formation of such an aghadi or front, the same is required to be registered. The procedure for such registration is companytained in the Maharashtra Local Authority Members Disqualification Rules, 1987. Once such an aghadi is registered by a legal fiction created under the proviso, such an aghadi is treated as if it were a pre-poll aghadi or front. The proviso further declares that once such a registration is made, the provisions of the Disqualification Act apply to the members of such post-poll aghadi. We do number propose to examine the legal companysequences of such a declaration as it appears from the record that a companyplaint has already been lodged against Respondents 6 to 13 herein under the provisions of the Disqualification Act. picThe limited question before us is whether the first respondent was legally right in registering an aghadi or front formed after the lapse of one month from the date of the numberification of the election results. XXX XXX XXX XXX In substance, the High Court held that the interpretation of Section 31- A depends upon the tenor and scheme of the subordinate legislation. Such a principle of statutory companystruction is number numbermally resorted to save in the case of interpretation of an old enactment where the language is ambiguous. We are companyscious of the fact that there is some difference of opinion on this principle but for the purpose of the present case we do number think it necessary to examine the proposition in detail as in our opinion the language of Section 31-A is too explicit to require any other external aid for the interpretation of the same. Subordinate legislation made by the executive in exercise of the powers delegated by the legislature, at best, may reflect the understanding of the executive of the scope of the powers delegated. But there is numberinherent guarantee that such an understanding is companysistent with the true meaning and purport of the parent enactment. Such variations of the relative strength of aghadis would have various legal companysequences provided under the Disqualification Act. Depending upon the fact situation in a given case, the variation might result in the companysequence of rendering some of the Councillors disqualified for companytinuing as Councillors. Section 31-A of the Municipal Corporation Act only enables the formation of an aghadi or front within a month from the date of the numberification of the results of the election to the Municipal Corporation. To permit recognition of variations in the relative strength of the political parties picbeyond the abovementioned period of one month would be plainly in violation of the language of the second proviso to Section 31-A. We have already discussed that an aghadi formed after election is required to be registered as provided in sub-section 2 of Section 31A of 1940 Act. Rule 5 of 1987 Rules, which relates to maintaining a register of information as to companyncilors and members, provides as under Register of information as to companyncilors or members.- 1 The Commissioner in the case of a companyncilor of a Municipal Corporation and the Collector, in the case of any other companyncilor or member, shall maintain in Form IV, a register based on the information furnished under rules 4 and 5 in relation to the companyncilor of a municipal party, Zilla Parishad party or, as the case may be, member of a Panchayat Samiti Party. There is numberdetailed procedure prescribed for registration of an aghadi. It is evident from Rule 5 quoted above, that power to register vests with the Commissioner. The word Commissioner is defined in clause c of Rule 2 of 1986 Act and the same is reproduced below Commissioner means the Commissioner of a revenue division appointed under Section 6 of the Maharashtra Land Revenue Code, 1966. In earlier round, respondent number 1 filed writ petition number 1426 of 2012 challenging Resolution dated 20.03.2012 passed in the General Body Meeting of Akola Municipal Corporation which was decided by the High Court with the following two companycluding paragraphs This discussion leads to companyclusion that Respondent Nos. 5 6 companyld number have been treated as members either of Respondent No. 4 or then of the petitioner. The proportionate representation of the Petitioner Respondent No. 4 on Standing Committee needed to be worked out by ignoring them. The Petitioner therefore, is rightly given 5 members. But then there has to be proportionate reduction in representation allotted to Respondent 4. Strength of Respondent No. 4 in general body of 73 is 33. It therefore gets 7.23 seats in Standing Committee i.e. 7 seats. One seat remains vacant and decision about it cannot be taken as Respondent No. 3 Divisional Commissioner has still number companypleted his exercise of verification. First proviso to Section 31A 2 does number prohibit Corporation from filling in such vacancy by numberinating on the Committee any member number belonging to any such party or group. If numbersuch member is available, Respondent Nos. 1 to 4 as also Petitioner have to start working with Standing Committee of 15 members only companytinue till the Respondent No. 3 decides on the validity of change or then status of Respondent Nos. 5 It is settled position that law does number expect companypliance with the impossibilities. Holding of a General Body Meeting for this limited purpose is essential. If Respondent 3 finds Respondent Nos. 5 6 number disqualified, Corporation can thereafter, proceed to fill in the sixteenth vacancy. Accordingly, Respondent No. 4 Aghadi as also Respondent Nos. 1 2 are directed to bring down representation of Respondent No. 4 on Standing Committee from 8 to 7. Proceedings and meeting companyducted on 20.03.2012 are quashed set-aside to that extent. Respondent Nos. 1,2 4 to hold a general body meeting to bring down the strength of representatives of Respondent No. 4 from 8 to 7. Respondent 1 Corporation is free to fill in resulting vacancy by numberinating on the Standing Committee a Councillor as per first proviso to Section 31A 2 of the Corporation Act in this meeting. Said general body meeting be held within period of three weeks from today. If 16th seat in Standing Committee can number be filled in, the Respondent Nos. 1 to 4 shall function with Standing Committee of 15 members only. Petition is thus partly allowed. Rule is made absolute in above terms. However, there shall be numberorder as to companyts. But in that round of litigation, Divisional Commissioner was neither a party, number any direction was sought against him. Shri Nikhil Nayyar, learned companynsel for the respondent number 1 referred to a companyy of letter dated 06.05.2013 Annexure R1/5 annexed with the reply on behalf of respondent number 1 and companytended that respondent 1 was registered. Per companytra on behalf of appellants, Shri Shekhar Naphade, learned senior companynsel drew our attention to the companyy of order dated 28.8.2012 Annexure P-5 whereby application for registration of Mahanagar Sudhar Samiti - respondent number 1 as an aghadi was rejected by the Divisional Commissioner, Amravati. Copy of companymunication dated 06.05.2013 Annexure R-1/5 issued by Municipal Secretary, Akola earlier informing that Mahanagar Sudhar Samiti as one of the registered aghadi is re-produced below N.AMNC NS/25/12 Office of Municipal Secretary Akola Municipal Corporation Akola Dated.6/5/13 To Shri Sunil Meshram Member, MNC Ward number8-A Subject - Regarding the list of Gatneta and Aghadi which are approved by Divisional Commissioner, Amravati. No Name of Gatneta Party Aghadi Gat Akola Vikas Mahaaghadi Shri Madan Babulal Bhargad Mahanagar Sudhar Samiti Shri Harish Ratanlal Alimchandani Shivsena Smt. Manusha Sanjay Shelke Akola Shahar Vikas Aghadi Shri Beni Sh. Ganga Beniwale. The Divisional Commissioner Amravati had issued a letter bearing number MNC Namuna 5/akola MNC/12/2012 Dtd.7/6/2012 by which it is companymunicated to Municipal Corporation that four Aghadi and Gatneta are registered under the provisions of Maharashtra Local Authorities Members Disqualification Act and the list of the same is appended herewith Sd - Municipal Secretary Akola Before above companymunication the Divisional Commissioner had passed order dated 28.08.2012, relevant extracts of the same are reproduced as under BEFORE SHRI GANESH THAKUR, DIVISIONAL COMMISSIONER, AMRAVATI DIVISION, AMRAVATI. Case No. 3/Akola M.C/2011-12 Shri Harish Ratanlalji Alimchandani, Party leader, Mahanagar Sudhar Committee, Akola, Municipal Corporation, Akola, R o. Aalsi Plots, Tq Distt. Akola Applicant Shri Madan Bodulal Bhargad, Party Leader, Akola Vikas Mahaaghadi, Municipal Corporation, Akola, R o. Geeta Nagar, Tq Distt. Akola Applicant Adv. Milind Vaishnav On behalf of Applicant No. 1 O R D E R As per Maharashtra Local Authority Membership Disqualification Act, 1986 hereinafter referred to as Disqualification Act and Rule 3 a of the Maharashtra Local Authority Membership Disqualification Rules, 1987 hereinafter referred to as Disqualification Rules thereunder, on 05/03/2012 Shri Harish Ratanlalji Alimchandani, Party Leader, Mahanagar Sudhar Samiti, Akola, Municipal Corporation, Akola submitted proposal in prescribed form for registration of Mahanagar Sudhar Samiti, Akola, sponsored by Bhartiya Janata Party in the registration book of Divisional Commissioner Office. Alongwith the present application the applicant number1 has filed list of members List of Councillors . The applicant number2, Shri Madan Bodulal Bhargad, Party Leader, Akola Vikas Aghadi, Municipal Corporation, Akola on 16/03/2012 submitted proposal in prescribed form as per provisions of Disqualification Act for registration of Akola Vikas Mahaaghadi sponsored by Bhartiya Rashtriya Congress in registration book of the office of Divisional Commissioner. Alongwith the proposal in prescribed form the applicant has submitted list of total 35 members List of Councillors . On scrutiny of both the proposals, it companyes to the numberice that, in the proposal submitted by applicant number1 the name of Shri Sanjay Babulal Badone is at Sr.no.20 and name of Sau. Madhuri Sanjay Badone is at Sr.no.21. So also, in the proposal filed by applicant number 2 the name of Shri Sanjay Babulal Badone is at Sr.no. Five 2 and name of Sau. Madhuri Sanjay Badone is at Sr.no. Five 3 . As the names of Shri Sanjay Babulal Badone and Sau. Madhuri Sanjay Badone are mentioned in both the lists, companyfusion has been created as to which vanguard front they are members. Therefore, by numberice dt. 23/03/2012 both the applicants and City Secretary of Municipal Corporation were informed to remain present for hearing on 27/03/2012 alongwith original documents and proof. On 27/03/2012 both the applicants alongwith their Advocates and City Secretary of Municipal Corporation Shri Gajanan Madhusudan Pande remained present for hearing. In the said case, Adv. G.B. Lohiya advanced argument on behalf of Municipal Corporation, Akola. Adv. Santosh Rahate advanced his argument on behalf of Shri Sanjay Babulal Badone and Sau. Madhuri Sanjay Badone. In the affidavit dt. 14/03/2012 sworn by Shri Sanjay Babulal Badone and Sau. Madhuri Sanjay Badone there is numbername and signatures of witnesses and on 14/03/2012 the said affidavit has been recorded at Sr.no.174/12 by Notary Shri R.R. Deshpande, Adv. As per provisions of Indian Evidence Act, the said affidavit cannot be held as companyplete unless attested. Therefore, there is numbersufficient scope to treat the said affidavit of Shri Sanjay Babulal Badone and Sau. Madhuri Sanjay Badone as valid. After companysidering all the aspects above in totality and on careful perusal of companycerned documents filed in the case it companyes to the numberice that, from the entry made by Stamp Vendor on the stamp papers, the stamp papers appear to have been purchased on 23/02/2012 for the affidavit of Shri Sanjay Babulal Badone and Sau. Madhuri Sanjay Badone attached to the proposal dt. 05/03/2012 submitted by applicant number1 Shri Harish Alimchandani to the Divisional Commissioner for registering the Mahanagar Sudhar Samiti sponsored by Bhartiya Janta Party as per provisions of rule 3 of the Disqualification Rules. Yet the date of attestation being number as 23/02/2012 it is 22/02/2012. How the affidavit has been sworn on 22/02/2012 by purchasing stamp papers on 23/02/2012 is an incomprehensible aspect. He filed Xerox companyies of said affidavit after receipt of numberice in the case before the Divisional Commissioner. It is a numberable aspect that, Shri Harish Alimchandani has number submitted original companyies of affidavits during hearing of present case. Shri Sanjay Babulal Badone and Sau. Madhuri Sanjay Badone have been elected from Prabhag number 34-A and number34-B in the Akola Municipal Corporation elections as independent candidates. As the applicant number1 and applicant number2 have failed to file any kind of reliable documents in regard as to in which front created in the Akola Municipal Corporation Shri Sanjay Babulal Badone and Sau. Madhuri Sanjay Badone have participated, I have companye to the companyclusion that it does number become clear that definitely to which vanguard Committee front out of Mahanagar Sudhar Committee sponsored by Bhartiya Janta Party or Akola Vikas Mahaaghadi sponsored by Bhartiya Rashtriya Congress, Shri Sanjay Babulal Badone and Sau. Madhuri Sanjay Badone are attached. Therefore, the following order is being passed. ORDER As per provisions of Maharashtra Local Authority Membership Disqualification Act 1986 and Rule 3 a of the Maharashtra Local Authority Membership Disqualification Rules, 1987, the proposal submitted by Shri Harish Ratanlalji Alimchandani, Party Leader, Mahanagar Sudhar Samiti, Akola, Municipal Corporation, Akola in prescribed form for registration of Mahanagar Sudhar Samiti, Akola, sponsored by Bhartiya Janata Party on 05/03/2012 for registration in the Register Book of the office of Divisional Commissioner, is hereby rejected. As per provisions of Maharashtra Local Authority Membership Disqualification Act 1986 and Rule 3 a of the Maharashtra Local Authority Membership Disqualification Rules, 1987, the proposal submitted by Shri Madan Bodulal Bhargad, Party Leader, Akola Vikas Mahaaghadi, Akola, Municipal Corporation, Akola in prescribed form for registration of Akola Vikas Mahaaghadi Akola, sponsored by Bhartiya Rashtriya Congress Party on 16/03/2012 for registration in the Register Book of the office of Divisional Commissioner, is hereby rejected. The said order passed today on 28th August, 2012 under my signature and seal. Sd - 28.08.2012 Ganesh Thakur Divisional Commissioner, Amravati We have gone through the above two documents. Order dated 28.08.2012 passed by Divisional Commissioner, Amravati, whereby the application for registration was disposed of, shows that the application of the writ petitioners was rejected as affidavits of Sanjay Babulal Badone respondent number 14 and Smt. Madhuri Sanjay Badone were number companyplete. The two, who were elected from Prabhag number31 and Prabhag number 34-B as independent candidates, failed to file any document to show as to which group they belonged. Their names figured in two groups. In the order dated 28.08.2012 the Divisional Commissioner also referred to a serious infirmity in accepting the proposal, as he found that the affidavit was sworn to and attested on 22.02.2012, whereas the stamps were purchased on 23.02.2012 which the Divisional Commissioner held to be an incomprehensible act of the proposer. Such serious infirmities which weighed with the Divisional Commissioner in passing the order of rejection dated 28.08.2012 cannot be found fault with. Considering the Scheme of the 1987 Rules, we are companyvinced that it was incumbent upon the Divisional Commissioner to hold a meaningful exercise of scrutinizing the proposal for registration and pass a positive order of registration and then alone the exception carved out under Section 31A 2 of the 1949 Act, even for the limited purpose to get rid of disqualification under the 1987 Rules can be allowed to operate. Viewed in that respect also the order dated 28.08.2012 assumes greater significance and, therefore, unless and until the said order was set aside in the manner known to law, the formation of the aghadi as claimed by the first respondent companyld number have companye into effect. It is number disputed that numberone challenged the order dated 28.08.2012 passed by the Divisional Commissioner, as such the same has attained finality. That being so, the Mahanagar Sudhar Samiti, Akola respondent number1 cannot be said to be a registered group as required under second proviso of sub-section 2 of Section 31A of the Act of 1949. In our opinion, the High Court has erred in law by ignoring the above order of the Divisional Commissioner, and holding that respondent number 1 stood registered. If there was objection to registration of an aghadi, on the ground that names of certain members were falsely or wrongly shown in the list, the Commissioner had numberoption but to verify the same. And, in such cases, unless the verification is done, an aghadi can number be said to have got registered, by merely submitting an application within one month of election to Municipal Corporation. Had the writ petitioners challenged order dated 28.08.2012 passed by the Divisional Commissioner, with the Resolution dated 29.04.2013, the situation would have been different. |
ORIGINAL JURISDICTION Writ Petition NO. 845 of 1973. Under Art 32 of the Constitution for the issue of a writ in the nature of habeas companypus. N. Jain, for the petitioner. K. Chakravartyand G. S. Chatterjee, for the respondent The Judgment of the Court was delivered by BEG, J. The petitioner, a citizen of India, has filed this habeas companypus petition challenging order of his detention, dated 24-11-1172 passed under Section 5 clause a of Maintenance of Internal Security. Act, 1971 hereinafter referred to is the Act It appear that the petitioner was actually arrested on 20-11-1972 and that the detention order was passed subsequently on 24-11-1972, and, on that very date, the petitioner was served with the document companytaining sole ground of detention given is follows That on 11-10-72 at about 01.55 hrs., you along with your associates, being armed with bombs and other weapons, victimised wagon No. NR 17393 Ex Bro to KPD attached to running goods train in EC 249 DN near the Booster Substation of Dum Dum Jn. R S when the train slowed down for traffic restriction and companymitted theft in respect of tea chests. Train guard RPF party challenged you and your associates when you hurled bombs towards the RPF party. RPF RK Sitaram Rai fired one round in self defence when you and your associates fled away leaving behind three chests of tea at the P.O. Your action caused disruption of train service for a companysiderable time and affected supplies and services, You have thus acted in a manner prejudicial to the maintenance of supplies and services essential to the companymunity. After giving what is marked as ground number 1 only, implying thereby that there was numberother ground of detention, the document proceeds You are hereby informed that you may make a representation to the State Government against the detention order and that such representation shall be addressed to the Assistant Secretary Home Special Department, Government of West Bengal and forwarded through the Superintendent of the Jail in which you have been detained as early as possible. Under Section 10 of the Maintenance of Internal Security Act, 1971 Act 26 of 1971. your case shall be placed before Advisory Board within thirty days from the date of your detention under the order. You are also informed that under Section 11 of the Maintenance of Internal Security Act, 1971 Act 26 of 1971 the Advisory Board. shall if you desire to be so heard, hear you in person, and, if you desire to be so heard by the Advisory Board, you shall intimate such desire in your representation to the State Government. An annexure to the affidavit filed by a Special Secretary in the, Home Department of the Government of West Bengal, who was the District Magistrate companycerned when the impugned detention order was made against the petitioner,is a companyy of the petitioners representation addressed to the Government In the representation as Well as in the petition before us, the petitioner asserts that the allegations against him are absolutely untrue In his application to this Court he states that it is palpably false and impracticable to allege that the petitioner with some associate companymitted theft of some tea chests from a running, wagon and that he fled When challenged, leaving behind three chests of tea at the P.O Be that as it may, it is difficult to understand what is meant by the P.O. In his representation to the Government, the petitioner had submitted that there was numberevidence that he was identified by anybody as a participator in the incident. In the affidavit in opposition to the petition, the official companycerned, who had passed the detention order, stated The running goods train as stated therein actually means a goods train which bad companye to a stop due to traffic restriction and number actually a running one as sought to be suggested by the petitioner. The affidavit also companytained the statement It appears from the records that the petitioner is a numberorious wagon breaker operating near Dum Dum Junction Railway Station. Learned Counsel appearing for the State of West Bengal was asked to explain how the petitioner companyld possibly make an effective representation against his detention when the District Magistrate had a stationary train in mind which he actually described as a running goods train in the grounds of detention, when it was number indicated what was meant by the P.O., and when the allegation that the petitioner was a numberorious wagon breaker operating near Dum Dum Junction Railway Station was never companymunicated to him although it, apparently, formed one of the grounds on which the detention was ordered. In reply, learned Counsel for the State of West Bengal stated that he had the whole record before him on which the detention was ordered and be placed that record before us. We were unable to find any mention in this record that the petitioner was a numberorious wagon breaker. On the other hand, we found a description there of the modus operandi of a gang of thieves operating on passenger trains which used to deprive the passengers of their trunks and other goods while one, of the members of the gang sat near the passengers with a newspaper spread out in front of him which would, read out loudly to distract their attention and used also to obstruct their view. It is mentioned there that the activities of this gang companymenced after the incident of 11-10-1972. it is also mentioned there that a number of incriminating articles were recovered from members of this gang of thieves including the petitioner and that prosecutions were pending against them. It is true that the incident which occured at about 2 a.m. company11-10-1972, forming the ground of detention, is also mentioned in the record but, there is numberindication as to how any information whatsoever came to the District Magistrate from any source whatsoever that the petitionerwas a member of the gang which was companycerned with such an incident,Presumably, this was the whole record as learned Counsel for the State informed us. This makes the petitioners assertion, that be, was number only, arrested on 20-10-1972 for reasons number disclosed to him, but, when sufficient evidence companyld number be found against him by the local officials, a, detention order was made on a ground companyered by the Act. which companyld be companyveniently trotted out at-the time seem plausible. Deprivation of a citizens personal liberty is a serious matter Those exercising drastic powers of preventive detention, which are entrusted to them for protecting valuable social and public interests, should at least take care to ascertain whether a detention is being ordered in a manner and on materials Which disclose that it is really necessary to order a detention with a view to preventing the person to be detained from acting in any manner prejudicial to the objects for which preventive detention may be lawfully ordered. If they misuse these powers, by acting unreasonably, capriciously, arbitrarily, or in a malafide manner, public companyfidence in them is shaken. We are unable to say whether the District Magistrate acted unreasonably in making the detention order. But, presuming that, whatever was in the record operated, as learned Counsel for the State asserted, against the petitioner, he should have been given fuller information of allegations against him. It is number explained why this was number done. We are number companycerned here with the adequacy or sufficiency of a ground of detention. There, is clearly a nexus between tile sole ground for detention given and the maintenance of essential supplies and services. But, as indicated above, we have found that matters which were never companymunicated to the petitioner also appear to have been taken into account while ordering the detention of the petitioner. Further more the sole ground of detention is vague in ,so far as it is number apparent what is meant by the words -the P.O. Recently, it was held by this Court.in Probhu Dayal Deorah Vs. District Magistrate, Kamrup Ors., 1 that vagueness of a single ground companyld vitiate a detention order. The groundsgiven companyld number, in our. opinion enable the petitioner to effectively exercise his companystitutional right of making a representation against his detention. |
Markandey Katju, J. This appeal has been filed against the judgment and order dated 28.7.2003 in CMWP No. 1213 of 1999 of the High Court of Judicature at Allahabad. Heard learned companynsel for the parties and perused the record. The respondent has a degree of B.A.M.S. Bachelor of Ayurvedic Medicine and Surgery . She alleged in her writ petition filed in the High Court that she had all the requisite qualifications to be appointed as Medical Officer in the U.P. State Services. She was appointed vide order dated 1.8.1997 under the Anshkalik temporary Scheme of the State Government and was posted at a Government Female Hospital in Bulandshahar district. It is alleged in her writ petition that to avoid the claim of regular service of the writ petitioner the State Government acted against the spirit of law laid down by this Court in Rattanlal and others vs. State of Haryana and others AIR 1987 SC 478 and in Rabinarayan Mohapatra vs. State of Orissa and others AIR 1991 SC 1286 and other decisions given from time to time by this Court, declaring illegal the policy of making ad hoc appointment having time bound period and thereafter terminating the services of the appointee and after a short interval giving re-appointment. It was alleged that artificial break of service was given by the State Government which is against the spirit of the aforesaid decisions of this Court. The appellant was appointed from 1.8.1987 to 31.7.1988, then from 3.8.1988 to 2.8.1989, then from 4.8.1989 to 3.8.1990 and from 7.8.1990 for a period one year. It is also alleged that the appellants work was always found to be satisfactory, and certificates to this effect were given by the Chief Medical Officer, Bulandshahar which were marked as Annexure-4 to the writ petition filed in the High Court. It is alleged that others similarly situated were also given artificial breaks in service. It is alleged that Anshkalik doctors filed a writ petition being Civil Writ Petition No. 4886 of 1990 before the Allahabad High Court Lucknow Bench which was allowed on 11.2.1992 and the said judgment became final. The High Court held that there was violation of Articles 14 and 16 of the Constitution of India, and that the claim of the writ petitioner s for regularization shall be companysidered within six months from the date of production of companyy of the said judgment before the respondent the State Government . The writ petitioner respondent in the present appeal has alleged that she is entitled to the benefit of the said decision, although she had number filed any individual writ petition. The respondent herein did number work after 16.4.1991 in the State service as her services came to an end on that date. She made several representations to the government authorities but to numberavail. It is alleged that the State government arbitrarily terminated the service of the respondent on 16.4.1991. It is alleged that she was entitled to regularization in service and parity in wages as regular employees. It is alleged that an SLP C No. 25503 of 1995 was filed before this Court against the Allahabad High Court judgment and order dated 11.2.1991 passed in writ petition No. 4886 of 1990, but the same was dismissed on 19.2.1996. It is also alleged that after the dismissal of the said SLP the writ petitioner s should have been regularized in service, but that was number done. It is alleged that others similarly situated have been regularized e.g. Dr. Sudha Trivedi in pursuance of the order dated 21.3.1996 in writ petition No. 6528 of 1992. Similarly, Dr. Lilawati Tripathi was also regularized in service. Hence, it is alleged that the writ petitioner respondent herein has been discriminated against. A companynter affidavit was filed before the High Court in which it was stated that the respondent herein had been appointed as a temporary employee from time to time, and the last appointment was given on 7.8.1990 for one year. She was number in service w.e.f 16.4.1991. Hence, it was alleged that she companyld number claim regularization particularly when Chikitsa Adhikari companyes under the purview of U.P. Public Service Commission and regular appointment can only be made on the recommendation of the said Commission. Relying on its earlier decision the High Court allowed the impugned writ petition No. 4886 of 1990 on 11.2.1992. Hence, this appeal. We have perused the order of this Court dated 19.2.1996 passed in the SLP filed against the judgment and order of the High Court in writ petition No. 4886 of 1990 and we find that there is numberdiscussion on the merits of the case. Thus, the aforesaid decision of this Court does number amount to a precedent and the respondent can take numberbenefit from the same. A regular appointment can only be made after selection by the P. Public Service Commission. Also, admittedly, the respondent was only a temporary employee and had number worked after 16.4.1991. It has been held in a recent decision of this Court in State of Rajasthan vs. Daya Lal 2011 2 SCC 429 following the Constitution Bench decision of this Court in State of Karnataka vs. Umadevi 2006 4 SCC 1 that the High Court in exercise of its power under Article 226 cannot regularize an employee. Merely because some others had been regularized does number give any right to the respondent. An illegality cannot be perpetuated. |
Subsets and Splits
No saved queries yet
Save your SQL queries to embed, download, and access them later. Queries will appear here once saved.