Appeals Nos. 169 171 of 1955.

Appeals from the judgment and order dated July 10, 1953, of the Madras High Court in Writ Petitions Nos. 75, 87 and 135 of 1953.

R. Ganapathy Iyer and Shanmugavel, for the appellants.

V. K. T. Chari, Advocate General for the State of Madras, V. V. Raghavan and R. H. Dhebar, for the respondents.

93 H. N. Sanyal, Additional Solicitor General of India and R. H. Dhebar, for Intervener No. 1 T. M. Sen, for Interveners Nos. 2 and 3.

section B. Sen, Additional Government Advocate for the State of Madhya Pradesh and I. N. Shroff, for Intervener No. 4. 1958.

October 6.

The Judgment of the Court was delivered by SUBBA RAO J.

These three appeals by certificate granted by the High Court are directed against the common order of the High Court of Judicature at Madras, dated July 10, 1953, dismissing three writ petitions filed by the appellants impugning the validity of the provisions of the Madras Commercial Crops Markets Act (Mad XX of 1933), hereinafter referred to as the Act, and the Rules framed thereunder, and certain notifications issued by the first respondent herein in pursuance thereof.

The Act was passed to provide for the better regulation of the buying and selling of commercial crops in the State of Madras and for that purpose to establish markets and make Rules for their proper administration.

On May 18, 1951, the State Government issued G. 0.

No. 1049 (Food & Agriculture Department) extending the provisions of the Act to Ramanathapuram and Tirunelveli Districts in respect of cotton and groundnuts.

On February 25, 1952, the State Government issued G. 0.

No. 251 (Food & Agriculture Department) ordering the constitution of a Market Committee at Koilpatti and Sankarankoil in Tirunelveli District.

By a similar G. O., viz., G. 0.

No. 356 (Food & Agriculture Department) dated March 8,1952, the Government directed the constitution of a Market Committee at Virudhunagar and markets at (1) Virudhunagar; (2) Rajapalayan and (3) Sattur in Ramanathapuram District.

The Market Committees.

were duly constituted, and, on January 9, 1953, the Market Committee at Virudhunagar issued a notice stating that the Act and the Rules had come into force in Ramanathapuram District on January 1, 1953, and requiring persons who did business in cotton 94 and groundnut to take out licences as provided therein.

A further notice dated January 17, 1953, stated that all the traders in cotton and groundnut, who failed to take out licences on or before February 15, 1953, were liable to prosecution.

Similar notices dated January 22, 1953, and February 14, 1953, were issued by the Chairman, Tirunelveli Market Committee at Koilpatti calling upon all traders, producers and weighmen dealing in cotton to take out licences before February 28, 1953, and threatening prosecution for failure to comply therewith.

The appellants in the above three appeals and others filed writ petitions in the High Court of Madras against (1) the State of Madras; (2) the Collectors of the concerned Districts and (3) the Chairmen of the Market Committees, for the issue of a Writ of Mandamus directing the respondents to forbear from enforcing any or all the provisions of the Act as amended and the Rules and Bylaws framed thereunder.

A Bench of the Madras High Court, consisting of Rajamanna C. J. and Venkatarama Aiyar J. by an order dated July 10, 1953, dismissed the applications.

The learned Judges held that section 5(4)(a) of the Act was void to the extent it conferred on the Collector authority to refuse a licence at his own discretion and rule 37 was void in so far as it prohibited persons whose names had not yet been registered as buyers and sellers, from carrying on business in the notified area.

Subject to that, the impugned Act and the Rules were upheld under article 19(6) of the Constitution as a valid piece of marketing legislation.

In the result, the applications were dismissed.

The aforesaid three appellants have filed these appeals against the order of the High Court in so far as it dismissed their applications.

Learned counsel for the appellants contends that the provisions of the Act and the Rules framed thereunder constitute an unreasonable restriction upon the appellants ' fundamental right to do business and that they not only do not achieve the object for which they are enacted but defeat their purpose.

Elaborating this argument, he took us through some of the provisions 95 of the Act and the Rules made thereunder in an attempt to establish that the provisions cripple the business of the appellants, restrict the rights of the small traders, cause unnecessary and unintentional hardship to the growers and thereby exceed the purpose of the enactment and defeat its object.

Before we scrutinize the provisions of the Act, the law on the subject may be briefly noticed.

Under article 19 (1)(g) of the Constitution of India all persons have the right to practice any profession, or to carry on any occupation, trade or business.

Clause (6) of that Article enables the State to make any law imposing in the interest of general public reasonable restrictions on the exercise of the right conferred by sub cl.

(g) of el.

It has been held that in order to be reasonable, a restriction must have a rational relation to the object which the legislature seeks to achieve and must not go in excees of that object (See Chintaman Rao vs The State of Madhya Pradesh) (1).

The mode of approach to ascertain the reasonableness of a restriction has been succinctly stated by Patanjali Sastry C. J., in State of Madras vs V. G. ROW (2) thus: It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard, or general pattern, of reasonableness can be laid down as applicable to all cases.

The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict.

" Bearing the aforesaid principles in mind, we shall ascertain the object of the Act, from the circumstances under which it was passed, and its provisions, and see whether the provisions have any reasonable relation to the object which the legislature seeks to achieve.

There is a historical background for this Act.

Marketing legislation is now a well settled feature of (1) ; (2) ; , 607. 96 all commercial countries.

The object of such legislation is to protect the producers of commercial crops from being exploited by the middlemen and profiteers and to enable them to secure a fair return for their produce.

In Madras State, as in other parts of the country, various Commissions and Committees have been appointed to investigate the problem, to suggest ways and means of providing a fair deal to the growers of crops, particularly commercial crops, and find a market for selling their produce at proper rates.

Several Committees, in their reports, considered this question and suggested that a satisfactory system of agricultural marketing should be introduced to achieve the object of helping the agriculturists to secure a proper return for the produce grown by them.

The Royal Commission on Agriculture in India appointed in 1928, observed: "That cultivator suffers from many handicaps: to begin with he is illiterate and in general ignorant of prevailing prices in the markets, especially in regard to commercial crops.

The most hopeful solution of the cultivator 's marketing difficulties seems to lie in the improvement of communications and the establishment of regulated markets and we recommend for the consideration of other Provinces the establishment of regulated markets on the Berar system as modified by the Bombay legislation.

The establishment of regulated markets must form an essential part of any ordered plan of agricultural development in this country.

The Bombay Act is, however, definitely limited to cotton markets and the bulk of the transactions in Berar market is also in that crop.

We consider that the system can conveniently be extended to other crops and, with a view to avoiding difficulties, would suggest that regulated markets should only be established under Provincial legislation.

" The Royal Commission further pointed out in its report: " The keynote to the system of marketing agricultural produce in the State is the predominant part played by middlemen.

" It is the cultivator 's chronic shortage of money 97 that has allowed the intermediary to achieve the prominent position he now occupies.

" The necessity for marketing legislation was stressed by other bodies also like the Indian Central Banking enquiry Committee, the All India Rural Credit and Survey Committee, etc.

Recently the Government of Madras appointed an expert Committee to review the Act.

In its report the Committee graphically described the difficulties of the cultivators and their dependence upon the middlemen thus: " The middleman plays a prominent part in sale transactions and his terms and methods vary according to the nature of the crop and the status of the cultivator.

The rich ryot who is unencumbered by debt and who has comparatively large stocks to dispose of, brings his produce to the taluk or district centre and entrusts it to a commission agent for sale.

If it is not sold on the day on which it is brought, it is stored in the commission agent 's godown at the cultivators ' expense and as the latter generally cannot afford to wait about until the sale is effected he leaves his produce to be sold by the commission agent at the best possible price, and it is doubtful whether eventually he receives the best price.

The middle class ryot invariably disposes of his produce through the same agency but, unlike the rich ryot he is not free to choose his commission agent, because he generally takes advances from a particular commission agent on the condition that he will hand over his produce to him for sale.

Not only, therefore, he places himself in a position where he cannot dictate and insist on the sale being effected for the highest price but he loses by being compelled to pay heavy interest on the advance taken from the commission agent.

His relations with middlemen are more akin to those between a creditor and a debtor, than of a selling agent and producer.

In almost all cases of the poor ryots, the major portion of their produce finds its way into the hands of the village money lender and whatever remains is sold to petty traders who tour the villages and the price at which it changes hands is governed not so much by the 13 98 market rates, but by the urgent needs of the ryot which are generally taken advantage of by the purchaser.

The dominating position which the middleman occupies and his methods of sale and the terms of his dealings have long ago been realized.

" The aforesaid observations describe the pitiable 'dependence of the middle class and poor ryots on the middlemen and petty traders, with the result that the cultivators are not able to find markets for their produce wherein they can expect reasonable price for them.

With a view to provide satisfactory conditions for the growers of commercial crops to sell their produce on equal terms and at reasonable prices, the Act was passed on July 25, 1933.

The preamble introduces the Act with the recital that it is expedient to provide for the better regulation of the buying and selling of commercial crops in the Presidency of Madras and for that purpose to establish markets and make rules for their proper administration.

The Act, therefore, was the result of a long exploratory investigation by ex perts in the field, conceived and enacted to regulate the buying and selling of commercial crops by providing suitable and regulated markets by eliminating middlemen and bringing face to face the producer and the buyer so that they may meet on equal terms, thereby eradicating or at any rate reducing the scope for exploitation in dealings.

Such a statute cannot be said to create unreasonable restrictions on the citizens ' right to do business unless it is clearly established that the provisions are too drastic, unnecessarily harsh and overreach the scope of the object to achieve which it is enacted.

It is therefore necessary to scrutinize the provisions of the Act and the Rules made thereunder to ascertain whether the restrictions imposed are not reasonable.

The said provisions fall under two groups: the first group provides the machinery for controlling the trade in commercial crops and the second group of provisions imposes restrictions On the carrying on of the said trade.

Section 2(1 a) defines I commercial crop ' to mean cotton, groundnut or tobacco and includes any 99 other crop or product notified by the State Government in the Fort St. George Gazette as a commercial crop for the purposes of this Act.

Under section 3, the State Government issues a notification declaring their intention to exercise control over the purchase and sale of such commercial crop or crops in a particular area and calls for objections and suggestions to be made within a prescribed time.

After the objections are received, the State Government considers them and declares the areas to be specified in the notification or any portion thereof to be a notified area for the purpose of the Act in respect of commercial crop or crops specified in the notification.

Under section 4 A, the State Government has to establish a market committee for every notified area and it shall be the duty of the market committee to enforce the provisions of the Act.

Sections 6 to 10 provide for the constitution of Market Committees and section 16 for their supersession for the reasons mentioned therein.

In exercise of the powers conferred by section 18 of the Act the State Government made Rules which provide for the manner in which the members of Market Committees should be elected, and also for the constitution of sub Committees.

In exercise of the powers conferred by section 19 of the Act and also subject to the Madras Commercial Crops Markets Rules, 1948, the Committees for the various districts made, bye laws for regulating their meetings and for the discharge of their duties by the various subordinate bodies.

The said provisions which bring into existence a machinery for regulating the trade are not attacked by the learned counsel for the appellants.

Under the second group, there are provisions providing for matters which are succinctly stated in the 'Report of the Expert Committee on the review of the Madras Commercial Crops Markets Act, 1933 at p. 7 as under: "(1) A common place is provided for seller and buyer to meet and facilities are offered by way of space, buildings and storage accommodation.

(2) Market practices are regularized and Market 100 charges clearly defined and unwarranted ones prohibited.

(3) Correct weighment is ensured by licensed weighmen and all weights are checked and stamped.

(4) Payment on hand is ensured.

(5) Provision is made for settlement of disputes.

(6) Daily prevailing prices are made available to the grower and reliable market information provided regarding arrivals, stocks, prices, etc.

(7) Quality standards are fixed when necessary and contract forms standardized for purchase and sale.

" Section 5 says: 'No person shall, within a notified area, set up, establish or use, or continue or allow to be continued, any place for the purchase or sale of a notified commercial crop, except under and in accordance with the conditions of a licence granted to him by the Collector.

The first proviso to that section provides that after the establishment in such area of a market for the purchase and sale of a notified commercial crop, no licence for the purchase or sale of such commercial crop shall be granted or renewed in respect of any place situated within such distance of the market as may from time to time be fixed by the State Government.

The second proviso enables the Market Committee to exempt from the provisions of the above sub section any person who carries on the business of purchasing or selling any commercial crop in quantities not exceeding those prescribed by Rules made under the Act.

The third proviso authorizes the said Committee to exempt a person selling commercial crop which has been grown by him, or a cooperative society registered or deemed to be registered under the Madras Co operative Societies Act, 1932, selling a commercial crop which has been grown by any of its members, and also empowers it to withdraw the exemption.

Sub section (2) of section 5 gives exemption to a person purchasing for his private use a commercial crop in quantities not exceeding those prescribed by Rules made under the Act.

Sub section (3) prohibits any person within a notified area from setting up, 101 establishing or using, continuing or allowing to be continued, any place for the storage, weighment, pressing or processing of any notified commercial crop except under and in accordance with the conditions of a licence granted to him by the Collector.

Under proviso to sub section

(3) a person is exempted from the operation of that Rule in respect of any notified commercial crop grown by him.

Sub section (4) enables the Collector, on the report of the Market Committee and after such inquiry as he deems fit, to cancel or suspend any licence granted under the said section.

There are provisions providing for penalties for infringement of the statutory regulations and for referring disputes to compulsory arbitration.

The bye laws framed by the Committees prescribe graded scales of licence fees in respect of various licences required under the Act; these show that a trader has to take separate licences under section 5(1) and section 5(3).

The licence fee payable for additional premises is comparatively smaller than the amount payable for the main premises.

Licence fee is also fixed for brokers, weighmen, etc.

Rule 28(3) (iii) of the Rules states that it shall not be necessary for a poison to obtain more than one licence for setting up, establishing or continuing or allowing to be continued more than one place in the same notified area for the purchase, sale, storage, weighment, pressing or processing of the same commercial crop.

A combined reading Of the Rule and the bye laws shows that though different licences may have to be obtained under section 5(1) and section 5(3), one licence is sufficient for different places and only small payments have to be made for every additional premises for the same purpose.

It is not necessary to notice the other provisions as nothing turns upon them in the present ease.

Shortly stated, the Act, Rules and the Bye laws framed thereunder have a long term target of providing a net work of markets wherein facilities for correct weigbment are ensured, storage accommodation is provided, and equal powers of bargaining ensured, so that the growers may bring their commercial crops to the market and sell them at reasonable prices.

Till such markets are 102 established, the said provisions, by imposing licensing restrictions, enable the buyers and sellers to meet in licensed premises, ensure correct weighment, make available to them reliable market information and provide for them a simple machinery for settlement of disputes.

After the markets are built or opened by the marketing committees, within a reasonable radius from the market, as prescribed by the Rules, no licence is issued ; thereafter all growers will have to resort to the market for vending their goods.

The result of the implementation of the Act would be to eliminate, as far as possible, the middlemen and to give reasonable facilities for the growers of commercial crops to secure best prices for their commodities.

Learned counsel for the appellants contends that the restrictions imposed by the provisions of section 5 are not only unreasonable but tend to defeat the very purpose of the legislation.

Elaborating this argument, the learned counsel says that they are unreasonable from the standpoint of the big trader, the small trader and also the grower of crops.

The trader, his argument proceeds, can only buy or sell in the licensed premises paying heavy licensing fees under different beads and paying also heavy overhead charges, with the inevitable consequence that he will not be able to run his business with profit.

It is also said that he cannot go wherever he likes to buy the produce at cheap rates and can negotiate for or enter into contracts of sale only in the licensed premises, with the result that be has to pay higher prices to the sellers.

The first argument rather exaggerates the situation; for, the rates of licence fees shown in the bye laws framed by the Marketing Committee at Virudhunagar do not appear to be so high as to cripple the trader 's business.

No material has been placed before us to establish that the rates are so high and the burden is so unbearable that a trader, who is otherwise making profit, cannot carry on his business.

The second objection of the learned Counsel in itself affords a reasonable basis for the legislation ; for, what the learned counsel in effect says is that the trader is exploiting the small growers 103 and that he is prevented from doing so under the licensing regulations.

From the standpoint of the seller it is said that though he may be exempted from the operation of the said Act under the second proviso to section 5 (1) he is prevented from selling his produce by insisting that he should trade only with the licensed trader and in the licensed premises.

Assuming that that is the legal position under the Rules, nothing prevents the grower from selling his produce to another grower whose requirements are greater than what he produces or to a smaller trader exempted under the third proviso to section 5 (1).

After the market is established, it is contended, a grower will be obliged to carry the goods to a centralised place if he is to dispose of the goods, which can hardly be described as increasing the facilities for marketing the goods.

It is true that the growers may be under some difficulties in this regard, but that is counter balanced by the marketing facilities provided for them under the Act.

It is also said that when a market is established, no licence to purchase, or sell, commercial crops will be granted or renewed in respect of any place situated within such distance from the market as may from time to time be fixed by the State Government and that nothing under the Act prevents the Government from fixing a long distance as a prohibited area; with the result that a person, who is having a licence to trade ,in and about the place where the market is fixed, is deprived of his livelihood, which is an unreasonable restriction upon his right to do business.

But in our view, such a provision is necessary for preventing the local business being diverted to other places and the object of the scheme being defeated.

Further, ,in practice, it is seen that the Government fixes by notification under section 5 (1) a radius of five miles around the building and occasionally ten miles.

It is also not likely that it would fix a longer distance in the present circumstances, having regard to the inadequate facilities for transporting commodities.

That apart, the establishment of a market does not prevent a trader from carrying on the business in the market established, 104 but he could not run a market for himself in respect only of the commodities declared to be commercial crops within the radius prescribed.

While the object of the Act is to protect the growers, the argument proceeds, the small traders are compelled to resort to distant markets, with the result that some of them would be forced to give up their business and others would have to incur unnecessary expenditure which they could not afford.

The Act is an integrated one, and it regulates the buying and selling of commercial crops.

If the small traders are exempted, it creates loopholes in the scheme through which the big trader may operate, and thereby the object itself would be defeated.

That apart, the second proviso enables the Committee to exempt small traders in appropriate cases.

The constitution of the Committee, in which there will be representatives of the traders and the buyers, is a sufficient guarantee against the implementation of the provisions of the Act to the detriment of all concerned.

If a packed Committee abuses its powers, there is a further provision to enable the Government to supersede it.

We, therefore, hold that, having regard to the entire scheme of the Act, the impugned provisions of the Act constitute reasonable restrictions on a citizen 's right to do business, and therefore, they are valid.

The next contention of the learned counsel for the appellants is that the G. 0.

No. 356 dated 8 3 1952 directing the establishment of a market at Virudhunagar is an unreasonable restriction on the appellants ' right to do business, and is, therefore, invalid.

In Viradhunagar, there is already a well established market which provides facilities for the purchase and sale of cotton and other goods.

It is stated that the said market has been functioning for over fifty years, that it has been largely used by the merchants of the community, and that it contains stalls for effecting sales, godowns for stockina goods, halls, parks and other amenities.

Certain charges called I mahimai ' are collected on all transactions that take place within the market; and they are constituted into a trust fund which is utilised for the maintenance of schools 105 and for religious purposes.

The argument is that the appellants in C. A. No. 169 of 1955 are running the market as an occupation or business with high standards and that the notification directing the constitution of a market in the same locality, when admittedly the entire scheme of building a net work of markets could not be finished within a, predictable time, is not a reasonable restriction on their right to do business.

It is also said that the same advantages could be given to the growers by continuing the said market with suitable restrictions and controls as the market established by the Market Committee would conceivably provide for them, and in those circumstances, when two alternative methods would equally achieve the objects, the notification directing the constitution of a market to the exclusion of the existing one would be an unreasonable restriction.

The learned Advocate General of Madras contends that the appellants have really two fundamental rights: one is to carry on trade or business and the other is to hold their property, i.e., the market; that by reason of the notification they are not prevented from doing their business, for they can still do business in the market established subject to the regulations and also do business outside the prescribed area ; and that they are not prohibited from holding the market as property, for they could still utilise it for commodities other than the notified crops.

In respect of the contention that holding the market is only an incident of ownership of the property, reliance is placed upon the decisions in T. B. Ibrahim vs Regional Transport Authority, Tanjore (1); Ramunni Kurup vs The Panchayat Board, Badagara (2); Captain Ganpati Singhji vs The State of Ajmer (3) ; and Valia Raja of Edappally vs The Commissioner for Hindu Religious Charitable Endowments, Madras (4).

It is unnecessary to express an opinion on the question whether the right of the appellants falls under article 19(1)(f) or (g) of the Constitution of India, or under both the sub clauses; for, the (1) ; (3) ; (2) I.L R. (4) I.L.R. [1955] mad.

14 106 question whether the notification imposes an unreasonable restriction on the appellants ' right cannot be decided on the material placed before us.

That question may conveniently be left open to be decided at the time when the market is established at Virudhunagar, pursuant to the notification issued by the Government.

It does not appear from the record that there is any early prospect of such a market being established in that place.

The reasonableness of the restrictions would depend upon the circumstances obtaining at the time the market is established.

It depends upon the conditions then obtaining in the trade in commercial crops, the standards that will be maintained in the present market at that time, the comparative merits of the existing market and the market to be built up and other relevant considerations which cannot now be visualized.

We would, therefore, leave open that question to be decided at the proper time by the authorities concerned when a market is sought to be established in the manner provided by law.

The next argument relates to I mahimai ' allowances collected by the appellants from the sellers and buyers of the crops in the market.

The learned judges of the High Court held that the question relating to this allowance did not arise for decision at that stage, but having heard full arguments on the question, they expressed the view that 'mahimai ' could not be claimed as a trade allowance.

They concluded their discussion on the subject in the following words: " It has nothing to do with the transaction as such and is really a contribution levied at the time of the transaction for a purpose unconnected with it.

It cannot therefore be properly regarded as a trade allowance, and bye law 25(b) is perfectly valid.

" We cannot share the opinion of the learned judges that the question does not arise for decision at this stage.

The appellants prayed for issue of a writ of mandamus directing the respondents to forbear from enforcing any or all the provisions of the Act as amended and the Rules and bye laws framed thereunder by the Ramanathapuram Committee; and, the provisions of 107 the Act read with the bye laws prohibited the collection of 'mahimai ' by the appellants.

The question whether the bye law prohibiting the collection off I mahimai ' allowance is valid or not does directly arise for consideration in this case.

There is also some ambiguity in the conclusion arrived at by the learned judges of the High Court.

They stated that the allowance had nothing to do with the transaction as such and could not therefore be properly regarded as a trade allowance.

The learned counsel for the appellants contends that if it is not a trade allowance, it is not covered either by section 14 of the Act or by bye laws framed thereunder, as section 14 prohibits the deduction of trade allowance and does not operate upon any other payments made which are not trade allowances.

There is considerable force in this argument, but we think that the learned judges meant only that the said allowance is not an admissible or a permissible trade allowance prescribed by the bye law.

The question, therefore, is whether the allowance described as I mahimai ' is a trade allowance and if so, whether the allowance is permitted to be received by the rules or bye laws made under that section.

The relevant provisions may be noticed at this stage.

Section 14 says "No trade allowance, other than an allowance prescribed by rules or by laws made under this Act, shall be made or received in a notified area by any person in any transaction in respect of the commercial crop or crops concerned and no Civil Court shall, in any suit or proceeding arising out of any such transaction, have regard to any trade allowance not so prescribed.

Explanation:Every deduction other than deduction on account of deviation from sample, when the purchase is made by sample, or of deviation from standard, when the purchase is made by reference to a known standard, or on account of difference between the actual weight of the sacking and the standard weight, or on account of the admixture of foreign matter, shall be regarded as a trade allowance for the purposes of this Act ".

108 Section 19: " (1) Subject to any rules made by the State Government under section 18 and with the previous sanction of the Director of Agriculture, Madras, a market committee may in respect of the notified area for which it was established make bylaws for the regulation of the business and the conditions of trading therein.

" By law 25: Trade allowance applying to the market and the notified area: (a). . . . . . . . . " (b) Deductions such as I mahimai ' are prohibited.

The weight of alien substance such as mud and stone, if any, contained in the lint or kapas borahs or in the bags of groundnut pods or kernels shall be deducted.

" The gist of the aforesaid provisions may be stated thus: Trade allowance cannot be received in any notified area by any person in any transaction in respect of commercial crop or crops.

Every deduction in any transaction in respect of the said crop other than those specified in the explanation is trade allowance for the purpose of the Act.

A market committee generally may make bye laws for the regulation of the business and conditions of trading therein and particularly it can make bye laws prescribing what are permissible trade allowances under the section.

Such allowances as are prescribed by a bye law can be deducted in any transaction notwithstanding the fact that they are trade allowances.

The argument of the learned counsel is that that bye law is bad, because the market committee did not name the allowance or allowances taking them out of the pro hibition under section 14 which they are entitled to do under that section, but made the bye law mentioning the ' mahimai ' allowance as one not deductible in any transaction.

The validity of that part of the bye law prohibiting the deduction of ' mahimai ' as trade allowance depends upon the nature of that deduction.

If ' mahimai ' is not a trade allowance, the said part of the bye law would obviously be invalid as inconsistent with the provisions of section 14.

If, on the other hand, mahimai ' is a trade allowance, the said part of the 109 bye law will be superfluous, as the allowance falls within the terms of the section itself This leads us to the question whether ' mahimai ' is a trade allowance, within the meaning of section 14 of the Act.

What is a trade allowance? Trade involves exchange of commodities for money, the business of buying and selling and the transaction involves the seller, the buyer, the commodity sold and the price paid for the sale.

Allowance means something given as compensation, rebate or deduction.

Under the section, the said deduction should be in any transaction in respect of commercial crops.

The deduction may be out of the commodity or out of the price.

The recipient may be the seller, the buyer or a third party.

When A sells a quantity of cotton to B for a hundred rupees, B, the purchaser, may deduct one rupee from the sale price and pay ninety Dine rupees to A; he may keep that amount for himself or pay the same to C.

So too, A, the seller, may purport to sell one maund of cotton but in fact deduct a small part of it, retain that part for himself or give it to C; or both A and B may fix the price of the commodity purchased at Rs. 102 but the purchaser pays one rupee to C and the seller retains or pays one rupee to C; or it may be that payments have nothing to do with the price or the transaction, but both the parties pay C a specified amount as consideration for the user of the premises or for the services rendered by him.

The question whether a particular payment is a trade allowance or not, depends upon the facts of each case.

Firstly, it must be a deduction in any transaction in respect of commercial crops.

If it is a deduction out of the price or commodity agreed to be paid or transferred, it would be a trade allowance.

On the other hand, if the payment is de hors the terms of the transaction but made towards consideration for the use of the premises or services rendered, it would not be a deduction from the price or in any transaction.

No material has been placed before us to arrive at a definite finding in the present case whether 'mahimai ' is a deduction from the price or commodity within the meaning of section 14 of the Act.

The learned judges, having expressed the view that the 110 question did not arise for consideration at that stage, did not also consider any material to support their finding.

In the circumstances, the only reasonable course is to leave that question open so that it may be decided in appropriate proceedings.

In the result, subject to the aforesaid observations, the appeals are dismissed but without costs.

Appeals dismissed.

Summary: The Madras legislature enacted the Madras Commercial Crops Markets Act for providing satisfactory conditions for the growers of commercial crops to sell their produce on equal terms with the purchasers and at reasonable prices.

Summary: The Act, Rules and the Bye laws framed thereunder have a long term target of providing a net work of markets wherein facilities for correct weighment are ensured, storage accommodation is provided, and reliable market information is given.

Summary: Till such markets are established the Act provides for the imposition of licensing restrictions to enable the buyers and sellers to meet in licensed premises.

Summary: After the establishment of the markets no licenses would be issued within a reasonable radius from the markets and all growers will have to resort to the markets for selling their crops.

Summary: The result would be to eliminate, as far as possible, the middlemen and to give reasonable facilities for the growers of commercial crops to secure best prices for their commodities.

Summary: Held, that the impugned provisions of the Act impose reasonable restrictions on the citizen 's right to do business and are valid.

Summary: Such a statute cannot be said to create unreasonable restrictions on the citizen 's right to do business unless it is clearly established that the provisions are too drastic, unnecessarily harsh and over reach the object for which they were made.

Summary: Chintaman Rao vs The State of Madhya Pradesh, [1950] S.C.R. 759 and State of Madras vs V. G. Rao, ; , referred to.


minal Appeals Nos.

91 to 93 of 1954.

Appeals by Special Leave granted by Supreme Court on the 18th January, 1954 from the Judgment and Order dated the 18th June, 1953 of the High Court of Judicature at Hyderabad in Confirmation Case No. 376/6 of 1952 53 and Criminal Appeals Nos.394/6, 395/6 and 392/6 of 1952 53 arising out of the Judgment and Order dated the 2nd June, 1952 of the Court of the Sessions Judge at Bidar in Sessions Case No. 9/8 of 1951 52.

J. B. Dadachanji and Rajinder Narain, for the appellant.

(In Criminal Appeal No. 91 of 1954).

N. C. Chakravarty, for the appellants.

(In Criminal Appeals Nos. 92 and 93 of 1954).

P. A. Mehta and P. G. Gokhale, for the respondent.

December 3.

The Judgment of the Court was delivered by BOSE J.

Five persons including the three appellants, were prosecuted for the murder of one Ram chander Shelke.

Each was convicted and each was 1085 sentenced to death under section 302 of the Indian Penal Code.

The appeals and the confirmation proceedings in the High Court were heard by M. section Ali Khan and V. R. Deshpande, JJ.

They differed.

The former considered that the convictions should be maintained but was of opinion that the sentence in each case should be commuted to imprisonment for life.

The latter favoured an acquittal in all five cases.

The matter was accordingly referred to a third Judge, P. J. Reddy, J. He agreed with the first about the convictions and adjudged all five to be guilty under section 302.

On the question of sentence he considered that the death sentences on the three appellants, Pandurang, Tukia and Bhilia, should be maintained and that those of the other two should be commuted to transportation for life.

It seems that the opinion of the third Judge was accepted as the decision of the Court and so the sentences suggested by him were maintained as well as the convictions.

All five convicts then applied to the High Court for leave to appeal.

The petition was heard by Ali Khan and Reddy, JJ.

and they made the following order: "The circumstances of the crime in this case were such that a brutal murder had been committed and sentence of death was the only one legally possible for the Sessions Judge to have passed and it was confirmed by the High Court".

Leave to appeal was refused.

Pandurang, Tukia and Bhilia, who were sentenced to death, applied here for special leave to appeal.

Their petition was granted.

The other two have not appealed.

The prosecution case is this.

On 7 12 1950, about 3 o 'clock in the afternoon,, Ramchander Shelke (the deceased) went to his field known as "Bhavara" with his wife 's sister Rasika Bai (P.W.1) and his servant Subhana Rao (P.W.7).

Rasika Bai started to pick chillies in the field while Ramehander went to another field "Vaniya che seth" which is about a furlong away.

We gather that this field is near a river called 1086 Papana.

Anyway, Rasika Bai heard shouts from that direction, so she ran to the river bank with Subhana and they both say that they saw all five accused attacking Ramchander with axes and sticks.

Two other persons, Laxman (P.W.6) and Elba (P.W.5), who were in the neighbourhood, also heard the cries and ran to the spot.

They also say they witnessed the assault and name all five accused.

The former has a field near by and was working in it; the latter was a passer by.

Rasika Bai shouted out to the assailants not to beat Ramchander but they threatened her and then ran away.

Ramehander died on the spot almost immediately.

There are four eye witnesses, and the main question we have to consider is whether they can be believed.

Ordinarily, we would not have enquired into questions of fact but as three persons have been sentenced to death on the opinion of the third Judge, despite the opinion of one that the death sentence should not be imposed and of the other that the appellants are not guilty and so should be acquitted, we have deemed it advisable to examine the evidence.

Two of the eye witnesses were considered unreliable by Reddy, J. in the High Court, so we will omit them from consideration and concentrate on the other two, Rasika Bai (P.W.1) and Subhana (P.W.7).

Both give substantially the same version of what they saw of the assault.

They heard Ramehander 's cries from the direction of the river bank and rushed there.

They say they saw all five accused striking him, the three appellants Pandurang, Tukia and Bhilia with axes, the other two, who have not appealed, with sticks.

It is said that there is some discrepancy between Rasika Bai 's statement in the Sessions Court and in the Committal Court about the order in which the blows were given and their number.

Ali Khan, J. and Reddy, J. considered this unimportant and so do we.

The important thing is that both witnesses are agreed on the following points (1) that Tukia struck Ramchander on his cheek; 1087 Rasika Bai adds that he also struck him on the head; (2) that Pandurang hit him on the head; (3) that after these blows Ramchander fell down and then Bhilia hit him on the neck.

Subhana does not say that the other two struck any particular blow.

Rasika says that one of them, Nilia, hit Ramchander on the thigh with his stick and assigns no particular blow to the other.

Rasika Bai 's version is that on seeing the assault she called out to the accused not to hit but they " raised their axes and sticks" and threatened her, and then ran away.

Subbana merely says that they ran away.

After this all the accused absconded.

They were arrested on different dates and were committed to trial separately.

The dates of arrest and committal respectively in the case of each are as follows: Bhilia 9 1 1951 and 14 6 1951 Tukia 13 10 1951 and 10 1 1952 Pandurang 31 8 1951 and 10 1 1952 Tukaram 13 4 1951 and 29 9 1951 Nilia 13 10 1951 and 10 1 1952 The main attack on this evidence was directed to the fact that neither the accused nor the eye witnesses are named in the First Information Report.

According to the prosecution, the report was made in the following circumstances.

Rasika and Subbana say that after the assault they went back to the village and told Rasika 's sister Narsabai, P.W. 2 (the deceased 's widow) what they had seen.

Narsabai says that they disclosed the names of the assailants at that time.

From here we go to the Police Patel who lives in a neighbouring village one mile away.

He is Mahadappa (P.W. 9).

He says that he was standing outside his house in his own village when the sun was setting and saw Krishnabai, the mother in law of the deceased, crying as she passed by outside his house.

He asked her what was wrong and she told him that her sonin law had been killed.

On hearing this he wrote out 1088 a report, exhibit No. 4, and sent it to the Police Station at Udgir which is about six miles from the scene of the murder.

The First Information Report was recorded on the basis of this report at 10 o 'clock the next morning.

Now nobody tells us who carried the report to the Police Station.

It is written on a printed form and is signed by the Police Patel.

Opposite the column headed "Name and address of the complainant or informant" is entered "Tukaram s/o Panda Sheolka".

The Sub Inspector, who wrote out the first information report on the basis of this report, entered the following in it: "I am to submit that today a report dated 7 12 1950 from the Police Patel, Neemgaon village, has been received stating that (1) Tukaram, s/o Panda Sheolka, r/o Neemgaon village, came and stated that on 7 12 1950 Ramchander, s/o Govind Reddy was murdered, etc".

The Police Patel tells us that this Tukaram is a cousin of the deceased.

He also says that "Tukaram, whose name is entered in column No. 2, is not the informant but is the complainant in this case.

Tukaram had not given any written complaint to me.

He had not given oral information to me.

When I saw Krishnabai weeping and going, I did not know where Tukaram was.

I do not know whether Tukaram was present in the village on that day or not".

This does shroud the matter in mystery but the fact that the report was made is, we think, beyond dispute, also that it was made about 10 o 'clock the following morning.

It is to be noted that the SubInspector does not say that Tukaram brought the report to him but that exhibit 4 (the report received from the Police Patel) states that Tukaram gave the Police Patel the information.

In that he is not right (though the mistake is natural enough), because exhibit 4 merely places Tukaram 's name opposite the printed column headed "complainant or informant".

That leaves the matter equivocal but in view of what the Police Patel tells us, we think that he did mean to convey that 1089 Tukaram was the complainant, probably because he did not want to enter a woman 's name and so picked on the nearest male relative.

We see no reason to doubt his statement.

He says he did not know any names at that time; and that is evident from the report.

But what the learned counsel for the appellants says is that he saw Narsabai on the evening of the murder and as she did not give him any names it is evident that no one knew who the assailants were and that therefore the accusation made against the accused was a subsequent concoction and that it was for that reason that they waited till the next morning before reporting the matter to the police.

The Police Patel Mahadappa admits that he went to the scene of the occurrence the same night and that he stayed there the whole night.

He also admits that he saw Narsabai there but says he did not speak to her.

We have no doubt that he learned the names of the assailants when he went there but this was after he had sent his report.

There is some mystery about the report.

It did not reach the Police Station till 10 A.M. the next day though it was written about sunset the evening before, but as we do not know who took it and why he delayed it is idle to speculate.

What is certain is that there was no point in sending off a report without names the next morning if the idea of delay was to concoct a story and implicate innocent persons.

They would either have hit on the names by then or would have waited a little longer until they made up their minds about the story they intended to tell.

The haphazard way in which the report was written and dispatched indicates rustic simplicity rather than clever and well planned deceit.

It has to be remembered that the deceased left no male relatives except this cousin Tukaram, about whom the Police Patel speaks, and his father Pandu, and though cause for enmity between Ramchander and three of the appellants is disclosed, there is nothing to connect this Tukaram or his father Pandu with the quarrel; and no one suggests that anybody else bore them a grudge.

We think it unlikely that these three women, Rasikabai, Narsa 1090 bai and Krishnabai, would have been capable of concocting this elaborate story and of influencing the Police Patel to stay his hand till they bad thought of a suitable tale and found likely victims for their plot.

Moreover, the whole village probably turned out as soon as the news spread; in any case the witnesses are agreed that there was a large crowd there.

We think it would have been easy to find many persons to say that though they asked Rasikabai and Subhana and Narsabai and others present to tell them what had happened, nobody could because no one knew.

It would be ridiculous to suppose that the whole village bore the accused a grudge and joined in an elaborate conspiracy against them.

In the circumstances, we think Mahadappa told the truth.

The absence of the names in the report is therefore not of much consequence in this case especially as the names were disclosed in full at the time of the inquest.

All the witnesses who speak about this are agreed on that point.

Once that hurdle is surmounted, there is very little else to criticise in the evidence of Rasikabai and Subhana, bar unimportant discrepancies and the fact that they have made a few small and unimportant contradictions between their testimony in court and some of their numerous earlier statements.

There were three sets of committal proceedings, and of course the usual questioning by the police and then the proceedings in the Sessions Court, so it is not surpris ing, that these simple rustics should get confused and not remember in minute detail exactly what they had said from stage to stage.

But the major part of their story hangs together remarkably well despite the many attempts to trip them in cross examination in the various courts.

As Reddy, J. has dealt with these discrepancies in detail, we need not go over it all again.

The injuries shown in the Inquest Report and the postmortem report do not tally.

It is questionable how far an inquest report is admissible except under section 145 of the Indian Evidence Act but we do not regard the difference as of value so far as the appel 1091 lants are concerned; at best it could only have helped Tukaram and Nilia who have not appealed.

The Inquest Report shows eight injuries.

The first four are incised wounds and tally with the evidence given by the witnesses.

The remaiding four are described as "blue and black marks".

The postmortem mentions the first four but not the others.

The doctor was recalled by the High Court and be gives some sort of explanation about postmortem stains on the body which we do not think is satisfactory, but the utmost this shows is that no stick blows were found on the body and that we are prepared to accept.

On a careful consideration of the evidence we think Rasika and Subhana are telling the truth and that they can be relied on.

We will not rely on the other two witnesses.

We are prepared to disregard the evidence of Rasika and Subhana in so far as they say that Tukaram and Nilia also beat Ramchander because the medical evidence does not disclose any injuries which could have been caused by a stick or sticks.

As a matter of fact Subhana does not ascribe any particular blow either to Tukaram or to Nilia though he does describe in detail what the other three did.

All be says about Tukaram and Nilia is that"The accused present were striking Ramchander; Pandurang, Bhilia and Tukia were holding axes.

Tukaram and Nilia had sticks in their bands".

This sort of omnibus accusation is not of much value, and Rasikabai is not much better though she does say that Nilia bit Ramchander on the thigh.

Except for this, all she says is that "We saw the accused present striking Ramchander Shelke".

We think Rasika and Subhana are telling the truth when they say that these two accused were also there but we think that because of that they think they must have joined in the attack and so have added that detail to their story.

It is also possible that Nilia did hit out at Ramchander but that the blow did not land on his body.

In any case, they only 140 1092 had sticks in their hands which have not even been conceded the dignity of lathis.

So the part they played was negligible.

We have looked into their cases to this extent so that we can set them on one side in determining who was responsible for the remaining injuries and also because the part they played will be necessary in determining the extent of the common object or intention, if any.

The medical evidence shows that the injury that caused death was the one on the neck.

All the eyewitnesses are agreed that Bhilia was responsible for that.

We refer to the other eye witnesses here to show that there is no discrepancy on this point, but we only rely on Rasikabai and Subhana for determining the fact Bhilia was directly charged with the murder and the injury on the throat is ascribed to him in the charge.

His conviction cannot therefore be assailed on any of the technical points which arise in the case of the other two.

We uphold his conviction under section 302 of the Indian Penal Code.

The injury on the throat having been accounted for, we are left with three.

They are (1) an incised wound on the scalp above the left ear, (2)an incised wound on the scalp, central part,and (3)a lacerated wound on the left side of the face which crushed the upper and lower jaws including the lips and teeth.

The doctor says that (1) and (2) could not have caused death but that the third could.

Rasikabai and Subhana are agreed that the only person who struck on the cheek is Tukia.

Rasikabai adds that he also hit Ramchander on the bead.

That means that Tukia and Pandurang caused the two non fatal injuries on the head, one each, and that Tukia alone caused the fatal one on the cheek.

Tukia 's conviction under section 302 of the Indian Penal Code was therefore jusified.

In Pandurang 's case we are left with the difficult question about section 34 of the Indian Penal Code.

1093 But before we deal with that, we will set section 149 of the Indian Penal Code aside.

There is no charge under section 149 and, as Lord Sumner points out in Barendra Kumar Ghosh vs King Emperor(1), section 149, unlike section 34, creates a specific offence and deals with the punishment of that offence alone.

We would accordingly require strong reasons for using section 149 when it is not charged even if it be possible to convict under that section in the absence of a specific charge, a point we do not decide here.

But that apart, there is, in our opinion, no evidence here which would justify the conclusion of a common object even if one had been charged.

There is some vague evidence to the effect that there had once been a dacoity at Ramchander 's house and that he suspected "the "accused" and reported them to the police who arrested them, but nothing came of it and they were later released.

This is put forward as one of the grounds of enmity and to show why all five joined in the attack.

But in the absence of anything specific we are not prepared to act on such a vague allegation especially about the persons who are said to have been wrongfully blamed.

What, however, is more specific is this: Ramchander bought a field called Hatkerni at Neemgaon from one Shivamma Patelni about a year before the murder.

Narsabai tells us that the three accused Nilia, Bhilia and Tukia, all of whom are Lambadas used to live in that field.

When Ramchander bought it he turned them out and she says that gave them cause for enmity against him.

Now even if it be accepted that this evidence is indicative of prior concert, it only embraces the three Lambadas, Nilia, Bhilia and Tukia.

Pandurang, who is a Hatkar, is not included.

As this is the only evidence indicating a common purpose, and as we know nothing about what preceded the assault (for the witnesses arrived after it bad started), we cannot gatber any common object from the fact that Pandu rang, though armed with an axe, only inflicted a light blow on the scalp which did not break any of the (1) (1924) L.R 52 I.A. 40, 52, 1094 fragile bones in that region and from the fact that two others who were lightly armed with what have been called "sticks" inflicted no injuries at all.

Section 149 is therefore out of the question.

Turning now to section 34, that was not charged in Pandurang 's case but we need not consider whether such an omission is fatal because even if it had been charged there is no evidence from which a common intention embracing him can legitimately be deduced.

As we have just said, the witnesses arrived at a time when the beating was already in progress.

They knew nothing about what went before.

We are not satisfied that Tukaram is proved to have done anything except be present, and even if it be accepted that Nilia aimed a blow, at Ramchander 's thigh be was so half hearted about it that it did not even hit him; and in Pandurang 's case, though armed with a lethal weapon, he did no more than inflict a comparatively light head injury.

It is true they all ran away when the eye witnesses arrived and later absconded, but there is nothing to indicate that they ran away together as a body, or that they met afterwards.

Rasikabai says that the "accused" raised their axes and sticks and threatened her when she called out to them, but that again is an all embracing statement which we are not prepared to take literally in the absence of further particulars.

People do not ordinarily act in unison like a Greek chorus and, quite apart from dishonesty, this is a favourite device with witnesses who are either not mentally alert or are mentally lazy and are given to loose thinking.

They are often apt to say "all" even when they only saw "some" because they are too lazy, mentally, to differentiate.

Unless therefore a witness particularises when there are a number of accused it is ordinarily unsafe to accept omnibus inclusions like this at their face value.

We are unable to deduce any prior arrangement to murder from these facts.

Now in the case of section 34 we think it is well established that a common intention presupposes prior concert.

It requires a pre arranged plan because before a man can be vicariously convicted for the 1095 criminal act of another, the act must have been done in furtherance of the common intention of them all: Mahbub Shah vs King Emperor(1).

Accordingly there must have been a prior meeting of minds.

Several persons can simultaneously attack a man and each can have the same intention, namely the intention to kill, and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section because there was no prior meeting of minds to form a pre arranged plan.

In a case like that, each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any of the others; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the murder however clearly an intention to kill could be proved in his case: Barendra Kumar Ghosh vs King Emperor(2) and Mahbub Shah vs King Emperor(1).

As their Lordships say in the latter case, "the partition which divides their bounds is often very thin: nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice".

The plan need not be elaborate, nor is a long interval of time required.

It could arise and be formed suddenly, as for example, when one man calls on bystanders to help him kill a given individual and they, either by their words or their acts, indicate their assent to him and join him in the assault.

There is then the necessary meeting of the minds.

There is a pre arranged plan however hastily formed and rudely conceived.

But pre arrangement there must be and premeditated concert.

It is not enough, as in the latter Privy Council case, to have the same intention independently of each other, e.g., the intention to rescue another and, if necessary, to kill those who oppose.

In the present case, there is no evidence of any prior meeting.

We know nothing of what they said or did before the attack not even immediately before.

Pandurang is not even of the same caste as the others, (1) [1945] L.R. 72 I.A. 148, 153, 154.

(2) [19241 L.R. 52 I.A. 40, 49.

1096 Bhilia, Tukia and Nilia are Lambadas, Pandurang is a Hatkar and Tukaram a Maratha.

It is true prior concert and arrangement can, and indeed often must, be determined from subsequent conduct as, for example, by a systematic plan of campaign unfolding itself during the course of the action Which could only be referable to prior concert and pre arrangement, or a running away together in a body or a meeting together subsequently.

But, to quote the Privy Council again, "the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case".

But to say this is no more than to reproduce the ordinary rule about circumstantial evidence, for there is no special rule of evidence for this class of case.

At bottom, it is a question of fact in every case and however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another.

All that is necessary is either to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference, or, as we prefer to put it in the time honoured way, "the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis".

(Sarkar 's Evidence, 8th edition, page 30).

The learned counsel for the State relied on Mamand vs Emperor(1) because in that case the accused all ran away and their Lordships took that into consideration to establish a common intention.

But there was much more than that.

There was evidence of enmity on the part of the accused who only joined in the attack but had no hand in the killing, and none on the part of the two who did the actual murder.

There was evidence that all three lived together and that one was a younger brother and the other a tenant of the appellant in question.

There was evidence that they all ran away together: not simply that they ran away at the same moment of time when discovered, but that they ran away together.

As we have said, each case must rest on its own facts and the mere (1) A.I.R 1946 P C 45.

1097 similarity of the facts in one case cannot be used to determine a conclusion of fact in another.

In the present case, we are of opinion that the facts disclosed do not warrant an inference of common intention in Pandurang 's case.

Therefore, even if that had been charged, no conviction could have followed on that basis.

Pandurang is accordingly only liable for what he actually did.

In our opinion, his act falls under section 326 of the Indian Penal Code.

A blow on the head with an axe which penetrates half an inch into the head is, in our opinion, likely to endanger life.

We therefore set aside his conviction under section 302 of the Indian Penal Code and convict him instead under section 326.

We are of opinion that in his case a sentence of imprisonment for a term of ten years will suffice.

We accordingly set aside the sentence of death and alter it to one of ten years ' rigorous imprisonment.

That leaves the question of sentence in the case of Bhilia and Tukia.

It was argued that no sentence of death can be passed unless two Judges concur because of section 377 of the Code of Criminal Procedure, and it was argued that section 378 of the Code does not abrogate or modify that provision.

We do not intend to examine that here because we are of opinion that the sentence should be reduced to transportation in these two cases mainly because of the difference of opinion in the High Court, not only on the question of guilt, but also on that of sentence.

In saying this we do not intend to fetter the discretion of Judges in this matter, for a question of sentence is, and must always remain, a matter of discretion, unless the law directs otherwise.

But when appellate Judges, who agree on the question of guilt, differ on that of sentence, it is usual not to impose the death penalty unless there are compelling reasons.

We see no reason to depart from this practice in this case and so reduce the sentences of death in the case of Bhilia and Tukia to transportation for life because of the difference of opinion in the High Court.

Summary: It is well settled that common intention in section 34 of tile Indian Penal Code presupposes prior concert.

Summary: It requires a prearranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have boon done in furtherance of the common intention of them all.

Summary: Accordingly there must have been a prior meeting of minds.

Summary: In a case like that, each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any of the others; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the murder however clearly an intention to kill could be proved in his case.

Summary: Care must be taken not to confuse same or similar intention with common intention; the partition which divides their bounds is often very thin, nevertheless the distinction is real and substantial, and if overlooked will result in miscarriage of justice.

Summary: The plan need not be elaborate, nor is a long interval of time required.

Summary: It could arise and be formed suddenly, But there must 139 1084 be pre arrangement and premeditated concert.

Summary: It is not enough, to have the same intention independently of each other.

Summary: The inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case.

Summary: It is a question of fact in every case and however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another.

Summary: All that is necessary is either to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference, or, in other words, the incriminating facts must be incompatible with the innocence of the accused and incapable of ex planation on any other reasonable hypothesis.

Summary: When appellate judges, who agree on the question of guilt differ on that of sentence, it is usual not to impose the death penalty unless there are compelling reasons.

Summary: Barendra Kumar Ghosh vs King Emperor ([1924] L.R. 52 I.A. 40), Mahbub Shalt vs King Emperor ([1945] L.P. 72 I.A. 148) and Mamand vs Emperor (A.I.R. , referred to.


No. 7338 of 1981.

(Under Article 32 of the Constitution of India).

Ram Jethmalani and Miss Rani Jethmalani for the Petitioner.

G. Ramaswamy, Additional Solicitor General, R.P. Srivastava 634 and Miss. A. Subhashini for the Respondent.

The Judgment of the Court was delivered by RANGANATH MISRA, J.

The petitioner of this application under Article 32 of the Constitution is an engineer who was employed in the Central Public Works Department under the Ministry of Works and Housing in Government of India and was compulsorily retired by order dated 3.8.1976 with effect from 5.11.1976 made under Rule 56(j) of the Fundamental Rules.

He has assailed that order for retirement and has claimed payment of remuneration which he would have been entitled to draw upto the normal date of superannuation.

The short facts are these.

The petitioner was born on 10.2.1922 and secured his first appointment as a Section Officer under the named employer on 22.10.1947.

He was pro moted as officiating Assistant Engineer in class II service with effect from ' 25.5.

1954, and came to be confirmed as Section Officer by an order dated 8.10.1955.

On 3.7.1961, he was further promoted as officiating Executive Engineer in Class I service but on 4.9.1965, he was reverted to the post of Assistant Engineer in officiating position and was con tinuing in that post when he was compulsorily retired.

The vires of Rule 56(j) of the Fundamental Rules as also the power to compulsorily retire a public servant have been upheld by this Court and do not require to be re examined.

The basis of attack to the impugned order is as specified in Ground No. A and is to the following effect: "The impugned order is contrary to the judg ment delivered by this Hon 'ble Court on 26.2.1980, copy at Annexure C hereto.

(Union of India vs K.R. Tahiliani and Anr.) [1980] 1 SLR 847.

According to the said judgment F.R. 56 (j)(i) has no application to officiating government servants, hence can have no appli cation to the petitioner since the petitioner was an officiating government servant.

" The impugned notice ran thus: "No. 32/452/66 EC.

111 Government of India Central Public Works Department New Delhi, the 3.8.76 635 ORDER WHEREAS the Engineer in Chief is of opinion that it is in public interest to do so: NOW, THEREFORE, in exercise of the powers conferred by clause (j) of Rule 56 of the Fundamental Rules, the Engineer in Chief hereby gives notice to Shri A.L. Ahuja, As sistant Engineer (Civil), at present under suspension, that he, having already attained the age of fifty years on 10.2.1972, shall retire from service with effect from the forenoon of 3rd November, 1976, or, from the date of expiry of three months computed from the date of issue of the service of this notice on him, whichever is latter.

Sd/ (V.R .

VAISH) ENGINEER IN CHIEF To Shri A.L. Ahuja, Assistant Engineer (Civil), (Under Suspension), A11/85, Lajpat Nagar, New Delhi 110024.

" It is clear from it that the petitioner attained the age of 50 years on 10.2.1972 and, therefore, on the date of the order he had completed the age of 54 years.

Admittedly, he was holding a class II post when the impugned order was served on him.

Fundamental Rule 56(j) under which notice was given provides: "(j) Notwithstanding anything contained in this rule, the appropriate authority shall, if it is of the opinion that it is in the public interest so to do, have the absolute right to retire any Government servant by giving him notice of not less than three months in writ ing or three months ' pay and allowances in lieu of such notice; (i) if he is in Class I or Class II service or post (and had entered Government service before attaining the age 636 of thirty five years), after he has attained the age of fifty years; (ii) in any other case after he has attained the age of fifty five years; . . . . . . . . . . ." The appropriate authority is entitled to exercise power under clause (j) in the case of a Government servant in Class I or Class II service or post where he entered into service before attaining the age of 35 years after the said servant attained the age of 50 years; and in other cases after he has attained the age of 55 years.

In the instant case, the petitioner was promoted as officiating Assistant Engineer which is a Class II post on 25.5.

1954 and contin ued to hold that post when the order of compulsory retire ment was passed.

By 25.5.1954 the petitioner had not at tained the age of 35 years.

As already indicated above he had crossed the age of 50 years but had not attained the age of 55 years by the date of the impugned order.

Therefore, sub clause (1) was not contravened when the order was made.

It has been argued before us that as the petitioner was holding an officiating appointment in Class 117 he could not have been compulsorily retired under sub clause (i).

Support is claimed from the observations in the Tahilia ni 's case (supra).

The sole question that fell therein for decision before this Court was whether a Government servant officiating in Class I or Class II service or post could be retired compulsorily by exercising the power under Rule 56(j)(i) after he has attained the age of 50 years.

The two Judge Bench which decided the case held: " An officiating hand has no right to the post and is perhaps a fleeting.

bird who may have to go back to the substantive post from which he has been promoted on an officiating basis what is more to the point, a person who has been appointed de novo may begin his service on an officiating basis or on a tempo rary basis and it is obvious that he has no right to the post and cannot be strictly said to be in that service or post as a member of that service.

In short, an officiating Govern ment servant does not really belong to Class I or Class II service until he acquires a right thereon.

Even viewed closely and meticulously, the structure of the clause, namely, "if he is in Class I or Class II 637 service or post", emphasises the nature of the service or post vis a vis the Government servant concerned.

We need not go into the semantic shapes, lexical niceties or linguis tic nuance but only go through the meaning and purpose of the provision.

When a Government servant belonging to a Class I or Class II service or post on regular basis has to be retired compulsorily, Rule 56(j)(i) comes to the rescue of the Government.

But if he is only a temporary hand, he has no right to the post and can always be reverted to the post, if any, on which he has a lien.

Similar is the position of an officiating hand.

Thus we have reached an inevitable conclusion that Rule 56(j) is meant to cover only those who are in a post on a regular basis, i.e. in a substan tive capacity, and not on an officiating basis only.

" Strong reliance was placed by counsel for the petitioner on the reasons extracted above.

It is clear that sub clause (ii) is the general rule applicable to all Government servants and sub clause (i) carves out a class of Government servants into a category and makes a special provision.

We have already indicated that sub clause (ii) did not apply to the facts of this case as the petitioner had not attained the age of 55 years by the date of the order.

The observations made in Tahiliani 's case indisputably support the petitioner.

But the correct ness thereof is disputed by learned Additional Solicitor General appearing for the Union of India and that is why this writ petition was directed to be heard by a larger Bench.

There is no reference to officiating service in sub clause (i).

The relevant words used in sub clause (i) are "if he is in Class I or Class II service or post".

A person can be in Class I or Class II service or post even when he hold a post of either class substantively or temporarily or on officiating basis.

Instances are abundant where officers are promoted to Class I or Class II service or post of such class on officiating basis and such officiation lasts for a number of years.

Officiating promotion certainly does not confer a right to the post and at any time the Government servant may be sent back to his substantive post.

There is, however, no reasons why sub clause (i) should be confined to service or post held on substantive basis.

Learned counsel for the petitioner does not dispute the position that a person who is in Class I or Class II service or post is in such service or post as covered by sub clause (i).

The possibility of such incumbent being sent back to the 638 substantive post is not at all relevant in the matter of exercising powers of compulsory retirement.

If the officia tion is not brought to an end by reverting the Government servant to his substantive post before the power of compul sory retirement is exercised, the Government servant con cerned must be taken to be in Class I or Class II service or post at the relevant time and would come within the ambit of sub clause (i).

There is no warrant for the conclusion that officiating Government servants in Class I or Class II service or post are outside the purview of sub clause (i).

The possibility of a reversion to the substantive post is not germane to the exercise of power contained in F.R. 56.

The purpose of Fundamental Rules 56(j) is to confer power on the appropriate authority to compulsorily retire Government servant in the public interest and the classification of Government servants into two categories covered by sub clauses (i) and (ii) has a purpose behind it.

If the condi tion indicated in sub clause (i) is satisfied, namely, the Government servant is in Class I or Class II service or post and he had entered into service before attaining the age of 35 years, and has attained the age of fifty, the further condition that he must substantively belong to the two classes of service or post cannot be introduced into the scheme.

The purpose of the sub clauses is to classify Gov ernment servants into two categories and sub clause (i) takes within its sweep those Government servants who at the relevant time are in Class I or Class II service or post, whether substantively, temporarily or on officiating basis.

We would accordingly hold that the ratio of the decision in Tahiliani 's case is not correct and sub clause (i) of Rule 56(j) applies to Government servants in Class I or Class II service or post on substantive, temporary or offi ciating basis.

On this conclusion the writ petition is liable to be dismissed.

It has been represented to us by counsel for the petitioner that the similarly placed persons had gone before the Delhi High Court challenging the orders of compulsory retirement and the Delhi High Court relying upon Tahiliani 's case give them relief.

Such judgments have become final and Union of India has given effect to the decisions of the Delhi High Court.

When this was put to learned Additional Solicitor General he agreed that the Union of India will have no objection to treat the petitioner alike and would be prepared to give the same relief to the petitioner.

The petitioner would have superannuated from service on 29.2.1980 if he had not been compulsorily retired with effect from 639 5.11. 1976.

Even if the writ petition is allowed and the order of compulsory retirement is set aside the petitioner cannot go back to service.

But he would be entitled to pecuniary benefit of salary and allowances admissible under the rules.

Accordingly, we allow the.writ petition and direct the respondent to pay to the petitioner the salary and other allowances which would have been payable for the period between 5.11.

1976 and 29.2.

Such payment be made within two months from today.

There will be no order for costs.

WRIT PETITION NOS.

6251 & 8189 OF 1981 Each of the petitioners in these two writ applications under Article 32 of the Constitution was employed in the Central Public Works Department in the Ministry of Works and Housing of Government of India and has been compulsorily retired under Fundamental Rule 56(j).

The facts of each of these applications are more or less similar to those in Writ Petition No. 7338 of 1981 which we have disposed of today.

For the reasons given therein we allow each of the writ petitions and quash the order of compulsory retirement made against each of the petitioners.

By now both the petitioners would have retired from service and, therefore, they cannot be resorted in service.

They would, however, be entitled to salary and other service allowances payable to them from the date of compulsory retirement till the date of their normal superannuation.

There will be no order for costs.

H.L.C. Petition allowed.

Summary: Fundamental Rule 56(j) confers power on the appropriate authority to compulsorily retire a Government servant, if it is in the public interest to do so, by giving 3 months ' notice or 3 months ' pay and allowances in lieu of such notice; while sub cl.

Summary: (i) thereof states that a public servant in class I or class II service or post who had entered service before attaining the age of 35 years can be retired after he has attained the age of 50 years, sub cl.

Summary: (ii) thereof states that any other public servant can be retired after he has attained the age of 55 years.

Summary: In Union of India vs K.R. Tahiliani & Anr., this Court had held that F.R. 56(j) is meant to cover only those who are in a post on a regular basis, i.e., in a substantive capacity, and not on an officiating basis only.

Summary: Basing his case on this decision, the petitioner, who had been compulsorily retired while working in a class II post In an officiating capacity, challenged the order of his compulsory retirement.

Summary: Overruling the decision in Union of India vs K.R. Tahi liani & Anr., but, allowing the petition on the ground that the Delhi High Court, relying upon that decision, had grant ed relief to persons similarly placed as the petitioner, and, directing payment of his salary and allowances upto the date of his normal superannuation, HELD: Sub clause (1) of r. 56(j) of the Fundamental Rules applies to Government servants in Class I or Class II service or post on substantive, temporary or officiating basis.

Summary: [638E F] There is no reference to officiating service in sub cl.

Summary: The relevant words used in sub cl.

Summary: (i) are "if he is in CIasa I or CIasa II service or post.

Summary: " A person can be in Class I or CIasa II service or post even when he holds a post of either ciasa substantively or temporarily or on officiating basis.

Summary: Instances are abundant where officers are promoted to CIasa I or Class II service or post of such class on officiating basis and 633 such officiation lasts for a number of years.

Summary: There is, however, no reason why sub cl.

Summary: (i) should be confined to service or post held on substan tive basis.

Summary: It is not disputed that a person who is in Class I or Class II service or post is in such service or post as covered by sub cl.

Summary: The possibility of such incumbent being sent back to the substantive post is not at all rele vant in the matter of exercising powers of compulsory re tirement.

Summary: If the officiation is not brought to an end by reverting the Government servant to his substantive post before the power of compulsory retirement is exercised, the Government servant concerned must be taken to be in Class I or Class II service or post at the relevant time and would come within the ambit of sub cl.

Summary: There is no warrant for the conclusion that officiating Government servants in Class I or Class II service or post are outside the purview of sub cl.

Summary: The possibility of a reversion to the sub stantive post is not germane to the exercise of power con tained in F.R. 56.

Summary: [637F H; 638A C] The purpose of F.R. 56(j) is to confer power on the appropriate authority to compulsorily retire a Government servant in the public interest and the classification of Government servants into two categories covered by sub cls.

Summary: (i) and (ii) has a purpose behind it.

Summary: If the condition indicated in sub cl.

Summary: (i) is satisfied, namely, the Govern ment servant is in Class I or Class II service or post and he had entered into service before attaining the age of 35 years, and has attained the age of fifty, the further condi tion that he must substantively belong to the two classes of service or post cannot be introduced into the scheme.

Summary: The purpose of the sub clauses is to classify Government serv ants into two categories and sub cl.

Summary: (i) takes within its sweep those Government servants who at the relevant time are in Class I or Class II service or post, whether substantive ly, temporarily or on officiating basis.

Summary: [638C E] Union of India vs K.R. Tahiliani & Ant., , over rulled.