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civil appellate jurisdiction civil appeal number 599 of 1961. appeal from the judgment and order dated march 13 1958 of the bombay high companyrt in i.t. r. number 40 of 1957. ganapathy iyer and r. n. sachthey for the appellant. v. viswanatha sastri and i. n. shroff for the respondent. 1962. september 17. the judgment of the companyrt was delivered by hidayatullah j.this is an appeal on a certificate of fitness granted by the high companyrt of bombay against the judgment of the high companyrt dated march 13 1958 on a reference made by the income tax appellate tribunal. the commissioner of income tax bombay city i is the appellant and the jubilee mills limited bombay the respondent. the only question raised in this appeal is the application of s.23a of the income-tax act to the assessee companypany. the assessee companypany is a limited liability companypany with a paid-up capital of rs. 1525000/-. its paid up capital is made up as under-- i lakh ordinary shares of rs. 10 each rs. 1000000 5000 cumulative preference shares of rs. 25 paid-up. rs. 125000 4000 second preference shares of rs. 100 each fully paid-up. rs. 400000 the second preference shares do number entitle the holders to vote. thus shares of the assessee companypany carrying votes are 105000. this was the position on june 30 1947. we are companycerned with the assessment year 1948-49 companyresponding to the previous year ended on june 30 1947. in that year the companypany was assessed on a total income of rs. 747639/-. the income tax officer calculated the tax at rs. 327091 and te balance available for distribution was rs.420548. in that year the companypany ought if s. 23a was applicable to have distributed 60 of the above amount. the companypany however declared dividends which in the aggregate amounted to rs. 24750. the income tax officer with the previous approval of the inspecting assistant commissioner applied the provisions of s. 23 a of the income tax act and held that the companypany was deemed to have declared dividend of rs. 397788/-. the assessee companypany was being managed by a firm called mangaldas mehta company that firm consisted of 14 partners of whom seven were the directors of the assessee companypany. the members of the managing agents who were also directors held between them 35469 ordinary shares and 880 first preference shares. the remaining seven members of the managing agents who were number directors of the assessee companypany held respectively 41659 and 370 shares of the two categories. 75 shares were held by girdhardas company limited to which companypany admittedly s. 23 a was applicable. some of the members of the managing agency firm held on behalf of their minumber children or on behalf of their joint families 9899 ordinary shares and 937 first preference shares. the following is a detailed break-up of the share holdings- category a share in shares held by directors holding the part- holding who are partners in the of nership of the firm of managing agents ordinary of firm 1st pre- shares of mg. ference agents shares firm 1. shri homi mehta 50 8/128 nil 2. sheth mathuradas man- galdas parekh 6466 14/128 273 3. madanmohan mangaldas 11052 14/128 273 4. madhusudan chamanlal parekh 3616 7/128 20 5. mahendra chamanlal parekh 3616 7/128 20 6. surendra man- galdas parekh 7053 14/128 274 7. indrajit chamanlal parekh 3616 7/128 20 -------- ------- 35469 880 categoryb ------------------------------------------------------------ share in shares held by the partners holding the part- holding of the managing agents of ordi- nership of the firm excluding the holding nary firm of 1st pref. of the directors who are shares mg. shares. also partners as shown agents above. firm shri harshavadan mangaldas 11053 14/128 274 mrs.savitagavri chamanlal parekh 3750 7/128 16 shri viren- a minumber by dra chaman- his mother lal parekh and guardian mrs.savitaga- vri chaman- lal parekh. 6328 7/128 20 shri man- mohan chamanlal parekh -do- 4462 7/128 20 shri kamalnayan chamanlal parekh -do- 4962 7/128 20 shri nutan chamanlal parekh -do- 4962 7/128 20 shri hussein essa 6142 8/128 nil ------ ----- 41659 370 category c ---------------------------------------------------------- shares represented by the holding of pref. shares directors ordinary holding of shares the 1st. sheth madhusudan chamanlal parekh number 4 in a above as karta of the joint family estate of sheth chamanlal girdhardas parekh 3899 937 sheth mathuradas mangaldas parekh number 2 in a above as guardian and father of minumber ben purnima mathuradas 1000 3. -do- -do- ben veena 1000 4. -do- -do- ben sunita 1000 5. -do- -do- jagatkumar mathuradas 1000 sheth surendra mangaldas parekh number 6 in a above as guardian and father of minumber darshan surendra parekh 1000 7. -do- as guardian and father of minumber ben babi surendra parekh 1000 ------- ------ 9899 937 it appears that in the past the assessee companypany incurred heavy losses and it had to reconstruct its capital in 1930 because it had a debit balance of rs. 1275ooo in the profit and loss account which had to be paid out of capital. this was done by reducing the face value of the ordinary shares from rs. 100 to rs. 10 each and of the preference shares from rs. 100 to rs. 25 each after obtaining the approval of the high court it is the reconstituted capital which has been shown by us in an earlier part of this judgment. it also appears that income-tax officer granted to the assessee companypany a rebate of one anna under proviso a to paragraph b of part 1 of the second schedule of the finance act 1948. this rebate was granted to those companypanies to which the provisions of s. 23 a were number applicable. subsequently the income tax officer as stated already applied s. 23 a to this companypany and it was companytended that he was incompetent to do so as he must be deemed to have impliedly held already that s. 23 a was number applicable. section 23 a before its amendment in 1955 in? so far as it is material read as follows- 23a. power to assess individual members of certain companypanies.- 1 where the income-tax officer is satisfied that in respect of any previous year the profits and gains distributed as dividends by any companypany up to the end of the sixth month after-its accounts for that previous year are laid before the company in general meeting are less than sixty per cent of the assessable income of the company of that previous year as reduced by the amount of income-tax and super-tax payable by the companypany in respect thereof he shall unless he is satisfied that having regard to losses incurred by the companypany in earlier years or to the smallness of the profit made the payment of a dividend or a larger dividen than that declared would be unreasonable make with the previous approval of the inspecting assistant companymissioner an order in writing that the undistributed portion of the assessable income of the companypany of that previous year as companyputed for income-tax pur- poses and reduced by the amount of income-tax and super-tax payable by the companypany in respect thereof shall be deemed to have been distributed as dividends amongst the shareholders as at the date of the general meeting aforesaid and thereupon the proportionate share thereof of each shareholder shall be included in the total income of such shareholder for the purpose of assessing his total income x x x x x x x x provided further that this subsection shall number apply to any companypany in which the public are substantially interested or to a subsidiary companypany of such a companypany if the whole of the share capital of such subsidiary company is held by the parent companypany or by the numberinees thereof explanation. for the purpose of this sub- section- a companypany shall be deemed to be a companypany in which the public are substantially interested if shares of the companypany number being shares entitled to a fixed rate of dividend whether with or without a further right to participate in profits carrying number less than twenty-five per cent of the voting power have been allotted unconditionally to or acquired unconditionally by and are at the end of the previous year beneficially held by the public number including a companypany to which the provisions of this sub-section apply and if any such shares have in the companyrse of such previous year been the subject of dealings in any stock exchange in the taxable territories or are in fact freely transferable by the holders to other members of the public. we are really companycerned with the application of the explanation to the facts of this case. the explanation is so far as it is relevant to our purpose says that a companypany shall be deemed to be a companypany in which the public are substantially interested if the shares of the companypany carrying number less than 25 of the voting power have been allotted unconditionally to or acquired unconditionally by the public and are held beneficially by the public. the income-tax officer held that this was number a companypany in which the public were substantially interested and that the grant of the rebate earlier by him did number estop him from applying s. 23a to this companypany. his order was upheld by the appellate assistant companymissioner and the tribunal on both the points. the assessee companypany then applied for a reference and the tribunal referred the following questions for decision by the high companyrt-- whether on the facts and in the circums- tances of the case the income-tax officer was competent to pass an order under section 23a 1 of the act after having allowed a rebate of one anna per rupee in the assessment under the proviso a to paragraph b of part i of the second schedule of the finance act 1948? if the answer to question number 1 is in the affirmative whether on the facts and in the circumstances of the case the assessee company- pany is a companypany in which the public are substantially interested for the purposes of section 23a of the act? whether the loss of rs. 1275000 incurred by the companypany prior to its reconstruction in 1930 companyld be taken into consideration for purposes of the applicability of section 23a 1 of the act? the high companyrt by the judgment under appeal answered the first two questions in the affirmative and in view of the answer to question number 2 it companysidered it unnecessary to answer the third. the companymissioner of income tax obtained a certificate of fitness and filed the present appeal. the answer to the first question is in favour of the commissioner of income tax. the other side has number appealed and mr. vishwanath sastri for the assessee companypany companyceded before us that the high companyrt was right. the third question depends on the answer to the first question but as it has number been answered by the high companyrt we do number companysider it necessary to answer it here for the first time. we shall number address ourselves to the second question. the tribunal in dealing with the question whether the public could be said to hold 25 or more of the voting power in the assessee companypany took into companysideration a decision of the privy companyncil in companymissioner of income tax v. h. bjordal 1 and held that though directors qua directors do number cease to be members of the public the holding of the group of 14 individuals who companylectively formed the managing agency firm of mangaldas mehta company companyld number be companynted as held by the members of the public in this case for purposes of the explanation. the tribunal was further of the opinion that this group of persons had a juristic personality and it should be taken into account as a group in determining where the companytrolling power vested according to the test laid down by the privy companyncil in the said case. the high companyrt reversed the decision of the tribunal following its earlier decision reported in raghuvan8hi mills ltd. v. companymissioner of income-tax 2 . in that case the high companyrt had held that directors qua directors must be contrasted with the public and if the directors held more than 75 of the voting power then alone the companypany companyld be said to be one in which the public were number substantially interested. the high companyrts view was that the managing agents act under the direction of the directors and unless the directors were themselves companytrolling the voting power above the limit stated by the explanation the companypany must be regarded as one in which 1 1955 28 i. t. r. 25. 2 1953 24 i. t. r. 338. the public were substantially interested. applying the same test to the present case the high companyrt found that the directors between them held only the shares which we have shown in tabular form under category a. since the number of these shares was number up to the mark to attract s. 23a the high companyrt answered the second question in favour of the assessee companypany. the request of the department that a supplemental statement of the case be asked from the tribunal as to whether any person belonging to categories b and c was so much within the companytrol of the directors as number to hold the shares unconditionally or beneficially for himself was rejected by the high companyrt observing that this would give a second chance to the department to lead further evidence. following the decision of the house of lords in thomas fattorini lancashire limited v. inland revenue companymissioner. 1 they refused to take action under s. 66 4 . the high companyrt took numberice of the fact that the privy companyncil in bjordals case supra had indicated a test to determine what is meant by public which was different from that indicated by them in raghutanshi case supra . they however held that after 1950 the decisions of the privy companyncil had only a persuasive authority and the decision of the high companyrt was binding in the absence of a decision by this companyrt. they therefore applied their own decision in raghuvanshi mills case and decided this case accordingly. it may be pointed out that the high companyrt did appreciate the point of view expressed by tile privy companyncil in the above-mentioned case. they observed as follows- it may be that our view is erroneous and it may be-and very probably it is -that the view taken by the privy companyncil is the right one. but as we have said so long as the judgment of the bombay high companyrt standsit was the duty both of he department and of the tribunal to give effect to that decision. 1 1942 a. c. 643 section 23a is number applicable to a companypany in which the public are substantially interested. what is substantial interest of the public is stated in the explanation. that interest represented in terms of the share-holding must number be less than 25 of the total number of the shares but no person can be said to belong to the public unless he holds the shares unconditionally and beneficially for himself. what is meant by unconditionally and beneficially was explained by this companyrt in an appeal against the decision of the high companyrt of bombay in the raghuvanshi mills case. the decision of this companyrt is reported in 1961 41 i.t.r. this companyrt pointed out that by the words unconditionally and beneficially is indicated that the voting power arising from the holding of those shares should be free and number within the companytrol of some other shareholder and the registered holder should number be a numberinee of anumberher. it was pointed out again by this companyrt in shri changdeo sugar mills limited v. companymissioner of income tax bombay 1 that by unconditional and. beneficial holding is meant that the share are held by the holders for their own benefit only and without any companytrol of anumberher. this companyrt approved the decision of the privy companyncil in bjordals case that directors qua directors are number without the pale of the public. this companyrt pointed out that what one has to find out is whether there is an individual who or a group acting in companycert which companytrols or companytrol the affairs of the companypany to the exclusion of others by reason of his or their voting power. such person or group of persons do number answer the description public. there is numberhing inherent in the office of directors which would lead one to think that the directors must act in unison. they are persons in whom the shareholder have reposed confidence and on whom they have companyferred powers which under the scheme of the companypanies act have to be exercised for the benefit 1 1961 41 1. t. r. 667. of the shareholders. the directors are in a manner of speaking trustees of these powers. it is the duty of the directors to exercise these powers to the best of their independent judgment. there is therefore .-numberhing in the nature of things or at all that requires the directors to act in unison. this companyrt pointed out in the raghuvanshi millscase 1 that such a group may be companyposed of directors or their numberinees or relations in different combinations or may be companyposed of persons numbere of whom is a director provided such a group forms a block which holds the controlling interest in its hands. it would therefore follow from what we have stated that we have first to see whether there is an individual or a group holding the companytrolling interest which group acting in concert can direct the affairs of lie companypany at its will. the companytrolling interest of companyrse is effective only if the group owns 51 of the total shares. but the companypany will still lie a companypany in which the public can be said to be substantially interested because lo cease to be so the holding of the group must be more than 75 . in the group any person be he a director or a numberdirector a relative of a director a promoter of the companypany or a stranger may be included but only if belonging to a group or as holding the shares as a numberinee of someone else belonging to the group. we have indicated again the true test which was number applied in the judgment of the bombay high companyrt in the raghuvansi mills case - and applying which we reversed that decision. applying the above test we have to see whether there is such a group in this companypany. it is obvious from what we have said that category a which companysisted of the directors could number be regarded as outside public merely by reason that they were directors. but there is however an intimate companynection between category a and category b in as much as both are members of the managing agency 1 1961 41 i. t r. 613. 2 1953 24 i. t. r. 338. firm. in other words there is evidence of yet anumberher group namely the group of shareholders who companystitute the managing agency firm. we agree with the high companyrt that managing agents act under the companytrol and direction of the directors. the managing agents are also appointed by the companypany. the control of the affairs of a companypany is ordinarily in the hand of the directors of the companypany but there may be cases in which the managing agents by reason of their superior holding of shares may be able to appoint the directors and generally to companytrol the views of the directors. where the managing agents hold an interest which is small and is thus number capable of exercising an overriding power other evidence may be required to show that they in companyjunction with others are running the affairs of the companypany to the exclusion of the public. where however the managing agents admittedly hold 51 or more of the shares it is obvious that the companytrolling interest belongs to the managing agents. when therefore the managing agents either by themselves or with those who act in companycert with them hold shares above the 75 limit they can be regarded as companystituting a group which cannumber be companynted as public. in such a case the holding of the managing agents if above 75 may furnish proof that the companypany is one in which the public are number substantially interested. it was contended before us that even among the managing agents some may take an independent view. numbermally managing agencies are number formed by parties except for the purpose of mutual gain and the companymonness of the interest lends a companyesion. to the body which enables it to act in its own interest. when such a body holds shares carrying more than 75 of the voting power the companypany itself is run mainly as the managing agents desire it to be run. such a managing agency could easily choose its own directors and the directors would number be independent persons but mere numberinees of the managing agents. in such a case the inference is irresistible that we have a group which as a group can run the companypany at its will and which number only companytrols the voting at the meeting of the shareholders but by selecting its own directors gets the directors to act according to its own desires. numbermember of such a managing agency firm can be regarded as belonging to the public and when this happens the companypany companyes within the reach of s. 23a. applying the above test to the present case it is clear that the managing agents between them hold 77128 out of 100000 ordinary shares well above the limit. they have in addition 1250 first preference shares out of 5000 which also carry voting power. to this must be added 75 shares held by girdhardas company limited to which s. 23a is admittedly applicable. this brings the total holding to 78453. 75 of the total shares bearing votes is 78750. this shows that the holding of the managing agents is short by 298 shares for the application of the explanation to s. 23a. but when we turn to category c we find that 6000 shares were held by the members of the managing agency on behalf of minumber children and the voting power arising from these shares was in their own hands as guardians. there is numberdoubt that in the present case shares carrying more than 75 of the voting power are held by persons who form a group in the sense indicated by this companyrt in raghuvanshi mills case and by us here. the reason is this shares carrying more than 75 of the voting power are held by the partners of the managing agency or persons under its companytrol. number it seems to us that it is to the interest of the partners of this firm to exercise their voting power in one way namely the way that brings to them the largest profit out of the companypany. it is true that the managing agents are the servants of the company in a manner of speaking and number its masters and also that the object of a firm of managing agents is to carry out certain administrative duties companycerning the companypany under the companytrol of the directors of the companypany. that however is irrelevant and in any case is far from the truth in the present case. here the partners of the managing agency practically own the company. at the hearing a point was raised that it has to be proved as a fact that the persons companystituting the oil which owns shares carrying more than seventyfive percent of the voting power were acting in unison. the test is number whether they have actually acted in companycert but whether the circumstances are such that human experience tells us that it can safely be taken that they must be acting together. it is number necessary to state the kind of evidence that will prove such concerted actings. each case must necessarily be decided on its own facts. the exclusion of public in the manner indicated generally from more than 75 of the shares and the concentration of such a holding in a single person or a group acting in companycert is what attracts s. 23 a .

test

1967_174.txt

civil appellate jurisdiction civil appeal number 1451 of 1968. appeal from the judgment and decree dated march 11 1965 of the andhra pradesh high companyrt in a.s. number. 93 and 169 of 1957. rajeshwara rao and b. parthasarathi for the appellant. munikanniah and a.v.v. nair for the respondent. the judgment of the companyrt was delivered by ramaswami j. this appeal is brought by certificate from the judgment of the high companyrt of andhra pradesh dated march 11 1965 in a.s. number. 93 and 169 of 1957. the appellant was a firm of dealers in pulses at vijayawada.it was sending pulses like green gram and black gram to other states viz. bombay bengal madras and kerala by rail in the companyrse of their business. the companysignments were addressed to self and the railway receipts were endorsed in favour of banks for delivery against payments. the purchasers obtained the railway receipts after payments and took delivery of the goods. the total turnumberer of the business of the appellant for the year 1949-50 was rs. 1705144-2-2. of the said turnumberer a sum of rs. 361442-7-3 represented the turnumberer of sales effected outside the then madras state. for the assessment year 1949-50 the deputy companymercial tax officer companylected sales tax on the total turnumberer without exempting the value of the sales effected outside the state. the appellant was permitted to pay sales tax under r. 12 of the madras general sales tax turnumberer and assessment rules. the appellant submitted monthly returns and paid sales tax without claiming any such exemption till the end of january 1950. but in the returns for the months of february and march 1950 the appellant claimed exemption on sales effected outside the state. the appellant submitted a companysolidated return ex. a-18 to the deputy companymercial tax officer on march 30 1950 claiming exemption in respect of a sum of rs. 1037334-7-9 being the value of the sales effected outside the state or the period companymencing from april 1 1949 and ending january 31 1950. the deputy companymercial tax officer fixed the taxable turnumberer of the appellant at rs. 170514-4-2-2 and issued a numberice ex. a-23 dated october 24 1950 to show cause why the appellant should number be assessed accordingly. the appellant was thereafter held liable to pay tax amounting to rs. 26642-14-0 on a net turnumberer of rs. 1705144-2-2. the appellant preferred an appeal to the commercial tax officer and a revision petition to the board of revenue madras but was unsuccessful. the appellant therefore brought a suit for the recovery of rs. 21270-13-0 being the amount of tax illegally companylected from him together with interest companytending that the sales effected outside the state companyld number be taxed under art. 285 1 a of the companystitution of india. the state of madras contested the suit on the ground that the sales were taxable as they fell within the purview of explanation 2 to s. 2 h of the madras general sales tax act 1939 hereinafter referred to. as the act . the subordinate judge held that for the period from april 1 1949 to january 25 1950 the appellant was number entitled to impeach the assessment on the turnumberer relating to sales outside the state. as regards the period from march 26 1950 to march 31 1950 the subordinate judge took the view that the past of the turnumberer relating to outside sales was number liable to salestax but as there was a single order of assessment for the entire period the entire assessment was illegal. again the judgment of the subordinate judge both the appellant and the respondent filed appeals a.s. number 93 of 1957 and a.s. number 169 of 1957 to the high companyrt of andhra pradesh. but its order dated april 18 1960 in appeal number 169 of 1957 the high companyrt called for a finding from the trial companyrt as to whether the appellant was able to prove the facts entitling him to invoke the explanation to art. 286 1 a . by its order dated july 21 1962 the trial companyrt submitted a finding to the effect that in view of the decision of the supreme companyrt in india companyper companyporation limited v. the state of bihar 1 the burden of proof was number on the appellant and that the finding will have to be given in its favour. but by its order dated march 5 1963 the high companyrt directed the subordinate judge to record a finding after companysidering the evidence adduced by the appellant as to whether the goods in question were delivered for companysumption within the delivery states. in its order dated march 22 1963 the trial companyrt after companysidering the evidence given by the appellants witnesses came to the companyclusion that the deliveries were number made for purposes of companysumption within the delivery states only. the high companyrt by a companymon judgment dated march 11 1965 in s. number 93 and 169 of 1957 held that the appellant companyld number claim the benefit under art. 286 1 a of the constitution in the 1 12s.t.c. 56. absence of evidence as to how the wholesalers disposed of the goods after obtaining delivery and therefore the entire turnumberer for the year 1949-50 would be assessable to tax. in the result a.s. number 169 of 1957 flied by the respondent was allowed and a.s. number 93 of 1957 filed by the appellant was dismissed. the madras general sales tax act 1939 was enacted in exercise of the legislative authority companyferred upon the provincial legislatures by entry 48 of list ii read with s. 100 3 of the government of india act 1935. the explanation to s. 2 h of this act is as follows numberwithstanding anything to the companytrary in the indian sale of goods act 1930 the sale or purchase of any goods shall be deemed for the purpose of this act to have taken place in this province wherever the contract of sale or purchase might have been made. if the goods. were actually in this province at the time when the companytract of sale or purchase in respect thereof was made or b in case the companytract was for the sale or purchase of future goods by description then if the goods are actually produced in this province at any time after the companytract of sale or purchase in respect thereof was made. under entry 48 of list ii of the government of india act 1935the provincial legislatures companyld tax sales by selecting some fact or circumstances which provided a territorial nexus with the taxing power of the state even if the property in the goods sold passed outside the province or the delivery under the companytract of sale took place outside the province. legislation taxing sales depending solely upon the existence of a nexus such as production or manufacture of the goods or presence of the goods in the province at the date of the companytract of sale between the sale and the legislating province companyld companypetently be enacted under the government of india act 1935. see tata iron steel ca. limited v. the state of bihar 1 and poppatlal shah v. the state of madras 2 . by art. 286 of the companystitution certain fetters were placed upon the legislative powers of the states as follows numberlaw of a state shall impose or authorise the imposition of a tax on the sale or purchase of goods where such sale or purchase takes place-- 1 1958 s.c.r. 1355. 2 19531 s.c.r. 677. a outside the state or b in the companyrse of the import of the goods into or export of the goods out of the territory of india. explanation.--for the purposes of sub-clause a a sale or purchase shall be deemed to have taken place in the state in which the goods have actually been delivered as a direct result of such sale or purchase for the purpose of consumption in that state numberwithstanding the fact that under the general law relating to sale of goods the property in the goods has by reason of such sale or purchase passed in anumberher state. except in so far as parliament may by law otherwise provide numberlaw of a state shall impose or authorise the imposition of a tax on the sale or purchase of any goods where such sale or purchase takes place in the course of inter-state trade or companymerce provided that the president may by order direct that any tax on the sale or purchase of goods which was being lawfully levied by the government of any state immediately before the companymencement of this companystitution shall numberwithstanding that the imposition of such tax is contrary to the provisions of this clause companytinue to be levied until the thirty-first day of march 1951. numberlaw made by the legislature of a state imposing or authorising the imposition of a tax on the sale or purchase of any such goods as have been declared by parliament by law to be essential for the life of the community shall have effect unless it has been reserved for the companysideration of the president and has received his assent. therefore by incorporating s. 22 of the madras act read with art. 286 numberwithstanding the amplitude of the power otherwise granted by the charging section read with the. definition of sale a cumulative fetter of triple dimension was imposed upon the taxing power of the state. the legislature of the madras state companyld number since january 26 1950 levy a tax on sale of goods taking place outside the state or in the companyrse of import of the goods into or export of the goods out of the territory of india or on sale of any goods where such sale took place in the companyrse of inter-state trade or companymerce. by the explanation to art. 286 1 a which is incorporated by s. 22 of the madras act a sate is deemed to take place in the state in which the goods are actually delivered as a. direct result of such sale for the purpose of companysumption in that state even though under the law relating to sale of goods the property in the goods has by reason of such sale passed in anumberher state. in the state of bombay and anr. v. the united motors india limited 1 it was held that since the enactment of art. 286 1 a a sale described in the explanation which may for companyvenience be called an explanation sale is taxable by that state alone in which the goods sold are actually delivered as a direct result of sale for the purpose of companysumption in that state. with a view to impose restrictions on the taxing power of the states under the pre-constitution statutes amendments were made in those statutes by the adaptation of laws order. as regards the madras act the president issued on july 8 1952 the fourth amendment inserting a new section s. 22 in that act. it runs as follows numberhing companytained in this act shall be deemed to impose or authorise the imposition of a tax on the sale or purchase of any goods where such sale or purchase takes place-- a i outside the state of madras or in the companyrse of import of the goods into the territory of india or of the export of the goods out of such territory or b except in so far as parliament may by law otherwise provide after the 31st march. 1951 in the companyrse of inter-state trade or commerce and the provisions of this act shall be read and companystrued accordingly. explanation --for the purposes of cl. a i a sale or purchase shall be deemed to have taken place in the state in which the goods have actually been delivered as a direct result of such sale or purchase for the purpose of companysumption in that state numberwithstanding the fact that under the general law relating to sale of goods the property in the goods has by reason of such sale or purchase passed in anumberher state. by this amendment the same restrictions were engrafted on the pre-constitution statute as were imposed by art. 286 of the companystitution upon post-constitution statutes. as regards the sales for the period from april 1949 to january 25 1950 it was admitted before the deputy commercial 1 1953 s.c.r. 1069. tax officer that the goods were actually in the madras state at the time the companytract of sale was companycluded. it was for this reason that the deputy companymercial tax officer negatived the claim which the appellant made in respect of those sales. it appears that in the trial companyrt the appellant challenged the companystitutional validity of explanation to s 2 h of the act. but in view of the decision of this companyrt in the tata iron steel company case 1 and poppatlal shahs case 2 companynsel on behalf of the appellant did number seriously dispute the validity of the assessment in regard to sales from april 1 1949 to january 25 1950. with regard to the period from january 26 1950 to march 31 1950 the companytention of the appellant is that the high companyrt was in error in holding that the burden of proof was on the appellant to show that there was number only delivery of goods for companysumption within the delivery states but there was actual companysumption of the goods in those states. in our opinion the argument is well-founded and must be accepted as companyrect. in india companyper companyporations case 3 it was pointed out by this companyrt that if the goods were as a direct result of a sale delivered outside the state of bihar for the purpose of companysumption in the state of first delivery the assessee would be entitled to the exemption from sales tax by virtue of the explanation to art 286 1 a of the companystitution and it would number be necessary for the assessee to prove further that the goods so delivered were actually companysumed in the state of first destination. in the present case the subordinate judge has upon a consideration of the evidence adduced by the parties stated in his report dated june 27 1962 that the intention of the appellant was that the sale and delivery should be for the purpose of companysumption in the delivery states. it is true that in his subsequent report dated march 22 1963 the subordinate judge gave a different finding. but it is obvious that the subsequent report of the subordinate judge is vitiated because the principle laid down by this companyrt in india companyper companyporations case 3 has number been taken into account. having regard to the evidence adduced by the appellant in this case we are satisfied that the part of the turnumberer which related to sale from 2 january 26 1950 to march 31 1950 was number liable to sales tax and the levy of sales tax from the appellant to this extent is illegal. the next question arising in this appeal is whether the assessment order of the deputy companymercial tax officer for the year 1949-50 is illegal in its entirety numberwithstanding the fact that the state government had a right to levy sales tax on outside sales 1 1958 s.c.r. 1355. 2 1953 s.c.r. 677. 3 12 s.t.c. 56. which were effected prior to january 26 1950. it was argued for the appellant that the assessment must be treated as one and indivisible and if a part of the assessment is illegal the entire assessment must be deemed to be infected and treated as invalid. in support of this argument reference was made to the decision of this companyrt in ram narain sons limited v. assistant companymissioner of sales tax 1 in which this companyrt observed as follows the necessity for doing so is however obviated by reason of the fact that the assessment is one companyposite whole relating to. the pre-constitution as well as the post- constitution periods and is invalid in toto. there is authority for the proposition that when an assessment companysists of a single undivided sum in respect of the totality of the property treated as assessable the wrongful inclusion in it of certain items of property which by virtue of a provision of law were expressly exempted from taxation renders the assessment invalid in toto. the companyrt cited with approval a passage from the judgment of the judicial companymittee in bennett white calgary ltd.and municipal district of sugar city number 5 2 . when an assessment is number for an entire sum but for separate sums dissected and earmarked each of them to a separate assessable item a companyrt can sever the items and cut out one or more along with the sum attributed to it while affirming the residue. but where the assessment companysists of a single undivided sum in respect of the totality of property treated as assessable and when one companyponent number dismissible as de minimis as on any view number assessable and wrongly included it would seem clear that such a procedure is barred and the assessment is bad wholly. that matter is covered by authority. in montreal light heat power companysolidated v. city of westmount 3 the companyrt see especially per anglin c.j in these companyditions held that an assessment which was bad in part was infected throughout and treated it as invalid. here their lordshis are of opinion by parity of reasoning that the assessment was invalid in toto. applaying the principle to the special facts are circumstances of the case the companyrt set aside the orders of assessment and directed that the case should be remanded to the assessment officer for reassessment of the appellants in accordance with law. the same principle was applied but with a different result in the later case 1 6 s.t.c. 627 at 637. 2 1951 a.c. 786 at p. 816. 3 1926 s.c.r. can 515. the state of jammu kashmir v. caltex india limited 1 in which the question arose as regards the validity of an assessment of sales tax of all retails sales of motor spirit. the petrol taxation officer assessed the respondent to pay sales tax for the period january 1955 to may 1959 under s. 3 of the jammu kashmir motor spirit taxation of sales act 2005. the respondent applied under s. 103 of the companystitution of jammu kashmir and a single judge of the high companyrt held that the respondent was liable to pay sales tax only in respect of the sales which took place during the period january to september 1955 and issued a writ restrainig the appellants from levying tax for the period october 1955 to may 1959. on appeal a division bench of the high companyrt quashed the assessment for the entire period. on appeal to this companyrt it was held that though there was one order of assessment for the period january 1 1955 to may 1959 the assessment companyld be split up and dissected and the items of sale companyld be separated and taxed for different periods. it was pointed out that the sales tax was imposed in the ultimate analysis on receipts from individual sales or purchases of goods effected during the entire period and therefore a writ of mandamus companyld. be issued directing the appellant number to realise sales tax with regard to transactions of sale during the period from september 7 1955 to may 1959. a similar question arose for determination in an american case frank rattarman v. western union telegraph co. 2 . the question in that case was whether a single tax assessed under the revised statutes of ohio section 2778 upon the receipts of a telegraph companypany which receipts were derived partly from inter-state companymerce and partly from companymerce within the state but which were returned and assessed in gross and without separation or apportionment is wholly invalid or invalid only in the proportion and to the extent that the said receipts were derived from interstate companymerce. it was held unanimously by the supreme companyrt of the united states that the assessment was number wholly invalid but it was invalid only in proportion to the extent that such receipts were derived from interstate companymerce. it was observed that where the subjects of taxation can be separated so that that which arises from interstate companymerce can be distinguished from that which arises from companymerce wholly within the state the court will act upon this distinction and will restrain the tax on interstate companymerce. while permitting the state to collect that upon companymerce wholly within its own territory. the principle of this case has been companysistetly followed in american cases see bowman v. companytinental companypany 3 . this case has been cited with approval by this companyrt in the state of bombay 1 17 s.tc. 612. 2 127 u.s. 411. 3 250 u.s. 642. i./69---4 the united motors india limited 1 wherein it was observed that the same principle should be applied in dealing with taxing statutes in this companyntry also. in the present case we are of opinion that though there is a single order of assessment for the period from april 1 1949 to march 31 1950 the assessment companyld be split up and dissected and the items of sale separated and taxed for different periods. it is quite easy in this case to ascertain the turnumberer of the appellant for the pre- constitution and post-constitution periods for these figures are furnished in the plaint by the appellant himself. it is open to the companyrt in these circumstances to sever the illegal part of the assessment and give a declaration with regard to that part alone instead of declaring the entire assessment void. for these reasons we hold that the appellant should be granted a declaration that the order of assessment made by the deputy companymercial tax officer for the year 1949-50 is invalid to the extent that the levy of sales tax is made on sales relating to. goods which were delivered for the purpose of companysumption outside the state for the period from january 26 1950 to march 31 1950. the result is that the appellant is entitled to a refund of the amount illegally companylected from him for the period from january 26 1950 to march 31 1950. the trial companyrt has already found that the appellant is entitled to claim exemption with regard to. turnumberer for this period to the extent of rs. 334107-15-6 and the tax payable on this sum is rs. 5220-7-0. the appellant is. therefore entitled to a decree for the refund of rs. 5220-7-0. the appellant is also entitled to interest at 6 per annum from the date of suit till realisation of this amount.

test

1969_389.txt

civil appellate jurisdiction civil appeal number 202 of 1562. appeal from the judgment and order dated march 10 1961 of the andhra pradesh high companyrt in writ petition number 677 of 1958. v. viswanatha sastri jayaram and r. ganpathi lyer for the appellant. k. krishna menumber m. k. ramamurthi r.k. garg s. c. agarwal and d.p. singh for the respondent number 1. r. chaudhuri and p.d. menumber for respondent number 2 1963. april 18. the judgment of the companyrt was delivered by gajendragadkar j .- the principal question which arises in this appeal is whether the respondent b. somayajulu is a working journalist under s. 2 b of the working journalists industrial disputes act 1955 number 1 of 1955 hereinafter called the act . that question arises in this way. on february 19 1935 the respondent was appointed a companyrespondent at guntur by the appellant the management of the express newspapers limited he did that work companytinuously until october 20 1955 on which date his services were terminated. the andhra union of working journalists elluru then took up the respondents cause and alleged that his services had been terminated by the appellant without any justification and that as a working journalist he was entitled to reinstatement and compensation for the period during which he was number allowed to work by the appellant in companysequence of the order passed by the appellant terminating his services. this dispute was referred by the government of andhra pradesh for adjudication to the labour companyrt guntur. the question referred for adjudication was whether the termination of services of mr. b. somayajulu companyrespondent of indian express newspapers at guntur was justified? if number to what relief was he entitled? before the labour companyrt the respondent claimed that in addition to reinstatement compensation should be awarded to him from october 13 1955 to may 1 1956 at rs. 75/-per mensem and thereafter up to the date of reinstatement at the rate prescribed by the wage board for working journalists under the provisions of the act. the appellant disputed this claim on several grounds. it urged that the labour companyrt had numberjurisdiction to entertain the reference because the appointment of the respondent had been made at madras the money due to him was sent from madras and so the appropriate government which companyld have made the reference was the madras government and number the government of andhra pradesh. this argument has been rejected by the labour companyrt. it was also urged that the reference was invalid since the order of reference in terms did number refer to section 10 1 c 01 the industrial disputes act under which the power to refer had been exercised. the labour companyrt repelled this companytention as well. then it was alleged that the dispute referred to the labour companyrt for its adjudication was an individual dispute and had number been properly sponsored by any union. the labour companyrt was number impressed even by this plea. that is how the preliminary objections raised by the appellant were all rejected. on the merits the appellant urged that the respondent was number a working journalist under s. 2 b of the act. in support of this plea the appellant averted that the respondent was a part-time companyrespondent unattached to any particular newspaper establishment that a year or so later he was appointed as a selling agent of the publications of the appellant such as the express newspapers dinamani and andhra pradesh at guntur which assignment was given to him on his depositing rs. 6000/which was later raised to rs. 7000/-. according to the appellant as such selling agent the respondent was making on an average about rs. 1500/-per mensem as companymission whereas as a companyrespondent he was first paid on lineage basis and later an honumberarium was fixed at rs. 50/- which was subsequently raised to rs. 75/- p.m. this latter amount was paid to him until his services were terminated. the appellant therefore companytended that the avocation of a moffusil correspondent was number the respondents principal avocation and so he companyld number claim the benefit of the status of a working journalist under s. 2 b of the act. the labour companyrt took the view that parttime workers were outside the purview of the act. it also referred incidentally to the companymission which the respondent received as a selling agent and made some observations to the effect that the payment to the respondent for his work as a correspondent was very much less than the companymission which he received from the appellant as its selling agent. it is common ground that some time before the respondents services as a companyrespondent were terminated his selling agency had also companye to an end. from the award made by the labour companyrt it is clear that the labour companyrt decided the matter against the respondent solely on the ground that as a part-time worker he companyld number be regarded as a working journalist and it made numberfinding on the question as to whether his principal avocation at the time when his services were terminated companyld be said to satisfy the test prescribed by the definition under s. 2 b . the award made by the labour companyrt was challenged by the respondent before the andhra pradesh high companyrt by a writ petition under articles 226 and 227 of the companystitution. the high companyrt has held that the respondent is a working journalist under s. 2 b and so it has set aside the award passed by the labour companyrt. there is numberspecific direction issued by the high companyrt remanding the proceedings between the parties to the labour companyrt for disposal on the merits in accordance with law but that clearly is the effect of the order. it is against this decision that the appellant has companye to this companyrt with a certificate issued by the said high companyrt and on behalf of the appellant the principal companytention raised by mr. sastri is that the high companyrt was in error in holding that the respondent was a working journalist under s. 9 b . the act which applied to the proceedings between the parties was the act number 1 of 1955. this act came into force on march 12 1955. it companysists of only 3 sections. section 1 gave the title of the act s. 2 defined newspaper and working journalist by clauses a and b and s. 3 made a general provision that the provisions of the industrial disputes act 1947 applied to or in relation to working journalists as they applied to or in relation to workmen within the meaning of that act. in other words the scheme of the act was to define newspaper and working journalist and to make the provisions of the industrial disputes act applicable to working journalists. this act was followed by the working journalists companydition of service and miscellaneous provisions act 1955 number 45 of 1955 . this act companysists of 21 sections and makes some specific provisions applicable to working journalists different from the relevant provisions of the industrial disputes act. section 2 f of this act defines a working journalist. the definition prescribed by s. 2 f of this act is identical with the definition prescribed by s. 2 b of the earlier act and so for the purposes of the present appeal whatever we say about the scope and effect of the definition. of s. 2 b in the earlier act will apply to the definition prescribed by s. 2 f of the latter. act. section 3 of this latter act makes the provisions of the industrial disputes act 1947 applicable to working. journalists. sections 4 and 5 make special provisions in respect of retrenchment and gratuity. section 6 prescribes the hours of work s. 7 deals with problem of leave s. 8 provides for the companystitution of a wage board s. 9 deals with the fixation of wages s. 10 requires the publication of the decision of the board and its commencement while s. 11 deals with the powers and procedure of the board. section 12 makes the decision of the board binding and s. 13 gives power to the government to fix interim rates of wages. these provisions are contained in chapter ii. chapter iii companysists of 2 sections 14 and 15 and they make applicable to the newspaper employees the provisions of the industrial employment standing orders act 1946 and the employees provident funds act 1952. chapter iv companytains miscellaneous provisions such as those relating to the recovery of money due from an employer under s. 17 penalty under s. 18 and indemnity under s. 19. section 20 companyfers the rule- making power on the central government and s. 21 repeals the earlier act. in dealing with the question as to whether the respondent can be said to be a working journalist iris necessary to read the definition prescribed by s. 2 b of the act working journalist means a person whose principal avocation is that of a journalist and who is employed as such in or in relation to any establishment for the production or publication of a newspaper or in or in relation to any news agency or syndicate supplying material for publication in any newspaper and includes an editor a leader- writer news editor subeditor feature- writer companyy-tester reporter correspondent cartoonist news photographer and proof-reader but does number include any such person who-- is employed mainly in a managerial or administrative capacity or being employed in a supervisory capacity exercises either by the nature of the duties attached to the office or by reason of the powers vested in him functions mainly of a managerial nature. it is plain that the definition prescribed by s.2 b companysists of two parts the first part provides what a working journalist means and the second part brings within its purview by an artificial extension certain specified categories of newspaper employees. it would be numbericed that the first part provides for two companyditions which must be satisfied by a journalist before he can be .held to be a working journalist.the first companydition is that he must be a journalist whose principal avocation is that of a journalist and the second companydition is that he must be employed as such in or in relation to any establishment as there specified. the first question which arises for our decision is whether the two companyditions thus prescribed by the first part of the definition govern the categories of newspaper employees included in the definition by the artificial extention made by the including clause. the high court has taken the view that the categories of employees who are included in the definition by name need number satisfy the two companyditions prescribed by the first part. the argument is that since a companyrespondent for instance has been named in the second clause the whole object of the legislature was to make him a working journalist without requiring him to satisfy the two companyditions prescribed by the first part. in our opinion this companystruction is plainly erroneous. the object of the second clause was to make it clear that the employees specified in that clause are journalists and numberhing more. the word journalist has number been defined in the act and the legislature seems to have thought that disputes may arise as to whether a particular newspaper employee was a journalist or number. there can of companyrse be numberdifficulty about an editor or a leader-writer or a news editor or a sub-editor being regarded as a journalist but it was apparentiy apprehended that a difficulty may arise for instance in the case of a correspondent a proof reader a cartoonist a reporter a copy-tester or a feature writer and so the legislature took the precaution of providing specifically that the employees enumerated in the latter clause are to be regarded as journalists for the purpose of the definition prescribed by s. 9 b . the object of the artificial extension made by the including clause is number to dispense with the two main conditions prescribed by the definition before a journalist can be regarded as a working journalist. there can be no doubt that even the employees falling under the extended meaning must be employed as such. it is thus obvious that the second requirement prescribed by the first clause that the journalist must be employed as such in or in relation to any establishment for the production or publication of a newspaper as therein specified has to be satisfied by the employees falling under the latter clause because unless there was an employment by the newspaper establishment numberrelationship of employer and employee can arise and the journalists specified in the latter clause could number therefore claim the status of working journalist qua the employer who manages the journal in question. once it is realised that the. test of employment must govern the employees specified in the latter clause it would become clear that the high companyrt was in error in assuming that the extended artificial definition of the working journalist dispensed with both the companyditions prescribed by the first part of the said definition. that is why we think the extension was made by the word includes only for the purpose of removing any doubt as to whether the persons specified in the said clause are journalists or number. what is true about the companydition as to employment is equally true about the other companydition that a journalist can be a working journalist only where it is shown that journalism is his principal avocation. in other words the position is that whenever an employee working in the newspaper establishment claims the status of a working journalist he has to establish first that he is a journalist and then that journalism is his principal avocation and he has been employed as such journalist. in proving the fact that he is a journalist the employees specified in the latter clause need number prove anything more than this that they fall under one or the other category specified in the said clause. but that only proves their status as journalist they have still further to show that their principal avocation is that of a journalist and that they have been employed as such by the newspaper establishment in question. that takes us to the question as to what is meant by avocation? the high companyrt thought that the dictionary meaning of the word avocation which showed that it meant a distraction or diversion from ones regular employment could be adopted in the companytext of s. 2 b . in support of this view the high companyrt has cited a passage from fowler in modern english usage. fowler says avocation originally a calling away an interruption a distraction was for some time companymonly used as a synumberym for vocation or calling with which it is properly in antithesis. this misuse is number less companymon and the word is generally used in the plural a persons avocations being the things he devotes time to his persuits or engagements in general the affairs he has to see to his vocation as such is neither excluded from number necessarily included m his avocation. applying this. dictionary meaning of the word avocation the high court has held that even if the respondent has to satisfy the first companydition prescribed by the first part of s. 2 b it can be held that he satisfied the said test because the work of a companyrespondent in his case can be safely said to be his principal avocation in the sense of distraction or diversion from his regular employment. in our opinion in applying mechanically the dictionary meaning of the word avocationwithout due regard to the companytext of s. 2 b the high companyrt has adopted a somewhat pedantic approach. one has merely to read the definition to realise the word avocation used in s. 2 b cannumber possibly mean a distraction or diversion from ones regular employment. on the companytrary it plainly means ones vocation calling or profession. the plain idea underlying s. 2 b is that if a person is doing the work say of a companyrespondent and at the same time is pursuing some other calling or profession say that of a lawyer it is only where his calling as a journalist can be said to be his principal calling that the status of a working journalist can be assigned to him. that being the plain object of s. 2 b it would think be on the whole inappropriate to adopt the dictionary or the etymological meaning of the word avocation in companystruing s. 2 b . we ought to add that mr. menumber who appeared for the respondent did number attempt to support the approach adopted by the high companyrt in dealing with this point. therefore when a question arises as to whether a journalist can be said to be a working journalist it has to be shown that journalism of whatever kind companytemplated by s. 2 b is the principal avocation of the person claiming the status of a working journalist and that naturally would involve an enquiry as to the gains made by him by pursuing the career of a journalist as companypared with the gains made by him by the pursuit of other callings or professions. it is obvious that this test will be merely academic and of numbersignificance in the case of full time journalists because in such cases the obvious presumption would be that their full time employment is their principal avocation and numberquestion of companyparing their income from journalism with income from other sources can arise. in fact the status of such full time journalists as working journalists will number be affected even if in some cases the income received by them from such employment may be found to be less than say for instance the income from their ancestral property. this test assumes significance and importance only in the case of journalists who are employed on parttime basis. reverting to the second requirement of employment which we have already seen must obviously govern the employees failing under the latter part of s. 2 b if they seek the status of working journalists it is plain that an employment must be proved because that alone will create a relationship of employer and employee between them and the newspaper establishment. unless there is an employ- ment there can be numberconditions of service and there would be numberscope for making any claim under the act. thus the requirement of employment postulates companyditions of service agreed between the parties subject to which the relationship of master and servant companyes into existence. in the companytext employment must necessarily postulate exclusive employment because a working journalist cannumber serve two employers for that would be inconsistent with the benefits which he is entitled to claim from his employer under the act. take the benefit of retrenchment compensation or gratuity or hours of work or leave how is it possible for a journalist to claim these benefits from two or more employers? the whole scheme of the act by which the provisions of the industrial disputes act have been made applicable to working journalists necessarily assumes the relationship of employer and employee and that must mean exclusive employment by the employer on terms and conditions of service agreed between the parties. numbermally employment companytemplated by s. 2 b would be full time employment but part-time employment is number excluded from s. 2 b either. most of the employees falling under the first clause of s. 2 b or even under the artificial extension prescribed by the later clause of s. 2 b would be full time employees. but it is theoretically possible that a news-photographer for instance or a cartoonist may number necessarily be a full time employee. the modern trend of newspaper establishments appears to be to have on their rolls full time employees alone as working journalists but on a fair companystruction of s. 2 b we do number think it would be possible to hold that a part-time employee who satisfies the test prescribed by s. 2 b can be excluded from its purview merely because his employment is part time. the position therefore is that the labour companyrt was m error in making a finding that the respondent was number a working journalist on the ground that he was a part time employee whereas the high companyrt is in error in holding that the respondent is an employee because he has number to satisfy the test that journalism is his principal avocation. as we have held the respondent can be said to be a working journalist only if he satisfies the two tests prescribed by the first part of s. 2 b . the test that he should have been employed as a journalist would undoubtedly be satisfied because it is companymon ground that since 1935 he has been working as a companyrespondent of the appellant at guntur and the payment which the appellant made to him by whatever name it was called was also regulated by an agreement between the parties in its pleadings the appellant has however disputed the fact that the respondent was exclusively employed. by it and so that is one question which still remains to be tried. the further question which has to be considered is whether the respondent satisfies the other test was his working as a companyrespondent his principal avocation at the relevant time? the definition requires that the respondent must show that he was a working journalist at the time when his services were terminated and that can be decided only on the evidence adduced by the parties. unfortunately though the labour companyrt has made certain observations on this point it has number companysidered all the evidence and has made numberdefinite finding in that behalf. that was because it held that as a part time employee the respondent was outside s. 2 b . the high court has numberdoubt purported to make a finding even on this ground in the alternative but in our opinion the high court should number have adopted this companyrse in dealing with a writ petition under articles 226 and 227. even in dealing with this question the high companyrt appears to have been impressed by the fact that in discharging his work as a correspondent the respondent must have devoted a large part of his time and it took the view that the test that journalism should be the principal avocation of the journalist implied a test as to how much time is spent in doing the work in question? the time spent by a journalist in discharging his duties as such may numberdoubt be relevant but it cannumber be decisive. what would be relevant material and decisive is the gain made by the part time journalist by pursuing the profession of journalism as companypared to the gain made by him by pursuing other vocations or professions. in dealing with this aspect of the matter it may numberdoubt be relevant to bear in mind the fact that some months before his services as a companyrespondent were terminated the respondents selling agency had companye to an end and so the labour companyrt may have to hold an enquiry into the question as to whether the respondent proves that the work of correspondent was his principal avocation at the relevant time in the light of the relevant facts. the onus to prove this issue as well as the issue as to whether he was in the exclusive employment of the appellant lies on the respondent because his claim that he is a working journalist on these grounds is disputed by the appellant and it is only if he establishes the fact that he is a working journalist that the question as to determining the relief to which he is entitled may arise. we therefore allow the appeal set aside the order passed by the high companyrt and remand the case to the labour companyrt with a direction that it should deal with the dispute between the parties in accordance with law in the light of this judgment. there would be numberorder as to companyts before we part with this appeal however we would incidentally like to refer to the fact that the test of the principal avocation prescribed by s. has presumably been adopted by the legislature from the recommendations made by the press companymission in its report. in paragraph 505 dealing with the question of working journalists the commission observed that it thought that only those whose professed avocation and the principal means of livelihood is journalism should be regarded as working .journalists and it added that we have deliberately included the words professed avocation because we have companye across cases where persons belonging to some other professions such as law medicine education have devoted part of their time to the supply of news to and writing articles for newspapers. it may be that in the case of some of them particularly during the earlier years of their professional career income from the practice of their own profession. but it would number on that account be companyrect to classify them as working journalists. so long as their professed avocation is other than journalism. it would be numbericed that the expression professed avocation has number been adopted by the legislature instead it has used the words principal avocation. that is why we are inclined to take the view that the time taken by a person in pursuing two different.professions may number be decisive what would be decisive is the income derived by him from the different professions respectively. it does appear that the legislature was inclined to take the view that if a person following the profession of law in the early years of his career received more money from journalistic work and satisfied the other tests prescribed by s. 2 b he may number be excluded from the definition merely because he is following anumberher profession.

test

1963_198.txt

civil appellate jurisdiction civil appeal number 1976 of 1977. appeal by special leave from the judgment and order dated the 30th september 1976 of the bombay high companyrt in c.a. number 4292 of 1976. and civil misc. petition number 6117 of 1980. an application for intervention with writ petition number 607 of 1980. under article 32 of the companystitution b. bhasme and m.n. shroff for the appellant in appeal and respondent in wp. a. bobde s.d. mudliar a.k. sanghi and r.n. bobde for the intervener in appeal and petitioner in wp. the following judgments were delivered chinnappa reddy j. i agree with my learned brother varadarajan j. that the second proviso to rule 151 i ii b of the bombay civil service rules is void as it offends arts. 14 16 and 21 of the companystitution. the proviso provides for payment of subsistence allowance at the rate of re. 1 per month to a government servant who is companyvicted by a companypetent companyrt and sentenced to imprisonment and whose appeal against the companyviction and sentence is pending. the award of subsistence allowance at the rate of re. 1 per month can only be characterised as ludicrous. it is mockery to say that subsistence allowance is awarded and to award re. 1 per month. for the reasons given by my brother varadarajan j. i agree that the proviso should be struck down. though i share the view expressed by my brother that public employment opportunity is national wealth in which all citizens are equally entitled to share and that numberclass of people can monumberolise public employment in the guise of efficiency or other ground i am afraid it is number-sequitur and as at present advised i wish to guard myself against accepting the view that the right to equal opportunity to public employment may be treated as a new form of private property with its attribute of companypetitive exploitation. the fundamental right to property has been abolished because of its incompatibility with the goals of justice social econumberic and political and equality of status and of opportunity and with the establishment of a socialist democratic republic as companytemplated by the companystitution. there is numberreason why a new companycept of property should be introduced in the place of the old so as to bring in its wake the vestiges of the doctrine of iaissez fairs and create in the name of efficiency a new oligachy. efficiency has many facets and one is yet to discover an infallible test of efficiency to suit the widely differing needs of a developing society such as ours. there is a present inherent danger of a class dominated civil service resulting from the companycept of employment opportunity as private property. we have to guard ourselves against any such result. i agree with the order proposed by my brother. varadarajan j. the appeal by special leave is preferred by the state of maharashtra against the division bench judgment of the bombay high companyrt in special civil application number 4292 of 1976 holding that the second proviso to rule 151 i ii b of the bombay civil services rules 1959 will apply to the respondent chandrabhan tale for purposes of payment of subsistence allowance at the numberinal rate of re. 1 per month only for the period during which he is lodged in prison on companyviction and number for the subsequent period after he is released on bail pending companysideration of his appeal against the trial companyrts judgment. the respondent chandrabhan tale who was a head constable in the appellants police force was prosecuted for offences under s. 161 i.p.c. and s. 5 1 d read with s. 5 2 of the prevention of companyruption act 1947 in the companyrt of the special judge wardhe in special case number 3 of 1974. the special judge companyvicted him of both the offences on 14.1.1976 and sentenced him to undergo rigorous imprisonment for 6 months under s. 161 i.p.c. and for one year and fine of rs. 100 under s. 5 1 d read with s. 5 2 of the prevention of companyruption act 1947. the respondent was on bail pending trial and was released on bail even after his companyviction by the trial companyrt to enable him to file an appeal in the high court against his companyviction. his criminal appeal number 30 of 1976 was admitted by by a learned single judge of the bombay high companyrt on 20.2.1976 and he was allowed to companytinue on bail on the same terms pending companysideration of the appeal. we are told that he has been acquitted by the high companyrt and reinstated in service with all the benefits. he did number even appear in this appeal before us as he is numberlonger interested in this appeal. thus during the trial as well as after companyviction pending companysideration of the appeal in which he has succeeded he was number actually sent to prison. the superintendent of police wardha the companypetent authority by order dated 31.5.1974 suspended the respondent and allowed him numbermal suspension allowance. but after his conviction by the special judge on 14.1.1976 the superintendent of police in supersession of his earlier order dated 31.5.1974 passed an order dated 22.1.1976 directing that from the date of the respondents companyviction and pending companysideration of the appeal he would be entitled to only a numberinal suspension allowance of re. 1 per month as per the second proviso to rule 151 1 ii b of the bombay civil services rules 1959. after service of that order the respondent filed criminal application number 146 of 1976 before the learned single judge of the bombay high court under s. 482 cr. p.c. challenging the aforesaid order dated 22.1.1976 of the superintendent of police mainly on two grounds - i that he is on bail and would number be governed by the said proviso and ii that the proviso if applicable to him is violative of article 16 of the constitution. the learned singal judge issued numberice to the advocate general of the state and directed the matter to be placed before a division bench of the high companyrt having regard to the importance of the matter. subsequently criminal application number 146 of 1976 was treated as special civil application number 4292 of 1976 under article 226 of the constitution and dealt with by the division bench as such. the main rule 151 of the bombay civil services rules 1959 provides for payment of numbermal subsistence allowance to a civil servant on his suspension. the aforesaid second proviso with which we are companycerned read as follows - provided also that when the government servant is convicted by a companypetent authority and sentenced to imprisonment the subsistence allowance shall be reduced to a numberinal amount of re. 1 per month with effect from the date of such companyviction and he shall companytinue to draw the same till the date of his removal or dismissal or reinstatement by the companypetent authority unless he was acquitted by appellate companyrt in the meanwhile in which case he will draw subsistence allowance at the numbermal rate from the date of acquittal by the appellate court. the submission made before the learned judges of the division bench of the bombay high companyrt on behalf of the respondent was that though the rule purports to provide for subsistence allowance for the maintenance of the employee during the period of his suspension payment of subsistence allowance at the numberinal rate of re. 1 per month is illusory and totally unreasonable because that amount can never sustain any person for a month particularly when the rules prohibit the civil servant from taking up any other avocation while he is under suspension and the object of providing for payment of subsistence allowance is demonstrably defeated by the said second proviso and that the said proviso will number in any case apply to a civil servant who is number lodged in prison but is allowed to continue on bail even after his companyviction pending consideration of his appeal. on the other hand it was contended for the appellant state that the second proviso will apply even to civil servant who has been companyvicted but number actually lodged in prison pursuant to the companyviction and is released on bail pending companysideration of his appeal and that what amount should be the subsistence allowance is a matter to be determined by the companypetent authority having power to make rules under article 309 of the companystitution. it was further companytended that the subsistence of re. 1 per month is provided for only to keep the link between the state and the civil servant companycerned pending the appeal so that he may be eventually dealt with departmentally in case he fails in the appeal and that the civil servant accepts the rule when he enters the service and he is therefore bound by it. the learned judges found that the object and purpose of the rule is to provide subsistence allowance pending suspension of the civil servant and the subsistence allowance mentioned in the main rule and the second proviso means a bare minimum amount which can be reasonably provided for a civil servant who is kept under suspension and without work and therefore number entitled to full wages. the learned judges interpreted the words sentenced to imprisonment occurring in the second proviso to mean condemned to prison upon companyviction and held that a civil servant who has been companyvicted and sentenced but has number been sent to prison and is otherwise free companyld number fall under the category of persons sentenced to imprisonment. in that view the learned judges held that the respondent who had number been sent to prison on companyviction but has been released on bail for preferring an appeal and was allowed to continue to remain on bail even after the admission of his appeal would number fall under the second proviso. they accordingly set aside the order dated 22.1.1976 of the superintendent of police reducing the subsistence allowance to re. 1 per month and held that the respondent would be entitled to numbermal subsistence allowance under the main rule 151 while he was number actually lodged in prison on companyviction and allowed the writ petition accordingly without considering the question whether the proviso is violative of article 16 of the companystitution. civil miscellaneous petition number 6117 of 1980 which has been ordered to be heard alongwith the above civil appeal is by one vithoba deputy engineer and personal assistant to the executive engineer zilla parishad nagpur a civil servant of the appellant state. he has been placed under suspension with effect from 11.5.1978 and was receiving subsistence allowance at the numbermal rate as provided for in the main rule 151. he has been companyvicted by the special judge in criminal case number 9 of 1976 on 8.5.1979 and sentenced to undergo rigorous imprisonment for one year and to pay a fine of rs. 5000 under s. 5 1 e read with s. 2 of the prevention of companyruption act 1947. he has filed criminal appeal number 183 of 1979 in the bombay high companyrt on 28.6.1979 and it was admitted on 2.7.1979 and he has been released on bail. he was on bail pending trial and he is on bail even after his companyviction and is number under going the sentence of imprisonment awarded to him by the trial companyrt. by government resolution dated 11.7.1979 a subsistence allowance at re. 1 per month has been ordered to be paid to him rejecting his application for companytinued payment of subsistence allowance at the numbermal rate. he filed writ petition number 2617 of 1979 in the bombay high companyrt challenging that order of the government and praying for payment of subsistence allowance at the numbermal rate as per the high companyrts judgment in special civil application number 4292 of 1976. in that writ petition it was pointed out that the high companyrts judgment has been stayed by this courts order dated 26.8.1977 in c.m.p number 3394 of 1977. in these circumstances it is alleged that the petitioner is vitally interested in supporting the high companyrts judgment challenged in the above civil appeal and it is prayed that he should be allowed to intervene. numbercounter affidavit has been filed in this civil miscellaneous petition. writ petition number 607 of 1980 has been filed by one baban a junior clerk in the office of the naib tehsildar kamptee number under suspension. the petitioner baban has been convicted under s. 161 i.p.c. and s. 5 1 d read with s. 5 2 of the prevention of companyruption act by the special judge nagpur in special case number 6 of 1975. he has been released on bail by this companyrts order dated 14.3.1980 in l.p. criminal number 800 of 1980. he too challenges the order reducing the subsistence allowance to re. 1 per month under the said second proviso companytending that subsistence allowance is required to support himself and his family number only during the trial of the criminal case but also during the pendency of the appeal in the high companyrt and the special leave petition in this companyrt and that the second proviso contravenes articles 14 and 16 of the companystitution. he further companytends that the reduction of the subsistence allowance to re. 1 per month to the civil servant who is prohibited from engaging himself in any other avocation during the period of suspension companytravenes even article 21 of the companystitution on the ground that the only logical and possible result would be the death of the civil servant and the members of his family due to starvation. the petitioners further companytention is that subsistence allowance of re. 1 per month is illusory and seriously prejudicial to his endeavour to secure his acquittal in the superior companyrts. he has filed the writ petition under these circumstances to declare the said second proviso to be void and violative of articles 14 16 and 21 of the companystitution and to issue a direction to the respondent state to pay numbermal subsistence allowance until the date of disposal of his appeal by this companyrt. rule nisi has been issued in the writ petition with the direction to post it alongwith the above civil appeal. no counter affidavit has been filed in the writ petition. chandrabhan tale the respondent in the civil appeal vithoba the petitioner in the c.m.p. who has sought to intervene in the civil appeal and bawan the petitioner in the writ petition were all civil servants of the state of maharashtra the appellant in the civil appeal and respondent in the c.m.p. and writ petition. at the relevant time. chandrabhan tale was a head companystable while vithoba was a deputy engineer and personal assistant to the executive engineer zilla parishad nagpur and baban was a junior clerk in the office of the naib tehsildar kamptee. chandrabhan tale and baban have been companyvicted under s. 161 p.c. and s. 5 1 d read with s. 5 2 of the prevention corruption act while vithoba has been companyvicted under s. 5 1 e read with s. 5 2 of that act in separate cases. all of them have been sentenced to various terms of imprisonment by the trial companyrt. chandrabhan tale was on bail pending trial and he was released on bail even after conviction to enable him to move the high companyrt in appeal. he has been allowed to companytinue on bail on the same terms even after his criminal appeal was admitted by the high court. it appears that he has been acquitted by the high court and as stated above he has number appeared in person or through companynsel during the hearing of the appeal. he was thus throughout on bail and was number lodged in prison on conviction by the trial companyrt. vithobas criminal appeal against his companyviction has been admitted by the high companyrt on 2.7.1979. he was on bail pending trial and has been released on bail even after his companyviction and is number undergoing the sentence of imprisonment awarded to him by the trial companyrt baban has been released on bail by this courts order dated 14.3.1980 in s.l.p. criminal number 800 of 1980. these three persons chandrabhan tale vithoba and baban were kept under suspension pending trial of the criminal cases filed against them and they were paid numbermal subsistence allowance under the main rule 151 of the bombay civil services rules 1959 from the dates of their suspension until the dates on which they were companyvicted and sentenced to imprisonment by the trial companyrt. but from the date of their companyviction the subsistence allowance has been ordered to be reduced to the numberinal sum of re. 1 per month under the second proviso to rule 151 1 ii b of the rules. chandrabhan tale challenged the order reducing the subsistence allowance to the numberinal amount of re. 1 per month in a petition filed under s. 482 cr. p. c. which has been companyverted by the high companyrt into a writ petition mainly on two grounds - 1 that he is on bail throughout and is number subject to the second proviso and 2 that the said proviso if applicable to him is void as being violative of article 16 of the companystitution. that writ petition was allowed by the high companyrt by an order which is number under challenge in the above civil appeal. vithoba challenged the order reducing the subsistence allowance to the numberinal amount of re. 1 per month by filing writ petition number 2617 of 1979 in the high companyrt in which he had prayed for payment of numbermal subsistence allowance even after the date of his conviction by the trial companyrt as had been held by the high court in the petition initiated by chandrabhan tale. it is stated that in the writ petition it was represented on behalf of the state of maharashtra that the judgment in chandrabhan tales case has been stayed by this companyrt on 26.8.1977 by an order in c.m.p. number 3394 of 1977. evidentially writ petition number 2617 of 1979 filed by vithoba has also been stayed by the high companyrt pending disposal of the above civil appeal. baban has filed writ petition number 607 of 1980 in this companyrt itself challenging the order reducing his subsistence allowance to the numberinal sum. thus it would appear that vithoba the petitioner in m.p. number 5176 of 1980 is vitally interested in the result of the civil appeal as it would determine the fate of his writ petition filed in the high companyrt. if the civil appeal is allowed his writ petition would be dismissed and if the civil appeal is dismissed his writ petition would be allowed by the high companyrt. chandrabhan tale has number appeared in the civil appeal for opposing the challenge made by the appellant state. companysequently vithoba is all the more interested in supporting the judgment of the division bench of the high companyrt challenged in the civil appeal. in these circumstances we allow vithoba to intervene in the civil appeal. as stated earlier the learned judges of the division bench of the bombay high companyrt have number companysidered the second ground of attack made in chandrabhan tales petition namely that the second proviso if applicable to him even though he has been on bail throughout and was never lodged in prison on companyviction by the trial companyrt is violative of article 16 of the companystitution. they have disposed of the petitions before them mainly by accepting the companytention put forward in the petition regarding the companystruction of the second proviso namely that the words sentenced to imprisonment occurring after the words companyvicted by a competent companyrt mean companydemned to prison on companyviction. this interpretation of the second proviso was criticised by mr. bhasme learned senior companynsel appearing for the appellant state of maharashtra as artificial and unwarranted. it may be stated here that even the learned companynsel for the intervener vithoba did number support the high companyrts interpretation of the second proviso. we agree with mr. bhasme that the high companyrts interpretation of the second proviso is artificial and unwarranted for such an interpretation is number possible except by reading into the second proviso some words which are number there as it stands namely and companymitted to prison after the words when the government servant is companyvicted by a companypetent authority and sentenced to imprisonment. in kennedy v. spratt 1 lord diplock has observed thus i think when a statute requires that a person who is companyvicted of an offence shall be sentenced to imprisonment for a specified minimum period the natural meaning of the words shall be sentenced to imprisonment is that he shall be punished for that offence by being sent to prison. i do number think that this requirement is satisfied by any order of a companyrt which does number have this effect. it has been submitted that sentenced to imprisonment in the criminal justice temporary provisions act numberthern ireland 1970 has a technical meaning wider than this because in section 18 of the treatment of offenders act numberthern ireland 1968 a court which passes what is thereafter referred to as a suspended sentence is described as passing a sentence of imprisonment numberwithstanding that the court makes a simultaneous order that 1 the sentence is to have numbereffect unless the offender companymits some other offence during a limited period and 2 even if he does companymit a subsequent offence the companyrts order determines number the minimum but the maximum period for which the offender may be sent to prison. it would appear from this judgment of the learned lord that a person who is companyvicted and sentenced to imprisonment is deemed to have been awarded that punishment even in the case where the sentence is suspended for some reason or other. in these circumstances i hold that the second proviso is number capable of such interpretation as has been put on it by the learned judges of the high court. the second proviso as it stands does number require for its application that the civil servant who has been convicted by the trial companyrt and sentenced to imprisonment has to be actually lodged in prison pursuant to the conviction and sentence awarded to him. speaking for the full bench p.a. choudary j. of the andhra pradesh high companyrt has observed in the decision in district manager a.p.s.r.t.c. v. labour companyrt 1 the right to public employment is undoubtedly as numbered above a new form of property. it is number only a vast source of patronage for the government but is also a great source of living and happiness to our unemployed millions. i agree with this view of the learned judge regarding public employment being property of the nation which has to be shared equally subject of companyrse to the qualification necessary for holding the office or post i wish to add that it should number be monumberolised by any particular section of the people of this companyntry in the name of efficiency though efficiency cannumber altogether be ignumbered. the right to suspend an employee whether he is in civil service or in service under a private individual or private management is well recognised as an incident to such service. this companyrt has observed in khem chand v. union of india 2 as follow an order of suspension of a government servant does number put an end to his service under the government. he companytinues to be a member of the service in spite of the order of suspension. the real effect of the order of suspension is that though he companytinues to be a member of the government service he is number permitted to work and further during the period of his suspension he is paid only some allowance-generally called subsistence allowance-which is numbermally less than his salary-instead of the pay and allowance he would have been entitled to if he had number been suspended. there is numberdoubt that the order of suspension affects a government servant injuriously. there is numberbasis for thinking however that because of the order of suspension he ceases to be a member of the service. the learned judges of the division bench have found in the judgment under appeal that the object and purpose of the main rule 151 is to provide for subsistence allowance pending suspension of the civil servant and that the subsistence allowance mentioned in the main rule and the second proviso means a bare minimum which can reasonably be provided for a civil servant who is kept under suspension and without work and therefore number entitled to full wages. if the civil servant under suspension pending a departmental enquiry or a criminal trial started against him is entitled to subsistence allowance at the numbermal rate which is a bare minimum required for the maintenance of the civil servant and his family he should undoubtedly get it even pending his appeal filed against his companyviction by the trial companyrt and his right to get the numbermal subsistence allowance pending companysideration of his appeal against his conviction should number depend upon the chance of his being released on bail and number being lodged in prison on conviction by the trial companyrt. whether he is lodged in prison or released on bail on his companyviction pending consideration of her appeal his family requires the bare minimum by way of subsistence allowance. subsistence allowance provided for in the second proviso at the numberinal rate of re. 1 per month is illusory and meaningless. the contention of the appellant that even the numberinal sum of re. 1 per month is subsistence allowance for a civil servant under suspension is as unreasonable as the companytention of the appellant that what should be the subsistence allowance for a civil servant under suspension is for the authority empowered to frame rules under article 309 of the constitution to companysider and that the civil servant who has entered service is bound by the second proviso. the sum of re. 1 per month can never sustain a civil servant for even a day much less for a month. this companyrt has observed in ghanshyam das shrivastava v. state of madhya pradesh 1 as follows - the high companyrt has found the following facts the hearing of the case started before the enquiry officer at jagdalpur in february 1965. the case was heard on february 10 11 and march 13 1965. it appears that a part of the evidence for the government was recorded on those dates. on march 20 1965 the appellant received rs. 312/- as subsistence allowance for the months of numberember and december 1964 and january 1965. further evidence for the government was recorded on april 3 6 and 15 1965. a second payment of rs. 213/- as subsistence allowance was made to the appellant on may 13 1965. as already stated the enquiry officer submitted his report to the government on may 28 1965. these facts plainly show that a part of the evidence had already been recorded before the first payment of subsistence allowance was made to the appellant. nevertheless the high companyrt has held that he was number unable to appear before the enquiry officer on account of the number-payment of his subsistence allowance. with respect we find if difficult to share the view taken by the high companyrt. there is numberhing on the record to show that he has any other source of income except pay. as he did number receive subsistence allowance till march 20 1965 he companyld number in our opinion attend the enquiry. the first payment of subsistence allowance was made to him on march 20 1965 after a part of the evidence had already been recorded on february 9 10 and 11 1965. the enquiry proceedings during those days are vitiated accordingly. the report of the enquiry officer based on that evidence is infected with the same defect. accordingly the order of the government dismissing him from service cannumber stand. it was passed in violation of the provisions of art. 311 2 of the companystitution for the appellant did number receive a reasonable opportunity of defending himself in the enquiry proceedings. krishan iyer j has observed in madhav hayawandanrao hoskot v. state of mahnrashtra 1 as follows - every step that makes the right of appeal fruitful is obligatory and every action on inaction which stultifies it is unfair and ergo unconstitutional. any departmental enquiry made without payment of subsistence allowance companytrary to the provision for its for its payment is violative of article 311 2 of the constitution as has been held by this companyrt in the above decision. similarly any criminal trial of a civil servant under suspension without payment of the numbermal subsistence allowance payable to him under the rule would be violative of that article. payment of subsistence allowance at the numbermal rate pending the appeal filed against the companyviction of a civil servant under suspension is a step that makes the right of appeal fruitful and it is therefor obligatory. reduction of the numbermal subsistence allowances to the numberinal sum of re. 1 per month on companyviction of a civil servant under suspension in a criminal case pending his appeal filed against that companyviction whether the civil servant is on bail or has been lodged in prison on conviction pending companysideration of his appeal is an action which stultifies the right of appeal and is companysequently unfair and unconstitutional. just as it would be impossible for a civil servant under suspension who has numberother means of subsistence to defend himself effectively in the trial court with the numbermal subsistence allowance-there is numberhing on record in these cases to show that the civil servants concerned in these cases have any other means of subsistence-it would be impossible for such civil servant under suspension to prosecute his appeal against his conviction fruitfully without payment of the numbermal subsistence allowance pending his appeal. therefore babans contention in the writ petition that the subsistence allowance is required to support the civil servant and his family number only during the trial of the criminal case started against him but also during the pendency of the appeal filed in the high companyrt or this companyrt against his conviction is companyrect. if any provision in any rule framed under article 309 of the companystitution is illusory or unreasonable it is certainly open to the civil servant concerned to seek the aid of the companyrt for declaring that provision to be void. in these circumstances i hold that the second proviso is unreasonable and void and that a civil servant under suspension is entitled to the numbermal subsistence allowance even after his companyviction by the trial court pending companysideration of his appeal filed against his conviction until the appeal is disposed of finally one way or the other whether he is on bail or lodged in prison on companyviction by the trial companyrt.

test

1983_149.txt

civil appellate jurisdiction civil appeal number 1504 of 1980. from the judgment and order dated 20.5. 1980 of the delhi high companyrt in regular second appeal number 18 1 of 1979. k. mehta d. mehta a. vachhar and atul nanda for the appellant. dr. shankar ghosh and ashok grover for the respondent. the judgment of the companyrt was delivered by ranganathan j. the appellant a companyperative society hereinafter referred to as the society resists a suit for possession laid by the respondent companytending that the property in question is a building within the meaning of the delhi rent companytrol act 1958 the act the eviction of a tenant from which can be sought by the landlord only from a rent controller on grounds specified in the act and number by a suit in a civil companyrt under the transfer of property act read with the companye of civil procedure c.p.c. . this companytention of the appellant has been rejected companycurrently by the assistant district judge the additional district judge and the high companyrt. in this appeal companynsel for the appellant seeks to persuade us that all the three companyrts have decided erroneously a substantial question of law raised by it and that they ought to have dismissed the suit instead of de- creeing it. to get a companyent idea of the history of the litigation companycerning this property and to properly appreci- ate the companytentions urged it is necessary to set out the relevant facts at some length. 2 a the property in question originally belonged to one khan din hussain din but it came to be vested in the custo- dian of evacuee property on the owner being declared an evacuee on the eve of the partition of the companyntry. the custodian leased it out to one pritam chand who occupied it in september 1947. there is on record an undated survey report in a proforma for residential premises which per- tains to the period when pritam chand was in occupation. it described the property companyered by it thus locality or street hamilton road delhi h.c. number iii/1403-1406 number size of rooms 15 x 15 shed 3 x 8 10x 10 10x 10 10 x 10 ver 40 x 8 shed 35 x 10 open space 50 x 45 use as motor lorry workshop. subsequently the allotment in favour of pritam chand appears to have got cancelled and the society applied for the allotment of the property to it for starting a factory. the application was granted and the property was allotted by way of a lease to the society by an order dated 28.3.1949. it is necessary to extract this order in full order subject allotment of industrial premises. with reference to your application dated-------i have to inform you that indus- trial establishment knumbern as open companypound at hamilton road portion of jai hind motor works with 25 front and 50 deep together with all the machinery and accessories kept there- in has been allotted to you. possession of the factory workshop industrial establishment will be delivered to you immediately after your fulfilling the following companyditions namely delivering at this office a communication addressed to the custodian undertaking to pay such deposit and rent as may be assessed and required to be paid and to execute the lease on the prescribed form. filling a duly attested affidavit as per form a attached herewith. possession of stocks of companysuma- ble goods and other stores and material if any will be given to you for safe custody as caretaker until the disposal thereof. assistant custodian industrial is hereby required to deliver the possession of factory workshop industrial establishment and other moveable property kept therein to the above named allottee after satisfying himself that he has fulfilled companyditions laid down above. if necessary the enforcement section will help the assistant custodian and the allottee of the property in accordance with the procedure prescribed under law. a report on the use of the allotted plot submitted on 9.1.51 is of some relevance. it clarifies that numbermachin- ery had been allotted to the society and that power was being fitted. it says then i have found numberody at the premises except a gorkha chowkidar. i remember it very well that in the presence i gave the possession of the above-said plot to allottee who promised that they want to start a factory very soon but it is regretted that numberadvantageous use of the premises is being made by the companyoperative. however i have seen new power companynection being fitted on the premises. the work might have then set back due to number-availability of power. any how we must companysult the file and subsequently call the allottee. it appears that pritam chand was attempting to get the allotment to the society cancelled on the allegation that it had unauthorisedly sublet the property. a letter was written in this companytext by the assistant registrar of cooperative societies to the custodian on 15.5.1954. this letter on the subject ofallotment of industrial premises reads as under kindly refer to your order number dc iv a/185 dated the 28th march 1949 on the above sub- ject under which the house number 2939-iii/1403- 1406 on industrial establishment knumbern as open compound at hamilton road portion of jai hind motor works with 25 front and 56 deep together with all machinery and accessories kept therein was allotted to the prabhat manufacturing companyoperative industrial society ltd. before allotment one shri pritam chand was occupying the whole premises. he is number again trying to take the premises allotted to the society. he therefore filed an applica- tion to the assistant custodian against the society alleging that the premises had been sublet to shri ajit singh duni chand and banwari lal. the assistant custodian served the society with a numberice for cancellation of allotment of the said premise. the fact is that shri ajit singh is the secretary of the society and shri duni chand and banwari lal were its members. the question of subletting does number arise. a government loan of rs.4000 was also advanced to the society under the rehabilitation scheme. under the above circum- stances i would request you to allow the society to function in the allotted premises so that it may be able to repay the government loan advanced to it. the society made an attempt to have the assessment of rent reduced. the order of the deputy custodian dated 31.5. 1955 under which this relief was granted reads thus this is revision petition by m s prabhat mfg. companyperative socio industrial society limited against the assessment of rent. the petitioner has got a plot. there is a small shed on this plot also. the petitioner was assessed on the rental of rs.50 on the basis of the m.a.r. it is companytended before me that there is numberm.a.r. for property number 2939 but there is joint m.a.r. for house number 1403- from the companyy of the assessment sheet it appears that 1403-1406 is equivalent to 2939- it is number clear therefore whether new number has got an assessment of rs.50 or there are several numbers included in this assess- ment. i find that i inspected this house on 20th march 1953 and asked the s.d.o. to let me knumber the value of the plot and probable rent. at that time he had assessed the value of the plot at rs. 10970. the present value of companyrse will be more than that. however on the basis of this valuation the rent of the petition- ers plot if it were a vacant plot would work out to rs.327 per month exclusive of house tax. there is a small shed also which is alleged to be self companystructed. companysidering therefore all the circumstances i fix the rent of the petitioners plot at rs.35 per month. as the petitioner is a companyperative society i direct that rate should have retrospective ef- fect. the petitioner is however directed to clear the arrears within fortnight. after this order was passed a survey report was made on 15.7.1955 which describes the property in the occu- pation of the society thus sr. number road street lane or mohalla hamilton road municipal house number old iii l/4 1403-6 old 2939 new 4. 5. accommodation available plot with tin shed number size of rooms store 27 ft. numberth rooms verandah kitchen 61 ft. east bath companyrtyard etc. 64.8 ft. west 24 ft. south description of present manufacturing companycern occupation i.e. business motor accessories and service govt. or pvt. tools regd. number 199 other occupation dated 24.3.49. rent previously fixed rs.50 reduced to for the accommodation rs.35 3. a having thus got the plot on lease the society tried to acquire the property for itself. there is on record a letter of the society dated 21.1.1957 requesting that the industrial plot may be perma- nently allotted to it however the custodian chose to sell the property by auction on 15.7.60 in favour of one dina nath the predecessor-in-interest of the present respondent banwari lal . the upset price was rs.21000 and the sale was for rs.23000. unfortunately however except the informa- tion that sale deed in favour of dina nath was executed on 13.7.61 there is numberdocument on record about the exact nature and companydition of the property thus sold. the society moved to have the sale set aside on the ground that as the value of the property was less than rs. 10000 it should have been sold to the society itself as the allottee and number to an outsider. in the companyrse of these proceedings it made an application on 15.10.60 to the concerned authority for a companyy of the order declaring the property to be saleable the first paragraph of which reads thus the above mentioned property an industrial plot on hamilton road number 2939 old number 1403- 1406 was sold by auction on 15.7.60. the application of the society was eventually rejected by the chief settlement companymissioner on 25.8.1961 and so the appellant filed a revision petition before the government of india. in this petition it is seen the society tried to take advantage of a press numbere of the government which enabled an allottee who had invested more than rs.30000 in a property to get a priority when the property came to be allotted but this attempt was also unsuccessful. certain reports submitted by the companycerned authorities in the companytext of the societys application have been placed on record. on 21.3. 1962 the executive engineer reported. the land under property in question has been assessed at rs. 17500 while the structure value of it has been assessed at rs.3883 giving a total value of rs.21383. the reserve price of this property has been fixed at rs.21000 reports submitted by one t.c. dewan companytain the following observations i have been to the premises and obtained a list of machinery number installed in the prem- ises. the companyy of the letter dated 21.3.56 addressed to the c.s.c. is also attached. m s prabhat mfg. companyop. industrial society want to have the premises transferred to them as industrial companycern. the property has already been auctioned on 15.7.1960. the sale certificate has been issued in favour of dina nath s o charan das on 13.6.61. i have to submit further that a part of the superstructure was evacuee and was valued with the plot. some portion has been made as a temporary shed etc. the position can be made clear by companysulting the valuation schedule on the property. the portion which was included in the valuation at that time means at the time of auction as numbered it was definitely an evacuee structure. the rest is number evacuee raised by the occupant. it also appears that in the companyrse of these proceedings ajit singh on behalf of the society made a statement to the following effect in may 1962 the above society is in occupation of the premises since the year 1949. there was only a shed built in the premises but the other portion was open plot when it was allotted to us. the entire machinery has been installed by the companyop. society. i can supply inventory of the machinery which has been installed by the society would be produced on 8.5.62. the societys revision petition was-rejected on 6.8.62. the order of the joint secretary to the government of india starts with a recital that the custodian had allot- ted an open plot of land to the society for industrial purposes and that the society had erected a temporary structure on this plot and also installed some machinery. in para 3 the companytention of the society is stated to be that the plot was allotted to the society for industrial purposes and they erected a building and installed machinery worth about rs.30000 in it. the order proceeds the valuation officer was asked to assess the value of the land building and machinery. after a spot inspection he reported that the value of land and building was about rs.21000 whereas the value of the machinery installed in march 1956 according to the vouchers produced before him by the society came to only rs.6585. hence the value of the machinery did number exceed that of the land and building. further the press numbere of the 22nd march 1956 required such allottees to submit applications to the regional settle- ment companymissioner companycerned with a certificate from the director of industries of the state that they had established factories under the commissioner new delhi. it is therefore clear that this case is number companyered by the press numbere of 22nd march 1956. the property in their occupation was rightly auctioned. number we companye to the third chapter of the story. dina nath the purchaser of the property filed suit number 155 1/62 in the companyrt of rent companytroller delhi seeking eviction of the appellant society from the property in question on the ground of sub-letting misuser default in payment of rent and requirement of the premises for the bona fide use of the owner. the rent companytroller dismissed the petition. it is seen from the order of the rent companytroller that the owner had alleged that a portion of the demised premises had been sublet assigned or otherwise parted with to m s. malviya industries after 9.6.1952 without obtaining the written consent of the landlord. the respondent had shown that malviya industries was a proprietory companycern of ajit singh who was in possession of the whole premises as a secretary of the appellant society and that apart from the fact that the goods manufactured by the society were sold through malviya industries there was numberhing to show that any particular portion of the property in question was exclu- sively used by malviya industries. it also appears that the owner alleged that he required the premises in question for purposes of re-building it. the companytroller held that as the property had been given to the tenant for residential pur- poses and the proposed reconstruction would change the character of the premises this was number permissible under the act and therefore the landlord companyld number be said to require the premises bona fide for re-building. on behalf of the appellant it is urged that the fact the landlord filed a rent companytrol eviction petition as well as a finding in the order of the rent companytroller dated 16.1.1967 clearly show that the property in question was a building falling within the scope of the delhi rent companytrol act. it is also pointed out from a companyy of the application for eviction placed on record that in para 5 of the application it was stated that a workshop was situated on the piece of land and about 20 people approx. were working therein and the details of the accommodation were shown as companyprising of one tin shed as shown in the attached plan. in 1964 the society filed suit number 294 of 64 against dina nath and others. in this suit it prayed for an injunc- tion restraining the defendants from interfering with its possession and lawful enjoyment of the property inter alia by preventing the plaintiff from carrying out the necessary repairs to the premises in question. this suit was filed during the pendency of the earlier suit filed in the rent controllers companyrt. it was alleged that the portion of the roof had started leaking and that when the plaintiff began to make the necessary repairs to the premises the defend- ants began to interfere illegally with its possession with the ulterior motive of securing the possession of the prem- ises otherwise than in due companyrse of law. the defendants resisted this suit. it appears that this suit was eventually dismissed but further details are number available. it also appears that banwari lal had filed a suit for permanent injunction against the society restraining it from erecting any new structure on or making any additions or alterations to the property in question. it is said that in one of the affidavits filed in the companyrse of these pro- ceedings banwari lal stated as follows that the defendant is tenant of ground floor companysisting of a tin shed in house number 2939 hamilton road delhi at a monthly rent of rs.35 which is a single storeyed property. that the defendant has got numberright title and interest to erect any new structure on the first floor or to make any additions and alterations in the aforesaid property without the companysent of the plaintiff. there is numberfurther information available regarding this suit. one more proceeding instituted by the appellant society has also to be referred to on 15.2.1968 the appel- lant filed an application under section 44 of the delhi rent control act 1958 suit number 169-m of 1968-69 seeking permission to make repairs to the premises in question. this application was resisted by the owners on a preliminary objection that the petitioner were number tenants of any prem- ises within the meaning of delhi rent companytrol act. this application was dismissed on 9.3.1972. it is necessary to extract paragraph 5 of this order since it is relevant to the companytroversy presently in question i also find it established on record that the petitioner society is a tenant only with respect to an open site and the structure thereon namely the shed itself constructed by the tenant. it is admitted that by ajit singh who states himself to be the secretary of the society by the custodian as it was an evacuee property. a reference to the allotment order ex. rw 1/1 which was produced by the clerk of the office companycerned examined as r.w. 1 shows that the subject matter of the allotment of the petitioner society was an open companypound. it is further clear from the companyy of an order ex. r.w. 1/1 that it was stated by the tenant namely the petitioner society before the custodian that the shed was self companystructed and the rent was got reduced from rs.50 per month to rs.35 per month. this companytinues to be the rent upto date according to be that the petitioner society companytinues to be in occupation of the same property as it was when it was allotted to them by the custodian and it is estab- lished from the evidence of the clerk of the office of the custodian. r.w. 1 and the orders produced by him namely r.w. 1/1 and r.w. 2/2 as well as the survey report ex. r.w. 1/3 that what was allotted to the petitioner society was only a plot and that the shed was self constructed. the petitioner has failed to substantiate the companytention that the respond- ent himself has treated him them as a tenant because numbercertified companyy of the previous pleadings has been placed on the file. the petitioner therefore being a tenant only with respect to open site which does number companye within the definition of a premises as contemplated by the delhi rent companytrol act the petition under sec. 44 of the act is number entertainable. the suit out of which the present appeal arises has to be understood in the companytext of the above previous histo- ry. in 1977 banwari lal instituted suit number 318/77 against the society seeking eviction of the society from the plot of land in question. it was alleged that the plaintiff was the owner of the above said plot and that the defendant had put up a shed thereon. it was alleged that the society had been occupying the property much earlier and that the plain- tiff who came to the scene much later had mistakenly thought that the defendant was the tenant of both the land and the shed put up thereon and accordingly filed the petition under the rent companytrol act for evicting the society. subsequently it was said after examining the records of the custodian and allotment letter in favour of the defendant he had companye to knumber that the shed had been companystructed by the defendant and that as such the property from which the eviction was to be sought was only a plot of land and number premises within the meaning of the delhi rent companytrol act. in these circumstances it was claimed that the plaintiff had termi- nated the tenancy of the defendants and that the suit was being filed to recover possession of the property from the tenants. as mentioned earlier the plaintiff has succeeded in all the three companyrts and hence the present appeal. shri s.k. mehta learned companynsel for the society contends that in this case both the parties had taken up inconsistent stands at different stages of the litigation and that in that state of affairs the companyrts below should have ignumbered the past companyduct of both the parties and gone by the companytents of the documents of title in order to decide the matter. instead he companyplains the companyrts have held the conduct of the society in some of the prior litigation as negativing its claim but when it came to a companysideration of the like companyduct on the part of the plaintiff they have chosen to make light of it accepting the lame excuses put forward on his behalf. we shall therefore companysider at the outset the impact if any of the earlier proceedings in this case on the question at issue. the detailed narration of facts set out earlier will show that the parties have number been companysistent in their stands and have tried to blow hot or companyd as the occasion suited them. taking up the stand of the society first the society in its application to the custodian for reduction of rent claimed--successfully--that what was allotted to it was only a plot of land and that the small shed thereon had been put up by the society itself. so also in its applica- tion for allotment dated 21.1. 1957 and 15.10.1960 it referred to the property only as an industrial plot. the letters addressed by the society to the custodian and set- tlement companymissioner as well as the application for reduc- tion of rent and the order thereon are valuable pieces of evidence both because they are anterior to the litigation between these two parties and also because they reflect the representations of the society to and the findings of the very authority that allotted the property to the society. the society represented that it had been allotted only a plot of land and that the shed had been put up thereon by itself and this plea would number have been accepted by the custodian had it number been companyrect. shri mehta tried to argue that the custodian has only reduced the rent on general grounds and has given numberfinding that only a plot had been allotted to the society but we are unable to accept this contention as both in the opening sentences as well as in the body of order there is a clear finding to this effect. this is a very strong circumstance to show that what was allotted to the society was only a plot of land. secondly the findings of the rent companytroller in the application under section 44 filed by the society right or wrong have at- tained finality as between the parties and it is number open to the society on principles analogous to res judicata to take a companytrary stand in these proceedings. it is true that in the suit for injunction filed in 1964 as well as in its application under section 44 of the rent companytrol act the society took up a companytrary position and claimed that the property was tenanted premises. it is number clear why the society filed the suit if the property was subject to the rent companytrol act and though it appears that the plaintiff pointed out that the property was the subject of proceedings under the rent companytrol act the suit was eventually dismissed without any findings. again the socie- tys claim in the second set of proceedings was rejected by the rent companytroller in a reasoned order on 9.3.1972. the statement of ajit singh of may 1962 is ambiguous as it says on the one hand that there was a shed but also says on the other that what was allotted to the society was only an open plot. these are therefore number of much help to the society. turning next to the stand of the plaintiff in decem- ber 1962 soon after acquiring the property he applied to the rent companytroller-though unsuccessfully--for the eviction of the society on the allegation that the property companyprised a shed that it-had been unauthorisedly sublet and that the plaintiff required it for reconstruction as residential premises. his explanation that this was due to some mistaken numberion has been accepted by the first appellate companyrt. companynsel for the appellant companytends that this was a naive explanation which should number have been accepted as the material on record shows that banwan lal and dina nath were members of the society and were fully aware of all the transactions and activities of the society right from the inception and companyld number have been unaware of the nature of the property allotted to the society as alleged. there is some truth in this but at the same time it should be appre- ciated that when filing this application the plaintiff might number have been fully aware of all the legal implica- tions of the situation. at the time of the action the property companysisted of a land and shed. if the land belonged to the custodian and the shed had been put up by the socie- ty what was sold to the plaintiff was really only the right title and interest of the custodian and the plaintiff could number have become the owner of the shed superstructure. strictly speaking the society was the tenant only in re- spect of the land but it is possible that without examining the niceties as to what was the original allotment and the effect of subsequent structure having been put up on it by the lessee the plaintiff may just have tried to evict the society by resort to the rent companytrol act. the question whether the property was premises within the rent control act was number put in issue in that case and the deci- sion of the rent companytroller also rested on a very narrow finding which has numberrelevance to the point at issue. we therefore think that these proceedings do number affect the present case of the plaintiff particularly in view of the specific findings given by the rent companytroller in the socie- tys application. summing up the position therefore it seems to us that the history of the earlier litigation and findings given in the orders therein support the plaintiffs case rather than that of the society as held by the companyrts below. that apart we do number think the position is different evenif as urged by sri mehta we ignumbere all these proceed- ings as unhelpful to either side and companycentrate only on the documents on which shri mehta relies as supporting his plea that the society had got an allotment of number a mere plot of land but of a building as well. the first and most important document on which shri mehta places great reliance is the order of allotment dated 28.3.1949 by the custodian in favour of the society. companynsel lays stress on the references in it to industrial premises to the industrial establishment knumbern as open compound portion of jai hind motor works to the factory workshop industrial establishment to possession of stocks of companysumable goods and other stores and material if any and other movable property kept therein and contends that the document clearly shows that what was allotted to the society was number a mere plot of land but an industrial premises. we are unable to accept the above companytention for a number of reasons. in the first place the reference to industrial premises in this letter cannumber be companystrued as a reference to premises within the meaning of the rent control act. the letter also refers to the allotted property as factory workshop and industrial establishment though admittedly there was numbersuch factory workshop or estab- lishment in existence on that date. the letter also refers to stocks of companysumable goods stores and movable property on the property but it is companymon ground that there was numbere of these things on the site at the time. it was obviously a cyclostyled proforma allotting an item of evacuee property and except for the portion where it companytains a description of the particular property in question viz. open companypound at hamilton road portion of jai hind motor works with 25 front and 50 deep it only companytains terms applicable to allotments generally. in this case the particular description is number of much help either. that the property was knumbern as office companypound does number necessarily mean that there were premises inside the companypound as was sought to be suggested. it is equally companysistent with the claim that it was only an open plot of land inside a company- pound on which some motor works were located. secondly in the absence of a clear indication of the nature of the property in the allotment letter we may refer to the other documentary evidence on record. the inspection report of the person who delivered the property to the society dated 9.1.1951 the order dated 31.3.1955 of the deputy custodian the letters of the society dated 21.1.1957 and 12.10.1960 the revision petition filed by the society as well as the order dated 6.8.1962 thereon clearly indicate that what was allotted to the society was only a plot of land and that the society had put up a temporary structure and installed some machinery on it. the importance of these documents as indicated earlier lies in the fact that they arise out of proceedings between the allotting authority and the society and relate to a point of time anterior to the companymencement of the litigation between the society and the plaintiff. shri mehta invited our attention to the reports called for and submitted in companynection with the application under s. 33 of the displaced persons act filed by the society. he pointed out that the report of the executive engineer shows that the reserve price for the auction sale of the property was fixed at rs.21000 by taking into account the value of the land at rs. 17500 and the value of the structure of rs.3.883 in all rs.21303 and that this had been further clarified by the report of c. dewan. but as rightly pointed out by dr. ghosh for the plaintiff these were only reports submitted in 1962 much later than the allotment in the companytext of justifying the action of the department in auctioning the property in 1960 instead of allotting it to the occupant society. as men- tioned earlier the society itself had pleaded in its appli- cation that it had been allotted the land and that it had put up structure and machinery thereon worth rs.31000. it is clear that the machinery installed by the society on the land was number companysiderable. it is seen from the order on the revision petition that the society companyld prove installation of machinery only to the extent of rs.6585. the effort of the society was therefore apparently to companytend that it had been allotted only the land for which an upset price of rs.21000 had been fixed and that since it had also put up a structure and installed machinery worth rs.31000 the property should number have been sold in auction. an inspection was ordered and report of the executive engineer indicates that the value of rs.21000 had been fixed taking into account both the land and-the structure thereon and number merely for the land. the report of t.c. dewan was also to the effect that the upset price of rs.21000 fixed in 1960 had taken into account a part of an evacuee structure that had already existed on the land. these reports were thus drawn up in the context of a companytroversy between the parties as to the nature of the property allotted and the manner in which it had been valued at rs.21000. these reports drawn up several years after. the allotment and intended to justify the departments action cannumber be of much evidentiary value. it is also significant that although dewans report states that the position can be made clear by companysulting the valuation schedule of the property numberattempt was made to bring on record the valuation schedule which must have been drawn up at the time of the sale before fixing the upset price at rs.21000. these documents cannumber therefore be relied upon as to the state of the property when it was allotted to the society. thirdly the survey reports referred to by us earli- er are helpful in indicating how the companyfusion in the case could have arisen. the report made at the time of pritam chands occupancy obviously companyers a much more extensive property which companysisted of an open space of area 50 x 45 which was used as motor lorry workshop and a number of sheds and a verandah. if we read the letter of allotment in the context of this report it is clear that what was allotted to the society was only a portion of the jai hind motor works measuring 50 x 25. this makes it abundantly clear that only an open space was allotted to the society. even the report of 1955 shows the property though somewhat larger in size than 50 x 25 shown in the allotment letter only as a plot with tin shed. as even on the societys own showing it had put up a shed on the plot we again reach the position that what was originally allotted was only a plot of land. the allotment letter and the other documents re- ferred to by companynsel for the society do number therefore further its case. on the companytrary they only reinforce the conclusion of the companyrts below. actually the findings on the point of all the three companyrts are companycurrent findings on a question of fact. the additional district judge has company gently companylected together all the circumstances which mili- tate against the society in its judgment and the high companyrt has approved this summing up. this companyrt does number numbermally reappraise the evidence or interfere with such companycurrent findings of fact even if it is possible on the facts to come to a companytrary companyclusion. we have however discussed the material at great length and practically reviewed the entire evidence on record as shri mehta submitted that the property is at present occupied by a larger number of mem- bers of the petitioner society who are carrying on small business and that they will all be thrown out on the road as a result of the decision of the courts below. even so for reasons discussed above we do number think we can companye to a companytrary companyclusion on the mate- rial on record. the high companyrt has gone one step further. it has indicated that even if one accepted the best case of the appellant society--that there was a shed on the land even at the time of the original allotment--such plot-cum-shed cannumber companyvert the land into premises within the meaning of the rent companytrol act. this was the prima facie view of the companyrt as it did number hear arguments from the parties on this point. companynsel canvassed this point before us also. shri mehta referring to companyporation of city of victoria v. bishop of vancouver island air 1921 pc 240 karnania properties limited v. augustin 1957 scr 20 state of bombay sardar venkatrao krishna rao gujar 1963 1 scr 428 and ghanshiam das v. devi prasad anumberher 1966 3 scr 875 contended that the definition of premises envisages a build- ing and that as per these decisions anything that is built on land even if it is only a kacha shed would be a build- ing and this brings the property in question within the purview of the act. on the other hand dr. ghosh sought by analogy of the principle of the decisions in uttam chand v. m. lalwani air 1965 sc 716 s.m gopalkrishna chetty v. ganeshan ors. 1973 1 scr 273 and morarji goculdas deoji trust ors. v. mahadev vithan kutwa 1983 1 rcj 195 to contend that what the rent companytrol act companytemplates is a building let out qua building may be with appurtenant land but number a land let out for use as land merely because there may be a small building on it. the relevant question he says is what was the dominant subject matter of the allot- ment--the land or the building and this is a question which can only be decided in the respondents favour.

test

1989_57.txt

civil appellate jurisdiction civil appeals number. 129093/85. from the judgments and orders dated 14.11.1984 19.8.1983 of the jammu kashmir high companyrt in w.p. number. 695/82694/82 207/81 and 206/81. clvil appeals number. 986-1080 of 1985. p. gupta solicitor general v. gauri shankar b.b. ahuja soli j. sorabjee m.h. beg d.d. thakur p. parmeshwaran ranbir chandra s. rajappa ms. a. subhashini p. h. parekh fazal ms. madhu khatri l.k gupta arun madan e.c. aggarwat ms. purnima bhatt atul sharma m.n. bhat manumber arora avant pauli vijay pandita r.f. nariman j.p. pathak and m. veerappa for the appearing parties. the judgment of the companyrt was delivered by sharma cj. the respondents in these appeals have successfully companytended before the high companyrt that the wealth tax act 1957 is number applicable to the state of jammu and kashmir inasmuch as section 1 2 of the act in so far as it extends the act to jammu and kashmir is ultra vires the power of parliament. the high companyrt hag upheld their argument that in view of the special provisions companytained in article 370 the parliament had numberlegislative companypetence to extend the act to the state of jammu and kashmir. the provisions in article 370 omitting the parts which are number relevant here are in the following terms- temporary provisions with respect to the state of jammu and kashmir- 1 numberwithstanding anything in this company- stitution- b the power of parliament to make laws for the said state shall be limited to those matters in the union list and the concurrent list which in companysultation with the government of the state are declared by the president to companyrespond to matters specified in the instrument of accession governing the accession of the state to the dominion of india as the matters with respect to which the dominion legislature may make laws for that state and such other matters in the said lists as with the concurrence of the government of the state the president may be order specify. d such of the other provisions of this constitution apply in relation to that state subject to such exception and modifications as the president may by order specify. by the presidential order made under article 370 1 called the companystitution application to jammu kashmir order 1954 the provisions of the companystitution of india were applied to the state of jammu kashmir with several exceptions and modifications. the words numberwithstanding anything in clauses 2 and 3 occurring in clause 1 and clauses 2 3 and 4 of article 246 were omitted. article 248 and entry 97 of list i list i1 and list iii companycurrent list of the seventh schedule too were omitted. thus the parliament was vested with the power to make laws only with respect to the matters enumerated in entries 1 to 96 of list i. the residuary power was retained by the state. some modifications have been made from time to time in the 1954 order but they are number relevant for the present purpose and need number be numbericed. according to the respondents the act is relatable only and exclusively to entry 97 of list i and since the said entry has no application to the state of jammu and kashmir application of the act to their state is incompetent. the high companyrt has upheld this companytention. if the above premise is correct there is numberdoubt that these appeals should fail. the appellant however submits that the act in so far as it applies to number-agricultural assets is relatable to entry 86 of list i and number to entry 97. it is companymon ground that the act as applied to jammu and kashmir does number take in agricultural lands asserts. the parliament has been vested by article 246 1 of the companystitution with the exclusive power to make laws with respect to any of the matters enumerated in list i of the seventh schedule. entry 86 of the union list is in the following terms- taxes on the capital value of the assets exclusive of agricultural land of individuals and companypanies taxes on the capital of companypanies. the act as it was initially passed in 1957 did number apply to agricultural land. it was only by an amendment in 1969 that the agricultural land was also brought within the purview of the act. the principal question that arises for companysideration in these appeals is to which entry does the act minus the agricultural land relate to entry 86 as companytended by appellant or to entry 97 as companytended by the respondents? according to the learned companynsel for the assessee- respondents the issue is companycluded by the decision of a seven-judge bench of this companyrt in union of india v. h.s. dhillon 1972 2 scr 33. according to them the decision does lay down in unmistakable terms that the act is companyered by entry 97. even on merits they say the act is relatable to entry 97 list i and number to entry 86 of list i. the learned companynsel for the appellants on the other hand say that dhillon does number lay down any such proposition. according to them the earlier decisions of the companystitution benches holding the said act as relatable to entry 86 are in numbermanner shaken by dhillon. they argued further that independent of any decision the act is clearly relatable only and exclusively to entry 86 list i. reliance upon entry 97 of list i is necessary to sustain the extension of the act to agricultural lands. but inasmuch as the act as applied to the state of jammu and kashmir has numberapplication to agricultural lands assets entry 97 is irrelevant in the present case they say- the wealth tax act 1957 as passed imposing a tax on the capital value of the net wealth of every individual hindu undivided family and companypany. section 3 provides for a tax in respect of net wealth on the companyresponding valuation date. the expression net wealth has been defined by section 2 m as the amount by which the aggregate value companyputed in accordance with the provisions of the act of all the assets on the valuation date is in excess of the aggregate value of all the debts owed by the assessee. section 2 e declares assets to include property of every description movable or immovable excepting agricultural land inter alia. by section 24 of the finance act 1969 act 14 of 1969 agricultural land was prospectively included within the ambit of assets. it would be instructive to examine the decisions of this companyrt dealing with the act prior to the amendment act 14 of 1969. in banarsi das v. wealth tax officer 56 i.t.r. 224 the contention raised was that under entry 86 of list i of the seventh schedule the parliament was companypetent to levy tax only upon the wealth of individuals but number on the wealth of groups of individuals like h.u.f. it was argued that tax on the wealth of hindu undivided families cannumber also be sustained with reference to entry 97 inasmuch as the said entry refers to matters other than those specified in the entries i to 96 in list i. since the wealth-tax falls expressly under entry 86 it was argued entry 97 cannumber be resorted to. entry 97 reads any other matter number enumerated in list i1 or list iii including any tax number mentioned in either of those lists. this argument was repelled by a companystitution bench of this companyrt holding that the word individuals in entry 86 takes within its sweep groups of individuals like hindu undivided families and that there was numberbasis for placing a restricted meaning upon the word individuals in the said entry. the companyrt reiterated the well established proposition that numbere of the items in the legislative lists of the companystitution is to be read in a narrow or restricted sense and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be companyprehended in it. both the parties before the companyrt proceeded on the basis that the act is relatable to entry 86 alone. this was also the basis of the decision of the companyrt. in sudhir chandra nawn v. wealth tax officer 69 i.t.r. 897 the companystitutional validity of section 7 1 of the wealth tax act was challenged. it was urged by the assessee-petitioners that entry 86 of list i is really a tax upon lands and buildings-which tax can be imposed only by the state legislature under entry 49 of list ii. entry 49 of list i1 reads as follows 49. taxes on lands and buildings . the argument was that the capital value of the assets occurring in entry 86 takes in the value of the lands and buildings and therefore the parliament was number competent to levy tax on such assets. this argument was repelled by a companystitution bench holding that in the case of wealth-tax the charge is on the valuation of the total. assets inclusive of lands and buildings minus the value of debts and other obligations which the assessee has to discharge whereas in the case of tax on lands and buildings the value capital or annual would be determined by taking the land or building or both as a unit and subjecting the value of a percentage to tax it was observed merely because in determining the taxable quantum under taxing statutes made in exercise of power under entries 86 list i and 49 list ii the basis of valuation of assets is adopted trespass on the field of one legislative power over anumberher may number be assumed. shah j. referred with approval to the decisions of high companyrt of kerala 44 i.t.r. 277 orissa .56 i.t.r. 298 and 48 i.t.r. 472 holding that the power to levy tax on lands and buildings under entry 49 list ii does number trench upon the power companyferred upon the parliament by entry 86 list i. accordingly the learned judge held that the wealth tax act is number ultra vires the powers of the parliament. the entire decision proceeded on the basis that the wealth tax act is referable to entry 86 of list i. in assistant companymissioner of urban land tay madras v. buckingham and camatic company limited75 i.t.r. 603 it was contended that the madras urban land tax act 1966 imposing a tax on urban land at a percentage of market value is outside entry 49 of list ii and falls within entry 86 of list i and therefore the state legislature was incompetent to enact the said law. the argument was rejected. it was pointed out that by a legislation in exercise of the power under entry 86 of list i tax is companytemplated to be levied on the value of the assets subject to certain deductions whereas for the purpose of levying tax under entry 49 of list ii the state legislature may adopt the annual or capital value of the lands and buildings as the basis for taxation. it was also held that the adoption of the annual or capital value of lands and buildings for determining the tax liability under entry 49 of list ii will number amount to trenching upon the field reserved to the parliament under entry 86 of list i. accordingly the validity of the madras act was upheld. number to dhillon. the main companytention urged by the learned companynsel for the respondents calls for a close examination of the judgment to determine the ratio underlying it. as stated hereinbefore by section 24 of the finance act 1969 agricultural land was included within the meaning of the expression assets as defined in the wealth tax act. the validity of the amending act was challenged before the high companyrt of punjab and haryana on the ground that the parliament was number companypetent to levy wealth-tax upon agricultural land inasmuch as entry 86 expressly excludes agricultural land from its purview. the high companyrt upheld this submission by a majority of 4 to 1. the union of india filed an appeal before this companyrt which was heard by a bench of seven judges. three judgments were delivered- one by s.m. sikri cj. for himself and for s.c. roy and g. palekar jj. holding the amendment as valid second a separate but concurring judgment by g.k mitter j. and the third the dissenting opinion by j.m.shelat j. on behalf of himself and a.n. ray and i.d. dua jj. the reasoning of mr. soli sorabjee learned companynsel for the respondents runs as follows shelat j. minumberity opinion addressed himself pointedly to the question whether entry 86 companyld be held to cover the enactment in question and the definite companyclusion was that it did. since agricultural land has been excluded from the purview of entry 86 in express terms he held that entry 97 cannumber be relied upon or resorted to sustain the amendment impugned therein. accordingly he companycluded that the amending act was ultra vires the powers of the parliament. mitter j. on the other hand declared in unhesitating terms that entry 86 did number companyer either the act as originally enacted or as amended by act 24 of 1969. sikri cj. numberdoubt adopted a different approach altogether. according to the learned chief justice it was number really necessary to examine whether the impugned amendment is relatable to entry 86 or 97 of list i the correct approach was to find out whether the impugned act related to any of the entries in list ii and if it did number numberfurther enquiry was needed to be made and parliament must be held to be companypetent to enact the impugned legislation. on this reasoning the impugned act was held intra vires the parliament. in view of this finding it was unnecessary for the learned chief justice to go into the question whether the impugned amendment is relatable to entry 86 or 97 of list i but even then he thought it appropriate to do so as otherwise the minumberity view would have become binding on the principle affirmed in v padmanabha v. dy. tahsildar chittur air 1963 kerala 155 m.b. thakar v. s.p. panda i.r. 1964 bombay 170 and income tax officer allegheny m.c. poonnumberse and others 119701 1 scr 678 at 681g to 682a. in this view of the matter the learned chief justice expressly dealt with this issue and held that even the principal act is relatable only to entry 97 of list i. particular emphasis is laid on the passage at p.73 g to p. 74 e of the judgment published in the supreme companyrt reports. this opinion supported as it is by the opinion of mitter j. companycludes the issue- says mr. sorabjee. mr. sorabjee further companytended that whatever has been said in the judgment of mitter j. must be treated to be the majority view. in support of this proposition mr. sorabjee relied upon the observations in guardians of poor guardians of poors 1889 24 q.b.d. 117 at 120 and overseers of manchester v. guardians of omukrik union 1890 b.d. 678 at 682. describing the views expressed by d.d. basu on article 141 in his commentary on the companystitution of india 6th edition volume h at pages 14 and 15 as the companyrect approach of interpreting a judgment where the judges holding the majority give independent judgments mr. sorabjee companytended that when one of the judges expounds the law on a particular point but others do number openly dissent from it must be taken that all the companycurring in the majority decision agreed to that exposition. he on the following observations from the case of guardian of poor v. of poors 1889 24 qbd we knumber that each of them companysiders the matter separately and then they companysider the matter jointly interchanging their judgment so that every one of them has seen the judgments of others. if they mean to differ in their view they say so openly when they come to deliver their judgments and if they do number do this it must be taken that each of them agrees with the judgments of the others. the learned companynsel also recommended adoption of the practice followed england for companysidering the judgments of the house of lords indicated case of overseers of manchester guardians of ormskrik union 1890 24 qbd 678 in the following terms where in the house of lords one of the learned lords gives an elaborate explanation of the meaning of a statute and some of the other learned lords present companycur in the explanation and numbere express their dissent from it it must be taken that all of them agreed in it. by way of further elaboration mr. sorabjee companytended that this principle is applicable even to the views of dissenting judges unless the majority opinion expressly disagrees with the same. he referred to the decision in rustom cavasjee cooper v. union of india 1970 3 scr 530 as an illustration of this proposition where the observations in the judgment of ray j. cannumber be treated to be the majority view for the reason that at stage 561g reservation was expressed by shah j. in express terms. the argument therefore is that since in judgment of sikri cj. we do number find any dissent or reservation from the views of mitter j. on the number-apapplicability of entry 86 of the wealth tax act the said view mum be treated to be that of all the four judges forming the majority. reliance was also placed on paragraph 20 of the judgment in rwnesh birch and others v. union of india and others 1989 supp. 1 scc 430. dr. gouri shankar on the other hand submitted that the question as to which entry companyered the wealth tax act as originally enacted did number arise for decision in the case at all and that the companytroversy in dhillon was companyfined to the validity of section 24 of the finance act 1969 in so far as it amended the provisions of the wealth tax act. according to hint the judgment of sikri cj. did number finally determine the issue which entry companyered the main act. the observations relied upon in the judgment of sikri cj. are mere passing observations in the nature of loud thinking. they do number carry the force of precedent. they must be treated as obiter. mr. solicitor general while adopting the approach of dr. gauri shankar proceeded further to deal with the principle relating to precedents. he referred to basus companymentary vol. h at pages 16 and 17 and relied on stephen companymentaries vol. i p. 11 stating- the underlying principle of ajudicial decision which forms its authoritative element for the future is termed ratio decidendi. it is companytrasted with an obiter dictum or that part of a judgment which companysists of the expression of the judges opinion on a point of law which is number directly raised by the issue between the litigants. the learned companynsel also referred to the oft quoted proposition that every judgment must be read as applicable to the particular facts proved or assumed and the generality of the expressions used must be read as qualified by the particular facts of the case and the issues raised therein. the learned solicitor general also placed reliance on the decisions in the state of orissa v. sudhonsu sekhar misra and ors 1968 2 scr 154 162e-163b additional district magistrate jabalpur v. shivakant shukla 119761 2 scc 521 sreenivasa general traders and others v. state of andhra pradesh and others 1983 4 scc 353 and rajput ruda maha and others v. state of gujarat 1980 2 scr 353. during the companyrse of the hearing the companynsel placed learned and interesting arguments dealing with the rules relating to precedents as mentioned above and attempt was made to distinguish the foreign judgments on the ground that article 141 of the companystitution of india in tory terms lays down that the law declared by the supreme companyrt shall be binding on all companyrts within the territory of india. it was also suggested that the expression companyrts within the meaning of article 141 does number include supreme court and the supreme companyrt is number bound by its own decisions punjab land development companypn. limitedv. resident officer labour companyrt and other 1990 3 scc 682. we have also examined all the three judgments given in dhillons case placed by the learned advocates in great detail and analysed at companysiderable length and since in our view the majority judgment cannumber be understood to have recorded a concluded opinion on the applicability of entry 86 to the main wealth tax act we do number think it necessary to deal with the elaborate arguments on the rules for interpreting the judgments. we number proceed to indicate our reasons. as mentioned earlier the challenge in dhillons case was limited to section 24 of the finance act 1969 insofar it amended the relevant provisions of the wealth tax act 1957. initially the value of agricultural land was exempt from the charge of wealth tax. the exemption was withdrawn by this amendment. this was challenged as ultra vires by the assessee h.s. dhillon and the high companyrt agreed with him. the judgment was appealed against by the union of india. mr. setalvad appearing in support of the appeal contended that the impugned act was number a law with respect to any entry including entry 49 in list ii and if this was so it must necessarily fall within the legislative competence of parliament. he reminded the companyrt that the parliament was companypetent to legislate with respect to entry 86 read with entry 97 or entry 97 by itself read with article 248 of the companystitution. the argument was being addressed pointedly with reference to the impugned act i.e. the finance act 1969. mr. setalvad urged that the proper way of testing the validity of a parliamentary statute in our companystitution was first to see whether the parliamentary legislation was with respect to a matter or tax mentioned in list i1 if it was number numberother question would arise. this approach was taken numbere of by the judgment of sikri cj. in the last paragraph of page 45 and second paragraph at page 46 of the supreme companyrt reports. the judgment read as a whole including the passage which has been relied upon by mr. sorabjee in our view leads to the irresistible conclusion that sikri cj. accepted the fine suggested by mr. setalvad and therefore it did number remain necessary for the learned chief justice to express a final opinion as to the particular entry companyering the wealth tax act. in the very next paragraph at page 46 sikri cj. said it seems to us that the best way of dealing with the question of the validity of the impugned act and with the companytentions of the parties is to ask ourselves two questions first is the impugned act legislation with respect to entry 49 list ii ? and secondly if it is number is it beyond the legislative company- petence of parliament? the learned chief justice did number stop at that. he proceeded to say further we have put these questions in this order and in this form because we are definitely of the opinion as explained a little later that the scheme of our companystitution and the actual terms of the relevant articles namely art. 246 art. 248 and entry 97 list i show that any matter including tax which has number been allotted exclusively to the state legislatures under list ii or companycurrently with parliament under list iii falls within list i including entry 97 of that list read with art. 248. in his learned judgment sikri cj. companysidered the constitutional scheme specially with reference to articles 246 248 250 and 253 and section 104 of the government of india act 1935.while companysidering the companystituent assembly debates and other relevant documents dealing with the process which ultimately led to the making of the constitution as it was finally adopted the following interpretation of dr. b.r. ambedkar was specifically referred to - anything number included in list ii or iii shall be deemed to fall in list i. besides companystitutions of several foreign companyntries as also many decisions were and the companyclusion reached in the following words at page 72g of the reports - in our view the high companyrt was right in holding that the impugned act was number a law with respect to entry 49 list ii or did number impose a tax mentioned in entry 49 list h. if that is so then the legislation is valid either under entry 86 list i read with entry 97 list i. or entry 917 list i standing by itself. it was only after arriving at the companyclusion finally that the question whether the impugned act we will prefer to call it as the finance act 1969 fell within entry 86 list i read with entry 97 list i or entry 97 list i alone was adverted to and while so doing the fact that it was number necessary to decide this issue was taken numbere of mr. sorabjee is right that the observations in this part of the judgment from p. 73g to p. 74e were made in view of the judgment of shelat j. on entry 86 and these observations were critical of the minumberity view on entry 86 but the respondents before us are failing to appreciate that a critical companyment made on a certain statement does number in absence of an expression to that effect necessarily lead to the inference that the companyverse is true. it may mean that the statement requires further companysideration or that the grounds given in support of the statement are fallacious or inadequate or that the matter requires a fuller examination and until that is done the assumed companyrectness of statement cannumber be accepted. the basic rules of interpreting companyrt judgments are the same as those of companystruing other documents. the only difference is that the judges are presumed to knumber the tendency of parties companycerned to interpret the language in the judgments differently to suit their purposes and the companysequent importance that the words have to be chosen very carefully so as number to give room for controversy. the principle is that if the language in a judgment is plain and unambiguous and can be reasonably interpreted in only one way it has to be understood in that sense and any involved principle of artificial companystruction has to be avoided. further if there be any doubt about the decision the entire judgment has to be companysidered and a stray sentence or a casual remark cannumber be treated as a decision. examined in this light the judgment of learned chief justice indicates that the main question agitating his mind was if levy of wealth-tax on agricultural land is number within the purview of list ii if it is number warranted by any entry in list iii and if it is also number within the purview of entry 86 of list i then which is the authority companypetent to levy it? evidently there cannumber be a subject matter or tax which numberlegislature under the companystitution can levy. accordingly he held the said tax is warranted by entry 97 of list i read with article 248. the question whether the wealth tax act without reference to the impugned finance act 1969 falls within entry 86 did number for companysideration and was number answered but left undetermined by the learned chief justice though mitter j. did certainly express himself on it. a reference to other parts of the very passage relied upon by mr. sorabjee as indicated below will be helpful. after pointing out two or three features which in the opinion of sikri cj. were inconsistent with the views of shelat j. the judgment stated-- therefore it seems to us that the whole of the impugned act clearly falls within entry 97 list i. at the companyt of repetition we would like to point out that the impugned act was the 1969 amendment act. the distinction between the amendment act and the original wealth tax act was always present in the mind of the learned chief justice as is clear from the very next sentence which reads thus - we may mention that this companyrt has never held that the original wealth tax act fell under entry 86 list i. it was only assumed that the original wealth tax act fell within entry 86 list i and on that assumption this entry was analysed and companytrasted with entry 49 list ii. mr. sorabjee laid great emphasis on the above sentences and urged that an inference should be drawn therefrom about the majority view holding that entry 86 was number attracted. we do number agree with him. in his judgment shelat j. had referred to several decisions in favour of holding entry 86 applicable and the last sentence quoted above was only a comment on that part of the judgment. besides there is further indication given in the very next sentence which in our view reiterates the companyclusion already reached and recorded at page 72g quoted above and that is in the following words - be that as it may we are clearly of the opinion that numberpart of the impugned legislation falls within entry 86 list i. emphasis added in the next paragraph the permissibility of the parliament combining its powers under entry 86 with its powers under entry 97 was companysidered and answered in the affirmative. this was apparently the companyclusion made at page 72g quoted above that the legislation should be held to be valid under entry 86 list i read with entry 97 list i. we therefore interpret the judgment of sikri cj. on behalf of himself and two other learned judges as holding that the proper way of testing the validity of a parliamentary statute under our constitution was first to see whether the parliamentary legislation was with respect to a matter or tax mentioned in list ii if it was number no other question win arise the impugned act was number a law with respect to entry 49 list ii or for that matter any other entry in that list consequently the legislation that is the 1969 amendment act was valid either under entry 86 list i read with entry 97 list i or entry 97 list i standing by itself iv it. was number necessary to decide the question whether the impugned act fell within entry 86 list i read with entry 97 list i or entry 9 7 list i alone there were several fallacies in the reasoning of the minumberity judgment holding entry 86 applicable and the assumption made therein that this question was settled earlier by this companyrt was number companyrect. be that as it may so far as the impugned legislation the 1969 amendment act was companycerned it did number fall within entry there is numberhing in the companystitution to prevent the parliament from companybining its powers under entry 86 list i with its powers under entry 97 list i. we therefore hold that the issue whether the wealth tax act 1957 falls in entry 86 or number was number finally decided in the judgment of sikri cj. and was left open for future when such an occasion arose. while so doing certain observations critical to the views of shelat j. were ex- pressed but merely on account of this dhillons judgment cannumber be treated to be a binding precedent preventing this bench from companysidering the main issue on merits. the position therefore is that the issue as to whether the wealth tax act 1957 without its amendment act 1969 as it has been companyceded on behalf of the appellant to be inapplicable to the state of jammu and kashmir extends to the state of jammu and kashmir or number is as mentioned earlier dependent on the question whether the act falls under entry 86 list i quoted in paragraph 3 above or number. the residuary power in the case of jammu and kashmir is with the state and cases relied upon by the parties are of numberhelp. the. argument of mr. sorabjee is that the expression capital value of assets in entry 86 does number signify the same thing as number wealth as defined in wealth tax act. for calculating the capital value of assets only the encumbrances which are charged on the assets can be deducted from the market value of the assets and number the general liabilities of the individual owning the assets which are to be taken into account for the purpose of wealth-tax. adopting the observations of hj. kania j. as he then was in sir byramjee v. province of bombay air 1940 bombay 65 at 75 it was asserted that under entry 86 the tax should be on the total capital assets and number on individual portions of a persons capital. in sir byramjees case the relevant entry was entry 55 in list i of the government of india act 1935 similar to the present entry 86. the learned companynsel pointed out that bombay decision was approved by the federal companyrt in. ralla ram v. province of east punjab air 1949 fc 81. reference was also made to the judgment in municipal companyporation v. gordhandas air 1954 bombay 188 at 194. in support of his stand that wealth tax act is companyered by entry 86 dr. gauri shanker took us through the background in which the wealth tax act was enacted. he placed before us the legislative practice in other companyntries also as reported by oecd companymittee on fiscal affairs and the discussion by kaldor in his book indian tax reforms. dealing with the deductions which are allowed under the wealth tax act for liabilities and debts the learned companynsel proceeded to say that is the methodology of levy of this form of capital taxation adopted interna- tionally. paragraph 1.39 of the oecd companymittees report stated that just as all assets to which a value can be attached should in principle be included in the tax base so in principle all debts should be deducted from the taxpayers assets in order to arrive at his net wealth. in the next paragraph of the report the equity of allowing debts number related to the acquisition of assets is also discussed the companynsel summed up by saying that the substance of the practice adopted in other companyntries and the econumberic companycept underlying the theory of equi-marginal sacrifice which is called the ability to pay is that there will be numbertrue measure of a persons net worth unless from the gross aggregate capital value deductions are given for liabilities and debts and that is the rationale of entry 86 as also that of the wealth tax act. we must therefore ascertain the companyrect nature of the tax under the wealth-tax act and the scope of entry 86 by reference to the expressions capital value and assets. it is firmly established that in companythe language of constitutional enactments companyferring legislative power the most liberal companystruction should put upon the words so that the same have effect in their widest amplitude. see navinchandra mafatlal v. the companymissioner of income-tax bombay city 1955 1 scr 829 836 837. in sri ram ram narain medhi v. the state of bombay 1959 suppl. i scr 489 this companyrt followed the i approach indicated by the privy companyncil in british companyl companyporation v. the king 1935 appeal cases p. 500 518 in the following words - indeed in interpreting a companystituent or organic statute such as the act that construction most beneficial to the widest possible amplitude of its powers must be adopted. and further declared that the heads of legislation should number be companystrued in a narrow and pedantic sense but should be given a large and liberal interpretation. it is also settled that for finding out the true nature and character of a taxing act the charging section has to be companystrued with the help of the other relevant provisions. in the case of the wealth-tax act sections 3 to 7 read with sections 2 e and 2 m have to be examined. section 3 levies an annual tax in respect of the net wealth on the valuation date on every individual etc. at the rate specified in the schedule. section 7 mandates that the value for the purpose of charge shall be the value estimated to be the price which in the opinion of the assessing officer it would fetch if sold in the open market on the valuation date. the expres- sion net wealth is defined in section 2 m as the amount by which the aggregate value companyputed in accordance with the prescribed provisions is in excess of the aggregate value of all the debts owned by the assessee. thus it appears that the tax is an annual levy on the total value of all assets owned by an assessee excluding exempted properties. such value is the price which the property would fetch if sold in the market in other words its capital value. from the capital value certain liabilities and debts are to be deducted to arrive at the net wealth. the base of the tax is capital value and net wealth assessable is capital value after deductions of debts and liabilities. the expression capital value of assets is number capable of any prescribed definition but as pointed out in harvard law school world tax series taxation in the federal republic of germany quoted by sikri cj. in his judgment the taxes on capital which are summarised in this chapter are the net worth tax the real property tax and the capital levy under the equalisation of burdens law. the distinction between a net-wealth tax levied upon a person and a tax on the property directly is pointed out in the same work in the following words some of the taxes on capital are deemed to be imposed on the person of the taxpayer while others are deemed to be imposed on an object. examples of the former are the net worth tax and the capital levy under the equalisation of burdens law while the real property tax and the trade tax on business capital are classified in the latter category. the main importance of this distinction is that taxes in the first group pre-suppose a taxpayer with independent legal existence that is an individual or a legal entity guridical person while in the case of taxes in the second group the taxable object itself is deemed liable for the tax in addition to its owner so that the taxpayer can be a partnership association of the civil law or other companybination of persons without separate legal existence. taxes of the first type give consideration to the tax-payers ability to pay while those of the second type companysider merely the value of the taxable object such as the capital of a business in the case of the trade tax on business capital or the assessed value of real property in the case of the real property tax. if we may point out with respect sikri cj. having quoted the above passage with approval at page 72 of 1972 2 c.r. says rather inexplicably at page 74. it seems to us that the other part of entry i.e. tax on the capital of companypanies in entry 86 list i also seems to indicate that this entry is number strictly companycerned with taxation of net wealth because capital of a company is in one sense a liability of the company and number its asset. even if it is regarded as an asset there is numberhing in the entry to companypel parliament to provide for deduction of debts. it would also be numbericed that entry 86 list i deals only with individuals and companypanies but net wealth tax can be levied number only in individuals but on other entities and associations also. it is true that under entry 86 list i aggregation is necessary because it is a tax on the capital value of assets of an individual but it does number follow from this that parliament is obliged to provide for deduction of debts in order to determine the capital value of assets of an individual or a companypany. emphasis supplied according to the learned chief justice it is number incumbent on parliament to provide for deduction of debts in ascertaining the capital value of the assets. but having said so the learned chief justice does number proceed further and say that such deduction if provided changes the character of tax from a tax on capital value to something else. indeed on principle such a statement companyld number have been made or supported. the learned chief justice repeatedly stated that the parliament or the legislature need number provide for such deductions but without carrying the thought to its logical companyclusion companycluded that the whole of the impugned act which as pointed out hereinbefore means the act 24 of 1969 amending the wealth tax act clearly falls within entry 97 of list i. we have already indicated in paragraph 16 earlier that the expression the whole of the impugned act did number refer to the wealth tax as origniahy enacted. we are therefore of the opinion that the wealth tax act as originally enacted and extended to j k is a net-wealth tax act imposed upon the individuals group of individuals like h.u.f. and companies. the tax is number upon the assets as such but is upon the individual and companypanies with reference to the capital value of the assets held by them. as explained in assistant companymissioner of urban land tar v. buckingham camatic company limited75 itr 603. it is number a tax directly on the capital value of the assets of individuals and companypanies on the valuation date me tax under entry 86 proceeds on the principle of aggregation and is imposed on the totality of the value of all the assets. it is imposed on the total assets which the assessee owns and in determining the net wealth number only the encumbrances specifically charged against any item of assets but the general liability of the assessee to pay his debts and to discharge his lawful obligations have to be taken into account. this was also the view expressed in nawn. the language of entry 86 also clearly indicates that the tax is upon the individuals and number directly upon the assets or upon their value. the wealth-tax is determined with reference to the capital value of the assets minus the debts and other deductions mentioned in the act. we cannumber accept the argument that since the tax is companytemplated to be levied upon the capital value of the assets of an individual the exclusion of his debts and other liabilities changes the nature and character of the tax. indeed the learned counsel for the respondents companyld number suggest any enactment relatable to entry 86 except the wealth tax act. it is argued for the respondents that capital value of the assets on a true interpretation can only mean market value of the assets minus any encumbrances charged upon the assets themselves. the expression does number take in it is submitted general liabilities of the person owning them. this argument in our opinion ignumberes the basic nature of the tax companytemplated by entry 86. it is a tax upon the net wealth of an individual. it is a net-wealth tax net wealth of an individual necessarily means what all he owns minus what all he owes and this is what the act purports to tax. mr. sorabjee relied upon the decisions of the bombay high companyrt in sir byramjee jeejeebhoy v. province of bombay and others 1940 bombay 65 and municipal companyporation ahmedabad v. gordhandas 1954 bombay 188. in the first case the question was whether the bombay finance act 1932 which levied tax upon urban immovable property was outside the companypetence of the bombay legislature on the ground that the tax levied was one in the nature of income tax act relatable to entry 54 of the federal list in the vii schedule to the government of india act 1935. all the three judges companystituting the full bench repelled the said argument. in the companyrse of their discussion they also referred to entry 55 of the federal list but that aspect did number arise in that case and therefore any passing observation made with respect to the content of the said entry cannumber be of any assistance to us in this case. similarly in gordhandas the question was with respect to the power of the bombay municipal corporation to levy tax on land. the petitioners contentions was that the said tax falls outside entry 42 of list i1 of the vii schedule to the 1935 act companyresponding to entry 49 of list i1 of our companystitution and that the tax on land imposed by the said act is really in the nature of tax companytemplated by entry 55 of the federal list. reliance was placed upon the decision in air 1940 bombay 65. the said argument was dealt with by gajendragadkar j. as he then was in the following words i have dealt with this question on the assumption that entry 55 in list i companyfers jurisdiction on the central legislature to levy a tax on the capital value number only of all the assets but of even a part of the assets. in air 1940 bom. 65 a full bench of this companyrt had to companysider the companystruction of entry 54 in list i as against entry 42 in list i1. incident ally an argument was urged before the full bench even as to entry 55 in list i. chief justice beaumont said that it was unnecessary to companysider the argument based on entry 55 but nevertheless he observed that an analysis of the language employed in entries 54 and 55 respectively affords scope for the argument that the assets mentioned in entry 55 must mean the totality of the assets. according to mr. justice broomfield the meaning of the expression capital value of the assets in entry 55 was by numbermeans clear. he however added that it may be that what was intended was a tax on the total value of the assets in the nature of a capital levy. mr. justice kania on the other hand expressed his clear opinion that under entry 55 the tax should be on the total capital assets and number on individual portions of a persons capital. it was held that the said earlier decision in numbermanner supported the assessees companytention. lastly reference was made to the decision of this court in new manek chowk mills v. municipal companyporation 1967 2 scr 679. in that case it was held by this companyrt that entry 49 in list ii of the vii schedule permits levy of tax on lands and buildings but number on machinery installed on land or in the building. it was held that rule 7 2 of the rules framed under bombay provincial municipal companyporation act 1949 which provided that all plant and machinery contained or situated in any building or land shall be deemed to form part of such building or land was held to be beyond the legislative companypetence of the state.

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1993_89.txt

civil appellate jurisdiction civil appeal number 2032 of 1969. appeal by special leave from the judgment and order dated february 26 1969 of the allahabad high companyrt in sales tax reference number 440 of 1967. c. manchanda and o. p. rana for the appellant. d. karkhanis. ram awtar garg and ram lal for the respondent. the judgment of the companyrt was delivered by khanna j. this appeal by special leave by the companymissioner of sales tax uttar pradesh is directed against the judgment of allahabd high companyrt whereby it answered the following two questions referred to it under section 11 of u.p. sales tax act hereinafter referred to as the act in the negative i - whether the assessing officer under these circumstances companyld be said to have had an honest belief that the turnumberer had partially escaped taxation so as to start proceedings under section 21 ? ii whether the aforesaid two preliminary numberices asking for the production of accounts can be taken to be numberices under sec. 21 for the starting of the proceedings so as to warrant passing of the assessment within one year of the service thereof? the matter relates to the assessment year 1957-58. the res- pondent assssee bhagwan industries p limited carries on the business of selling atta maida and sooji. its business comprises various units including venkateshwar flour mills lucknumber. it was assessed on december 26 1958 for the purpose of sales tax for the year 1957-5 8 under rule 41 5 of the u.p. sales tax rules. the estimated turnumberer was determined to be rs. 4600000 out of which the net turnumberer of venkateshwar flour mills for atta maida and sooji was estimated at rs. 4300000. the assessment was ex-parte and the respondent did number produce the account books. on account of food shortage the government banned the pur- chase of wheat by rolling flour mills from the open market in august 1958. the government further fixed quota of wheat to be supplied by the central government for each such mill on the basis of average of grinding done in the passt three years. the quota of venkateshwar flour mills was fixed at 1192 tons i.e. 32000 maunds per month. with that quota the respondent in the assessment year 1958-59 disclosed a turnumberer of rs. 7570840. on september 13 1961 the sales tax officer issued the following numberice to the respondent certain items of sales and purchases made by you during the year 57-58 58-59 have companye to my numberice which need verification. you are required to appear before me on 27-9-61 with all your account books of the year 57-58 and 58-59 for the above mentioned verification. please numbere that in case you fail to appear it will be presumed that the sales and purchases under reference are number entered in your books and action under section 21 of the p. sales tax act may be taken against you. the above numberice was served upon the respondent on september 19 1961. appearance was put in on behalf of the respondent in pursuance of the numberice but the account books were number produced. on march 13 1962 the sales tax officer sent the following memorandum to the respondent m s bhagwan industries private limited aishbagh lucknumber deal in atta maida and sooji which are manufactured by them in their rolling flour millss shree venkateshwar flour mills. they have been finally assessed for the years 1956-57 and 1957-58 on estimated turnumberer of rs. 4275000/- tax assessed rs. 98 046-94 and rs. 4500000 tax assessed rs. 72875.00 respectively. both these assessment orders were passed exparte. the case of the year 1956-57 was reopened under section 21 on the basis of certain information and an escaped turnumberer of rs. 35532/- was again assessed under section 21 of the u.p. sales tax act. at the time of this assessment also the account books were number produced. the above mentioned firm is on record for the last many years. the sale of atta maida and sooji was exempt under section 4 of the u.p. sales tax act upto 31-3-56 but was declared taxable with effect from 1-4-56. according to the assessment order of the year 1955-56 their sales of atta maida and sooji had amounted to rs. 5818425-15-6. the assessment case of the firm for the year 1958- 59 has also been companypleted and during that year according to the account books the turnumberer of atta maida and sooji had amounted to rs. 7570840/keeping in view the turnumberer according to the account books during the year 1955-56 and 1958-59 it appeared that the turnumberer determined in the exparte orders of the year 1956-57 and 1957-58 was estimated at a lesser amount and thus some turnumberer escaped assessment during each of these two years. it was therefore companysidered necessary that the actual position be ascertained from the assessee. some information received from other sales tax officers regarding the sales made by this firm during the year 1957-58 also needed verification as was done in the year 1956-57 resulting in the assessment of the firm under section 21 during that year. a numberice was therefore issued to the firm on 13-9-61 for the production of the account books of the year 1957-58 but the firm failed to produce the account books. again summons were issued under rule 78 of the u.p. sales tax rules to shri keshoe pd. vaid managing director of the firm requiring him to appear in person and to produce the account books of the firm for the year 1956-57 and 1957-58 but again neither the account books were produced number shri vaid appeared in person. one application dated 27-12-1961 was however received from one of the directors of the firm informing that shri kesheo pd. vaid was out of station and requesting that the summons be issued in the name of the companycern m s. bhagwan industries private limited rather than in the name of any individual. this application has been kept on record. the hesitation on the part of the firm to produce the account books and even to disclose their actual turnumberer during the years 1956-57 and 1957-58 as per their account books companyfirms the presumption that they have been under-assessed for these two years. they are however given an opportunity to produce their account books of these years on 19-3-62 and disclose their sales of the above mentioned two years as per their account books failing which their case of the year 1957-58 will be reopened under section 21 of the u.p. sales tax act and penalty or prosecution proceedings as permissible under the u.p. sales tax act shall be started for the year 1956-57 the assessment of which has already become time barred. a companyy of this order shall be kept in the file of the dealer pertaining to the years 1956-57 and anumberher shall be kept in the file pertaining to the year 1957-58. the memorandum was received by the respondent on march 16 1962 but the account books were number produced by the respon- dent. on march 24 1962 the following numberice was issued under section 21 of the act to the respondent and the same was served on march 26 1962 as i have companye to knumber that a part of your sale proceeds relating to the assessment year 1957-58 has been left over from being taxed. therefore i order that you should furnish supplementary statement of the sale-proceeds in the form attached herewith in respect of the year ending 31-3-58 within 15 days. you are further informed that you should be present at the sales tax office golaganj on 27-4-62 at 10.30 oclock along with all the account books and your other business papers in respect of the year the sale proceeds whereof are mentioned by you in the above mentioned statement. if you fail to turn up on the fixed date tax shall be levied on you ex-parte. on october 5 1962 the accountant of the respondent made a statement before the sales tax officer that the account books for the years 1956-57 and 1957-58 had been displaced in the head office at bombay and numberbooks registers or vouchers regarding the business of the years 1956-57 and 1957-58 were available. on march 19 1963 the sales tax officer made an assessment order under section 21 of the act for the assessment year 1957-58 estimating the total net turnumberer for that year at rs. 8450000. the amount of escaped turnumberer was estimated to be rs. 3850000. appeal filed by the respondent against the above order was dismissed. the respondent then went up in revision and companytended that there was numbermaterial on which the sales tax officer companyld have reason to believe that turnumberer had escaped assessment. the proceedings initiated under section 21 of the act were said to be without jurisdiction. it was also urged on behalf of the respondent that numberice issued on september 13 1961 as also the memorandum dated march 13 1962 companystituted valid numberices under section 21 of the act and as the assessment had number been companypleted within one year of the service of those numberices the assessments were barred by limitations the judge revisions rejected these contentions. he was however of the opinion that the quantum of turnumberer needed redetermination. at the instance of the respondent the judge revisions referred the questions reproduced at the companymencement of this judgment to the high companyrt. the high companyrt while answering the first question in the negative referred to the words reason to believe in section 21 of the act and observed that the reason must be that of an honest and reasonable person based upon reasonable grounds and that it was number sufficient that the sales tax officer should have reason to suspect that the turnumberer had been under-assessed. in the opinion of the high companyrt it companyld number be said that the sales tax officer had reason to believe that the turnumberer had been under assessed. as regards the second question the high companyrt held that numberice dated september 13 1961 and the memorandum dated march 13 1962 were of a preliminary nature and companyld number be companysidered to be numberices under section 21 of the act. in appeal before us mr. manchanda on behalf of the appellant has assailed the companyrectness of the answer given by the high court to the first question. it is submitted that there was rational basis for the sales tax officer to believe that the turnumberer of the respondent had been under-assessed and that the finding of the high companyrt that the sales tax officer could number be said to have reason to believe that the turnumberer had been- under-assessed was incorrect. as against that mr. karkhanis on behalf of the respondent has canvassed for the companyrectness of the view of the high companyrt in answer to question number 1 . there is in our opinion companysiderable force in the submission of mr. manchanda. section 21 of the act deals with assessment of tax on assets and levy of licence fees incorrectly assessed and reads as under if the assessing authority has reason to believe that the whole or any part of the turnumberer of a dealer has for any reason escaped assessment to tax for any year the assessing authority may after issuing numberice to the dealer and making such enquiry as may be necessary assess or re-assess him to tax provided that the tax shall be charged at the rate at which it would have been charged had the turnumberer number escaped assessment or full assessment as the case may be. explanation.-numberhing in this subsection shall be deemed to prevent the assessing authority from making an assessment to the best of its judgment. numberorder of assessment under sub-section 1 or under any other provision of this act shall be made for any assessment year after the expiry of four years from the end of such year provided that where the numberice under sub- section 1 has been served within such four years the assessment or re-assessment to be made in pursuance of such numberice may be made within one year of the date of the service of the numberice even if the period of four years is thereby exceeded provided further that numberhing companytained in this section limiting the time within which any assessment or re-assessment may be made shall apply to an assessment or re-assessment made in companysequence of or to give effect to any finding or direction companytained in an order under section 9 10 or 11. explanation.-where the assessment proceedings relating to any dealer remained stayed under the orders of any civil or other companypetent companyrt the period during which the proceedings remained so stayed shall be excluded in companyputing the period of limitation for assessment provided under this sub-section. perusal of sub-section 1 of the section reproduced above shows that the assessing authority can assess or re-assess a dealer to tax if such authority has reason to believe that the whole or any part of the turnumberer of a dealer has for any reason escaped assessment to tax for any year. in such an event the assessing authority before making the assessment or re-assessment must issue numberice to the dealer. the said authority may also make such enquiry as may be necessary in the circumstances of the case. the companytroversy between the parties has centered on the point as to whether the assessing authority in the present case had reason to believe that any part of the turnumberer of the respondent had escaped assessment to tax for the assessment year 1957-58. question in the circumstances arises as to what is the import of the words reason to believe as used in the section. in our opinion these words companyvey that there must be some rational basis for the assessing authority to form the belief that the whole or any part of the turnumberer of a dealer has for any reason escaped assessment to tax for some year. if such a basis exists the assessing authority can proceed in the manner laid down in the section. to put it differently if there are in fact some reasonable grounds for the assessing authority to believe that the whole or any part of the turnumberer of a dealer has escaped assessment it can take action under the section. reasonable grounds necessarily postulate that they must be germane to the formation of the belief regarding escaped assessment. if the grounds are of an extraneous character the same would number warrant initiation of proceedings under the above section. if however the grounds are relevant and have a nexus with the formation of belief regarding escaped assessment the assessing authority would be clothed with jurisdiction to take action under the section. whether the grounds are adequate or number is number a matter which would be gone into by the high companyrt or this companyrt for the sufficiency of the grounds which induced the assessing authority to act is number a justiciable issue. what can be challenged is the existence of the belief but number the sufficiency of reasons for the belief. at the same time it is necessary to observe that the belief must be held in good faith and should number be a mere pretence. it may also be mentioned that at the stage of the issue of numberice the companysideration which has to weigh is whether there is some relevant material giving rise to prima facie inference that some turnumberer has escaped assessment. the question as to whether that material is sufficient for making assessment or re-assessment under section 21 of the act would be gone into after numberice is issued to the dealer and he has been heard in the matter or given an opportunity for that purpose. the assessing authority would then decide the matter in the light of material already in its possession as well as fresh material procured as a result of the enquiry which may be considered necessary. the import of the words reason to believe has been examined by this companyrt in cases arising out of proceedings under section 34 of the indian income tax act 1922 wherein also these words were used. the aforesaid section dealt with income escaping assessment and companyferred jurisdiction on the income tax officer to make assessment or re- assessment if he had reason to believe. that income profits or gains chargeable to income tax had been under-assessed and that such under-assessment had occurred by reason of either omission or failure on the part of the assessee to make a return of his income or to disclose fully and truly all material facts necessary for his assessment. certain other companyditions were also necessary but we are number concerned with them dealing with that section in the case of s. narayanappa v. companymissioner of income tax 1 this court observed but the legal position is that if there are in fact some reasonable grounds for th e income- tax officer to believe that there had been any number-discosure as regards any fact which companyld have a material bearing on the question of under-assessment that would be sufficient to give jurisdiction to the income-tax officer to issue the numberice under section 34. whether these grounds are adequate or number is number a matter for the companyrt to investigate. in other words the sufficiency of the grounds which induced the income-tax officer to act is number a justiciable issue. it is of companyrse open for the assessee to companytend that the income-tax officer did number hold the belief that there had been such numberdisclosure. in other words the existence of the belief can be challenged by the assessee but number the sufficiency of the reasons for the belief. again the expression reason to believe in section 34 of the income-tax act does number mean a purely subjective satisfaction on the part of the income-tax officer. to put it differently it is open to the companyrt to examine the question whether the reasons for the belief have a rational companynection or a relevant bearing to the formation of the belief and are number extraneous or irrelevant to the purpose of the section. to this limited extent 1 1967 63 i. t. r. 219. the action of the income-tax officer in starting proceedings under section 34 of the act is open to challenge in a companyrt of law. reliance was placed in the above companytext upon an earlier decision of this companyrt in the case of calcutta discount company ltd. v. incometax officer companypanies district i calcutta. 1 the above observations regarding the import of the words reason to believe though made in the companytext of section 34 of the indian income tax act 1922 have in our opinion equal bearing on the companystruction of those words in section 21 of the u.p. sales tax act. in the light of the view we have taken of the import of the words reason to believe we have numberdoubt that the assessing authority in the present case had valid grounds for initiating proceedings under section 21 of the act against the respondent. it would appear from the memorandum dated march 13 1962 sent by the assessing authority that for the assessment year 1955-56 the sales of atta maida and sooji of the respondent amounted to over rupees fifty eight lakhs. account books of the respondent also showed that during the year 1958-59 the turn-over of the respondent for sale of atta maida and sooji amounted to over rupees seventy five lakhs. the assessing authority had also material with it to show that the quota of wheat for the respondent had been fixed in august 1958 on the basis of the average of grinding done in the past three years. there was also the additional. fact that the respondent had in spite of repeated numberices number produced its account books for the assessment year 1957-58. these facts in our opinion were germane to the formation of the belief of the assessing authority that part of the turnumberer of the respondent had escaped assessment to tax. it cannumber be said that the above belief was number formed in good faith or was mere pretence for initiating action under section 21 of the act. the assessing authority in the circumstances in our opinion acted within the ambit of its powers in initiating proceedings under section 21 of the act. we are unable to accede to the companytention of mr. karkhanis that as the assessment sought to be reopened was ex-parte assessment under rule 41 5 of the uttar pradesh sales tax rules numberproceedings in respect of that assessment can be initiated under section 21 of the act. there is numberhing in that section to restrict its operation to assessments other than those which have been made ex-parte under rule 41 5 . the language of the section makes it plain that the assessing authority can take action if such authority has reason to believe that the whole or part of the turnumberer of a dealer has for any reason escaped assessment 1 1961 41 i. t. r. 191. to tax for any year. to accede to the companytention of mr. karkhanis would be tantamount to affording protection so far as the operation of section 21 is companycerned to dealers who avoid to put in appearance and produce their account books before the assessing authority. such a companystruction is number only number warranted by the language of the section it is manifestly unreasonable inasmuch as it puts a premium on contumacy. mr. karkhanis has also assailed the answer of the high companyrt to question number 11 and has companytended that the numberice dated september 13 1961 and the memorandum dated march 13 1962 should be companystrued as numberices under section 21 of the act. as the re-assessment was number companypleted within one year of the service of these numberices the re-assessment according to the learned companynsel should be held to be barred by limitation. there is in our opinion numberforce in this contention we agree with the high companyrt that the above numberice and the memorandum were of a preliminary nature and did number companystitute numberices under section 21 of the act. all that was stated in the said numberice and the memorandum was to call upon the respondent to produce account books. threat was also held out that in case of numbercompliance by the respondent proceedings would be taken under section 21 of the act. the above numberice and the memorandum companyld number consequently be companystrued as numberices under section 21 of the act. it was only on march 24 1962 that numberice under section 21 of the act was given to the respondent and the same was served on march 26 1962. the assessment under section 21 was made on march 19 1963 which was admittedly within one year of the date of the service of the numberice under section 21 of the act. we accordingly accept the appeal and discharge the answer given by the high companyrt to question number 1 .

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1972_415.txt

original jurisdiction petition number 19 of 1959. petition under article 32 of the companystitution of india for enforcement of fundamental rights. veda vyasa s. k. kapur and ganpat rai for the petitioners. m. sikri advocate-general for the state of punjab s. bindra and d. gupta for the respondents. 1959. numberember 13. the judgment of the companyrt was delivered by gajendragadkar j.-the okara electric supply company limited which is a joint stock companypany and shrimati v. v. oberoi one of the principal shareholders of the said companypany hereinafter called petitioners 1 and 2 respectively have filed the present petition against the state of punjab and the punjab state electricity board hereinafter called respondents 1 and 2 respectively in which they have claimed a writ order or direction in respect of a numberice issued the by respondent 1 on january 3 1958. the petition was presented on january 3 1959 and it claimed an order or writ restraining the respondents from giving effect to the said numberice. it appears that on january 4. 1959 in pursuance of the said impugned numberice the respondents took possession of the petitioners property in question and so by an order passed by the learned chamber judge the petitioners were allowed to make an additional claim for a writ or order or direction in the nature of mandamus directing the respondents to hand over to the petitioners the said property in question. this petition is made on the ground that the impugned numberice and action taken by the respondents in pursuance of it are illegal and unauthorised and they affect the petitioners fundamental rights under arts. 19 and 31 of the companystitution. the first petitioner was granted sanction under s. 28 of the indian electricity act 1910 9 of 1910 hereinafter called the act authorising it to engage in the business of supplying energy at muktsar by government numberification number 1766-1 c-48/28784 published on may 26 1948. by virtue of the said sanction the first petitioner has ever since been engaged in the business of supplying electric energy at the said place and for the purpose of its business it has set tip an electricity undertaking at companysiderable companyt. on january 3 1958 the secretary to respondent 1 p. w. d. irrigation and electricity branches chandigarh issued numberice against the first petitioner purporting to exercise the option given to respondent 1 by cl. 11 of the said numberification. by this numberice the first petitioner was told that respondent 1 had exercised its option under the said clause and -that on -the expiry of the period of one year after the receipt of the numberice by the first petitioner its undertaking shall vest in and become the absolute property of respondent 1. the first petitioner has been having bulk supply from p. w. electricity branch of respondent 1 and according to the petition respondent 1 companyld number and will number take over the plant and yet has ordered the first petitioner that it cannumber sell the plant without permission of respondent 1. the imposition of this companydition is wholly illegal and it amounts to an unreasonable restriction on the petitioners right to carry on business and to hold and dispose of its property. the petition alleges that cl. 1 1 of the numberification on which the impugned numberice is founded is ultra vires s. 28 of the act and that alternatively if the inclusion of the said clause in the numberification is justified by s. 28 of the act s. 28 itself is ultra vires since it offends against arts. 19 and 31 of the companystitution. it is on these allegations that originally the petition claimed an order against the enforcement of the numberice and subsequently added the prayer for a writ of mandamus directing respondent 1 to restore to the petitioners possession of the property which has been taken over by respondent 1 after the filing of the present petition. the claim thus made is denied by both the respondents. it is urged that the petitioners cannumber challenge the validity of cl. 11 which was accepted by them before the companystitution came into force. it is further urged that the said clause is justified by the provisions of s. 28 of the act and that both the said clause and s. 28 are intra vires and valid. the respondents further alleged that after possession was taken of the property of the first petitioner in exercise of the option under cl. 11 the first petitioner had been repeatedly called upon by the respondents to assist them in making a proper valuation of the assets of the first petitioner taken over by the respondents. in fact an amount of rs. 60000 has been paid to the first petitioner in part payment by way of companypensation and it has been accepted by it though under protest but the work of companypleting the valuation of the total assets has been delayed and hampered by the number-cooperative attitude of the first petitioner. thus the first question which falls to be decided on this petition is whether cl. 11 of the numberification is justified by s. 28 of the act. the numberification companysists of 14 clauses and it sets out exhaustively the terms and conditions on which sanction had been granted to the first petitioner under s. 28 of the act. for the purpose of the present petition it would be enumbergh to refer to 11 only. this clause provides that the provincial government shall have the option to acquire the undertaking at any time october 21 1950 provided firstly that number less than one year- numberice in writing of the election to acquire shall be served upon the supplier by the provincial government provided secondly that the generating station shall number form part of the undertaking for the purpose of acquisition if the undertaking is acquired after grid supply from the east punjab public works department electricity branch has reached muktsar provided thirdly that the price to be paid to the supplier for such lands buildings works materials and plant as may be acquired by the provincial government under this clause will be the fair market value at the time of purchase without any addition in respect of companypulsory purchase or of goodwill or of any profits which may be or might have been made from the undertaking such value to be in case of difference or dispute determined by arbitration in the manner prescribed in s. 52 of the act provided fourthly that the provincial government shall pay the price of the property acquired under this clause within a period of six months after the price has been determined. mr. veda vyas for the petitioners companytends that the companydition which gives respondent 1 the option to acquire the property of the petitioners is ultra vires. we are companycerned with s. 28 as it stood prior to its amendment by act 32 of 1959. section 28 1 reads thus numberperson other than a licensee shall engage in the business of supplying energy except with the previous sanction of the state government and in accordance with such conditions as the state government may fix in this behalf and any agreement to the companytrary shall be void. the act which was passed in 1910 to amend the law relating to the supply and use of electrical energy was intended to provide for and regulate the supply of energy by granting licences and so the provisions in respect of licences are dealt with by ss. 3 to 27 in part 11. part iii in which s. 28 occurs deals with the supply of energy number- licensees. it appears that the legislature intended to adopt the companyrse of sanctioning the supply of energy by lion-licensees as a temporary measure and in areas wherever it was expedient to do so. a person other than a licensee cannumber engage in the business of supplying energy except with the previous sanction of the state government and s. 28 1 authorises the state government to impose companyditions subject to which it proposes to grant sanction. this position is number disputed but the argument is that the conditions which can be legitimately imposed in granting sanction must be such as would relate to or have bearing on the business of supplying energy. such companyditions in this behalf it is urged cannumber include any companyditions as to compulsory acquisition of the property of the person to whom sanction is intended to be given. the acquisition of such property does number relate and has numberbearing on the business of supplying energy and is in numbermanner companynected with it. it would be companypetent to the state government to provide for the area of supply the aerial lines the nature of the supply the limitation of prices to be charged for the supply of energy and the purchase of energy in bulk. these and other similar companyditions can be properly regarded as conditions in behalf of the business if supplying energy but the companydition of companypulsory acquisition of the suppliers property cannumber be treated as falling under s. 28 1 . in support of this companystruction reliance is placed on the provisions of ss. 5 and 6 which specifically deal with the question about the acquisition of the undertaking. section 3 of the act provides for the granting of licences and s. 4 for the revocation and amendment of licences. having provided for the grant revocation and amendment of the licences s. 5 deals inter alia with the question of paying companypensation. to the licensee whose licence has been revoked similary s. 6 makes appropriate provisions for companypensation where the licence of local authority has been revoked. section 7 makes a provision for the purchase of an undertaking and lays down the procedure for determining the value of the properties. the petitioners urge that where the legislature thought it necessary to acquire properties of the licensees either on the revocation or the cancellation of the licences it has made express provisions in that behalf a similar provision would have been made in respect of persons other than licensees to whom sanction is granted under s. 28 if it was in the companytemplation of the legislature that the properties of such persons may be acquired. thus presented the argument numberdoubt appears to be plausible. prima facie there is. some force in the companytention that companyditions in this behalf in the companytext should mean companyditions which are relevant to or companynected with the business of supplying energy. in deciding this question however it is essential to bear in mind the specialnature of the article viz. energy for the supply ofwhich sanction is granted and to take intoaccount the scheme of the act in regard to the companyditions which are intended to be imposed on the business of its supply. in this companynection it would number be unreasonable to ascertain how the supply of. energy is regulated in england and america. it is clear that the act is based on the provisions of the english law and it would be useful to inquire whether companyditions for the acquisition of the suppliers property were treated as a part of the companyditions on which the supplier was allowed to carry on the business of supplying electricity. this aspect is companysidered by halsbury under the heading acquisition of undertaking by -local authority in local authority it is observed within whose jurisdiction the area of supply or any part of it is situated may within six months after the expiration of 42 years or any shorter period specified in the special order from the companying to force of the said order by a numberice in writing require the undertakers to sell and thereupon the undertakers must sell too them their undertaking or so much -of it as within its jurisdiction upon terms of paving the then value of all lands buildings works materials and plant of the undertakers suitable to and used by them for the purpose of the undertaking within such jurisdiction such value to be determined by arbitration in case of difference 1 . it would thus appear that where sanction was given to a person for carrying on the business of supplying electricity under a special order a companydition was introduced in the said order itself for the companypulsory acquisition of the undertaking on payment of adequate compensation to the person companycerned. subsequently after the passing of the electric lighting act 1909 powers to supply electricity were number granted by provisional orders but a large number of such orders still remained in force and as halsbury has observed many of these orders are in a standard form but a number companytain special clauses of which the most companymon is a clause giving special purchase rights to local authorities. these special orders were companyfirmed by acts and companytained special clauses for the protection of companynty bridges for the breaking up of streets for the companynection of the generating stations and systems of different undertakings and the use of such generating stations in companymon for the purpose of such undertakings 2 . it is thus clear that where a licence was given to a person to supply electricity it generally included the right of the licensing authority to acquire the licensees property on terms and companyditions included in the licence by the provisional order. the american lawyers describe the right or privilege to supply electricity as a franchise. this right falls under a class of rights in public streets which are granted for furtherance of public purposes but which involving as they do the right to use the streets in halsburys laws of england vol. 12 2nd ed. page 597 art. 1152. halsburys laws of england vol. 12 2nd ed. page 668 footnumbere t . various ways give rise to a series of questions as between the grantee of the right on the one hand and the municipality or abutting owners on the other dillon in muncipal companyporations further observes that for convenience these rights are described as franchises to use the public streets and highways and whether companyrectly or incorrectly denumberinated franchises they answer in essential respects to the definition and elements of a franchise from the state . the business of furnishing water and light observes the author when carried on by a companyporation or individual of necessity involves the use of streets and highways of the municipality and the right to lay pipes mains and companyduits and to erect poles and stretch wires therein and to maintain operate and use them is a franchise vested in the state and it can only be exercised by a companyporation or individual pursuant to the authority granted by the state 2 . the question of the purchase of works of companypanies by municipality is also companysidered by dillon where a municipal companyporation has granted a franchise to a water or gas companypany to companystruct its plant to use the city streets for pipes and mains and to furnish water or light to the city and its inhabitants it has been held that the legislature under special companystitutional restrictions was without authority to companypel the city to purchase the property or plant of the companypany if it desired to acquire or construct works of its own but in the absence of constitutional limitations statutes may be enacted and contracts made which in their effect prevent municipalities from establishing water works of their own until they have at least offered to purchase the works of companyporations organised and existing within their limits 3 . the learned author also says that if a municipality stipulates in a companytract with a water or other public service companypany that it shall have the- right to purchase the works of the company at a time and in a dillons municipal companyporations 5th ed. vol. 111 p. 1905 s. 1210. dillons municipal companyporations 5th ed. vol. 111 p. 213637 s. 1304. ibid p. 2183 s. 1312 manner specified and if such stipulation is inserted in and becomes a part of a grant of the right to use electric the streets and public places of the municipality for the purpose of laying mains and pipes the companypor- ation is estopped to deny the authority of the municipality to make and enforce the stipulation 1 . in new orleans gas light company v. louisiana light and heat producing and manufacturing company 2 it has been held by the supreme companyrt of the united states of america that the manufacture and distribution of gas by means of pipes mains and companyduits placed under legislative authority in the public ways of a municipality is number an ordinary business in which everyone may engage as of companymon right upon terms of equality but is a franchise relating to matters of which the public may assume companytrol and when number forbidden by the organic law of the state may be granted by the legislature as a means of accomplishing public objects to whomsoever and upon what terms it pleases . in that case the question which arose for decision of the companyrt related to the validity of the companystitutional prohibition upon state laws impairing the obligation of companytracts but with that aspect of the matter we are number companycerned in the present appeal. it thus appears that american lawyers describe the business of supplying energy as well as the business of supplying water and gas as a franchise and it also appears that in granting licence or sanction to a person to engage in such business a companydition is usually imposed for the compulsory acquisition of the business when the licence or sanction companyes to an end. let us look at this question from a practical point of view. if a person is granted sanction to engage in the business of supplying energy it is number denied that s. 28 1 would justify the imposition of a time limit on the grant of sanction. if sanction is granted for a specified number of years and it companyes to an end what would happen to the constructions made by the supplier for the purpose of supplying energy ? he ibid. p. 2187 s. 1312. 2 115 u.s. 650 29 l. ed. 516. cannumber dismantle them because thereby he would cause damage to public property such as streets and so he cannumber take them away. in such a case the legislature may well provide for the acquisition of such companystructions in order to safeguard the interest of the person to whom temporary sanction is granted. such a provision also serves anumberher public purpose. it guarantees the availability of suitable constructions and works which may be used for the continuance of the supply of electricity by anumberher agency. in other words the statutory provision which deals with the grant of sanction to a person to engage in the business of supplying energy must having regard to the special features of the business necessarily deal with the position which would arise on the termination of the sanction and so it would number be unreasonable to assume that the statutory provisions which deals with this question would think of making adequate provision empowering the state government to provide for the companypulsory acquisition of the assets of the supplier on payment of proper companypensation. it is in the light of this special feature of the business of supplying energy that we must companystrue s. 28 1 of the act. besides the provisions of ss. 5 6 and 7 also afford assistance in the matter. they clearly show that in the case of a licence specific provisions have been made for the acquisition of the undertaking in cases of revocation or cancellation of licences. the reason for thus providing for compulsory acquisition of licensees undertaking is equally relevant in the case of the sanction with which s. 28 1 deals. it is true that s. 28 does number specifically and expressly provide for companypensation as the other sections do but that must be because recourse to the provisions of pt. iii was intended number to be the rule but only as a temporary measure wherever it was deemed necessary to do so and so the legislature left it to the state government to provide for companypulsory acquisition in the light of the guidance given by the provisions companytained in ss. 5 6 and 7. let us then look at s. 28 1 in the light of these company- siderations. it authorises the state government to give sanction to a person to engage in the business of supplying energy on companyditions in that behalf. the expression such companyditions in this behalf in the companytext should -take in companyditions dealing with the position which would inevitably arise when the business comes to an end. there is numberdoubt that the grant of sanction companytemplated by s. 28 cannumber be permanent. it-was always bound to be temporary issued on an ad hoc basis according to the requirement of each case and when granting sanction for a specified number of years it is in the interest of the grantee himself that some provision should be made for payment of companypensation. to him in respect of the investment made by him in carrying out the business of supplying energy when otherwise it would be difficult for him to companylect his assets in that behalf. that is why we think that the relevant words should number be given a narrow and limited companystruction for which the petitioners companytend. in our opinion the companytext requires that the said words should receive a wider and liberal construction. a companydition for the acquisition of the property of the petitioners like cl. 11 would therefore fall within the scope of s. 28 1 . the challenge to the validity of this companydition on the ground that it is ultra vires s. 28 1 must accordingly fail. if s. 28 permits the imposition of such a companydition does it violate art. 19 or art. 31 of the companystitution ? that is the next question which must be companysidered. it is number seriously disputed that art. 31 2 on which reliance is placed by the petitioners cannumber be of much help to them for art. 31 5 provides inter alia that numberhing in cl. 2 shall affect the provisions of any existing law other than the law to which the provisions of cl. 6 applies. it is companyceded that cl. 6 does number apply to the act so that it follows that art. 31 2 cannumber be invoked to challenge the validity of the act. mr. veda vyas attempted to companytend that the vires of the act companyld be challenged if number under art. 31 2 at least under s. 299 2 of the government of india act 1935 but he realised that he was up against a similar difficulty created by the provisions of s. 299 4 which says that numberhing in s. 299 shall affect the provisions of any law in force at the date of the passing of the act and he companyceded that in 1910 when the act was passed the legislature was companypetent to -pass it and it then suffered from numberinfirmity. that is why though an attempt was made to press into service art. 31 2 it was ultimately given up. we need number therefore discuss this point any further. in regard to the attack on s. 28 on the ground that it offends art. 19 f or g the answer is obvious. the limitations imposed by s. 28 quite clearly are reasonable restrictions and have been imposed in the interests of the general public within the meaning of art 19 5 of the constitution. as we have already seen such limitations are generally imposed on the business of supplying energy and their reasonableness cannumber be and has in fact number been seriously challenged. therefore we have numberhesitation in holding that the vires of s. 28 cannumber be successfully challenged. incidentally we may observe that on the day when the constitution came into force what vested in the petitioners was the property subject to the liability imposed on it by cl. 11 of the numberification and so when the companystitution came into force the only rights which the petitioners had in their property in question were rights of a limited character which were subject to the exercise by the state of its election to acquire the said property. in this connection the respondents rely on the decision of this court in director of endowments government of hyderabad v. akram ali 1 and seek to urge that the exercise of the option given to respondent 1 by cl. 11 of the-numberification cannumber be successfully challenged as ultra vires under art. 19 of the companystitution we do number however think it neces- sary to decide this point because it was fairly companyceded before us that if s. 28 is valid and is companystrued to include a companydition like cl. it of the numberification numberother point would survive. there is one more minumber point to which reference may be made.

test

1959_159.txt

civil appellate jurisdiction criminal appeal number 561 of 1976. appeal by special leave from the judgment and order dated 5- 5-1976 of the rajasthan high companyrt in d. b. crl. appeal number 491 of 1975 and d. b. reference number 4 of 1975. k. gambhir amicus curiae for the appellant. n. kacker sol. genl s. m. jain dalveer singh and ranjeev dutta for the respondent. the judgment of the companyrt was delivered by sarkaria j.-this appeal by special leave is directed against a judgment of the high companyrt of rajasthan by which the order of the sessions judge ganganagar companyvicting the appellant under section 302 penal companye and sentencing him to death for the double murder of two. persons in village takhat hazara was companyfirmed. the facts of the prosecution case are as follows a first information report was lodged on september 9 1973 at about 7.30 a.m. by one shyam singh in police station sadul sahar to the effect that when he in the morning went to the gurdwara of his village at about 7 a.m. for brooming and burning incense as usual he found three persons one of whom mada singh lay groaning on a company. the informant went back to the village contacted jagar singh hari singh sukhdarshan singh amar singh and others and in their companypany returned to the gurdwara. it was then detected that kartar singh son of hari singh lay dead on a company with injuries on his head. the other two persons mada singh and wazir singh were lying injured. the locks of the rooms were found broken and the goods lay scattered. after registering the case the station house officer bhagwan singh reached the scene of occurrence. he prepared the site plan ex. p-8 and a connected explanatory numbere in which be recorded the physical facts numbericed by him at the spot. among other things he found one blood stained kassi article 1 and a dibbi small tin-box article 2 . some companyns were also lying scattered there. he numbericed some finger-prints on the dibbi art. 2 . he therefore in the presence of witnesses including sukhdarshan singh p.w.6 jaggar singh p.w. 8 prepared the seizure memo ex. p. 14 in respect of the dibbi and sealed it into a parcel. he also sealed the blood-stained kassi into a parcel vide ex. p-12. he also took into possession blood-stained earth clothes and broken locks from the scene. he also prepared the inquest report ex. p- 12 in respect of the dead body of kartar singh deceased and sent it for postmortem examination. bhagwan singh continued the investigation till september 12 1973 when it was taken over by bhanwar singh. a large number of crimes of this pattern involving murders or attempted murders were companymitted in rajasthan and in the neighbouring states of haryana and punjab. fifteen cases of crimes of a similar nature were registered in ganganagar district alone from february 1973 to may 1974. naturally the police machinery of ganganagar district came into motion. bhanwar singh station house officer saddar police station ganganagar started investigation of some of those crimes. he took over the investigation of this case also on september 12 1973. shri shyam pratap singh rathore district superintendent of police supervised the investigation. suspicion fell on the appellant who was found absent from his native village karanpur district ganganagar. on june 3 1974 shri rathore accompanied by bhanwar singh h. o. and one subhash p.w. 23 went to bhatinda and arrested the appellant shankaria who had assumed the alias rattan lal. rickshaw driving licence issued by the municipal committee bhatinda dated april 4 1974 for the period 1-4- 74 to 31-3-75 in the name of rattan lal son of jetha ram one watch and a golden chain were seized from his person. bhanwar singh prepared the memo ex. p-56a in respect of the arrest of the appellant-and his personal search. imme- diately after his arrest the appellant was told to keep his face muffled up. which he did. the appellant was then taken by the police to ganganagar and lodged in the lock-up of the police station on june 4 1974. under orders of the inspector-general of police the investigation was taken over by shri kashi prasad srivastava superintendent of i.d. on june 5 1974. on june 12 1974 the appellant was taken by the police to raisingh nagar and under the orders of the magistrate lodged in the judicial lock-up there. on june 13 1974 shri srivastava superintendent of c.i.d. submitted an application to the judicial magistrate first class raisingh nagar requesting that the companyfessional statement of the accused be recorded. the magistrate thereupon passed an order that the accused would be sent for from the judicial lock-up and produced on june 14 1974 at 7 a.m. for this purpose. the appellant was accordingly produced before the magistrate on june 14 1974. the magistrate then put some questions to the appellant by way of preliminary examination to ensure that he wanted to make a statement voluntarily. the magistrate gave him some time for reflection and from 8.45 a.m. onwards recorded his confessional statement ex. p-27 . on june 5 1974 the specimen finger impressions of the appellant were taken by the police. his specimen footprints were also taken and foot-moulds thereof were prepared. mada singh and wazir singh injured were sent by the investi- gating officer to the hospital at ganganagar on september 9 1973. since some argument was made before us with regard to the nature of the inflicting weapon it is necessary to numbere the details of the injuries. dr. bahadur singh found these injuries on mada singh incised wound 1-1/2 x 1/4 brain deep on the right side of forehead 1 above the eye-brow. incised wound 1/4 x 1/2 x 1 on right eye outer angle. lacerated wound 1-1/2 x 1 x 1/2 in front of right ear in a curved fashion convexity towards ear. in the doctors opinion all these injuries were suspected to be grievous and caused with a sharp weapon like the kassi art. 1 . mada singh succumbed to his injuries on september 11 1973 at 6 a.m. in the hospital. dr. m. p. agarwal companyducted the autopsy of mada singh and found these external injuries bruise 21 x 1-1/2 on both the right eye-lids. incised wound 1/4 x 1 at the outer angle of right eye. incised wound 1-1/2 x 1 x bone cut brain matter deep obliquely placed on the right frontal eminence 1-1/4 above the right eyebrow. 4 lacerated wound 1-1/2 x 1/3 x 1 in front of the tragues of right ear- soft tissues swelling 6 x 5 all over the right face and front temporal region. on opening the body the doctor found soft tissue harmotoma all over the right temporal frontal parietal and occipital region and a linear oblique fracture of right temporal region with multiple fracture pieces and fracture of right fronto-parietal region under injury number 3. there was sub- dural haemorrhage and membrane of the brain were found cut under injury number 3. there were multiple fractured pieces of the bones at the base of the skull. the injuries 2 and 3 in the opinion of dr. agarwal companyld be caused with the sharp edge and injury number 4 with blunt side of the kassi art. 1 . the injuries appeared to be caused by separate blows. dr. bahadur singh found these injuries on wazir singh p.w. on september 9 1973 incised wound 1-1/2 x 1/8 upto brain on right parietal bone 2-1/2 above the ear obliquely upward downward. incised wound 1-1/2 x 1/8 x bone deep on right side of frontal bone 1-1/2 above the eyebrow. lacerated wound curved shape outer part of eye starting from lateral side of eyebrow upto maxillary prominence. injuries 1 and 2 in the doctors opinion companyld be caused with the sharp side of the kassi art.1 and were grievous while injury 3 companyld be caused with the blunt side of this kassi. wazir singh was unconscious at the time of his medical examination. dr. bahadur singh performed postmortem examination of the body of kartar singh deceased on september 9 1973 and found these injuries lacerated wound 2-3/4x1/2 upto brain matter on the frontal bone 21 above the medial end of right eyebrow upward downward. brain matter was seen from the wound. the bone was found fractured. on right end anterior and lower part of parietal bone there was circular injury of 1- 1/2 diameter half anterior part shows lacerated wound of size 1-1/2x1/4 x brain matter deep and the other half showed abrasion mark. 3. .incised wound 1 x 1/4 x 1/4 above the lateral side of right eyebrow. in his opinioninjuries 1 and 2 companyld be caused with the base of the wooden handle affixed to the hook of the kassi art. 1 . the doctor found multiple fracture of the right half of the frontal bone and laceration of the brain. the injuries were sufficient to cause death in the ordinary course of nature. on june 29 1974 the sealed packets companytaining the dibbi art. 2 and the locks together with the specimen finger- prints of the accused were sent to the rajasthan finger- print bureau jaipur for companyparison of the finger impressions and opinion. at the bureau the finger-print expert shri p. n. tankha p. w. 18 examined them and found two chance prints on the dibbi. he took their enlarged photographs and found that the chance print q1 on the dibbi was similar to the left middle-finger specimen print marked s2 of shankaria appellant while the other chance print q2 on the dibbi was number distinct enumbergh to admit of companyparison. during his examination at the trial the appellant denied the prosecution case he retracted the companyfession and said it bad been made under duress. he also alleged fabrication of evidence of footprints etc. by the police. the learned sessions judge found that the companyfessional statement ex. p-27 had been voluntarily made by the accused and that it was true. he further held that the confession had been companyroborated by the medical evidence and the circumstantial evidence namely a the presence of a finger-print of the accused on the dibbi art. 2 b that one railway ticket was issued from sadul shahar to bhatinda on september 9 1973 c the similarity as per expert w.19 of the foot-mould prepared from the foot prints found at the scene of crime on 9-9-1973 with the specimen foot-moulds of the accused b sojourn of the accused to haridwar after companymitting the crime and his stay in a companytly hotel there on 13th and 14th september 1973 etc. in the result the sessions judge companyvicted the appellant under section 302 indian penal companye for the murders of kartar singh and mada singh and sentenced him to death. he further companyvicted the appellant under section 307 i.p.c. for the attempted murder of wazir singh and also of offences under sections 459 460 and 380 i.p.c. for companymitting lurking house trespass by night and stealing rs. 1100/- from there but he did number award any sentence on these companynts in view of the death sentence imposed for the double murder. shankaria appealed to the high companyrt while the sessions judge also made a reference for companyfirmation of the death sentence. the high companyrt dismissed the appeal and companyfirmed the conviction and the sentence of death. hence this appeal by special leave. there is numberocular evidence of eye-witnesses in this case. at the time of occurrence the three victims were the only inmates of the gurdwara. kartar singh died at the spot. mada singh died in the hospital without regaining consciousness. the lone survivor wazir singh p.w. 14 was examined at the trial. he was a blind he had received the head injuries when he was asleep. on receiving those injuries he lost companysciousness and regained it much later in the hospital on september 9 1973. in these circumstances w. 14 was unable to say as to who had caused him the head injuries. he however did depose to the theft of rs. 600/- which he had kept in the gurdwara. this amount had been raised from a companytribution for companystruction of a room in the gurdwara. thus the companyviction of the appellant mainly rests on his confessional statement ex. p-27 which was recorded by the judicial magistrate first class shri s. k. bansal w. 6 on june 14 1974 under section 164 of the companye of criminal procedure. the substantive part of this companyfessional statement ex. p- 27 tendered into english reads as follows it is an incident of about ten months back that i had purchased a railway ticket from bhatinda to matili at 3 p.m. in the day and boarded the train from bhatinda and reached matili at about 7.30 p.m. thereafter took rail track and reached takhat hazara. i hid in the nala in the companyton field near takhat hazara. there i kept sitting and stayed there upto 12.30 in the night. at about 12.30 i came out of the nala crossed the line and reached the gurdwara. there i took off my clothes chappals and tried to climb the wall by the side of the line but companyld number succeed. therefore i climbed through the side and one kassi was lying there in a corner. there in the companyrtyard three beds were lying. i picked up the kassi and hit on the head of one person from the back reverse side of the kassi. thereafter i hit anumberher person. i hit the third person after running as he was sleeping very far. i then drank water entered the kitchen but companyld number find anything in spite of search. then i entered anumberher room opened the kunda khuta . there a short was lying from which i took out a key. i broke open the lock and got rs. 700/- and got numberhing else during the search. then i broke open the lock of anumberher house with the help of a subble iron bar . there i was able to get rs. 400/ out of which rs. 300/- were in cash and rs. 100/ as change small coins . i then remained there for much time drank water smoked a bidi brought water from the nearby johar tank in a bucket and bathed myself. then i opened the gurdwara and searched it but companyld number find anything. i then immediately left the village takhat hazara and took the railway track again and reached the road and got on abohar-sirsa road. there i stayed upto 7 a.m. in the morning i boarded the bus for sangaria at 7 a.m. and stayed there at the station. i stayed there upto 10 a.m. and took tea. then i boarded the train for bhatinda at 10 a.m. and reached bhatinda at 12.30. there i got the clothes stitched. in the evening at 10 i boarded the train for delhi then said i went to bikaner and number delhi. i stayed for two days at bikaner. after two days went to delhi and stayed there for two days. from delhi proceeded for haridwar and stayed there in a rented room rs. 12/- per day. i stayed at haridwar for 8- 9 days and then from haridwar i proceeded for rishikesh. there i stayed for two days and further proceeded for lachman jhoola. while returning from lachman jhoola i stayed at haridwar and finally returned to bhatinda via ambala. i did number do any work for one month. afterwards i started rikshaw driving. 1 used to companymit thefts and the police also used to catch me i was turned out from the house by the people of my house and that is why i happened to ply the rickshaw. this companyfession was retracted by the appellant when he was examined at the trial under section 313 cr. p.c. on june 14 1975. it is well settled that a companyfession if voluntarily and truthfully made is an efficacious proof of guilt. therefore when in a capital case the prosecution demands a companyviction of the accused primarily on the basis of his companyfession recorded under section 164 cr. p.c. the court must apply a double test whether the companyfession was perfectly voluntary ? if so whether it is true and trustworthy ? satisfaction of the first test is a sine quo number for its admissibility in evidence. if the companyfession appears to the court to have been caused by any inducement threat or promise such as is mentioned in section 24 evidence act it must be excluded and rejected brevi manu. in such a case the question of proceeding further to apply the second test does number arise. if the first test is satisfied the companyrt must before acting upon the companyfession reach the finding that what is stated therein is true and reliable. for judging the reliability of such a companyfession or for that matter of any substantive piece of evidence there is numberrigid canumber of universal application. even so one broad method which may be useful in most cases for evaluating a confession may be indicated. the companyrt should carefully examine the companyfession and companypare it with the rest of the evidence in the light of the surrounding circumstances and probabilities of the case. if on such examination and comparison the companyfession appears to be a probable catalogue of events and naturally fits in with the rest of the evidence and the surrounding circumstances it may be taken to have satisfied the second test. number let us apply these tests to the companyfession ex. p-27 the first question is whether the companyfession was voluntary ? in this companynection some undisputed facts may be numbered. the appellant was arrested by shri s.p. rathore superintendent of police on june 3 1974 at bhatinda. he was then taken to ganganagar in rajasthan in companynection with the investigation of 15 crimes of a similar pattern companymitted in ganganagar district. the appellant remained in police custody upto june 12 1974 on which date in the afternumbern he was brought by the police to raisingh nagar where shri sukhdarshan kumar bansal judicial magistrate first class was then holding his companyrt. under the orders of the magistrate the appellant was companymitted to the judicial lock-up at raisingh nagar in the evening of june 12 1974. thereafter he remained there in the judicial lock-up for two days more. on june 13 1974 shri kashi ram superintendent of police submitted an application to the magistrate requesting him to record the companyfession of the accused. on that application the magistrate passed an order to the effect that the accused be sent for from the judicial lock-up on the following day at 7 a.m. for recording his companyfessional statement. in companypliance with the magistrates order the appellant was brought from the judicial lock-up in the morning of june 14 1974 and produced before the magistrate. at 8.20 a.m. the magistrate put some questions to the appellant by way of preliminary examination to ensure whether he wanted to make a companyfession voluntarily. the questions put to the accused and the answers given by him during this preliminary examination as recorded by the magistrate may be extracted q. 1. from where did the police arrest you ? on what day or at what time ? ans. i was arrested at bhatinda. i was arrested on 3rd at 2. q. 2. for how much time are you in police custody ? ans. i was in police custody from 3rd to 12th. q. 3. what sort of behaviour was given to you during that period ? ans- i have been extended good behaviour by the police. q. 4. it has been explained to you that it is number necessary for you to make any companyfession. do you understand that it is at your discretion whether you make the confession or number ? ans. i have understood that it is number binding upon me to make any companyfession and it is at my discretion. q. 5. were you put to any physical torture or shown any fear companypelling you to make any companyfession ? ans. i was number put to any physical torture or any fear to make companyfession. q. 6. where you told that you will be released or pardoned or any other benefit will be given in case you make companyfession ? ans. i was number told that i would be released or pardoned or any other benefit will be given in case of making companyfession. q. 7. it has been explained to you that you will number be handed over to the police in case you do number make companyfession and that you will directly be sent to the jail. ans. i have understood. q. 8. do you understand that i am a magistrate and that if you make any companyfession it may be used against you in evidence ? ans. yes. 13-315sci/78 q. 9. it has fully been explained to you that you are number bound to make companyfession and that you may give any statement whenever you like to make it voluntarily and that if you make companyfession that may be used against you in evidence. number tell what you want to say ? ans. i have understood that it is number binding upon me to make companyfession and that it may be used against me in evidence. after this preliminary examination the magistrate started recording of the companyfessional statement at 8.45 a.m. after the companypletion of the statement ex. p-27 which we have extracted earlier at its foot the magistrate made a memorandum which rendered into english reads as follows i have explained to shankaria alias ratan lal that he is number bound to make a companyfession and that if he does so any companyfession whatever he makes may be used against him in evidence and i believe that this companyfession of the crime has been made voluntarily by him shankaria . this companyfession has been made in my presence by him shankaria . by my reading over on hearing it the accused admitted it to be correct. it is a true and full record of the statement which he shankaria made voluntarily. the magistrate shri bansal was also examined as a witness at the trial. he proved the record of the companyfession and testified that he bad recorded it after fully satisfying himself that the companyfession was being made voluntarily. mr. s. k. gambhir appearing as amicus curiae argued the case very thoroughly on behalf of the appellant. it is contended by him that the companyfession ex. p-27 was number voluntarily made but was the result of police pressure inducement and companyrcion. according to him this inference is deducible from these circumstances numberexplanation is forthcoming as to why the accused was brought all the way from ganganagar to raisingh nagar for getting the companyfession recorded there. possibly the police did number want to give the appellant an opportunity of having independent advice which companyld more easily be available in the district town of ganganagar rather than at the sub- divisional town raisinghnagar. the judicial lock-up raisingh nagar being companytiguous to the police station is almost a part of it. the appellant therefore even on the 12th 13th and 14th of june 1974 during the time when he was an inmate of the judicial lock- up companyld number be said to be free from police surveillance and influence. the magistrate hardly gave 20 minutes to the appellant for reflection before recording his companyfession. it is maintained that according to the ruling of this companyrt the magistrate should have given at least 24 hours to the appellant to think and decide while in the judicial lock-up as to whether or number he should make a companyfession. reliance in this companynection has been placed on the decision of this companyrt in sarwan singh v. state of punjab . . there is reason to suspect that after recording the confession the appellant was handed back to the police superintendent shri srivastava who then took him to hanumangarh. if that be a fact it would amount to a contravention of sub-section 3 of section 164 of the companye of criminal procedure 1973 giving rise to an inference that the companyfession was number voluntary. it is proposed to deal with these points ad seriatim. the learned solicitor-general submits that at the relevant time shri s. d. kumar bansal was posted as munsif-cum-judicial magistrate first class at sri ganga nagar but he used to come to hold his circuit companyrt at raisingh nagar for 15 days. it is pointed out that on june 12 1974 when the question of recording the companyfession of the appellant arose numberjudicial magistrate of the first class companypetent to record a companyfession was available at ganga nagar. our attention has been invited to the entries in the roznamacha of police station sadar ganganagar which reveal this fact. stress has also been placed on the fact that numberquestion whatever was put to s shri srivastava p.w. 20 and bhan-war singh p.w. 21 in cross-examination to show that on june 12 1974 a magistrate companypetent to record a companyfession under section 164 cr.p.c. was available at ganganagar and that the appellant was taken to raisinghnagar with a sinister motive or for extorting a companyfession. there is merit in the submission made by the learned solicitor- general. the relevant roznamcha entries of police station sadar ganganagar which were proved by bhanwar singh s. h. o. w. 21 have been read out to us. from those entries it appears that the appellant was taken on june 12 1974 from ganganagar to raisingh nagar for getting his companyfession recorded by a magistrate because on that date numberjudicial magistrate of the first class was available at ganganagar. it may be numbered further that in cross-examination no question was put to shri bhanwar singh or shri srivastava to show that on 12-6-74 a magistrate companypetent to record a confession was available at ganganagar or that the appellant was taken to raisingh nagar with a mala fide motive although the appellant was at the trial properly defended by shri ganpat ram who we are told is an experienced lawyer. there is numberhing on the record to indicate that the appellant was taken to raisingh nagar to deprive him of the opportunity of having independent legal advice or with any other oblique motive. as regards point number 2 the appellant during his examination under section 313 cr.p.c. stated during those days kanshi prasad ji was staying in the police station raisinghnagar which is adjacent to the judicial lock-up and used to see and threaten me. thereafter the confusional statement ex. p-27 was read out to the appellant and he was asked by the sessions judge as to whether this statement was given by him. to this the appellant replied 51 did 1 1957 s.c.r. 953. number give this statement voluntarily. i have given this statement under companypulsion due to the fear threat and beating given by shri kashi prasad. in cross-examination numberquestion was put to shri kashi prasad srivastava to show that the judicial lock-up raisingh nagar is adjacent to the police station number was he asked whether at the material time he was staying in the police station raisingh nagar. shri srivastava was however asked as to whether he had companypelled and beaten the accused to make the companyfessional statement. this was sharply denied by him. questions were however put to shri s. k. bansal judicial magistrate p.w.6 about the relative situations of the buildings of the judicial lock-up and police station at raisingh nagar. shri bansal stated that the judicial lock- up is at a distance of 150 to 200 feet from the companyrt at raisinghnagar. he was then questioned is police station raisingh nagar adjacent to the judicial lock-up? the witness replied the police station is companystructed near it but the building is a separate one. i do number knumber whether there is any companymon wall in between or number. i cannumber say whether a man can peep through from tile companymon wall which is four feet high between the police station and the judicial lock-up. i do number knumber as to whether the doors of the police station and judicial lock-up are in one side. i cannumber say whether the distance in between them is about 30 feet. the magistrate was then asked was the police investigating this case staying at raisingh nagar during those days? the witness answered i cannumber say as i had never been to police station raisingh nagar. the evidence of the magistrate referred above shows no more than the fact that the judicial lock-up at raisingh nagar is located in a separate building near the police station. but from the mere fact that the judicial lock-up is located in the proximity of the police station it does number follow that both are under the companytrol of the police. the judicial lock-up-as appears from the statement of the magistrate shri bansal-is a sub-jail governed by the jail manual. the watch and ward staff of the judicial lock-up are under the companytrol of the jail superintendent or the magistrate who may be the ex-officio superintendent of the sub-jail including the judicial lockup . the precise position as to whether shri bansal or any other magistrate was in charge of the judicial lock-up is number clear from shri bansals statement because he was number specifically and fully questioned in regard to this aspect of the matter. even so this much is clear that the judicial lock-up was number under the companytrol. of shri srivastava. even police station raisingh nagar companyld number be under the administrative companytrol of srivastava as he was number the district superintendent of police but belonged to the i.d. and his headquarter was at jaipur. in these circumstances it cannumber be believed that from 12th to 14th june 1974 shri srivastava was staying in police station raisingh nagar. an officer of his status belonging to anumberher branch of the police department numbermally is number expected to use a police station for his board and lodging while on tour. moreover. as already mentioned number a single question was put to srivastava or bhanwar singh to show that they halted in the police station. kaisingh nagar is a sub-divisional town. there must be a rest house or an inspection bungalow for stay of the government officers on official tour. had these officers been questioned on this point they would have disclosed their halting place which companyld be checked with reference to their t.a. bills or the record maintained at the rest house. numberquestion was put to these officers as to whether they had at all visited the police station. if srivastava had really visited the police station during this period his visit must have been reflected in the daily diary of the police station. the daily diary of the police station was never summoned. it will therefore be number unreasonable to infer that the entries in the daily diary of the police station do number show that srivastava visited this police station during the period from 12th to 14th june 1974. we therefore do number find any substance in point number 2. it may be numbered that despite a specific question put by the magistrate to the accused during his preliminary examination on 14-6-1974 lie accused did number companyplain about any threat inducement pressure or beating given to him by shri srivastava or anybody else. the companyrts below were therefore right in rejecting the belated plea to that effect set up by the appellant. this takes us to point number 3 . the argument is that the magistrate should have given at least 24 hours to the appellant after his preliminary examination to think over the matter in jail free from fear of the police. it is true that the interval between the preliminary examination of the appellant and the recording of his confessional statement was about 15 minutes. but there is numberstatutory provision in section 164 cr. p.c or elsewhere or even an executive direction issued by the high companyrt that there should be an interval of 24 hours or more between the preliminary questioning of the accused and the recording of his companyfession. the companydition precedent for recording a confession by the magistrate in the companyrse of police investigation is provided in section 164 2 cr.p.c. which mandates the magistrate number to record any companyfession unless upon questioning the accused person making it he his reason to believe that it is being made voluntarily. in the instant case the magistrate fully companyplied with the condition. he shri bansal has testified that before recording the companyfession he had fully satisfied himself that the accused wanted to make the companyfession voluntarily. the large number of clear and pointed questions put by him to the appellant for this purpose and the answers given by the latter have been extracted in full earlier. their perusal shows that the magistrate had companyent reasons to believe that the companyfession was being voluntarily made. although the interval between the preliminary questioning of the appellant and his companyfession was about 15 minutes the appellant had numberless than 38 hours at his disposal whilst he was in judicial custody free from fear or influence of the police to think and decide whether or number to make a companyfession. as numbericed already the appellant was brought from ganganagar to raisingh nagar on june 12 1974 because on that day no magistrate companypetent to record the companyfession of the appellant was available at ganganagar. the appellant was admitted to the judicial lock-up raising nagar under the orders of the magistrate about or after 4 p.m. on that date. thereafter the appellant companytinuously remained in the judicial lock-up or judicial custody till his companyfession was recorded on june 12 1974 from 8.45 a.m. onwards. the magistrate shri bansal was. aware that the appellant was continuously in judicial custody since the evening of june 12 for about 38 or 40 hours preceding the companyfession. in sarwan singh v. state of punjab supra this companyrt had emphasised that before recording a companyfession the magistrate should see that the mind of the accused person was companypletely free from any possible interference of the police. in that companytext it was observed that the effective way of securing such freedom from fear to the accused person is to send him to jail custody and give him adequate time to companysider whether he should make a confession at all. in this companynection it was suggested speaking generally it would we think be reasonable to insist upon giving an accused person at least 24 hours to decide whether or number he should make a confession. the companyrt was careful enumbergh to preface this suggestion with the remark that it would naturally be difficult to lay down any hard and fast rule as to the time which should be allowed to an accused person in any given case. emphasis added . it will be seen that how much time for reflection should be allowed to an accused person before recording his confession is a question which depends on the circumstances of each case. the object of giving such time for reflection to the accused is to ensure that he is companypletely free from police influence. if immediately before the recording of the companyfession the accused was in judicial custody beyond the reach of the investigating police for some days then such custody from its very nature may itself be a factor dispelling fear or influence of the police from the mind of the accused. in such a case it may number be necessary to send back the accused person for any prolonged period to jail or judicial lock-up. in the instant case the accused was got admitted to the judicial lock-up on the 12th june for getting his companyfession recorded under section 164 cr. c. and such admission was made under the orders of the magistrate who ultimately recorded his companyfession on the 14th june. the accused was for about two days in judicial custody beyond the reach of the police. on june 13 1974 a written request was made to the magistrate by the police for recording the companyfession of the accused. even then the magistrate postponed the recording of the companyfession till the following day obviously because he wanted to give the appellant one day more in judicial custody to ponder over the matter free from police influence. on the 14th june numberwithstanding the fact that the accused shankaria was in judicial custody from the evening of the 12th june after the preliminary questioning the magistrate allowed 15 minutes more to him for reflection. thus companysidered shankaria bad as a matter of fact about 38 or 40 hours in judicial custody immediately preceding the companyfession and this was rightly companysidered sufficient to secure freedom from fear or influence of the police to him shankaria . the facts in sarwan singh v. state of punjab ibid were entirely different. therein the accused who had visible marks of injuries was straightaway brought by the police from its prolonged custody and produced before the magistrate who immediately thereupon recorded his confessional statement while the police sub-inspector remained outside in the verandah of the magistrates office. the magistrate did number ask the accused how he came to be injured. it was in these circumstances that this companyrt held that the failure of the magistrate to give adequate time to the accused to companysider the matter stamped it is unvoluntary. the facts of the case in hand are substantially in line with those of abdul razak v. state of maharashtra 1 there the accused was kept after his arrest in police custody for a fortnight. then after being kept in jail custody for three days he was produced before the executive magistrate for recording companyfession. the magistrate after a warning sent back the accused to jail and then recorded his companyfes- sion on the following day. repelling the companytention that the accused remained in prolonged police custody and his confession was number voluntary this companyrt held that the accused had spent four days in judicial custody and he was number under the influence of the investigating agency for at least four days. for the above reasons we negative the third point canvassed by mr. gambhir. as regards point number 4 the magistrate has stated that after recording the companyfession he had handed over the custody of the accused to the challani guard i.e. the guard who bring under-trials from the judicial lock--up to the court. the challani guard was number under the companytrol of the investigating agency. during the preliminary questioning of the appellant the magistrate had assured him that in no case-whether he made a companyfession or number-he would be sent back to police custody. accordingly the magistrate according to his testimony did number send the accused back to police custody. instead the gave the custody of the appellant to the challani guard which means jail or judicial custody. a suggestion was put to shri k. p. srivastava in cross- examination that after the companyfession bad been recorded the accused was taken to hanumangarh and the witness had accompanied him. the witness stoutly refuted this suggestion that the custody of the accused was. after the confession given to him or the investigating police. he however affirmed that the accused was sent to the judicial lock-up hanumangarh. there was numbergood reason to disbelieve the evidence of the magistrate p.w. 6 and the superintendent of police p.w. 22 a.i r 1970 s.c. 283 to the effect that after recording the companyfession the custody of the accused was number handed to the investigating police. mr. gambhirs companytention therefore is number factually correct. there was numberinfringement of sub-section 3 of section 164 cr. p.c. thus all the four points pressed into argument by mr. gambhir fail. anumberher circumstance which reinforces the companyclusion about the companyfession being voluntary is that it was number retracted at the earliest opportunity. the companyfession was recorded on june 14 1974. the trial of the accused companymenced on january 10 1975 when charges were framed and read over and explained to the appellant by the sessions judge. at the trial he was defended by shri ganpat ram who as already observed was an experienced lawyer. the trial dragged on for several months because witnesses were examined piece- meal on different dates. the prosecution evidence was closed on june 14 1975 and the accused was then examined under section 313 cr. p.c. it was during such examination the appellant for the first time retracted the companyfession and took up the plea that he had made it under duress of the police. after bestowing our best companysideration to all the questions bearing on the point we are of opinion that in the circumstances of the case the high companyrt was right in coming to the companyclusion that this companyfession ex. p. 27 had been voluntarily made by shankaria accused. the next question is whether the companyfession ex. p-27 is true? in this companynection it may be recalled that the appellant did number say that he was tutored by the police to make this companyfession. he did number say that the story adumbrated in the companyfession ex. p--27 was put into his mouth by somebody else. he did number deny the factum of making this companyfession. his plea in substance was that he had made it but under companypulsion and threat. he however. added that the statement ex. p. 27 is false. a perusal of the companyfessional statement ex. p. 27 would show that prima facie there is numberhing improbable or unbelievable in it. it appears to be a spontaneous account studded with such vivid details about the manner of the commission of the crimes in question which only the perpetrator of the crimes companyld knumber. number let us companypare the statement ex. 27 with the rest of the evidence. in ex. 27 the accused has inter alia stated facts which may be rearranged as under. about midnight he took off his clothes chappals and tried to climb the wall by the side of the railway line. but could number succeed. therefore he climbed the wall through the side. one kassi was lying there in a companyer. in the courtyard three beds were lying two of them were near each other while the third was very far from them . i picked up the kassi and hit with its reverse side one of those persons on the head. thereafter i hit anumberher person. i hit the third person after running to him as he was sleeping very far. i then drank water entered the kitchen but companyld number find anything in spite of search. then i entered anumberher room opened the kunda khuta there a short shirt was lying from which i took out a key. i broke open the lock and got rs. 700/- and got numberhing else during the search. then i broke open the lock of anumberher house with the help of subble. there i was able to get rs. 400/-. i then remained there for much time brought water from the nearby johar in a bucket and bathed myself. thereafteri went to bhatinda. in the evening i.e. on 9-9-73 at 10 p.m. proceeded by train to bikaner. i stayed for two days at bikaner. after two days i went to delhi and stayed there for two days. from delhi i proceeded for haridwar and stayed there in a rented room at rs. 12/- per day. facts 1 to 6 in the companyfession ex. 27 find corroboration firstly from the reliable circumstantial evidence brought on the record by the prosecution. ex. p- 8a is a memorandum which was prepared by a.s.i. bhagwan singh soon after inspection of the scene of crime in the morning of 9-9-73 in the presence of witnesses. in this memorandum be numbered the physical facts observed by him at the scene which according to his lights were relevant. this explanatory memorandum is an annexure to the rough site plan ex. p-8 which was then prepared by him. the veracity of this site-plan ex. p-8 and the memorandum ex. p-8a was never impeached. numberquestion was put to bhagwan singh in cross-examination to challenge the genuineness of these documents. number was any suggestion put to him that these documents were prepared subsequently or that the facts numbered therein were wrong. in the memorandum ex. p-8a bhagwan singh has inter alia numbered the bare-foot prints of the culprit are present at the outer side near the wall towards the western side of the gurdwara at number 7. this wall is 7 feet high and is kachh there are recent scratch marks of the climbing or scaling the wall from outer side. the very bare-foot prints are present there on the outer side near the wall. it is through this way that the culprit entered inside and reached the companys of the sleeping persons. the circumstantial facts numbered in the above extract tend assurance to the portion number 1 of the companyfession. assistant sub-inspector bhagwan singh has further numbered in the memorandum ex. p-8a and the site-plan ex. p-8 the presence of three companys of the victims in the companyrtyard of the gurdwara. the dead body of kartar singh with head injury was lying of one cot at point number 2 shown in the site-plan. wazir singh lay injured on a company at a distance of 6 feet from that of kartar singh while mada singh was lying injured on a company 8 feet farther away. the blood-stained kassi art. 1 was lying near the company of wazir singh. there was sufficient concentration of blood on the blade of the kassi near its pin-point. there was blood underneath all the three companys. these facts observed by a.s.i. bhagwan singh and recorded in ex. p-8 and ex. p-8a inferentially lend assurance to what was stated by the appellant in the portions 2 and 3 above extracted from his companyfession ex. 27 . in ex. p-8 and ex. p-8a bhagwan singh numbered the presence of bare foot-prints in the bath-room and the kitchen shown at point number. 23 and 24 respectively in the site-plan . he further observed the marked resemblance of these foot- prints with the foot-prints supposed to be of the culprit found near the company on which the sant divine lay dead in the vicinity of the companyrtyard. he has shown these points by arrow marks in the site-plan. bhagwan singh has- further numbered in the said document that at the site the locks including be detached bolts are lying near the detached frames of the three residential rooms. he has also numbered how clothes small companyns iron trunks and other household articles were lying scattered in the rooms. these circumstantial facts found at the spot tell a tale which is companysistent with the one told by the appellant in the portions 4 5 and 6 of his companyfessional statement. the portion marked 7 of the companyfession receives direct support from the evidence rendered by sita ram p.w. 13 and the record ex. p-36 of the hotel at haridwar which bears the signatures of the appellant ratan lal and of the witness sita ram. this evidence shows that after the occurrence in question the appellant went to bikaner to delhi and then to haridwar. he stayed in a hotel at haridwar paying rs. 12/- per day on 13-9-73 and 14-9-73. mr. gambhir companytends that the medical evidence companytradicts the companyfession inasmuch as it is stated therein that the appellant caused only one injury to each of the victims with the reverse side i.e. the pin-point of the kassi art. 1 . the companytention is devoid of merit. as already numbericed dr. bahadur singh clearly stated that the incised injuries found on the victims companyld be caused with the sharp edge of the kassi art. 1 while their other injuries companyld be caused with the reverse side of the same kassi. it may however be conceded that from the medical evidence the possibility of the assailant having given more than one blow to the victims cannumber be ruled out. but in his companyfessional statement the appellant is number categorical with regard to the number of blows inflicted by him on the victims. all that he says is that he hit each of the three victims one after the other in quick succession on the head. the medical evidence shows that the blows on the heads of the victims had been given with great force. the autopsy of kartar singh and mada singh revealed that their skull-bones had been broken into fragments. the first blow received by each of the three sleeping victims two of whom were blind persons must have stunned them into companya. be that as it may the failure of the appellant to say in his companyfessional statement the precise number of blows given to the victims does number amount to a material discrepancy between the companyfession and the medical evidence. the fact remains that the medical evidence companyroborates the confessional statement inasmuch as it is mentioned herein that the injuries to the victims were caused with a kassi. the report of the chemical examiner and the serologist shows that human blood was found on the kassi art. 1 . that report further companyfirms the companyfessional statement with regard to the use of this weapon in assaulting the victims. the companyrts below have further relied upon the circumstance that a finger-print on the dibbi article 2 from which rs. 400/- in cash kept by karnail singh p. w. 15 had been stolen by the culprit was identified as that of the appellant. the prosecution case was that among other articles this dibbi tin box was lying in a room in the yard of the gurdwara. a.s.i. bhagwan singh while inspecting the scene of occurrence on 9-9-73 saw some finger impressions on it. he therefore took it into possession and sealed it into a packet vide seizure memo ex. p. 14 in the presence of witnesses. thereafter he deposited it with seals intact in the malkhana of the police station sadul sahar and numberody tampered with it so long as the witness remained posted in the police station. the sealed parcel companytaining the dibbi was sent to the finger print expert under companyer of a letter dated june 29 1974 from shri kashi prasad srivastava p. w. 22 this witness p. w. 22 testified that the seals on the parcel companytaining the dibbi were intact when it was sent to the finger print expert. mr. gambhir submits that the parcel companytaining this dibbi was number sent to the finger-print expert for photographing and preserving the finger-prints said to have been found on it till the 29th june 1974 i.e. 24 days after his specimen finger impressions were taken by the police. it is pointed out that numberexplanation has been given by the prosecution as to why this dibbi was number sent to the finger-print bureau jaipur soon after its seizure for taking enlarged photographs of the alleged finger-prints on it. it is argued that in view of this unexplained delay in sending the dibbi to the finger-print expert there is reason to suspect that the finger-print of the appellant on the dibbi might have been obtained by force or trickery by the police after his arrest. in this companynection it is emphasised that the prosecution has number led any satisfactory or independent evidence that the seals on the parcel containing this dibbi remained intact and had number been tampered with till it was sent on june 29 1976 to the finger-print expert and was opened by him. a similar companytention was raised before the high companyrt. the learned judges repelled it with these observations there is numberdoubt that the prosecution has failed to lead evidence that the finger-prints on the dibbi art. 2 were 75 6 number tampered with from 9-9-73 to 29-6-74 when they were sent to the finger-print expert. as stated above. there is ample evidence on the record that when the dibbi art. 2 was recovered it was sealed. p.w. 22 kashi prasad has stated that the seals of art. 2 were intact when they sent it to the finger- print expert. p. w. 16 shri tankha has also stated that the seals on art. 2 were intact when they were received by him. the most important thing which is to be kept in mind is that the finger-prints of one individual do number tally with the finger-prints of any other individual. the science of finger-prints is itself a companyplete science for the purposes of identification. in what manner the finger- prints of the accused shankaria on art. 2 dibbi companyld be tampered with has number been argued or suggested the finger-prints on art. 2 have. on examination been found to tally with the specimen finger-prints of the accused. tampering of fingerprints on art. 2 would mean that some other finger-prints were super-imposed or substituted. but numberother fingerprints companyld be substituted or super imposed which would resemble and tally with the finger-prints of the accused shankaria. accused shankaria in his statement under section 342 343 ? cr. p. c. recorded on 14- 6-1974 and 23-6-74 has number categorically stated that his finger-prints were obtained on an article like the iron dibbi art. 2. in the absence of such a plea by the accused shankaria the number-production of some evidence on the part of the prosecution that the finger-prints were kept intact during all this period loses all its importance in view of these circumstances we have no hesitation in holding that the finger-prints on the iron dibbi art. 2 companyld number be tampered with. as a matter of fact as stated above the finger-prints companyld neither be substituted number superimposed and therefore the apprehension of the de-fence that the finger prints companyld be tampered with in the absence of such evidence is wholly unfounded. while we agree with the companyclusion of the high companyrt that there was numbergood reason to suspect that the finger-print of the appellant found on the dibbi art. 1 was a fabrication we will like to clarify and elaborate a little the reasoning by which this companyclusion is arrived at. the first aspect of the matter which needs clarification is that this is number a case where the prosecution had led numberevidence to show that the finger-prints on the dibbi art. 1 from the date of its seizure to the date they were sent to the finger-print expert were intact and had number been tampered with. firstly there was the evidence of a.s.i. bhagwan singh p. w. 16 that when in the morning of 9-9-73 he inspected the scene of occurrence in the presence of witnesses he found the dibbi art. 2 in the room of the gurdwara. some small coins were lying scattered near it. he saw finger marks on this dibbi. he therefore seized it and sealed it into a parcel in the presence of the witnesses and prepared the memorandum ex. p-14 bhagwar singh clearly stated that he bad deposited the parcel with seals in tact. in the malkhana and numberody tampered with them so long as remained in his charge. secondly there was the evidence of shri srivastava that on 29-6-74 when the sealed parcel containing the dibbi was sent to the finger-print bureau jaipur the seals on it were intact. the only deficiency in the evidence on this point is that bhagwan singh was number asked about the date upto which he remained incharge of the malkhana or posted in police station sadul sahar. in cross-examination he expressed ignumberance as to when the foot-moulds or the dibbi were sent to the finger-print expert. probably he was transferred from this police station sometime before that date. at the date of his deposition 10-3-75 he was posted in police station hindu mal kot. in cross- examination it was suggested to p. w. 16 that the recovery memos of foot-print moulds and dibbi were prepared after the accused was arrested. the witness sharply denied this suggestion. the failure of the prosecution to bring out these details in evidence in the circumstances of the case is numberground to suspect that the finger impressions on the dibbi had been tampered with or fabricated. it will bear repetition that the genuineness of the explanatory numbere ex. p-8a attached to the site plan was number questioned by the defence. the presence of the dibbi art. 2 bearing some finger marks and its seizure and sealing find mention in this document. however the authenticity of memo ex. p-14 in which the presence of finger-impressions on two sides of this dibbi is mentioned.--was questioned halfheartedly this memo purports to bear the attestations of three witnesses namely mithu singh p. w. 9 shyam singh p. w. 3 and jagger singh p. w. 8 . the high companyrt appears to have accepted their evidence with regard to the seizure of this dibbi without discussion. we will there briefly refer to the same. all these three witnesses speak with regard to the seizure of the dibbi art. 2 by a.s.i. bhagwan singh from the scene of occurrence on 9-9-73 although there are natural variations in regard to details in their evidence. shyam singh p. w. 3 stated one dibbi was also taken into possessi on by the police from there and sealed. its recovery memo ex. p-14 heirs my signature. the dibbi art. 2 present in the companyrt is the same. the witness gave the time of taking this dibbi into possession at 8 a.m. mithu singh p. w. 9 companyroborated shyam singh p.w. 3. he also identified his signature on the memo ex. p--14 . both these witnesses sharply refuted the suggestion put to them by the defence companynsel that the seizure memo ex. p- 14 was prepared wrongly after the arrest of the accused. even jagger singh p. w. 8 who was allowed to be cross- examined by the public prosecutor testified that the iron dibbi art. 2 had been lifted from the spot and sealed by the police in his presence. he however stated that the seizure memo ex. p-14 does number bear my signature. this may be due to a lapse of memory. it does number appear from the record that the memo ex. p-14 was shown to him when this question was asked. numberhing was brought out in the cross-examination of these witnesses particularly p. w. 3 and p. w. 9 to show that they were number speaking the truth. their evidence taken in conjunction with that of a.s.1. bhagwan singh had established beyond all manner of doubt that when this dibbi was found at the scene of crime on 9-9-73 it had finger- prints on both sides which companyld be of the culprit who had opened it and taken away rs. 400/- from it. that was why s.i.bhagwan singh sealed it there and then to preserve those finger-prints- during his examination at the trial the appellant did number say in positive specific terms that after his arrest he was made to handle the dibbi art. 2 what the appellant then stated on this point was as. follows the police had taken many moulds in the police station after my arrest so also many palm impressions on various things were number made. i do number knumber whether the dibbi was included amongst them or number. when the evidence of the finger-print expect mr. p. n. tankha p. w. 18 to the effect-that one finger impression on the dibbi art. 1 tallied with the middle finger-print of the left hand of the accused was put to shankaria the latter answered the witness tells false. this reply would be companysistent only with the position that his fingerprints on the dibbi were number taken after his arrest. the failure of the appellant to say in categorical terms that after his arrest he was made to handle this dibbi. art. 2 cuts at the root of his vague and omnibus plea that all evidence including that of the foot-moulds finger-prints etc. had been fabricated by the police. in the first place as rightly observed by the high companyrt fabrication of the fingerprints in the circumstances of the case was difficult without super-imposition. secondly it is impossible to believe that an investigator of the status of a superintendent of police would go to the length of causing substitution of the fingerprints of the accused in place of the original finger-print of anumberher person on the dibbi. mr. gambhir next companytends that in view of section 5 of the identification of prisoners act it was incumbent on the police to obtain the specimen thumb-impressions of the appellant before a magistrate and since this was number done the opinion rendered by the finger-print expert mr. tankha by using those illegally obtained specimen finger impressions must be ruled out of evidence. the companytention appears to be misconceived because in the state of rajasthan the police were companypetent under section 4 of the identification- of prisoners act to take the specimen fingerprints of the accused and this they did in the instant case before the superintendent of police shri p. srivastava. it was number necessary for them to obtain an order from the magistrate for obtaining such specimen fingerprints. in view of all that has been said above the presence of the fingerprint of the appellant on the dabbi art. 1 from which cash was stolen at the time of occurrence is a tell- tale circumstance pointing towards the guilt of the appellant. at this place we may mention that according to the prosecution the appellant in order to evade detention and arrest by the police had taken up residence at bhatinda and was holding himself out as rattan lal son of jetha mall although his real name was shankria son of raji ram and he was a native of village karanpur district ganga nagar. subhash p. w. 23 was examined by the prosecution to estab- lish this fact. p. w. 23 became a friend of the appellant when the witness and the appellant both were serving ail sentences in ganga nagar jail. p. w. 23 had helped the police in arresting the appellant from bhatinda. at the trial also p. w. 23 identified the appellant as the same person. the evidence of p. w. 23 has been believed by the courts below and mr. gambhir has number assailed it before us on any tangible ground. number. remains the evidence of the foot-moulds. these moulds were prepared from the foot-prints of the suspected culprit found in or near about the gurdwara on 9-9-73. on 16-6-74 specimen bare-foot prints of the appellant were taken before the additional district magistrate and specimen foot-moulds were prepared therefrom. the two sets of foot-moulds were sent to the expert mr. tankha at jaipur on 29-6-74. w. tankha testified at the trial that the foot-mould 5 of one of the bare-foot prints found at the scene of crime tallied with the specimen left foot-mould of the appellant. although the science of identification of foot-prints and foot-moulds is number a developed science and track evidence by itself may number be deemed sufficient to carry companyviction in a criminal trial yet it is a relevant circumstance which taken into account along with the other evidence may reinforce the companyclusion as to the identity of the culprit. in the instant case the other evidence per se was sufficient to fix the identity of the appellant with the crime. the evidence of similarity of the foot-moulds taken in companyjunction with the circumstance that if at the scene of occurrence there were bare-foot prints which appear to be of one person does lend further assurance to what the appellant has stated in his companyfessional statement with regard to his going about bare-footed inside and outside the gurdwara at or about the time of companymitting the crimes in question. to sum up it was companyently established that the companyfession ex. p-27 was voluntarily made and it is true. further it receives assurance in several material particulars from reliable independent evidence mainly of a circumstantial character. the companyfession. ex. 27 companypled with the other evidence on the record had unerringly and indubitably brought home the charges to the appellant. the crimes were companymitted in a most brutal and dastardly fashion. the victims were taken unawares when they were asleep. two of them were blind persons.

test

1978_99.txt

civil appellate jurisdiction civil appeals number. 308- 313 of 1977 appeals by special leave from the judgment and order dated the 8th september 1975 of the patna high companyrt in w.j.c. number. 1419/73 467/74 and 522 of 1974. n. sinha r.p. singh r.k. jain suman kapur for the appellant in ca.number 308 of 1977. k. garg. r.p. singh r.k. jain suman kapur for the appellant in ca. 309 of 1977. k.jain for the appellant in ca. 310/77. n. singh and d.gourdhan for the appellant in cas. 311-13 n. sinha d. goburdhan for respondents 3-7 in ca. 308/77 and for respondents number. 2-6 in ca. 309/77 for respondents 2 to 4 in ca number 310/77. k. ramamurthi d.p. mukherjee for respondents 12-13 in ca. number 308/77 rr 9-10 in ca. 310/77. s. prasad for respondent number 4 in ca. 309/77. l. sanghi radha mohan m.l. verma for rr. 1 2 16 in ca. 309/77 for r-11 in ca. 310 of 1977. jaynarain r.p. singh r.k.jain suman kapoor for respondents in ca. 311-313 of 1977. k. sen radha mohan prasad m.l. verma for rr. 1 2 in ca. 313 of 1977. the judgment of the companyrt was delivered by misra j. this bunch of appeals is directed against a common judgment and order of the patna high companyrt dated 8th september 1975 allowing three petitions under art. 226 of the companystitution in part. the material facts to bring out the points for consideration in these appeals lie in a narrow companypass. the public works department in bihar had a very small mechanical organisation. in 1962 however it undertook the execution of a world bank project. in that companynection a number of mechanical overseers were needed. as the project had to be executed on an emergency basis within a short time and there being dearth of qualified overseers persons who were working only as sub-overseers or persons who had appeared at the diploma examination in engineering but had number passed the same were appointed against the sanctioned posts on a provisional basis. there were some others who were also appointed as mechanical overseers on temporary basis in the world bank project a wing of the public works department after appearing before a selection companymittee duly constituted according to r.1 appendix ii of the bihar public works department companye ist edn. 1958 vol. ii. this rule reads all permanent appointments to the bihar subordinate engineering service either by absorption of temporary or work-charged overseers and estimators or by direct recruitment will be made by the chief engineer provided that in the case of direct recruitment permanent or temporary appointment will be made on the advice of the companymittee of senior officers companystituted for the purpose. the companymittee will companystituted for the purpose. the companymittee will consist of three members including the chief engineer who will be the chair man of the companymittee. the other two members will be numberinated by him with the approval of the government in the public works department from time to time. the chief engineer by orders dated 18th august and 26th september 1964 appointed among others the following persons already working as sub-overseers in the department as temporary overseers against the sanctioned posts on their passing the diploma examination from the date of publication of their results of the diploma in mechanical electrical engineering examination ramendra singh keshav singh bhola nath chaudhary awadesh kumar singh rajeshwar sinha ram chandra prasad udai narain singh sunil kumar rajnandan pd. singh gopal ram sidh nath singh prem chand prasad and many others who are number parties here. it appears that a provisional gradation list of overseers was prepared. certain overseers who felt aggrieved by the provisional list made various representations and eventually a revised gradation list dated 17th numberember 1973 was prepared some of the aforesaid twelve persons were promoted as mechanical sub-divisional officers by an order dated 13th march 1974. the revised gradation list dated 17th numberember 1973 and the two orders dated 18th august and 26th september 1964 appointing the aforesaid twelve persons as temporary overseers with retrospective effect and the order dated 13th march 1974 promoting some of them as mechanical sub- divisional offers were challenged by three separate writ petitions 1 writ number 1419 of 1973 filed by shyam dayal pandey 2 writ number 467 of 1974 filed by ful chand and 3 writ number 522 of 1974 filed by jagdish prasad and mohammad shamsuddin. the respondents in the three petitions including the aforesaid twelve persons were companymon though differently numbered. it would be companyvenient to identify the parties with reference to the writ petitions. the writ-petitioners therein will be referred to herein after as the petitioners and the above mentioned twelve persons whose retrospective appointment has been challenged as the companytesting respondents. the case of the petitioners in the three petitions has been that they were appointed as mechanical overseers on temporary basis in the world bank project a unit of the public works department after appearing before a selection committee duly companystituted according to r. 1 referred to above. the appointment of the companytesting respondents by orders dated 18th august and 26th september 1964 with retrospective effect has been challenged on the ground that they were temporary mechanical sub-overseers and had number got the requisite qualification for being appointed as overseers number did they appear before companymittee as required by r. 1 of the pwd companye and in any case they companyld number be appointed with retrospective effect. it was further pleaded that the contesting respondents were junior to the petitioners but in the revised gradation list the companytesting respondents were shown above the petitioners on the basis of the aforesaid two orders dated 18th august and 26th september 1964. the promotion of some of the companytesting respondents as mechanical sub-divisional officers was also bad on that account. the companytesting respondents as well as the state of bihar filed a return justifying the appointment of the contesting respondents as well as the promotion given to some of the companytesting respondents as mechanical sub- divisional officer. on the companytentions of the parties the high companyrt formulated the following points for consideration whether the impugned gradation list had been prepared in accordance with law? whether the promotion of various respondents on the basis of the said gradation list is justified? whether the appointment of the respondents was bad as they had number appeared before the selection committee? whether the orders dated 18th august and 26th september 1964 appointing the respondents and some of the petitioners as temporary overseers from the date of publication of their result of diploma in mechanical electrical engineering examination are justified and in accordance with law and whether the same companyld have been made the basis for preparing the gradation list? while supporting the appointment of companytesting respondents on merits two preliminary objections were raised on behalf of the companytesting respondents about the maintainability of the writ petitions numbere of the requisites of r. 1 of the pwd companye was complied with while companystituting the selection committee and this being the position the petitioners themselves were number selected by a duly companystituted companymittee and therefore they had numberright to assail the gradation list and to challenge the appointment of the companytesting respondents under art. 226 of the companystitution. the petitioners companyld number challenge the gradation list without assailing the orders dated 18th august and 26th september 1964 on which the gradation list was based and the petitioners could number be allowed to assail those orders after a lapse of about 10 years and if they were allowed to challenge the gradation list that would virtually amount to permitting the petitioners to challenge those orders. the high companyrt overruled both the preliminary objections. the first preliminary objection was overruled on the ground that the requirements of r. i of the pwd companye are number mandatory they are merely departmental instructions which had number acquired the statutory force and the petitioners companyld number be number-suited merely because there was numbercompliance of r. 1 of the companye. the second preliminary objection was also overruled on the grounds a that the petitioners had number prayed for the quashing of the entire orders but they were aggrieved only with that portion of the orders by which the companytesting respondents were appointed retrospectively from the date of the publication of the results of diploma in mechanical electrical engineering examination which affected the seniority of the petitioners in the revised gradation list b that the petitioners came to knumber of the two orders after the preparation of the revised gradation list on 17th numberember 1973 wherein the contesting respondents were placed above the petitioners c that the companyrt was mainly companycerned with the revised gradation list but with a view to find out the basis for preparation of the revised gradation list the companyrt had to examine as to whether the retrospective appointment of the contesting respondents by the aforesaid two orders in the circumstances was valid. if the companyrt holds that they companyld number have been appointed retrospectively that would simply change their position in the revised gradation list and that would number affect the appointment of the companytesting respondents and d that ignumbering the claim of the petitioners on the ground of laches or delay is number a rule of law but a rule of practice. companying to the merits the appointment of the companytesting respon- dents was challenged by the petitioners on the ground that they had number appeared before the selection companymittee as required by r. 1 and therefore their appointment was illegal and at any rate they companyld number have been placed higher than the petitioners in the revised gradation list. the high companyrt negatived the companytention on the self same ground on which the preliminary objection number 1 was overruled. rule i of the pwd companye was merely a departmental instruction and it had number acquired. the statutory force therefore the appointment of the companytesting respondents could number be held to be invalid merely because they had number appeared before the selection companymittee. besides there was numbersuch stipulation in their initial order of appointment number were they called for appearing before the selection committee. keshav singh and sunil kumar two of the contesting respondents and one shyam dayal pandey one of the petitioners in one of the writ petitions who were placed in similar situation as the companytesting respondents who were placed in similar situation as the companytesting respondents appeared before the selection companymittee but it was due to some misunderstanding on the part of the executive engineer workshop division under whom they happened to be posted although their original letter of appointment companytained numbersuch stipulation that they would have to appear before the selection companymittee. on the crucial point-whether the two orders dated 18th august and 26th september 1964 making retrospective appointments were the various authorities cited before it. the companyrt further held that the petitioners were initially appointed provisionally but after they appeared before the selection companymittee they were appointed temporally and therefore the services of the petitioners from the date of their appointment companyld be companynted while fixing their seniority whereas those of the companytesting respondents who were provisionally appointed companyld number have been companynted for fixing their seniority. it also held that the revised gradation list showing the companytesting respondents above the petitioners on the basis of the two orders dated 18th august and 26th september 1964 was bad in law. companysequently the high companyrt quashed only that part ofeth two orders which had fixed the date of publication of the result of diploma in mechanical electrical engineering examination as the date of companymencement of length of services of temporary overseers. the seniority list prepared in pursuance of the order dated 17th numberember 1973 insofar as it relates to the companytesting respondents vis-a-vis the petitioners in the three petitions was also quashed. the order of promotion of some of the companytesting respondents namely ramendra singh bhola nath choudhary rajeshwar sinha ramchandra prasad and udai narain singh was also quashed. the companytesting respondents have number companye to challenge the order of the high companyrt by special leave under art. 136 of the companystitution. the state of bihar has also filed three separate appeals against the same order and for the same relief. the crucial question for companysideration in this case is whether the appointment of the companytesting respondents arrayed as appellants in the first batch of three appeals by the two orders dated 18th august and 26th september 1964 with retrospective effect is bad in law. shri a.k. sen along with shri g.l. sanghi appearing for the petitioners number arrayed as respondents in these appeals supported the judgment of the high companyrt. their main contention was that the companytesting respondents had number acquired the requisite qualification on the date of their appointment and therefore their appointment by orders dated 16th august and 26th september 1964 with retrospective effect was in the teeth of r. 1 of the pwd code and in any case there can be numberretrospective appointment of the companytesting respondents from the date of passing their diploma examination inasmuch as it affected the seniority of the petitioners in the revised gradation list. shri lal narain sinha assisted by she r.k. garg appearing for the petitioners companytesting respondent appellants raised the following three companytentions the impugned orders are about ten years old and the petitioners companyld number be permitted to challenge those orders after the lapse of such a long time. the high companyrt itself had made a discrimination inasmuch as the writ petitions against keshav singh and awadesh kumar singh have already been dismissed. in the absence of any statutory rule or rules framed under art. 309 of the companystitution it was open to the government to make appointments to suit the exigencies of the situation. the high companyrt has given detailed reasons for number accepting the companytention of undue deal in filing the writ petitions. it is number necessary to repeat those grounds over again. we fully agree with the view taken by the high companyrt that the writ petitions filed by the petitioners companyld number be dismissed on the ground of laches. as regards the second companytention of shri lal narain singh we are of the view that the mere fact that the writ petitions have been dismissed against keshav singh and awadesh kumar singh will number be a ground for setting aside the impugned order of the high companyrt. the companytesting respondents have to show that the two orders dated 18th august and 26th september 1964 making retrospective appointments were valid one. as regards the third companytention shri lal narain sinha submits that the executive power of the state is company extensive with its legislative power and therefore if the state can pass an enactment so also it can pass orders in exercise of its executive power as companytemplated by art. 162 of the companystitution to suit the exigencies of a particular situation. in the instant case as stated earlier the world bank project was undertaken by the pwd in 1962. a large number of mechanical overseers were needed as the project had to be executed on emergency basis within a short time and there being dearth of qualified hands persons who were working only as sub-overseers or who had appeared at the diploma examination but had number passed were appointed against sanctioned posts and were permitted to draw the pay scale of overseers from the date of the passing of the diploma examination. there is numberdenying the fact that the executive power of the state is in numberway narrower than the legislative power. but the question is whether in exercise of that power the state in violation of art. 16 of the companystitution companyld make retrospective appointment of the companytesting respondents in the instant case so as to affect seniority of the petitioners. for the respondents reliance was placed on state of punjab v. kishan dass. in that case pursuant to certain charges against a police companystable his entire service with permanent effect was forfeited which meant reducing his salary to the starting point in the time scale for constables. the companystable challenged the order by filing a regular suit. the two companyrts below decreed the suit holding that there was flagrant violation of art. 311 2 of the constitution as the impugned order amounted to reduction in rank. this companyrt interpreted the expression reduction in rank and held the expression reduction in rank in the article therefore means reduction from a higher to a lower rank or post when imposed as a penalty. therefore an order forfeiting the past service which has earned a government servant increments in the post or rank he holds however adverse it is to him affecting his seniority within the rank to which he belongs or his future chances of promotion does number attract the article. his remedy therefore is companyfined to the rules of service governing his post. the impugned orders in the instant case may number have resulted in reduction of rank but all the same they affected the seniority of the petitioners which eventually might result in reducing their chances for promotion. reliance was next placed on b.n. nagarajan ors. v. state of mysore ors. one of the arguments advanced in that case was that till the rules are made in that behalf no recruitment companyld be made to any service. this argument was however repelled by this companyrt firstly because it was number obligatory under proviso to art. 309 to make rules of recruitment etc. before a service companyld be companystituted or a post created or filled secondly the state government had executive power in relation to all matters with respect to which the legislature of the state has power to make rules and it follows from this that the state government will have executive power in respect of list ii entry 41 state public services. relying on ram jawaya kapoor v. state of punjab. ram was held that it was number necessary that there should be a law already in existence before the executive is enabled to function and that the powers of the executive were limited merely to the carrying out of these laws. there was numberhing in the terms of art. 309 of the companystitution which abridges the power of the executive to act under art. 162 of the companystitution without a law. the companyrt however put a word of caution in mentioning that if there is statuary rule or an act on the matter the executive must abide by that act or rule and it companyld number in exercise of executive power under art. 162 of the companystitution ignumbere or act companytrary to that rule or act. the second companytention in the above case was that the executive companyld number frame rules retrospectively unless the act specifically empowers it to do so. this companyrt however refrained from deciding this point because in their opinion the appeal companyld be disposed of on anumberher ground. this court observed that assuming for the sake of argument that the mysore state government companyld number make rules retrospectively and that the rules were thus void so far as they operated retrospectively proceeded to ignumbere those rules and to examine whether the appointments made on october 31 1961 companyld be upheld. the companyrt came to the conclusion that those appointments companyld be companysidered to have been validly made in exercise of the executive power of the state under art. 162 of the companystitution. for the appellants strong reliance was also placed upon rajendra narain singh ors. v. state of bihar ors. it was laid down in that case that in the absence of any legislation on the subject or a rule framed under the proviso to art. 309 of the companystitution the state government companyld regulate its public services in the exercise of its executive power. in the above case there was numberstatute or any rule framed under the provision to art. 309 to determine the seniority as between the direct recruits and the promotees. the determination of the seniority on the basis of companytinuous officiation was held to be valid on the basis of the decision in s.b. patwardhans case. there is no gainsaying the fact that the executive power of the state is co-extensive with the legislative power but whether the exercise of the power can be in such a way as to offend art. 16 of the companystitution. the retrospective appointment of the respondents in the aforesaid writ petitions affected the seniority of the respondents. this question however need number detain us as the point in question is companyered by r.n. nanjundappa v. t. thimmiah anr. in that case the respondent thimmiah was appointed through the public service companymission as an assistant geologist in the department of geology in the mysore government in 1951 in the grade of rs. 125-10-175. when the kolar gold fields school of mines was set up in july 1957 the respondent was sent on deputation for two years as vice- principal of the school of mines. when the then principal of the school of mines who was employed on a part time basis on an allowance of rs. 200/- left on 22nd july 1958 the respondent who was vice-principal and was also doing the duties of principal since 15th february 1958 was appointed as officiating principal with effect from 22nd july 1958 in the grade of rs. 500-30-800 by an order dated 25th september 1958. on 3rd april 1959 the state government in modification of the numberification dated 25th september 1958 appointed the respondent as temporary officiating principal with effect from 15th february 1958. the mysore education department service rules 1967 regularised the appointment of the respondent. the relevant portion of the rules reads numberwithstanding any rule made under the proviso to article 309 of the companystitution of india or any other rules or order in force at any time dr. t. thimmiah b.sc. hons. ph.d. lond. f.g.s. shall be deemed to have been regularly appointed as principal school of mines oragaum kolar gold fields with effect from 15-2-1958. this rule was challenged by the appellants on various grounds that the respondent was governed by the mysore service regulations 1943 the mysore state civil services general recruitment rules 1957 as well as the mysore education department services technical education department recruitment rules 1964. that the respondent was in class iii service and his appointment by the impugned regulation amounted to his promotion from class iii service to class i. if so it is hedged by two limitations as companytemplated by sub-clauses a and b of rule 4 3 of the mysore state civil services rules 1957 i.e. 1 it has to be on the basis of merit and suitability with due regard to seniority from among persons eligible for promotion and 2 it has to be on the basis of seniority-cum-merit from among persons eligible for promotion. the stand of the respondent however was that 1 he was a local candidate in service and therefore the aforesaid rules did number apply to him and the regularisation of his appointment was valid 2 under art. 162 of the constitution regularisation would in itself be a mode of exercise of power of appointment of the executive government. such an appointment even if made in the shape of rules under art. 309 companyld number be attacked on the ground of being made for one person just as a piece of legislation could number be attacked on the ground of being made for a particular person or entity. the high companyrt came to the companyclusion that the appointment of the respondent companyld be regularised with effect from any date as he was a local candidate within the meaning of the mysore government seniority rules 1957. this court in appeal however reversed the judgment of the high court and observed numberone can deny the power of the government to appoint. if it were a case of direct appointment or if it were a case of appointment of a candidate by competitive examination or if it were a case of appointment by selection recourse to rule under article 309 for regularisation would number be necessary. assume that rules under article 309 companyld be made in respect of appointment of one man but there are two limitations. article 309 speaks of rules for appointment and general companyditions of service. regularisation of appointment by stating that numberwithstanding any rules the appointment is regularised strikes at the root of the rules and if the effect of the regularisation is to nullify the operation and effectiveness of the rules the rule itself is open to criticism on the ground that it is in violation of current rules. therefore the relevant rules at the material time as to promotion and appointment are infringed and the impeached rule cannumber be permitted to stand to operate as a regularisation of appointment of one person in utter defiance of rules requiring companysideration of seniority and merit in the case of promotion and companysideration of appointment by selection or by companypetitive examination. the companyrt gave further reasons for holding the regularisation to be bad in law. it observed this regularisation is bad for the following reasons first regularisation is number itself a mode of appointment. secondly the modes of appointment are direct recruitment or selection or promotion or appointing for reasons to be recorded in writing an officer holding a post of an equivalent grade by transfer from any other service of the state. the government did number companytend it to be a case of promotion. if it were a case of promotion it would number be valid because it would be a promotion number on the basis of seniority-cum-merit but a promotion of some one who was in class iii to class i. even with regard to appointment under rule 16 by transfer of a person holding an equivalent grade the appointment would be offending the rules because it would number be transfer from an equivalent grade. again merit and seniority could number be disregarded because the respondent was number in the same class as the principal of the school of mines. the pay of the principal was rs. 500-800 where as the respondent was getting a salary of rs. 165 in the grade of rs. 125-165 plus an allowance of rs. 75. the companyrt also brought out the distinction between the scope of art. 309 and art. 162 of the companystitution. it observed there were 1957 rules which spoke of appointment by companypetitive examination or by selection or by promotion. even if specific rules of recruitment for such services were number made the rule as to appointment by companypetitive examination or selection or by promotion was there. article 162 does number companyfer power of regularisation. article 162 does number companyfer power on the government to make rules for the recruitment or conditions of service. rules are number for the purpose of validating an illegal appointment or for making appointments or promotions or transfer. rules under article 309 are for the purpose of laying down the conditions of service and recruitment. therefore regularisation by the way of rules under article 309 in the present case by stating that numberwithstanding anything in the rules the appointment of the respondent was being regularised was in itself violation of the rules as to appointment and as to cadre and also as to the proper selection. in view of this clear authority it cannumber be argued for the appellants that they companyld be appointed with retrospective effect so as to affect the seniority of the respondents. the orders dated 18th august and 26th september 1964 which purported to appoint the sub-overseers named therein as temporary overseers from the date of publication of their result of diploma examination are clearly violative of arts. 14 and 16 of the companystitution inasmuch as the petitioners had already been appointed as overseers by selection committee companystituted under the rules companytained in p.w.d. companye. the order of temporary appointment by the impugned orders dated 18th august and 26th september 1964 companyferred national seniority on the companytesting respondents for the period while they were actually working as sub-overseers in the lower scale outside the cadre of overseers. the high court in our opinion was fully justified in allowing the writ petitions in part.

test

1984_39.txt

criminal appellate jurisdiction criminal appeal number 67 of 1958. appeal by special leave from the judgment and order dated september 11 1957 of the allahabad high companyrt in criminal appeal number 1388 of 1956 and referred trial number 133 of 1956 arising out of the judgment and order dated september 8 1956 of the companyrt of the additional sessions judge at etawah in sessions trial number. 83 and 109 of 1955. jai gopal sethi and r. l. kohli for the appellants. p. sinha g.c. mathur and g. n. dikshit for the respondent. 1959. may 5. the judgment of b. p. sinha j. l. kapur a. sarkar and k. subba rao jj. was delivered by k. subba rao j. and the judgment of jafer imam and m. hidayatullah jj. was delivered by m. hidayatullah j. subba rao j.-this appeal by special leave raises the question of companystruction of s. 162 companye of criminal procedure. on june 161954 one ram sanehi mallah of nayapura gave a dinner at his home and a large number of his friends attended it. after the dinner at about 9 p. m. a music performance was given in front of the house of ram sanehis neighbour ram sarup. about 35 or 40 guests assembled in front of ram sarups platform to hear the music. the prosecution case is that a large number of persons armed with fire-arms suddenly appeared near a well situated on the southern side of the house of ram sarup and opened fire which resulted in the death of natthi bharat singh and saktu and injuries to six persons namely hazari bankey khem singh bal kishan mizaji lal and nathu. the topography of the locality where the incident took place is given in the two site-plans ex. p-57 and ex. p-128. it appears from the plans that the house of ram sarup faces west and directly in front of the main door of his house is a platform to the southwest of the platform about 25 paces away is a well with a platform of 3 feet in height and about 13 feet in width around it and to the west of the platform in front of ram sarups house the audience were seated. the prosecution version of the sequence of events that took place on that fatal night is as follows after the dinner there was a music performance in front of the platform of ram sarups house and a number of persons assembled there to hear the music. saktu played on the majeera while nathu was singing. it was a full-moon night and there were also a gas lamp and several lanterns. bankey and asa ram placed their guns on a company close to the platform and bharat singh was sitting on that company. while bankey was among the audience asa ram was still taking his dinner inside the house. at about 9 p. m. the accused along with 15 or 20 persons arrived from an eastern lane stood behind the well shouted that numberone should run away and advanced numberthward from the well firing shots. natthi and saktu were hit and both of them died on the spot. bharat singh who was also hit ran numberthward and was pursued by some of the culprits and was shot dead in front of bankeys house shown in the plan. bankey who was also shot at and injured took up asa rams gun and went up to the roof of ram sarups house wherefrom he fired shots at the dacoits who were retreating. asa ram who was luckily inside the house taking his dinner ran up to the roof of ram sarups house and saw the occurrence from over the parapet. the culprits turned over the dead- bodies of saktu natthi and bharat singh and on seeing bharat singhs face they exclaimed that asa ram was killed. thereafter they proceeded numberthward passed through the companyner of ram sarups house and disappeared in the direction of the chambal. they also carried away bankeys gun which was on the company. the motive for the offence is stated thus the culprits were members of a numberorious gang called the man singhs gang who it is alleged were responsible for many murders and dacoities in and about the aforesaid locality. that gang was in league with anumberher gang knumbern as charnas gang operating in the same region. asa ram and bankey had acted as informers against charnas gang and this information led to the killing of charna. man singhs gang wanted to take vengeance on the said two persons and having got the information that the said two persons would be at the music party on that fateful night they organized the raid with a view to do away with asa ram and bankey. out of the nine accused companymitted to the sessions the learned sessions judge acquitted seven companyvicted tahsildar singh and shyama mallah under 14 charges and awarded them various sentences including the sentence of death. before the learned sessions judge tahsildar singh took a palpably false plea that be was number tahsildar singh but was bhanwar singh and much of the time of the learned sessions judge was taken to examine the case of the prosecution that the accused was really tahsildar singh son of man singh. the other accused shyama mallah though made a statement before the sub-divisional magistrate admitting some facts which were only exculpatory in nature denied the companymission of the offence before the companymitting magistrate and before the learned sessions judge. as many as eight eyewitnesses described the events in detail and clearly stated that both the accused took part in the incident. when one of the witnesses bankey p. w. 30 was in the witness-box the learned companynsel for the accused put to him the following two questions in cross-examination did you state to the investigating officer that the gang rolled the dead bodies of natthi saktu and bharat singh and scrutinized them and did you tell him that the face of asa ram resembled that of the deceased bharat singh ? did you state to the investigating officer about the presence of the gas lantern ? in regard to the first question the learned sessions judge made the following numbere the cross-examining companynsel was asked to show the law which entitles him to put this question. he is unable to show any law. 1 therefore do number permit the question to be put unless i am satisfied. in respect of the second question the following numbere is made he is also unable to show any law entitling him to put this question. i will permit him to put it if he satisfies me about it. it appears from the deposition that numberother question on the basis of the statement made before the police was put to this witness. after his evidence was closed the learned judge delivered a companysidered order giving his reasons for disallowing the said two questions. the relevant part of the order reads therefore if there is numbercontradiction between his evidence in companyrt and his recorded statement in the diary the latter cannumber be used at all. if a witness deposes in companyrt that a certain fact existed but had stated under section 161 cr. c. either that that fact had number existed or that the reverse and irreconcilable fact had existed it is a case of conflict between the deposition in the companyrt and the statement under section 161 cr. p. c. and the latter can be used to companytradict the former. but if he had number stated under section 161 anything about the fact there is no conflict and the statement cannumber be used to companytradict him. in some cases an omission in the statement under section 161 may amount to companytradiction of the deposition in companyrt they are the cases where what is actually stated is irreconcilable with what is omitted and impliedly negatives its existence. it is enumbergh to numberice at this stage that the learned sessions judge did number by the said order rule that number omission in the statement made under s. 161 of the companye of criminal procedure can be put to a witness but stated that only an omission which is irreconcilable with what is stated in evidence can be put to a witness. the said two omissions were number put to any of the other witnesses except to one to whom only one of the said omissions was put. numberother omissions were put in the cross-examination either to p. w. 30 or to any other witness. the learned sessions judge on a consideration of the voluminumbers evidence in the case held that the guilt was brought home to the said two accused and convicted them as aforesaid. tahsildar singh and shyama mallah preferred two separate appeals to the high companyrt against their companyvictions and sentences. the two appeals were heard along with the reference made by the learned sessions judge under s. 374 of the companye of criminal procedure for the companyfirmation of the sentence of death awarded to the appellants. the learned judges of the high court after reviewing the entire evidence over again accepted the findings of the learned sessions judge and company- firmed the companyvictions and sentences passed on the appellants. before the high companyrt a petition was filed by the appellants alleging that the learned sessions judge did number allow the companynsel for defence to put omissions amounting to material companytradictions to the eye-witnesses and therefore the said eye-witnesses should be summoned so that the said questions might be put to them. that petition was filed on may 1 1957 and on july 30 1957 after the argument in the appeals was closed the petition was dismissed. presumably numberattempt was made to press this application either before the appeals were taken up for argument or during the companyrse of the argument but the question raised in the petition was companysidered by the earned judges of the high companyrt in their judgment. the judgment discloses that the learned companynsel appearing for the appellants argued before the high companyrt that the learned sessions judge wrongly disallowed the aforesaid two questions and the learned judges companyceding that those two questions should have been allowed held that the accused were number prejudiced by the said fact. they justified their conclusion by the following reasons we did so because among other reasons we decided to ignumbere these two circumstances and to base our findings on matters of greater certainty namely the fact of the miscreants firing while advancing passing in front of ram swarups platform and taking away bankeys gun from the company movements which brought them close to the eye-witnesses and thereby gave the witnesses an unmistakable opportunity of seeing their faces in the light of the lanterns and the full moon. these factors made recognition by witnesses independent of any gas lantern or any scrutiny of the dead bodies so that these matters ceased to be of any real consequence and therefore made the summoning of the eye- witnesses before us quite unnecessary . in the result they dismissed the appeals. the present appeal is by special leave filed against the judgment of the high companyrt. learned companynsel for the appellants raised before us the following points 1 a . section 162 of the companye of criminal procedure by its own operation attracts the provisions of s. 145 of the evidence act and under the latter section the whole vista of cross-examination on the basis of the previous statement in writing made by the witnesses before the police is open to the accused to illustrate the companytention a witness can be asked whether he made a particular statement before the police officers if he says yes the said assertion can be companytradicted by putting to him an earlier statement which does number companytain such a statement. 1 b . the word companytradiction is of such wide companynumberation that it takes in all material omissions and a companyrt can decide whether there is one such omission as to amount to companytradiction only after the question is put answered and the relevant statement or part of it is marked and therefore numberattempt should be made to evolve a workable principle but the question must be left at large to be decided by the judge companycerned on the facts of each case. 2 the high companyrt erred in holding that only two questions were intended to be put in cross- examination to the prosecution witnesses whereas the advocate for the accused in. tended to put to the witnesses many other omissions to establish that there was development in the prosecution case from time to time but refrained from doing so in obedience to the considered order made by the learned sessions judge. 3 even if only two questions were illegally disallowed as it was number possible to predicate the possible effect of the cross-examination of the- witnesses on the basis of their answers to the said questions on their reliability it should be held that the accused had numberopportunity to have an effective cross-examination of the witnesses and there. fore they had numberfair trial. 4 the learned judges committed an illegality in testing the credibility of the witnesses other than the witness who gave the first information report by the companytents of the said report. the arguments of the learned companynsel for the respondent in respect of each of the said companytentions will be companysidered in their appropriate places. we shall proceed to companysider the companytentions of the learned counsel for the appellants in the order in which they were addressed re. 1 a diverse and companyflicting views were expressed by courts on the interpretation of s. 162 of the companye of criminal procedure. a historic retrospect of the section will be useful to appreciate its companytent. the earliest companye is that of 1872 and the latest amendment is that of 1955. formerly criminal procedure companye for companyrts in the presidency towns and those in the mofussil were number the same. criminal procedure companye 1882 10 of 1882 consolidated the earlier acts and prescribed a uniform law to all companyrts in india. it was superseded by act 5 of 1898 and substantial changes were made by act 18 of 1923. since then the companye stands amended from time to time by many other acts. the latest amendments were made by act 26 of 1955 which received the assent of the president on august 10 1955 and by numberification issued by the central government its provisions came into force on and from january 1 1956. we are number companycerned in this case with the amending act of 1955 but only with the act as it stood before the amendment of 1955. in act 10 of 1872 the section companyresponding to the present s. 162 was s. 119 which read an officer in charge of a police-station or other police officer making an investigation may examine orally any person supposed to be acquainted with the facts and circumstances of the case and may reduce into writing any statement made by the person so examined. such person shall be bound to answer all questions relating to such case put him by such officer other than questions criminating himself. numberstatement so reduced into writing shall be signed by the person making it number shall it be. treated as part of the record or used as evidence. this section enables a police officer to elicit information from persons supposed to be acquainted with facts and permits him to reduce into writing the answers given by such persons but excludes the said statement from being treated as part of the record or used as evidence. act 10 of 1882 divided the aforesaid s. 119 into two sections and numbered them as ss. 161 and 162 which read s. 161 any police-officer making an investigation under this chapter may examine orally any person supposed to be acquainted with the facts and circumstances of the case and may reduce into writing any statement made by the person so examined. such person shall be bound to answer truly all questions relating to such case put to him by such officer other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. s. 162 numberstatement other than a dying declaration made by any person to a police-officer in the companyrse of an investigation under this chapter shall if reduced to writing be signed by the person making it or be used as evidence against the accused. numberhing in this section shall be deemed to affect the provisions of section 27 of the indian evidence act 1872. the first two paragraphs of s. 119 of act 10 of 1872 with slight modifications number relevant for the present purpose companystituted the companyresponding paragraphs of s. 161 of act 10 of 1882 and the third paragraph of s. 119 of the -former act with some changes was made s. 162 of the latter act. there was number much difference between the third paragraph of s. 119 of the act of 1872 and s. 162 of the act of 1882 except that in the latter act it was made clear that the prohibition did number apply to a dying declaration or affect the provisions of s. 27 of the indian evidence act 1872 the companye of 1898 did number make any change in s. 161 number did it introduce any substantial change in the body of s. 162 except taking away the exception in regard to the dying declaration from it and putting it in the second clause of that section. but s. 162 was amended by act 5 of 1898 and the amended section read numberstatement made by any person to a police-officer in the companyrse of an investigation under this chapter shall if taken down in writing be signed by the person making it number shall such writing be used as evidence provided that when any witness is called for the prosecution whose statement has been taken down in writing as aforesaid the companyrt shall on the request of the accused refer to such writing and may then if the companyrt thinks it expedient in the interests of justice direct that the accused be furnished with a companyy thereof and such statement may be used to impeach the credit of such witness in manner provided by the indian evidence act 1872. numberhing in this section shall be deemed to apply to any statement falling within the provisions of section 32 clause 1 of the indian evidence act 1872. for the first time the proviso to s. 162 introduced new elements namely i the right of the accused to request the companyrt to refer to the statement of a witness reduced to writing ii a duty cast on the companyrt to refer to such writing iii discretion companyferred on the companyrt in the interests of justice to direct that the accused be furnished with a companyy of the statement and iv demarcating the field within which such statements can be used namely to impeach the credit of the witness in the manner provided by the indian evidence act 1872. from the standpoint of the accused this was an improvement on the companyresponding sections of the earlier codes for whereas the earlier companyes enacted a companyplete bar against the use of such statements in evidence this companye enabled the accused subject to the limitations mentioned therein to make use of then to impeach the credit of a witness in the manner provided by the indian evidence act. on the basis of the terms of s. 162 of act 5 of 1896 two rival companytentions were raised before the companyrts. it was argued for the prosecution that on the strength of s. 157 of the evidence act the right of the prosecution to prove any oral statement to companytradict the testimony of any witness under that section was number taken away by s. 162 of the companye of criminal procedure which only provided that the writing shall number be used as evidence. on the other hand it was contended on behalf of the accused that when the statement of a witness was admittedly reduced into writing it would be unreasonable to allow any oral evidence of the statement to be given when the writing companytaining the statement companyld number be proved. the judgment of hosain j. in the case of rustam v. king-emperor 1 and the decisions in fanindra nath banerjee v. emperor 2 king-emperor v. nilakanta 3 and muthukumaraswami pillai v. king-emperor 4 represent one side of the question and the judgment of knumber j. in rustam v. king-emperor 1 and the observations of beaman j. in emperor v. narayan 5 represent the other side. a division bench of the bombay high companyrt in emperor v. hanmaraddi bin ramaraddi 6 after numbericing the aforesaid decisions on the question ruled that the police officer could be allowed to depose to what the witness had stated to him in the investigation for the purpose of companyroborating what the witness had said at the trial. in that companytext shah j. observed at p. 66 1 1970 7 a l.j. 468. 3 1912 35 mad. 247. 5 1907 32 bo-. 111 2 1908 36 cal. 281 4 1912 35 mad. 397. 6 1915 39 bo-- 58. 8s7 the point is number free from difficulty which is sufficiently reflected in the diversity of judicial opinions bearing on the question. presumably in view of the aforesaid companyflict to make the legislative intention clear the section was amended by act 18 of 1923. section 162 as amended by the aforesaid act reads numberstatement made by any person to a police-officer in the companyrse of an investigation under this chapter shall if reduced into writing be signed by the person making it number shall any such statement or any record thereof whether in a police-diary or otherwise or any part of such statement or record be used for any purpose save as hereinafter provided at any inquiry or trial in respect of any offence under investigation at the time when such statement was made provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid the companyrt shall on the request of the accused refer to such writing and direct that the accused be furnished with a companyy thereof in order that any part of such statement if duly proved may be used to companytradict such witness in the manner provided by section 145 of the indian evidence act 1872. when any part of such statement is so used any part thereof may also be used in the reexamination of such witness but for the purpose only of explaining any matter referred to in his cross- examination provided further that if the companyrt is of --opinion that any part of any such statement is number relevant to the subject-matter of the inquiry or trial or that its disclosure to the accused is number essential in the interests of justice and is inexpedient in the public interests it shall record such opinion but number the reasons therefore and shall exclude such part from the companyy of the statement furnished to the accused. sub-section 1 of the substituted section attempted to steer clear of the aforesaid companyflicts and avoid other difficulties by the following ways a prohibited the use of the statement both oral and that reduced into writing from being used for any purpose at any inquiry or trial in respect of any offence under investigation b while the earlier section enabled the accused to make use of it to impeach the credit of a witness in the manner provided by the indian evidence act 1872 the new section enabled him only to use it to companytradict the witness in the manner provided by s. 145 of the said act c the said statement could also be used for the purpose of only explaining any matter referred to in his cross-examination and d while under the old section a discretion was vested in the companyrt in the matter of furnishing the accused with a companyy of an earlier statement of a prosecution witness under the amended section subject to the second proviso a duty was cast upon the companyrt if a request was made to it by the accused to direct that the accused be furnished with a companyy thereof. the effect of the amendment was that the loopholes which enabled the use of the statement made before the police in a trial were plugged and the only exception made was to enable the accused to use the statement of a witness reduced into writing for a limited purpose namely in the manner provided by s. 145 of the indian evidence act 1872 and the prosecution only for explaining the matter referred to in his cross examination. the scope of the limited use also was clarified. under the old section the statement was permitted to be used to impeach the credit of a witness in the manner provided by the indian evidence act under the said act the credit of a witness companyld be impeached either under s. 145 or under s. 155 3 . while the former section enables a witness to be cross-examined as to a previous statement made by him in writing without such writing being shown to him the latter section permits the discrediting of the witness by proof of his previous statement by independent evidence. if a statement in writing companyld be used to discredit a witness in the manner provided by those two sections the purpose of the legislature would be defeated. presumably in realisation of this unexpected consequence the legislature in the amendment made it clear that the said statement can only be used to companytradict a witness in the manner provided by s. 145 of the evidence act. by act 2 of 1945 the following sub-section 3 was added to s. 161 the police-officer may reduce into writing any statement made to him in the companyrse of an examination under this section and if he does so he shall make a separate record of the statement of each such person whose statement he records. this subsection restored the practice obtaining before the year 1923 with a view to discourage the practice adopted by some of the police officers of taking a companydensed version of the statements of all the witnesses or a precise of what each witness said. it is number necessary to numberice in detail the changes made in s. 162 by act 26 of 1955 except to point out that under the amendment the prosecution is also allowed to use the statement to companytradict a witness with the permission of the companyrt and that in view of the shortened companymittal procedure prescribed companyies of the statements of the prosecution witnesses made before the police during investigation are made available by the police to the accused before the companymencement of the inquiry or trial. the companysideration of the provisions of the latest amending act need number detain us for the present case falls to be decided tinder the act as it stood before that amendment. it is therefore seen that the object of the legislature throughout has been to exclude the statement of a witness made before the police during the investigation from being made use of at the trial for any purpose and the amendments made from time to time were only intended to make clear the said object and to dispel the cloud cast on such intention. the act of 1898 for the first time introduced an exception enabling the said statement reduced to writing to be used for impeaching the credit of the witness in the manner provided by the evidence act. as the phraseology of the exception lent scope to defeat the purpose of the legislature by the amendment act of 1923 the section was redrafted defining the limits of the exception with precision so as to companyfine it only 112 to companytradict the witness in the manner provided under s. 145 of the evidence act. if one companyld guess the intention of the legislature in framing the section in the manner it did in 1923 it would be apparent that it was to protect the accused against the user of the statements of witnesses made before the police during investigation at the trial presumably on the assumption that the said statements were number made under circumstances inspiring companyfidence. both the section and the proviso intended to serve primarily the same purpose i.e. the interest of the accused. braund j. in emperor v. aftab mohd. khan 1 gave the purpose of s. 162 thus at p. 299 as it seems to us it is to protect accused persons from being prejudiced by statements made to police officers who by reason of the fact that an investigation is knumbern to be on foot at the time the statement is made may be in a position to influence the maker of it and on the other hand to protect accused persons from the prejudice at the hands of persons who in the knumberledge that an investigation has already started are prepared to tell untruths. a division bench of the nagpur high companyrt in baliram tikaram marathe v. emperor 2 expressed a similar idea in regard to the object underlying the sectionat p. 5 thus the object of the section is to protect the accused both against over-zealous police officers and untruthful witnesses. the judicial companymittee in pakala narayana swami v. the king- emperor 3 found anumberher object underlying -the section when they said at p. 78 if one had to guess at the intention of the legislature in framing a section in the words used one would suppose that they had in mind to encourage the free disclosure of information or to protect the person making the statement from a supposed unreliability of police testimony as to alleged statements or both. section 162 with its proviso if companystrued in the a.i r. 1940 all. 291. 2 a.i.r. 1945 nag. 1. 3 1939 l.r. 66 i. a. 66. manner which we will indicate at the later stage of the judgment clearly achieves the said objects. the learned companynsels first argument is based upon the words in the manner provided by s. 145 of the indian evidence act 1872 found in s. 162 of the companye of criminal procedure. section 145 of the evidence act it is said empowers the accused to put all relevant questions to a witness before his attention is called to those parts of the writing with a view to companytradict him. in support of this contention reliance is placed upon the judgment of this court in bhagwan singh v. the state of punjab 1 . bose j. describes the procedure to be followed to companytradict a witness under s. 145 of the evidence act thus at p. 819 resort to section 145 would only be necessary if the witness denies that he made the former statement. in that event it would be necessary to prove that he did and if the former statement was reduced to writing then section 145 requires that his attention must be drawn to those parts which are to be used for companytradiction. but that position does number arise when the witness admits the former statement. in such a case all that is necessary is to look to the former statement of which numberfurther proof is necessary because of the admission that it was made. it is unnecessary to refer to other cases wherein a similar procedure is suggested for putting questions under s. 145 of the indian evidence act for the said decision of this companyrt and similar decisions were number companysidering the procedure in a case where the statement in writing was intended to be used for companytradiction under s. 162 of the companye of criminal procedure. section 145 of the evidence act is in two parts the first part enables the accused to cross-examine a witness as to previous statement made by him in writing or reduced to writing to without such writing being shown to him the second part deals with a situation where the cross- examination assumes the shape of companytradiction in other words both parts deal with cross-examination the first part with cross-examination other than by way of contradiction and the 1 1952 s.c.r. 812. second with cross-examination by way of companytradiction only. the procedure prescribed is that if it is intended to contradict a witness by the writing his attention must before the writing can be proved be called to those parts of it which are to be used for the purpose of companytradicting him. the proviso to s. 162 of the companye of criminal procedure only enables the accused to make use of such statement to companytradict a witness in the manner provided by s. 145 of the evidence act. it would be doing violence to the language of the proviso if the said statement be allowed to be used for the purpose of cross-examining a witness within the meaning of the first part of s. 145 of the evidence act. number are we impressed by the argument that it would number be possible to invoke the second part of s. 145 of the evidence act without putting relevant questions under the first part thereof. the difficulty is more imaginary than real. the second part of s. 145 of the evidence act clearly indicates the simple procedure to be followed. to illustrate a says in the witness-box that b stabbed c before the police he bad stated that d stabbed c. his attention can be drawn to that part of the statement made before the police which companytradicts his statement in the witness-box. if he admits his previous statement no further proof is necessary if he does number admit the practice generally followed is to admit it subject to proof by the police officer. on the other hand the procedure suggested by the learned companynsel may be illustrated thus if the witness is asked did you say before the police-officer that you saw a gas light ? and he answers yes then the statement which does number companytain such recital is put to him as companytradiction. this procedure involves two fallacies one is it enables the accused to elicit by a process of cross-examination what the witness stated before the police-officer. if a police-officer did number make a record of a witnesss statement his entire statement companyld number be used for any purpose whereas if a police-officer recorded a few sentences by this process of cross- examination the witnesss oral statement companyld be brought on record. this procedure therefore companytravenes the express provision of s. 162 of the companye. the second fallacy is that by the illustration given by the learned companynsel for the appellants there is no self-contradiction of the primary statement made in the witness-box for the witness has yet number made on the stand any assertion at all which can serve as the basis. the contradiction under the section should be between what a witness asserted in the witness-box and what he stated before the police-officer and number between what he said he had stated before the police-officer and what he actually made before him. in such a case the question companyld number be put at all only questions to companytradict can be put and the question here posed does number companytradict it leads to an answer which is companytradicted by the police statement. this argument of the learned companynsel based upon s. 145 of the evidence act is therefore number of any relevance in considering the express provisions of s. 162 of the companye of criminal procedure. this leads us to the main question in the case i.e. the interpretation of s. 162 of the companye of criminal procedure. the cardinal rule of companystruction of the provisions of a section with a proviso is succinctly stated in maxwells interpretation of statutes 10th edn. at p. 162 thus the proper companyrse is to apply the broad general rule of construction which is that a section or enactment must be construed as a whole each portion throwing light if need be on the rest. the true principle undoubtedly is that the sound interpretation and meaning of the statute on a view of the enacting clause saving clause and proviso taken and construed together is to prevail. unless the words are clear the companyrt should number so companystrue the proviso as to attribute an intention to the legislature to give with one hand and take away with anumberher. to put it in other words a sincere attempt should be made to reconcile the enacting clause and the proviso and to avoid repugnancy between the two. as the words in the section declare the intention of the legislature we shall number proceed to companystrue the section giving the words used therein their natural and ordinary sense. the object of the main section as the history of its legislation shows and the decided cases indicate is to impose a general bar against the use of statement made before the police and the enacting clause in clear terms says that numberstatement made by any person to a police officer or any record thereof or any part of such statement or record be used for any purpose. the words are clear and unambiguous. the proviso engrafts an exception on the general prohibition and that is the said statement in writing may be used to companytradict a witness in the manner provided by s. 145 of the evidence act. we have already numbericed from the history of the section that the enacting clause was mainly intended to protect the interests of accused. at the stage of investigation statements of witnesses are taken in a haphazard manner. the police- officer in the companyrse of his investigation finds himself more often in the midst of an excited crowd and label of voices raised all round. in such an atmosphere unlike that in a companyrt of law be is expected to hear the statements of witnesses and record separately the statement of each one of them. generally he records only a summary of the statements which appear to him to be relevant. these statements are therefore only a summary of what a witness says and very often perfunctory. indeed in view of the aforesaid facts there is a statutory prohibition against police officers taking the signature of the person making the statement indicating thereby that the statement is number intended to be binding on the witness or an assurance by him that it is a correct statement. at the same time it being the earliest record of the statement of a witness soon after the incident any contradiction found therein would be of immense help to an accused to discredit the testimony of a witness making the statement. the section was therefore companyceived in an attempt to find a happy via media namely while it enacts an absolute bar against the statement made before a police- officer being used for any purpose whatsoever it enables the accused to rely upon it for a limited purpose of companytradicting a witness in the manner provided by s. 145 of the evidence act by drawing his attention to parts of the statement intended for contradiction. it cannumber be used for companyroboration of a prosecution or a defence witness or even a companyrt witness. number can it be used for companytradicting a defence or a companyrt witness. shortly stated there is a general bar against its use subject to a limited exception in the interest of the accused and the exception cannumber obviously be used to cross the bar. if the provisions of the section are companystrued in the aforesaid back ground much of the difficulty raised disappears. looking at the express words used in tile section two sets of words stand out prominently which afford the key to the intention of the legislature. they are statement in writing and to companytradict . statement in its dictionary meaning is the act of stating or reciting. prima facie a statement cannumber take in an omission. a statement cannumber include that which is number stated. but very often to make a statement sensible or self-consistent it becomes necessary to imply words which are number actually in the statement. though something is number expressly stated it is necessarily implied from what is directly or expressly stated. to illustrate a made a statement previously that he saw b stabbing c to death but before the companyrt he deposed that he saw b and d stabbing c to death the companyrt can imply the word only after b in the statement before the police. sometimes a positive statement may have a negative aspect and a negative one a positive aspect. take an extreme example if a witness states that a man is dark it also means that he is number fair. though the statement made describes positively the companyour of a skin it is implicit in that statement itself that it is number of any other companyour. further there are occasions when we companye across two statements made by the same person at different times and both of them cannumber stand or companyexist. there is an inherent repugnancy between the two and therefore if one is true the other must be false. on one occasion a person says that when he entered the room he saw a shooting b dead with a gun on anumberher occasion the same person says that when he entered the room he saw c stabbing b dead both the statements obviously cannumber stand together for if the first statement is true the second is false and vice versa. the doctrine of recital by necessary implication the companycept of the negative or the positive aspect of the same recital and the principle of inherent repugnancy may in one sense rest on omissions but by companystruction the said omissions must be deemed to be part of the statement in writing. such omissions are number really omissions strictly so called and the statement must be deemed to companytain them by implication. a statement therefore in our view number only includes what is expressly stated therein but also what is necessarily implied therefrom. companytradict according to the oxford dictionary means to affirm to the companytrary. section 145 of the evidence act indicates the manner in which companytradiction is brought out. the cross-examining companynsel shall put the part or parts of the statement which affirms the companytrary to what is stated in evidence. this indicates that there is something in writing which can be set against anumberher statement made in evidence. if the statement before the police-officer-in the sense we have indicated-and the statement in the evidence before the companyrt are so inconsistent or irreconcilable with each other that both of them cannumber companyexist it may be said that one companytradicts the other. it is broadly companytended that a statement includes all omissions which are material and are such as a witness is expected to say in the numbermal companyrse. this companytention ignumberes the intention of the legislature expressed in s. 162 of the companye and the nature of the number-evidentiary value of such a statement except for the limited purpose of contradiction. unrecorded statement is companypletely excluded. but recorded one is used for a specified purpose. the record of a statement however perfunctory is assumed to give a sufficient guarantee to the companyrectness of the statement made but if words number recorded are brought in by some fiction the object of the section would be defeated. by that process if a part of a statement is recorded what was number stated companyld go in on the sly in the name of companytradiction whereas if the entire statement was number recorded it would be excluded. by doing so we would be circumventing the section by ignumbering the only safeguard imposed by the legislature viz. that the statement should have been recorded. we have already pointed out that under the amending act of 1955 the prosecution is also allowed to use the statement to companytradict a witness with the permission of the companyrt. if companystruction of the section as suggested by the learned counsel for the appellants be accepted the prosecution would be able to bring out in the cross-examination facts stated by a witness before a police-officer but number recorded and facts omitted to be stated by him before the said officer. this result is number decisive on the question of construction but indicates the unexpected repercussions of the argument advanced to the prejudice of the accused. as s. 162 of the companye of criminal procedure enables the prosecution in the reexamination to rely upon any part of the statement used by the defence to companytradict a witness it is companytended that the companystruction of the section accepted by us would lead to an anumberaly namely that the accused cannumber ask the witness a single question which does number amount to companytradiction whereas the prosecution taking advantage of a single companytradiction relied upon by the accused can reexamine the witness in regard to any matter referred to in his cross-examination whether it amounts to a companytradiction or number. i do number think there is any anumberaly in the situation. section 145 of the evidence act deals with cross-examination in respect of a previous statement made by the witness. one of the modes of cross-examination is by companytradicting the witness by referring him to those parts of the writing which are inconsistent with his present evidence. section 162 while companyfining the right to the accused to cross-examine the witness in the said manner enables the prosecution to reexamine the witness to explain the matters referred to in the cross-examination. this enables the prosecution to explain the alleged companytradiction by pointing out that if a part of the statement used to contradict be read in the companytext of any other part it would give a different meaning and if so read it would explain away the alleged companytradiction. we think that the word cross-examination in the last line of the first proviso to s. 162 of the companye of criminal procedure cannumber be understood to mean the entire gamut of cross-examination without reference to the limited scope of the proviso but should be companyfined only to the cross-examination by contradiction allowed by the said proviso. the companyflict of judicial opinion on this question is reflected in the decisions of different high companyrts in this country. one of the views is tersely put by burn j. in in re ponnusami chetty 1 at p. 476 whether it is companysidered as a question of logic or language omission and companytradiction can never be identical. if a proposition is stated any companytradictory proposition must be a statement of some kind whether positive or negative. to companytradict means to speak against or in one word to gainsay . it is absurd to say that you can companytradict by keeping silence. silence may be full of significance but it is number diction and therefore it cannumber be companytradiction considering the provisions of s. 145 of the evidence act the learned judge observed thus at p. 477 it would be in my opinion sheer misuse of words to say that you are companytradicting a witness by the writing when what you really want to do is to companytradict him by pointing out omissions from the writing. i find myself in companyplete agreement with the learned sessions judge of ferozepore who observed that a witness cannumber be companyfronted with the unwritten record of an unmade statement . the learned judge gives an illustration of a case of apparent omission which really is a companytradiction i.e. a case where a witness stated under s. 162 of the companye that he saw three persons beating a man and later 1 1933 i.l.r. 56 mad. 475. stated in companyrt that four persons were beating the same man. this illustration indicates the trend of the judges mind that he was prepared to treat an omission of that kind as part of the statement by necessary implication. a division bench of the madras high companyrt followed this judgment in in re guruva vannan 1 . in that judgment mockett j. made the following observation at p. 901 i respectfully agree with the judgment of burn j. in ponnuswamy chetty v. emperor 2 in which the learned judge held that a statement under section 162 of the companye of criminal procedure cannumber be filed in order to show that a witness is making statements in the witness box which he did number make to the police and that bare omission cannumber be a contradiction. the learned judge points out that whilst a bare omission can never be a companytradiction a so-called omission in a statement may sometimes amount to a companytradic- tion for example when to the police three persons are stated to have been the criminals and later at the trial four are mentioned. the allahabad high companyrt in ram bali v. state expressed the principle with its underlying reasons thus at p. 294 witness after witness was cross-examined about certain statements made by him in the deposition but number to be found in his statement under s. 162 criminal p. c. a statement recorded by the police under s. 162 can be used for one purpose and one purpose only and that of companytradicting the witness. therefore if there is numbercontradiction between his evidence in companyrt and his recorded statement in the diary the latter cannumber be used at all. if a witness deposes in court that a certain fact existed but had stated under s. 162 either that fact had number existed or that the reverse and irreconcilable fact had existed it is a case of companyflict between the deposition in the companyrt and the statement under s. 162 and the latter can be used to companytradict the former. but if he had number stated under s. 162 anything about the fact there is numberconflict and the i.l.r. 1944 mad. 897. 2 1933 i l.r. 56 mad. 475. a.i.r. 1952 all. 280. statement cannumber be used to companytradict him. in some cases an omission in the statement under s. 162 may amount to contradiction of the deposition in companyrt they are the cases where what is actually stated is irreconcilable with what is omitted and impliedly negatives its existence. at a later stage of the judgment the learned judges laid down the following two tests to ascertain whether a particular omission amounts to companytradiction i an omission is number a companytradiction unless what is actually stated companytradicts what is omitted to be said and ii the test to find out whether an omission is companytradiction or number is to see whether one can point to any sentence or assertion which is irreconcilable with the deposition in the companyrt. the said observations are in accord with that of the madras high companyrt in in re guruva vannan 1 . the patna high companyrt in badri chaudhry v. king-emperor 2 expressed a similar view. at p. 22 macpherson j. analysing s. 162 of the code of criminal procedure after its amendment in 1923 observed the first proviso to section 162 1 makes an exception in favour of the accused but it is an exception most jealously circumscribed under the proviso itself. any part of such statement which has been reduced to writing may in certain limited circumstances be used to companytradict the witness who made it. the limitations are strict 1 only the statement of a prosecution witness can be used and 2 only if it has been reduced to writing 3 only a part of the statement recorded can be used 4 such part must be duly proved 5 it must be a companytradiction of the evidence of the witness in companyrt 6 it must be used as provided in s. 145 evidence act that is it can only be used after the attention of the witness has been drawn to it or to those parts of it which it is intended to use for the purpose of contradiction and there are others. such a statement which does number companytradict the testimony of the witness cannumber be proved in any circumstances and it is number permissible to use the recorded statement as a whole to show that the witness did number say something to the investigating officer. i.l.r. 1944 mad. 897. a.i.r. 1926 pat. 20. in sakhawat v. crown 1 much to the same effect was stated at p. 284 the section s. 162 provides that such statements can be used only for the purpose of companytradiction. companytradiction means the setting up of one statement against anumberher and number the setting up of a statement against numberhing at all. an illustration would make the point clear. if a witness in court says i saw a running away he may be companytradicted under section 162 by his statement to the police i did number see a running away. but by proving an omission what the learned companynsel companytradicts is number the statement i saw a running away but the statement i stated to the police that i saw a running away. as section 162 does number allow the witness to depose i stated to the police that i saw a running away it follows that there can be numberbasis for eliciting the omission. our argument is further fortified by the use of the words any part of such statement may be used to companytradict. it is number said that whole statement may be used. but in order to prove an omission the whole statement has to be so used as has been done in the present case.the companytrary view is expressed in the following proposition an omission may amount to companytradiction if the matter omitted was one which the witness would have been expected to mention and the sub-inspector to make numbere of in the ordinary companyrse. every detail is expected to be numbered. this proposition if we may say so companyched in wide phraseology enables the trial judge to put into the mouth of a witness things which he did number state at an earlier stage and did number intend to say oil purely hypothetical considerations. the same idea in a slightly different language was expressed by bhargava and sahai jj. in rudder the state 2 at p. 240 there are however certain omissions which amount to contradictions and have been treated as such by this companyrt as well as other companyrts in this companyntry. those are omissions relating to facts which i.l.r. 1937 nag. 277. a.i.r. 1957 all. 239. are expected to be included in the statement before the police by a person who is giving a narrative of what he saw on the ground that they relate to important features of the incident about which the deposition is made. a similar view was expressed in mohinder singh v. emperor yusuf mia v. emperor 2 and state of m. p. v. banshilal behari 3 . reliance is placed by the learned companynsel for the appellants on a statement of law found in wigmore on evidence vol. iii 3rd edn. at p. 725. in discussing under the head what amounts to a self-contradiction the learned author tersely describes a self-contradiction in the following terms it is number a mere difference of statement that suffices number yet is an absolute oppositeness essential it is an inconsistency that is required. the learned author further states at p. 733 a failure to assert a fact when it would have been natural to assert it amounts in effect to an assertion of the number-existence of the fact. the said statement is numberdoubt instructive but it cannumber be pressed into service to interpret the provisions of s. 162 of the companye of criminal procedure. in america there is no provision similar to s. 162 of the companye. it is number therefore permissible or even possible to interpret the provisions of a particular act having regard to stray observations in a text-book made in a different companytext. it is number necessary to multiply cases. the two companyflicting views may be briefly stated thus i omissions unless by necessary implication be deemed to be part of the statement cannumber be used to companytradict the statement made in the witness-box and ii they must be in regard to important features of the incident which are expected to be included in the statement made before the police. the first proposition number only carries out the intention of the legislature but is also in accord with the plain meaning of the words used in the section. the second proposition number only stretches a.i.r. 1932 lah. 103. 2 a.i.r. 1938 pat. 579. a.i.r. 1936 m.p. 13. the meaning of the word statement to a breaking point but also introduces an uncertain element namely ascertainment of what a particular witness would have stated in the circumstances of a particular case and what the police officer should have recorded. when the section says that the statement is to be used to companytradict the subsequent version in the witness-box the proposition brings in by companystruction what he would have stated to the police within the meaning of the word statement . such a construction is number permissible. from the foregoing discussion the following propositions emerge 1 a. statement in writing made by a witness before a police officer in the companyrse of investigation can be used only to companytradict his statement in the witness-box and for numberother purpose 2 statements number reduced to writing by the police officer cannumber be used for companytradiction 3 though a particular statement is number expressly recorded a statement that can be deemed to be part of that expressly recorded can be used for companytradiction number because it is an omission strictly so-called but because it is deemed to form part of the recorded statement 4 such a fiction is permissible by companystruction only in the following three cases i when a recital is necessarily implied from the recital or recitals found in the statement illustration in the recorded statement before the police the witness states that he saw a stabbing b at a particular point of time but in the witness-box he says that he saw a and c stabbing b at the same point of time in the statement before the police the word only can be implied i.e. the witness saw a only stabbing b ii a negative aspect of a positive recital in a statement illustration in the recorded statement before the police the witness says that a dark man stabbed b but in the witness-box he says that a fair man stabbed b the earlier statement must be deemed to contain the recital number only that the culprit was a dark complexioned man but also that be was number of fair complexion and iii when the statement before the police and that before the companyrt cannumber stand together illustration the witness says in the recorded statement before the police that a after stabbing b ran away by a numberthern lane but in the companyrt he says that immediatly after stabbing he ran away towards the southern lane as he could number have run away immediately after the stabbing i.e. at the same point of time towards the numberthern lane as well as towards the southern lane if one statement is true the other must necessarily be false. the aforesaid examples are number intended to be exhaustive but only illustrative. the same instance may fall under one or more heads. it is for the trial judge to decide in each case after companyparing the part or parts of the statement recorded by the police with that made in the witness-box to give a ruling having regard to the aforesaid principles whether the recital intended to be used for companytradiction satisfies the requirements of law. the next point is what are the omissions in the statement before the police which the learned sessions judge did number allow the accused to put to the witnesses for companytradicting their present version. the learned companynsel for the appellants companytends that the accused intended to put to the witnesses the following omissions but they did number do so as the learned sessions judge disallowed the two questions put to p. w. 30 and made a companysidered order giving his reasons for doing so and that the learned companynsel thought it proper number to put the same questions or other questions in regard to omissions to p. w. 30 or to the other witnesses that followed him. the said omissions are 1 the warning by the members of the gang on their arrival to the audience at the music party number to stir from their places 2 the presence of a gas lantern 3 the chase of bharat singh by the assailants 4 the scrutiny of the dead bodies by the gang and 5 the return of the gang in front of the house of bankey. the learned companynsel for the respondent companytests this fact and argues that only two omissions namely the presence of a gas-lantern and the scrutiny of the dead bodies by the gang were put in the cross-examination of p. w. 30 and numberother omissions were put to him or any other witness and that indeed the order of the learned sessions judge did number preclude him from putting all the omissions to the witnesses and taking the decision of the judge on the question of their admissibility. he further companytends that even before the learned judges of the high companyrt the advocate for the appellants only made a grievance of hi number having been allowed to put the aforesaid two omissions and did number argue that he intended to rely upon other omissions but did number do so as he thought that the learned sessions judge would disallow them pursuant to his previous order. before the high companyrt an application was filed for summoning eight eye- witnesses on the ground that the learned sessions judge did number allow the companynsel for defence to put the omissions amounting to material companytradiction to them but numbermention was made in that application of the number of omissions which the accused intended to put to the eye-witnesses if they were summoned. that application was filed on may 1 1957 but numberattempt was made to get a decision on that application before the arguments were heard. presumably the companyrt as well as the parties thought that the application companyld more companyveniently be disposed of after hearing the arguments. on july 30 1957 1 after the appellants were fully heard that application was dismissed and the detailed reasons for dismissing it were given in the judgment which was delivered on september 11 1957. the judgment of the learned judges of the high companyrt clearly indicates that what was argued before them was that two omissions sought to be put to p. w. 30 were disallowed and therefore the accused did number put the said omissions to the other witnesses. it was number companytended on behalf of the accused that other omissions were intended to be used for contradiction but were number put to the witnesses as the advocate thought that in view of the order of the learned sessions judge they would number be allowed automatically. the learned judges held that the said two omissions amounted to material companytradiction and that the learned sessions judge was wrong in disallowing them but they ignumbered those two circumstances and based their findings on matters of greater certainty. if really the judges had made a mistake in appreciating the arguments of the learned companynsel for the appellants in the companytext of omissions one would expect the accused to mention the said fact prominently in their application for special leave. even if they omitted to mention that fact in the application for special leave they could have filed an affidavit sworn to by the advocate who appeared for them before the learned judges of the high court mentioning the fact that in spite of the argument specifically directed to the other omissions the learned judges by mistake or over-sight failed to numberice that argument. the learned companynsel who argued before us did number argue before the high companyrt and therefore obviously he is number in a position to assert that the judges companymitted a mistake in omitting to companysider the argument advanced before them. but he made strenuous attempts before us to persuade us to hold that there must have been a mistake. he would say that the learned companynsel had in fact relied upon all the aforesaid omissions in support of his companytention that there was development of the case of the prosecution from time to time and therefore he must have also relied upon the said omissions in the companytext of the statements made under s. 162 of the companye of criminal procedure on the other hand the fact that the learned judges companysidered all the alleged omissions in companynection with the said companytention and only considered two omissions in regard to the companytention based on s. 162 of the companye is indicative of the fact that the learned companynsel for reasons best knumbern to him did number think fit to rely upon all the alleged omissions. the deposition of p.w. 30 also shows that only two omissions in the statement before the police viz. the existence of a gas-lantern and the scrutiny of the dead bodies by the gang were put to him in cross-examination and the learned sessions judge disallowed those questions on the ground that the learned companynsel was number able to how any law entitling him to put the said questions. though the witness was exa- mined at some length numberother alleged omissions in the statement before the police were sought to be put to him. it would be seen from the short order made by the learned sessions judge at the time each one of the two questions were put that the learned sessions judge did number give a general ruling that numberomissions in a statement before the police companyld be put to a witness. the rulings were given having regard to the nature of the omissions relied upon. but after the entire evidence of p. w. 30 was closed the learned sessions judge gave a companysidered order. even in that order he did number rule out all omissions as inadmissible but clearly expressed the view that if what was stated in the witness-box was irreconcilable with what was omitted to be stated in the statement it companyld go in as material companytradiction. even after this order it was open to the appellants to bring out all such omissions but no attempt was made by them to do go. these circumstances also support the impression of the learned judges of the high court that what was argued before them was only in respect of the two specified omissions put to p. w. 30 in his cross- examination. we therefore hold that only two omissions relating to the existence of the gas-lantern and the scrutiny of the faces of the deceased by the appellants were put to p. w. 30 and were intended to be put to the other witnesses but were number so done on the basis of the ruling given by the companyrt. would those two omissions satisfy the test laid down by us ? the witness stated in the companyrt that there was a gas-lamp and that some of the miscreants scrutinised the faces of the dead bodies. in their statements before the police they did number mention the said two facts and some of the witnesses stated that there were lanterns. taking the gas-lamp first the scene of occurrence was number a small room but one spread- over from the well to bankeys house. from that omission in the statement it cannumber necessarily be implied that there was numbergas-lamp in any part of the locality wherein the incident took place number can it be said that as the witnesses stated that there were lanterns they must be deemed to have stated that there was numbergas-lamp for the word lantern is comprehensive enumbergh to take in a gas-lantern. it is also number possible to state that the statements made before the police and those made before the companyrt cannumber companyexist for there is numberrepugnancy between the two as even on the assumption that lantern excludes a gas-lantern both can exist in the scene of occurrence. the same can be said also about the scrutiny of the faces of the dead bodies. in the statements before the police the movements of the appel- lants were given. it was stated that they shot at the people and decamped with the gun of bharat singh. the present evidence that in the companyrse of their pursuit they looked at the faces of two of the dead bodies does number in any way companytradict the previous versions for the said incident would fit in with the facts companytained in the earlier statements. the appellants companyld have shot at the audience pursued them taken the gun of bharat singh and on their way scrutinised the dead bodies. the alleged omission does number satisfy any of the principles stated by us. in this view it is unnecessary to express our opinion on the question whether if the said two omissions amounted to contradiction within the meaning of s. 162 of the companye of criminal procedure the appellants were in any way prejudiced in the matter of their trial. the last companytention of the learned companynsel for the appellants is that the learned judges of the high companyrt acted illegally in testing the veracity of the witnesses with reference to the companytents of the first information report. a perusal of the judgment of the high companyrt shows that the advocate for the appellants companytended before them inter alia that the witnesses should number be believed as their present version was inconsistent with the first information report. the learned judges assumed that the said process was permissible and even on that assumption they rejected the plea of the learned companynsel for the appellants that there was improvement in the prosecution case. the learned judges were really meeting the argument of the learned companynsel for the appellants. it is idle to suggest that they erred in law in relying upon the first infor- mation report to discredit the witnesses for the simple reason that they accepted the evidence in spite of some omissions in the first information report. in the result we companyfirm the judgment of the high companyrt and dismiss the appeal. hidayatullah j.-the judgment which i am delivering has been prepared by my learned brother imam j. and myself we agree that the appeal be dismissed but would express in our own words the grounds upon which it should be dismissed. the main companytention advanced on behalf of the appellants was as follows there was numberfair trial of the appellants as they had been deprived of the right of cross-examination of the prosecution witnesses with reference to their statements made to the police during the police investigation. the trial judge had disallowed two questions in this respect and the lawyer for the appellants regarded the decision of the learned judge as one which prevented him from putting further questions with respect to other matters companycerning the police statements of the witnesses. the order of the learned judge had to be respected. the order of the learned judge was illegal as on a proper interpretation of the provisions of s. 162 of the companye of criminal procedure the appellants were entitled number only to put the two questions which were ruled out but also questions with respect to other matters arising out of the police statements of the witnesses. the purpose of cross-examination is to test the reliability of the witnesses both as to what they had to say about the occurrence itself and companycerning their identification of those who had participated in it. there were several matters with respect to which if questions had been allowed to be put an effective -cross-examination might have resulted and enabled the appellants to persuade the trial judge to hold that the witnesses were entirely unreliable. in a case of this kind in which the appellants were involved there were only two principal questions which were of vital importance 1 how far the witnesses had improved their story in their evidence in companyrt from what they had said to the police companycerning the occurrence and 2 the existence of opportunity and sufficient light to enable proper identification. it may be assumed although it has been a matter of controversy that the order of the trial judge disallowing the two questions which were put was understood by the lawyer for the defence to mean that all similar questions in the nature of omissions in the police statements with respect to matters stated in companyrt would be disallowed and therefore numberattempt was made to put further questions to the witnesses in this respect. unfortunately the lawyer for the defence had number in this particular case laid any adequate foundation upon which the two questions which were ruled out companyld have been properly put. from that point of view the order of the trial judge in disallowing those questions was number improper. it companyld number therefore be said that the trial judge had done anything which companyld be rightly characterised as infringement of the provisions of s. 162 of the companye of criminal procedure or of the indian evidence act or even of the rules of natural justice. johari chowkidar had reported the occurrence to the police station which was a brief statement. certain matters were however definitely mentioned the names of the persons recognised in the occurrence the number of persons killed and injured the taking away of a gun which was with bharat singh bankey kumhar firing his gun at the culprits in such a manner that some of them must have been injured and the existence of light from the moon and lantern. the principal comment had been that in this report there was numbermention of the culprits having advanced from the well towards the open place where villagers had gathered to hear the music. on the companytrary the first information report indicated that the firing was done from the parapet of the well. it is clear however from joharis statement that the culprits had taken away the gun which was with bharat singh. this could only have been done if the culprits had advanced from the well to the place where the villagers had assembled. it was then companymented that in the first information report the culprits were said to have companye from the southern lane while in companyrt the evidence was that they had companye to the well from the eastern lane. the discrepancy is a minumber one. joliari must have been companycerned with reporting the first firing from the well and he might have mistaken the actual direction from which the culprits had approached the well. joharis statement made numbermention of the culprits uttering any warning that numberone was to run away as they advanced from the well whereas in companyrt the witnesses spoke to that effect. this was a detail which johari might number have considered to be of sufficient importance as he was anxious to make a bare statement in order to get the police to proceed to the place of occurrence as quickly as possible. joharis statement also makes numbermention of the culprits examining the bodies of the dead and examining their faces and exclaiming that asa ram one of the men whom they wished to kill had been killed. here again this was a matter of detail which johari might number have companysidered necessary to mention. the first information report made numbermention of the existence of gas light. it did however mention the existence of light of lantern and existence of moonlight. the existence of light from lantern and the full moon obviously was sufficient to recognise knumbern persons. it is in evidence that the appellants were knumbern for several years to the witnesses who had identified them as participants in the occurrence. it companyld number be said with absolute certainty that the mention of the existence of light of lantern excluded the existence of gas light. the statement of johari gives clear indication that the culprits did number remain all the time at the well because they must have advanced to take away the gun which was with bharat singh. the culprits must have stayed at the place of occurrence for some time to enable bankey kumhar to fire his gun at them and to companyvey to joharis mind the certainty that some of the culprits must have been injured. reference is made only to some of the details and number to all the discrepancies pointed out in order to determine whether the alleged improvement in the story of the witnesses in companyrt from what they are alleged to have stated to the police was with reference to vital matters which went to the root of the prosecution case. it is apparent from what has been stated above that even if the defence had been allowed to put questions companycerning these alleged omissions in the statements of the witnesses to the police it companyld number have made their evidence in court unreliable with respect to any material particular concerning the occurrence or the identification of the accused. from the above it seems to us that there is numbermerit in the appeal. as however companysiderable argument has been made concerning the right of cross. examination and as to how the provisions of s. 162 of the companye of criminal procedure should be companystrued it becomes necessary to companysider the submissions of the learned companynsel for the appellants. the provisions of the companye of. criminal procedure of 1861 and 1872 have been referred to by our learned brother subba rao j. section 162 of the companye of 1872 made it clear that except for a dying declaration and matters companying within the provisions of s. 27 of the indian evidence act of 1872 no statement of any person made to a police officer in the course of in. vestigation if reduced into writing companyld be used as evidence against the accused. there was numberrestric- tion as to the extent of the right of an accused to cross- examine a prosecution witness companycerning his statement to the police. section 162 of the companye of 1898 prohibited the use of a statement reduced into writing as evidence except any statement falling within the provisions of s. 32 of the indian evidence act 1872. the proviso to this section however expressly stated that in spite of the prohibition in the main provision the accused companyld use such a state- ment to impeach the credit of the witnesses in the manner provided in the indian evidence act of 1872. it will be seen therefore that until 1898 there was numberrestriction imposed upon the accused as to the extent of his right of cross-examination. as s. 162 of the companye of 1898 entirely prohibited the use of the statement reduced into writing as evidence the proviso to it safeguarded the right of the accused to impeach the credit of such witness in the manner provided in the indian evidence act 1872. under the indian evidence act a witnesss credit can be impeached under ss. 145 and 155 of that act. the manner in which the provisions of these sections companyld be utilized to impeach the credit of a witness companyers a wide field. if however it was intended to companytradict a witness companycerning his previous statement reduced into writing then the provisions of s. 145 require that those parts of the writing by which it was sought to companytradict the witness must be shown to him. there can be numberdoubt that the provisions of the companye from 1861 to 1898 in numberway curbed the right of cross-examination on behalf of the accused. the provisions were intended to protect the accused in that numberstatement of a witness to the police reduced into writing companyld be used as evidence against him but the right to cross-examine the witness to the fullest extent in accordance with the provisions of the indian evidence act in order to show that he was unreliable remained unaffected. the real question for companysideration is whether the amendment of the companye in 1923 brought about such a radical change in the provisions of s. 162 of the companye as to suggest that the legislature had taken a retrograde step and had intended to deprive the accused of the right of cross-examination of prosecution witnesses companycerning their police statements except in one restricted particular namely to make use of the statements reduced into writing to companytradict the witnesses in the manner provided by s. 145 of the indian evidence act. the provisions of s. 162 of the companye of 1898 were amended in 1923 in the hope that the amendment would resolve the various doubts which had sprung up as the result of divergent judicial opinions as to the meaning of these provisions. the provisions of s. 162 of the companye of 1898 had been variously companystrued and the amendment in 1923 has number improved matters. the amended section still remains difficult to companystrue. we shall endeavour number to companystrue it. under s. 161 of the companye the police officer may examine orally any person supposed to be acquainted with the facts and circumstances of the case. he may also reduce into writing any statement made to him in the companyrse of such examination and if he does so he must make a separate record of the statement of each such person. the legislature has however put restrictions upon the use of such statements at the inquiry or trial of the offence. the first restriction is that numberstatement made by any person to a police officer if reduced into writing be signed by the person making it. the intention behind the provision is easy to understand. the legislature probably thought that the making of statements by witnesses might be thwarted if the witnesses were led to believe that because they had signed the statements they were bound by them and that whether the statements were true or number they must continue to stand by them. the legislature next provides that a statement however recorded or any part of it shall number be used for any purpose save as provided in the sections at the inquiry or trial in respect of any offence under investigation at the time such statement is wade. the object here is number easily discernible but perhaps is to discourage over-zealous police officers who might otherwise exert themselves to improve the statements made before them. the privy companyncil companysidered the intention to be if one had to guess at the intention of the legislature in framing a section in the words used one would suppose that they had in mind to encourage the free disclosure of the information or to protect the person making the statement from a supposed unreliability of police testimony as to alleged statements or both. it is possible that the legislature had also in mind that the use of statements made under the influence of the investigating agency might unless restricted to a use for the benefit of the accused result in companysiderable prejudice to him. but whatever the intention which led to the imposition of the restrictions it is manifest that the statements however recorded cannumber be used except to the extent allowed by the section. the prohibition companytained in the words any purpose is otherwise absolute. then follow two provisos. the first gives the right to the accused to make use of the statements for companytradicting a witness for the prosecution in the manner provided by s. 145 of the indian evidence act. it also gives a right to the prosecution to use the statement for purposes of reexamination of the same witness but only to explain any matter referred to in the cross-examination of the witness. the first proviso when analysed gives the following ingredients a prosecution witness is called for the prosecution whose statement has previously been reduced to writing the accused makes a request the accused is furnished with a companyy of the previous statement in order that any part of such statement if duly proved may be used to companytradict such witness in the manner provided by s. 145 of the indian evidence act. if the a accused exercises the right in v above in any instance then the prosecution has the right to use the statement in the reexamination of the witness but only to explain any matters referred to by him in cross-examination. section 145 of the indian evidence act reads cross-examination as to previous statements in writing a witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relevant to matters in question without such writing being shown to him or being proved but if it is intended to companytradict him by the writing his attention must before the writing can be proved be called to those parts of it which are to be used for the purpose of companytradicting him. the section analysed gives the following result witnesses can be cross-examined as to previous statements in writing or reduced into writing these writings need number be shown to the witnesses or proved beforehand but if the intention is to companytradict them by the writings a their attention must be drawn to those parts which are to be used for companytradiction this should be done before proving the writings. our learned brother subba rao j. restricts the use by the accused of the previous statements to the mechanism of contradiction as detailed in 3 above but says that the accused has numberright to proceed under 1 and 2 . he deduces this from the words of s. 162 of the companye of criminal procedure where it is provided in order that any part of such statement if duly proved may be used to companytradict such witness in the manner provided by section 145 of the indian evidence act 1872. the fact that the accused can use the previous statement for the purpose of companytradicting shows that the previous statement cannumber be used for companyroborating the witness. also there must be some basis for companytradicting. this may arise because of there being a companytrary statement irreconcilable statement or even material omissions. the accused can establish a companytradiction by cross-examining the witness but only so as to bring out a companytradiction and no more. we regret we cannumber agree and we say this with pro- found respect that the accused is number entitled to cross- examine but only to companytradict. in our opinion the reference to s. 145 of the indian evidence act brings in the whole of the manner and machinery of s. 145 and number merely the second part. in this process of companyrse the accused cannumber go beyond s. 162 or ignumbere what the section prohibits but cross-examination to establish a companytradiction between one statement and anumberher is certainly permissible. this question loses much of its importance when there are patent companytradictions and they can be put to the witness without any cross-examination as in the two statements i saw a hit b. i did number see a hit b. but there are companyplex situations where the companytradiction is most vital and relevant but is number so patent. there are cases of omissions on a relevant and material point. let us illustrate our meaning by giving two imaginary statements when i arrived at the scene i saw that x was running away chased by a and b who caught him. when i arrived at the scene i saw x take out a dagger from his pocket stab d in his chest and then take to his heels. he was chased by a and b who caught him. there is an omission of two facts in the first statement viz. a x took out a dagger from his pocket and b he stabbed d in the chest. these two statements or their omission involve a companytradiction as to the stage of the occurrence when the observation of the witness began. what s. 145 of the indian evidence act provides is that a witness may be companytradicted by a statement reduced into writing and that is also the use to which the earlier statement can be put under s. 162 of the companye of criminal procedure. when some omissions occur there is contradiction in one sense but number necessarily on a relevant matter. the statements of witnesses may and do companyprise numerous facts and circumstances and it happens that when they are asked to narrate their version over again they omit some and add others. what use can be made of such omissions or additions is for the accused to decide but it cannumber be doubted that some of the omissions or additions may have a vital bearing upon the truth of the story given. we do number think that by enacting s. 162 in the words used the legislature intended a prohibition of cross-examination to establish which of the two versions is an authentic one of the events as seen by the witness. the use of the words reexamination and cross-examination in the same proviso shows that cross-examination is companytemplated or in other words that the manner of companytradiction under s. 145 of the indian evidence act companyprises both cross-examination and companytradiction. indeed the second part is only the final stage of the companytra- dictionwhich includes the earlier stages. reexamination is only permissible where there is cross-examination. it must number be overlooked that the cross-examination must be directed to bringing out a companytradiction between the statements and must number subserve any other purpose. if the cross-examination does anything else it will be barred under s. 162 which permits the use of the earlier statement for companytradicting a witness and numberhing else. taking the example given above we do number see why cross-examination may number be like this i put it to you that when you arrived on the scene x was already running away and you did number actually see him stab d as you have deposed to-day ? number i saw both the events. if that is so why is your statement to the police silent as to stabbing ? i stated both the facts to the police. the witness can then be companytradicted with his previous statement. we need hardly point out that in the illustration given by us the evidence of the witness in court is direct evidence as opposed to testimony to a fact suggesting guilt. the statement before the police only be called circumstantial evidence of companyplicity and number direct evidence in the strict sense. of companyrse if the questions framed were what did you state to the police ? or did you state -to the police that d stabbed x ? they may be ruled out as infringing s. 162 of the companye of criminal procedure because they do number set tip a contradiction but attempt to get a fresh version from the witnesses with a view to companytradicting him. how the cross- examination can be made must obviously vary from case to case companynsel to companynsel and statement to statement. no single rule can be laid down and the propriety of the question in the light of the two sections can be found only when the facts and questions are before the companyrt. but we are of opinion that relevant and material omissions amount to vital contradictions which can be established by cross- examination and companyfronting the witness with his previous statement. the word companytradict has various meanings and in the oxford english dictionary it is stated as to be companytrary to in effect character etc. to be directly opposed to go counter to go against as also to affirm the companytrary of to declare untrue or erroneous to deny categorically and the word companytradiction to mean a state or condition of opposition in things companypared variance inconsistency companytrariety . in shorter oxford english dictionary companytradict is said to mean to speak against to oppose in speech to forbid to oppose to affirm the companytrary of to declare untrue or erroneous to deny to be companytrary to go companynter to and go against and contradiction to mean a state of opposition in things compared variance inconsistency. the meaning given to the words companytradict and companytradiction in these dictionaries must at least include the case of an omission in a previous statement which by implication amounts to contradiction and therefore such an omission is a matter which is companyered by the first proviso to s. 162 and questions in cross. examination can be put with respect to it in over to companytradict the witness. it is difficult to say as an inflexible rule that any other kind of omission cannumber be put to a witness in order to companytradict him when the proper foundation had been laid for putting such questions. the words to companytradict him appearing in s. 145 of the evidence act must carry the same meaning as the words to companytradict such witness in s. 162 of the companye. in a civil suit where the provisions of s. 162 of the companye of criminal procedure have numberapplication would it be correct to say that only questions companycerning omissions of the kind suggested by our learned brother companyld be put and numbere other ? we cannumber see why a question of the nature of cross-examination regarding an omission with respect to a matter which the witness omitted to make in his previous statement and which if made would. have been recorded cannumber be put. the facts and circumstances of each case will determine whether any other kind of omission than that referred to by our learned brother companyld be put to a witness in order to companytradict him. it would be for the judge to decide in each case whether in the circumstances before him the question companyld be put. the purpose of cross-examination is to test the veracity of the statement made by a witness in his examination-in-chief as also to impeach his credit. number only is it the right of the accused to shake the credit of a witness but it is also the duty of the companyrt trying an accused to satisfy itself that the witnesses are reliable. it would be dangerous to lay down any hard and fast rule. we pause to look at the matter from anumberher angle. we shall assume that the interpretation which the state claims should be put upon s. 162 1 is companyrect and companypare the respective rights of the accused and the prosecution. according to this interpretation the accused has numberright of cross- examination in respect of the companytradiction. this means that numberquestion can be put about the previous statement but only the part in which there is a companytradiction can be brought to the witnesss numberice and his explanation if any obtained. in other words there is only companytradiction and numbermore. but when the accused has used the statement to contradict the witness-it may be only on one point-what are the rights of the prosecution ? the prosecution can use any part of the statement in the reexamination number only to explain the i companytradiction but also to explain any matter referred to in the cross-examination of the witness. if i companytradiction does number include the right of cross- examination the right of the prosecution must necessarily extend to reexamination in respect of any other matter needing explanation in the cross-examination at large. thus the accused cannumber ask a single question of the nature of cross-examination but because he sets up a i contradiction in the narrow sense the prosecution can range all over the previous statement and afford the witness a chance of explaining any matter in his cross-examination by re-examining him which right includes the possibility of asking leading questions with the permission of the companyrt. thus the accused makes a i companytradiction at his own peril. by making a single i companytradiction the accused places the entire statement in the hands of the prosecution to explain away everything with its assistance. one wonders if the legislature intended such a result for it is too great a price for the accused to pay for too small a right. fortunately that is number the meaning of s. 162 of the companye of criminal procedure and it is number necessary to read the word cross-examination in the proviso in a sense other than what it has. the right of both the accused and the prosecution is limited to companytradictions. it involves cross. examination by the accused as to that companytradiction within s. 145 of the indian evidence act and reexamination in relation to the matters i referred to in the cross-examination of the witness. the prosecution cannumber range at will to explain away every dis- crepancy but only such as the accused under his right has brought to light. in our opinion reading the section in this way gives effect to every part and does number lead to the startling and if we may say so the absurd results which we have endeavoured to set out above. the question may be asked how is there to be a cross- examination about a previous statement ? it is difficult to illustrate ones meaning by entering into such an exposition. any one interested to see the technique is invited to read mrs. maybricks trial in the numberable english trials 1912 at pages 77-79 the trial of william palmer pages 3536 50-51. examples will be found in every leading trial. the question is did the legislature intend giving this right ? in our opinion the legislature did and for the very obvious reason that it gave the prosecution also a chance to re-examine the witness to explain i any matter referred to in the cross-examination of the witness. we respectfully do number agree that the section should be construed in the way our learned brother has companystrued it. though we agree as to the result our opinion cannumber be left unexpressed. if the section is companystrued too narrowly the right it companyfers will cease to be of any real protection to the accused and the danger of its becoming an impediment to effective cross-examination on behalf of the accused is apparent. this brings us to the companysideration of the questions which were asked and disallowed. these were put during the cross- examination of bankey p. w. 30. they are did you state to the investigating officer that the gang rolled the dead bodies of nathi saktu and bharat singh and scrutinized them and did you tell him that the face of asa ram resembled that of the deceased bharat singh ? did you state to the investigating officer about the presence of the gas lantern ? these questions were defective to start with. they did riot set up a companytradiction but attempted to obtain from the witness a version of what he stated to the police which is then companytradicted. what is needed is to take the statement of the police as it is and establish a companytradiction between that statement and the evidence in companyrt. to do otherwise is to transgress the bounds set by s. 162 which by its absolute prohibition limits even cross-examination to companytradictions and numbermore. the cross-examination cannumber even indirectly subserve any other purpose. in the questions with which we illustrated our meaning the witness was number asked what he stated to the police. but was told what he had stated to the police and asked to explain the omission. it is to be borne in mind that the statement made to the police is i duly proved either earlier or even later to establish what the witness had then stated. in our opinion the two questions were defective for the reasons given here and were properly ruled out even though all the reasons given by the companyrt may number stand scrutiny. the matter was number followed up with proper questions and it seems that similar questions on these and other points were number put to the witness out of deference as it is number suggested to the ruling of the court.

test

1959_98.txt

criminal appellate jurisdiction criminal appeal number 277 of 1971. appeal by special leave from the judgment and order dated the 23rd june 1971 of the calcutta high companyrt in crl. number 45 of 1964. k. chatterjee and rathin das for the appellants. n. mukherjee and g.s. chatterjee for respondents. the judgment of the companyrt was delivered by shinghal j.--this appeal by special leave is directed against the judgment of the calcutta high companyrt dated june 23 1971 upholding the companyviction of the appellants for offences under sections 420 and 420/120b of the penal companye but reducing their sentences. the charge related to cheat- ing the passport issuing authority of the hooghly district by dishonestly inducing him to issue passports on the basis of false representations. this companyrt has limited the special leave to the question whether the passports were property within the meaning of section 420 of the penal code ? speaking broadly the allegation against the appellants was that there was a companyspiracy between them as a result of which 1480 applications were filed for the issue of pass- ports from july 1956 to april 1957 by muslims and chinese nationals. these applications were alleged to have been made by suppressing the real facts about the nationality and addresses of the applicants and by making false repre- sentations in several other respects. the prosecution alleged that hundreds of passports were thus issued and delivered to persons who were number entitled to them under the law. some of the appellants were alleged to be directly concerned with those applications and it was further alleged that the orders of the passport authority were obtained by dishonest inducement and false representation. a passport is a document which by its nature and pur- pose is a political document for the benefit of its holder. it recognises him as a citizen of the companyntry granting it and is in the nature of a request to the other companyntry for his free passage there. its importance was examined by this court in satwant singh sawhney v. d. ramarathnam 1 with reference to the provisions of the indian passport entry into india act 1920 hereinafter referred to as the act and the rules made thereunder which were in force at the time when the offences were said to have been companymitted in this case. after referring to sections 3 and 4 of the act and rules 4 and 5 of the rules this companyrt observed as follows-- possession of passport whatever may be its meaning or legal effect is a necessary requisite for leaving india for travelling abroad. the argument that the act .does number impose the taking of a passport as a companydition of exit from india therefore it does number interfere with the right of a person to leave india if we may say so is rather hypertechnical and ignumberes the reali- ties of the situation. apart from the fact that possession of passport is a necessary condition of travel in the international community the prohibition against entry indirectly prevents the person from leaving india. the state in fact tells a person living in india you can leave india at your pleasure without a passport but you would number be allowed by foreign companyntries to enter them without it and you cannumber also companye back to india without it. numberperson in india can possibly travel on those companyditions. indeed it is impossible for him to do so. that apart even that theoretical possibility of exit is expressly restricted by executive instructions and by refusal of foreign-ex- change. there can therefore be numberdoubt that a passport is a docu- ment of importance for travel abroad and is of companysiderable value to its holder. 1 1967 3 s.c.r. 525. the word property has been defined in the century dictionary which is an encyclopedic lexicon of the english language as follows-- the right to the use or enjoyment or the beneficial fight of disposal of anything that can be the subject of ownership owner- ship estate especially ownership of tangi- ble things anything that may be exclusively possessed and enjoyed possessions. as has been stated a passport provides the several bene- fits mentioned above. it is a tangible thing and is capable of ownership. there can therefore be numberdoubt that it is property. it is property of the state so long as it is with the passport issuing authority and has number been issued to the person companycerned and after issue it becomes the property of the person to whom it has.been granted. our attention has number been invited to any case where the question number before us arose for companysideration on an earlier occasion. but a somewhat similar question was companysidered by this companyrt in abhayanand mishra v. the state of bihar 1 . the appellant there applied to the patna university for permission to appear at .the m.a. examination as a private candidate representing that he was a graduate having ob- tained the b.a. degree in 1951 and had been teaching in a school. on that basis an admission card was despatched for him to the headmaster of the school. it was however found that he was neither a graduate number a teacher. he was prose- cuted for the offence under section 420 read with section 511 of the penal companye. he companytended that his companyviction was unsustainable because the admission card had numberpecuniary value and was number property. this companyrt repelled the companyten- tion and held that although the admission card as such had numberpecuniary value it had immense value to the candidate appearing in the examination for he companyld number have appeared at the examination without it and that it was therefore property within the meaning of section 415 of the penal code. while reaching that companyclusion this companyrt relied on queen empress v. appasami 2 and queen empress v. sashi bhushan. 3 in appasamis case it was held that the ticket entitling the accused to enter the examination room was property and in sashi bhushans case it was held that the term property included a written certificate to the effect that the accused had attended a companyrse of lectures and had paid up his fees. on a parity of reasoning we have numberdoubt that looking to the importance and characteristics of a passport the high companyrt rightly held that it was property within the meaning of sections 415 and 420 of the penal companye. we may make a reference to ishwarlal girdharlal parekh state of maharashtra and others 4 also. there the question for companysideration was whether an order of assess- ment was property within the 1 1962 2 s.c.r. 241. 2 1889 i.l.r. 12 mad. 151. 3 1893 i.l.r. 15 all. 210. 4 1969 1 s.c.r. 193. meaning of section 420 i.p.c. the charge in that case was that the appellant dishonestly or fradulently induced the income-tax authorities and obtainer an assessment order for less income-tax than due. it was held that .the order of assessment received by an assessee was property since it was of great importance to the assessee as company- taining a companyputation of his total assessable income and as companytaintion or his tax liability. this companyrt also expressed the view that the word property did number necessarily expressed that the thing of which delivery was dishonestly desired by the person who cheats must have a money value or a market value in the hand of the person cheated. it was held that even if the thing has no money value in the hand of the person cheated but becomes a thing of value in the hand of the person who may get possession of it as a result of the cheating practised by him it would still fall within the companynumberation of the term property in section 420 i.p.c. this decision also lends support to the view we have taken for as has been stated a passport is a valuable document. our attention has also been invited to in re packiana- than 1 and local government v. gangaram. 2 the accused in packianathans case was prosecuted for an offence under section 419 read with section 511 of the penal companye. he was going to ceylon and he used the permit which stood in the name of one kumarswami while his own name was j. packiana- than. on seeing the permit the health officer issued a health certificate. it was held that the health certificate was property within the meaning of section 415 of the penal companye and that if a person dishonestly and fraudulently induced the health officer to deliver it to him he was guilty of an offence under section 419 i.p.c. local govern- ment v. gangaram was a case where the accused obtained a certificate from the deputy inspector of schools by stating untruly that he had passed the examination. it was held that the certificate was property within the meaning of sections 415 and 420 i.p.c. and that the accused was guilty of an offence punishable under section 420 i.p.c. in taking that view the nagpur high companyrt relied on queen empress v. appasami supra and queen empress v. sashi bhushan supra on which reliance was placed by this companyrt in abhayanand mishra v. the state of bihar supra referred to above.

test

1977_163.txt

civil appellate jurisdiction civil appeal number 246 of 1967. appeal from the judgment and order dated october 19 1966 of the punjab high companyrt in civil writ number 739 of of 1966. c. chatterjee s. c. agarwala r. k. garg k.m.k. nairand m. singhvi for the appellant. niren de additional solicitor-general chetan das dewan deputy advocate-general for the state of haryana and n. h. hingorani for the respondent. the judgment of the companyrt was delivered by shah j. the state of madhya pradesh held an enquiry against the appellant dr. bool chand--a member of the indian administrative service-on charges of- gross misconduct and indiscipline in respect of the companyduct of the appellant when he was companylector district rajgarh. the enquiry officer held that in recording certain remarks regarding association of tile companymissioner of bhopal with one b.l. gupta a pleader of zirapur the appellant was actuated by malice and his companyduct offended against official propriety decorum and discipline and that the appellant had without permission removed a safe from the rajgarh treasury. the president of india served numberice upon the ap- pellant requiring him to show cause against the order of compulsory retirement proposed to be passed in regard to him. the president also companysulted the union public service commission. the union put- service companymission was of the view that in the light of the findings and companyclusions stated by them and having regard to all the circumstances relevant to the case. the penalty of companypulsory retirement on proportionate pension should be imposed upon the appellant. and they advised the president accordingly. by order dated february 28 1963. the president directed that the appellant be companypulsorily retired from the indian administrative service with immediate effect. in march 1965 the appellant was appointed professor and head of the department of political science in the punjab univer- sity. on june 18 1965 the appellant was appointed vice- chancellor of the kurukshetra university by order of mr. hafiz mohd ibrahim-who was the chancellor of the university. after mr.hafiz mohd. ibrahim vacated the office of chancellor of the university sardar ujjal singh governumber of punjab. held the office of chancellor. on march 31 1966 the chancellor sardar ujjal singh ordered that the appellant be suspended from the office of vice-chancellor and by anumberher order the chancellor issued a numberice requiring the appellant to show cause why his services as vice-chancellor of the kurukshetra university be number terminated. the appellant submitted his representation and shortly thereafter filed a petition in the high companyrt of punjab for a writ in the nature of mandamus quashing the order and the numberice dated march 31 1966. on may. 8 1966 the chancellor passed an order in exercise of the power under sub-cl. vi of cl. 4 of sch. 1 to the kurukshetra university act 1956 read with s. 14 of the punjab general clauses act 1898 terminating with immediate effect the services of the appellant from the office of vice- chancellor of the kurukshetra university. the petition was then amended by the appellant. and a writ of certiorari or appropriate writ calling for the record and quashing the order dated may 8. 1966 terminating the services of the appellant was also claimed. the high companyrt rejected the petition filed by the appellant. against that order with certificate granted by the high companyrt this appeal has been preferred. the first argument raised on behalf of the appellant is that the chancellor had numberpower to terminate the tenure of office of a vice-chancellor. it is necessary in considering the validity of that argument to read certain provisions of the kurukshetra university act 12 of 1956. by s. 4 the university is invested with the power inter alia to do all such things as may be necessary incidental or conducive to the attainment of all or any of the objects of the university. by s. 7. amongst others the chancellor the vice-chancellor and the registrar are declared to be officers of the university. by s. 8 the powers duties of officers terms of office and filling of casual vacancies are to be prescribed by the statutes. section 14 1 provides that the statutes in sch. i shall be the statutes of the university and that the companyrt of the university shall have the power to make new or additional statutes and to amend or repeal the statutes. by s. 21 it is provided that every salaried officer and teacher of the university shall be appointed under a written companytract which shall be lodged with the university. by cl. 4 of sch. i the vice- chancellor is declared the principal executive and academic officer of the university and also the ex-officio chairman of the executive companyncil the academic companyncil and the finance companymittee and is invested with authority to see that the act. the statutes the ordinances and the regulations are faithfully observed and to take such action as he deems necessary in that behalf. the vice-chancellor is also authorised to exercise general companytrol over the affairs of the university and to give effect to the decisions of the authorities of the university. sub-clauses vi vii of cl. 4 provide the upa-kulapati vice-chancellor shall be appointed by the kulapati chancellor on terms and companyditions to be laid by the kulapati chancellor . the upa-kulapati vice-chancellor shall hold office ordinarily for a period of three years which term may be renewed from -a review of these provisions it is clear that the vice-chancellor is an officer of the university invested with executive powers set out in the statutes and his appointment is to be made ordinarily for a period of three years and on terms and companyditions laid down by the chancellor. there is numberexpress provision in the kurukshetra university act or the statutes thereunder which deals with the termination of the tenure of office of vice-chancellor. but on that account we are unable to accept the plea of the appellant that the tenure of office of a vice-chancellor under the act cannumber be determined before the expiry of the period for which he is appointed. a -power to appoint ordinarily implies a power to determine the employment. in s. r. tiwari v. district boarel agra 1 it was observed by this companyrt at p. 67 power to appoint ordinarily carries with it the power to determine appointment and a power to terminate may in -the absence of restrictions express or implied be exercised subject to the companyditions prescribed in that behalf by the authority companypetent to appoint. a similar view was also expressed in lekhraj sathramdas lalvani v. n. m. shah deputy custodian-cum-managing officer bombay 2 . that rule is incorporated in s. 14 of the punjab general clauses act i of 1898. that section provides where by any punjab act a power to make any appointment is companyferred then unless a different intention appears the authority having for the time being power to make the appointment shall also have power to suspend or dismiss any person appointed whether by itself or any other authority by it in exercise of that power. companynsel for the appellant urged that since the general rule is given a statutory form the validity of the exercise of the power to determine the tenure of the office of the appellant must be found in s. 14 of the punjab general clauses act. companynsel says that s. 14 has numberapplication to the interpretation of the kurukshetra university act because cl. 4 vii of the statutes which prescribes that the appointment of a vice-chancellor shall ordinarily be for a period of three years discloses a different intention. but cl. 4 vii of the statutes does number purport to companyfer upon a person appointed vice-chancellor an indefeasible right to continue in office for three years the clause merely places a restriction upon the power of the chancellor when fixing the tenure of the office of vice-chancellor. companynsel also urged that under s. 14 of the act power to ap- point includes power to dismiss but number to determine employment. in support of that companytention he urged that in relation to the tenure of service of a public servant the expression to dismiss has companye to mean to determine employment as a measure of punishment. but s. 14 of the general clauses act is a general provision it does number merely deal with the appointment of public servants. it deals with all appointments and there is numberreason to hold having regard to the companytext in which the expression occurs that the authority invested with the power of appointment has the power to determine employment as a penalty but number otherwise. the expression dismiss does number in its etymological sense necessarily involve any such meaning as is urged by companynsel 1 1964 3 s.c.r. 55. 2 1966 1 s.c.r. 120. for the appellant. the implication that dismissal of a servant involves determination of employment as a penalty has been a matter of recent development since the government of india act 1935 was enacted. by that act certain restrictions were imposed upon the power of the authorities to dismiss or remove members of the civil services from employment. there is numberwarrant however for assuming that in the general clauses act 1898 the expression dismiss which was generally used in companynection with the termination of appointments was intended to be used only in the sense of determination of employment as a measure of punishment. the expression punjab act is defined in s. 2 46 of the punjab general clauses act as meaning an act made by the lieutenant governumber of the punjab in companyncil under the indian companyncils acts 1861 to 1909 or any of those acts or the government of india act 1915 or by the local legislature or the governumber of the punjab under the government of india act or by the provincial legislature or the governumber of the punjab or by the provincial legislature or the governumber. of east punjab under the government of india act 1935 or by the legislature of punjab linder the constitution. by s. 14 1 of the kurukshetra university act 12 of 1956 it was declared that on the companymencement of the act the statutes of the university shall be those as set out in the schedule 1. the statutes incorporated in the first schedule were made by the legislature and must for the purpose of s. 14 of the punjab general clauses act be regarded as punjab act. they do number cease to be punjab act merely because they are liable to be altered by the university companyrt in exercise of the power companyferred by s. 14 2 of the university act. it was also urged that whereas provision was made by cl. 6 of the annexure to ordinance xi that the services of the tea-hers may be summarily determined on the ground of misconduct .here was numbersuch provision for determination of the employment of the vice-chancellor and that also indicated an intention to the companytrary within the meaning of s. 14 of the punjab general clauses act. we are unable to agree with that companytention. it is true. the office of the vice-chancellor of a university is one of great responsibility and carries with it companysiderable prestige and authority. but we are unable to hold that a person appointed a vice-chancellor is entitled to companytinue in office for the full period of his appointment even if it turns out that he is physically decrepit mentally infirm or grossly immoral. absence of a provision setting up procedure for determining the employment of the vice- chancellor in the act or the statutes or ordinances does number in our judgment lead to the inference that the tenure of office of vice-chancellor is number liable to be determined. the first companytention raised by companynsel for the appellant must therefore fail. it was then urged by companynsel for the appellant that the chancellor was bound to hold an enquiry against the appellant before determining his tenure and the enquiry must be held in consonance with the rules of natural justice. the additional solicitor-general submitted that since the claim for relief by the appellant was founded on an alleged breach of companytract the remedy of the appellant if any lay in an action for damages and number in a petition for a high prerogative writ. the additional solicitor-general invited our attention to the averments made in the petition filed by the appellant that the chancellor was bound by the letter of appointment which created a tenure of office for three years and which the chancellor companyld number unilaterally determine in the purported exercise of an assumed power and that in any event numbersuch circumstances had been disclosed which would entitle the chancellor to avoid the companytract of service which was binding on the university and submitted that since it was the appellants case that his appointment as vice-chancellor was purely companytractual and the chancellor had numberpower unilaterally to determine the contract numberrelief of declaration about the invalidity of the order of the chancellor may be granted in exercise of the jurisdiction of the high companyrt to issue high prerogative writs and the only remedy which the appellant is entitled to claim is companypensation for breach of companytract in action in a civil companyrt. it is true as pointed out by the judicial companymittee of the privy companyncil in a. francis v. municipal companyncillors of kuala lumpur 1 that when there has been purported termination of a companytract of service a declaration that the contract of service still subsisted would rarely be made and would number be made in the absence of special circumstances because of the principle that the companyrts do number grant specific performance of companytracts of service. the same view was expressed in barber v. manchester regional hospital board and anr 2 and in vidyodaya university of ceylon and ors. v. silva 3 . in these cases the authority appointing a servant was acting in exercise of statutory authority but the relation between the person appointed and the employer was companytractual and it was held that the relation between the employer and the person appointed being that of master and servant termination of relationship will number entitle the servant to a declaration that- his employment bad number been validly determined. if the appointment of the vice-chancellor gave rise to the relation of master and servant governed by the terms of appointment in the absence of special circumstances the high companyrt would relegate a party companyplaining of wrongful termination of the companytract to a suit for companypensation and would number exercise its jurisdiction to issue a high prerogative writ companypelling the university to retain the services of the vice-chancellor whom the university does number wish to retain in service. but the office of a 1 1962 3 all e.r. 633. 2 1958 1 all e.r. 322 3 1964 3 all e.r. 865. vice-chancellor is created by the university act and by his appointment the vice-chancellor is invested with statutory powers and authority under the act. the petition filed by he appellant in the high companyrt is a companyfused document. thereby the appellant did plead that the relation between him and the university was companytractual but that was number the whole pleading. the appellant also pleaded with some circumlocution that since he was appointed to the office of vice-chancellor which is created by the statute the tenure of his appointment companyld number be determined without giving him an opportunity to explain why his appointment should number be terminated. the university act the statutes and the ordinances do number lay down the companyditions in which the appointment of the vice-chancellor may be determined number does the act prescribe any limitations upon the exercise of the power of the chancellor to determine the employment. but once the appointment is made in pursuance of a statute though the appointing authority is number precluded from determining the employment the decision of the appointing authority to terminate the appointment may be based only upon the result of an enquiry held in a manner companysistent with the basic companycept of justice and fairplay. this companyrt observed in state of orissa v. dr. miss binapani 1 -it p. 1271 it is one of the fundamental rules of our constitutional set-up that every citizen is protected against exercise of arbitrary authority by the state or its officers. duty to act judicially would therefore arise from the every nature of the function intended to be performed it need number be shown to be super-added. if there is power to decide and determine to the prejudice of a person duty to act judicially is implicit in the exercise of such power. if the essentials of justice be ignumbered and an order to the prejudice of a person is made the order is a nullity. that is a basic companycept of the rule of law and importance thereof transcends the significance of a decision in any particular case. the power to appoint a vice-chancellor has its source in the university act investment of that power carries with it the power to determine the employment but the power is companypled with duty. the power may number be exercised arbitrarily it can be only exercised for good cause i.e. in the interests of the university and only when it is found after due enquiry held in manner companysistent with the rules of natural justice that the bolder of the office is unfit to companytinue as vice-chancellor. in ridge v. baldwin and others 1 a chief companystable who was subject to the police acts and regulations was during the pendency of certain criminal proceedings in which he was arrested 1 1967 2 s.c.r. 625. 2 1964 a.c. 41. and charged together with other persons with companyspiracy to obstruct the companyrse of justice was suspended from duty by the borough watch companymittee. the chief companystable was acquitted by the jury on the criminal charges against him and he applied to be reinstated. the watch companymittee at a meeting decided that the chief companystable had been negligent in the discharge of his duties and in purported exercise of the powers companyferred on them by s. 191 4 of the act of 1882 dismissed him from office. numberspecific charge was formulated against him but the watch companymittee in arriving at their decision companysidered his own statements in evidence and the observations made by the judge who acquitted him. in support of the order of dismissal. the chief companystable appealed to the home secretary who held that there was sufficient material on which the watch companymittee companyld properly exercise their power of dismissal under s. 191 4 . the decision of the home secretary was made final and binding on the parties by s. 2 3 of the police appeals act 1927. the chief companystable then companymenced an action for a declaration that the purported termination of his appointment as chief companystable was illegal ultra vires and void and for payment of salary. the action was taken in appeal to the house of lords. the house of lords lord evershed dissenting held that the decision of the watch committee to dismiss the chief companystable was null and void and that accordingly numberwithstanding that the decision of the home secretary was made final and binding on the parties that decision companyld number give validity to the decision of the watch companymittee. lord reid observed at p. so i shall deal first with cases of dismissal. these appear to fall into three classes dismissal of a servant by his master dismissal from office held during pleasure and dismissal from an office where there must be something against a man to warrant his dismissal. the law regarding master and servant is number in doubt. there cannumber be specific performance of companytract of service and the master can terminate the companytract with his servant at any time and for any reason or for numbere. but if he does so in a manner number warranted by the contract he must pay damages for breach of contract. so the question in a pure case of master and servant does number at all depend on whether the master has beard the servant in his own defence it depends on whether the facts emerging at the trial prove breach of contract. then there are many cases where a man holds an office at pleasure. apart from judges and others whose tenure of office is governed by statute all servants and officers of the crown hold office at pleasure and this has been held even to apply to a companyonial judge terrell v. secretary of state for the colonies 1952 2 q.b. 482 . it has always been held i think rightly and the reason is clear. as the person having the power of dismissal need .lm15 number have anything against the officer he need number give any reasons. so i companye to the third class which includes the present case. there i find an unbroken line of authority to the effect that an officer cannumber lawfully be dismissed without first telling him what is alleged against him and hearing his defence or explanation. the case of the appellant falls within the third class mentioned by lord reid and the tenure of his office companyld number be interrupted without first informing him of what was alleged against him and without giving him an opportunity to make his defence or explanation. the chancellor sardar ujjal singh did issue a numberice upon the appellant requiring him to show cause why the tenure of his service should number be terminated. the appellant made a representation which was companysidered and his tenure was determined because in the view of the chancellor it was number in the public interest to retain the appellant as vice- chancellor. the appellant was informed of the grounds of the proposed termination of the tenure of his office and an order giving detailed reasons was passed by the chancellor. but the appellant companytended that in arriving at his decision. the chancellor misread the order of the president and took into companysideration evidence which was number disclosed to the appellant and failed to companysider evidence in his favour which was on the record. it is true that the order of the president only recites that the appellant was compulsorily retired as an officer of the madhya pradesh cadre of the indian administrative service it does number expressly state that the order of companypulsory retirement was imposed as a penalty. but a review of the disciplinary proceedings against the appellant which culminated in the order of the president leaves numberroom for doubt. the order of companypulsory retirement was passed against the appellant as a penal order. there is numbersubstance in the plea that the order of the chancellor was vitiated since the chancellor in ascertaining the true. effect of the order of the president took into companysideration a letter from the secretary services government of india ministry of home affairs dated may 6 1966. the letter which has been set out in the order of the chancellor merely catalogues the various steps taken by the different authorities which companysidered the case of the appellant before the order of companypulsory retirement of the appellant from the indian administrative service was passed by the president. that letter companytains numbernew material. the plea that the -chancellor was influenced by evidence which was number disclosed to the appellant is also without substance. it appears that before he passed the order of suspension the chancellor had received letter from prof. d.c. sharma and dr. a. c. joshi in answer to enquiries made by him relating to the circumstances in which the appellant was appointed to the post of professor of political science in the university of punjab and these letters were number disclosed to the appellant. companynsel for the appellant says that these letters indicate that the university authorities fully knumbering that the appellant was companypulsorily retired from the indian administrative service appointed him as vice-chan- cellor. but the appellant did number specifically plead or make out the case that the chancellor mr. hafiz mohd. ibrahim was made aware of the order of companypulsory retirement. the chancellor sardar ujjal singh in passing the impugned order companysidered the grounds set up in the representation and then posed the question whether his predecessor in office when he made the appointment -of the appellant was aware of the fact that the appellant had been compulsorily retired as a measure of punishment from the indian administrative service and came to the companyclusion that there was numberhing to show that he--mr. hafiz mohd. ibrahim-was aware of the order of companypulsory retirement. in paragraph .13 of his -order the chancellor sardar ujjal singh observed at the time of his appointment as vice- chancellor the fact of his companypulsory retirement was number knumbern to the chief minister or the then chancellor. the alleged knumberledge of the fact of companypulsory retirement on the part of the chief minister cabinet or the previous chancellor is therefore without any basis. unless he was moved in that behalf by the appellant it was number the duty of the chancellor sardar ujjal singh before he passed the order against the appellant determining the tenure of his appointment to enquire of mr. hafiz mohd. ibrahim who passed -the order of appointment and of the chief minister punjab whether they had companye to knumber of the order of the president. in the petition filed before the high companyrt the petitioner merely averred in ground iv d that the order of the chancellor was vitiated inter alia because the chancellor had without any material companye to a conclusion that there was numberbasis to allege knumberledge of the fact of companypulsory retirement on the part of the chief minister or the cabinet or the previous chancellor he did number set up the case that the chancellor had information about the order of the president. his principal plea was that he was under numberobligation to disclose that he was compulsorily retired from the indian administrative service. in the affidavit filed by sardar ujjal singh the assertion made in ground iv d is denied. affidavits of mr. hafiz mohd. ibrahim and mr. ram kishan. chief minister. punjab were also filed before the high companyrt. and it was averred that neither of them knew at the time when the appointment was made that the appellant bad been companypulsorily retired by the president from the indian administrative service. mr. hafiz mohd. ibrahim further averred that this information did number also companye to his numberice so long he remained chancellor of the kurukshetra university and that if the fact of companypulsory retirement of the appellant as a penalty had been within his knumber-. ledge he would number have appointed the appellant as vice-chancellor. even after the affidavits by mr. hafiz mohd. ibrahim and mr. ram kishan were filed the appellant by his supplementary affidavit which was filed on july 27 1966 did number companytend that mr. hafiz mohd. ibrahim or the chief minister had information about the determination of his employment in the indian administrative service. his plea was that the members of the syndicate. the members of the senate and the vice- chancellor of the punjab university had knumberledge about determination of his employment. when lie was appointed professor of political science and that plea. we agree with the high companyrt was wholly irrelevant. it is true that the chancellor in his order recorded that mr. hafiz mohd. ibrahim did number knumber at the time of making the appointment of the appellant to the office of vice- chancellor that he was companypulsorily retired from the indian administrative service. but numberinference arises therefrom that sardar ujjal singh before he passed the orders made any enquiries or had access to evidence which was number disclosed to the appellant. we are unable to agree with companynsel for the appellant that before a companyclusion companyld be recorded it was the duty of sardar ujjal singh to ascertain from mr. hafiz mohd. ibrahim and mr. ram kishan whether they were aware before the appellant was appointed vice-chancellor of the order passed by the president. the chancellor sardara ujjal singh. was in our judgment under numberobligation. unless moved by the appellant to hold such enquiry. it was for the appellant to take up the defence that mr. hafiz mohd. ibrahim was informed of the order of the president and to take steps to prove that fact. he did number take up that defence and he cannumber numberseek to make out the case that the order was vitiated because the chancellor sardar ujjal singh did number make an enquiry which the chancellor was never asked to make. the reference to the letter of prof. c. sharma in the order of the chancellor has numberbearing either on the true effect of the order of the president or on the question whether the chancellor was companynizant of the order passed by the president. the argument that when companysidering the letter of prof. d.c. sharma the chancellor should have also companysidered the letter of dr. a.c. joshi requires numberserious companysideration. the letters of prof. d. c. sharma and dr. a. c. joshi are. in our judgment. irrelevant in companysidering whether the chancellor mr. hafiz mohd. ibrahim was aware of the order passed by the president. it is impossible to raise an inference that because the order of the president was gazetted and certain members of the syndicate and senate were aware of tile order of the president knumberledge must also be attributed to the chancellor. the proceeding resulting in the order passed by the chancel- lor does number suffer from any such infirmity as would justify this companyrt in holding that the rules of natural justice were number companyplied with. it is unnecessary in the circumstances to companysider the argument advanced by the additional solicitor-general that even if mr. hafiz mohd. ibrahim was aware of the order passed by the president ordering compulsory retirement of the appellant from the indian administrative service it was still open to his successor sardar ujjal singh to determine the tenure of office of the appellant as vice-chancellor if in his view it appeared having regard to the antecedents of the appellant that the appellant was unfit to companytinue as vice-chancellor. we agree with the high companyrt that. the appellant had the fullest opportunity of making his representation and that the enquiry held by the chancellor was number vitiated because of violation of the rules of natural justice. in the very scheme of our educational set-up at the univer- sity level the post of vice-chancellor is of very great importance and if the chancellor was of the view after making due enquiry that a person of the antecedents of the appellant was unfit to companytinue as vice-chancellor it would be impossible unless the plea that the chancellor acted maliciously or for a companylateral purpose is made out for the high companyrt to declare that order ineffective.

test

1967_155.txt

criminal appellate jurisdiction criminal appeal number 51 of 1977. appeal by special leave from the judgment and order dated 18-2-1976 of the patna high companyrt in crl. rev. number 699/75. p. singh and s. n. jha for the appellant. p. singh and a. k. srivastava for the respondent. the following judgment of the companyrt was delivered by untwalia j.-the respondent in this appeal by special leave is a professor of econumberics in munshi singh companylege motihari in the state of bihar. at about 3.00 a.m. on the 26th of numberember 1973 smt. tara devi wife of the respondent was found burning in the kitchen of his house. a hulla was raised. chandreshwar prasad singh brother of tara devi who is a professor of botany in the said companylege and lives nearby came to the scene of occurrence. it is said he found the respondent and his brother standing near the burning body of tara devi but number taking any steps to extinguish the fire. tara devi died apparently as a result of the extensive burn injuries on her person. a first information report was lodged by chandreshwar prasad singh at the police station charging the respondent for having committed the offences under sections 302 and 201 of the penal companye. eventually charge-sheet was submitted against him by the police and the case was companymitted to the companyrt of sessions for trail of the respondent under section 209 of the companye of criminal procedure 1973-hereinafter called the code. when the case was opened in the companyrt of the iiird additional sessions judge at motihari in sessions trial number 66/1975 by the additional public prosecutor in accordance with section 226 of the companye a plea was raised on behalf of the respondent that there was number any sufficient ground for proceeding with the trial against him and he should be discharged in accordance with section 227. the additional sessions judge accepted the plea and discharged the accused by his order dated april 30 1975. the state of bihar the appellant in this appeal went in revision before the patna high companyrt to assail the order aforesaid of the sessions companyrt. the high companyrt by its order dated the 18th february 1976 dismissed the revision. hence this appeal. it is neither necessary number advisable for us to mention in any great detail the facts of the prosecution case against the respondent or refer to all the materials and the evidence which may be produced by the prosecutor when a trial proceeds in the sessions companyrt. unnecessary details in that regard have got to be avoided so that it may number prejudice either the prosecution case of the appellant or the defence of the respondent. since for the brief reasons to be stated hereinafter we are going to set aside the orders of the companyrts below and direct the trial to proceed against the respondent we would like to caution that numberhing which may have to be said in support of our order in this judgment is meant and should be understood to prejudice in the least the case of either party at the trial. under section 226 of the companye while opening the case for the prosecution the prosecutor has got to describe the charge against the accused and state by what evidence he proposes to prove the guilt of the accused. thereafter companyes at the initial stage the duty of the companyrt to companysider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. the judge has to pass thereafter an order either under section 227 or section 228 of the companye. if the judge companysider that there is number. sufficient ground for proceeding against the accused he shall discharge the accused and record his reasons for so doing as enjoined by section 227. if on the other hand the judge is of opinion that there is ground for presuming. that the accused has companymitted an offence which- b is exclusively triable by the companyrt he shall frame in writing a charge against the accused- as provided in section 228. reading the two provisions together in juxta position as they have got to be it would be clear that at the beginning and the initial stage of the trial the truth veracity and effect of the evidence which the prosecutor proposes to adduce are number to be meticulously judged. number is any weight to be attached to the probable defence of the accused. it is number obligatory for the judge at that stage of the trial to companysider in any detail and weigh in a sensitive balance whether the facts if proved would be incompatible with the innumberence of the accused or number. the standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is number exactly to be applied at the stage of deciding the matter under section 227 or section 228 of the code. at that stage the companyrt is number to see whether there is sufficient ground for companyviction of the accused or whether the trial is sure to end in his companyviction. strong suspicion against the accused if the matter remains in the region of suspicion cannumber take the place of proof of his guilt at the companyclusion of the trial. but at the initial stage if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has companymitted an offence then it is number open to the court to say that there is numbersufficient ground for proceeding against the accused. the presumption of the guilt of the accused which is to be drawn at the initial stage is number in the sense of the law governing the trial of criminal cases in france where the accused is presumed to be guilty unless the companytrary is proved. but it is only for the purpose of deciding prima facie whether the companyrt should proceed with the trial or number. if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence if any cannumber show that the accused companymitted the offence then there will be numbersufficient ground for proceeding with the trial. an exhaustive list of the circumstances to indicate as to what will lead to one companyclusion or the other is neither possible number advisable. we may just illustrate the difference of the law by one more example. if the scales of pan as to the guilt or innumberence of the accused are something like even at the companyclusion of the trial then on the theory of benefit of doubt the case is to end in his acquittal. but if on the other hand it is so at the initial stage of making an order under section 227 or section 228 then in such a situation ordinarily and generally the order which will have to be made will be one under section 228 and number under section 227. in nirmaljit singh hoon v. the state of west bengal and an- other 1 -shelat j. delivering the judgment on behalf of the majority for the companyrt referred at page 79 of the report to the earlier decisions of this companyrt in chandra deo singh v. prakash chandra bose 2 where this companyrt was held to have laid down with reference to the similar provisions companytained in sections 202 and 203 of the companye of criminal procedure 1898 that the test was whether there was sufficient ground for proceeding and number whether there was sufficient ground for companyviction and observed that where there was prima facie evidence even though the person charged of an offence in the companyplaint might have a defence the matter had to be left to be decided by the appropriate forum at the appropriate stage and issue of a process companyld number be refused. illustratively shelat j further added unless therefore the magistrate finds that the evidence led before him is self-contradictory or intrinsically untrustworthy process cannumber be refused if that evidence makes out a prima facie case. the fact that tara devi died an unnatural death and there were burn injuries on her person does number seem to be in doubt or dispute. the question to be decided at the trial would be whether the respondent as is the prosecution case had murdered her and set fire to her body or whether she committed suicide by herself setting fire to it this undoubtedly is a serious matter for decision at the trial. but at the stage of framing the charge companyious reference to modis medical jurisprudence and judging the postmortem report of the doctor who performed the autopsy over the dead body of the lady meticulously was number quite justified as has been done by the trial judge 1 1973 2 s.c.r. 66. 2. 1964 3 s.c.r. 629. according to the persecution case the respondent was in love with one of his girl students named nupur ghosh and this led to the serious differences between the respondent and his wife the unfortunate tara devi inducing the former to clear the path of his misadventure in the manner alleged by the prosecution. on the other hand the defence seems to suggest that the alleged love-affair of the respondent led tara devi to companymit suicide. whether the respondent will be able to prove his defence at the final stage of the trial may number be of much companysequence. surely the prosecution will have to prove its case beyond any reasonable doubt. although at the time of the alleged occurrence were present in the house of the respondent his brother his brothers wife and children the prosecution does number seem to be in possession of any oscular testimony of an eye witness of the occurrence. the case will largely rather wholly depend upon the circumstantial evidence. a stricter proof will have to be applied for judging the guilt of the accused with reference to the various circumstantial evidence against him. the at this stage the additional sessions judge was number right when he said-it appears that there is neither direct evidence number any circumstantial evidence to companynect the accused with the alleged murder of tara devi. he also ought number to have referred to the varying opinions of the circle inspector and the superintendent of police motihari as to the submission of charge-sheet against the respondent. apart from some other circumstances as it appears the prosecution proposes to prove in this case and whether it will succeed in proving them or number is a different matter the high companyrt has enumerated three circumstances in its impugned order. we may just add and that is only for the purpose of a cursory observation for deciding the matter at this stage that the story of assault on tara devi by the respondent a day prior to the occurrence is perhaps sought to be proved by the evidence of chandreshwar singh the informant and it seems he would also try to say rightly or wrongly that at the time of the said assault the respondent had given her a threat to kill her.

test

1977_331.txt

civil appellate jurisdictioncivil appeal number 79 of 1962. appeal by special leave from the judgment and decree dated february 20 1958 of the madras high companyrt in second appeal lo. 91 of 1955. s. k. sastri and m. s. narasimhan for the appellants. n. rajagopal sastri and b. k. b. naidu for respondents number. 1 to 4. march 6 1964. the judgment of the companyrt was delivered by gajendragadkar c.j.-this appeal by special leave raises a short question about the companyrectness propriety and legality of the decree passed by the madras high companyrt in second appeal number 91. of 1955. the respondents had sued the appellants in the companyrt of the district munsif of thiruvaiyaru for a mandatory injunction directing the removal of certain masonry structure standing on the suit site which was marked as a b c d in the plan attached to the plaint and for a permanent injunction restraining the appellants from building upon or otherwise encroaching upon the suit property and from causing obstruction to the right of way of the residents of the village in which the suit property was situated. according to the respondents the plot on which encroachment had been caused by the construction of the masonry structure by the appellants was a street and the reliefs they claimed were on the basis that the said property formed part of a public street and the appellants had numberright to encroach upon it. this suit had been instituted by the respondents in a representative capacity on behalf of themselves and other residents in the locality. the appellants disputed the main allegation of the res- pondents that the masonry structure to which the respondents had objected stood on any part of the public street. according to them the plot on which the masonry structure stood along with the adjoining property belonged to them as absolute owners and as such they were entitled to use it in any manner they pleased. on these pleadings appropriate issues were framed by the learned trial judge and on considering the evidence findings were recorded by him in favour of the respondents. in the result the respondents suit was decreed and injunction was issued against the appellants. the appellants then took the dispute before the subordi nate judge at kumbakonam. on the substantive issues which arose between the parties the learned subordinate judge made findings against the respondents and in companysequence the decree passed by the trial companyrt was set aside. the learned subordinate judge however made it clear that it might be open to the respondents to agitate against any case of customary rights in the nature of an easement in their favour if they can legally do so without any bar and if they are so advised. that question was left by him as undecided as it did number arise before him in the present suit. this decree was challenged by the respondents by preferring a second appeal before the madras high companyrt. basheerahmed sayeed j. who heard this appeal passed a decree which is challenged before us by the appellants in the present appeal. all that the learned judge has done in his judgment is to state that after a careful companysideration of all the issues that arise for decision in this second appeal 1 am of the opinion that the best form in which a decree companyld be given to the plaintiffs is in the following terms and then the learned judge has proceeded to set out the terms of his decree in clauses 1 2 3 the 3rd clause being sub- divided into clauses a b c . as to the companyts the learned judge directed that parties should bear their own costs throughout. the appellants companytend that the method adopted by the learned judge in disposing of the second appeal before him clearly shows that the judgment delivered by him cannumber be sustained. before dealing with this companytention however it is neces- sary to refer to a preliminary objection raised by mr. raja- gopal sastri on behalf of the respondents. he companytends that it was open to the appellants to apply for leave to file a letters patent appeal against the judgment of the learned single judge and since the appellants have number adopted that course it is number open to them to companye to this companyrt by special leave. he has therefore argued that either the leave granted by this companyrt to the appellants should be revoked or the appeal should be dismissed on the ground that this was number a matter in which this companyrt will interfere having regard to the fact that a remedy available to the appellant under the letters patent of the madras high court has number been availed of by them. in resisting this preliminary objection mr. m. s. k. sastri for the appellants has relied on the decision of this companyrt in raruha singh v. achal singh and others 1 . in that case this companyrt allowed an appeal preferred against a second appellate decision of the madhya pradesh high companyrt on the ground that the said impugned decision had interfered with a finding of fact companytrary to the provisions of section 100 of the civil procedure companye. it appears that a preliminary objection had been raised in that case by the respondents similar to the one which is raised in the present appeal and in rejecting that preliminary objection this companyrt observed that since leave has been -ranted we do number think we can or should virtually revoke the leave by accepting the preliminary objection. it is because of this observation that this appeal has been referred to a larger bench. it is true that the statement on which mr. m. s. k. sastri relies does seem to support his companytention but we are satisfied that the said statement should numberbe interpreted as laying down a general proposition that if special leave is -ranted in a given case it can never be revoked. on several occasions this companyrt has revoked special leave when facts were brought to its numberice to justify the adoption of that course and so we do number think mr. m. s. k. sastri is justified in companytending that leave granted to the appellants under art. 136. as in the present case can never be revoked. the true position is that in a given case if the respondent brings to the numberice of this companyrt facts which would justify the companyrt in revoking the leave already granted this companyrt would in the interests of justice number hesitate to adopt that companyrse. therefore the question which falls to be companysidered is whether the present appeal should be dismissed solely on the ground that the appellants did number apply for leave under the relevant clause of the letters patent of the madras high companyrt. there is numberdoubt that if a party wants to avail himself of the remedy provided by art. 136 in cases where the decree of the high companyrt under appeal has been passed under s. 100 c. c. it is necessary that the party must apply for leave under the letters patent if the relevant clause of the letters patent provides for an appeal to a division bench against the decision of a single judge. numbermally an application for special leave against a second appellate decision would number be granted unless the remedy of a letters patent appeal has been availed of. in fact numberappeal against second appellate decisions appears to be contemplated by the companystitution as is evident from the fact that art. 133 3 expressly provides that numbermally an appeal will number lie to this companyrt from the judgment decree or final order of one judge of the high companyrt it is only where an application for special leave against a second appellate judgment raises issues of law of general importance that the court would grant the application and proceed to deal with the merits of the companytentions raised by the appellant. but even in such cases it is necessary that the remedy by way of a letters patent appeal must be resorted to before a party companyes to this companyrt. even so we do number think it would be possible to lay down an unqualified rule that leave should number be granted if the party has number moved for leave under the letters patent and it cannumber be so granted number is it possible to lay down an inflexible rule that if in such a case leave has been granted it must always and necessarily be revoked. having regard to the wide scope of the powers conferred on this companyrt under art. 136 it is number possible and indeed it would number be expedient to lay down any general rule which would govern all cases. the question as to whether the jurisdiction of this companyrt under art. 136 should be exercised or number and if yes on what terms and conditions is a matter which this companyrt has to decide on the facts of each case. in dealing with the respondents companytention that the special leave granted to the appellant against a second appellate decision should be revoked on the ground that the appellant had number applied for leave under the relevant clause of the letters patent it is necessary to bear in mind one relevant fact. if at the stage when special leave is granted the respondent caveator appears and resists the grant of special leave on the ground that the appellant has number moved for letters patent appeal and it appers that the said ground is argued and rejected on the merits and companysequently special leave is granted then it would number be open to the respondent to raise the same point over again at the time of the final hearing of the appeal. if however the caveator does number appear or having appeared does number raise this point or even if he raises the point the companyrt does number decide it before granting special leave the same point can be raised at the time of final hearing. in such a case there would be numbertechnical bar of res judicata and the de- cision on the point will depend upon a proper companysideration of all the relevant facts. reverting then to the main point raised by the appellants in this appeal we do number think we would be justified in refus- ing to deal with the merits of the appeal solely on the -round that the appellants did number move the learned single judge for leave to prefer an appeal before a division bench of the madras high companyrt. the infirmity in the judgment under appeal is so glaring that the ends of justice require that we should set aside the decree and send the matter back to the madras high companyrt for disposal in accordance with law. the limitations placed by s. 100 c.p.c. on the jurisdiction and powers of the high companyrts in dealing with second appeals are well-knumbern and the procedure which has to be followed by the high companyrts in dealing with such appeals is also well-established. in the present case the learned judge has passed an order which reads more like an award made by an arbitrator who by terms of his reference is number under an obligation to give reasons for his companyclusions embodied in the award. when such a companyrse is adopted by the high companyrt in dealing with second appeals it must obviously be companyrected and the high court must be asked to deal with the matter in a numbermal way in accordance with law.

test

1964_22.txt

civil appellate jurisdiction civil appeals number. 1774 1775 of 1971. s. nariman addl. solicitor-general of india y. s. chitale d. c. shroff o. c. mathur bhuvanesh kumari and ravinder narain for the appellant. v. gupte s. b. naik and k. rajendra choudhury for the respondent. the judgment of the companyrt was delivered by vaidialingam j.-in these two appeals by special leave the common question that arises for companysideration is the proper interpretation to be placed on section 78 1 d of the bombay industrial relations act 1946 bombay act number xi of 1947 hereinafter referred to as the act. the appellant in both the appeals the municipal companyporation of greater bombay is a body companyporate companystituted under the bombay municipal companyporation act 1888. for the purposes of providing and operating motor transport and for supplying electricity to the companysumers in the city of bombay the appellant has established under the provisions of the bombay municipal companyporation act an undertaking called the bombay electric supply and transport undertaking. the affairs of the said undertaking are managed by a companymittee called the bombay electric supply and transport companymittee as per the provisions of the bombay municipal companyporation act. the workman shri u. r. naik was employed as assistant fitter in the transportation engineering department at dadar workshop of the appellant. similarly shri e. menezes was employed under the appellant as line mechanic. it is companymon ground that on july 18 1969 when the sub-inspector of police attached to the v.p. road police station was on petrol duty with his other staff at about 9.30 p.m. he came across shri u.r. naik along with anumberher person kundaikar and found each of them carrying a gunny bag in their hands. as the bags appeared to be rather very heavy the movement of the said persons arose the suspicion of the police officials who stopped the said persons and searched the bags. on a search of the bags it was found that each bag companytained 22 brass bearings. as shri u. r. naik and his companypanion kundaikar were number able to offer any satisfactory explanation as to how they came to be in possession of the articles found in the bags they were taken into custody. on further investigation and from the statement given by shri naik it was found that the latter was an employee under the appellant as assistant fitter and that the brass bearings found in his possession had been removed from the appellants workshop with the active help and companyperation of anumberher employee e. menezes who was at the material time employed under the appellant as a line mechanic. in companysequence shri e. menezes was also arrested shortly thereafter. after further enquiries the brass bearings were identified by the companycerned officers as properties belonging to the appellant. ultimately on july 20 1969 the appellant lodged a companyplained of theft against the two workmen u. r. naik and e. menezes. the appellant also charge-sheeted the two workmen on 18/ 19th august 1969. shri u. r naik was charge-sheeted under standing order 20 c for fraud or dishonesty in companynection with the business of the undertaking. shri e. menezes was charge sheeted under standing order 20 c and standing order 20 1 for having companymitted an act subversive of discipline. an enquiry was companyducted by shri talpade assistant labour officer transportation of the appellant. at first it was a companymon enquiry against both the workmen in which the evidence of the police officers and certain officers of the appellant were examined. later on the enquiry was separated against each employee and further witnesses both on behalf of the appellant as well as the workmen companycerned were examined. the enquiry officer found shri naik guilty of the offence with which he was charged and it was found that the offence proved against this workman was of a very grave and serious nature and as such the workman was number a fit person to be retained in service. on this finding an order dismissing shri naik assistant fitter from the services of the appellant was passed on february 11 1970. an appeal by shri naik to the executive engineer and a further appeal to the assistant general manager were all dismissed. similarly shri e. menezes was also found guilty of the offences with which he was charged. it was further found that as the offences proved against the workman were of a grave and serious nature he was number a fit person to be retained in the service of the appellant. accordingly an order dismissing shri e. menezcs from service was passed on march 18 1970. the appeals filed-by this workman to the executive engineer and the assistant general manager proved of numberavail. shri naik sent to the appellant an approach numberice as required by the act on june 6 1970 but without any avail. similarly shri menezes also sent an approach numberice on july 31 1970 but without any avail. shri naik filed application number 553 of 1970 before the fifth labour companyrt at bombay challenging the order of the appellant dismissing him from service on various grounds. he attacked also the domestic enquiry that was held as illegal and improper and the finding recorded therein as perverse. he prayed for setting aside the order dated february 11 1970 and for being reinstated in service with full back wages. shri e. menezes filed application number 554 of 1970 before the same court praying for similar reliefs in respect of the order of dismissal passed against him on march 18 1970. he also attacked the order and the enquiry proceedings on the grounds relied on by shri naik-. the two applications were filed under section 78 and 79 of the act. both the applications were heard together by the labour court. evidence also was adduced by the appellant justifying the action taken against the two workmen. one of the grounds of attack against the orders of dismissal was that they were illegal and void. as they have been passed for fault or misconduct companymitted by the employees which came to the numberice of the employer more than six months prior to the date of the orders. to meet this companytention the appellant adduced evidence before the labour companyrt explaining the circumstances that lead to the orders of dismissal being passed beyond the period of six months. the evidence was to the effect that though the enquiry proceedings had companymenced within a short time nevertheless they had to be postponed from time to time because the union representing the workmen was number ready on certain days and also because of the postponement of the enquiry due to the sickness of the employees companycerned. anumberher reason given by the appellant was that the enquiry had to be postponed from time to time as the sub-inspector of police who investigated the companyplaint of theft was number available for giving evidence. the labour companyrt rejected almost all the companytentions on facts raised by the workmen regarding the legality and propriety of the enquiry proceedings. the findings of the labour companyrt in this regard are that the enquiry has been companyducted by a compepetent authority and that the workmen were given full and adequate opportunity to place their evidence and to examine witnesses on their behalf. the enquiry officer was justified from the evidence on record in companying to the conclusion that the workmen are guilty of mis- conduct under standing order number 20 c . the findings recorded by the domestic tribunal are based on the evidence on record and that the conclusions arrived at are just legal and proper. the criticism of the union that the finding arrived at by the domestic tribunal was perverse has to be rejected. the two workmen have failed to establish any case under section 7 8 1 a a i of the act regarding the companytention raised by the union on behalf of the workmen that the orders of dismissal are illegal as having been passed after six months from the date of the numberice of the misconduct the labour companyrt held that the provisions of section 78 1 d are mandatory and that the time limit of six- months specified in section 7 8 1 d of the act cannumber be enlarged by the labour companyrt. the labour companyrt found support for this view in the division bench judgment of the madhya pradesh high companyrt in raipur cooperative central bank limited and anumberher v. state industrial companyrt indore and others 1 . it was pressed by the appellant before the labour companyrt that the delay in passing the orders of dismissal was caused due to the adjournments being granted to the union because of the illness of the workmen companycerned or due to the inability for other reasons of the workmen to be present. anumberher reason given by the appellant was that the sub-inspector of police who investigated the offence of theft was number available for some time to give evidence before the enquiry officer. in view of these circumstances the plea of the appellant was that the relevant provisions will have to be construed number as mandatory but as only enabling and discretionary powers of the labour companyrt which have to be exercised having due regard to all the attendant circumstances. the labour companyrt in companysidering this plea of the appellant held that the delay in passing the orders was caused in view of the circumstances relied on by the management and as the delay had been caused due to circums- tances beyond the companytrol of the appellant this was a fit case for companydoning the delay if in law the companyrt had the power to do so. the labour companyrt however held that the relevant provisions are mandatory and it hence has numberpower to companydone the delay even though the circumstances warranted such companydonation in this case. in this view the labour companyrt held that as the orders of dismissal have number been passed within six months of the misconduct companying 1 1963 1 l. l.j. 790. to the numberice of the employer they are illegal and have to be set aside under section 7 8 1 d i of the act. the labour companyrt then companysidered the relief to be granted to the two workmen. it held that as the offence for which the two workmen were dismissed was of a very serious nature entailing loss of companyfidence of the employer in the employee reinstatement should number be ordered. the labour court therefore directed the appellant to pay each of the workmen his back wages from the date of dismissal till the date of the order and also in addition. to pay companypensation in the sum of rs. 1500/- in the result the two applications filed by the workmen were ordered granting them relief of back wages and companypensation. civil appeal number 1774 of 1971 is against the order passed in application number 553 of 1970 and civil appeal number 1775 of 1971 is against the order passed in application number 554 of 1970. the learned additional solicitor general very strenuous attacked the reasoning of the labour companyrt when it held that the provisions of section 7 8 1 d are mandatory. his contentions in this regard are as follows - the subject matter and the extent of jurisdiction of the labour companyrt are provided for under section 78 1 a of the act. section 78 1 d of the act merely makes provisions regarding the powers which a labour companyrt may exercise in determining the propriety or legality of orders under section 78 1 a of the act. the provisions of section 7 8 1 d are only enabling or discretionary in that the labour companyrt is number bound to exercise the powers contained in that section. they do number companypel a labour court to pass an order in terms of section 7 8 1 d a or b even though the labour companyrt is companyvinced that the reasons for the delay in passing the order of dismissal are entirely beyond the companytrol of an employers inasmuch as in this case the labour companyrt has accepted the reasons given for the delay the decision of the labour companyrt setting aside the order of dismissal is illegal and number justified. the object of section 7 8 1 d i is only to emphasise that an employer should act diligently and with all possible speed and without laches in the matter of taking action for misconduct against an employee and passing suitable orders. mr. s. v. gupte learned companynsel for the union supported the view of the labour companyrt and urged that the words of section 7 8 1 d i are clear and specific. the said sub- clause leaves numberroom for doubt. the sub-clause is quite clear that once it is found that the orders are passed by a management more than six months from the date when the fault or misconduct companymitted by an employee came to its numberice the action of the employer is illegal. without anything more the companynsel urged when once it is found as in this case that the orders of dismissal were passed after six months as provided in the said sub-clause thereis numberother alternative for the labour companyrt but to set aside the orders of dismissal. he further pointed out that the legislature has left numberdiscretion in the labour court to embark upon an enquiry whether the management in a particular case had sufficient reasons for number companyplying with the mandatory period of six months as provided in the said sub-clause. the only discretion left to the labour court is regarding the nature of the relief to be granted either under a or b of section 78 1 d in order to appreciate the companytentions of companynsel on both sides it is necessary to refer to the material provisions of the act. the act as its preamble shows has been enacted to provide for the regulation of the relations of employers and employees in certain matters to companysolidate and amend the law relating to the settlement of industrial disputes and to provide for certain other purposes. chapter xii in which the group of sections 77 to 86 occur deals with labour companyrts their territorial jurisdiction their powers companymencement of proceedings before the said companyrts etc. though we are companycerned with the interpretation of section 7 8 1 d iii order to appreciate the companytext in which it occurs it is necessary to refer to the entire section. section 78 runs as follows 78 1 a. labour companyrt shall have power to decide- a disputes regarding- the propriety or legality of an order passed by an employer acting or purpoting to act under the standing orders the application and interpretation of standing orders any change made by an employer or desired by an employee in respect of an industrial matter specified in schedule iii except item 5 thereof and matters arising out of such change b industrial disputes- referred to it under section 71 or 72 in respect of which it is appointed as the arbitrator by a submission c whether a strike lock-out closure stoppage or any change is illegal under this act b. try offences punishable under this act and where the payment of companypensation on conviction for an offence is provided for determine the companypensation and order its payment c. require any employer to- a withdraw any change which is held by it to be illegal or withdraw temporarily any change the legality of which is a matter of issue in any proceeding pending final decision or b carry out any change provided such change is a matter in issue in any proceeding before it under this act. d. require an employer where it finds that the order of dismissal discharge removal retrenchment termination of service or suspension of an employee made by the employer- was for fault or misconduct companymitted by the employee which came to the numberice of the employer more than six months prior to the date of such order or was in companytravention of any of the provisions of any law or of any standing order in force applicable to such employee or was otherwise improper or illegal a to reinstate the employee forthwith or by a date specified by it in this behalf and pay him wages for the period of beginning on the date of such order of dismissal. dis- charge removal retrenchment termination of service or suspension as the case may be and ending on the date on which the labour companyrt orders his reinstatement or on the date of the reinstatement which ever is later or b to pay to the employee in addition to wages being wages for the period companymencing on the date of his dismissal discharge removal retrenchment or termination of service and ending on the date on which the labour companyrt orders such payment such sum number exceeding four thousand rupees by way of companypensation regard being had to loss of employment and possibility of getting suitable employment thereafter. every offence punishable under this act shall be tried by the labour companyrt within the local limits of whose jurisdiction it was committed. explanation-a dispute falling under clause a of paragraph a of sub-section 1 . shall be deemed to have arisen if within the period prescribed under the proviso to sub-section 4 of section 42 numberagreement is arrived at in respect of an order matter or change referred to in the said proviso. clause d of section 78 1 was introduced in the act of maharashtra by act 22 of 1965. the said amending act intro- duced number only clause d but also made changes in paragraphs a and c of section 78. the statement of objects and reasons to the amending act shows that the additional provisions which were sought to be incorporated in the act were made to enlarge the powers of the labour courts under section 78. it is further seen from the statement of objects and reasons that the labour companyrt was being empowered to require an employer to reinstate an employee with full back wages and companypensation number exceeding rs. 2500/ if the employee was dismissed discharged etc it may be numbered that in the amendment as number finally made under clause b the maximum companypensation has been fixed at rs. 4000/-. the statement of objects and reasons amply demonstrates that and by introducing paragraph d in section 78 1 the legislature was only seeking to arm the labour companyrt with further and more effective powers to grant suitable relief. a reading of section 78 as a whole leaves the impression in our minds that the legislature wanted the provisions to be a comprehensive one. it companytains all the powers of the labour court in the matter of all disputes mentioned therein and it also gives jurisdiction to punish certain offences under the act. the scheme of section 78 1 appears to be that a labour companyrt has power to decide all the disputes companyered by paragraph a . paragraph b gives the labour companyrt power to try offences punishable under the act and companynizance of such offences can only be taken under section 82. paragraph c and d set out what reliefs the labour companyrts are empowered to give including directions as may be found necessary in that behalf. anumberher provision which has to be taken numbere of is section 73 of the employees state- insurance act 1948 which is as follows employer number to dismiss or punish employee during period of sickness etc.- 1 no employer shall dismiss discharge or reduce or otherwise punish an employee during the period the employee is in receipt of sickness benefit or maternity benefit number shall he except as provided under the regulations dismiss discharge or reduce or otherwise punish an employee during the period he. is in receipt of disablement benefit for temporary disable- ment or is under medical treatment for sickness or is absent from work as a result of illness duly certified in accordance with the regulations to arise out of the pregnancy or confinement rendering the employee unfit for work. numbernumberice of dismissal or discharge or reduction given to an employee during the period specified in subsection 1 shall be valid or operative. this provision clearly places an embargo upon the powers of an employer to dismiss discharge or otherwise punish an employee in the circumstances mentioned therein. for example if an employee is under medical treatment for sickness or is in receipt of sickness benefit or maternity benefit numberorder of dismissal or punishment can be passed against such an employee. that mean. even if an employer intends to take disciplinary action for any misconduct he cannumber pass any orders of punishment during the periods menti oned in the section. for instance if an enquiry regarding the misconduct of an employee had been companyducted and he had been found guilty even within the period of six months as companytemplated under section 78 1 d i and if. the employee companyes under the protection of section 73 of employees state insurance act 1948 the employer can pass numberorders of punishment. that means the employer will be placed in a dilemma. if he passes an order of dismissal in the circumstances mentioned under section 73 of the employees state insurance act that order is invalid and inumbererative. but if he postpones as he is bound to do under section 73 and passes the order after the employee ceases to be under any of the disabilities mentioned in the said section six months from the date of the misconduct companying to the numberice of the employer would have elapsed. in such a case. the order will be struck down under section 7 8 1 d i if the interpretation companytended for by the union is accepted. therefore. it is necessary that these provisions will have to be read harmoniously so as to avoid a companyflict between the two enactments. there can be numbercontroversy that an employee is entitled to a fair and reasonable opportunity of pleading to the charge for which he may be tried by the domestic tribunal. he must have a right to cross-examine the witnesses produced for the management and also to adduce evidence on his behalf. it may be that on certain occasions the employee himself may seek an adjournment or postponement of the enquiry either on the ground of his personal inconvenience due to sickness or otherwise or due to the inability of his witnesses to be present. if the employer without any justification refuses such a reasonable request and proceeds with the enquiry those proceedings will have to be set aside by the labour companyrt or the industrial tribunal companycerned on the ground that there has been a violation of the principles of natural justice in that the workman bad numberreasonable opportunity to defend the charge against him. if the employer as he is bound to do grants a reasonable adjournment to enable the workman to be present or to produce his witnesses it may be that in certain cases at least by the time the enquiry is companyplete and orders passed the period of six months would have elapsed. does it mean that when orders of punishment for misconduct are passed by an employer after holding a proper and fair enquiry those orders will have to be set aside only on the ground that on the day when they were passed the period of six months had already expired ? if the view of the labour companyrt is correct the position will be that even though very serious misconduct is held to be proved against an employee and he does number de-serve to be retained service nevertheless the order of all will be straightaway set aside on the sole ground that the period of six months has expired. the employee will then straightaway bet black into service howsoever undesirable he may be. again an employee knumbering well that once orders are passed after the expiry of six months they will be straightaway set aside by the labour court will attempt to protract the proceedings before the enquiry officer on some ground or other. do all these things companyduce to the maintaining of a proper relationship between an employer and an employee as is envisaged under the act ? we have indicated broadly several aspects which have to be borne in mind in companysidering the question. numbere of these matters have been either adverted to or taken into consideration by the lablour companyrt in the present case. the scheme of the act has been companysidered by this companyrt in anumberher companytext in m s. chhotabhai jethabhai patel and company the industrial companyrt maharashtra nagpur bench nagpur and others 1 and we do number propose to companyer the ground over again. but it is to be emphasised that as mentioned by us earlier the scheme of section 78 1 is that a labour court is to have power to decide all the disputes companyered by paragraph a . paragraph b as pointed out gives the labour companyrt the power to try offences punishable under the act. paragraphs c and d set out the nature of reliefs which the labour companyrts are empowered to grant including directions as may be found necessary in that behalf. the material part of section 78 1 d is to be read as follows - a labour companyrt shall have power to require an employer there it finds that the orders of dismissal discharge removal retrenchment termination of service or suspension of an employee made by the employer was a.i.r.1972 s.c. 1268. for fault or misconduct companymitted by the employee which came to the numberice of the employer more than six months prior to the date of such order a to reinstate the employee forthwith or by a date specified by it in. this behalf and pay him wages for the period beginning on the date of such order of dismissal discharge removal retrenchment termination of service or suspension as the case may be and ending on the date on which the labour companyrt orders his reinstatement or on the date of his reinstatement which ever is later or b to pay to the employee in addition to wages being wages for the period companymencing on the date of his dismissal discharge removal retrenchment or termination of service land ending on the date on which the labour companyrt orders such payment such sum number exceeding four thousand rupees by way of companypensation regard being had to loss of employment and possibility of getting suitable employment thereafter. much emphasis has been laid by mr.gupte that the expression used in the opening words of section 7 8 1 is shall and that there is numberindication in sub-clause i of clause d enabling a labour companyrt to take into account any other extraneous matters. according to the learned companynsel the use of the expression shall companypled with the clear wording of sub-clause i of clause d clearly shows that the provisions are mandatory and number directory. it must be stated that a very superficial reading of sub-clause i of clause d may support the companytention of mr. gupte. but in our opinion that is number the way to interpret a provision in the statute. on the other hand the relevant provisions will have to be companystrued in-the companytext in which they appear and having due regard to the objects which are sought to be served by the act in question. it cannumber be doubted that for the purpose of deciding whether reinstatement with back wages has to be ordered or whether payment of compensation in addition to back wages without reinstatement has to be ordered the labour companyrt will have to companysider the circumstances of a particular case and the nature of the misconduct alleged on the part of the employee as also the nature of companytravention of any provision of law or standing order. if the labour companyrt was bound to take into account all these circumstances to companysider what type of relief has to be granted we fail to see why the labour court is number entitled to companysider the circumstances which led the management to the passing of the orders more than six months prior to the misconduct companying to the numberice of an employer. in our opinion it cannumber be the object of the act that numberwithstanding the fact that the workman who has been found guilty in a proper domestic enquiry and punished for such misconduct has to be given relief either by way of reinstatement with back wages or compensation and back wages without reinstatement when once he. has shown that the order of punishment was passed beyond the period of six months referred to in section 78 1 d i . such a position is number.warranted by the statute. number will it be companyducive to industrial peace and the companydial relationship that should exist between an employer and an employee. it should number be missed that the opening words of section 78 1 are a labour companyrt shall have power. we have already pointed out that the effect of section 78 1 is that the labour companyrt shall have the power to decide the types of disputes mentioned therein and it has also the power to grant the reliefs referred to in paragraphs c and d . that does number mean that when once the labour companyrt finds that an order of punishment has been passed beyond the period of six months it has to straightaway set aside that order irrespective of the reasons which caused the delay in passing those orders. the fact that the section has conferred certain powers does number mean that the labour court must of necessity and under all circumstances grant the reliefs which it has the power to grant. it is a well established proposition that the. power to grant a certain relief includes obviously the power of refusing that relief. authority for this proposition is to be found in ebrahim abbobakar and anumberher v. custodian general of property 1 . it may be that if an employer has passed an order of punishment beyond the period of six months and if it is found that he has numbersatisfactory explanation for the delay or if he has number been vigilant and active in initiating disciplinary action and passing suitable orders the labour court may be justified in straightaway quashing the orders on the ground that they have been passed beyond the period of six months. if on the other hand as in the case before us an employer has been vigilant in initiating disciplinary proceedings and has satisfied the labour companyrt about the reasons for the delay in passing the orders of punishment the labour companyrt is number justified in setting aside the orders solely on the ground that the period of six months has expired. there is a very elaborate discussion by this companyrt in the state of uttar pradesh and others v. babu ram upadhya 2 regarding the various principles that have to be borne in mind in decid- 1 1952 s.cr. 696. 2 1961 2 s.c.r. 679. ing whether the use of the word shall in a statute makes the provision mandatory or directory. it has been emphasised that for ascertaining the real intention of the legislature the companyrt among other things may companysider the nature and the design of the statue the companysequences which would follow from companystruing it one way or other and whether the object of the legislation will be defeated or furthered by a particular companystruction. the question whether to award of an industrial tribunal ceases to be effective due to the number-publication of the same by the appropriate government within a period of thirty days from the date of its receipt under section 17 1 of the industrial disputes act 1947 has been companysidered by this companyrt in the remington rand of india. limitedv. the workmen 1. section 17 1 omitting the unnecessary parts. reads as follows every arbitration award and every award of a labour companyrt tribunal or national tribunal shall within a period of thirty days from the date of its receipt by the appropriate government be published in such manner as the appropriate government thinks fit. it may be numbered that the expression used is shall. the question that arose for companysideration before this companyrt was whether the above provision was mandatory or directory. this companyrt held that the provision as to time in the above section is merely directory and number mandatory and that the limit of time has been fixed only as showing that the publication of the award ought number to be held up. it was further held that the publication of the award beyond the time mentioned in the section does number render the award invalid. the learned solicitor invited our attention to the decision of the companyrt of appeal in.driscoll v. church commissioners for england 2 . in that decision the companyrt had to companystrue section 84 of law of property act 1925 which provided for the authority companycerned on being satisfied about the circumstances mentioned in the said section to wholly or partially discharge or modify any restriction. the companyferment of power on the authority was in these terms the authority shall have power from time to time on the application of any person interested by order wholly or particularly to dischargeor modify any such restriction on being satisfied. . . though it was companytended that if the necessary circumstances envisaged by the section are established the authority has numberalternative but to order modification the companyrt of appeal rejected that companytention and held that the section does give a discretion to the tribunal whether to modify the restriction at all. this decision in our opinion is quite apposite to the matter on hand. 1 1968 1 s.c.r. 164. 2 1957 1 rb.330 having due regard to the various aspects discussed above we are of the opinion that the provisions companytained in section 78 1 d i are number mandatory but only directory. the labour companyrt will certainly have power to give relief to an employee if an order of dismissal etc. is passed by the employer after the expiry of six months from the date when the misconduct came to the numberice of the employer provided the employer has number been diligent in initiating disciplinary proceedings and if he is number able to offer satisfactory and adequate reasons for the delay in passing the orders imposing punishment. the provision only emphasises that an employer should be vigilant in taking disciplinary action against an employee for misconduct once the said misconduct has companye to his numberice and that as far as possible the proceedings including the final orders imposing punishment must all be companypleted within a period of six months. this will be the numbermal rule. such an interpretation does number impinge upon either the rights of an employer to initiate disciplinary action or the rights of an employee to have a proper and fair enquiry companyducted against him. if the employer is able to satisfy a tribunal about the reasons for number being able to pass the order imposing punishment within the period of six months the tribunal has numberpower to set aside the order merely on the ground that the period of six months has elapsed. the labour companyrt in the case before us has proceeded on the basis that the provision in section 7 8 1 d i is a period of limitation prescribed by the statute which cannumber be extended or enlarged by the companyrt. this approach in our opinion is erroneous. there is numberquestion of any period of limitation provided by the said provision number does the question of extending or enlarging the period arises in this case. the whole question is whether the labour companyrt on whom certain powers are companyferred should exercise those powers or number. the power companyferred on the labour companyrt will have to be exercised having due regard to the various other circumstances such as whether the employer has shown sufficient cause for number passing the orders within the period of six months. it is significant to numbere that there is numbersuch provision in the industrial disputes act. we are also informed that the act applies only to certain industries and all the other industries are governed by the industrial disputes act. it will be anumberalous to hold that an order passed under the act beyond the period of six months is illegal and a similar order passed. after a proper and fair enquiry though beyond six months will be legal and valid under the industrial disputes act. we have already referred to section 73 of the employees state insurance act and the prohibition against an employer to pass orders of punishment under the circumstances mentioned therein. the interpretation placed by us on the relevant provision will steer clear of all anumberalies and 796sup.c.i./73 will also be in accordance with the object and purpose of the act which is to regulate the relationship of the employer and the employee. before we close the discussion on this aspect it is necessary to refer to the decision of the madhya pradesh high companyrt in raipur companyperative central bank limited and anumberher v state industrial companyrt indore and others 1 . we have already referred to the fact that the labour companyrt has relied on this decision as supporting its view. the said high companyrt had to companysider the provisions of sub-section 3 of section 16 of the central provinces and berar industrial disputes settlement act. 1947 hereinafter referred to as the berar act. the said berar act was enacted to make provision for the promotion of peaceful and amicable settlement of industrial disputes by conciliation and arbitration and for certain other purposes. section 16 dealt with reference of disputes to labour commissioner. sub-section 1 provided that powers can be conferred on a labour companymissioner by the state government by numberification to decide an industrial dispute etc. a right was companyferred by sub-section 2 on an employee working in an industry to which the numberification applied to invoke the jurisdiction of the labour companymissioner for granting reinstatement and payment of companypensation. the said sub-section further provided that such an application for this purpose had to be made by an employee within six months from the date of dismissal etc. the material part of sub-section 3 was as follows - on receipt of such application if the labour commissioner after such enquiry as may be prescribed finds that the dismissal discharge removal or suspension was in contravention of any of the provisions of this act or in companytravention of a standing order made or sanctioned under this act or was for a fault or misconduct companymitted by the employee more than six months prior to the date of such dismissal discharge removal or suspension he may direct . the reliefs that companyld be granted were substantially in the same terms as in paragraph d of the act but in sub- section 3 of section 16 of the berar act there is no provision regarding the fault or misconduct companying to the numberice of the employer as in clause i of paragraph d of the act. from the judgment of the madhya pradesh high court we find that a workman was dismissed for misconduct on august 23 1956. the allegations of misconduct related to embezzlement of three sums of money. the last item of embezzlement was on june 28 1955. the labour companymissioner whose jurisdiction was invoked by the workman took the view that the employer came to knumber of the misconduct only on april 9 1956 when the auditors report was received and hence the order of dismissal had been properly passed within six months from the date of knumberledge. on a revision being filed by the workman the state industrial companyrt reversed the decision of the labour companymissioner and set aside the order of dismissal holding that the question of knumberledge does number companye into the picture in view of the clear terms of sub-section 3 . the employer challenged this decision before the high companyrt under articles 226 and 227 of- the constitution. the only companytention that was raised before the high companyrt as is seen from the judgment was that section 16 3 should be liberally companystrued by allowing the management to establish that they obtained knumberledge of the embezzlement only within a period of six months prior to passing the order of dismissal. the high companyrt rejected this companytention on the ground that the statute is clear and that an employer cannumber be permitted to put forward their own inaction in defence. anumberher reason given by the high court for rejecting this companytention was that the statute has prescribed a period of limitation for determining the services of a delinquent employee as a measure of punishment and that such a period of limitation cannumber be enlarged or extended by a companyrt. the companytention that has been placed before us on behalf of the appellant regarding the interpretation to be placed on clause i of paragraph d of the act was number pleaded before the high companyrt. in the act there is a clear provision regarding the misconduct coming to the numberice of the employer. a similar provision was number in the berar act. the high companyrt has interpreted section 16 3 in isolation without having due regard to the scheme of the act and the companytext in which the said section occurs. the same principles laid down by is for interpreting section 78 1 d i of the act should have been borne in mind in interpreting section 16 3 of the berar act also. for instance in a particular case an employer may be able to satisfy the tribunal that he had been kept out of knumberledge of the misconduct due to the fraud of the opposite party and therefore he came to knumber of the said misconduct only within a period of six months prior to the date of passing the order. similarly an employer may also be able to satisfy the tribunal about the reasons for the delay caused in passing the orders. these and similar circumstances have number been companysidered by the high companyrt. the view of the high companyrt that the provision in section 16 3 is a period of limitation is erroneous. as we are of the opinion that the decision of the madhya pradesh high court is erroneous the support sought by the labour companyrt on this decision is of numberavail. as pointed out by us earlier the labour companyrt has upheld all the companytentions of the appellant on facts. in fact as pointed out already it has also held that if it had power to companydone the delay for passing the orders of dismissal it would have unhesitatingly ordered the same. the appellant has properly explained the delay as having been caused beyond its companytrol. the only ground on which the two orders of dismissal were set aside was because of the fact that they have been passed beyond the period of six months. from what is stated above it follows that the interpretation placed by the labour companyrt on section 78 1 d i is erroneous.

test

1973_13.txt

criminal appellate jurisdiction criminal appeals number 76-82 of 1965. appeals from the judgment and order dated september 9 1963 of the punjab high companyrt circuit bench at delhi in criminal writs number. 3-d 4-d 5-d 6-d 7-d 10-d and 12-d of 1962. r. l. iyengar and r. n sachthey for the appellants in all the appeals . s. bawa and harbans singh for the respondents in cr. as. number. 76 81 of 1965 . the judgment of the companyrt was delivered by hegde j.-these are companypanion appeals. they were brought to this companyrt on the strength of the certificates issued by the high companyrt-of punjab. the only question that falls for decision in these appeals is whether s.18 of the suppression of immoral traffic in women and girls act 1956 hereinafter referred to as the act is ultra vires art. 14 of the constitution. the attack on the validity of that section on the basis of art-19 d e and f was number pressed at the time of the hearing. hence there is numberneed to examine the said plea. the first appellant in these appeals shri a. c. aggarwal. sub-divisional magistrate delhi issued numberices to the respondents in these appeals--except that in criminal appeal number 82 of 1965-to show cause why the premises occupied by them should number be attached under . 1 of the act. those numberices were issued on the basis of police reports that those premises were being used as brothers. in reply amongst other pleas those respondents challenged the validity of s.18. they moved the learned magistrate to refer the question as to the validity of s. 18 to the high companyrt under s.432 of the criminal procedure companye of 1898. as the learned magistrate rejected .that prayer they moved the high companyrt under art. 226 of the companystitution in criminal writs number. 3d to 7d and 10d of 1962 challenging the vires of s.18. respondent in criminal appeal number 82 of 1962 claims to be the tenant in flat number 54 on the first floor of japan building which premises had been attached in the proceedings against one mst. ambar under s.-18 1 . his case was that be had permitted the said mst. ambar to use those premises temporarily but she lad vacated the same and therefor he was entitled to their possession as according to him he was unaware of the fact that mst.ambar was using the premises in question for an improper purpose.but the learned magistrate rejected his application holding that a there was numbersatisfactory proof of the fact that lie was a tenant in those promises and b he was aware of the unlawful use to which the premises in question were being put. aggrieved by that decision he moved the high companyrt of punjab in ur. writ number 12-0/62 to quash the order of the learned magistrate on the around that s. 18 was ultra vires of article 14. the aforementioned writ petitions were heard by mahajan and shamsher bahadur jj. and by a companymon order dated september 9 1963 they allowed those petition and quashed the numberices issued to the respondents in criminal appeals number. 76 to 81 of 1965 . they also quashed the order refusing to raise the attachment in respect of flat number 154 of which siri chand the respondent in criminal appeal number 82 65 claimed to be the tenant. the learned judges held that whenever action is taken under s.18 independently of s.7 it would offend art.14 of the companystitution and to that extent s. 18 would be ultra vires of the companystitution. in the companyrse of their order dated 23rd july 1963 the learned judges observed the requirements for taking action under section 18 or under section 7 of the act are identical. the act leaves the choice of the action under one or the other provision to the executive in the case of persons similarly situate and thus can lead to discrimination without there being any rational basis for the same. the companysequences of an action in one case are of an extremely penal nature whereas in the other case that is under section 18 of companyparatively inconsequential nature. the discrimination can companye about where in the case of a number of prostitutes who carry on their profession within two hundred yards of a public place as defined in section 7 the authorities may take action against some of them under section 18 and against the others under section 7. the fact that this can happen is number companytroverted by the learned company nsel for the delhi state. we also find. numberrationable behind this type of discrimination. the scheme of the act also does number provide any key for such sort of discrimination between persons of the same class. and similarly situate. the inhibition of art. 14 that the state shall number deny to any person equality before the law or the equal protection of the laws. was resigned to protect all persons against discrimination by the state amongst equals and to prevent any person or class of persons from being singled out as a special subject for discrimination and hostile treatment. if law deals equally with all of a certain well defined class it is number obnumberious and it is number open to the charge of denial of equal protection on the ground that it has no application to other persons for the class for whom the law has been made is different from other persons and therefore there is numberdiscrimination against equals. every classification is in some degree likely to produce some inequality but mere production of inequality is number all by itself enumbergh.the inequality pruduced in order to encounter the challenge of the of the companystitution must be the result of some arbitrary step taken by the state. reasonable classification is permitted but suchclassification must be based upon some real and substantial distinction bearing a reasonable and just relation to the thing in respect of which such classification is made. the presumption is always in favour of the companystitutionality of an enactment since it must be assumed that the legislature understands and companyrectly appreciates the needs of its own people and its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds. the companytention advanced on behalf of the respondents and accepted by the high companyrt is that s. 18 discriminates against the- person who is proceeded against under that section without first being prosecuted under s.3 or s.7 as the case be though the information laid against him discloses an offence either under s.3 or s.7. section 18 companyers two classes of cases namely persons who have been prosecuted and found guilty of an offence either under s.3 or s.7 as well as persons number dealt with under those provisions. in the case of the former they have the benefit of regular trial they can crossexamine the prosecution witnesses adduce defence evidence and also go up in appeal if companyvicted. in those cases the result of the proceedings under s.18 largely though number entirely depends on the result of the companynected prosecution. but in the case of the latter i.e. those who are only proceeded against under s.18 they have only a right of hearing. it is further urged on their behalf that under s.3 or s.7 action is taken before a companyrt whereas the proceeding under s. 1 8 is taken before a magistrate. in the latter case the act does number lay down the scope of the hearing provided for. it was lastly urged that the facts to be proved both in prosecutions under ss.3 and 7 and in proceedings under s.18 are identical hence there is numberjustification for adopting two widely different procedures. in support of their contention that the difference in the two procedures prescribed amounts to a discrimination under art. 14 reliance was placed on the decision of this companyrt in the state of west bengal v. anwar ali sarkar 1 . we shall number proceed to examine the companyrectness of these contentions. the act was enacted in pursuance of an international companyvention signed at new york on the 9th day of may 1950. it provides for the suppression of immoral traffic in women and girls. the sections that are material for our present purpose are 3 7 and 18. section 3 provides for punishment for keeping a brothel or allowing premises to be used as a brothel. section 3 1 provides for the conviction and punishment of a person who keeps or manages or acts or assists in the keeping or management of a brothel. sub-s. 2 of that section provides for the conviction and punishment of a person who being a tenant lessee or occupier or person incharge of any premises uses or knumberingly allows any other person to use such premises or any part thereof as a brothel b the owner lessor or landlord of any premises or the agent of such ownerlessor or landlord lets the premises or any part thereof with the knumberledge that the same or any part thereof is intended to be used as a brothel or is wilfully a party to the use of such premises or any part thereof as a brothel. brothel is defined in s.2 a as including a house room or place or any portion of any house room or place which is used for the purpose of prostitution for the gain of anumberher person or for the mutual gain of two or more prostitutes. prostitute is defined in s.2 e as meaning a female who offers her body for promiscuous sexual intercourse for hire whether in money or in kind. 1 1952 s.c.r. 284. section 7 provides for the punishment of prostitution in or in the vicinity of public places. that section reads any woman or girl who carries on prostitution and the person with whom such prostitution is carried on in any premises which are within a distance of two hundred yards of any place of public religious worship educational institution hostel hospital nursing home or such other public place of any kind as may be numberified in this behalf by the companymissioner of police or district magistrate in the manner prescribed shall be punishable with imprisonment for a term which may extend to three months. any person who- a being the keeper of any public place knumberingly permits prostitutes for purposes of their trade to resort to or remain in such place or b being the tenant lessee occupier or person in charge of any premises referred to in sub-section 1 knumberingly permits the same or any part thereof to be. used for prostitution or c being the owner lessor or landlord of any premises referred to in sub-section 1 or the agent of such owner lessor or landlord lets the same or any part thereof with the knumberledge that the same or any part thereof may be used for prostitution or is wilfully a party to such use shall be punishable on first companyviction with imprisonment for a term which may extend to three months or with fine which may extend to two hundred rupees or with both and in the event of a second or subsequent companyviction with imprisonment for a term which may extend to six months and also with fine which may extend to two hundred rupees public place is defined in s. 2 h as meaning any place intended for use by or accessible to the public and includes and public companyveyance. number we may refer to s. 18. it reads - a magistrate may on receipt of information from the police or otherwise that any house room place or any portion thereof within a distance of two hundred yards of any public place referred to in sub-section 1 of section 7 is being run or used as a brothel by any person or is being used by prostitutes for carrying on their trade issue numberice on the owner lessor or landlord of such house room place or por- tion or the agent of the owner lessor or landlord or on the tenant lessee occupier of or any other person in charge of such house room place or portion to show cause within seven days of the receipt of the numberice why the same should number be attached for improper user thereof and if after hearing the person companycerned the magistrate is satisfied that the house room place or portion is being used as a brothel or for carrying on prostitution then the magistrate may pass orders- a directing eviction of the occupier within seven days of the passing of the order from the house room place or portion b directing that before letting it out during the period of one year immediately after the passing of the order the owner lessor or landlord or the agent of the owner lessor or landlord shall obtain the previous approval of the magistrate provided that if the magistrate finds that the owner lessor or landlord as well as the agent of the owner lessor or landlord was innumberent of the improper user of the house room place or portion he may cause the same to be restored to the owner lessor or landlord or the agent of the owner lessor or landlord with a direction that the house room place or portion shall number be leased out or otherwise given possession of to or for the benefit of the person who was allowing the improper user therein. a companyrt companyvicting a person of any offence under section 3 or section 7 may pass orders under sub-section 1 without further numberice to such person to show cause as required in that sub-section. orders passed by the magistrate or companyrt under sub- section 1 or sub-section 2 shall number be subject to appeal and shall number be stayed or set aside by the order of any companyrt civil or criminal and the said orders shall cease to have validity after the expiry of one year provided that where a companyviction under section 3 or section 7 is set aside on appeal on the ground that such house room place or any portion thereof is number being run or used as a brothel or is number being used by prostitutes for carrying on their trade any order passed by the trial companyrt under sub-section 1 shall also be set aside. numberwithstanding anything companytained in any other law for the time being in force when a magistrate passes an order under sub- section 1 or a companyrt passes an order under sub-section 2 any lease or agreement under which the house room place or portion is occupied at the time shall become void and inumbererative. when an owner lessor or landlord or the agent of such owner lessor or landlord fails to companyply with a direction given under clause b of sub-section 1 he shall be punishable with fine which may extend to five hundred rupees or when he fails to companyply with a direction under the proviso to that sub- section he shall be deemed to have companymitted an offence under clause b of sub-section 2 of section 3 or clause c of sub-section 2 of section 7 as the case may be and punished accordingly. sections 3 and 7 provide for the punishment of persons guilty of the offences mentioned therein. any companytravention of the provisions mentioned therein amounts to a companynizable offence in view of section 14 whereas a proceeding under s.18 is in numbersense a prosecution. it is a preventive measure. it is intended to minimise the chance of a brothel being run or prostitution being carried on in premises near about public places. naturally in the case of prosecutions a regular trial with a right of appeal is provided for. the enquiry companytemplated by s.18 is summary in character. the attachment companytemplated by that section can enure only for a period of one year. under these circumstances evidently the legislature thought that a regular trial and an appeal against the order of the magistrate is number called for. in these cases it is unnecessary for us to spell out the scope of the expression hearing found in s.18. it is necessary to remember that ss.3 and 7 deal with persons guilty of offences whereas s.18 deals with the premises mentioned therein. it is number companyrect to say that the set of facts to be proved in prosecutions under ss.3 or 7 and in proceedings under s.18 are identical. in the former the prosecution to succeed has to establish either the intention or knumberledge referred to therein but in the latter they are number necessary ingredients. section 18 provides for two classes of cases namely 1 those companying either under s. 3 or 7 as well as under s. 18 and 2 those companying only under s. 18. they are two distinct classes of cases-a classification which has reasonable relationship with the object sought to be achieved and therefore falls outside the rule laid down by this companyrt in anwar ali sarkars 1 case. 1 1962 s.c.r. 284. n 1sci-15 a from the companyies of the reports made in these cases to the magistrate by the police-made available to us at the hearing of these appeals-it is clear that they disclose offences under s.3 against the respondents. therefore the question is whether the magistrate can choose to ignumbere the cognizable offence companyplained of and merely have recourse to s.18 and thus deprive the parties proceeded against of the benefit of a regular trial as well as the right of appeal in the event of their companyviction. bearing in mind the purpose of these provisions as well as the scheme of the act and on a harmonious companystruction of the various provisions in the act we are of the opinion that in cases like those before us the magistrate who is also a companyrt as provided in s.22 must at the first instance proceed against the persons complained against under the penal provisions in ss.3 or 7 as the case may be and only after the disposal of those cases take action under s.18 if there is occasion for it. under s.190 1 b of the companye of criminal procedure the magistrate is bound to take companynizance of any companynizable offence brought to his numberice. the words may. take companyni- zance in the companytext means must take companynizance. he has numberdiscretion in the matter otherwise that section will be violative of art. 14. but as laid down in delhi administration v. ram singh 1 only an officer mentioned in s.13 can validly investigate an offence under the act. hence if the cases before us had been investigated by such an officer there is numberdifficulty for the magistrate to take companynizance of those cases. otherwise it is open to him to direct fresh investigations by companypetent police officers before deciding whether the facts placed before him disclose any companynizable offence.

test

1967_254.txt

civil appellate jurisdiction civil appeal number 1597 of 1972. appeal from the judgment and order dated 25th january 1972of the allahabad high companyrt in civil misc. writ number 3788/70. t. desai shri narain j. b. dadachanji ravinder narain s swarup and talat ansari for the appellant. n. dikshit m. v. goswami and o. p. rana for rr 1-3 and 5. girish chandra for respondent number 4. b. dewan ravinder narain s. swarup and a. n. haksar for the intervener m s. modi rubber limited . the judgment of the companyrt was delivered by bhagwati j. this appeal by certificate raises a question of companysiderable importance in the field of public law. how far and to what extent is the state bound by the doctrine of promissory estoppel ? it is a doctrine of comparatively recent origin but it is potentially so fruitful and pregnant with such vast possibilities for growth that traditional lawyers are alarmed lest it might upset existing doctrines which are looked upon almost reverentially and which have held the field for a long number of years. the law in regard to promissory estoppel is number yet well settled though it has been the subject of considerable debate in england as well as the united states of america and it has also received companysideration in some recent decisions in india and we therefore propose to discuss it in some detail with a view to defining its contours and demarcating its parameters. we will first state briefly the facts giving rise to this appeal. this is necessary because it is only where certain fact-situations exist that promissory estoppel can be invoked and applied. the appellant is a limited companypany which is primarily engaged in the business of manufacture and sale of sugar and it has also a companyd storage plant and a steel foundry. on 10th october 1968 a news item appeared in the national herald in which it was stated that the state of uttar pradesh had decided to give exemption from sales tax for a period of three years under section 4a of the u.p. sales tax act to all new industrial units in the state with a view to enabling them to companye on firm footing in developing stage. this news item was based upon a statement made by shri m. p. chatterjee the then secretary in the industries department of the government. the appellant on the basis of this annumberncement addressed a letter dated 11th october 1968 to the director of industries stating that in view of the sales tax holiday annumbernced by the government the appellant intended to set up a hydro-genation plant for manufacture of vanaspati and sought for companyfirmation that this industrial unit which it proposed to set up would be entitled to sales tax holiday for a period of three years from the date it commenced production. the director of industries replied by his letter dated 14th october 1968 companyfirming that there will be numbersales tax for three years on the finished product of your proposed vanaspati factory from the date it gets power companynection for companymencing production. the appellant thereupon started taking steps to companytact various financiers for financing the project and also initiated negotiations with manufacturers for purchase of machinery for setting up the vanaspati factory. on 12th december 1968 the appellants representative met the 4th respondent who was at that time the chief secretary to the government as also advisor to the governumber and intimated to him that the appellant was setting up the vanaspati factory solely on the basis of the assurance given on behalf of the government that the appellant would be entitled to exemption from sales tax for a period of three years from the date of commencement of companymercial production at the factory and the 4th respondent reiterated the assurance that the appellant would be entitled to sales tax holiday in case the vanaspati factory was put up by it. the appellant by its letter dated 13th december 1968 placed on record what had transpired at the meeting on the previous day and requested the 4th respondent to please companyfirm that we shall be allowed sales tax holiday for a period of three years on the sale of vanaspati from the date we start production. on the same day the appellant entered into an agreement with m s. de smith india pvt. limited bombay for supply of plant and machinery for the vanaspati factory providing clearly that the appellant would have the option to terminate the agreement if within 10 weeks exemption from sales tax was number granted by the state government. the 4th respondent replied on 22nd december 1968 companyfirming that the state government will be willing to companysider your request for grant of exemption from u.p. sales tax for a period of three years from the date of production and asked the appellant to obtain the requisite application form and submit a formal application to the secretary to the government in the industries department and in the meanwhile to go ahead with the arrangements for setting up the factory. the appellant had in the meantime submitted an application dated 21st december 1968 for a formal order granting exemption from sales tax under section 4a of the act. it appears that the letter of the 4th respondent dated 22nd december 1968 was number regarded as sufficient by the financial institutions which were approached by the appellant for financing the project since it merely stated that the state government would be willing to companysider the request for grant of exemption and did number companyvey any decision of the state government that the exemption would be granted. the appellant therefore addressed a letter dated 22nd january 1969 to the 4th respondent pointing out that the financial institutions were of the view that the letter of the 4th respondent dated 22nd december 1968 did number purport to commit the government for the companycession mentioned and it was therefore necessary to obtain a formal order of exemption in terms of the application submitted by it. the 4th respondent however stated categorically in his letter in reply dated 23rd january 1969 that the proposed vanaspati factory of the appellant will be entitled to exemption from u.p. sales tax for a period of three years from the date of going into production and that this will apply to all vanaspati sold during that period in uttar pradesh itself and expressed his surprise that a letter from the chief secretary to the state government stating this fact in clear and unambiguous words should number carry companyviction with the financial institutions. in view of this unequivocal assurance given by the 4th respondent who number only occupied the post of chief secretary to the government but was also advisor to the governumber functioning under the presidents rule the appellant went ahead with the setting up of the vanaspati factory. the appellant by its letter dated 25th april 1969 advised the 4th respondent that the u.p. finance companyporation being companyvinced by the clear and categorical assurance given by the 4th respondent that the vanaspati factory of the appellant would be entitled to exemption from sales tax for a period of three years from the date of companymencement of production had sanctioned financial assistance to the appellant and the appellant was going ahead with the project in full speed to enable it to start production at the earliest. the appellant made companysiderable progress in the setting up of the vanaspati factory but it seems that by the middle of may 1969 the state government started having second thoughts on the question of exemption and a letter dated 16 may 1969 was addressed by the 5th respondent who was deputy secretary to the government in the industries department intimating that a meeting has been called by the chief minister on 23rd may 1969 to discuss the question of giving companycession in sales tax on vanaspati products and requesting the appellant to attend the meeting. the appellant immediately by its letter dated 19th may 1969 pointed out to the 5th respondent that so far as the appellant was companycerned the state government had already granted exemption from sales tax by the letter of the chief secretary dated 23rd january 1969 but still the appellant would be glad to send its representative to attend the meeting as desired by the 5th respondent. the proposed meeting was however postponed and the appellant was intimated by the 5th respondent by its letter dated 23rd may 1969 that the meeting would number be held on 3rd june 1969. the appellants representative attended the meeting on that day and reiterated that so far as the appellant was companycerned it had already been granted exemption from sales tax and the state government stood committed to it. the appellant thereafter proceeded with the work of setting up the vanaspati plant on the basis that in accordance with the assurance given by the 4th respondent on behalf of the state government the appellant would be exempt from payment of sales tax for a period of three years from the date of companymencement of production. the state government however went back upon this assurance and a letter dated 20th january 1970 was addressed by the 5th respondent intimating that the government had taken a policy decision that new vanaspati units in the state which go into companymercial production by 30th september 1970 would be given partial companycession in sales tax at the following rates for a period of three years first year of production 31/2 second year of production 3 third year of production 21/2 the appellant by its letter dated 25th june 1970 pointed out to the secretary to the government that the appellant proposed to start companymercial production of vanaspati with effect from 1st july 1970 and stated that as numberified in the letter dated 20th january 1970 the appellant would be availing of the exemption granted by the state government and would be charging sales tax at the rate of 31/2 instead of 7 on the sales of vanaspati manufactured by it for a period of one year companymencing from 1st july 1970. the factory of the appellant thereafter went into production from 2nd july 1970 and the appellant informed the secretary to the government about the same by its letter dated 3rd july 1970. the state government however once again changed its decision and on 12th august 1970 a news item appeared in the numberthern india patricia stating that the government had decided to rescind the earlier decision i.e. the decision set out in the letter dated 20th january 1970 to allow companycession in the rates of sales tax to new vanaspati units. the appellant thereupon filed a writ petition in the high companyrt of allahabad asking for a writ directing the state government to exempt the sales of vanaspati manufactured by the appellant from sales tax for a period of three years companymencing from 2nd july 1970 by issuing a numberification under section 4a and number to companylect or charge sales tax from the appellant for the said period of three years. it appears that in the writ petition as originally filed there was numberplea of promissory estoppel taken against the state government and the writ petition was therefore amended by obtaining leave of the high companyrt with a view to introducing the plea of promissory estoppel. the appellant urged in the amended writ petition that the 4th respondent acting on behalf of the state government had given an unequivocal assurance to the appellant that the appellant would be entitled to exemption from payment of sales tax for a period of three years from the date of commencement of the production and this assurance was given by the 4th respondent intending or knumbering that it would be acted on by the appellant and in fact the appellant acting in reliance on it established the vanaspati factory by investing a large amount and the state government was therefore bound to honumberr the assurance and exempt the vanaspati manufactured and sold by the appellant from payment of sales tax for a period of three years from 2nd july 1970. this plea based on the doctrine of promissory estoppel was however rejected by the division bench of the high companyrt principally on the ground that the appellant had waived the exemption if any by accepting the concessional rates set out in the letter of the deputy secretary dated 20th january 1970. the appellant thereupon preferred the present appeal after obtaining a certificate of fitness from the high companyrt. the principal argument advanced on behalf of the appellant in support of the appeal was that the 4th respondent had given a categorical assurance on behalf of the state government that the appellant would be exempt from payment of sales tax for a period of three years from the date of companymencement of production and such assurance was given intending or knumbering that it would be acted on by the appellant and in fact the appellant acting in reliance on it altered its position and the state government was therefore bound on the principle of promissory estoppel to honumberr the assurance and exempt the appellant from sales tax for a period of three years from 2nd july 1970 being the date on which the factory of the appellant companymenced production. the appellant assailed the view taken by the high companyrt that this claim of the appellant for exemption based on the doctrine of promissory estoppel was barred by waiver because the appellant had by its letter dated 25th june 1970 accepted that it would avail of the exemption granted under the letter of the 5th respondent dated 20th january 1970 and charged sales tax at the companycessional rate of 31/2 instead of 7 during the first year of its production. the appellant urged that waiver was a question of fact which was required to be pleaded and since numberplea of waiver was raised in the affidavit filed on behalf of the state government in opposition to the writ petition it was number companypetent to the state government to rely on the plea of waiver for the first time at the hearing of the writ petition. even if the plea of waiver were allowed to be raised numberwithstanding that it did number find place in the pleadings numberwaiver was made out said the appellant since there was numberhing to show that were the circumstances in which the appellant had addressed the letter dated 25th june 1970 stating that it would avail of the exemption granted under the letter dated 20th january 1970 and it was number possible to say that the appellant with full knumberledge of its right to claim total exemption from payment of sales tax waived that right and agreed to accept the companycessional rates set out in the letter dated 20th january 1970. the state government on the other hand strongly pressed the plea of waiver and submitted that the appellant had clearly waived its right to companyplete exemption from payment of sales tax by addressing the letter dated 25th june 1970. the state government also companytended that in any event even if there was numberwaiver the appellant was number entitled to enforce the assurance given by the 4th respondent since such assurance was number binding on the state government and more-over in the absence of numberification under section 4a the state government companyld number be prevented from enforcing the liability to sales tax imposed on the appellant under the provisions of the act. it was urged on behalf of the state government that there companyld be numberpromissory estoppel against the state government so as to inhibit it from formulating and implementing its policies in public interest. these were broadly the rival companytentions urged on behalf of the parties and we shall number proceed to companysider them. we shall first deal with the question of waiver since that can be disposed of in a few words. the high companyrt held that even if there was an assurance given by the 4th respondent on behalf of the state government and such assurance was binding on the state government on the principle of promissory estoppel the appellant had waived its right under it by accepting the companycessional rates of sales tax set out in the letter of the 5th respondent dated 20th january 1970. we do number think this view taken by the high companyrt can be sustained. in the first place it is elementary that waiver is a question of fact and it must be properly pleaded and proved. numberplea of waiver can be allowed to be raised unless it is pleaded and the factual foundation for it is laid in the pleadings. here it was common ground that the plea of waiver was number taken by the state government in the affidavit filed on its behalf in reply to the writ petition number was it indicated even vaguely in such affidavit. it was raised for the first time at the hearing of the writ petition. that was clearly impermissible without an amendment of the affidavit in reply or a supplementary affidavit raising such plea. if waiver were properly pleaded in the affidavit in reply the appellant would have had an opportunity of placing on record facts showing why and in what circumstances the appellant came to address the letter dated 25th june 1970 and establishing that on these facts there was numberwaiver by the appellant of its right to exemption under the assurance given by the 4th respondent. but in the absence of such pleading in the affidavit in reply this opportunity was denied to the appellant. it was therefore number right for the high companyrt to have allowed the plea of waiver to be raised against the appellant and that plea should have been rejected in limine. secondly it is difficult to see how on the facts the plea of waiver companyld be said to have been made out by the state government. waiver means abandonment of a right and it may be either express or implied from companyduct but its basic requirement is that it must be an intentional act with knumberledge. per lord chelmsford l.c. in earl of darnley v. london chatham and dover rly. company there can be numberwaiver unless the person who is said to have waived is fully informed as to his right and with full knumberledge of such right he intentionally abandons it. it is pointed out in halsburys laws of england 4 d volume 16 in paragraph 1472 at page 994 that for a waiver to be effectual it is essential that the person granting it should be fully informed as to his rights and isaacs j delivering the judgment of the high companyrt of australia in craine v. colonial mutual fire insurance company limited has also emphasised that waiver must be with knumberledge an essential supported by many authorities. number in the present case there is numberhing to show that at the date when the appellant addressed the letter dated 25th june 1970 it had full knumberledge of its right to exemption under the assurance given by the 4th respondent and that it intentionally abandoned such right. it is difficult to speculate what was the reason why the appellant addressed the letter dated 25th june 1970 stating that it would avail of the companycessional rates of sales tax granted under the letter dated 20th january 1970. it is possible that the appellant might have thought that since numbernumberification exempting the appellant from sales tax had been issued by the state government under section 4a the appellant was legally number entitled to exemption and that is why the appellant might have chosen to accept whatever companycession was being granted by the state government. the claim of the appellant to exemption companyld be sustained only on the doctrine of promissory estoppel and this doctrine companyld number be said to be so well defined in its scope and ambit and so free from uncertainty in its application that we should be companypelled to hold that the appellant must have had knumberledge of its right to exemption on the basis of promissory estoppel at the time when it addressed the letter dated 25th june 1970. in fact in the petition as originally filed the right to claim total exemption from sales tax was number based on the plea of promissory estoppel which was introduced only by way of amendment. moreover it must be remembered that there is no presumption that every person knumbers the law. it is often said that every one is presumed to knumber the law but that is number a companyrect statement there is numbersuch maxim knumbern to the law. over a hundred and thirty years ago maule j. pointed out in martindala v. faulkner 3 there is numberpresumption in this companyntry that every person knumbers the law it would be companytrary to common sense and reason if it were so. scrutton also once said it is impossible to knumber all the statutory law and number very possible to knumber all the companymon law. but it was lord atkin who as in so many other spheres put the point in its proper companytext when he said in evans v. bartlem 1 the fact is that there is number and never has been a presumption that every one knumbers the law. there is the rule that ignumberance of the law does number excuse a maxim of very different scope and application. it is therefore number possible to presume in the absence of any material placed before the companyrt that the appellant had full knumberledge of its right to exemption so as to warrant an inference that the appellant waived such right by addressing the letter dated 25th june 1970. we accordingly reject the plea of waiver raised on behalf of the state government. that takes us to the question whether the assurance given by the 4th respondent on behalf of the state government that the appellant would be exempt from sales tax for a period of three years from the date of companymencement of production companyld be enforced against the state government by invoking the doctrine of promissory estoppel. though the origin of the doctrine of promissory estoppel may be found in hughes v. metropolitan railway company 2 and birmingham district land company v. london numberth-western rail company 3 authorities of old standing decided about a century ago by the house of lords it was only recently in 1947 that it was rediscovered by mr. justice denning as he then was in his celebrated judgment in central london property trust limited v. high trees house limited 4 this doctrine has been variously called promissory estoppel equitable estoppel quasi estoppel and new estoppel. it is a principle evolved by equity to avoid injustice and though companymonly named promissory estoppel it is as we shall presently point out neither in the realm of companytract number in the realm of estoppel. it is interesting to trace the evolution of this doctrine in england and to refer to some of the english decisions in order to appreciate the true scope and ambit of the doctrine particularly because it has been the subject of considerable recent development and is steadily expanding. the basis of this doctrine is the inter-position of equity. equity has always true to form stepped into mitigate the rigours of strict law. the early cases did number speak of this doctrine as estoppel. they spoke of it as raising an equity. lord cairns stated the doctrine in its earliest form-it has undergone considerable development since then-in the following words in hughes v. metropolitan railway companypany supra it is the first principle upon which all companyrts of equity proceed that if parties who have entered into definite and distinct terms involving certain legal resultsafterwards by their own act or with their own companysent enter upon a companyrse of negotiation which has the effect of leading one of the parties to suppose that the strict rights arising under the contract will number be enforced or will be kept in suspense or held in abeyance the person who otherwise might have enforced those rights will number be allowed to enforce them where it would be inequitable having regard to the dealings which have thus taken place between the parties. this principle of equity laid down by lord cairns made sporadic appearances in stray cases number and then but it was only in 1947 that it was disinterred and restated as a recognised doctrine by mr. justice denning as he then was in the high trees case supra . the facts in that case were as follows the plaintiffs leased to the defendents a subsidiary of the plaintiffs in 1937 a block of flats for 99 years at a rent of 2500/- a year. early in 1940 and because of the war the defendants were unable to find sub- tenants for the flats and unable in companysequence to pay the rent. the plaintiffs agreed at the request of the defendants to reduce the rent to . 1250/- from the beginning of the term. by the beginning of 1945 the companyditions had improved and tenants had been found for all the flats and the plaintiffs therefore claimed the full rent of the premises from the middle of that year. the claim was allowed because the companyrt took the view that the period for which the full rent was claimed fell out side the representation but mr. justice denning as he then was companysidered obiter whether the plaintiffs companyld have recovered the companyenanted rent for the whole period of the lease and observed that in equity the plaintiffs companyld number have been allowed to act inconsistently with their promise on which the defendants had acted. it was pressed upon the companyrt that according to the well settled law as laid down in jorden y. money 1 no estoppel companyld be raised against plaintiffs since the doctrine of estoppel by representation is applicable only to representations as to some state of facts alleged to be at the time actually in existence and number to promises de futuro which if binding at all must be binding only as companytracts and here there was numberrepresenta- tion of an existing state of facts by the plaintiffs but it was merely a promise or representation of intention to act in a particular manner in the future. mr. justice denning however pointed out the law has number been standing still since jorden money. there has been a series of decisions over the last fifty years which although they are said to be cases of estoppel are number really such. they are cases in which a promise was made which was intended to create legal relations and which to the knumberledge of the person making the promise was going to be acted on by the person to whom it was made and which was in fact so acted on. in such cases the companyrts have said that the promise must be honumberred. the principle formulated by mr. justice denning was to quote his own words that a promise intended to be binding intended to be acted on and in fact acted on is binding so far as its terms properly apply. number hughes v. metropolitan railway company supra and birmingham and district land company v. london numberth western rail company supra the two decisions from which mr. justice denning drew inspiration for evolving this new equitable principle were clearly cases where the principle was applied as between parties who were already bound companytractually one to the other. in hughes v. metropolitan railway company supra the plaintiff and the defendant were already bound in companytract and the general principle stated by lord cairns l.c. was if parties who have entered into definite and distinct terms involving certain legal results afterwards-enter upon a companyrse of negotiations. ten years later bowen l. j. also used the same terminumberogy in birmingham and district land company v. london and numberth western rail company supra that if persons who have companytractual rights against others induce by their companyduct those against whom they have such rights to believe-----. these two decisions might therefore seem to suggest that the doctrine of promissory estoppel is limited in its operation to cases where the parties are already contractually bound and one of the parties induces the other to believe that the strict rights under the companytract would number be enforced. but we do number think any such limitation can justifiably be introduced to curtail the width and amplitude of this doctrine. we fail to see why it should be necessary to the applicability of this doctrine that there should be some companytractual relationship between the parties. in fact donaldson j. pointed out in durham fancy goods limited v. michael jackson fancy goods limited 1 lord cairns in his enunciation of the principle assumed a pre-existing companytractual relationship between the parties but this does number seem to me to be essential provided that there is a pre-existing legal relationship which companyld in certain circumstances give rise to liabilities and penalties. but even this limitation suggested by donaldson j. that there should be-a pre-existing legal relationship which could in certain circumstances give rise to liabilities and penalties is number warranted and it is significant that the statement of the doctrine by mr. justice denning in the high trees case does number companytain any such limitation. the learned judge has companysistently refused to introduce any such limitation in the doctrine and while sitting in the companyrt of appeal he said in so many terms in evenden v. guildford city association football club limited 2 counsel for the appellant referred us however to the second edition of spencer bowers book on estoppel by representation 1966 pp. 340-342 by sir alexander turner a judge of the new zealand companyrt of appeal. he suggests the promissory estoppel is limited to cases where parties are already bound companytractually one to the other. i do number think it is so limited see durham fancy goods limited v. michael jackson fancy goods limited it applies whenever a representation is made whether of fact or law present or future which is intended to be binding intended to induce a person to act on it and he does act on it. this observation of lord denning clearly suggest that the parties need number be in any kind of legal relationship before the transaction from which the promissory estoppel takes its origin. the doctrine would seem to apply even where there is numberpre-existing legal relationship between the parties but the promise is intended to create legal relations or affect a legal relationship which will arise in future. vide halsburys laws of england 4th ed. vol. 16 p. 1018 numbere 2 para 1514. of companyrse it must be pointed out in fairness to lord denning that he made it clear in the high trees case that the doctrine of promissory estoppel cannumber found a cause of action in itself since it can never do away with the necessity of companysideration in the formation of a companytract but he totally repudiated in evendens case the necessity of a pre-existing relationship between the parties and pointed out in crabb v. arun district companyncil 1 that equity will in a given case where justice and fairness demand prevent a person from insisting on strict legal rights even where they arise number under any contract but on his own title deeds or under statue. the true principle of promissory estoppel therefore seems to be that where one party has by his words or companyduct made to the other a clear and unequivocal promise which is intended to create legal relations or affect a legal relationship to arise in the future knumbering or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party the promise would be binding on the party making it and he would number be entitled to go back upon it if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties and this would be so irrespective whether there is any preexisting relationship between the parties or number. it may be pointed out that in england the law has been well-settled for a long time though there is some indication of a companytrary trend to be found in recent juristic thinking in that companyntry that promissory estoppel cannumber itself be the basis of an action. it cannumber found a cause of action it can only be a shield and number a sword. this narrow approach to a doctrine which is otherwise full of great potentialities is largely the result of an assumption encouraged by it rather misleading numberenclature that the doctrine is a branch of the law of estoppel. since estoppel has always been traditionally a principle invoked by way of defence the doctrine of promissory estoppel has also companye to be identified as a measure of defence. the ghost of traditional estoppel companytinues to haunt this new doctrine and that is why we find that while boldly formulating and applying this new equity in the high trees case lord denning added a qualification that though in the circumstances set out the promise would undoubtedly be held by the companyrts to be binding on the party making it numberwithstanding that under the old companymon law it might be difficult to find any companysideration for it. the companyrts have number gone so far as to give a cause of action in damages for the breach of such a promise but they have refused to allow the party making it to act inconsistently with it. lord denning also pointed out in companybe v. combe 2 that much as i am inclined to favour the principles stated in the high trees case it is important that it should number be stretched too far lest it should be endangered. that principle does number create new causes of action where numbere existed before. it only prevents a party from insisting upon his strict legal rights when it would be unjust to allow him to enforce them having regard to the dealings which have taken place between the parties so also said buckley j. in the more recent case of beesly hallwood estates limited 1 the doctrine may afford a defence against the enforcement or otherwise of enforceable rights it cannumber create a cause of action. it is however necessary to make it clear that though this doctrine has been called in various judgments and text books as promissory estoppel and it has been variously described as equitable estoppel quasi estoppel and new estoppel it is number really based on the principle of estoppel but it is a doctrine evolved by equity in order to prevent injustice where a promise is made by a person knumbering that it would be acted on by the person to whom it is made and in fact it is so acted on and it is inequitable to allow the party making the promise to go back upon it. lord denning himself observed in the high trees case expressly making a distinction between ordinary estoppel and promissory estoppel that cases like the one before him were number cases of estoppel in the strict sense. they are really promises promises intended to be binding intended to be acted upon and in fact acted upon. jenkins c.j. also pointed out in municipal companyporation of bombay v. secretary of state 2 that the doctrine is often treated as one of estoppel but i doubt whether this is companyrect though it may be a companyvenient name to apply. the doctrine of promissory estoppel need number therefore be inhibited by the same limitation as estoppel in the strict sense of the term. it is an equitable principle evolved by the companyrts for doing justice and there is numberreason why it should be given only a limited application by way of defence. it may be numbered that even lord denning recognised in crabb v. arun distric companyncil supra that there are estoppels and estoppels. some do give rise to a cause of action. some dont and added that in the species of estoppel called proprietary estoppel it does give rise to a cause of action the learned law lord after quoting what he had said in moorgate mercantile company limited v. twitchings 3 namely that the effect of estoppel on the true owner may be that his own title to the property be it land or goods has been held to be limited or extinguished and new rights and interests have been created therein. and this operates by reason of his companyduct-what he has led the other to believe-even though he never intended it. proceeded to observe that the new rights and interests so created by estoppel in or over land will be protected by the companyrts and in this way give rise to a cause of action. the companyrt of appeal in this case allowed crabb a declaration of a right of access at point over the verge on to mill park road and a right of way along that road to hook lane on the basis of an equity arising out of the companyduct of the arun district companyncil. of companyrse spencer bower and turner in their treatise on the law relating to estoppel by representation have explained this decision on the basis that it is an instance of the application of the doctrine of estoppel by encouragement or acquiescence or what has number come to be knumbern as proprietary estoppel which according to the learned authors forms an exception to the rule that estoppel cannumber found a cause of action. but if we look at the judgments of lord denning and scarman l.j. it is apparent that they did number base their decision on any distinctive feature of proprietary estoppel but proceeded on the assumption that there was numberdistinction between promissory and proprietary estoppel so far as the problem before them was companycerned. both the learned law lord and the learned lord justice applied the principle of promissory estoppel in giving relief to crabb. lord denning referring to what lord cairns had said in hughes v. metropolitan railway company 1 a decision from which inspiration was drawn by him for evolving the doctrine of promissory estoppel in the high trees case observed that - it is the first principle on which all companyrts of equity proceedthat it will prevent person from insisting on his strict legal rights-whether arising under a companytract or on his title deeds or by statute-when it would be inequitable for him to do so having regard to the dealings which have taken place between the parties. the decision in the high trees case was also referred to the learned law lord and so also other cases supporting the doctrine of promissory estoppel. scarman l.j. also observed that in pursuing the inquiry as to whether there was an equity in favour of crabb he did number find helpful the distinction between promissory and proprietary estoppel. he added that this distinction may indeed be valuable to those who have to teach or expound the law but i do number think that in solving the particular problem raised by a particular case putting the law into categories is of the slightest assistance. it does appear to us that this was a case deci- ded on the principle of promissory estoppel. the representative of the arun district companyncil clearly gave assurance to crabb that they would give him access to the new road at point b to serve the southern portion of his land and the arun district companyncil in fact companystructed a gate at point b and in the belief induced by this representation that he would have right of access to the new road at point b crabb agreed to sell the numberthern portion of his land without reserving for himself as owner of the southern portion any right of way over the numberthern portion for the purpose of access to the new road. this was the reason why the companyrt raised an equity in favour of crabb and held that the equity would be satisfied by giving crabb the right of access at point b free of charge without paying anything for it. arun district companyncil was held bound by its promise to provide crabb access to the new road at point b and this promise was enforced against arun district council at the instance of crabb. the case was one which fell within the category of promissory estoppel and it may be regarded as supporting the view that promissory estoppel can be the basis of a cause of action. it is possible that the case also came within the rule of proprietary estoppel enunciated by lord kingsdown in ramsden v. dyson 1 the rule of law applicable to the case appears to me to be this if a man under a verbal agreement with a landlord for a certain interest in land or what amounts to the same thing under an expectation created or encouraged by the landlord that he shall have a certain interest takes possession of such land with the companysent of the landlord and upon the faith of such promise or expectation with the knumberledge of the land lord and without objection by him lays out money upon the land a companyrt of equity will companypel the landlord to give effect to such promise or expectation. and spencer bower and turner may be right in observing that that was perhaps the reason why it was held that the promise made by arun district companyncil gave rise to a cause of action in favour of crabb. but on what principle one may ask is the distinction to be sustained between promissory estoppel and proprietary estoppel in the matter of enforcement by action. if proprietary estoppel can furnish a cause of action why should promissory estoppel number ? there is no qualitative difference between the two. both are the off- springs of equity and if equity is flexible enumbergh to permit proprietary estoppel to be used as a cause of action there is numberreason in logic or principle why promissory estoppel should also number be available as a cause of action if necessary to satisfy the equity. but perhaps the main reason why the english companyrts have been reluctant to allow promissory estoppel to found a cause of action seems to be the apprehension that the doctrine of consideration would other wise be companypletely displaced. there can be numberdoubt that the decision of lord denning in the high trees case represented a bold attempt to escape from the limitation imposed by the house of lords in jorden money supra and it rediscovered an equity which was long embedded beneath the crust of the old decisions in hughes v. metropolitan railway company supra and birmingham and district land company v. london and numberth western rail company supra and brought about a remarkable development in the law with a view to ensuring its approximation with justice an ideal for which the law has been companystantly striving. but it is interesting to numbere the lord denning was number prepared to go further as he thought that having regard to the doctrine of companysideration which was so deeply entrenched in the jurisprudence of the companyntry it might be unwise to extend promissory estoppel so as to found a cause of action and that is why he uttered a word of caution in companybe v. combe supra that the principle of promissory estoppel should number be stretched too far lest it should be endangered. the learned law lord proceeded to add seeing that the principle never stands alone as giving a cause of action in itself it can never do away with the necessity of consideration when that is an essential part of the cause of action. the doctrine of companysideration is too firmly fixed to be overthrown by a side wind. spencer bower and turner also point out at page 384 of their treatise 3rd ed that it is difficult to see how in a case of promissory estoppel a promise can be used to found a cause of action without according to it operative companytractual force and it is for this reason that a companytention that a promissory estoppel may be used to found a cause of action must be regarded as an attack on the doctrine of companysideration. the learned authors have also observed at page 387 that to give a plaintiff a cause of action on a promissory estoppel must be little less than to allow an action in companytract where consideration is number shown and that cannumber be done because consideration still remains a cardinal necessity of the formation of a companytract. it can hardly be disputed that over the last three or four centuries the doctrine of consideration has companye to occupy such a predominant position in the law of companytract that under the english law it is impossible to think of a companytract without companysideration and therefore it is understandable that the english companyrts should have hesitated to push the doctrine of promissory estoppel to its logical companyclusion and stopped short at allowing it to be used merely as a weapon of defence though as we shall point out there are quite a few cases where this doctrine has been used number as founding a cause of action in itself but as a part of a cause of a action. the modern attitude towards the doctrine of consideration is however changing fast and there is considerable body of juristic thought which believes that this doctrine is something of an anchronism. prof. holdsworth pointed out long ago in his history of english law that the requirements of companysideration in its present shape prevent the enforcement of many companytracts which ought to be enforced if the law really wishes to give effect to the lawful intentions of the parties to them and it would prevent the enforcement of many others if the judges had number used their ingenuity to invest companysiderations. but the invention of companysiderations by reasoning which is both devious and technical adds to the difficulties of the doctrine. lord wright remarked in an article published in 49 harvard law review 1225 that the doctrine of consideration in its present form serves numberpractical purpose and ought to be abolished. sir federick pollock also said in his well knumbern work of ganius of companymon law p. 91 that the application of the doctrine of companysideration to various unusual but number unknumbern cases has been made subtle and obscured by excessive dialectic refinement. equally strong is the companydemnation of this doctrine in judicial pronumberncements. lord duned observed in the well knumbern case of dunlop pneumatic tyre company v. selfridge and company limited 1 i confess that this case is to my mind apt to nip any budding affection which one might have had for the doctrine of consideration. for the effect of that doctrine in the present case is to make it possible for a person to snap his fingers at a bargain deliberately made a bargain number in itself unfair and which the person seeking to enforce it has a legitimate interest to enforce. the doctrine of consideration has also received severe criticism at the hands of dean roscoe pound in the united states. the reason is that promise as a social and econumberic institution becomes of the first importance in a companymercial and industrial society and it is an expression of the moral sentiment of a civilised society that a mans word should be as good as his bond and his fellow-men should be able to rely on the one equally with the other. that is why the law revision committee in england in its sixth report made as far back as 1937 accepted prof. holdsworths view and advocated that a contract should exist if it was intended to create or affect legal relations and either companysideration was present or the contract was reduced to writing. this recommendation however did number fructify into law with the result that the present position remains what it was. but having regard to the general opprobrium to which the doctrine of consideration has been subjected by eminent jurists we need number be unduly anxious to project this doctrine against assault or erosion number allow it to dwarf or stultify the full development of the equity of promissory estoppel or inhibit or curtail its operational efficacy as a justice device for preventing injustice. it may be pointed out that the law companymission of india in its 13th report adopted the same approach and recommended that by way of exception to section 25 of the indian companytract act 1925 a promise express or implied which the promisor knumbers or reasonably should knumber will be relied upon by the promisee should be enforceable if the promisee has altered his position to his detriment in reliance on the promise. we do number see any valid reason why promissory estoppel should number be allowed to found a cause of action where in order to satisfy the equity it is necessary to do so. we may point out that even in england where the judges apprehending that if a cause of action is allowed to be founded on promissory estoppel it would companysiderably erode if number companypletely overthrow the doctrine of companysideration have been fearful to allow promissory estoppel to be used as a weapon of offence it is interesting to find that promissory estoppel has number been companyfined to a purely defensive role. lord denning himself said in companybe v. companybe supra that promissory estoppel may be a part of a cause of action though number a cause of action itself. in fact there have been several cases where promissory estoppel has been successfully invoked by a party to support his cause of action without actually founding his cause of action exclusively upon it. two such cases are robertson v. minister of pensions 1 and evenden v. guildford city association football club limited 2 the english companyrts have thus gone a step forward from the original position when promissory estoppel was regarded merely as a passive equity and allowed it to be used as a weapon of offence to a limited extent as a part of the cause of action but still the doctrine of companysideration companytinues to inhibit the judicial mind and that has thwarted the full development of this new equitable principle and the realisation of its vast potential as a juristic technique for doing justice. it is true that to allow promissory estoppel to found a cause of action would seriously dilute the principle which requires consideration to support a companytractual obligation but that is numberreason why this new principle which is a child of equity brought into the world with a view to promoting honesty and good faith and bringing law closer to justice should be held in fetters and number allowed to operate in all the activist magnitude so that it may fulfil the purpose for which it was companyceived and born. it must be remembered that law is number a mausoleum. it is number an antique to be taken down dusted admired and put back on the shelf. it is rather like an old vigorous tree having its roots in history yet companytinuously taking new grafts and putting out new sprouts and occasionally dropping dead wood. it is essentially a social process the end product of which is justice and hence it must keep on growing and developing with changing social companycepts and values. otherwise there will be estrangement between law and justice and law will cease to have legitimacy. it is true as pointed out by mr. justice holmes that companytinuity with the past is a historical necessity but it must also be remembered at the same time as pointed out by mr. justice cardozo that conformity is number to be turned into a fetish. we would do well to recall the famous words uttered by mr. justice cardozo while closing his first lecture on paradoxes of legal science the disparity between precedent and ethos may so lengthen with the years that only companyin and chicenery would be disappointed if the separation were to end. there are many intermediate stages mores if inadequate to obliterate the past may fix direction for the future. the evil precedent may live but so sterilized and truncated as to have small capacity for harm. it will be prudently ignumbered when invoked as an apposite analogy in numberel situations though the numberel element be small. there will be brought forward other analogies less precise it may be but more apposite to the needs of morals. the weights are companystantly shifted to restore the equilibrium between precedent and justice. was it number lord denning who exhorted judges number to be timorous sours but to be bold spirits ready to allow a new cause of action if justice so required. candler v. crane christmas company 1 we may profitably companysider at this stage what the american law on the subject is because in the united states the law has always shown a greater capacity for adjustment and growth than elsewhere. the doctrine of promissory estoppel has displayed remarkable vigour and vitality in the hands of american judges and it is still rapidly developing and expanding in the united states. it may be pointed out that this development does number derive its origin in any way from the decision of lord denning in the high trees case but ante-dates this decision by a number of years perhaps it is possible that it may have helped to inspire that decision. it was long before the decision in the high treescase that the american law institutes restatement of the law of companytracts came out with the following proposition in article 90 a promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. this proposition was explained and elucidated by several illustrations given in the article and one of such illustrations was as follows a promises b to pay him an annuity during bs life. b thereupon resigns a profitable employment as a expected that he might. b receives the annuity for some years in the meantime becoming disqualified from again obtaining good employment. as promise is binding. it is true that the restatement has number the same weight as a source of law as actual decisions of companyrts of high standing yet the principle set out in article 90 has in fact formed the basis of a number of decisions in various states and it is number becoming increasingly clear that a promise may in the united states derive companytractual enforceability if it has been made by the promisor intending that it would be acted on and the promisee has altered his position in reliance on it numberwithstanding that there is no consideration in the sense in which that word is used in english and companymonwealth jurisprudence. of companyrse the basic requirement for invoking this principle must be present namely that the fact situation should be such that injustice can be avoided only by enforcement of the promise. there are numerous examples of the application of this principle to be found in recent american decisions. there is for instance the long line of cases in which a promise to give a charitable subscription has been consistently held to be enforceable at the suit of the charity. though attempts have been made to justify these decisions by reasoning that the charity by companymencing or continuing its charitable work after receiving promise has given good companysideration for it we do number think that on closer scrutiny the enforceability of the promise in these cases can be supported by spelling out the presence of some form of companysideration and the true principle on which they are really based is the principle of promissory estoppel. this is also the view expressed in the following statement at page 657 of vol. 19 of american jurisprudence a number of companyrts have upheld the validity of charitable subscriptions on the theory of promissory estoppel holding that while a mere promise to contribute is unenforceable for want of companysideration if money has been expended or liabilities have been incurred in reliance on the promise so that number fulfillment will cause injury to the payee the donumber is estopped to assert the lack of consideration and the promise will be enforced. chief justice cardozo presiding over the companyrt of appeals of the state of new york explained the ratio of these decisions in the same terms in alleghany companylege v. national chauteuque companynty bank 1 the half-truths of one generation tend at times to perpetuate themselves in the law as the whole truths of anumberher when companystant repetition brings it about that qualifications taken once for granted are disregarded or forgotten. the doctrine of companysideration has number escaped the companymon lot. as far back as 1881 judge holmes in his lectures on the companymon law p. 292 separated the detriment which is merely a companysequence of the promise from the detriment which is in truth the motive or inducement and yet added that the companyrts have gone far in obliterating this distinction. the tendency toward effacement has number lessened with the years. on the companytrary there has grown up of recent days a doctrine that a substitute for companysideration or an exception to its ordinary requirements can be found in what is styled a promissory estoppel. williston contract ss. 139 116. whether the exception has made its way in this state to such an extent as to permit us to say that the general law of companysideration has been modified accordingly we do number number attempt to say. cases such as 234 n.y. 479 and 221 n.y. 431-may be signposts on the road. certain at least it is that we have adopted the doctrine of promissory estoppel as the equivalent of companysideration in companynection with our law of charitable subscriptions. so long as those decisions stand the question is number merely whether the enforcement of a charitable subscription can be squared with the doctrine of companysideration in all its ancient rigor. the question may also be whether it can be squared with the doctrine of companysideration as qualified by the doctrine of promissory estoppel. we have said that the cases in this state have recognized this exception if exception it is thought to be. thus in 12 n.y. 18 the subscription was made without request express or implied that the church do anything on the faith of it. later the church did incur expense to the knumberledge of the promisor and in the reasonable belief that the promise would be kept. we held the promise binding though consideration there was numbere except upon the theory of a promissory estoppel. in 74 n.y. 72 a situation substantially the same became the basis for a like ruling. so in 103 n.y. 600 and 1901 167 n.y. 96 the moulds of companysideration as fixed by the old doctrine were subject to a like expansion. very likely companyceptions of public policy have shaped more or less subconsciously the rulings thus made. judges have been affected by the thought that defences of that character are breaches of faith towards the public and especially towards those engaged in the same enterprise and an unwarrantable disappointment of the reasonable expectations of those interested. w. f. allen j. in 12 n.y. 18 and of 97 vt. 495 and cases there cited. the result speaks for itself irrespective of the motive. decisions which have stood so long and which are supported by so many considerations of public policy and reason will number be over-ruled to save the symmetry of a companycept which itself came into our law number so much from any reasoned companyviction of its justice as from historical accidents of practice and procedure. 8 holdsworth history of english law 7 et. seq . the companycept survives as one of the distinctive features of our legal system. we have numberthought to suggest that it is obsolete or on the way to be abandoned. as in the case of other companycepts however the pressure of exceptions has led to irregularities of form. it is also interesting to numbere that the doctrine of promissory estoppel has been widely used in the united states in diverse other situations as founding a cause of action. the most numberable instances are to be found in what may be called the sub-contractor bid cases in which a contractor about to tender for a companytract invites a sub- contractor to submit a bid for a sub-contract and after receiving his bid the companytractor submits a tender. in such cases the sub-contractor has been held unable to retract his bid and be liable in damages if he does so. it is number possible to say that any detriment which the companytractor may be able to show in these cases would amount to companysideration in its strict sense and these decisions have plainly been reached on an application of the doctrine of promissory estoppel. one of such cases was drennan v. star paving company 1 where traynumber j. explicitly adopted as good law the text of article 90 of the restatement of the law of contracts quoted above and stated in so many words that the absence of companysideration is number fatal to the enforcement of such a promise. there are also numerous cases where the doctrine of promissory estoppel has been applied against the government where the interest of justice morality and companymon fairness clearly dictated such a companyrse. we shall refer to these cases when we discuss the applicability of the doctrine of equitable estoppel against the government. suffice it to state for the present that the doctrine of promissory estoppel has been taken much further in the united states than in english and companymonwealth jurisdictions and in some states at least it has been used to reduce if number to destroy the prestige of companysideration as an essential of valid companytract. vide spencer bower and turners estoppel by representation 2d page 358. we number go on to companysider whether and if so to what extent is the doctrine of promissory estoppel applicable against the government. so far as the law in english is concerned the position cannumber be said to be very clear. rowlett j. in an early decision in rederiaktiebolaget amphitrite v. the king 1 held that an undertaking given by the british government to certain neutral ship owners during the first world war that if the shipowners sent a particular ship to the united kingdom with a specified cargo she shall number be detained was number enforceable against the british government in a companyrt of law and observed that his main reason for taking this view was that --it is number companypetent for the government to fetter its future executive action which must necessarily be determined by the needs of the companymunity when the question arises. it cannumber by companytract hamper its freedom of action in matters which companycern the welfare of the state. this observation has however number been regarded by jurists as laying down the companyrect law on the subject since it is very wide and it is difficult to determine its proper scope. ansons english law of companytract 22d. 174. the doctrine of executive necessity propounded by rowlatt j. was in fact disapproved by denning j. as he then was in roberston v. minister of pensions supra where the learned judge said the crown cannumber escape by saying that estoppels do number bind the crown for that doctrine has long been exploded. number can the crown escape by praying in aid the doctrine of executive necessity that is the doctrine that the crown cannumber bind itself so as to fetter its future executive action. that doctrine was propounded by rowlatt j. in rederiak-tiebolaget amphitrite v. the king but it was unnecessary for the decision because the statement there was number a promise which was intended to be binding but only an expression of intention. rowlatt j. seems to have been influenced by the cases on the right of the crown to dismiss its servants at pleasure but those cases must number all be read in the light of the judgment of lord atkin in reily v. the king- 1954 a.c. 176 176 .-in my opinion the defence of executive necessity is of limited scope. it only avails the crown where there is an implied term to that effect or that is the true meaning of the contract. it is true that the decision of denning j. in this case was overruled by the house of lords in howell v. falmouth boat construction company limited 1 but that was on the ground that the doctrine of promissory estoppel cannumber be invoked to bar the crown from enforcing a statutory prohibition or entitle the subject to maintain that there has been no breach of it. the decision of the house of lords did number express any disapproval of the applicability of the doctrine of promissory estoppel against the crown number did it overrule the view taken by denning j. that the crown cannumber escape its obligation under the doctrine of promissory estoppel by praying in aid the doctrine of executive necessity. the statement of the law by denning j. may therefore still be regarded as holding the field and it may be taken to be a judicially favoured view that the crown is number immune from liability under the doctrine of promissory estoppel. the companyrts in america for a long time took the view that the doctrine of promissory estoppel does number apply to the government but more recently the companyrts have started retreating from that position to a sounder one namely that the doctrine of promissory estoppel may apply to the government when justice so requires. the second edition of american jurisprudence brought out in 1966 in paragraph 123 points out that equitable estoppel will be invoked against the state when justified by the facts though it does warn that this doctrine should number be lightly invoked against the state. later in the same paragraph it is stated that as a general rule the doctrine of estoppel will number be applied against the state in its governmental public or sovereign capacity but a qualification is introduced that promissory estoppel may be applied against the state even in its governmental public or sovereign capacity if its application is necessary to prevent fraud or manifest injustice. since 1966 there is an increasing trend towards applying the doctrine of promissory estoppel against the state and the old law that promissory estoppel does number apply against the government is definitely declining. there have been numerous cases in the state companyrts where it has been held that promissory estoppel may be applied even against the govern- ment in its governmental capacity where the accommodation of the needs of justice to the needs of effective government so requires. the protagonists of the view that promissory estoppel cannumber apply against the government or a public authority seek to draw inspiration from the majority decision of the united states supreme companyrt in federal crop insurance corporation v. merrill. 1 but we do number think that decision can be read as laying down the proposition that the doctrine of promissory estoppel can never be invoked against the government. there the companynty companymittee acting as the agent of the federal crop insurance companyporation which was a wholly government-owned companyporation companystituted under the federal crop insurance act advised the respondents that their entire 460 acres of spring wheat crop which included spring wheat reseeded. on winter wheat acreage was insurable and acting upon it the respondents made an application for insurance which was forwarded by the companynty companymittee to the denver office of the companyporation with a recommendation for acceptance. the application did number mention that any part of the insured crop was reseeded and it was accepted by the denver office of the companyporation. there were at this time wheat crop insurance regulations framed by the companyporation and published in the federal register which prohibited insurance of spring wheat reseeded on winter wheat acreage but neither the respondents number the companynty companymittees which was acting as the agent of the companyporation was aware of them. a few months later most of the respondents crop was destroyed by drought and on a claim being made by the respondents under the policy of insurance the companyporation refused to pay the loss on the ground that the wheat crop insurance regulations expressly prohibited insurance of reseeded wheat. the refusal was upheld by the supreme companyrt by a majority of five to four. the majority observed it is too late in the day to urge that the government is just anumberher private litigant for purposes of charging it with liability whenever it takes over a business theretofore companyducted by private enterprises or engages in companypetitions with private ventures. whatever the form in which the government functions anyone entering into an arrangement with the government takes the risk of having accurately ascertained that be who purports to act for the government stays within the bounds of his authority and this is so even though as here the agent himself may have been unaware of the limitations upon his autho- rity.-man must turn square companyners when they deal with the government does number reflect a callous outlook. it merely expresses the duty of all companyrts to observe the conditions defined by companygress for charging the public treasury. it will be seen that the companyporation was held entitled to repudiate its liability because the wheat crop insurance regulations prohibited insurance of reseeded wheat and the assurance given by the companynty companymittee as the agent of the corporation that the reseeded wheat was insurable being contrary to the wheat crop insurance regulations companyld number be held binding on the companyporation. it was number within the authority of the companynty companymittee to give such assurance contrary to the wheat crop insurance regulations and hence numberpromissory estoppel against the companyporation companyld be founded upon it. this decision did number say that even if an assurance given by an agent is within the scope of his authority and is number prohibited by law it companyld still number create promissory estoppel against the government. but it may be pointed out even this limited holding has companye in for companysiderable criticism at the hands of jurists in the united states. see davis on administrative law 3rd d. pages 344-345. referring to the observation of the majority that men must turn square companyners when they deal with the government maguire and zimet have poetically responded by saying it is hard to see why the government should number be held to a like standard of rectangular rectitude when dealing with its citizens. maguire and zimet hobsons choice and similar practices in federal taxation 48 harv. rev. 1287 at 1299 . there has so far number been any decision of the supreme court of the united states taking the view that the doctrine of promissory estoppel cannumber be invoked against the government. the trend in the state companyrts of late has been strongly in favour of the application of the doctrine of promissory estoppel against the government and public bodies where interests of justice morality and companymon fairness clearly dictate that companyrse. it is being increasingly felt that that the government ought to set a high standard in its dealings and relationships with citizens and the word of a duly authorised government agent acting within the scope of his authority ought to be as good as a government bond. of companyrse as pointed out by the united states companyrt of appeals third circuit in valsonavich v. united states 1 the government would number be estopped by the acts of its officers and agents who without authority enter into agreements to do what the law does number sanction or permit and those dealing with an agent of the government must be held to have numberice of limitations of his authority as held in merrills case. this is precisely what the house of lords also held in england in howell v. falmouth boat companystruction co. limited supra where lord simonds stated the law to be the illegality of an act is the same whether or number the actor has been misled by an assumption of authority on the part of a government officer however high or low in the hierachy. the question is whether the character of an act done in face of a statutory prohibition is affected by the fact that it has been induced by a misleading assumption of authority. in my opinion the answer is clearly number but if the acts or omissions of the officers of the government are within the scope of their authority and are number otherwise impermissible under the law they will work estoppel against the government. when we turn to the indian law on the subject it is heartening to find that in india number only has the doctrine of promissory estoppel been adopted in its fullness but it has been recognized as affording a cause of action to the person to whom the promise is made. the requirement of consideration has number been allowed to stand in the way of enforcement of such promise. the doctrine of promissory estoppel has also been applied against the government and the defence based on executive necessity has been categorically negatived. it is remarkable that as far back as 1880 long before the doctrine of promissory estoppel was formulated by denning j. in england a division bench of two english judges in the calcutta high companyrt applied the doctrine of promissory estoppel and recognised a cause of action founded upon it in the ganges manufacturing company v. surajmuli and other 1 . the doctrine of promissory estoppel was also applied against the government in a case subsequently decided by the bombay high companyrt in municipal corporation of bombay v. the secretary of state. 2 the facts of this last-mentioned case in municipal corporation of bombay v. the secretary of state supra are a little interesting and it would be profitable to refer to them. the government of bombay with a view to companystructing an arterial road requested the municipal companymissioner to remove certain fish and vegetable markets which obstructed the companystruction of the proposed road. the municipal companymissioner replied that the markets were vested in the companyporation of justices but that he was willing to vacate certain municipal stables which occupied a portion of the proposed site if the government would rent other land mentioned in his letter to the municipality at a numberinal rent the municipality undertaking to bear the expenses of levelling the same and permit the municipality to erect on such land stables of wood and iron with numberble foundation to be removed at six months numberice on other suitable ground being provided by government. the government accepted the suggestion of the municipal commissioner and sanctioned the application of the municipal commissioner for a site for stabling on the terms set out above and the municipal companymissioner thereafter entered into possession of the land and companystructed stables workshops and chawls on the same at companysiderable expense. twenty-four years later the government served a numberice on the municipal commissioner determining the tenancy and requesting the municipal companymissioner to deliver possession of the land within six months and in the mean time to pay rent at the rate of rs.12000/- per month. the municipal companyporation declined to hand over possession of the land or to pay the higher rent and the secretary of state for india thereupon filed a suit against the municipal companyporation for a declaration that the tenancy of the municipality stood determined and for an order directing the municipality to pay rent at the rate of rs. 12000/- per month. the suit was resisted by the municipal companyporation on the ground then the events which had transpired had created an equity in favour of the municipality which afforded an answer to the claim of the government to eject the municipality. this defence was upheld by a division bench of the high companyrt and jenkins j. speaking on behalf of the division bench pointed out that in view of the following facts namely -the municipality gave up the old stables levelled the ground and erected the moveable staibles in 1866 in the belief that they had against the government an absolute right number to be turned out until number only the expiration of six months numberice but also other suitable ground was furnished that this belief is referable to an expectation created by the government that their enjoyment of the land would be in accordance with this belief and that the government knew that the municipality were acting in this belief so created an equity was created in favour of the municipality which entitled it to appeal to the companyrt for its aid in assisting them to resist the secretary of states claim that they shall be ejected from the ground. the learned chief justice pointed out that the doctrine which he was applying took its origin from the jurisdiction assumed by companyrts of equity to intervene in the case of or to prevent fraud and after referring to ramsden v. dyson 1 observed that the crown also came within the range of this equity. this decision of the bombay high companyrt is a clear authority for the proposition that it is open to a party who has acted on a representation made by the government to claim that the government shall be bound to carry out the promise made by it even though the promise is number recorded in the form of a formal companytract as required by the companystitution. that is how this decision has in fact been interpreted by this companyrt in union of india v. indo-afghan agencies 2 we dont find any decision of importance thereafter on the subject of promissory estoppel until we companye to the decision of this companyrt in companylector of bombay v. municipal corporation of the city of bombay ors. 3 . the facts giving rise to this case were that in 1865 the government of bombay called upon the predecessor in title of the municipal corporation of bombay to remove old markets from a certain site and vacate it and on the application of the municipal commissioner the government passed a resolution approving and authorizing the grant of anumberher site to the municipality. the resolution stated further that the government do number companysider that any rent should be charged to the municipality as the markets will be like other public buildings for the benefit of the whole companymunity. the municipal companyporation gave up the site on which the old markets were situated and spent a sum of rs. 17 lakhs in erecting and maintaining markets on the new site. in 1940 the companylector of bombay assessed the new site to land revenue and the municipal companyporation there upon filed a suit for a declaration that the order of assessment was ultra vires and it was entitled to hold the land for ever without payment of any assessment. the high companyrt of bombay held that the government had lost its right to assess the land in question by reason of the equity arising on the facts of the case in favour of the municipal companyporation and there was thus a limitation on the right of the government to assess under section 8 of the bom bay city land revenue act. on appeal by the companylector to this companyrt the majority judges held that the government was number under the circumstances of the case entitled to assess land revenue on the land in question because the municipal corporation had taken possession of the land in terms of the government resolution and had companytinued in such possession openly uninterruptedly and of right for over seventy years and thereby acquired the limited title it had been prescribing for during the period that is to say the right to hold the land in perpetuity free of rent. chandrasekhra aiyar j. agreed with the companyclusion reached by the majority but rested his decision on the doctrine of promissory estoppel. he pointed out that the government could number be allowed to go back on the representation made by it and stressed the point in the form of an interrogation by asking if we do so would it number amount to our countenancing the perpetration of what can be companypendiously described as legal fraud which a companyrt of equity must prevent being companymitted? he observed that even if the resolution of the government amounted merely to the holding out of a promise that numberrent will be charged in the future the government must be deemed in the circumstances of this case to have bound themselves to fulfil it. whether it is the equity recognised in ramsdens case supra or it is some other form of equity is number of much importance. companyrts must do justice by the promotion of honesty and good faith as far as it lies in their power. this was of companyrse the solitary view of chandrasekhara aiyer j. but it was approved by this companyrt in numberuncertain terms in indo-afghan agencies case supra . then we companye to the celebrated decision of this companyrt in the indo-afghan agencies case supra . it was in this case that the doctrine of promissory estoppel found its most eloquent exposition. we may briefly state the facts in order to appreciate the ratio of the decision. indo-afghan agencies limited who were the respondents before the companyrt acting in reliance on the export promotion scheme issued by the central government exported woollen goods to afghanistan and on the basis of their exports claimed to be entitled to obtain from the textile companymissioner import entitlement certificate for the full f.o.b. value of the goods exported as provided in the scheme. the scheme was number a statutory scheme having the force of law but it provided that an export of woollen goods would be entitled to import raw-material of the total amount equal to 100 of the f.o.b. value of his exports. the respondents companytended that relying on the promise companytained in the scheme they had exported woollen goods to afghanistan and were. therefore entitled to enforce the promise against the government and to obtain import entitlement certificate for the full f.o.b. value of the goods exported on the principle of promissory estoppel. this companytention was sought to be answered on behalf of the government by pleading the doctrine of executive necessity and the argument of the government based on this doctrine was that it is number companypetent for the government to fetter its future executive action which must necessarily be determined by the needs of the companymunity when the question arises and no promise or undertaking can be held to be binding on the government so as to hamper its freedom of executive action. certain observations of rowlatt j. in rederiektiabolaget amphitrite v. the king supra were sought to be pressed into service on behalf of the government in support of this argument. we have already referred to these observations earlier and we need number reproduce them over again. these observation undoubtedly supported the companytention of the government but it was pointed out by this companyrt that these observations were disapproved by denning j. in robertson v. minister of pensions supra where the learned judge said that the crown cannumber escape by praying in aid the doctrine of executive necessity that is the doctrine that the crown cannumber bind itself so as to fetter its future executive action.the defence of executive necessity is of limited scope. it only avails the crown where there is an implied term to that effect or that is the true meaning of the contract and this statement of denning j. was to be preferred as laying down the companyrect law of the subject. shah j. speaking on behalf of the companyrt observed at p. we are unable to accede to the companytention that the executive necessity releases the government from honumberring its solemn promises relying on which citizens have acted to their detriment. under our companystitutional set-up numberperson may be deprived of his right or liberty except in due companyrse of and by authority of law of a member of the executive seeks to deprive a citizen of his right or liberty otherwise than in exercise of power derived from the law-common or statute-the companyrts will be companypetent to and indeed would be bound to protect the rights of the aggrieved citizen. the defence of executive necessity was thus clearly negatived by this companyrt and it was pointed out that it did number release the government from its obligation to honumberr the promise made by it if the citizen acting in reliance on the promise had altered his position. the doctrine of promissory estoppel was in such a case applicable against the government and it companyld number be deteated by invoking the defence of executive necessity. it was also companytended on behalf of the government that if the government were held bound by every representation made by it regarding its intention when the exporters have acted in the manner they were invited to act the result would be that the government would be bound by a companytractual obligation even though numberformal companytract in the manner required by article 299 was executed. but this companytention was negatived and it was pointed out by this companyrt that the respondents are number seeking to enforce any companytractual right they are seeking to enforce companypliance with the obligation which is laid upon the textile companymissioner by the terms of the scheme and we are of the view that even if the scheme is executive in character the respondents who were aggrieved because of the failure to carry out the terms of the scheme were entitled to seek resort to the companyrt and claim that the obligation imposed upon the textile commissioner by the scheme be ordered to be carried out. it was thus laid down that a party who has acting in reliance on a promise made by the government altered his position is entitled to enforce the promise against the government even though the promise is number in the form of a formal contract as required by article 299 and that article does number militate against the applicability of the doctrine of promissory estoppel against the government. this companyrt finally after referring to the decision in the ganges manufacturing company v. surujmull supra . the municipal companyporation of the city of bombay v. the secretary of state for india supra and companylector of bombay v. municipal companyporation of the city of bombay ors. supra summed up the position as follows under our jurisprudence the government is number exempt from liability to carry out the representation made by it as to its future companyduct and it cannumber on some undefined and undisclosed ground of necessity or expediency fail to carry out the promise solemnly made by it number claim to be the judge of its own obligation to the citizen on an ex parte appraisement of the circumstances in which the obligation has arisen. the law may therefore number be taken to be settled as a result of this decision that where the government makes a promise knumbering or intending that it would be acted on by the promises and in fact the promisee acting in reliance on it alters his position the government would be held bound by the promise and the promise would be enforceable against the government at the instance of the promises numberwithstanding that there is numberconsideration for the promise and the promise is number recorded in the form of a formal companytract as required by article 299 of the companystitution. it is elementary that in a republic governed by the rule of law numberone howsoever high or low is above the law. every one is subject to the law as fully and companypletely as any other and the government is numberexception. it is indeed the pride of companystitutional democracy and rule of law that the government stands on the same footing as a private individual so far as the obligation of the law is companycerned the former is equally bound as the latter. it is indeed difficult to see on what principle can a government committed to the rule of law claim immunity from the doctrine of promissory estoppel. can the government say that it is under numberobligation to act in a manner that is fair and just or that it is number bound by companysiderations of honesty and good faith? why should the government number be held to a high standard of rectangular rectitude while dealing with its citizens? there was a time when the doctrine of executive necessity was regarded as sufficient justification for the government to repudiate even its contractual obligations but let it be said to the eternal glory of this companyrt this doctrine was emphatically negatived in the indo-afghan agencies case and the supremacy of the rule of law was established. it was laid down by this court that the government cannumber claim to be immune from the applicability of the rule of promissory estoppel and repudiate a promise made by it on the ground that such promise may fetter its future executive action. if the government does number want its freedom of executive action to be hampered or restricted the government need number make a promise knumbering or intending that it would be acted on by the promisee and the promisee would alter his position relying upon it. but if the government makes such a promise and the promises acts in reliance upon it and alters his position there is numberreason why the government should number be companypelled to make good such promise like any other private individual. the law cannumber acquire legitimacy and gain social acceptance unless it accords with the moral values of the society and the companystant endeavor of the courts and the legislatures must therefore be to close the gap between law and morality and bring about as near an approximation between the two as possible. the doctrine of promissory estoppel is a significant judicial companytribution in that direction. but it is necessary to point out that since the doctrine of promissory estoppel is an equitable doctrine it must yield when the equity so requires. if it can be shown by the government that having regard to the facts as they have transpired it would be inequitable to hold the government to the promise made by it the companyrt would number raise an equity in favour of the promisee and enforce the promise against the government. the doctrine of promissory estoppel would be displaced in such a case because on the facts equity would number require that the government should be held bound by the promise made by it. when the government is able to show that in view of the facts as have transpired public interest would be prejudiced if the government were required to carry out the promise the companyrt would have to balance the public interest in the government carrying out a promise made to a citizen which has induced the citizen to act upon it and after this position and the public interest likely to suffer if the promise were required to be carried out by the government and determine which way the equity lies. it would number be enumbergh for the government just to say that public interest requires that the government should number be compelled to carry out the promise or that the public interest would suffer if the government were required to honumberr it. the government cannumber as shah j. pointed out in the indo-afghan agencies case claim to be exempt from the liability to carry out the promise on some indefinite and undisclosed ground of necessity or expediency number can the government claim to be the sole judge of its liability and repudiate it on an ex-parte appraisement of the circumstances. if the government wants to resist the liability it will have to disclose to the companyrt what are the facts and circumstances on account of which the government claims to be exempt from the liability and it would be for the companyrt to decide whether these facts and circumstances are such as to render it inequitable to enforce the liability against the government. mere claim of change of policy would number be sufficient to exonerate the government from the liability the government would have to show what precisely is the changed policy and also its reason and justification so that the companyrt can judge for itself which way the public interest lies and what the equity of the case demands. it is only if the companyrt is satisfied on proper and adequate material placed by the government the over-riding public interest requires that the government should number be held bound by the promise but should be free to act unfettered by it that the companyrt would refuse to enforce the promise against the government. the court would number act on the mere ipse dixit of the government for it is the companyrt which has to decide and number the government whether the government should be held exempt from liability. this is the essence of the rule of law. the burden would be upon the government to show that the public interest in the government acting otherwise than in accordance with the promise is so overwhelming that it would be inequitable to hold the government bound by the promise and the companyrt would insist on a highly rigorous standard of proof in the discharge of this burden. but even where there is numbersuch over-riding public interest it may still be competent to the government to resile from the promise on giving reasonable numberice which need number be a formal numberice giving the promisee a reasonable opportunity of resuming his position provided of companyrse it is possible for the promisee to restore status quo ante. if however the promisee cannumber resume his position the promise would become final and irrevocable. vide emmanuel ayodeji ajayi v. briscoe. 1 the doctrine of promissory estoppel was also held applicable against a public authority like a municipal council in century spinning manufacturing company limited anr. the ulhasuagar municipal companyncil anr. 2 the question which arose in this case was whether the ulhas nagar municipal companyncil companyld be companypelled to carry out a promise made by its predecessor municipality that the factories in the industrial area within its jurisdiction would be exempt from payment of octroi for seven years from the date of the levy. the appellant companypany in the belief induced by the assurance and undertaking given by the predecessor municipality that its factory would be exempt from octroi for a period of seven years expanded its activities but when the municipal companyncil came into being and took over the administration of the former municipality it sight to levy octroi duty on appellant-company. the appellant companypany thereupon filed a writ petition under article 226 of the constitution in the high companyrt of bombay to restrain the municipal companyncil from enforcing the levy of octroi duty in breach of the promise made by the predecessor municipality. the high companyrt dismissed the petition in limine but on appeal this companyrt took the view that this was a case which required companysideration and should have been admitted by the high companyrt. shah j. speaking on behalf of the companyrt pointed out public bodies are as much bound as private individuals to carry out representations of facts and promises made by them relying on which other persons have altered their position to their prejudice. the obligation arising against an individual out of his representation amounting to a promise may be enforced ex companytracted by a person who acts upon the promise when the law requires that a companytract enforceable at law against a public body shall be in certain from or be executed in the manner prescribed by statute the obligation may be if the companytract be number in that form be enforced against it in appropriate cases in equity. the learned judge then referred to the decision in the indo afghan agencies case and observed that in that case it was laid down by this court that the government is number exempt from the equity arising out of the acts done by citizens to their prejudice relying upon the representations as to its future companyduct made by the government. it was also pointed out by the learned judge that in the indo-afghan agencies case this court approved of the observations made by denning j. in robertson v. minister of pensions supra rejecting the doctrine of executive necessity and held them to be applicable in india. the learned judge companycluded by saying in words pregnant in the hope and meaning for democracy if our nascent democracy is to thrive different standards of companyduct for the people and the public bodies cannumber ordinarily be permitted. a public body is in our judgment number exempt from liability to carry out its obligation arising out of representations made by it relying upon which a citizen has altered his position to his prejudice. this companyrt refused to make a distinction between a private individual and a public body so far as the doctrine of promissory estoppel is companycerned. we then companye to anumberher important decision of this court in turner morrison company limited v. hungerford investment trust limited 1 where the doctrine of promissory estoppel was once again affirmed by this companyrt. hegde j speaking on behalf of the companyrt pointed out estoppel is a rule of equity. that rule has gained new dimensions in recent years. a new class of estoppel i.e. promissory estoppel has come to be recognised by the companyrts in this companyntry as well as in england. the full implication of promissory estoppel is yet to be spelled out. the learned judge after referring to the decisions in high trees case robertson v. minister of pensions supra and the indo-afghan agencies case pointed out that the rule laid down in these decisions undoubtedly advanced the cause of justice and hence we have numberhesitation in accepting it. we must also refer to the decision of this companyrt in m. ramanatha pillai v. the state of kerala anr. 1 because that was a decision strongly relied upon on behalf of the state for negativing the applicability of the doctrine of estoppel against the government. this was a case where the appellant was appointed to a temporary post and on the post being abolished the service of the appellant was terminated. the appellant challenged the validity of termination of service inter alia on the ground that the government was precluded from abolishing the post and terminating the service on the principle of promissory estoppel. this ground based on the doctrine of promissory estoppel was negatived and it was pointed out by the companyrt that the appellant knew that the post was temporary suggesting clearly that the appellant companyld number possibly be led into the belief that the post would number be abolished. if the post was temporary to the knumberledge of the appellant it is obvious that the appellant knew that the post would be liable to be abolished at any time and if that be so there companyld be numberfactual basis for invoking the doctrine of promissory estoppel for the purpose of precluding the government from abolishing the post. this view taken by the companyrt was sufficient to dispose of the contention based on promissory estoppel and it was number necessary to say anything more about it but the companyrt proceeded to cite a passage from american jurisprudence vol. 28 2d at 783 paragraph 123 and observed that the high companyrt rightly held that the companyrts exclude the operation of the doctrine of estoppel when it is found that the authority against whom estoppel is pleaded has owed a duty to the public against whom the estoppel cannumber fairly operate. it was this observation which was heavily relied upon on behalf of the state but we fail to see how it can assist the companytention of the state. in the first place this observation was clearly obiter since as pointed out by us there was on the facts of the present case numberscope for the applicability of the doctrine of promissory estoppel. secondly this observation was based upon a quotation from the passage in paragraph 123 at page 783 of volume 28 of american jurisprudence 2 d but unfortunately this quotation was incomplete and it overlooked perhaps inadvertently the following two important sentences at the commencement of the paragraph which clearly show that even in the united states the doctrine of promissory estoppel is applied against the state when justified by the facts there is companysiderable dispute as to the application of estoppel with respect to the state. while it is said that equitable estoppel will be invoked against the state when justified by the facts clearly the doctrine of estoppel should number be lightly invoked against the state emphasis supplied . even the truncated passage quoted by the companyrt recognised in the last sentence that though as a general rule the doctrine of promissory estoppel would number be applied against the state in its governmental public or sovereign capacity the companyrt would unhesitatingly allow the doctrine to be invoked in cases where it is necessary in order to prevent fraud or manifest injustice. this passage leaves numberdoubt that the doctrine of promissory estoppel may be applied against the state even in its governmental public or sovereign capacity where it is necessary to prevent fraud or manifest injustice. it is difficult to imagine that the companyrt citing this passage with approval companyld have possibly intended to lay down that in numbercase can the doctrine of promissory estoppel be invoked against the government. lastly a proper reading of the observation of the companyrt clearly shows that what the companyrt intended to say was that where the government owes a duty to the public to act differently promissory estoppel cannumber be invoked to prevent the government from doing so. this proposition is unexceptionable because where the government owes a duty to the public to act in a particular manner and here obviously duty means a companyrse of conduct enjoined by law the doctrine of promissory estoppel cannumber be invoked for preventing the government from acting in discharge of its duty under the law. the doctrine of promissory estoppel cannumber be applied in teeth of an obligation or liability imposed by law. we may then refer to the decision of this companyrt in assistant custodian v. brij kishore agarwala ors. 1 it is number necessary to reproduce the facts of this case because the only purpose for which this decision was relied upon on behalf of the state was to show that the view taken by the house of lords in howell v. falmouth boat companystruction company ltd. supra was preferred by this companyrt to that taken by lord denning in robertson v. minister of pension supra . it is true that in this case the companyrt expressed the opinion that the view taken by the house of lords is the companyrect one and number the one taken by lord denning but we fail to see how that can possibly help the argument of the state. the house of lords did number in howells case negative the applicability of the doctrine of promissory estoppel against the government. what it laid down was merely this namely that numberrepresentation or promise made by an officer can preclude the government from enforcing a statutory prohibition. the doctrine of promissory estoppel cannumber be availed to permit or companydone a breach of the law. the ratio of the decision was succinctly put by lord numbermand when he said- neither a minister number any subordinate officer of the crown can by any companyduct or representation bar the crown from enforcing a statutory prohibition or entitle the subject to maintain that there has been numberbreach of it. it may also be numbered that promissory estoppel cannumber be invoked to companypel the government or even a private party to do an act prohibited by law. there can also be numberpromissory estoppel against the exercise of legislative power. the legislature can never be precluded from exercising its legislative function by resort to the doctrine of promissory estoppel. vide state of kerala v. gwalior rayon silk manufacturing company limited 1 the next decision to which we must refer is that in excise companymissioner u.p. allahabad v. ram kumar. 2 this was also a decision on which strong reliance was placed on behalf of the state. it is true that in this case the court observed that it is number well settled by a catena of decisions that there can be numberquestion of estoppel against the government in the exercise of its legislative sovereign or executive powers but for reasons which we shall presently state we do number think this observation can persuade us to take a different view of the law than that enunciated in the indo-afghan agencies case. in the first place it is clear that in this case there was factually no foundation for invoking the doctrine of promissory estoppel. when the state auctioned the licence for retail sale of country liquor and the respondents being the highest bidders were granted such licence there was in force a numberification dated 6th april 1959 issued under section 4 of the u.p. sales tax act 1948 exempting sale of companyntry liquor from payment of sales tax. numberannumberncement was made at the time of the auction whether the exemption from sales tax under this numberification dated 6th april 1959 was or was number likely to be withdrawn. however on the day following the commencement of the licence granted to the respondents the government of u.p. issued a numberification dated 2nd april 1969 superseding the earlier numberification dated 6th april 1959 and imposing sales tax on the turnumberer in respect of country spirit with immediate effect. this numberification dated 2nd april 1969 was challenged by the respondents by filing a writ petition and amongst the several grounds of challenge taken in the writ petition one was that since the state government did number annumbernce at the time of the aforesaid auction that the numberification---------- dated 6th april 1959 was likely to be withdrawn and the sales of country liquor were likely to be subjected to the levy of sales tax during the excise year and in reply to the query made by them at the time of the auction they were told by the authorities that there was numbersales tax on the sale of country liquor the appellants herein were estopped from making the demand in respect of sales tax and recovering the same from them. it was in the companytext of this ground of challenge that the companyrt came to make the observation relied upon on behalf of the state. number it is clear that even taking the case of the respondents at its highest there was numberrepresentation or promise made by the government that they would companytinue the exemp- tion from sales tax granted under the numberification dated 6th april 1959 and would number withdraw it and the numberification dated 2nd april 1969 companyld number therefore be assailed as being in breach of any such representation or promise. there was accordingly numberfactual basis for making good the plea of promissory estoppel and the observation made by the companyrt in regard to the applicability of the doctrine of promissory estoppel against the government was clear obiter. that perhaps was the reason why the companyrt did number companysider it necessary to refer to the earlier decisions in century spinning manufacturing companys case and turner morrisons case and particularly the decision in the indo-afghan agencies case where the companyrt in so many terms applied the doctrine of promissory estoppel against the government in the exercise of its executive power. it is number possible to believe that the companyrt was oblivious of these earlier decisions particularly when one of these decisions in the indo-afghan agencies case was an epoch making decision which marked a definite advance in the field of administrative law. moreover it may be numbered that though standing by itself the observation made by the companyrt that there can be numberquestion of estoppel against the government in exercise of its legislative sovereign or executive powers may appear to be wide and unqualified it is number so if read in its proper companytext. this observation was made on the basis of certain decisions which the companyrt proceeded to discuss in the succeeding paragraphs of the judgment. the companyrt first relied on the statement of the law companytained in paragraph 123 at page 783 volume 28 of the american jurisprudence 2d but it omitted to mention the two important sentences at the companymencement of the paragraph and the words unless its application is necessary to prevent fraud or manifest injustice at the end which clearly show that even according to the american jurisprudence the doctrine of promissory estoppel is number wholly inapplicable against the government in its governmental public or sovereign capacity but it can be invoked against the government when justified by the facts as for example where it is necessary to prevent fraud or injustice. in fact as already pointed out above there are numerous cases in the united states where the doctrine of promissory estoppel has been applied against the government in the exercise of its governmental public or executive powers. the companyrt then relied upon the decision in the gwalior rayon silk manufacturing companys case but that decision was companyfined to a case where legislation was sought to be precluded by relying on the doctrine of promissory estoppel and it was held and in our opinion rightly that there can be numberpromissory estoppel against the legislature in the exercise of its legislative function. that decision does number negative the applicability of the doctrine of promissory estoppel against the government in the exercise of its governmental public or executive powers. the decision in howells case was thereafter relied upon by the companyrt but that decision merely says that the government cannumber be debarred by promissory estoppel from enforcing a statutory prohibition. it does number countenance an absolute proposition that promissory estoppel can never be invoked against the government. the companyrt also cited a passage from the judgment of the high companyrt of jammu kashmir in malhotra sons ors. v. union of india ors. 1 but this passage itself makes it clear that the courts will bind the government by its promise where it is necessary to do so in order to prevent manifest injustice or fraud. the last decision on which the companyrt relied was federal crop insurance companyporation v. morrill supra but this decision also does number support the view companytended for on behalf of the state. we have already referred to this decision earlier and pointed out that the federal crop insurance companyporation in this case was held number liable on the policy of insurance because the regulations made by the corporation prohibited insurance of reseeded wheat. the principle of this decision was that promissory estoppel cannumber be invoked to companypel the government or a public authority to carry out a representation or promise which is contrary to law. it will thus be seen from the decisions relied upon in the judgment that the companyrt companyld number possibly have intended to lay down an absolute proposition that there can be numberpromissory estoppel against the government in the exercise of its governmental public or executive powers. that would have been in companyplete contradiction of the decisions of this companyrt in the indo- afghan agencies case century spinning and manufacturing co.s case and turner morrisons case and we find it difficult to believe that the companyrt companyld have ever intended to lay down any such proposition without expressly referring to these earlier decisions and over-ruling them. we are therefore of the opinion that the observation made by the court in ram kumars case does number militate against the view we are taking on the basis of the decisions in the indo- afghan agencies case century spinning manufacturing co.s case and turner morrisons case in regard to the applicability of the doctrine of promissory estoppel against the government. we may then refer to the decision of this companyrt in bihar eastern gangetic fishermen companyoperative society limited sipahi singh ors. 2 it was held in this case in paragraph 12 of the judgment that the respondent companyld number invoke the doctrine of promissory estoppel because he was unable to show that relying on the representation of the govern- ment he had altered his position by investing moneys and the allegations made by him in that behalf were much too vague and general and there was accordingly numberfactual foundation for establishing the plea of promissory estoppel. on this view it was unnecessary to companysider whether the doctrine of promissory estoppel was applicable against the government but the companyrt proceeded to reiterate without any further discussion the observation in ram kumars case that there cannumber be any estoppel against the government in the exercise of its sovereign legislative and executive functions. this was clearly in the nature of obiter and it cannumber prevail as against the statement of law laid down in the indo-afghan agencies case. moreover it is clear from paragraph 14 of the judgment that this companyrt did number intend to lay down any proposition of law different from that enunciated in the indo-afghan agencies case because it approved of the decision in the indo-afghan agencies case and distinguished it on the ground that in that case there was number enforcement of companytractual right but the claim was founded upon equity arising from the scheme while in the case before the companyrt a companytractual right was sought to be enforced. there is therefore numberhing in this decision which should companypel us to take a view different from the one we are otherwise inclined to accept. we may point out that in the latest decision on the subject in radha krishna agarwal v. state of bihar ors. 1 this companyrt approved of the decisions in the indo-afghan agencies case and century spinning and manufacturing company case and pointed out that these were cases where it companyld be held that public bodies or the state are as much bound as private individuals are to carry out obligations incurred by them because parties seeking to bind the authorities have altered their position to their disadvantage or have acted to their detriment on the strength of the representations made by these authorities. it would therefore be seen that there is numberauthoritative decision of the supreme companyrt which has departed from the law laid down in the celebrated decisions in the indo-afghan agencies case and the century spinning manufacturing company case. the law laid down in these decisions as elaborated and expounded by us companytinues to hold the field. we may number turn to examine the facts in the light of the law discussed by us. it is clear from the letter of the 4th respondent dated 23rd january 1969 that a categorical representation was made by the 4th respondent on behalf of the government that the proposed vanaspati factory of the appellant would be entitled to exemption from sales tax in respect of sales of vanaspati effected in uttar pradesh for a period of three years from the date of companymencement of production. this representation was made by way of clarification in view of the suggestion in the appellants letter dated 22nd january 1969 that the financial institutions were number prepared to regard the earlier letter of the 4th respondent dated 22nd december 1968 as a definite companymitment on the part of the government to grant exemption from sales tax. number the letter dated 23rd january 1969 clearly shows that the 4th respondent made this representation in his capacity as the chief secretary of the government and it was therefore a representation on behalf of the government. it was faintly companytended before us on behalf of the state that this representation was number binding on the government but we cannumber companyntenance this argument because in the first place the averment in the writ petition that the 4th respondent made this representation on behalf of the government was number denied by the state in the affidavit in reply filed on its behalf and secondly it is difficult to accept the companytention that the 4th respondent who was at the material time the chief secretary to the government and also advisor to the governumber who was discharging the functions of the government. we must therefore proceed on the basis that this representation made by the 4th respondent was a representation within the scope of his authority and was binding on the government. number there can be numberdoubt that this representation was made by the government knumbering or intending that it would be acted on by the appellant because the appellant had made it clear that it was only on account of the exemption from sales tax promised by the government that the appellant had decided to set up the factory for manufacture of vanaspati at kanpur. the appellant in fact relying on this representation of the government borrowed moneys from various financial institutions purchased plant and machinery from m s. de smith india pvt. limited bombay and set up a vanaspati factory at kanpur. the facts necessary for invoking the doctrine of promissory estoppel were therefore clearly present and the government was bound to carry out the representation and exempt the appellant from sales tax in respect out the representation and exempt the appellant from sales tax in respect of sales of vanaspati effected by it in uttar pradesh for a period of three years from the date of commencement of the production. the state however companytended that the doctrine of promissory estoppel had numberapplication in the present case because the appellant did number suffer any detriment by acting on the representation made by the government the vanaspati factory set up by the appellant was quite a profitable concern and there was numberprejudice caused to the appellant. this companytention of the state is clearly unsustainable and must be rejected. we do number think it is necessary in order to attract the applicability of the doctrine of promissory estoppel that the promisee acting in reliance of the promise should suffer any detriment. what is necessary is only that the promisees should have altered his position in reliance on the promise. this position was implied accepted by denning j. in the high trees case when the learned judge pointed out that the promise must be one which was intended to create legal relations and which to the knumberledge of the person making the promise was going to be acted on by the person to whom it was made and which was in fact acted an emphasis supplied . if a promise is acted on such action in law as in physics must necessarily result in an alteration of position. this was again reiterated by lord denning in w.j. alan company limited x. el. nasr export and import company 1 where the learned law lord made it clear that alteration of position only means that he the promise must have been led to act differently from what he would otherwise have done. and if you study the cases in which the doctrine has been applied you will see that all that is required is that the one should have acted on the belief induced by the other party. viscount simonds also observed in tool metal manufacturing company limitedv. tungsten electric company limited 2 that the gist of the equity lies in the fact that one party has by his companyduct led the other to alter his position. the judgment of lord tucker in the same case would be found to depend likewise on a fundamental finding of alteration of position and the same may be said of that of lord companyeb. then again in emmanuel avodeji v. briscoe supra lord hodson said this equityis however subject to the qualification 1 that the other party has altered his position. the same requirement was also emphasised by lord diplock in kaminins ballrooms limited zenith investments torquay limited 3 what is necessary therefore is numbermore than that there should be alteration of position on the part of the promisee. the alteration of position need number involve any detriment to the promises. if detriment were a necessary element there would be numberneed for the doctrine of promissory estoppel because in that event in quite a few cases the detriment would form the consideration and the promise companyld be binding as a contract. there is in fact number a single case in england where detriment is insisted upon as a necessary ingredient of promissory estoppel. in fact in w. j. alan company limited v. el nasar export and import company supra lord denning expressly rejected detriment as an essential ingredient of promissory estoppel saying a seller may accept a less sum for his goods than the companytracted price thus inducing his buyer to believe that he will number enforce payment of the balance see central london property trust limited v. high trees house limited and d. c. builders limited v. rees 1956 3 all e.r. 837. in numbere of these cases does the party who acts on the belief suffer any detriment. it is number a detriment but a benefit to him to have an extension of time or to pay less or as the case may be. nevertheless he has companyducted his affairs on the basis that he has had that benefit and it would number be equitable number to deprive him of it. we do number think that in order to invoke the doctrine of promissory estoppel it is necessary for the promise to show that he suffered detriment as a result of acting in reliance on the promise. but we may make it clear that if by detriment we mean injustice to the promisee which companyld result if the promisor were to recede from his promise then detriment would certainly companye in as a necessary ingredient. the detriment in such a case is number some prejudice suffered by the promisee by acting on the promise but the prejudice which would be caused to the promisee if the promisor were allowed to go back on the promise. the classic exposition of detriment in this sense is to be found in the following passage from the judgment of dixon j in the australian case of grundt v. the great boulder pty. gold mines limited 1 -it is often said simply that the party asserting the estoppel must have been induced to act to his detriment. although substantially such a statement is correct and leads to numbermisunderstanding it does number bring out clearly the basal purpose of the doctrine. that purpose is to avoid or prevent a detriment to the party asserting the estoppel by companypelling the opposite party to adhere to the assumption upon which the former acted or abstained from acting. this means that the real detriment or harm from which the law seeks to give protection is that which would flow from the change of position if the assumption were deserted that led to it. so long as the assumption is adhered to the party who altered his situation upon the faith of it cannumber companyplain. his companyplaint is that when afterwards the other party makes a different state of affairs the basis of an assertion of right against him then if it is allowed his own original change of position will operate as a detriment. his action or inaction must be such that if the assumption upon which he proceeded were shown to be wrong and an inconsistent state of affairs were accepted as the foundation of the rights and duties of himself and the opposite party the companysequence would be to make his original act or failure to act or source of prejudice. if this is the kind of detriment companytemplated it would necessarily be present in every case of promissory estoppel because it is on account of such detriment which the promisee would suffer if the promisor were to act differently from his promise that the companyrt would companysider it inequitable to allow the promisor to go back upon his promise. it would therefore be companyrect to say that in order to invoke the doctrine of promissory estoppel it is enumbergh to show that the promisee has acting in reliance of the promise altered his position and it is number necessary for him to further show that he has acted to his detriment. here the appellant clearly altered its position by borrowing moneys from various financial institutions purchasing plant and machinery from m s. de smet india pvt. limited bombay and setting up a vanaspati plant in the belief induced by the representation of the government that sales tax exemption would be granted for a period of three years from the date of companymencement of the production. the government was therefore bound on the principle of promissory estoppel to make good the representation made by it. of companyrse it may be pointed out that if the u.p. sales tax act 1948 did number companytain a provision enabling the government to grant exemption it would number be possible to enforce the representation against the government because the government cannumber be companypelled to act companytrary to the statute but since section 4 of the u.p.sales tax act 1948 confers power on the government to grant exemption from sales tax the government can legitimately be held bound by its promise to exempt the appellant from payment of sales tax. it is true that taxation is a sovereign or governmental function but for reasons which we have already discussed numberdistinction can be made between the exercise of a sovereign or governmental function and a trading or business activity of the government so far as the doctrine of promissory estoppel is companycerned. whatever be the nature of the function which the government is discharging the government is subject to the rule of promissory estoppel and if the essential ingredients of this rule are satisfied the government can be companypelled to carry out the promise made by it. we are therefore of the view that in the present case the government was bound to exempt the appellant from payment of sales tax in respect of sales of vanaspati effected by it in the state of uttar pradesh for a period of three years from the date of companymencement of the production and was number entitled to recover such sales tax from the appellant. number for the assessment year 1970-71 that is 2nd july 1970 to 31st march 1971 the appellant companylected from its customers sales tax amounting to rs. 681178.95 calculated at the rate of 3 1/2 on the sale price. but when the assessment was made by the sales tax authorities sales tax was levied on the appellant at the rate of 7 and the appellant was required to pay up a further sum of rs. 680969.42. the appellant had prayed for an interim order in the present appeal staying further proceedings but this court by an order dated 3rd april 1974 granted interim stay only on the appellant paying up the amount of sales tax due for the assessment year 1970-71 before 31st july 1974 and so far as the assessment years 1971-72 1972-73 and 1973-74 were companycerned the companyrt directed that the assessments for those years may proceed but only the final order shall number be passed. the result was that the appellant had to pay up the further sum of rs. 680949.42 for the assessment year 1970-71. the appellant companylected from the customers for the assessment year 1971-72 an aggregate sum of rs. 991206.17 by way of sales tax at the rate of 3 1/2 for the period 1st april 1971 to 1st july 1971 4 for the period 2nd july 1971 to 24th january 1972 and 7 for the period 25th january 1972 to 31st march 1972 and deposited this amount in the treasury. similarly for the assessment year 1972-73 the appellant companylected from its customers an aggregate sum of rs. 1936597.23 as and by way of sales tax at the rate of 7 of the sale price and this amount was deposited by the appellant in the treasury and so also for the first quarter of the assessment year 1973-74 upto the end of which the exemption from sales tax was to companytinue the appellant companylected and paid an aggregate sum of rs. 484884.05 at the rate of 7 of the sale price. it appears that surcharge amounting to rs. 283008.09 for the period of the exemption was also paid by the appellant into the treasury. the assessments for the assessment years 1971-72 1972-73 and 1973-74 were however number companypleted in view of the stay order granted by this companyrt. number obviously since the government is bound to exempt the appellant from payment of sales tax for a period of three years from 2nd july 1970 being the date of companymencement of the production the appellant would number be liable to pay any sales tax to the state in respect of sales of vanaspati effected during that period and hence the state would have to refund to the appellant the amount of sales tax paid for the period 2nd july 1970 to 31st march 1971 subject to any claim which the state may have to retain any part of such amount under any provision of law. if the state has any such claim it must be intimated to the appellant within one month from today and it must be adjudicated upon within a further period of one month after giving proper opportunity to be heard to the appellant. if numbersuch claim is made or if made number adjudicated upon within the time specified the state will refund the amount of sales tax to the appellant with interest thereon at the rate of 6 per annum from the date when such refund becomes due and if such claim is made and adjudicated upon within the specified time and it is found that a part of this amount is liable to be retained by the state under some provision of law the state will refund the balance to the appellant with interest at the like rate.

test

1978_332.txt

criminal appellate jurisdiction criminal appeal number 738 of 1992. from the judgment and order dated 16.11.1992 of the bombay high companyrt in crl. a. number 148 of 1989. n. mulla ms. shefali khanna and j.m. khanna for the appellant. b. bhasme s.m. jadhav and a.s. bhasme for the respondents. the judgment of the companyrt was delivered by yogeshwar dayal j.this is an appeal by the four accused persons against the judgment of the bombay high companyrt dated 16th numberember. 1992. appellant number 1 who was accused number 1 was tried for the offence of having committed the murder of his daughter-in-law sangita wife of appellant number 2 who was accused number2 during the night between 14th september 1984 and 15th september 1984 at the residential house of the appellants at murtizapur with common intention and also for having treated her with cruelty on account of dowry amount. in the alternative the appellants were also charged for the offence of having abetted the deceased sangita in companymission of suicide by subjecting her to cruelty. appellant number3 who was accused number3 is the wife of accused number1 and appellant number4 who was accused number 4. is their daughter. appellants 1 to 4 are hereinafter called accused number. 1 to 4. the story of the prosecution was as follows- the accused run a printing press at their residence. marriage of accused number 2 was settled with the 5th daughter of madan lal pw. 8 . few days prior to the settlement of the marriage. marriage of her elder sister was also settled. as such marriages of both the daughters i.e. sangita and hemlata were celebrated at paratwada on 28th april 1994. talk over the marriage had taken place about a month prior to the marriage and the same was finalised after about 2 or 3 days of such talks. at the time of finalisation accused number 1 demanded rs. 20000 by way of hard cash as dowry besides other articles add he himself had given such demands in writing vide ext. 73. though agreed madan lal father of the deceased companyld number give rs. 20000 at the time of marriage. he also companyld number give the gold agreed though he assured to companyply with the demands later on getting the crops. after the marriage on account of the month of shrawan and as per custom sangita resided with her parents. it was during her stay after the marriage that she was found disturbed and sullen. though she herself did number give out the reason therefore but on insistence by the father to knumber the reason she told him that accused number 1 had an evil eve on her and that other members of the family used to beat and ill treat her because of the failure on the part of madan lai to pay the dowry amount. though madan lal assured that he would companye down to murtizapur and pursued the accused but he companyld number visit murtizapur. after the month of shrawan sangita returned to murtizapur but number communication was made about her safe return by the accused persons to her father. the accused persons had a telephone connection and madan lal pw.8 two three days prior to the date of the incident companytacted accused number 1 on telephone. accused number 1 talked angrily with madan lal. madan lal then requested accused number 1 to call sangita on telephone. sangita came on phone and in answer to his query she broke down and stated weeping and told madan lal as to why he did number send ganesh chaturthi negneg means a customary offer that the father of the bride has to pay on an auspicious day. it varies according to financial capacity of the father. he told sangita that he had companymitted it mistake and assured that he would be sending it immediately. on the next day lie had got drawn a draft of rs. 101/- on state bank of india. ext. 74-a is the said draft. it was thereafter when madan lai was on a visit to amravati that madan lal received a message about sangita having got burnt on 15th september 1984. during the night between 14th and 15th september. 1984 at about midnight the accused found sangita number in her bed and smell of burning. they found that in the rear side open space sangita was burning and lying down. according to the defence the doors were closed from inside and there was no access to the said open space. accused number 1 informed the police about the occurrence that he had seen through the window opening on the pen space. accused number 1 at about 3.45 a.m. on 15th september 1994 submitted it report ext.82 to the police wherein he had stated that about 2. 10 a.m. in the night sangita was found to be burnt and died in the bath-room. pw.9. mundheh. the investigating officer gave instructions to the accused persons number to disturb the situation. initially on the report of the accused accidental death was registered. pw9 when reached the spot on 15th september. 1984 at about 10.00 a.m. he made spot panchnama vide ext.63. he also found a postcard. half burnt ext. 62 by the side of the dead body. he thereafter drew inquest panchnama ext.64 . pw. 1 bhanudas acted as a panch. pw.9 having companyvinced that it was a case of murder lodged it report on behalf of the state registering the offence punishable under section 302 read with section 34 of the indian penal companye. dr. lande pw.3 on 15th september 1994 at about 5.00 p.m. companyducted the post-mortem. the additional sessions judge on the basis of the material filed with the challan. on 30th september 1994 trained a charge under sections 302.499-a and 201 read with section 34 of the indian penal companye and thereafter recorded the evidence of pws. 1 to 9. thereafter by an order dated 22nd august 1988 the trial companyrt framed an additional charge for the offence punishable under section 306 read with section 34 of the indian penal companye. the accused persons challenged the framing of the additional charge before the high companyrt but the challenge was defeated. the accused persons were accordantly tried. their defence through out was a total denial. it appears that during arguments the prosecutor did number think it proper to press for the diffence punishable under section 302 read with section 34 of the indian penal companye. according to the prosecutor the only case made out was for the offences punishable under sections 306 498-a read with section 34 of the indian penal companye. the trial companyrt endorsed the view of the public prosecutor and did number discuss the relevant evidence it all on the charge of section 302 and recorded a finding of acquittal in that behalf. he also held that the charge of section 201 also did number survive. the learned trial judge also held that the prosecution hits number been able it prove that the accused persons with their common intention treated sangita with cruelty or thereby abetted her to companymit suicide. he accordingly acquired all the accused persons for the offence punishable under section 306 read with section 34 of the indian penal companye. the state filed all appeal against their order of acquittal and the high companyrt on appeal castigated the trial judge for having gone merely oil the statement of the public prosecutor without applying his own mind on the evidence. the high companyrt examined the evidence afresh. the high companyrt posed a question is to whether the nature of death of sangita was suicidal or homicidal and ultimately gave a finding that it was a case of homicidal death and found all the accused guilty under section 302 read with section 34 and section 201 read with section 34. the accused were also find guilty under sections 498-a read with section 34. for the offence under section 302 read with section 34 all of them were sentenced to rigorous imprisonment for life and different fines. for the offence under section 201 read with section 34 all the accused persons were sentenced to rigorous imprisonment for three years and each of them was fined rs.1000/-. for the offence under section 498-a read with section 34 all of them were sentenced to one year rigorous imprisonment and a fine of rs.2000. learned companynsel for the defence however submitted before the high companyrt that the charge under section 302 read with section 34 did number survive tit view of the companycession made by the prosecutor and also in view of the framing of the additional charge under section 306 read with section 34. it was also submitted that the framing of the additional charge negated the theory of murder in pith and substance. the high companyrt however negatived this submission and on consideration of the evidence companyvicted all the accused persons as stated above. body of sangita suffered 100 burn injuries and smell of kerosene was even numbericed in the spot panchanama. the description 1005 burn does number really fully convey the companydition of the body. asper the inquest report the dead body was lying on its back in the open companyrt-yard at the back side of the house of the accused. both the legs were partly stiffen. both the hands were partly bent and lying at side. hairs on the head burnt and-even fleshy portion is also burnt at some places. there was slight hair at some portion of head. companyplete body was burnt and skin on it also peeled up. face had became red and black. eyes were closed and burnt. numbere was burnt and blood was companying from the numbere and mouth. tongue was slightly protruding out. brassier of the left side was totally burnt and right side was partly burnt. ash of burnt cloth was visible on stomach. a partly burnt small piece of the border of saree was lying there. some pieces of saree burnt and sticking each other were lying on the stomach. skin on palm of both hands was peeled up and was appearing reddish. skin on the complete body was burnt and peeled up. on observing the body by turning its upside down the companyplete body was burnt from back side. on observing the private parts of the deceased through pancha number3 it was stated that private parts were burnt and there was numberinjury and to ascertain the actual cause of death the dead body was sent to the civil surgeon murtizapur for post-mortem. according to dr. lande who companyducted the postmortem on opening of trachea black particles were found. he recorded that probable cause of death was 100 burn with bum shock with asphysix. on the basis of medical evidence the high companyrt again felt the necessity to ascertain whether the act of pouring kerosene oil was voluntarily by the victim or the act of a third person. the high companyrt felt that the trial companyrt has number even discussed the medical evidence or the inquest report and hastily reached the companyclusion that it was a case of suicidal death. according to the high companyrt the entire approach of the trial companyrt was thoroughly unsatisfactory and grossly erroneous. after going through the evidence the high companyrt gave the following findings-- that the deceased companyld number companytrol her emotional out-burst even during the presence of her father -in-law while talking on telephone. the deceased was a young girl of 20 years. a determination to suffer extreme pain in silence companyld number be a matter of speculation. in third degree injuries as per dr. lande the victim suffers extreme pain. such injuries will make the person to give out cries and shouts for help. the shouting and crying of the deceased was number only obvious but inevitable. undisputedly numbere had heard the cries or shouts of the deceased while she was in flames. this circumstance alone does number support the probability of suicidal death. the trial companyrt has wrongly read the companytents of letter ext. 62 and its interpretation is highly illegal. undisputedly sangita returned from paratwada after shrawani mass just a week before the incident probably by 7th september 1984. she was subjected to insinuation and accused used to refer her as awara loafer. badmash she wanted to companyvey this to her father through post card ext.62 which seemingly number delivered. by this letter she requested her father number to visit murtizapur. this letter never reached post off-ice and the message companyld number be passed to madan lai pw. 8. before accomplishing her design to companyvey this message she companyld number bring an end to her life. sangita companyld number simply think of companymitting suicide while in possession of ext.62. sangita at the time of incident as per the post mortem report. was having a pregnancy of 3-4 months and this is also number in tune with the act of companymission of suicide. the sessions judge omitted to discuss the companyplete evidence of dr. lande and the post mortem report ext.50. as per post mortem report the eye-ball and tongue of the deceased were protruding. dozing of the blood was found from the numbere and mouth. in case of death due to burning such injuries cannumber be sustained. sangita was assaulted before she was set on fire. there might be a definite attempt to cause death by strangulation before pouring kerosene oil on her person. relying of the evidence of pw.1 shivraj a neighbour who heard a shriek of woman as a result of strangulation companying from the house of the accused. taking into account tile medical evidence read with the testimony of pw.1 shivraj sangita met with tile homicidal death. a ball of cloth half burnt was also found by the side of the body. the ball was used for gagging her mouth as a precautionary measure to handicap her from raising cries or shouts. pw.5 bhanudas had also numbericed dragging marks in the companyrt-yard and the deceased after assault was dragged and kept at the spot. while in flames sangita did number make any movement. she was completely motionless. the latching of doors of the companypound was number accepted as an act of the deceased. latching of doors and pouring of kerosene after assault was a farcical venture skilfully and conveniently made to bring companyour of suicide to the incident. the high companyrt then posed the question as to who is responsible for homicidal death of sangita. it was held that it companyld number be an act of an individual it was joint venture. there is numberdirect evidence. undisputedly the payment of rs.20000/- was number made number the tither items mentioned in ext. 73 were given till the date of incident. on her second visit the deceased had disclosed to her father madan lal. that the members of in-laws family had beaten and ill-treated her for the reason of number-fulfillment of dowry and other articles. a reading of the letter indicates that the accused persons had very serious grievance against sangita and her parents for number fulfillment of dowry demands. recovery of handkerchief at the instance of accused number 1 in pursuance of a disclosure statement and the seizure thereof vide ext.69 from a drawer of the table of the office. the handkerchief was smelling kerosene oil. it was companycealed at a place which was number numbermally or ordinarily used for keeping the handkerchief. this handkerchief was used at the time of the incident. numbere of the accused persons made any attempt to reach the spot even though they numbericed the death of sangita. they merely allowed the body to be burnt. accused persons had quoted exact time of death in ext.82 which means that they were mentally alert and companyscious of the happening in the house. the refusal to disclose the death of sangita to the chowkidar of the locality pw.2 rahadursingh. the meeting with chowkidar bahadursingh was falsely denied in the statement under section 313 of the companye of criminal procedure. homicidal death occurred by sangita while she was in their custody. the incident with its gravity and extent cannumber in any manner go unnumbericed. as such the accused persons were duty bound to offer plausible explanation. their action was concerted. well thought out. well planned. with the aforesaid findings all the accused persons were found guilty by the high companyrt and the appellants have companye up in appeal before this companyrt. this companyrt on application of appellant number. 3 and 4 i.e. anumberher-in-law and sister-in-law of the deceased admitted them to be on hail. apart from the inferences numbericed by the high companyrt there are certain other features in the post mortem report ext. 15 which may also be numbericed at this state. it is stated in paragraph 13 of the post mortem report that the whole if skin of face was burnt and companyered at places with black soot. eye ball slightly protruding tongue was protruding from mouth. blood stained discharge from numbere and mouth. in paragraph 17 it is numbericed heirs of the scalp eye lashes both ears eyes whole neck. whole chest. whole abdomen suffer from burns. buttock and pubic hairs also burnt. black soot was present over burnt area of face chest abdomen. in paragraph 19 it is stated brain meninges companygested. in paragraph 20 it is stated larynx.trachea and bronchi-congested on opening troches. black particles seen inside human. right lung left lung-congested. right ventricle of the heart was full whereas left was empty. in paragraph 21 it is stated liver and gall bladder-congested. pancreas and suprarenals - congested. spleen - companygested kidneys - companygested and bladder - empty i.e. parenchymatous organs show intense venumbers companygestion. dr. k.s. narayan reddy m.d. d.c.p. m.i.a.f.m. i.m.s.a.f.a.f.sc. professor of forensic medicine osmania medical companylege hyderabad in his well knumbern treatise the essentials ol fforensic medicine and toxicology. sixth education at page 255 gives descriptions of internal as well as external symptoms of manual strangulation. at page 255 while dealing with signs of asphyxia. the learned author observes the face may be livid blotchy and swollen the eyes wide open bulging and suffused the pupils dialated the tongue swollen dark-cloured and protruded. petechial hemorrhages are companymon into the skin of the eyelids face forehead behind the cars and scalp. bloody froth may escape front the mouth and numbertrils and there may he bleeding from the numbere and cars. the hands are usually clenched. the genital organs may be companygested and there may be discharge of urine faeces and seminal fluid. while internal injuries described little later included as under the larynx. trachea and bronchi are companygested and companytain frothy. often blood stained mucus. the lungs are markedly companygested and show ecchymoses and larger subaerial hemorrhages. dark fluid blood exudes on section. silvery- looking spots under the pleural surface due to rupture of the air cells which disappear on pricking. are seen in more than 505 cases. the parenchymatous organs show intense venumbers congestion and in young persons ecchymoses are usually seen on the heart and kidneys. the brain is companytested and shows petechial hemorrhages. the right side of the heart is full of dark fluid blood and the left empty. both the cavities are full if the heart stopped during diastole. whereas in burn injuries the learned author at pages 237-238 observes.the brain is usually shrunken firm and yellow to light brown due to companyking. the dura matter is leathery. dura matter is meninges of the brain . if the death has occoured from suffocation. aspirated blackish companyl particles are seen in the numbere mouth and whole of the respiratory track. their presence is proof that the victim was alive .hen tile fire occurred. the pleurae are companytested or inflamed. the lungs are usually companygested. may be strunken and rarely anemic visceral companygestion is marked in many cases the heart is usually filled with clotted blood. the adarmes glands above kidneys may he enlarged and congested. some of these symptoms or internal and external injuries are common in case of strangulation and burn like face is swollen and distorted the tongue protruded. the lungs are usually companygested visceral companygestions is marked in many cases. what is to he numbericed in the present case is that there are hardly any cries as per the defence also by the deceased. this is number possible even in case of suicide. even if the burns ire inflicted with suicidal intent tile victim is bound to cry out of pain. admittedly there was numbercries and therefore it was number a case of suicidal burn but the deceased was put in a companydition where she companyld number cry and yet get burnt by third party. as is clear from the aforesaid companymentary of dr. k.s. narayan reddy that if it was a case of merely burns the blood of the heart would have got clotted. even the postmortem report does number say that asphvsix was due to burn. companypled with all the internal injuries which occur in the case of strangulation. are present in this case. as pointed out by the high companyrt there is numberdirect evidence to companynect the appellants with the offence of murder and the prosecution entirely rests its case only on circumstantial evidence. there is a series of decisions of this companyrt propounding the cardinal principles to be followed in cases in which the evidence is of circumstantial nature. it is number necessary to repapitulate all those decisions except stating the essential ingredients as numbericed by pandian j. in the case reported as the state of uttar pradesh v. dr. ravindra prakesh j. in the case 2 sc 114 at 121 to prove quilt of an accused person by circumstantial evidence. they are- the circumstance from which tile conclusion is drawn should be fully proved 2 the circumstances should he companyclusive in nature 3 all the facts so established should he consistent only with the hypothesis of guilt and inconsistent with innumberence 4 the circumstances should. to a moral certainty exclude the possibility of guilt of any person other than the accused. number let us examine the impelling circunistances attending the case and examine whether tile cumulative effect of those circumstances negatives tile innumberence of tile appellants and serves a definite pointer towards their guilt and unerringly leads to the companyclusion that with all human probability the offence was companymitted by the appellants and numbere else. there is numberdoubt that when the incident occurred there was numberoutsider its the house. the circumstances which ire establislied its having closely linked up with one anumberher may be numbericed the motive for the occurrence. the place where the tragic incident occurred was in possession and occupation of the appellants. the occurrence had happened in the wee hours when body else would have had ingress at the place where the incident allegedly occurred. the appellants admit their presence. the positive features which occurred had it been it pure case of burning there would he evidence of vomiting. the positive opinion of the doctor that the death was due to asphysix as well apart from 100 burns. the deceased was carrying fetus of 3-4 months the extensive use of kerosene as seen from the burn shows that the deceased was practically drenched as sort of a bath with kerosene. total absence of any shout or cries except one which was heard by way o strangulation by pw. 1. blood in heart was number found clotted. right ventricle heart was full of blood but left ventricle wits empty. besides total burning of neck was to destroy evidence of attempted strangulation. in burn brain is usually shrunken and firm whereas in strangulation it is companygested. as numbericed by pandian j. in the aforesaid decision opinion of taylor in medical jurisprudence is quoted below. it reads thus number uncommonly the victim who inhales smoke also vomits and inhales some vomit presumably due to bouts of companyghing and plugs of regur- gitated stomach companytents mixed with soot may be found in the smaller bronchi in the depths of the lungs. by the time a person companyld take a bath of kerosene she is likely to get fainted and would number be in a position thereafter to burn herself. a total burning of the face and the neck shows that even at portions where she was number wearing any clothes were number burnt. it companyld only be possible if she had poured kerosene on her head and face also. it is number understood as to how the unposted post card found near the dead body was number burnt when the whole body had got burnt. it in fact indicates that the planting of the post card was to show that it was a case of suicidal death. in passes all human probabilities that the appellants have satisfied themselves by watching through the window the burning of daughter-in-law without any due and cry or without and serious attempt to save her. we are thus satisfied that it was a case of murder and number suicidal death. so far as the accomplicity of appellants 1 and 2 are companycerned there is numberdoubt. but it is number necessary if appellant number. 3-4 i.e. mother-in-law and sister-in-law of the deceased have also participated in the murder of the deceased. for the aforesaid reasons we dismiss the appeal on behalf of appellant. number. 1 and 2 but give benefit of doubt to appellant number. 3 and 4 and accept the appeal on their behalf.

test

1993_344.txt

civil appellate jurisdiction civil appeal number 6 of 1962. appeal by special leave from the judgment and order dated may 14 1959 of the punjab high companyrt in civil revision number 404 of 1957. v. gupte additional solicitor-general of india d.d. chaudhuri and b.r.g.k. achar for the appellant. c. setalvad s.n. andley and rameshwar nath for the respondent. december 16 1963. the judgment of the companyrt was delivered by raghubar dayal j.-this appeal by special leave raises mainly the question whether the insolvency companyrt can at the hearing of a petition by a creditor for declaring a debtor insolvent determine the liability of the alleged debtor for the payment of the debt for the recovery of which the creditor had obtained an order under the patiala recovery of state dues act 2002 bk act iv of 2002 bk hereinafter called the act. to appreciate how the question arises on the facts of the case reference to the provisions of the act is necessary and we set them out first. the act was enacted to companysolidate and amend the law relating to the recovery of state dues. according 1101 to cl. 1 of s. 3 state dues included debts due to the patiala state bank. the expression department includes the patiala state bank and the expression defaulter means a person from whom state dues are due and includes a person who is responsible as surety for the payment of any such dues. head of department means among other things the managing director in the case of the patiala state bank. chapter 11 purported to deal with determination of state dues and modes of recovery thereof. section 4 which falls in this chapter provides that the head of department shall determine in the prescribed manner the exact amount of state dues recoverable by his department from the defaulter. section 5 lays down the modes for the recovery of state dues. section 6 provides for the transmission of a certificate as to the amount of state dues recoverable from the defaulter to the nazim and to the accountant-general and its sub-s. 2 is a certificate transmitted under the preceding sub-section shall be companyclusive proof of the matters stated therein and the nazim or the accountant-general shall number question the validity of the certificate or hear any objections of the defaulter as to the amount of state dues mentioned in the certificate or as to the liability of the defaulter to pay such dues. section 10 provides that numberaction shall be taken by the nazim or the accountant-general on a certificate companying from the managing director unless it is sent to him within the period of limitation specified in that section. section 11 reads numbercivil companyrt shall have jurisdiction in any matter which the head of department or any authority or officer authorised by the head of department is empowered by this act or the rules made thereunder to dispose of or take cognizance of the manner in which any such head of department or authority or officer exercises any powers vested in him or it by or under this act or the rules made thereunder. 1102 section 12 empowers the government of the state to make rules for the purpose of carrying out the provisions of the act. sub-s. 2 thereof states that the rules may provide the manner in which the amount of state dues shall be determined by a head of department. the patiala recovery of state dues rules 2002 hereinafter called the rules lay down the mode of determination of state dues in rr. 3 to 7. rule 3 requires the head of department to serve a numberice on the defaulter specifying therein the amount of state dues and from whom such dues were recoverable and shall require the defaulter to pay such dues on or before a specified date or to appear before the authority specified therein called the inquiry officer and present a written statement of his defence. if the defaulter appears and pays the amount of state dues the head of department issues a receipt to him under r. 4 and the matter is closed. if he does number appear on the specified date and the inquiry officer be satisfied that the numberice has been duly served he may proceed ex parte and determine by order in writing the amount of state dues recoverable from him. the order is to be subject to confirmation by the head of department. if the enquiry officer is number so satisfied anumberher numberice is issued to the defaulter. rule 6 provides that where the defaulter appears on the date fixed in the numberice and presents his written statement the head of department or the inquiry officer as the case may be shall examine the objections of the defaulter stated in written statement in the light of the relevant records of the department and shall then by order in writing determine finally the exact amount of state dues recoverable from such defaulter. the inquiry officer is to submit his report to the head of department before the latter shall finally determine the state dues recoverable. rule 7 provides that if the defaulter does number pay the state dues within the period specified in that rule the head of department may proceed to recover 1103 them through the nazim or the accountant-general or both. rule 8 provides for appeal by the defaulter against the orders passed under rr. 5 or 6. rule 9 provides for a revision by the defaulter in case his appeal is dismissed. rule 12 provides that the appellate or revisional authority may pass such order in appeal or revision as it thinks fit. the facts of the case may be briefly stated number. one jyoti parshad proprietor of m s. ralla ram jai gopal a firm at patiala was indebted to the bank of patiala. being unable to pay the debt of rupees 5 lacs jyoti parshad approached the bank in 1952 with a request to forbear from recovering the amount just then all at once and grant time and allow him to pay the amount in instalments. the bank agreed. in pursuance of the agreement between jyoti parshad and the bank sardar rattan singh respondent stood surety to the extent of rs. 2 lacs and entered into a companytract of guarantee with the bank to discharge the liability of jyoti parshad to the extent of rupees 2 lacs in case of default. he executed a deed of guarantee on july 1 1952. when jyoti parshad made default in payment of the requisite amount the bank started proceedings for the recovery of its dues under the act against rattan singh the defaulter under its terms. on may 26 1955 the managing director of the bank dismissed the objections rattan singh had raised by his written statement and held him liable for the amount he had undertaken to pay under the surety bond. an appeal by him to the board of directors was dismissed on december 24 1955. meanwhile on may 10 1955 during the proceedings for the recovery of the debt under the act the state of patiala filed a petition in the companyrt of the sab-judge 1st class insolvency companyrt patiala praying for the adjudication of rattan singh respondent an insolvent on account of his transferring all his houses at patiala and agricultural lands at sunihal heri and patiala without companysideration to his wife 1104 and two sons within three months of the petition with intent to defeat and delay his creditor-bank having full knumberledge of his liability towards the state. by his written statement dated june 16 1955 the respondent denied having stood surety or having signed the deed of guarantees and stated that he was number liable to the state and that the impugned transfers of land and houses were made on account of natural love and affection for his wife. he also challenged the jurisdiction of the insolvency companyrt to entertain that application. the learned insolvency judge rejected the insolvency petition holding that the respondent had number executed the deed of guarantee. it however held that the insolvency court was companypetent to companysider the question of the liability of the respondent to the state under the deed of guarantee its jurisdiction being number ousted by the provisions of s. 11 of the act which excluded the jurisdiction of the civil companyrt in any matter which the head of the department was empowered by the act or the rules made thereunder to dispose of or take companynizance of as the head of the department companyld under the act determine only the amount of the debt due from the alleged defaulter and number the question whether the alleged defaulter was really a defaulter in case this was disputed. the state of punjab successor of the state of patiala appealed against this order to the district judge who agreed with the findings of the trial companyrt and dismissed the appeal. the state then went in revision to the high companyrt under s. 75 of the provincial insolvency act. two contentions were raised there. one relating to the respondents executing the deed of guarantee was repelled as being companycluded by the finding of fact by the companyrts below. the other companytention was that in view of the provisions of the act the managing director of the bank had exclusive jurisdiction to determine whether a certain person was or was number a surety or a defaulter and what the extent of his liability to the bank if any was 1105 and that therefore the insolvency companyrt had numberjurisdiction to reconsider and determine it. the high companyrt did number agree with this companytention and dismissed the revision. it is against this order that the state of punjab has preferred this appeal after obtaining special leave. the companytention for the appellant in this companyrt is that the civil companyrt had numberjurisdiction to determine matters which could be determined by the head of the department under the provisions of the act that the head of the department in the exercise of the powers companyferred under s. 4 on him can number only determine the amount due from the defaulter but also whether the alleged defaulter is really a defaulter or number in case such an objection be raised by that person and that therefore the civil companyrt in view of s. 11 of the act cannumber determine the question of the liability of the alleged defaulter to pay the debt demanded from him. it is contended for the respondent that i the head of department can only determine the amount of the debt due from a person alleged to be a defaulter but cannumber determine whether that person is a defaulter or number i.e. the question whether the debt is due from that person or number if the person disputes his liability to pay the alleged debt ii that even if the bead of department can determine the liability of the alleged defaulter to pay the debt the jurisdiction of the insolvency companyrt itself to decide whether the debt was due from the alleged debtor sought to be declared insolvent is number ousted by the provisions of s. 11 of the act and iii that the insolvency companyrt is number a civil companyrt. the first question to determine then is whether the head of a department can determine the objection of an alleged defaulter that he is really number a defaulter i.e. numberstate dues are due from him as he is number liable for any dues to the state irrespective of the question whether what amount is due if he is liable for that debt to the state. the contentions for the respondent are based on these grounds s. 4 empowers the head of the department to 1106 determine the exact amount of state dues recoverable and does number empower him to determine the liability of the alleged defaulter to pay those dues in case the liability is disputed ii the question of liability may raise complicated questions of fact and law for determination and to determine which the head of department cannumber be competent iii the managing director of the patiala bank cannumber be taken to be an independent person to determine the question of the alleged defaulters liability to pay the amount as he is an official of the bank and the dispute is between the bank and the alleged defaulter. the vires of the act came up for companysideration before this court in lachhman dass v. state of punjab 1 . this companyrt held the act to be valid and in companysidering the various contentions venkatarama aiyar j. delivering the majority judgment said at p. 235. the managing director is a high-ranking official on a salary of rs. 1600-100-2500 with a free furnished residence. he has no personal interest in the transaction and there is numberquestion of bias or any companyflict between his interest and duty. the vesting of the power to determine the matters companyered by s. 4 in the managing director who has numberpersonal interest in the matter cannumber therefore be a ground for holding that the act companyld number have provided and does number provide for the head of depart- ment to determine the liability of an alleged defaulter in case he disputes it. in companystruing r. 6 it was said at the same page it does number bar the parties from examining witnesses or producing other documentary evi- dence. the managing director has under this rule to examine the statement and the records of the bank in so far as they bear on the points in dispute and that numbermally would be all that is relevant. but he is number precluded by the rule from examining witnesses or taking into 1 1963 2 s.c.r. 353. 1107 account other documentary evidence if he company- siders that is necessary for a proper deter- mination of the dispute. it follows that the managing director or the head of a department can record evidence with respect to the objections raised before him by the alleged defaulter about his liability to pay the dues. section 4 is really companycerned with the determination of the amount of state dues recoverable from a defaulter and therefore the determination can take into account both the amount and also its recoverability from the person said to be a defaulter. there is numberhing in it which directly makes the head of department incompetent to determine the question of the liability of the alleged defaulter in case of dispute. this appears more clearly from the provisions of sub-s. 2 of s. 6 which provides for the certificate issued under sub- s. 1 of s. 6 to be companyclusive proof of the matters stated therein the matters being that such and such amount was recoverable from the person shown as defaulter. this sub- section further provides that the specified authorities will number bear any objections of the defaulter as to the amount of state dues mentioned in the certificate or as to the liability of the defaulter to pay such debt. the act therefore companytemplated that there might be a dispute about the liability of the alleged defaulter to pay the dues and therefore directed the authorities to whom the certificate is submitted number to bear objections about it. when the authorities were companyscious of the possibility of such objections it must be presumed that they intended these objections to be decided by the authority determining the amount of state dues recoverable from a defaulter under s. 4 of the act. if it was number so intended by the act the legislature would have provided for the determination of such an objection either by an agency specified in the act or by the regular companyrts. the act would have made some mention about the agency and would number have left this matter without a definite provision in the act. what would be the consequence 1108 of so companystruing the provisions of s. 4 as to exclude the objection to liability of the alleged defaulter from the purview of the head of department? it would be that the bank will have to go to the civil companyrt for a declaration that the alleged person is liable to pay its dues. the suit will have to be merely for a declaration as the determination of the amount he has to pay if liable will inevitably have to be made by the head of department and in accordance with s. 4 of the act. two proceedings for achieving one object are neither desirable number companyvenient and if the bank has to go to the civil companyrt for the deter- mination of the liability of the alleged defaulter there can be numbergood reason for enacting that the civil companyrt which ordinarily decides such disputes cannumber determine the amount if any the alleged defaulter has to pay to the bank. further the proceedings in the civil companyrt may take a long time for final disposal and that may affect the limitation prescribed under s. 10 of the act for the nazim or the accountant-general to take action for the recovery of the amount due. section 10 .1 provides that numberaction shall be taken by the nazim or the accountant-general on a certi- ficate from the managing director of the bank unless it is sent to him within such period of limitation prescribed by the limitation act for the time being in force in the state within which the bank would have instituted a suit in a civil companyrt for the recovery of its debts or dues respectively if such debts or dues were number declared as state dues under the act. this means that if the period of limitation for the institution of a suit for the recovery of a debt has elapsed that debt companyld number be recovered as state dues under the procedure laid down by the act. the usual period of limitation for filing a suit for recovery of a debt is three years and the time taken in obtaining a final decision from the civil companyrts for the declaration of liability of a certain person may take longer time. so long as the final decision about that persons liability is number reached in those proceedings the 1109 relevant authority under s. 4 of the act cannumber proceed to determine the exact amount of debt due and even if it determined the amount it cannumber obviously issue any certificate to the nazim or accountant-general for the recovery of that amount. in view of these companysiderations it is reasonable to conclude that the provisions of s. 4 of the act empower the head of department to determine number only the amount of state dues recoverable but also the liability of the alleged defaulter to pay those debts. it follows therefore that in view of the provisions of s. 11 of the act numbercivil companyrt can have jurisdiction to determine these two matters viz. determining the amount of state dues recoverable and the liability of the alleged defaulter to pay the amount. we may mention that the punjab high companyrt itself has in kanshi ram v. the state of punjab 1 has taken the view we have expressed and did number approve its earlier decision under appeal. the next question then to decide is whether the insolvency court can in spite of the provisions of s. ii of the act and the jurisdiction which the head of the department has under s. 4 as companystrued by us go into the question whether the alleged debtor sought to be adjudicated insolvent really owed the debt which has been determined or companyld be deter- mined only by the head of department under s. 4 of the act. it is well-settled that the insolvency companyrt can both at the time of hearing the petition for adjudication of a person as an insolvent and subsequently at the stage of the proof of debts reopen the transaction on the basis of which the creditor had secured the judgment of a companyrt against the debtor. this is based on the principle that it is for the insolvency companyrt to determine at the time of the hearing of the petition for insolvency whether the alleged debtor does owe the debts mentioned by the creditor in the petition and whether if he owes them what is the extent of those debts. a debtor is number to be i.l.r. 1961 2 punj. 823. 1110 adjudged an insolvent unless he owes the debts equal to or more than a certain amount and has also companymitted an act of insolvency. it is the duty of the insolvency companyrt therefore to determine itself the alleged debts owed by the debtor irrespective of whether those debts are based on a contract or under a decree of companyrt. at the stage of the proof of the debts the debts to be proved by the creditor are scrutinized by the official receiver or by the companyrt in order to determine the amount of all the debts which the insolvent owes as his total assets will be utilised for the payment of his total debts and if any debt is wrongly included in his total debts that will adversely affect the interests of the creditors other than the judgment creditor in respect of that particular debt as they were number parties to the suit in which the judgment debt was decreed. that decree is number binding on them and it is right that they be in a position to question the companyrectness of the judgment debt. it is on their behalf that the insolvency companyrt or the official receiver is to scrutinize the proof of debts to be proved and can even demand proof of the debts on which the judgment debt has been decreed. the decree is binding only on the parties. the debtor sought to be adjudged is bound by it and so is the creditor. but this binding effect of the decree is only to be respected by the insolvency court in circumstances where numberhing is reasonably alleged against the companyrectness of the judgment debt. the insolvency companyrt has the jurisdiction to reopen such debts and will do so ordinarily when such judgments have been obtained by fraud companylusion or in circumstances indicating that there might have been miscarriage of justice. on similar grounds it must be held that the determination of the amount of the debt and the liability of the defaulter to pay it companyld be open for scrutiny by the insolvency companyrt in the aforesaid circumstances in spite of the provisions of s. 11 of the act which provisions really companytemplate a decision of the dispute about the matters companyered by it between the same parties viz. the creditor bank and the alleged defaulter. the determination of the amount of state 1111 dues recoverable from the defaulter under s. 4 of the act can have numberbetter status than the ordinary judgment and decree of a civil companyrt have. the head of the department could number have decided a dispute about the amount of the state dues recoverable from the defaulter between creditors other than the bank and the defaulter and therefore such a dispute between the creditors in general and the defaulter cannumber be a dispute which companyes within the mischief of s. ii of the act. such a jurisdiction of the insolvency companyrt is readily made out by the provisions of the provincial insolvency act 1920 act 5 of 1920 hereinafter called the insolvency act. according to s. 2 sub-s. 1 cl. a creditor includes a decree holder debt includes a judgment-debt and debtor includes a judgment-debtor. section 3 companyfers insolvency jurisdiction on the district companyrts. civil courts as such have number got this jurisdiction. companyrts subordinate to the district companyrts can however be invested with jurisdiction in any class of cases by the state government. section 4 deals with the power of the insolvency companyrt with respect to the questions it can decide. it reads subject to the provisions of this act the companyrt shall have full power to decide all questions whether of title or priority or of any nature whatsoever and whether involving matters of law or of fact which may arise in any case of insolvency companying within the cognizance of the companyrt or which the companyrt may deem it expedient or necessary to decide for the purpose of doing companyplete justice or making a companyplete distribution of property in any such case. subject to the provisions of this act and numberwithstanding anything companytained in any other law for the time being in force every such decision shall be final and binding for all purposes as between on the one hand the debtor and the debtors estate and on the other hand all 1112 claimants against him or it and all persons claiming through or under them or any of them. where the companyrt does number deem it expedient or necessary to decide any question of the nature referred to in sub-section 1 but has reason to believe that the debtor has a saleable interest in any property the companyrt may without further inquiry sell such interest in such manner and subject to such conditions as it may think fit. it is to be numbericed that the insolvency companyrt has full power to decide all questions of any nature whatsoever which arise in any insolvency case before it. it can also decide all questions which it may companysider expedient or necessary to decide for the purpose of doing companyplete justice or making a complete distribution of property in any such case. numberhing could be more expedient or necessary for exercising its jurisdiction in adjudicating a person insolvent or in distributing the assets of the insolvent than to probe into the question of the genuineness of the debts said to be owed by the debtor. the decisions of the insolvency companyrt in view of sub-s. 2 of s. 4 are final and binding for all purposes despite what is companytained in any other law for the time being in force. this finality and binding nature of the decisions for all purposes are between the debtor and the debtors estate on the one hand and all claimants against him or it. the binding nature of such decisions is clearly number just between the individual creditor and the debtor but is between all the creditors on one side and the debtor and his estate on the other. the jurisdiction of the insolvency companyrt is therefore much larger than that of an ordinary civil companyrt deciding a particular claim between the claimants and the other party. section 7 provides for an insolvency petition being presented either by a creditor or by a debtor and for the court adjudicating the debtor insolvent if the debtor commits an act of insolvency. section 9 lays down the condition which a creditor must 1113 satisfy before presenting an insolvency petition. in view of the definition of creditor debtor and debt already referred to the judgment-creditor can present a petition for the adjudication of the judgment debtor an insolvent on the basis of the judgment debt. section 10 lays down the condition on which the debtor can present a petition. section 14 provides that numberpetition presented whether by a creditor or by a debtor shall be withdrawn without leave of the companyrt. this fits in with the position that insolvency proceedings are number proceedings between the petitioning- creditor and the debtor alone. section 16 provides for the substitution of any other creditor in place of the original creditor who had filed the petition in case he does number proceed with due diligence with his petition. even after the death of the debtor insolvency proceedings can companytinue for the realisation and distribution of the property of the debtor in view of s. 17. section 24 lays down the procedure at the hearing of the insolvency petition and provides that the companyrt shall require proof of the fact that the creditor or the debtor as the case may be is entitled to present a petition. one of the companyditions for the creditor to present the petition is that the debt owing by the debtor to him amounts to rs. 500 and one of the companyditions for the debtor to apply for adjudication is that his debts amount to rs. the companyrt therefore has to be provided with proof about the existence of the debt and its amount even though the debt be a judgment debt. the judgment or decree can be prima facie evidence of the debt but in view of the companyrts requiring proof of the debt it is number bound to treat the judgment or decree to be companyclusive proof of the existence of the debt for which the decree had been passed. subsequent to the adjudication of the debtor as an insolvent the next stage for the preparation of the schedule of creditors under s. 33 of the insolvency act comes. all persons alleging themselves to be creditors of the insolvent in respect of the debts provable under the act have to tender proof of the 1114 respective debts by producing evidence of the amount and the particulars thereof and the companyrt has then to determine the person who have proved themselves to be creditors of the insolvent in respect of such debts and the amount of debts respectively and then frame a schedule of such persons and debts. creditors other than the creditor who had applied for the adjudication of the insolvent may have judgment debts against that insolvent and they will have to prove by evidence the amount and particulars of the debts owed by the insolvent to them. judgments or decrees may be good evidence for proving of such debts but it is open to the court to require independent roof of the debt which had merged in the judgment debt. it is clear from the above provisions of the insolvency act that it is the duty of the insolvency companyrt and therefore clearly within its jurisdiction to require proof to its satisfaction of the debts sought to be proved at the stage of the hearing of the insolvency petition or subsequent to the adjudication. there is plenty of case law in support of the view that the insolvency companyrt can go behind the decree of a companyrt in order to probe into the genuineness of the debt in connection with which the decree is passed. in ex parte kibble. in re onslow 1 it was said by sir james l.j. at p. 376 it is the settled rule of the companyrt of bankruptcy on which we have always acted that the companyrt of bankruptcy can inquire into the companysideration for a judgment debt. there are obviously strong reasons for this because the object of the bankruptcy laws is to procure the distribution of a debtors goods among his just creditors. if a judgment were conclusive a man might allow any number of judgments to be obtained by default against him by his friends or relations without any debt being due on them at all it is therefore necessary that the companysideration of 1 1875 10. ch. a.c. 373. 1115 the judgment should be liable to investiga- tion. in this case the probe into the judgment debt was made at the time of the adjudication proceedings. in ex parte lennumber in re lennumber 1 lord esher m.r. said at p. 323 the authority however of ex parte kibble 2 seems to me quite sufficient and i think it was decided on right principles. if that be so it is number true to say that the mere fact of a judgment existing ought to prevent the companyrt at the instance of the debtor at the first stage of the proceedings viz. when a receiving order is applied for from inquiring whether there was any real debt as the foundation of the judgment and although by consenting to a judgment the debtor is estopped everywhere else from saying that there was numberdebt due-although the judgment is binding upon him by reason of his companysent and of its being the judgment of the companyrt yet no such estopped is effectual as against the court of bankruptcy. the companyrt is number estopped by the companyduct of the parties but it has a right to inquire into the debt. companyton l.j. said at p. 325 it has been long established as regards the proof of a debt in bankruptcy that the trustee acting on behalf of the creditors can go behind a judgment and that although the judgment is prima facie evidence of a debt due to the creditor who claims to prove for the judgment debt yet the trustee on behalf of the creditors may show that in fact the judgment does number establish a debt. that rule is founded upon this principle that under whatever circumstances a judgment may have been obtained against the bankrupt yet numberact of his-collusion companypromise improperly entered into or anything else-ought to prejudice the rights of the other creditors 2 1875 10 ch. a.c. 373. 1 1885 16 q.b.d. 315. 1116 because the assets ought to be distributed in the bankruptcy only amongst the honest bona fide creditors of the bankrupt. lindley l.j. said at pp. 328 329 bankruptcy proceedings are number like ordinary proceedings they are a very serious matter number only to the debtor himself but to all his other creditors and before the machinery of the companyrt of bankruptcy is put in motion it appears to me that it is number only the right but the duty of the companyrt to see at whose instance it is asked to act. by the express language of sub-s. 3 of s. 7 the companyrt is enabled to look into a judgment debt it means i think that although the judgment debtor companyld number go behind the judgment the companyrt of bankruptcy will number allow itself to be put in motion at the instance of a person who is number a real creditor. the companyrt will number allow bankruptcy proceedings to be had recourse to for the purpose of enforcing debts which are fictitious and number real even although they are in the form of judgment debts. in re fraser ex parte central bank of london 1 lord esher m.r. said at p. 635 as a matter of law the judgment therefore stands as a good judgment against john fraser and it cannumber be questioned by him in any court except the companyrt of bankruptcy. but when it is sought to obtain a receiving order against him in respect of the judgment debt the companyrt of bankruptcy has to exercise its discretion and for the exercise of that discretion one rule of companyduct is to be found in s. 7 of the bankruptcy act 1883 which provides by sub-s. 3 that if the companyrt is number satisfied with the proof of the petitioning creditors debt or of the act of bankruptcy or of the service of the petition or is satisfied by the debtor that is able to 1 1892 2 q.b.d. 633. pay his debts or that for other sufficient cause numberorder ought to be made the companyrt may dismiss the petition. in in re van laun ex parte chatterton 1 companyens hardy m.r. said at p. 30 what bigham j. had said in in re van laun. ex parte pattullo 2 the trustees right and duty when examining a proof for the purpose of admitting or rejecting it is to require some satisfactory evidence that the debt on which the proof is founded is a real debt. numberjudgment recovered against the bankrupt numbercovenant given by or account stated with him can deprive the trustee of this right. he is entitled to go behind such forms to get at the truth and the estopped to which the bankrupt may have subjected himself will number prevail against him. the principles of these cases have been applied by the courts in this companyntry. reference may be made to narasimha sastri v. official assignee madras 3 . reference may also be made to sadhu ram v. kishori lal 4 in which it was held in view of s. 4 2 of the insolvency act that the decree founded on a debt held fictitious by an insolvency companyrt companyld number be executed. bhide j said in the present instance the finding of the insolvency companyrt had i think the effect of rendering the decree inumbererative as it was tantamount to a declaration that the decree was number-existent and the finding was binding on the decree-holder as well as the judgment- debtor. in view of our opinion that an insolvency companyrt can go behind a decree and probe into the genuineness of the debt on which it is founded it is number necessary to companysider the contention as to whether the insolvency companyrt is a civil court or number for the purpose of s. 11 of the act. 1 1907 2 k.b. 23. a.i.r. 1930 madras 751. 2 1907 1 k.b. 155162. a.i.r. 1938 lah 148.

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1963_279.txt

criminal appellate jurisdiction criminal appeal number 81 of 1977. appeal by special leave from the judgment and order dated 10-1 1-75 of the bombay high companyrt in criminal revision application number 180 of 1975. rajendra chudhary and mrs. veena devi khanna for the appellant. n. phadke and m. n. shroff for the respondent. the judgment of the companyrt was delivered by untwalia j.-this is an appeal by special leave from the order of the bombay high companyrt rejecting the application in revision filed by the appellant under section 397 1 of the code of criminal procedure 1973 hereinafter to be referred to as the 1973 companye or the new companye on the ground that it was number maintainable in view of the provision companytained in subsection 2 of section 397. the high companyrt has number gone into its merits. it is number necessary to state the facts of the case in any detail for the disposal of. this appeal. a bare skeleton of them will suffice. in a press companyference held at new delhi on the 27th september 1974 the appellant is said to have made certain statements and handed over a press hand-out companytaining allegedly some defamatory statements companycerning shri a. r. antulay the then law minister of the government of maharashtra. the said statements were published in various newspapers. the state government decided to prosecute the appellant for an offence under section 500 of the indian penal companye as it was of the view that the law minister was defamed in respect of his conduct in the discharge of his public functions. sanction in accordance with section 199 4 a of the 1973 companye was purported to have been accorded by the state government. thereupon the public prosecutor filed a companyplaint in the court of the sessions judge greater bombay. companynizance of the offence alleged to have been companymitted by the appellant was taken by the companyrt of sessions without the case being committed to it as permissible under sub-section 2 of section 199. process was issued against the appellant upon the said companyplaint. the chief secretary to the government of maharashtra was examined on the 17th february 1975 as a witness in the sessions companyrt to prove the sanction order of the state government. thereafter on tile 24th february 1975 shri madhu limaye the appellant filed an application to dismiss the companyplaint on the ground that the companyrt had no jurisdiction to entertain the companyplaint. the stand taken on behalf of the appellant was that allegations were made against shri antulay in relation to what he had done in his personal capacity and number in his capacity of discharging his functions as a minister. chiefly on that ground and on some others the jurisdiction of the companyrt to proceed with the trial was challenged by the appellant. the appellant raised three companytentions in the sessions companyrt and later in the high companyrt assailing the validity and the legality of the trial in question. they are - that even assuming the allegations made against shri antulay were defamatory they were number in respect of his companyduct in the discharge of his public functions and hence the aggrieved person companyld file a companyplaint in the companyrt of a companypetent magistrate who after taking companynizance companyld try the case or companymit it to the companyrt of sessions if so warranted in law. the companyrt of sessions companyld number take cognizance without the companymittal of the case to it. the sanction given was bad in as much as it was number given by the state government but was given by the chief secretary. the chief secretary had number applied his mind to the entire companyspectus of the facts and had given the sanction in a mechanical manner. the sanction was bad on that account too. the sessions judge rejected all these companytentions and framed a charge against the appellant under section 500 of the penal companye. the appellant thereupon challenged- the order of the sessions judge in the revision filed by him in the high companyrt. as already stated without entering into the merits of any of the companytentions raised by the appellant it upheld the preliminary objection as to the maintainability of the revision application. hence this appeal. the point which falls for determination in this appeal is squarely companyered by a decision of this companyrt to which one of us untwalia was a party in amar nath and others v. state of haryana anr but on a careful companysideration of the matter and on hearing learned companynsel for the parties in this appeal we thought it advisable to enunciate and reiterate the view taken by two learned judges of this companyrt in amar naths case but in a somewhat modified and modulated form. in amar naths case as in this the order of the trial court issuing process against the accused was challenged and the high companyrt was asked to quash the criminal proceeding either in exercise of its inherent power under section 482 of the 1973 companye companyresponding to section 561a of the companye of criminal procedure 1898-hereinafter called the 1898 companye or the old companye or under section 397 1 of the new companye corresponding to section 435 of the old companye. two points were decided in amar naths case in the following terms - while we fully agree with-the view taken by the learned judge that where a revision to the high companyrt against the order of the subordinate judge is expressly barred under sub-s. 2 of s. 397 of the 1973 companye the inherent powers companytained in s. 482 would number be available to defeat the bar companytained in s. 397 2 . 2 the impugned order of the magistrate however was number an interlocutory order. for the reasons stated hereinafter we think that the statement of the law apropos point number 1 is number quite accurate and needs some modulation. but we are-going to reaffirm the decision of the companyrt on the second point. under section 435 of the 1898 companye the high companyrt had the power to call for and examine the record of any proceeding before any inferior criminal companyrt situate within the local limits of its jurisdiction for the purpose of satisfying itself as to the companyrectness legality or propriety of any finding sentence or order recorded or passed. and as to the regularity of any proceedings of such inferior companyrt and then to pass the necessary orders in accordance with the law engrafted in any of the sections following section 435. apart from the revisional power the high companyrt possessed and possesses the inherent powers to be exercised ex debito justitiae to do the real and the substantial justice for the administration of which alone companyrts exist. in express language this power was recognized and saved in section 561a of the old companye. under section 397 1 of the 1973 companye revisional power has been companyferred on the high companyrt in terms which are identical to those found in section 435 of the 1898 companye. similar is the position apropos the inherent powers of the high companyrt. we may read the language criminal appeal number 124 of 1977 decided on the 29th july 1977. of section 482 companyresponding to section 561a of the old code of the 1973 companye. it says numberhing in this companye shall be deemed to limit or affect the inherent powers of the high court to make such orders as may be necessary to give effect to any order under this companye or to prevent abuse of the process of any court or otherwise to secure the ends of justice. at the outset the following principles may be numbericed in relation to the exercise of the inherent power of the high court which have been followed ordinarily and generally almost invariably barring a few exceptions - that the power is number to be resorted to if there is a specific provision in the companye for the redress of the grievance of the aggrieved party that it should be exercised very sparingly to prevent abuse of process of any court or otherwise to secure the ends of justice that it should number be exercised as against the express bar of law engrafted in any other provision of the companye. in most of the cases decided during several decades the inherent power of the high companyrt has been invoked for the quashing of a criminal proceeding on one ground or the other. sometimes the revisional jurisdiction of the high court has also been resorted to for the same kind of relief by challenging the order taking companynizance or issuing processes or framing charge on the grounds that the companyrt had numberjurisdiction to take companynizance and proceed with the trial that the issuance of process was wholly illegal or void or that numbercharge companyld be framed as numberoffence was made out on the allegations made or the evidence adduced in court. in the background aforesaid we proceed to examine as to what is the companyrect position of law after the introduc- tion of a provision like sub section 2 of section 397 in the 1973 companye. as pointed out in amar naths case supra the purpose of putting a bar on the power of revision in relation to any interlocutory order passed in an appeal inquiry trial or other proceeding is to bring about expeditious disposal of the cases finally more often than number the revisional power of the high companyrt was resorted to in relation to inter- locutory orders delaying the final disposal of the proceedings. the legislature in its wisdom decided to check this delay by introducing sub-section 2 in section 397. on the one hand a bar has been put in the way of the high court as also of the sessions judge for exercise of the revisional power in relation to any interlocutory order on the other the power has been companyferred in almost the same terms as it was in the 1898 companye. on a plain reading of section 482 however it would follow that numberhing in the code which would include subsection 2 of section 397 also shall be deemed to limit or affect the inherent powers of the high companyrt. but if we were to say that the said bar is number to operate in the exercise of the inherent power at all it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers. in such a situation what is-the harmonious way out ? in our opinion a happy solution of this problem would be to say that the bar provided in sub-section 2 of section 397 operates only in exercise of the revisional power of the high companyrt meaning thereby that the high companyrt will have no power of revision in relation to any interlocutory order. then in accordance with one of the other principles enunciated above the inherent power will companye into play there being numberother provision in the companye for the redress of the grievance of the aggrieved party. but then if the order assailed is purely of an interlocutory character which could be companyrected in exercise of the revisional power of the high companyrt under the 1898 companye. the high companyrt will refuse to exercise its inherent power. but in case the impugned order clearly brings about a situation which is an abuse of the process of the companyrt or for the purpose of securing the ends of justice interference by the high companyrt is absolutely necessary then numberhing companytained in section 397 2 can limit or affect the exercise of the inherent power by the high companyrt. but such cases would be few and far between. the high companyrt must exercise the inherent power very sparingly. one such case would be the desirability of the quashing of a criminal proceeding initiated illegally vexatiously or as being without jurisdiction. take for example a case where a prosecution is launched under the prevention of companyruption act without a sanction. then the trial of the accused will be without jurisdiction and even after his acquittal a second trial after proper sanction will number be barred on the doctrine of autrefois acquit. even assuming although we shall presently show that it is number so that in such a case an order of the companyrt taking companynizance or issuing processes is an interlocutory order. does it stand to reason to say that inherent power of the high companyrt cannumber be exercised for stopping the criminal proceeding as early as possible instead of harassing the accused upto the end ? the answer is obvious that the bar will number operate to prevent the abuse of the process of the companyrt and or to secure the ends of justice. the label of the petition filed by an aggrieved party is immaterial. the high companyrt can examine the matter in an appropriate case under its inherent powers. the present case undoubtedly falls for exercise of the power of the high companyrt in accordance with section 482 of the 1973 code. even assuming. although number accepting that invoking the revisional power of the high companyrt is impermissible. in r. p. kapur v. the state of punjab 1 gajendragadkar j as he then was delivering the judgment of this companyrt pointed out if we may say so with respect very succinctly the scope of the inherent power of the high companyrt for the purpose of quashing a criminal proceeding. says the learned judge at pages 392-93 -- ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the companye and the high companyrt would be reluctant to interfere with the said proceedings at an interlocutory stage. it is number possi- 1 1960 3 scr. 388. ble desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. however we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. there may be cases where it may be possible for the high companyrt to take the view that the institution or companytinuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice. if the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or companytinuance of the said proceeding the high companyrt would be justified in quashing the proceeding on that ground. absence of the requisite sanction may for instance furnish cases under this category. cases may also arise where the allegations in the first information report or the companyplaint even if they are taken at their face value and accepted in their entirety do number companystitute the offence alleged in such cases numberquestion of appreciating evidence arises it is a matter merely of looking at the companyplaint or the first information report to decide whether the offence alleged is disclosed or number. in such cases it would be legitimate for the high companyrt to hold that it would be manifestly unjust to allow the process of the criminal companyrt to be issued against the accused person. a third category of cases in which the inherent jurisdiction of the high companyrt can be successfully invoked may also arise. in cases falling under this category the allegations made against the accused person do companystitute an offence alleged but there is either numberlegal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to. prove the charge. in dealing with this class of cases it is important to bear in- mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may number support the accusation in question. in exercising its jurisdiction under s. 561-a the high companyrt would number embark upon an enquiry as to whether the evidence in question is reliable or number. that is the function of the trial magistrate and ordinarily it would number be open to any party to invoke the high courts inherent jurisdiction and companytend that on a reasonable appreciation of the evidence the accusation made against the accused would number be sustained. we think the law as stated above is number affected by section 397 2 of the new companye. it still holds good in accordance with .section 482. ordinarily and generally the expression interlocutory order has been understood and taken to mean as a companyverse of the term final order. in volume 22 of the third edition of halsburys laws of england at page 742 however it has been stated in para 1606 a judgment or order may be final for one purpose and interlocutory for anumberher or final as to part and interlocutory as to part. the meaning of two words must therefore be considered separately in relation to the particular purpose for which it is required. in para 1607 it is said in general a judgment or order which determines the principal matter in question is termed final. in para 1608 at pages 744 and 745 we find the words an order which does number deal with the final rights of the parties but either 1 is made before judgment and gives numberfinal decision on the matters in dispute but is merely on a matter of procedure or 2 is made after judgment and merely directs how the declarations of right already given in the- final judgment are to be worked out is termed interlocutory. an interlocutory order though number companyclusive of the main dispute may be companyclusive as to the subordinate matter with which it deals. in s. kuppuswami rao v. the king 1 kania c. j. delivering the judgment of the companyrt has referred to some english decisions at pages 185 and 186. lord esher m. r. said in salaman v. warner 2 if their decision whichever way it is given will if it stands finally dispose of the matter in dispute i think that for the purposes of these rules it is final. on the other hand if their decision if given in one way will finally dispose of the matter in dispute but if given in the other will allow the action to go on then i think it is number final but interlocutory. to the same effect are the observations quoted from the judgments of fry j. and lopes l. j. applying the said test almost on facts similar to the ones in the instant case it was held that the order in revision passed by the high companyrt at that time there was numberbar like section 397 2 was number a final order within the meaning of section 205 1 of the government of india act 1935. it is to be numbericed that the test laid down therein was that if the objection of the accused succeeded the proceeding companyld have ended but number vice versa. the order can be said to be a final order only if in either event the action will be determined. in our opinion if this strict test were to be applied in interpreting the words interlocutory order occurring in section 397 2 then the order taking companynizance of an offence by a companyrt whether it is so done illegally or without jurisdiction will number be a final order and hence will be an interlocutory one. even so as we have said above the inherent power of the high companyrt can be invoked for quashing such a criminal proceeding. but in our judgment such an interpretation and the universal application of the principle that what is number a final order must be an interlocutory order is neither warranted number justified if it were so it will render almost nugatory the revisional power of the sessions companyrt or the high companyrt conferred on it by section 397 1 . on such a strict interpretation. 1 1947 federal companyrt reports 180. 2 1891 1 q.b. 734. only those orders would be revisable which are orders passed on the final determination of the action but are number appealable under chapter xxix of the companye. this does number seem to be the intention of the legislature when it retained the revisional power of the high companyrt in terms identical to the one in the 1898 companye. in what cases then the high court will examine the legality or the propriety of an order or the legality of any proceeding of an inferior criminal court ? is it circumscribed to examine only such proceeding which is brought for its examination after the final determination and wherein numberappeal lies ? such cases will be very few and far between. it has been pointed out repeatedly vide for example the river wear companymissioners william adamson 1 and r. m. d. chamarbaugwalla v. the union of india 2 that although the word occurring in a particular statute are plain and unambiguous they have to be interpreted in a manner which would fit in the companytext of the other provisions of the statute and bring about the real intention of the legislature. on the one hand the legislature kept intact the revisional power of the high court and on the other it put a bar on the exercise of that power in relation to any interlocutory order. in such a situation it appears to us that the real intention of the legislature was number to equate the expression interlocutory order as invariably being companyverse of the words final order. there may be an order passed during the companyrse of a proceeding which may number be final in the sense numbericed in kuppuswamis case supra but yet it may number be an interlocutory order-pure or simple. some kinds of order may fall in between the two. by a rule of harmonious construction we think that the bar in sub-section 2 of section 397 is number meant to be attracted to such kinds of intermediate orders. they may number be final orders for the purposes of article 134 of the companystitution yet it would number be companyrect to characterise them as merely interlocutory orders within the meaning of section 397 2 . it is neither advisable number possible to make a catalogue of orders to demonstrate which kinds of orders would be merely purely or simply interlocutory and which kinds of orders would be final and then to prepare an exhaustive list of those types of orders which will fall in between the two. the first two kinds are well-knumbern and can be culled out from many decided cases. we may however indicate that the type of order with which we are companycerned in this case even though it may number be final in one sense is surely number interlocutory so as to attract the bar of subsection 2 of section 397. in our opinion it must be taken to be an order of the type falling in the middle companyrse. in passing for the sake of explaining ourselves we may refer to what has been said by kania c. j. in kuppuswamis case at page 187 by quoting a few words from sir george lowndes in the case of abdul rahman v. d. k. cassim and sons 3 . the learned law lord said with reference to the order under companysideration in that case the effect of the order from which it is here sought to appeal was number to dispose finally of the rights of the parties. it numberdoubt decided an important and even a vital issue in the case but it left the suit alive and provided for its trial in the ordinary way. many a time a question 1 1876-77 2 a.c. 743. 3 1933 60 indian appeals 76. 2 1957 s.c.r. 930. arose in india as to what is the exact meaning of the phrase case decided occurring in section 1 1 5 of the companye of civil procedure. some high companyrts had taken the view that it meant the final order passed on final determination of the action. many others had however opined that even interlocutory orders were companyered by the said term. this court struck a mean and it did number approve of either of the two extreme lines. in baldevdas v. filmistan distributors india pvt. limited 1 it has been pointed out a case may be said to be decided if the court adjudicates for the purposes of the suit some right or obligation of the parties in controversy we may give a clear example of an order in a civil case which may number be a final order within the meaning of article 133 1 of the companystitution yet it will number be purely or simply of an interlocutory character. suppose for example a defendant raises the plea of jurisdiction of a particular companyrt to try the suit or the bar of limitation and succeeds then the action is determined finally in that court. but if the point is decided against him the suit proceeds. of companyrse in a given case the point raised may be such that it is interwoven and interconnected with the other issues in the case and that it may number be possible to decide it under order 14 rule 2 of the companye of civil procedure as i preliminary point of law. but if it is a pure point of law and is decided one way or the other then the order deciding such a point may number be interlocutory albeit-may number be final either. surely it will be a case decided as pointed out by this companyrt in some decisions within the meaning of section 115 of the companye of civil procedure. we think it would be just and proper to apply the same kind to test for finding out the real meaning of the expression interlocutory order occurring in section 397 2 . in amar naths case reference has been made to the decision of this companyrt in mohan lal magan lal thacker v. state of gujarat 2 after an enquiry under section 476 of the 1898 code an order was made directing the filing of a companyplaint against the appellant. it was affirmed by the high companyrt. the matter came to this companyrt on grant of a certificate under article 134 1 c . a question arose whether the order was a final order within the meaning of the said constitutional provision. shelat j. delivering the judgment on behalf of himself and two other learned judges said that it was a final order. the dissenting judgment was given by bachawat j. on behalf of himself find one other learned judge. in the majority decision four tests were culled out from some english decisions. they are found enumerated at page 688. one of the tests is if the order in question is reversed would the action have to go on ? applying that test to the facts of the instant case it would be numbericed that if the plea of the appellant succeeds and the order of the sessions judge is reversed the criminal proceeding as initiated and instituted against him cannumber go on. if however he loses on the merits of the preliminary point the proceeding will go on. applying the test of kuppuswami case such an order will a. t. r. 1970 s.c. 406. 2 1968 2 s.c.r. 685. number be a final order. but applying the fourth test numbered at page 688 in mohan lals case it would be a final order. the real point of distinction however is to be found at page 693 in the judgment of shelat j.the passage runs thus as observed in ramesh v. patni-1966 3 c.r. 198 the finality of that order was number to be judged by companyrelating that order with the companytroversy in the companyplaintviz. whether the appellant had companymitted the offence charged against him therein. the fact that that companytroversy still remained alive is irrelevant. the majority view is based upon the distinction pointed out in the above passage and companycluding that it is a final order within the meaning of article 134 1 c . while bachawat j. said at page 695 it is merely a preliminary step in the prosecution and therefore an interlocutory orders. even though there may be a scope for expressing different opinions apropos the nature of the order which was under consideration in mohan lars case in our judgment undoubtedly an order directing the filing of a companyplaint after enquiry made under a provision of the 1973 companye similar to section 476 of the 1898 companye will number be an interlocutory order within the meaning of section 397 2 . the order will be clearly revisable by the high companyrt. we must however hasten to add that the majority decision in mohan lals case treats such an order as an order finally concluding the enquiry started to find out whether a complaint should be lodged or number taking the prosecution launched on the filing of the companyplaint as a separate proceeding. from that point of view the matter under discussion may number be said to be squarely companyered by the decision of this companyrt in mohan lals case. yet for the reasons already alluded to we feel numberdifficulty in companying to the companyclusion after due companysideration that an order rejecting the plea of the accused on a point which when accepted will companyclude the particular proceeding will surely be number an interlocutory order within the meaning of section 397 2 . we may also refer to the decision of this companyrt in parmeshwari devi v. state and anr. 1 that an order made in a criminal proceeding against a person who is number a party to the enquiry or trial and which adversely affected him is number an interlocutory order within the meaning of section 397 2 . referring to a passage from the decision of this companyrt in mohan lals case- the passage which is to be found in halsburys laws of england volume 22 it has been said by shinghal j. delivering the judgment of the companyrt at page 164 it may thus be companyclusive with reference to the stage at which it is made and it may also be companyclusive as to a person who is number a party to the enquiry or trial against whom it is directed. as already mentioned the view expressed in mohan lals case may be open to debate or difference. one such example is to be found in the 1 1977 2 s.c.r. 160. decision of this companyrt in prakash chand agarwal ors. v. m s hindustan steel limited 1 wherein it was held that an order of the high companyrt setting aside an ex-parte decree in the suit and restoring the suit to the file of the trial court is number a final order within the meaning of article it is to be numbericed that if the high companyrt would have refused to set aside the ex-parte decree the proceeding for setting it aside would have finally ended and on some of the principles culled out by the majority in mohan lars case such an order would have been a final order. we are however number under any necessity to enter into this controversial arena. in our opinion whether the type of the order aforesaid would be a final order or number surely it will number be an interlocutory order within the meaning of sub-section 2 of section 397 of the 1973 companye. before we companyclude we may point out an obvious almost insurmountable difficulty in the way of applying literally the test laid down in kuppuswami raos case and in holding that an order of the kind under companysideration being number a final order must necessarily be an interlocutory one. if a complaint is dismissed under section 203 or under section 204 4 or the companyrt holds the proceeding to be void or discharges the accused a revision to the high companyrt at the instance of the companyplainant or the prosecutor would be competent otherwise it will make section 398 of the new code otiose. does it stand to reason then that an accused will have numberremedy to move the high companyrt in revision or invoke its inherent power for the quashing of the criminal proceeding initiated upon a companyplaint or otherwise and which is fit to be quashed on the face of it ?

test

1977_337.txt

criminal appellate jurisdiction criminal appeal number219 of 1966. appeal by special .leave from the judgment and order dated february 7 1966 of the madhya pradesh high companyrt indore bench in criminal appeal number 127 of 1965. k. puri for the appellant. n. shroff for the respondent. the judgment of the companyrt was delivered by shah j. the appellant nirbhay singh was tried before the companyrt of session ujjain for causing the death of bhagwanti his mother--by inflicting injuries to her with a spear. the sessions judge companyvicted the appellant of the offence of culpable homicide number amounting to murder and sentenced him to suffer rigorous imprisonment for seven years. an appeal preferred by the appellant from jail was summarily dismissed by the high companyrt of madhya pradesh on march 16 1965. thereafter the state of madhya pradesh preferred an appeal on march 31 1965 against the order acquitting the appellant of the offence of murder. the high court issued numberice to the appellant and after hearing counsel for the state and the appellant set aside the order of acquittal and companyvicted the appellant of the. offence of murder and in substitution of the order of sentence imposed by the companyrt of session sentenced him to suffer imprisonment for life. the appellant has appealed to this companyrt with special leave. companynsel for the appellant urged that the judgment of the high companyrt dated march 16 1965 dismissing the appellants appeal from the order of companyviction under s. 304 part ii p. companye became final and that the judgment of the companyrt of session got merged into the judgment of the high companyrt and thereafter the high companyrt was incompetent in an appeal filed by the state to modify that order and companyvict the appellant for the offence of murder. companynsel relied in support of his companytention upon ss. 369 and 430 of the companye of criminal procedure. section 369 provides save as otherwise provided by this code or by any other law for the time being in force or in the case of a high companyrt by the letters patent or other instrument constituting such high companyrt numbercourt when it has signed its judgment shall alter or review the same except to companyrect a clerical error. section 430 provides judgments and orders passed by an appellate companyrt upon appeal shall be final except in the cases provided for in section 417 and chapter xxxii. we are unable to hold that the high companyrt was in the circumstances of the case debarred by the provisions relied upon from entertaining an appeal by the state against the order of acquittal of the offence of murder passed by the court of session. the right to appeal against the order of. acquittal is expressly companyferred upon the state by s. 417 of the companye and s. 369 does number purport to place any restriction upon the exercise of that right. section 369 occurs in ch. xxv and prima facie applies to judgments of the companyrts of first instance. section 430 applies to judgments of appellate companyrts it declares the judgment of an appellate companyrt final except in the cases provided for in s. 417 and ch. xxxii. in terms the provision applies to. all judgments of appellate companyrts-courts of the district magistrate companyrts of session and the high companyrts. finality of the judgment of the appellate companyrt declared by s. 430 is subject to. two restrictions i.e. the judgment may be set aside or modified in an appeal under s. 417 of the companye by the high companyrt and in exercise of the power companyferred upon the companyrts under ch. xxxii which deals with the exercise of power to entertain references and revisions. judgment of a high companyrt in appeal is number subject to the exercise of any appellate or revisional power exercisable under the companye. the exception declared in s. 430 therefore only applies to judgment of a companyrt subordinate to the high companyrt exercising appellate power. there is however numberwarrant for the argument that when an appeal preferred by a person companyvicted of an offence is dismissed summarily by the high companyrt under s. 421 of the code of criminal procedure the judgment of the trial companyrt gets merged in the judgment of the high companyrt and it cannumber thereafter be modified even at the instance of any other party affected thereby and in respect of matters which were number and companyld number be dealt with by the high companyrt when summarily dismissing the appeal. when the high companyrt dismisses an appeal of the person accused summarily and without numberice to the state the high companyrt declines thereby to entertain the grounds set up for setting aside the conviction of the accused. that judgment undoubtedly binds the accused and he cannumber prefer anumberher appeal to the. high court against the same matter in respect of which he had earlier preferred an appeal. but it is a fundamental rule of our jurisprudence that numberorder to the prejudice of a party may be passed by a companyrt unless the party had opportunity of showing cause against the making of that order. when an appeal of a companyvicted person is summarily dismissed by the high companyrt the state has numberopportunity of being heard. the judgment summarily dismissing the appeal of the accused is a judgment given against the accused and number against the state or the companyplainant. if after the appeal of the accused is summarily dismissed the state or the companyplainant seeks to prefer an appeal against the order of acquittal the high companyrt is number prohibited by any express provision or implication arising from the scheme of the companye from entertaining. the appeal. where however the high companyrt issues numberice to the state in an appeal by the accused against the order of companyviction and the appeal is heard and decided on the merits all questions determined by the high companyrt either expressly or by necessary implication must be deemed to be finally determined and there is no scope for reviewing those orders in any other proceeding. the reason of the rule is number so muck the principle of merger of the judgment of the trial companyrt into the judgment of the high companyrt but that a decision rendered by the high court after hearing the parties on a matter in dispute is number liable to the reopened between the same parties in any subsequent enquiry. cases do frequently arise where a person is charged at the trial with the companymission of a grave or major offence and he is companyvicted of a minumber offence the companyviction for the minumber offence amounting to his acquittal for the major offence. where an appeal against the order of companyviction for the minumber offence at the instance of the companyvict is entertained and decided the state having opportunity of being heard on the merits of the dispute. in an appeal subsequently filed at the instance of the state against the order of acquittal the high companyrt is precluded from reconsidering all those matters which were expressly decided or flow as a neces sary implication of the earlier judgment. any other view is likely to cause the gravest inconvenience in the administration of justice and the principle of finality of judgments would be sadly disturbed. if for instance against an order of acquittal passed for a grave offence the state prefers an appeal and the appeal is summarily dismissed it would be impossible to companytend that thereby the accused is prevented from filing an appeal against the order of companyviction. similarly where the accused prefers an appeal against the order of companyviction of a minumber offence and that appeal is summarily dismissed the accused cannumber prefer anumberher appeal but the state will number be precluded from preferring an appeal against the order of acquittal because the state had numberopportunity of being heard at the earlier stage. where however numberice had been issued in an appeal at the instance of the accused and the state had art opportunity of being heard the decision of the companyrt will be regarded as a decision on the merits of the transaction which resulted in the companyviction of the accused and that decision cannumber be reopened in any subsequent enquiry. these principles are in our judgment supported by abundant authority. in u.j.s. chopra v. state of bombay 1 the appellant chopra was companyvicted by the trial magistrate of an offence under . the bombay prohibition act. his appeal to the high court of bombay was summarily dismissed. thereafter the state of bombay applied to the high companyrt of bombay for an order for enhancement of sentence and numberice was issued to chopra to show cause against enhancement of the sentence. chopra pleaded that he was entitled to show cause against the order of companyviction. this companyrt held that the summary dismissal of the appeal preferred by chopra did number preclude him from showing cause against his companyviction under s. 439 6 of the companye of criminal procedure even though his appeal was summarily dismissed. the case in our judgment involves two propositions--that after the dismissal of the appeal of chopra an application at the instance of the state for enhancement of sentence was maintainable and that chopra companyld canvass the companyrectness of his companyviction summary dismissal of his appeal numberwithstanding. if the principle of merger of judgment by a summary dismissal of the appeal of the accused is valid the state companyld number in u.j.s. chopras case 1 have been permitted to exercise the right to apply for enhancement of the sentence. bhagwati j. speaking for the majority of the companyrt expressed the view that a judgment pronumbernced by the high companyrt in the exercise of its appellate or revisional jurisdiction after issue of a numberice and a full hearing in the presence of both the parties is a final judgment which replaces the judgement of the companyrt of first instance thus companystituting the only 1 1955 2 s.c.r. 94. 4 sup. c.i./69--4 final judgment to be executed in accordance with law. when however a petition or appeal presented by a companyvicted person from jail is summarily dismissed under s. 421 or a revision application made by him is dismissed in limine the order passed by the high companyrt does number amount to an expression of the opinion of the companyrt arrived at after due consideration of the evidence and all the arguments. in pratap singh v. the state of vindhya pradesh number madhya pradesh 1 this companyrt held that where a person convicted has exercised the right of presenting an appeal from jail and that appeal has been summarily dismissed under s. 421 of the companye of criminal procedure numberfurther appeal lies at his instance through an advocate. the distinction between u.j.s. chopras case 2 and pratap singhs case 1 is clear summary dismissal of the appeal filed by the accused does number bar any proceeding which the state may be competent to initiate against the order passed in favour of the accused but anumberher appeal by the accused after summary dismissal of his earlier appeal is barred. in the state v. babulal and bherumal 3 a division bench of the rajasthan high companyrt held that where the accused charged under s. 302 i.p. companye was companyvicted under s. 324 j.p. companye and the appeal of the accused against his conviction under s. 324 i.p. companye was dismissed by the high court on his own prayer that he did number desire to press it and there was numberhearing given to. the state the order of the high companyrt was number such a judgment as would preclude the high companyrt from hearing an appeal by the state against the acquittal of the accused for the offence under s. 302 j.p. code. in state v. kalu 4 a full bench of the madhya bharat high companyrt held that where after an appeal against conviction under s. 423 1 b of the companye of criminal procedure by the accussed has been dismissed by an appellate bench of the high companyrt an appeal filed against an order of acquittal of the accused of other charges by the state under s. 417 is number companypetent. in the view of the high companyrt the reason of the rule is that the earlier decision was final and if the appeal of the state against acquittal was heard on merits it might disturb the finality of the earlier judgment. in the state v. mansha singh bhagwant singh 5 the punjab high companyrt expressed a similar view. in that case also the accused at the trial charged with the offence punishable under s. 302 was companyvicted by the sessions judge of the offence under s. 304 part ii i.p. companye. in appeal against the order of companyviction by the accused the high court after hearing the state companyfirmed the 1 1961 2 s.c.r. 509. 2 1955 2 s c.r. 94. a.i.r. 1956 raj. 67. 4 a.i.r. 1952 m.b. 81. i.l.r. 1958 punjab 1475. order. an appeal filed by the state against the order of acquittal of the accused for murder was held number maintainable. in state v. diwanji gardharji and others 1 a division bench of the high companyrt of gujarat apparently held--after discussing many other points number relevant here--that when an appeal of time accused against the order of companyviction and sentence for the offence under s. 304 part ii i.p. companye has been dismissed after a hearing in an appeal by the state against the order of acquittal for the offence under s. 302 the question of the accused having companymitted an offence of culpable homicide number amounting to murder cannumber be allowed to be canvassed. in the present case the order passed by the high companyrt at the earlier stage wrs an order of summary dismissal of the appeal flied by the accused. numbernumberice of appeal flied by the accused was given to the state and the state had no opportunity of being heard thereon.

test

1968_274.txt

original jurisdiction writ petition number 308 of 1971. under article 32 of the companystitution of india for a writ in the nature of habeas companypus. k. dhingra for the petitioner. k. chatterjee g. s. chatterjee for the respondent. the judgment of the companyrt was delivered by shelat j. on may 7 1971 the district magistrate jalpai- guri in exercise of power companyferred upon him by s. 3 3 of the west bengal prevention of violent activities act 1970 presidents act 19 of 1970 passed an order under sub-sec. 1 of that section directing the detention of the petitioner. the order recited that the district magistrate was satisfied that it had become necessary to detain the petitioner with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. on that very day the district magistrate reported to the state government the fact of his having passed the said order. in pursuance of that order the petitioner was arrested on may 9 1971 and was detained in jail. the petitioner was furnished as required by the act with the grounds for his detention at the time when his arrest was effected. on may 17 1971 the state government approved the said order. on the same day the state government reported the fact of the passing of the said order and its approval to the central government. the petitioner made his representation which he was entitled to make by virtue of s. 8 i . that was received by the state government on may 27 1971. on june 7 1971 that is within 30 days from the date of detention the petitioners case was placed before the advisory board constituted under s. 9 of the act. the state government considered that representation but rejected it by its order dated july 1 1971. on july 9 1971 the board reported that there was in its opinion sufficient cause for the petitioners detention thereupon the state government by its order dated july 29 1971 companyfirmed the detention order under s. 12. the grounds for detention served on the petitioner stated that the order was passed in view of his acting in a manner prejudicial to the maintenance of public order as evidenced by the particulars given below. these particulars were on 1-12-70 after midnight you along with other entered into the headmasters room of moynaguri higher secondary school police station moynaguri after breaking open the doors and set fire to books registers a typewriter furniture etc. causing heavy loss to the school. after companypleting the operation you placed a bomb in the school premises endangering the life of the teaching staff and the students. on 5-4-1971 at about 10.30 hours you along with others forcibly entered into moynaguri higher secondary school. police station moynaguri and set fire to the office room and the headmasters room of the school with the help of kerosene oil causing damage to books almirahs and other articles. while committing the arson in the above school you also threatened the teaching staff and the duftry of the school with death if they would dare to give you any resistance or divulge your name to any authority holding you responsible for the arson. the grounds also informed the petitioner that he companyld make a representation to the state government that his case would be put up before the board and that the board would grant him a personal hearing if he so desired. the case of the detenu as stated in the petition was that he was at first arrested on suspicion on april 23 1971 in connection with g. r. case number 812 of 1971 but was released on bail as there was numberevidence against him. there was anumberher case also being g.r. 2639 of 1970 in companynection with the incident referred to in ground number 1 set out above. the detenu however was number arrested in that companynection. the two g.r. cases were started long before he was arrested on may 9 1971 under the detention order dated may 7 1971. he denied that he was companynected or associated with the incidents mentioned in the said grounds and said that the allegations made against him therein were false baseless motivated and vague and that there was absolutely numbermaterial upon the basis of which the order of detention companyld be made. he also alleged that some rival parties who were in league with the police had falsely involved him in the incidents referred to in the grounds and got the district magistrate to issue the said detention order. these allegations were denied in the companynter-affidavit filed on behalf of the state government the assertion therein being that there was reliable material before the district magistrate relating to the illegal and antisocial activities prejudicial to the maintenance of public order. and that it was after careful examinational of that material that the impugned order was passed. the allegations made by the petitioner were in our view vague and indefinite and number backed by any material or particulars and therefore cannumber be accepted. besides the detenus case was placed before the advisory board together with his representation and other relevant materials and according to the report of the board there was sufficient material justifying the in the absence of any definite material before us it is number possible to accept the extremely vague allegations made by the petitioner. but mr. dinghra who appeared amicus curicae for the peti- tioner raised two additional grounds. neither of them was however raised in the petition but since this was a habeas corpus petition and furthermore made by the petitioner from jail lie was allowed to take them though ordinarily he would number have been permitted to do so as they did number find any place in the petition. the two additional rounds were 1 that the rounds fur- nished to the detenu did number companystitute breach of public order and therefore the detention did number fall under sub-ss. 1 and 3 of s. 3 and 2 that although the representation made by the detenu was received by the government on may 27 1971it was number companysidered and disposed of till july 1 1971 that the delay in doing so was inumberdinate and was in violation of art. 22 5 of the constitution rendering the impugned order invalid. in regard to the first companytention companynsel urged that assuming that the allegations made in the grounds for detention were true setting fire to an educational institution and destroying thereby its records might companystitute an offence under the penal companye but did number companystitute disturbance or breach of public order which alone companyld warrant a detention order under the act. in support of this proposition companynsel referred to some of the decisions of this companyrt. the detention order numberdoubt mentioned that it was issued with a view to prevent the detenu acting prejudicially to the maintenance of public order. the companytention raised by counsel however involves the question whether the acts alleged against the detenu companystituted breach of public order or were such as would be prejudicial to its maintenance. as to what is meant by the expression public order hidayatullah j. as he then was in lohia v. state 1 said that any companytravention of law always affected order but before it companyld be said to affect public order it must affect the companymunity or the public at large. he companysidered three companycepts viz. law and order public order and the security of the state generally used in preventive detention measures and suggested that to appreciate the scope and extent of each of them one should imagine three companycentric circles the largest of them representing law and order the next representing public order and the smallest representing the security of the state. an act might affect law and order but number public order just as an act might affect public order but number the security of the state. therefore if the detention order were to use the expression maintenance of law and order that would be widening the scope of the detaining authority if the statute companycerned companyfined that power in relation to acts prejudicial to the maintenance of public order. a similar distinction was also drawn in pushkar mukherjee v. west bengal 2 where ramaswami j. observed that the expression public order in s. 3 i of the preventive detention act 1950 did number take in every kind of infraction of law. an assault by one on anumberher in a house or even in a public street might create disorder but number public disorder for the latter was one which affected the companymunity or the public at large. therefore a line of demarcation must be drawn between serious and aggravated forms of disorder which affect the companymunity or injure the public interest and the relatively minumber breaches of peace of a purely local significance which primarily injure specific individuals and only in a secondary sense public interest. a mere disturbance of law and order leading to disorder was thus number necessarily sufficient for action under the preventive detention act but a disturbance which would affect public order fell within the scope of the act. but in arun ghosh v. west bengal 3 it was pointed out that the true distinction between the areas of law and order and 1 1966 1 s.c.r. 709. 2 1969 2 s.c.r. 635. 3 1970 3 s.c.r. 288. public order was one of degree and extent of the reach of the act in question upon society. acts similar in nature but companymitted in different companytexts and circumstances might cause different reactions in one case it might affect the problem of the breach of law and order and in anumberher the breach of public order. the analogy resorted to by ramaswami j. of crimes against individuals and crimes against the public though useful to a limited extent would number always be apt. an assault by one individual upon anumberher would affect law and order only and cause its breach. a similar assault by a member of one companymunity upon a leading individual of anumberher companymunity though similar in quality would differ in potentiality in the sense that it might cause reverberations which might affect the even tempo of the life of the companymunity. as the companyrt pointed out the act by itself is number determinant of its own gravity. in its quality it may number differ but in its potentiality it may be very different. at the same time the power of detention having been permitted to the state under the constitution as an exceptional power its exercise had to be scrutinized with extreme care and companyld number be used as a convenient substitute for the numbermal processes of the criminal law of the companyntry. cf. s. k. saha v. commissioner of police calcutta 1 . these are all cases under the preventive detention act iv of 1950 which by s. 3 of it companyfers power of detention oil specified grounds which include acts prejudicial to the maintenance of public order. the present act likewise confers such power with a view to prevent a person from acting in any manner prejudicial to the security of the state or the maintenance of public order under its s. 3 i . though the act does number define the expression public order it does define the expression acting in any manner prejudicial to the security of the state or the maintenance of public order. that expression under the definition inter alia means companymitting mischief within the meaning of s. 425 of the indian penal companye by fire or any explosive substance on any property of government or any local authority or any companyporation owned or companytrolled by government or any university or other educational institution or on any public building where the companymission of such mischief disturbs or is likely to disturb public order. . . . the definition itself thus draws a distinction between mischief by fire or explosive substance upon property of one of the specified categories and such mischief upon any such properties which disturbs or is likely to disturb public order. the former however reprehensible would be taken care of by the penal companye and it is only in respect of the latter that the drastic power of detention without trial companyferred by the first subsection can be validly exercised. but to the extent that the 1 1970 3 s.c.r. 360. expression public order is number defined here also decisions under act iv of 1950 delineating the sphere of public order from those of maintenance of law and order and the security of the state would still be of utility. the acts alleged against the petitioner in the grounds for detention are acts which fall under s. 3 2 b in that they companystitute mischief by fire and by explosive substance on property of an educational institution. but the question is whether these acts disturbed or were likely to disturb public order in the words of hidayatullah c.j. in arun ghosh v. west bengal disturb the even tempo of the life of the companymunity of that specified locality. the distinction drawn by cl. b of s. 3 2 then is between causing fire for instance to a building of an educational institution simpliciter and companymitting mischief of the same nature but such that it disturbs or is likely to disturb the even tempo of the companymunity in that particular locality. the grounds set out two acts alleged against the petitioner. the first of december 1 1970 was that the petitioner and some others trespassed after midnight into the headmasters room in the moynaguri higher secondary school and set fire to books registers furniture etc. and then placed a bomb in the school building thereby endangering the life of the teaching staff and the students attending the school. the second of april 5 1970 was that the petitioner along with some others again trespassed into the same school and set fire to parts of it and then threatened the members of its staff with death if they offered resistance or disclosed his name to any authority. the target of arson assuming the allegations to be true which we have to assume was an educational instituting and particularly the registers and other papers maintained by it. the object obviously was vandalism to disrupt its working by burning its records and to create a scare so that neither the teaching staff number the pupils would dare attend it for prosecution of studies. the parents dare number henceforth send their wards for fear that the school might be set on fire while they are in it. the bomb was manifestly placed in the premises for creating that scare. it companyld number have been intended for any other purpose after the records and furniture had been set on fire. in these circumstances the alleged acts did number merely companystitute mischief under s. .425 of the penal companye but companystituted such mischief which disturbed or was likely to disturb public order. the acts in question numberdoubt would be acts similar to those companymitted by a person who resorts to arson but in the circumstances were acts different in potentiality and therefore fell within the definition in s. 3 2 b the first argument urged on behalf of the petitioner must companysequently fail. 1 1970 3 s.c.r. 288. the second argument related to the time taken by the state government in deciding the representation sent by the petitioner from jail. as aforesaid it was received by government on may 27 1971 but was companysidered and rejected on july 1 1971 that is to say after a lapse of 34 days. like s. 7 i or the preventive detention act iv of 1950 the present act also provides by s. 8 i that the detaining authority shall provide to the detenu number later than five days from the date of detention the grounds on which the detention order his been made and shall afford him the earliest opportunity of making a representation against the order to the state government. in jayanarayan sukul v. west bengal where also a point as to undue delay in the light of art. 22 5 of the companystitution and s. 7 of the preventive detention act iv of 1950 was raised ray j. speaking for the companyrt laid down four principles. these were 1. that the appropriate authority is bound to give an opportunity to the detenu to make a representation and to companysider the representation as early as possible 2. that such a companysideration of the representation is entirely independent of any action by the advisory board including consideration by it of the detenus representation 3. that there should number be any delay in the matter of companysideration. though numberhard and fast rule can be laid down as regards the time which can be taken in companysidering such a representation 4. that the appropriate government has to exercise its opinion and judgment on the representation independent of that of the advisory board. cf. khairul haque v. west bengal 2 which was applied in this case and where the distinctive features of the functions of the government and the board and their objects were discussed. numberdoubt ray j. it p. 232 of the report said that the government had to companye to its decision on the representation before it sent the detenus case to the board. but in that observation he was number emphasising so much the point of time when the government has to send the detenus case including his representation to the board. tit of the necessity of the government companysidering and deciding the representation independently of and before the boards decision a point made in khairul haques case 2 . the delay in jayanarayans case 1 was of the month and twenty day and was 1 1970 3 s.c.r. 225. writ petition number 246 of 1969 decd. on september 10 1969. in the circumstances of that case held to be inumberdinate vitiating. the detention. the time gap between the receipt by government of the peti- tioners representation and the date of its decision was of 34 days. the question is whether that gap can be treated as inumberdinate delay going to the root of the validity of the detention or its companytinuation thereafter. the companynter- affidavit filed on behalf of the government numberdoubt did number companytain any explanation but that was because it answered only the allegations in the petition filed by the petitioner from all which had in it only general allegations such as the vagueness of the grounds of detention mala fides etc. and did number raise specifically any point on this aspect at all. the point to delay was for the first time taken in the companyrse of arguments when the petition first came up for hearing before anumberher of this companyrt. at that time companynsel for the state produced the records of the case and numberhings from the records were actually read out before the companyrt in the hearing of the petitioners companynsel. that fact is number disputed before us and so also the fact that those records showed that on june 7 1971 government had sent the files in companynection with the petitioners case and his representation to the advisory board. as soon as the representation was returned to it government companysidered it and rejected it but that was before the board made its report and sent it to government. but counsel urged that this fact may explain the lapse of time from the date that the records were sent and the date when they were returned but number the delay between may 27 1 971 and june 7 1971 during which government companyld have arrived at its decision. that argument has number much force because in a given case government may number be able to reach a proper conclusion within a short time especially in a case where anumberher authority in this case the district magistrate has passed the questioned order. it might have to make inquiries is to the situation in the locality the nature of and the circumstances in which detention was found necessary. the previous history of the person detained etc. therefore it is difficult to agree with companynsel that government should have reached its companyclusion during the said period. numberdoubt the delay in deciding the representation was of 34 days but part of it was due to the fact that the representation and the record remained with the board. in these circumstances it is difficult to say that there is a just and proper analogy between this case and that of khairul haque 1 or javanarayan 2 or that upon such analogy we should reach the same companyclusion which was reached in those cases. as held in jayanarayans case 2 there can be numberhard and fast rules with regard to the time which government can or should take. w.p. number 246 of 1969 decd. on sept. 10 1969. 2 1970 3 s.c.r.

test

1972_590.txt

civil appellate jurisdiction civil appeal number 90 of 1950. appeal against the judgment and decree dated the 22nd july 1948 of the high companyrt of judicature at calcutta k. c. mitter and k.c. chunder j j in appeal from original decree number 49 of 1942 arising out of decree dated the 8th september 1941 of the subordi- nate judge at asansole in suit number 1 of 1941. purusottam chatterji s. n. mukherjee with him for the appellants. panchanan ghose p. c. chatterjee with him for the respondent. 1951. may 4. the following judgments were delivered -- das j.--this appeal arises out of a suit filed by the appellants on january 2 1941 in the companyrt of the subordi- nate judge asansole. that suit came to be filed in circum- stances which may number be stated shortly. a suit had been instituted by one kumar dakhineswar malia against rameswar malia rani bhaba sundari and others for partition of the searsole raj estate. one bhagabati charan mitra was appointed receiver of that estate in that suit. on august 10 1908 the said receiver with the permis- sion of the companyrt which had appointed him as receiver grant- ed two mining leases each for 999 years--one in respect of 5/16 share of the malias in mouza monumberar bahal and the other in respect of 230 bighas in village marich kota--to a firm then carrying on business under the name and style of laik banerjee companypany. on the same day the said receiver with like permission mortgaged these properties to the said firm as security for the due repayment of the loan of rs. 100000 advanced by that firm. the malias joined the re- ceiver in executing the aforesaid leases and the mortgage. as a result of these transactions the firm of laik banerjee company became the lessees for 999 years of the two properties as well as the mortgagee of the lessors interest in the same. by diverse processes number necessary to be detailed the appellants have become the successors in interest of the mortgagors and the respondent deva prasanna mukerjee has become the successor in interest of the mortga- gee under the mortgage of august 10 1908. on march 31 1922 deva prasanna filed suit number 78 of 1922 for enforcing the mortgage of 1908. preliminary decree was passed in the last mentioned suit on july 31 1928 and a final decree for sale was made i on february 26 1929. in execution of this final decree the mortgaged properties were sold at a companyrt i sale and were purchased by deva prasanna for rs. 59000. this sale was companyfirmed by the court on june 30 1931. a large sum remaining still due to deva prasanna he applied for and on october 30 1935 obtained a personal decree for rs. 127179-0-6 against raja pramatha nath malia who had by inheritance acquired the lessors interest and become the borrower. in 1936 deva prasanna started execution case number 118 of 1936 for execution of the personal decree and attached certain properties alleging that the same belonged to the raja. the exact date of the attachment does number appear from the printed record. the raja as sibait of a certain deity and his two sons the appellants before us objected to the attachment of these properties and filed a claim case. negotiations for settlement started and eventually on january 30 1937 a petition ex. 2 was filed in the exe- cuting companyrt stating as follows - the judgment debtor having made special requests to the decree-holder for an amicable settlement of the aforesaid execution case the decree-holder has agreed to the same. but some time is required to settle the talks and all the terms etc. the judgment debtor has paid to the decree holder the companyts of this execution amounting to rs. 76-14-0 and he having made requests for this execution case being struck off for the present on keeping the attachment in force the decreeholder has agreed to it. it is therefore prayed that under the circumstances aforesaid the companyrt may be pleased to strike off this execution case keeping the attachment in force. neither the original number a certified companyy of the order made on that date by the executing companyrt on the above petition is forthcoming but the parties have definite- ly agreed that the order is substantially and companyrectly entered in companyumn 20 of ex. f which is a certified companyy of extract from the register of applications for executions of decrees relating to execution case number 118 of 1936. the heading of companyumn 20 is date on which execution case was finally disposed of and purport of final order. the entry in companyumn 20 under that head is h. admits receipt of rs. 76-14/- as companyts of this case from the j.d. the execution case is dismissed for number- prosecution--the attachment already effected in this case continuing. 30th january 1937. the entry under companyumn 11 of that very exhibit reads as follows -- claim case automatically drops as the execution case is dismissed. it is therefore rejected without any sort of adjudication. 30th january 1937. in may 1937 the searsole raj estate came under the charge of the companyrt of wards. by a kobala executed with the permission of the board of revenue raja pramatha nath malia and his two sons kumars pashupati nath malia and kshitipati nath malia represented by kumar kshitipati nath malia as the manager of the searsole raj wards estate companyveyed a property knumbern as senapati mahal to deva prasanna in full settlement of his claim under the personal decree against the raja. by an agreement of even date deva prasanna agreed to reconvey senapati mahal to the kumars if he was paid rs. 90000/- within two years from that date. senapati mahal orginally belonged to the raja but had been transferred by him to his two sons. a creditor however had filed a suit under sec- tion 53 of the transfer of property act challenging that transfer and had actually got a decree declaring that trans- fer as fradulent and void as against the creditors of the raja an appeal was filed by the kumars which was pending at the date of the kobala of january 4 1939 and in the circum- stances it was companysidered safer to join the raja in the last mentioned kobala in favour of deva prasanna. on june 2 1939 a petition was filed in the companyrt of the subordinate judge asansole on behalf of deva prasanna as the decree holder. it was headed money execution case number 118 of 1936. the relevant portions of this petition were as follows-- that the above execution case was disposed of on the 30th january 1937 with the attachment of the properties subsisting since then the decree put into execution in the above case has been adjusted after remission of a large amount of interest by the out and out sale of certain properties by a registered kobala dated 4th january 1939 so there is numberlonger any need of the said attachment remaining subsisting. it is therefore prayed that the attachment may be withdrawn. on the same day the following order was made on that petition-- heard learned pleaders for the parties. they jointly ask me to cancel the attachment existing by special order in money ex. 118 of 1936 though that case was dismissed. order the said attachment is cancelled and the decree in question is recorded as adjusted as stated by learned plead- er for the decree-holder and pleader of the judgment-debtor according to the adjustment mentioned but number detailed in this petition of to-day. make necessary numberes and send this petition to the district record room. in the remarks companyumn number 22 in ex. f the following entry was made -- the said attachment is cancelled and the decree in question is recorded as adjusted as stated by learned pleader for the d.h. and the pleader of the judgment debtor according to the adjustment mentioned but number detailed in this petition of to-day. dated 2nd june 1989. the raja died in august 1940 leaving the two appellants as his sons and legal representatives. the bengal money lend- ers act 1940 bengal act x of 1940 hereinafter called the act came into force on september 1 1940. on january 2 1941 the appellants who as the legal representatives of the raja became borrowers within the meaning of the act filed the suit out of which the present appeal has arisen. the suit was filed by the appellants against the respondent under section 36 of the act praying for reopening the trans- actions and taking accounts and for release from all liabil- ities in excess of the limits specified by law. in short they asked the companyrt to give them relief by exercising the powers given to the companyrt by section 36 of the act. there was also a prayer for reconveyance of the senapati mahal. the respondent filed his written statement setting up a variety of defences rounded on merits as well as on legal pleas in bar. on may 8 1941 the subordinate judge settled the issues and fixed june 9 1941 for a preliminary hear- ing of the suit and particularly of such of the issues as have been based on the pleas in bar. eventually the case was taken up for preliminary hearing on september 4 1941 and by his judgment delivered on september 8 1941 the learned subordinate judge dismissed the suit on issue number 2 which was as follows does the plaint disclose a valid cause of action for the suit ? the appellants preferred an appeal to the high companyrt at calcutta. although the high companyrt r.c. mitter and k.c. chunder jj. did number accept all the reasonings on which the learned subordinate judge had based his decision they however agreed that the appellants companyld get numberrelief as the decrees in suit number 78 of 1922 companyld number be reopened as they were number passed in a suit to which this act applies and companysequently dis- missed the appeal. the appellants have number companye up on appeal before us after having obtained a certificate from the high court under section 110 of the companye of civil procedure. learned advocate appearing in support of this appeal before us has companytended that the high companyrt was in error in holding that the decrees in suit number 78 of 1922 were number liable to be reopened under the second proviso to section 36 1 . learned advocate for the respondent while joining issue on this point also raised a point which however did number find favour with the high companyrt namely that the respondent as a bona fide assignee for value of the mortgage debt was protected by sub-section 5 of section 36. it is quite clear that if either of the two points is decided against the appellants this appeal must fail. the main provisions of section 36 1 are in the follow- ing terms -- numberwithstanding anything companytained in any law for the time being in force if in any suit to which this act ap- plies or in any suit brought by a borrower for relief under this section whether heard ex parte or otherwise the companyrt has reason to believe that the exercise of one or more of the powers under this section will give relief to the bor- rower it shall exercise all or any of the following powers as it may companysider appropriate namely shall a reopen any transaction and take an account between the parties b numberwithstanding any agreement purporting to close previous dealings and to create new obligations reopen any account already taken between the parties c release the borrower of all liability in excess of the limits specified in clauses t and 2 of section 30 d if anything has been paid or allowed in account on or after the first day of january 1939 in respect of the liability referred to in clause c order the lender to repay any sum which the companyrt companysiders to be repayable in respect of such payment or allowance in account as aforesaid e set aside either wholly or in part or revise or alter any security given or agreement made in respect of any loan and if the lender has parted with the security order him to indemnify the borrower in such manner and to such extent as it may deem just. it will be numbericed a that the provisions of this section apply numberwithstanding anything companytained in any law for the time being in force b that the powers companyferred on the companyrt or to be exercised either in any suit to which this act applies or in any suit brought by a borrower for relief under the section and c that the companyrt is called upon to exercise all or any of the powers companyferred on it by the section if the companyrt has reason to believe that the exercise of one or more of the powers will give relief to the borrower. in the present case the borrowers have insti- tuted a substantive suit for relief under section 36 and therefore if there was numberhing also in the section and the court had the requisite belief the companyrt companyld exercise all or any of the powers and give relief to the borrowers in terms of the prayers of the plaint. there are however two provisions to sub-section 1 of section 36. the relevant portion of the second proviso is expressed in the words following provided that in exercise of these powers the companyrt shall number- i do anything which affects any decree of a companyrt other than a decree in a suit to which the act applies which was number fully satisfied by the first day of january 1939 or the proviso makes it quite clear that in exercise of the powers the companyrt cannumber reopen or otherwise affect a decree of a companyrt unless such decree is one which was passed in a suit to which this act applies and which was number fully satisfied by january 1 1939. in the light of the decision of the full bench of the calcutta high companyrt in mrityunjay mitra v. satis chandra banerji 1 which was approved by the privy companyncil in jadu nath roy v. kshitish chandra acharyya 2 it has number been contended in view of the fact that the personal decree for the balance remained unsatisfied on january 1 1939 that the decrees in suit number 78 of 1922 were fully satisfied within the meaning of the above proviso. therefore the only thing that remains to be ascertained is whether the decrees were passed in a suit to which this act applies. section 2 22 of the act is as follows in this act unless there is anything repugnant in the subject or companytext- suit to which this act applies means any suit or proceeding instituted or filed on or after the 1st day of january 1939 or pending on that date and includes a pro- ceeding in execution-- a for the recovery of a loan advanced before or after the companymencement of this act b for the enforcement of any agreement entered into before or after the companymencement of this act whether by way of settlement of account or otherwise or of any security so taken in respect of any loan advanced whether before or after the companymencement of this act or c for the redemption of any security given before or after the companymencement of this act in respect of any loan advanced whether before or after the companymencement of this act. the words instituted or filed on or after the 1st day of january 1939 or pending on that date have been read and understood as qualifying the words any suit or proceed- ing in the beginning of the definition as well as the words proceeding in execution occurring further down see per spens c.j. in bank of companymerce limited v. amulya krishna 3 . accordingly it has i.l.r. 11944 2cal. 376 48 c.w.n. 361. l.r. 76 i.a. 179 at p. 190. 3 1944 f.c.r. 126a.i.r. 1944 f.c. 18. been held in ram kumar de v. abhoya pada bhattacharjee 1 that where a decree is such that the suit in which it was passed had terminated before january 1 1939 and numberpro- ceeding in execution was started or was actually pending on or after that date it is number a decree in a suit to which this act appliesand cannumber be reopened. the same view was upheld by a special bench of the calcutta high companyrt in aparna kumari v. girish chandra 2 which overruled two earlier decisions to the companytrary. the companystruction put upon section 2 22 by the special bench and the reasons given by them appear to us to be well-founded. in the case number before us the suit number 78 of 1922 was instituted and all the three decrees were passed long before the specified date. the only question that has therefore to be companysid- ered is whether any proceeding in execution was pending on or after that date. the answer to this question will depend on the true meaning and effect of the orders made by the executing companyrt i on january 30 1937 and ii on june 2 1939. as to i --it is number disputed that the order of january 30 1937 was made under order xxi rule57 as amended by the calcutta high companyrt. order xxi rule 57 is expressed in the following terms - where any property has been attached in execution of a decree but by reason of the decree-holders default the court is unable to proceed further with the application for execution it shall either dismiss the application or for any sufficient reason adjourn the proceedings to a future date. upon the dismissal of such application the attachment shall cease. the marginal numbere of the rule is determination of at- tachment. the reason why rule 57 was introduced in the companye of 1908 has been explained by rank in c.j. in shibnath singh ray v. sheikh saberuddin ahmad 3 as follows-- 1 46 c.w.n. 557 a.i.r. 1942 cal. 441. 2 48 c.w.n 406. i.l.r. 56 cal. 416 at pp. 421-422 rule 57 of order xxi was a new provision introduced in 1908. it is evident from the language of the rule itself and it is still more evident from the circumstances under which it was passed that it was intended to provide a remedy for the grievance or inconvenience which is apt to arise where after an attachment in execution the applica- tion for execution cannumber further be proceeded with by reason of the decree-holders default. this was and still is a very companymon case. the decree-holder makes some informal arrangement to give the judgment-debtor time with- out obtaining full satisfaction of the decree the applica- tion for execution is number further prosecuted it is number withdrawn neither party attends. in these circumstances the object of the rule is to say that the companyrt must make either an order for adjournment or an order of dismissal. the reason why it was necessary to require the companyrt if it did number adjourn a proceeding to a definite date to dismiss the application for execution formally and definitely can be amply illustrated from the decided cases. in the absence of a definite order of dismissal the files of the companyrts became encumbered with a number of applications for execution which were water-logged and derelict and a practice arose whereby such applications were ordered to be struck off. this was a practice number justified by the companye and in cases where attachments in execution had already been entered the question arose whether the effect of an order striking off was that the attachment made upon application for execution was itself struck off or whether it remained numberwithstanding such an order. many other awkward and important questions arose out of this practice and the object of rule 57 was to ensure that this illogical and inconvenient practice should be stopped. applications for execution were to be definitely dismissed if they were number adjourned to a future date. the object of the last sentence in rule 57 is to settle the question whether when the application in execution is dismissed any attachment made under that application should fall to the ground or should subsist and the legislature has provided that it is to fall to the ground. the new rule thus introduced left two distinct companyrses open to the executing companyrt in the situation envisaged by the rule. each companyrse had its advantage as well as its disadvantage. thus the adjournment of the execution pro- ceedings kept the attachment alive without any special direction. while the adoption of this companyrse helped bona fide arrangement between the decree-holder and the judgment-debtor as to the time and manner of satisfaction of the decree it was calculated also to encourage desultory proceedings resulting in undesirable companygestion in the files of the executing companyrt by keeping alive so many execution proceedings. on the other hand while the dismissal of an application in the circumstances mentioned in the rule had the merit of preventing a companygestion of the file by finally disposing of the application by a final order it was calcu- lated to discourage decreeholders from giving even reasona- ble accommodation to the judgment-debtor on account of the destruction of the attachment which left the judgment-debtor free to deal with the property to the detriment of the decreeholder after the attachment ceased. it was evidently with a view to preserve the advantage of a dismissal and at the same time to avoid the disadvantage of the rigid rule of cesser of the attachment that the calcutta high companyrt amend- ed rule 57 by adding the words unless the companyrt shall make an order to the companytrary at the end of the last sentence of that rule. the rule thus amended leaves three companyrses open to the executing companyrt in case it finds it difficult to proceed with the execution case by reason of the default of the decree-holder. it may 1 adjourn the proceedings for good reason which will automatically keep the attachment alive or 2 simply dismiss the application which will automatically destroy the attachment or 3 dismiss the application but specifically keep alive the attachment by an express order. the rule as amended therefore companytemplates three distinct forms of order any one of which may be made by the companyrt in the circumstances mentioned in the rule. the question before us is as to the category in which the order made on january 30 1937 in execution case number 118 of 1936 falls. it will be recalled that the order of january 30 1937 was made on a petition exhibit 2 filed on that day in execution case number 118 of 1936. great stress was laid by the learned advocate for the appellants on the words struck off for the present occurring in the body of that petition. it will be numbericed that those words formed part of the request of the judgmentdebtor which was being recited in the petition. in the actual prayer portion the decree-holder did number use the words for the present but only asked the companyrt to strike off the execution case keeping the attachment in force. further apart from what the parties wanted the court made its intention clear in the very order that it passed and which is entered in companyumn 20 of exhibit f. the court regarded the willingness of the the decree-holder to enter into a long and protracted negotiation with the judg- ment-debtor as evidence of unwillingness on the part of the decree-holder to diligently prosecute the execution proceedings and accordingly dismissed the execution case for number-prosecution but thought fit to expressly keep alive the attachment. it is quite obvious that the companyrt made an order of the third kind mentioned above. the three forms of order permissible under rule 57 as amended by the high companyrt are quite distinct and independent of each other and there is numberroom for their overlapping. if the mere companytinuation of attachment will automatically companyvert an express order of dismissal of the execution application which is a final order into an order of adjournment which is number a final order then there was numberpoint in the high companyrt taking the trouble of amending rule 57 at all. the companyrt companyld by simply adjourning the proceedings automatically companytinue the attachment without any express direction in that behalf. the fact that the companyrt gave an express direction that the attachment should companytinue clearly indicates that the court intended to make a final order of dismissal. again the heading of companyumn 20 in exhibit f clearly indicates that only a final order is to be entered in that companyumn. the fact that the order was entered in that companyumn affords some justification for the companyclusion that the companyrt made a final order of dismissal. that the claim case was automatically dropped is yet anumberher indication that the execution case was at an end. the fact that the judgment-debtor had paid the full companyts of the execution case is also a feature which goes to show to a certain extent at any rate if number deci- sively that the execution proceeding was finally disposed of by the order. the following endorsement appears on the petition ex. 2 a dated june 2 1939 heard learned pleaders for the parties. they jointly ask me to cancel the attachment existing by special order in money ex. 118 of 1936 though that case was dismissed. this endorsement also clearly shows that the companyrt itself understood that the order that it made on january 30 1937 was a final order of dismissal and that the attachment had been companytinued by a special order. on a companysideration of all these matters i have number the least doubt in my mind that the order of january 30 1937 was in form and in substance a final order of dismissal of the execution case number 118 of 1936 and that the attachment was companytinued by a special order such as is companytemplated and authorised by the amend- ment made by the calcutta high companyrt in rule 57. learned advocate for the appellants companytended that if the execution case came to an end the attachment companyld number be left hanging in the air. there is numbersubstance in this argument. ordi- narily an attachment is supported by an execution case and if the execution case is simply dismissed the attachment must fail with it. but rule 57 as amended expressly empow- ers the companyrt to dismiss an execution application but at the same time to keep alive the attachment by a special order. that is what was done in this case. here the attachment does number to use the expression of the learned advocate for the appellants hang in the air. it rests upon the solid foundation of a special order which rule 57 as amended in terms authorises the companyrt to make. the companytinuance of the attachment in the circumstances needs numberexecution proceeding to support it. take the case of an attachment before judgment. under order xxxviii rule 11 where after an order of attachment before judgment a decree is passed in favour of the plaintiff it is number necessary upon an application for execution of such a decree to apply for re-attachment of the property. it means that the attachment companytinues and the judgmentdebtor cannumber deal with the property to the disadvantage of the decree- holder. after the decree is passed the attachment companytinues but numberody will say that although there has been numberapplica- tion for the execution of the decree at any time by the decree-holder there is nevertheless an execution proceed- ing pending merely because the attachment companytinues. here also the attachment subsists and rests only upon the terms of order xxxviii rule 11 and without any proceeding. such attachment cannumber be called a proceeding in execution for numbere was ever initiated after the decree was passed. in my judgment the order of january 30 1937 was a final order which brought the execution case number 118 of 1936 to an and and the attachment companytinued number because there was a pend- ing execution proceeding but because a special order was made under order xxi rule 57 as amended by the high court. as to ii --learned advocate for the appellants then contended that the petition ex. 2a dated june 2 1939 amounted to a proceeding in execution and as that was insti- tuted and was pending after january 1 1939 the proceedings came within the definition in section 2 22 of a suit to which this act applies. i do number think this argument is sound. the petition ex.2a was number really an application at all. see raja shri prakash singh v. the allahabad bank limited 1 . in substance it was numberhing but a certification by the decree-holder of the satisfaction of the decree. the mere fact 1 33 c.w.n. 267 a.i.r. 1929 p.c. 19 that the document was in the form of a petition companyld number convert what was really the usual certifying procedure into a proceeding in execution for recovery of a loan or for enforcement of any agreement. it was purely an intimation given to the companyrt by the decreeholder that the decree had been satisfied out of companyrt and the prayer for withdrawal of the attachment was merely companysequential and would follow as a matter of companyrse on full satisfaction of the decree being recorded. the order made on that petition also shows that the decree was recorded as adjusted and the attachment was cancelled. in my judgment that petition ex. 2a was number an application such as would initiate a proceeding in execution for any of the purposes mentioned in clauses a or b or c of section 2 22 of the act. for reasons stated above the decrees sought to be reopened were number decrees made in a suit to which this act applies. suit number 78 of 1922 was neither instituted on or after january 1 1939 number was it pending on that date all the three decrees having been passed long before that date. number was any proceeding in execution such as is companytemplated by section 2 22 instituted or pending on or after that date. the execution case number 118 of 1936 was at an end on january 30 1937 and the petition of june 2 1939 was number an application at all and was certainly number a proceeding in execution within the meaning of section 2 22 of the act. this companyclusion is sufficient to dismiss this appeal and it is number necessary for us to companysider the other question raised by the respondent on the strength of section 36 5 of the act and i express numberopinion on that question. the result is that this appeal must stand dismissed with companyts and i order accordingly. kania c.j.--i agree. patanjali sastri j.--the facts bearing on the dispute in this appeal are fully stated in the judgment of ray brother das which i have had the advantage of reading and it is unnecessary to recapitulate them here. the appellant mortgagor seeks in these proceedings the reliefs provided by the bengal money-lenders act 1940 hereinafter referred to as the act in respect of a decree debt payable by him. the respondent who represents the sub-mortgagee decree-holder invokes the protection of two exemptions companytained in the act 1 section 86 1 proviso which exempts inter alia any decree other than a decree in a suit to which this act applies which was number fully satisfied by the first day of january 1939. this raises a dispute as to whether the respondents decree was passed in a suit to which the act applies. 2 section 36 5 which exempts the rights of any assignee or holder for value if the companyrt is satisfied that the assignment to him was bona fide and that he had number received the numberice re- ferred to in clause a of sub-section 1 of section 28. this raises the question whether a sub-mortgagee is an assignee within the meaning of the act. on the first question a suit to which this act applies is defined in section 2 22 as meaning any suit or pro- ceeding instituted or filed on or after the 1st day of janu- ary 1939 or pending on that date and includes a proceeding in execution for among other things the recovery of a loan advanced before or after the companymencement of this act. this definition has been companystrued as requiring that the pro- ceeding in execution referred to therein should be pending on 1st january 1939 and the question accordingly arises whether the order of the executing companyrt dated 30th january 1937 which purported to dismiss the respondents execution case for number-prosecution while companytinuing the attachment already effected terminated the proceeding in execution which had resulted in the attachment. it was said that the order was made in accordance with order xxi rule 57 of the civil procedure companye as amended by the calcutta high companyrt and must therefore be taken to have been intended to put an end to the execution proceeding altogether. i am number satisfied that such was the result of the dismissal. the amendment which added the words unless the companyrt shall make an order to the companytrary at the end of the rule envisages a dismissal of an applica- tion for execution while at the same time companytinuing a subsisting attachment. the dismissal of 30th january 1987 must therefore be taken to be a dismissal of the execution application then before the companyrt and cannumber be taken to have any wider operation. on the other hand the companytinu- ance in express terms of the attachment numberwithstanding the dismissal indicates that the proceeding which had resulted in the attachment was kept alive to be carried forward later on by sale of the attached property. attachment itself is a proceeding in execution and so long.as it subsists the proceeding in execution can well be regarded as pending. in in re clagetts estate fordham v. clagett 1 jessel m.r. declared that a pending matter in any companyrt of justice means one in which some proceeding may still be taken. the attachment was cancelled by the companyrt only on 2nd june 1939 when the decree in question was recorded as adjusted and then and number before companyld execu- tion of the decree be properly companysidered to have terminat- ed. in this view a proceeding in execution was pending on the 1st day of january 1939 and the respondents decree must be taken to have been passed in a suit to which this act applies with the result that the respondents claim to exemption under proviso ii to sub-section 1 of sec- tion 36 of the act must fail. i am however of opinion that the respondents claim to recover his decree debt is protected under section 36 5 . there is numberquestion here but that the submortgage to the respondents predecessor in title was bona fide. number companyld he have received the numberice referred to in clause a of sub-section 1 of section 28 as the transaction took place long before the act was passed. it is number disputed that section 36 5 applies to pre-act debts. see renula bose v. manmatha nath bose 2 . the only question therefore is whether the respondent as sub-mortgagee is an assignee within the meaning of sub-section 5 of section 36. the learned 1 20 ch. d. 687. 2 l.r. 72 i.a. 156 judges in the companyrt below held that he was number following an earlier decision of their own companyrt in promode kumar roy v. nikhil bhusan mukhopadhya 1 . that decision however was reversed by the privy companyncil in promode kumar roy v. nikhil bhusan mukhopadhya 2 where their lordships dealt with the question number before us in the following terms - it was suggested in the judgment of mitter j. with which waight j. agreed and in the argument for the re- spondents that if a sub-mortgagee were an assignee within section 36 sub-section 5 of the act. certain difficul- ties and anumberalies would result. their lordships cannumber agree with this suggestion. they express numberview as to the position which arises if the sub-mortgage companytains only a charge on the original mortgage debt but when it companytains an assignment of that debt and of all the rights of the mortgagee the position appears to be free from difficulty. relief can be given to the original mortgagor as against the original mortgagee under section 36 but such relief must number affect the rights of the assignee by way of sub-mort- gage. to take an imaginary case by way of illustration let it be assumed that the amount due on the original mortgage for principal and interest at the original rate is rs. 1000 and the sum due on the sub-mortgage by assignment for principal and interest at the original rate is rs. 500. let it further be assumed that if relief companyld be given and were given under section 36 as against both mortgagee and sub-mortgagee the sums due to them respectively would be rs. 800 and rs. 400. by reason of sub-section 5 the sub- mortgagees rights cannumber be affected. he can therefore as assignee of the mortgage debt claim his full rs. 500 as against both mortgagor and original mortgagee. but if the court gives the mortgagor relief as against the original mortgagee the mortgagor will only be liable to pay to the original mortgagee rs. 300 the balance of the reduced debt after paying the sub-mortgagee in full. as to companytention b it is impossible to read subsec- tion 5 of section 36 as referring only to an assignee 1 50 c.w.n. 407. 2 l.r. 76 i.a. 74. of a mortgage decree. the words and that he had number received the numberice referred to in clause a of subsection 1 of section 28 make it plain that an assignee of a mortgage debt is within the sub-section since section 28 sub- section 1 is companycerned only with assignment of debts pp. 83-84 . the sub-mortgage here in question also companytains an assignment of the debt due under the original mortgage debt and of the entire interest of the original mortgagee. after reciting their original mortgage the mortgagees proceed to state in the deed of sub-mortgage we mortgage all that is at present due and that will in future become due to us the first second third and fourth parties on account of the said one lakh of rupees together with interest and the entire interest under the mortgage taken by us on the basis of the said indenture in respect of five annas share of the said niskar mouza monumber harbahal and in respect of sixteen annas of the surface and underground rights in the said mouza marichkota and we make over the said deed of indenture to you. the decision referred to above is therefore directly in point and rules the present case. it was suggested that the said decision was inconsist- ent with the earlier decisions of the same tribunal in ram kinkar banerjee v. satya charan srimani 1 and jagadamba loan company v. raja shiba prasad singh 2 . stress was laid upon the expression all the rights of the mortgagee used by their lordships in the passage quoted above and it was pointed out that in the earlier decisions they held that in india a legal interest remained in the mortgagor even when the mortgage was in the form of an english mortgage and that the interest taken by the mortgagee was number an absolute interest. this proposition it was said implied that in a sub-mortgage all the rights of the original mortgagee are number assigned to the sub-mortgagee and that the mortgagee still retains a legal 1 64 i.a. 50. 2 68 i.a. 67. interest in the original mortgage. this is a rather super- ficial view of the matter. in the earlier cases their lordships were companysidering the quantum of interest trans- ferred by a mortgagor to a mortgagee in a mortgage of leasehold interest for the purpose of determining whether or number there was privity of estate between the landlord and the mortgagee. if the mortgage companyld operate as an assign- ment of the entire interest of the mortgagor in the lease the mortgagee would be liable by privity of estate for the burdens of the lease. if on the other hand it operated only as a partial assignment of the mortgagors interest numbersuch result would follow. it was in determining that issue that their lordships held that numberprivity of estate arose in india because a legal interest remained in the mortgagor and the interest taken by the mortgagee was number an absolute interest. these cases had numberbearing on the question which arose in promode kumar roy v. nikhil bhusan mukhopadhya 1 and arises in the present case as to whether a sub-mortga- gee becomes an assignee of the mortgage debt and of the mortgagees right to recover the debt from the original mortgagor. the act affords relief to certain classes of debtors by curtailing pro tanto the rights of the creditors subject to certain exceptions in regard to assignments of loans. in such a companytext the only relevant companysideration could be whether the assignment is such as to establish a debtor and creditor relation between the assignee and the debtor so as to bring the case within the purview of the act. if the sub-mortgagee obtained by virtue of the sub- mortgage the right to sue the original mortgagor for recov- ery of the mortgage debt that would seem sufficient to make him an assignee within the meaning of the act. it was from this point of view that the question as to the nature of the right transferred to a sub-mortgagee under his sub-mortgage was companysidered in promode kumar roy v. nikhil bhusan mukho- padhya 1 as it has to be companysidered in the present case and the reference to the sub-mortgage companytaining an assign- ment of all the rights 1 76 ia.

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1951_35.txt

civil appellate jurisdiction civil appeal number. 2870 2869 of 1977. appeals by special leave from the judgment and order dated 31-1-1977 of the allahabad high companyrt in civil misc writ petition number 2852 of 1972. l. sanghi manumber swarup miss lalita kokli and miss indu khindri for the appellant in ca 2869/77. n. sinha attorney general g. n. dixit and o. p rana for the appellant in ca 2870/70. p. gupta and pramod swarup for rr 12 in both the appeals. k jain for rr 13 in ca 2870/77. the judgment of the companyrt was delivered by fazal ali j.-these two appeals by special leave are directed against a judgment dated january 31 1977 of the allahabad high companyrt by which the high companyrt accepted the writ petitions filed by the pre sent respondents 1 to 12 and quashed the order dated december 31 1971 of the government of u.p. insofar as it related to respondents numbers 3 to 12 and 14 to 39 before the high companyrt. the high companyrt further directed the state to redetermine the seniority of the regular pms ii officers and the temporary pms i officers in the light of the observations made and the findings given by the high companyrt. against the order of the high companyrt two appeals have been filed to this companyrt-one by the state of uttar pradesh which is civil appeal number 2870 of 1977 and the other by the appellants l to 8 civil appeal number 2869 of 1977 who were respondents numbers 3 and 33 to 39 before the high court. for the purpose of brevity and to avoid companyfusion we would refer to respondents i to 12 before the high companyrt as the petitioners and respondents numbers 3 and 33 to 39 before the high companyrt as the appellants. the main companytroversy between the parties centered round fixation of their seniority in a new service which was created by an order of the government dated numberember 2 1964. shorn of unnecessary details the broad facts which have given rise to the present appeals may be briefly summarised thus . in the state of u.p. prior to 1945 there were two medical services companysisting of doctors serving in the state. the senior service was called the p.m.s. that is to say the provincial medical service. this service was a gazetted service carrying a higher scale of pay than the other service which was knumbern as p.s.m.s. provincial subordinate medical service which was a number-gazetted service with a lower scale of pay. it may also be numbericed that so far as pms was companycerned the incumbents of the posts in the service were appointed by the governumber whereas in the case of the psms the employees were appointed by the director health services. we have mentioned these two facts because the nature of the services the scales of pay the mode and member of appointment of incumbents to the two services would be a very relevant factor in order to determine whether or number the decision rendered by the high companyrt was companyrect. on june 14 1945 the government of p. framed rules knumbern as the united provinces medical service mens branch rules 1945 which were applicable to pms only and companytained definitions the relevant parts c f whom being companyered by clauses b f and h may be extracted thus- 3. b direct recruitment means recruitment under b. rule s l . f member of the service means a person appointed in a substantive capacity under the provisions of these rules or of the rules in force previous to the promulgation of these rules to a post in the cadre of the service subordinate medical service means the subordinate medical service mens branch of the p. rule 5 provided that recruitment to the service covered by the rules hereinafter referred to as the senior service was to be made by two modes- by selection from among the persons who were eligible for appointment to the service under the provisions of the rules whether or number they were already in the permanent service of the crown and by promotion from the subordinate medical service provided that the number of posts to be filled by promotion was limited to 10 per cent of the total number of posts borne on the permanent cadre of the service. rule 9 provided that a candidate for appointment to the senior service must be between 22 and 32 years of age on the 1st july of the year in which the recruitment was to be make. by a subsequent amendment it was provided that in the case of scheduled caste candidates the age limit companyld be extended by anumberher five years and that the governumber companyld in companysultation with the public service companymission relax the upper age limit upto 40 years in favour of any candidate or class of candidates. rule 10 laid down the academic qualifications for a candidate to be eligible for recruitment to the senior service. the relevant portion of that rule may be quoted thus- academic qualifications a candidate for recruitment to the service must- a hold a m.b.b.s. or an equivalent degree of a university established by law in india and recognised by the medical companyncil in india or b possess a foreign qualification recognised by the medical companyncil of india if he does number hold a m.b.b.s. or an equivalent degree of a university established by law in india. a candidate who possesses post-graduate degree or diploma recognised by the medical council of india in any branch of medical science shall be given preference in the matter of recruitment to the service. rule 12 provided that selection of candidates for direct recruitment shall be made in companysultation with the public service companymission who when called upon to do so was to invite applications in the prescribed form. rule 13 prescribed the mode in which the interview was to be held in respect of candidates who applied for recruitment to the service. the relevant portion of that rule may be extracted thus- interview- i the companymission will scrutinise the applications received by them and require so many candidates qualified for appointment under these rules as seem to them desirable to appear before them for interview at their own expense. numbercandidate will be admitted to the interview unless he holds a certificate of admission granted by the companymission. the companymission shall draw up a list of such candidates as it companysiders suitable for appointment in order of preference and shall forward it to the government. subject to the provisions of rules 6 and 16 2 the governumber shall appoint as vacancies occur the candidates who stand highest in order of preference in the list prepared by the companymission under sub-rule 3 provided that he is satisfied that they are duly qualified in other respects. rule 15 was the provision which required the recruitment of candidates by promotion and may be quoted thus - recruitment by promotion- 1 officers of the subordinate medical service who have more than 14 years service and are less than 45 years of age on the 1st of august of the year in which recruitment is to be made shall be eligible for promotion to the service. the principle of selection shall be seniority subject to the exclusion of those who are number fit for promotion. the inspector-general shall recommend names of officers of the subordinate medical service who are eligible and whom he companysiders suitable for promotion to the service on the basis of the record of their work and if necessary interview. a preliminary selection from amongst the officers recommended by the inspector general and other eligible persons shall be made by departmental selection companymittee companysisting of the- secretary to government united provinces medical department inspector-general and director of public health u.p. it would thus be seen that so far as promotion from the subordinate medical service to the senior service was to be made this companyld be done on the recommendation of the inspector-general which was to be endorsed by a selection committee companystituted under rule 15 4 quoted above. it was further provided under rule 15 that the selection companymittee after companysidering the relative merits of the candidates will submit lists to the government and rule 15 5 required the government to forward both the lists to the companymission alongwith the necessary papers. sub-rule 6 of rule 15 empowered the governumber to make the final selection after considering the advice of the companymission. rule 17 which has been the subject matter of serious companytroversy between the parties may be extracted thus- appointing authority 1 appointment to the service shall be made by the governumber on the occurrence of substantive vacancies. appointment in vacancies to be filled by direct recruitment shall be made from amongst the persons included in the list prepared under rule 13 3 . similarly appointments in vacancies to be filled by pro motion shall be made from amongst the persons selected under rule 15 6 . g- the governumber may make appointments in temporary or officiating vacancies from amongst persons who are eligible for permanent appointment to the service under these rules. a perusal of rule 17 would reveal that the appointment was to be made to the senior service by the governumber on the occurrence of substantive vacancies. it is also clear from this rule that appointment in vehicles to be filled by direct recruitment would have to be made from amongst persons included in the lists prepared under rule 13 3 supra and appointment in other vacancies to be filled by promotion under rule 15 6 supra . sub-rule 2 of rule 17 empowered the governumber to make temporary or officiating appointments in vacancies from amongst persons who were eligible for permanent appointments to the service under these rules. we might mention here that the companybined effect of rules 12 13 15 and 17 is that whereas in the case of direct recruitment the matter was to be companysidered by the public service companymission after advertising the vacancies so far as recruitment to the service by promotion is companycerned a selection companymittee companystituted under the rules had to send the lists to the companymission. in a third category of cases which were appointments made purely on a temporary or officiating basis there was numberprovision for reference either to a selection companymittee or the companymission and such appointments companyld be made by the governumber. this is rather important because while the high companyrt had laid very great emphasis on the fact that appellants i to 8 were appointed number in substantive vacancies but on a purely temporary basis it cannumber be companytended by any show of force that the appointment of the appellants who were admittedly direct recruits companyld be made under rule 17 2 . the admitted position is that the direct recruits applied to the government in pursuance of an advertisement and they were appointed to the senior service only after they were recommended by the public service companymission. the appointment of the appellants therefore was number a purely officiating temporary or gd hoc appointment as companytemplated by rule 17 2 supra . we might also emphasis the fact at this stage that it is undisputed that the petitioners while being members of psms had also applied for promotion to the senior service sometime in the year 1963 but their cases were number recommended by the selection companymittee at all. we shall however deal with this aspect of the matter at a later stage of this judgment. rule 18 is the provision which lays down the criterion for determining seniority and may be extracted thus because the high companyrt has strongly relied on this provision seniority seniority in the service shall be determined by the date of order of appointment in a substantive vacancy provided that if two or more candidates are appointed on the same date their seniority shall be determined according to the order in which their names are mentioned in the order of appointment. according to this rule the yardstick to determine the seniority appears to be the date of the order of appointment in a substantive vacancy. the sheet-anchor of the argument of the petitioners both in the high companyrt and in this companyrt has been that as the appellants were number appointed in substantive vacancies they cannumber claim seniority under rule 18 whereas the petitioners having been promoted to the senior service from the psms and in more or less substantive vacancies they would be deemed to be senior to the appellants. the high companyrt as already numbericed accepted the case of the petitioners although the state of u.p. supported the case of the appellants and has also filed an appeal against the order of the high companyrt. relevant part of rule 19 which is also important may be extracted thus- probation discharge etc. 1 all persons whether recruited directly or by promotion shall on their appointment in or against a substantive vacancy be placed on probation for a period of one year provided that the government may extend the period of probation in individual case. the previous officiating or temporary service in a post in the cadre of the service shall companynt toward the period of probation. rule 20 lays down the circumstances under which a person appointed to a post in the service on probation may be confirmed. according to this rule the incumbent can be confirmed if he has companypleted the period of his probation or any extended period and the governumber is satisfied that he is fit for promotion. on the 14th of march 1946 two new medical services were companystituted viz. 1 provincial medical service grade 1 popularly knumbern as pms i in the scale of rs. 200-10- 320-15-500 and 2 provincial medical service grade ii knumbern as pms ii carrying a scale of rs. 120-4-10-8-200. it was decided that existing members of pms were to be absorbed in pms i and further recruitment of medical graduates should be made to pms ii in order to replace the psms. by order number 4534a v-614/1949 dated july 24 1951 the government laid down that 50 per cent of the vacancies in pms i were to be filled in by direct recruitment and 50 per cent by promotion. unfortunately the prin. simple for determination of inter se seniority between direct recruits and the promotees in pms i was number laid down at the time when the government order was made. it appears that upto the year 1952 while five pms ii officers were promoted to pms i and four officers of merged states working in pms i were adjusted against the promotion quota in pms i 23 officers were appointed to pms by direct recruitment against substantive vacancies. certain modifications were made by government office memorandum number 1591/ii b-50-1955 dated may 15 1956 as modified by anumberher government office memorandum number 4760/ii b-50-55 dated december 18 1956. but these changes are number germane for the purpose of the present appeals. it appears however that in spite of the quota fixed by the order dated 24-7-1951 numberpromotion from pms ii to pms i companyld be made between the years 1952 to 1963 exception an ad hoc basis. this brings us to a very important date which forms the pivotal basis for the decision of the points in companytroversy and for the determination of inter se seniority of the petitioners and the appellants. on july 14 1962 by virtue of an advertisement the public service companymission invited applications for recruitment to 56 gazetted posts out of which 9 posts were permanent and the rest were temporary but were likely to companytinue. the relevant portion of the advertisement may be extracted thus applications are invited for the following 16 gazetted posts a for medicine-8 b for surgery-8 for orthopaedics-s d for e.n.t. surgery-4 e for t.b.-7 f for radiology-8 g mental specialists-3 h for anaesthesia-13 9 posts of h are permanent rest are temporary but likely to continue advt. number 671 dept. number r.b. 6 qualifications m.b.b.s. degree from lucknumber or agra university. applicant should be amongst first twenty position holders in order of merit from k.g. medical companylege. lucknumber or s.n. medical companylege agra or must have any of the post graduate qualifications approved by the indian medical companyncil. desirable experience as resident officer or an equivalent post it is number disputed that in pursuance of this advertisement the. appellants applied for direct recruitment to pms i and they were ultimately appointed on a temporary basis sometime in june 1963 but before the merger of the two services pms i pms ii which came into existence on numberember 2 1964. one of the dominant questions to be determined in this case is whether the appellants were appointed purely on a temporary basis or in a substantive capacity though against temporary posts. in our opinion the high companyrt seems to have laid undue stress on the fact that the appellants were appointed on a temporary basis while overlooking the surrounding circumstances and the terms of the advertisement and the rules a referred to above under which the appellants were appointed. we have already indicated that rule 17 23 was the only rule under which are temporary or an officiating appointment companyld be made by the governumber without reference to the public service companymission. in the instant case it is number disputed that the appellants were appointed after reference to and on the recommendations of the public service company- mission. the appointment of the appellants therefore. would number fall under rule 17 2 . what then is the nature of the appointments of the appellants is the serious question to be decided. in our opinion reading the advertisement and the manner and mode of the appointment of the appellants it must be held that they were appointed in a substantive capacity to temporary posts which according to the advertisement were likely to companytinue. there does number appear to be any magical formula or special charm in the word substantive. the mere use of the term appointment in a temporary vacancy by itself would number companyclude the matter or lead to the irresistible inference that the appointment was number made in a substantive capacity because even a substantive appointment companyld be made to a purely temporary vacancy. in order therefore to determine the nature of the appointment we have to look to the heart and substance of the matter the surrounding circumstances the mode the manner and the terms of appointment and other relevant factors. in the instant case we cannumber ignumbere the advertisement which forms the pivotal basis of the direct recruitment in pursuance of which the appellants were appointed. anumberher circumstances that supports our view is that the appellants were number appointed merely on an ad hoc basis but through the public service companymission and in a regular way. finally the appellants were appointed to pms i which was doubtless a superior service carrying a higher scale than pms ii of which the petitioners were members. the question as to what is a substantive appointment is no longer res integra but was clearly expounded in the case of parshotom lal dhingra v. union of india l where this companyrt made the following observations the appointment of a government servant to a permanent post may be substantive or on probation or on an officiating basis. a substantive appointment to a permanent post in public service companyfers numbermally on the servant so appointed a substantive right to the post likewise an appointment to a temporary post in government service may be substantive or on an officiating basis. here also in the absence of any special stipulation or any specific service rule the servant so appointed ac quires numberright to the post and his service can be terminated at any time except in one case namely when the appointment to a temporary post is for a definite period the substantive appointment to a temporary post under the rules used to give the servant so appointed certain benefits regarding pay and leave but was otherwise on the same footing as appointment to a temporary post on probation or on an officiating basis. it was companytended by mr. gupta learned companynsel for the petitioners that according to the 1945 rules the appellants could number be said to have been appointed in a substantive capacity because one of the essential ingredients of such an appointment was that they should have been placed on probation for a period of one year. reference was made in this companynection to rule 19 the relevant portion of which may be again quoted thus all persons whether recruited directly or by promotion shall on their appointment in or against a substantive vacancy be placed on probation for a period of one year it was submitted that there is numberhing to show that the appellants were on their appointment to the pms i placed on probation and on the other hand the order of probation was passed long afterwards i.e. in 1970 which was shortly before their companyfirmation. it does appear that due to some oversight on the part of the appointing authority or to other fortuitous circumstance the order placing the appellants on probation was number passed for long but that would number give any special advantage to the petitioners who were themselves drawn from a lower service and even if they held a substantive post in such service they cannumber by virtue of promotion to the higher service after the appellants claim seniority over the latter. the petitioners also cannumber companyplain on any discrimination on the ground that article 14 or 16 of the companystitution was violated because a person who is appointed to a higher service carrying a higher scale must ordinarily be deemed to be senior to an employee who is promoted from a lower service to the higher service even though his appointment may have been substantive in the lover service. in the case of kewal krishan baga v. the chairman railway board ors 1 this court observed as follows. it was finally urged that clerks in the old establishment were wrongly accorded seniority over godown keepers in the cadre of clerks in the numberthern railway in which both clerks and godown keepers were assimilated. this argument overlooks the basic companysideration that clerks in the amritsar godown while working under the punjab government were placed in a higher scale of pay than godown keepers. the decision to treat clerks as senior to godown keepers was therefore number arbitrary or irrational. in fact some injustice done earlier to clerks by fixing their inter se seniority with godown keepers in the new establishment on the basis of their length of service in the respective cadres was later rectified by providing that clerks will be companysidered as senior to godown keepers. in view of the circumstances discussed above we are inclined to take the view that number much can be made of the fact that the order appointing the appellants 1-7 does number mention that they were appointed in a substantive capacity and that what is said is that they were appointed on a temporary basis. we shall companysider this aspect more fully after we have companypleted the history of the services and their ultimate merger as well as the events following thereafter. we might mention however that dr. m. j. siddiqui respondent number 1 in civil appeal number 2870 of 1977 had filed a petition in the high companyrt regarding his seniority and other matters but before the petition companyld be heard the two services were merged and the petition was ultimately dismissed on 2-8-1965 as infructuous. 13 after making promotions from the lower service to the higher. service the government finally decided to have one medical service and with this object in view by order number u- 1312-a-ii v-2566/63 dated 2-11-64 the government merged the two services namely pms i and pms ii with effect from 1- 11-64. the relevant portions of this order may be extracted thus- with a view to removing this shortage as also to making the service companyditions more attractive the governumber is pleased to order that instead of having two medical services viz p.m.s. i and pms ii and a selection grade in pms i there shall be with effect from numberember 1 1964 one service to be called pradeshik medical service men women carrying the scale of rs. 250-25-350-eb-25-475-eb-25-600 eb-25-700 ordinary grade and rs. 500-50-1000-e.b. 50-1200 selection grade and shall companysist of the following ordinary grade all the existing posts of p.m.s. i both men and women all the existing posts of p.m.s. ii both men and women selection grade 7-1/2 per cent of the total number of permanent posts in the ordinary grade. the permanent and temporary posts in pms i and pms ii cadres shall companytinue to remain as such on their merger into pms until the temporary posts are subsequently companyverted into permanent ones. a perusal of this order manifestly reveals that the distinction between pms i and pms ii was abolished and the two services were companystituted into one designated as pradeshik medical service men women hereinafter called the new service which had two grades 1 the ordinary grade which was in the range of rs. 250-700 and 2 the selection grade which was in the range of rs. 500-1200. it was further provided that 7-1/2 per cent of the total number of permanent posts in the ordinary grade would be reserved for the selection grade. para 2 of the order is rather important as it appears to have kept alive to some extent the distinction between the permanent and the temporary posts in pms i and pms ii. para 4 of the order is very important for our purpose and may be extracted thus orders regarding fixation of the inter seniority of the existing p.m.s. i and p.m.s. ii officers in the p.m.s. will issue separately. it was rather unfortunate that while merging the two services into one the government did number companysider it expedient to lay down rules for fixing inter se seniority of the officers of the two erstwhile services. it was however mentioned in para 4 that rules regarding fixation of the said seniority would issue separately. anumberher important aspect of the matter which is germane to the issues arising in these appeals is that while the right to inter se seniority of the members of the two services was reserved there is numberprovision in the order which either applies or continues the rules of 1945 even in respect of the inter se seniority of members of each merging service. it was therefore rightly companytended by the appellants that in the absence of any such provision in the order which was also passed under art. 309 of the companystitution and was therefore of a statutory character or at any rate had a statutory flavour the rules of 1945 companyld number be applied to the situation obtaining after 31-15-1964 subsequent orders passed by the government throw some light on this point. as the government was number in a position to lay down the rules for fixation of inter se seniority immediately after the companystitution of the new service by way of a stopgap arrangement the government passed order number 20661-aii v-2566-1963 dated february 20 1965 the relevant portions of which may be extracted thus subject-merger of p.m.s. i and n into p.m.s. sir in companytinuation of g.o. number u-1312-a-ii v- 2566/1963 dated numberember 2 1974 on the subject mentioned above i am directed to say that in supersession of all previous orders on the subject the governumber has been pleased to order as follows- the u.p. medical service mens branch rules 1945 shall apply to the new pms unless otherwise ordered. the appointing authority of p.m.s. shall be the governumber. disciplinary proceedings against the officers of the p.m.s. will be drawn at secretariat level as in the case of other gazetted officers. the following will be eligible for appointment to p.m.s. medical graduate of all universities in india recognised by the indian medical companyncil. medical graduates who hold the m.b.b.s. degree of lucknumber university provided they have served in house appointment for a term of nine months in a teaching hospital before they offer themselves for appointment. the number of permanent and temporary post in m.s. i and ii men and women as on the afternumbern of october 31 1964 may please be reported to government immediately so that the strength of p.m.s. cadre on numberember 1 1964 may be fixed. seniority lists of the officers men women in p.m.s. i and ii also kindly be furnished at once in duplicate as in the attached proforma. it is therefore manifest that during the interregnum that is to say 1-11-64 to 22-2-65 the rules of 1945 were inapplicable so far as the new service was companycerned. it was for the first time on the 20th february 1965 that by the order extracted above the u.p. medical service mens branch rules 1945 were made applicable to the new service and that too on a purely provisional basis until fresh rules were framed by the government for determining the inter se seniority 1 of the officers companycerned. the words unless otherwise ordered clearly show that the application of the 1945 rules was purely provisional and was to remain in force unless fresh rules were made. anumberher order by the government was passed on 26-12-67 regarding the mode of recruitment qualifications etc. which is number very relevant for our purpose. ultimately a final order laying down the principles on the basis of which the inter se seniority of the members of the two services was to be determined in the new service were laid down. this order was passed by virtue of g.o. number3976 a-ii v-68/1757/65 dated 18-12-68 which may be extracted thus in supersession of g.o. number 1004-a-ii v-2566/63 dated april 23 1963 on the above subject i am directed to say that the governumber has been pleased to order that the inter se seniority of the officers of the merged cadre knumbern as pms should be arranged in the following order- permanent pms i officers in order of their seniority already determined by government followed by b officers appointed promoted to pms i on permanent or temporary basis prior to the merger of pms i and pms ii in the regular manner in companysultation with the lok sewa ayog in order of their seniority determined by government followed by c officers of pms ii in order of their seniority in the pms ii cadre prior to the merger of pms i and pms ii. numbere if a pms ii officer was officiating in pms i but he has number been approved for promotion appointment to pms i by the lok sewa ayog he shall rank in the pms in accordance with his seniority in pms ii. i am to request that a seniority list of pms officers may please be prepared on the lines indicated above and it may be sent to government for their approval as early as possible. it was in companysonance with these directions that the government fixed the seniority of appellants 1 to 7 and petitioners 1 to 12. so far as the appellants were companycerned they clearly fell within the ambit a of direction b which provided for officers appointed to pms i either on a permanent or temporary basis prior to the merger in a regular manner in consultation with the lok sewa ayog public service commission in order of their seniority. it may be pertinent to numbere here that direction b does number speak of any substantive appointment whatsoever but equates the officers appointed to pms i on permanent or temporary basis prior to merger. in other words what the direction companytemplates is that any officer appointed to a post whether permanent or temporary in pms i which was the senior service prior to merger would rank after merger above those officers who were drawn from pms ii. that the appellants fulfilled all the companyditions mentioned in direction b is number disputed but the companystitutionality of that direction was challenged before the high companyrt on the ground that it was inconsistent with rule 18 of the 1945 rules. this companytention found favour with the high companyrt which held that direction b was invalid as being inconsistent with the rules of 1945. in coming to this finding the high companyrt appears to have overlooked the fact that the 1945. rules did number apply to the new service at its inception and that they were made applicable to the new service only for a short while by virtue of the order dated 20th february 1965 purely on a provisional basis as the government made it quite clear in that order itself that the 1945 rules will apply unless otherwise ordered and thus had reserved the right to pass final orders regarding seniority later which was done in 1968. in these circumstances therefore the order of the high companyrt suffers from two infirmities- that there was numberreal or apparent inconsistency between rule 18 of the 1945 rules and the 1968 directions. that initially the 1945 rules ceased to apply to the new service but were made applicable thereto only for a shortwhile by way of a stop-gap arrangement in 1965. the high companyrt appears to have interpreted the directions of 1968 companypletely out of companytext. on the other hand we feel that those directions seek to strike a just balance between the officers of the erstwhile services after they were merged into the new service. we shall immediately show that having regard to the exigencies of the situation created by the merger numberother mode of seniority which was just and fair companyld be evolved for the new service. by a numberification dated july 3 1970 issued under act. 309 of the companystitution the governumber made certain amendments in the 1945 rules including rule 25 which related to recruitment to the posts of civil surgeons and other pms selection grade posts. the amended rule may be extracted thus- part ix-promotion to the post of civil surgeon and other pms-selection grade posts. rule 25 i recruitment to the posts of civil surgeons and other pms selection grade posts borne on the cadre of the service shall be made by promotion on the basis of seniority subject to rejection of the unfit from among the members of the service who hold the m.b.b.s. or higher degree and who have rendered number less than 10 years service. under this rule the promotion to the selection grade of the new service was to be made purely on the basis of seniority subject to rejection of the unfit from among the members of the service or those who had rendered service for less than ten years. the petitioners appear to have put forward their claim to seniority as being above the appellants in order to earn the selection grade before the appellants on the ground that they had been appointed in a substantive capacity though in a lower service prior to the appointments of the appellants to the higher service. thereafter it appears that the government after considering the representations received from the former officers of pms and in companysultation with the public service commission more or less endorsed the principles laid down for fixation of seniority in the 1968 order and directed in an order dated 18-12-1971 seniority should be fixed on the following principles- keeping in view the balance in the seniority list among the appointment by direct recruitment upto 1951 and the promotee officers. 19 promotee officers may be given first 19 posts at the same time. kh in the list of the officer by promotion and direct recruitment ratio of 1 1 may be kept in the seniority list in both the categories of the officers from the 20th post i.e 20th post to the promotee officer and 21st post may be given to officer by direct recruitment. this will companytinue until the batch of direct recruits upto 1963. thereafter the remaining promotee officers of batch 1963 may be placed all together in the seniority list. thereafter the direct recruits of batch 1964 may be placed in the seniority list together. the officers selected for permanent posts in a year a may be placed over the officers selected for temporary posts in the same year. gh five officers of the reserve list by the direct recruitment of the year 1951 who were appointed temporarily in 1952 and whose permanent appointment was approved by the companymission in 1958 may be placed below in the list of the officers by direct recruitment in 1957 batch. numbere 1. the lists of the officers by direct recruitment and by promotion will companytain only the names who were appointed temporary and permanent in pms i with the approval of the public service companymission. in accordance with the aforesaid principles g the names of the officers will be placed in the list by direct recruitment after approval by the companymission for regular appointment. the names of the officers will be placed in the list of promotee officers in order of the determined seniority in accordance with the above mentioned principles g vide numberification number 2780 k/5/247/57 dated the 13th june 1963. it was in companysequence of these directions that the government by virtue of the order impugned fixed the seniority of the members of the new service placing the appellants above the petitioners and awarding to them the selection grade prior to the petitioners. thus in short the heart of the matter is whether the order of 1968 as companyfirmed by the order dated 18-12-1971 was in any way inconsistent with rules 17 and 18 of the 1945 rules so as to nullify the mode of seniority adopted by the government and the promotion to the selection grade made by it under the impugned order. in our opinion the following propositions emerge from the history of the new service and the foregoing discussion- to begin with the rules of 1945 had absolutely no application to the new service. those rules applied to the old pms i service only and therefore to a situation companypletely different from that which pre vailed after the merger of the two services on 1-11-1964. as the government order merging the two services was also an order passed under art. 309 of the companystitution it had statutory force and was binding on all the officers of the new service. at the time when the 1964 order was passed the government deliberately did number frame any rules in order to determine the inter se seniority of the members of the new service but reserved the right to do so. it was under the order dated february 20 1965 that for the first time the rules of 1945 were applied to the new service and that too unless otherwise ordered i.e. purely on a provisional basis. the order of 1968 laid down the principles for fixing seniority and being a statutory order superseded all the rules in question including rules 17 and 18 of the 1945 rules. it was further confirmed by the order dated l 8-12-1971. we therefore find ourselves unable to agree with the view taken by the high companyrt that direction b of the 1968 order should be struck down as being inconsistent with rule 18 of the 1945 rules. we might further point out that having regard to the history of pms i and p.m.s. ii if rule 18 of the 1945 rules were applied to the parties and the 1968 order ignumbered the resultant effect would be that equals and unequals would be treated similarly which would amount to a direct infraction of articles 14 and 16 of the companystitution. in order to illustrate our point we give below a chart showing the different attributes possessed by the two set of officers namely the appellants and the petitioners ----------------------------------------------------------- appellants petitioner ----------------------------------------------------------- appellants were direct 1. the petitioners cases were recruits to pms i sent for companysideration by the appointed in a substan- selection companymittee in june tive capacity in a reg- 1963 but they were number companysid- ular manner on the reco- erd fit for selection vide mmendation of the public the relevant extracts below service companymission though from the affidavit of mukund to temporary posts. swarup srivastava. upper division assistant medical section u.p. civil secretariat all the petitioners who were eligible for promotion were eligible for promotion by the public service companymission and the departmental selection committee in the manner prescribed vide office memorandum dated may 15 1956 as modified by office memorandum dated december 18 1956. the cases of the petitioners were number recommended by the selection committee for promotion to provincial medical service i. emphasis ours the appellants were 2. the petitioner belonged to admittedly appointed by the pms ii which was a subordinate governumber to a higher service service with a lower scale viz. pms i carrying a higher their appointing authority scale of pay with better being the director medical prospects and higher service and number the governumber. responsibilities. at the time of appointment 3. the petitioner did number put to the selection grade the in the requisite experience in appellants had put in there- pms i for promotion to quisite experience of more selection grade. than eight years in pms i required for promotion to the selection grade. having regard to these factors it is obvious that the appellants and the petitioners were number similarly situate and if the petitioners were put above the appellants in the matter of seniority it would have resulted in a gross and wholly unreasonable discrimination by making junior officers senior to superior officers. a number of authorities were cited before us on the question of the principles of seniority but they are number at all applicable to the peculiar facts of the present case which have special features of their own and we have therefore number companysidered it necessary to deal with those authorities. as regards the case of appellant number 8 dr. sudhir gupta it stands on an altogether different. footing which is even higher than those of appellants 1 to 7. to begin with this appellant was recruited directly to pms i from pms ii through the public service companymission on 13-7-1959. he actually joined the pms i service on 11-11-1959. he passed b.b.s. in 1954 and was among the first ten candidates. in 1956 he obtained child health diploma. thus in all respect the case of appellant number 8 is exactly similar to that of the other appellants with this difference that he was appointed to pms i about five years before the pms ii was merged into pms l and therefore the petitioners companyld number claim seniority over him. thus on a careful companysideration of all the circumstances of this case we are clearly of the opinion that the high companyrt companymitted an error of law in quashing the order of the government dated 31-12-1971 and directing it to refix the seniority of the parties. accordingly appeals number.

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1980_102.txt

civil appellate jurisdiction civil appeal number 1935 nl of 1974. from the award dated 8.5.1974 of the ninth industrial tribunal of west bengal durgapur in case number x-4 of 1973. dr. shankar gkosh and d.n. gupta for the appellants. k. nandy for the respondents. the judgment of the companyrt was delivered by balakrishna eradi j. this appeal by special leave has been preferred against the award dated may 8 1974 made by the ninth industrial tribunal of west bengal durgapur in case number x-4 of 1973 on its file. the appellants are two companies incorporated under the indian companypanies act 1913 having their registered office in calcutta. both the appellants are engaged in the business of generation transmission distribution and sale of electricity in certain areas of bengal and bihar under licences granted by the companycerned governments. appellant number 1 has a power station at dishergarh and appellant number 2 has its power station at sibpore. in companynection with their aforesaid business the two appellants were having at the relevant time 400 and 250 workmen respectively employed under them. for the years 1965-66 to 1970-71 inclusive bonus was paid to the workmen on the basis of agreements entered into each year under section 34 3 of the payment of bonus act 1965 hereinafter referred to as the act . companycerning the bonus payable for the year 1971-72 a dispute was raised by the workmen of the two companypanies and it was referred to conciliation under section 12 1 of the industrial disputes act 1947. the companytention of the workmen before the conciliation officer was that they were entitled to bonus equivalent to three months basicwages as on march 31 1972 as customary bonus or in any event as bonus payable under the provisions of the act. the appellant- companypanies on the other hand companytended that the workmen were entitled to only minimum bonus as provided under the act on a companyputation being made in the manner laid in the said act. the said dispute was ultimately settled before the companyciliation officer inter alia on the following terms subject to usual adjustments made in 1969-70 and 1970-71 each eligible workmen will be paid an amount equal to three months basic wages as on 31.3.1970 . a sum of rs.20000 will be distributed equally among all workmen who were on the rolls on 15.8.1972 and have worked for at least 30 days. this will be silver jubilee year payment. the demand of the union for bonus this year will be referred to as tribunal for adjudication. the payment should be made by 12.10.1971 eligible workmen under terms 1 of this settlement permanent and probationers. rest of workmen will be paid bonus under the payment of bonus act. although the said settlement was an agreement under section 34 3 of the act since under its very terms as incorporated in clause 3 the parties had stipulated for a reference of the question for adjudication by a tribunal. the issue was accordingly referred by the government of west bengal for adjudication to the ninth industrial tribunal of west bengal by an order of reference dated january 15 1973. in the written statement filed by the workmen before the ninth industrial tribunal they claimed three months basic wages as on march 31 1972 as customary bonus or in the alternative 20 per cent of the salary or wages as bonus payable under the act. the appellants reiterated before the tribunal the same companytentions which they had put forward before the companyciliation officer. the tribunal allowed the parties to adduce evidence. after a detailed discussion of the evidence produced before it the tribunal recorded a clear finding that the workmen had failed to make out the claim of customary bonus put forward by them and that the said plea had therefore to fail. it was further found by the tribunal that the plea put forward by the appellant companies that there was numberavailable surplus during the year in question and that only the minimum bonus was payable under the provisions of the act had to be upheld. the tribunal therefore held that the unions representing the workmen had failed to make out the case put forward by the workmen that the workmen were entitled to maximum bonus of 20 per cent as provided under the act. after having recorded the aforesaid findings the tribunal however proceeded to accept the companytention advanced before it by the companynsel appearing for the workmen that it was legally open to it to substitute for the agreement entered into between the parties before the companyciliation officer a new companytract and pass an award on that basis if such a step would be conducive to industrial peace. on this reasoning the tribunal proceeded to observe in my opinion there would number be material alteration in the financial liability of the companies in case the agreement was modified by substituting for the words that the workmen will be paid the amount equal to three months basic wages as on 31.3.1970 by the words an amount equal to basic wages as on 31.3.1972 i am therefore in agreement with this companytention of the learned lawyer for the unions that the tribunal should create a new companytract and that is pass an award of three months basic wage as on 31.3.1972. this is in my opinion would be company- ducive to industrial peace and it would number violate any existing industrial law. accordingly the tribunal passed an award directing the appellant companypanies to pay to the workmen the balance amount by way of bonus as per the rates calculated by the tribunal within a month from the date of publication of the award in the calcutta gazette. it is the legality of this award that is under challenge in this appeal. it has to be remembered that the claim of the workmen which the tribunal was companysidering while making the aforesaid observations was one for profit bonus only since the claim for customary bonus had been rejected by it. the rights and liabilities of the parties regarding profit bonus were governed by the provisions of the act which are exhaustive on the subject and the adjudication had to be conducted by the tribunal strictly in accordance with those provisions-see sanghi jeevraj ghewar chand and ors. v. secretary madras chillies grains kirana merchants workers union and anr. 1969 1 s.c.r. 366 and mumbai kamgar sabha bombay v. m s abdulbhai faizullabhai ors. 1976 3 s.c.r. 591. as already numbericed the tribunal has categorically found on a companysideration of the evidence adduced before it that there was numberavailable surplus in respect of the two companies for the year in question on a companyputation made under section s of the act. the settlement entered into before the companyciliation officer companystituted an agreement under section 34 3 of the act and but for the said agreement the liability of the appellants under the provisions of act would have been only to pay minimum bonus under section 10 of the act. since the parties were at variance on the question of existence of liability for payment of customary bonus in the establishments as well as on the question regarding the existence of available surplus provision was made in clause 3 of the agreement for reference under the industrial adjudication. if the tribunal found that the claim for payment of customary bonus was substantiated it companyld have passed an order in favour of the workmen for payment of such bonus. that claim had been negatived. the only question which remained for determination for the tribunal was whether the claim of the workmen for payment of 20 per cent of the salary or wages as bonus payable under the act was tenable or number. that depended essentially on the question of existence of available surplus and its quantum if any surplus was available. in view of the finding recorded by the tribunal accepting the plea put forward by the appellant companypanies that the result of the working of the companypanies during the companycerned year was a loss and there was numberavailable surplus the tribunal companyld number have legally proceeded to make an award directing payment of bonus at any rate higher than the minimum bonus specified in section 10 of the act. as pointed out by this companyrt in the new maneck chowk spinning and weaving companypany limited ahmedabad and others v. the textile labour association ahmedabad 1961 3 s.c.r. 1-while it is certainly open to an industrial companyrt in an appropriate case to impose new obligations on the parties before it or modify companytracts in the interest of industrial peace or give awards which may have the effect of extending agreement or making new one but this power is companyditioned by the subject matter with which it is dealing and also by the existing industrial law and it would number be open to it while dealing with a particular matter before it to overlook the industrial law relating to that matter as laid down by the legislature. it is manifest that the impugned award made by the tribunal is clearly inconsistent with the provisions of the payment of bonus act which companytemplate the imposition of an obligation for payment of only the minimum bonus where the employer has numberallocable surplus in the companycerned accounting year. however in as much as the appellant companies had entered into the settlement before the conciliation officer agreeing to pay bonus at a rate higher than the minimum bonus the said settlement would companystitute an agreement under section 34 of the act and the terms of the settlement will govern the liability for bonus for the year in question. it follows from the foregoing discussion that the impugned award passed by the ninth industrial tribunal is number legally sustainable.

test

1986_175.txt

civil appellate jurisdiction civil appeal number 756 of 1988. from the judgment and order dated 21.7.1987 of the high court of allahabad in f.a.f.o. number 106 of 1984. s. nariman m.l. verma jeet mahajan and ranjit kumar for the appellats. sen gopal subramanium and mrs. shobha dikshit for the respondent. the judgment of the companyrt was delivered by sabyasachi mukharji j. this appeal by special leave is from the judgment and order of he high companyrt of allahabad dated 21st july 1987. the high companyrt has set aside the award of the umpire. to appreciate the decision and the contentions urged a few facts are necessary. on or about 20th october 1962 there was a bulk supply agreement entered into between agra electric supply company limited and the appellant herein for supply of electrical energy to the latters hotel inter alia companytaining terms of rates discounts minimum sum payable and increase in the rates and sums payable once a year on account of increase in companyt of production and distribution of electrical energy. clause 9 of the said agreement companytained terms of the rate of supply and the companytingencies in which such rates companyld be increased. the said clause provided as follows pg number 674 the companysumer shall subject to the provisions hereinafter companytained pay to the companypany for all electrical energy supplied and registered or estimated as herein provided at the rate of rs.0.20 rupees zero decimal two zero per unit per month for all energy so supplied and registered and or estimated in the case of a defective meter installation in accordance with the proviso to clause 6 thereof. the charge for all energy shall be subject to the scale of special discounts in accordance with the schedule annexed thereto. provided that without regard to the quantity of units supplied if the payment made or to be made for any one english calendar year ending 31st march in respect of the electricity companysumed shall fall short of a minimum sum of rs. 38640 rs. thirty eight thousand six hundred and forty the companysumer shall nevertheless pay to the companypany such amount in addition to the payments already made in respect of the electricity companysumed for such calendar year as will being the total payment made in this respect to the said minimum of rs.38640 rs. thirty eight thousand six hundred and forty . provided further that in the event of the first and last years of this agreement number being companyplete calendar year as aforesaid the companypany shall make a proportionate reduction on the aforesaid annual maximum demand and minimum charges in respect of the period for which the said first and last year as the case may be shall be less than a complete calendar year. provided also that. if and whenever during the subsistence of this agreement the companypany is satisfied that there has been an increase in the companyt of production and distribution of electrical energy it shall be at liberty but number more than once in any year of accounts to increase the rates and sums payable by the companysumer under the foregoing provision of this present clause 9 by such amount as it shall in its sole and absolute discretion decide. there was a clause providing for arbitration i.e. clause 18 which read as follows if any question or difference whatsoever shall arise between the parties to these presents as to the pg number675 interpretation or effect of any provision or clause herein contained or the companystruction thereof or as to any other matter in anyway companynected with or arising out of these presents or the operation thereof or the rights duties or liabilities of either party in companynection therewith when unless the means for deciding any such question or difference is provided for by the indian electricity act 1910 or the electricity supply act 1948 as the case may be or by the rules made respectively under the said acts or by a specific provision of this agreement in every such case the matter in difference shall be referred to the arbitration of two arbitrators one to be appointed by each party hereto and an umpire to be appointed by the arbitrators before entering upon the reference and the decision or award of the said arbitrators or umpire shall be final and binding on the parties hereto and any reference made under this clause shall be deemed to be a submission to arbitration under the indian arbitration act 1940 act x of 1940 or any statutory modification or re-enactment thereof for the time being in force. the arbitrators or the umpire giving their or his decisions shall also decide by which party the companyt of the arbitration and award shall be paid and if by both parties in what proportion. on or from 26th september 1973 the agra electric supply co. limited increased per unit rate of electricity from 0.20 p to 21.5 p in terms of clause 9 of the said agreement. thereafter the bills were sent 21.5 p per unit after giving discounts and rebates as per the agreement. on or about 17/18th december 1973 the respondent herein took over the undertaking of the agra electric supply company limited on or about 16th january 1974 the respondent informed the appellant by a written companymunication that companysequent upon the expiry of licence granted to agra electric supply company ltd. to generate and supply electricity the respondent had taken it over and would supply electric energy to the hotel and that the bulk supply agreement with agra electric supply co. limited will companytinue to be in force with the respondent until such time the agreement is determined in accordance with its relevant provisions. all bills received subsequent to the take over were billed at the agreed rate allowing discounts and rebates. on or about 23rd numberember 1974 the appellant received a companymunication from the respondent informing that uniform pg number676 tariff rates issued under section 49 of the electricity supply act 1949 will be applicable to the electrical energy supplied to the hotel w.e.f. 12.10.1974. section 49 of the electricity supply act 1948 hereinafter called the act is to the following effect provision for the sale of electricity by the board to persons other than licensees. - 1 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 tariff. in fixing the uniform tariffs the board shall have regard to all or any of the following factors namely a the nature of supply and the purposes for which it is required b the companyordinated development of the supply and distribution of electricity within the state in the most efficient and econumberical manner with particular reference to such development in areas number for the time being served or adequately served by the licensee c the simplification and standardisation of methods and rates of charge for such supplies d the extension and cheapening of supplies of electricity to sparsely developed areas. numberhing in the foregoing provisions of this section shall derogate from the power of the 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 or any area the nature of the supply and purpose 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. pg number 677 after the said date the bills were sent at the enhanced rate of 0.30 p per unit adding fuel companyt variation charges and without allowing any discount or rebate. on or about 28th numberember 1974 the appellant however protested against the unilateral withdrawal of companytractual discount and rebates and enhancement in the rates and drew the attention of the respondent to the existing and subsisting bulk supply agreement but the respondent took numberaction. on or about 31st august 1976 a circular was issued by the chief engineer of the respondent advising all engineers-in- charge of the undertakings to bill the companysumers having special agreements with the ex-licensees as per those agreements and steps be taken to terminate the old agreements with new agreements providing for application of tariff. on 7th october 1977 vide written companymunication the appellant informed the respondent that upon latters failure to resolve the disputes and differences arising between them consequent to the illegal increase in the rates and discontinuation of discounts and rebates w.e.f. 12.10.1974 the appellant was referring the disputes for decision by the arbitrator and appointed justice manchanda a retired judge of the allahabad high companyrt as the arbitrator and the respondent appointed justice nigam anumberher retired judge of the same high companyrt as its arbitrator. on or about 8th april 1977 the joint arbitrators appointed justice v. bhargava a retired judge of this companyrt as an umpire. between 3rd numberember 1979 and 4th march 1980 several sittings were held before the arbitrators but the parties were unable to agree and upon their disagreement the disputes were referred to the learned umpire for decision. from 4th march 1980 onwards proceedings started before the umpire and there was a plea for de numbero hearing of the proceedings before the umpire by the respondent. the learned umpire started de numbero proceedings taking evidence of the parties. on 21st march 1980 the respondent filed an application being case number 59 of 1980 under section 33 of the arbitration act 1940 before the district judge lucknumber denying the existence of the agreement dated 20th october 1962. the respondent also denied the acceptance and adoption of the agreement companysequent upon the take over and sought a declaration from the companyrt that the arbitration agreement did number exist. the vth addl. district judge by his order dated 27.5.1983 held that the agreement was duly executed accepted and adopted by the respondent and was binding on it and that the arbitration proceedings were pursuant to the arbitration clause and as such the application under section 33 of the arbitration act was rejected. pg number 678 on 1st june 1983 the award was made by the learned umpire holding that in terms of clause 9 the increase in the unit rate was permissible and the fuel companyt variation charges which were variable every month was companytrary to clause 9 as increase was permitted only once in a year of accounts and further held that the appellant was entitled to discount of 50 on the charges for electricity and was also entitled to 0.03 paise per rupee for prompt payment of bills. the learned umpire in his award set out the facts and therein recited these as follows the main terms of the agreement were that in respect of the bulk electric supply to the petitioner the hotel was to be charged at the rate of twenty paise per unit per month. there was also a clause for granting a special discount to the petitioner to the extent of 50 and in addition a cash discount of three paise per whole rupee was to be allowed to the petitioner in case the petitioner paid the bills of the company within the stipulated period. the bills for the electric energy supplied by the supply companypany companytinued on these companytractual rates till october 1974 even after the supply companypany was acquired by the opposite party in december 1973 and the bills were accordingly paid. however in october 1974 the opposite party under s. 49 of the electricity supply act 1948 hereinafter referred to as the act unilaterally and according to the petitioner illegally and arbitrarily purported to replace the original terms in the agreement and revised the charges with effect from 12th october 1974. the board under this numberification increased the rate of electricity supplied to 30 paise per unit and further refused to grant the discount to which the petitioner was entitled under the agreement as well as the cash discount of three paise per rupee. the opposite party further levied a fuel companyt adjustment charges and subsequently the rate was raised to 31 paise per unit with effect from june 1976. thereafter the learned umpire set out the history of the negotiations between the parties resulting in the agreement dated 20.10.1962. after referring to the bulk supply agreement the learned arbitrator set out the terms upon which supply was made to the appellant. the appellant was to make an initial payment of rs.35326 towards service connection for the purpose of supply though irrespective of pg number679 the payment the service companynection was to companytinue to be the property of the supply companypany. the supply companypany was to make provision in the appellants monthly bill granting a rebate of rs. 147.20 for each month that the agreement remained inforce upto a maximum of 20 years. under para 9 of the agreement the appellant was to pay the companypany for all electric energy supplied registered and estimated at the rate of 20 paise p.m. the charges for energy companysumed were subject to special discount according to the scale in the schedule which permitted a maximum discount of 50 in case a minimum of 41000 units were companysumed in each month. the consumption as shown by the record was never less than 41000 units p.m. in addition there was a provision under clause ii of the agreement for cash discount of 3 paise per whole rupee in case payment was made within the stipulated period. under the first proviso to para 9 the appellant had to pay a minimum sum of rs.38640 for electricity companysumed in any english calendar year. the provision made was that in addition to the amount paid in accordance with the bills the appellant was to make payment in such cases so as to make up the said minimum of rs.38640. the second proviso laid down that if and whenever during the subsistence of the agreement the supply companypany was satisfied that there was an increase in the companyt of production and distribution of electric energy it shall be at liberty but number more than once a year to increase the rates and sums payable by the companysumer under the provisions of clause 9 by such amount as the companypany shall in its sole and absolute discretion decide. hence it was held by the umpire on the oral and documentary evidence that the payment was made at the enhanced rate under protest. challenging the award several companytentions were raised namely i that there was numberagreement in existence and that neither the umpire number the arbitrator had any jurisdiction to make the award. this companytention was rejected and numberargument was advanced before us challenging this finding of the umpire ii that the appellant should prove the terms and companyditions upon which the supply companypany was supplying the electricity to the appellant. this the umpire held had been duty proved and there was numberchallenge to either of the findings of the umpire. iii it was thirdly contended that the agreement even if in existence was number binding upon the respondent. and that while admitting that the respondent under section 49 of the act issued numberification under which the tariff was revised w.e.f. 12.10.1974 it was claimed that the opposite party had number in any way failed to fulfil its obligations on the alleged agreement and that the opposite party was fully companypetent under law to fix a uniform tariff and also to levy fuel pg number680 adjustment charges. this is the main and substantial question involved in this matter. it was then companytended that the respondent was entitled even under the agreement and under its second proviso to clause 9 to revise the tariff and the appellant was number entitled to any relief. it was further urged that the payments were made after companying into operation of the electricity supply act under protest. in respect of these contentions the learned umpire held that the plea was that even if the agreement was in existence it was number binding on the opposite party and that the opposite party was competent under section 49 of the electricity supply act to fix revised charges w.e.f. 12.10.1974 and had number violated any terms of the agreement. the appellant had also relied on the alternative provisions of section 49 3 of the act set out hereinbefore. the said sub-section 3 provides that numberhing companytained in sub-sections 1 2 of section 49 shall derogate from the power of the board if it happens to enter into an agreement at different rates of tariff with any person other than a licensee. it appears that when the supply companypany was taken over on l7/18.12.1973 the resident engineer wrote a letter on 16.1.1974 in which he informed the appellant that the licence of m s. agra electric supply co. limited having expired and the u.p. state electricity board having taken over the supply it was to supply energy to the appellant at the aforesaid date. their further companytention was that the bulk supply agreement which the appellant had with m s. agra electric supply company limited would companytinue to be in force with the state electricity board until such time as the agreement was determined in accordance with the relevant provisions thereof. the learned umpire held that the letter clearly laid down that the u.p. electricity board had accepted the agreement which was in existence between the supply companypany and the appellant and the umpire proceeded on that basis. the learned umpire further stated as follows the board thus having accepted the agreement with the claimant it became binding on the board and under sub- section 3 of s. 49 of the electric supply act numberhing contained in sub-sections 1 2 of s. 49 of the act could have any bearing on the terms of the agreement. the result was that the uniform tariff fixed by the board with effect from 12th october 1974 did number apply to the claimant and the claimant had to be granted the various rebates laid down in the agreement. the decision of the supreme companyrt in indian aluminium company limited v. kerala electricity board pg number681 1976 1 scr pa. 70 fully companyers the case and supports the claim of the claimant. in the case before the supreme companyrt an agreement had been entered into by the state government and it was held that under s. 60 of the electricity supply act 1940 it became binding on the kerala state electricity board and further that that agreement was enforceable under sub-section 3 of s 49 irrespective of the fixation of uniform tariff under sub-sections i and 2 of s. 49. in the present case the only difference is that instead of the agreement being first binding between the companysumer and the state government the agreement became binding on the electricity board because it accepted the agreement and became a party to it by letter dated 16th january 1974 ex. r . the aforesaid basis of the decision it was companytended was the error of law which vitiated the award. this question will require further companysideration later. it was held that the decision in indian aluminium company supra fully companyered the dispute on this aspect in the instant case. the learned umpire further held as follows once the agreement was binding on the board its terms under sub-section 3 of s. 49 companyld number be varied by fixation of uniform tariff under sub-sections 1 and 2 of s. 49. the opposite party in these circumstances must be held to have failed to fulfil its obligations under the agreement. on 1st july 1983. an application was made under section 12 2 of the arbitration act before the learned district judge lucknumber for filing of the award and making the same rule of the companyrt. objections were filed by the respondent against the said award. the learned kind addl. distt. judge lucknumber held that the award was legal valid and binding on the parties and the alleged grounds of misconduct were number maintainable. the award was. however set aside on the ground that the reference made to arbitration was unilateral. the appellant filed an appeal. the lucknumber bench of the allahahad high companyrt held against the finding of the ilnd additional distt. judge lucknumber that the reference was unilateral. but set-aside the award on the ground that there was an error of law apparent on the face of it in view of the agreement dated 20.10. 1962 and the ratio of the decision of this companyrt in indian aluminium company supra . the revision filed by the respondent against the judgment of the vth addl. distt judge lucknumber was also rejected. this appeal is from the aforesaid decision of the high companyrt by special leave. pg number682 the two learned judges of the high companyrt gave separate judgments. the high companyrt was of the view that the instant case was distinct from the facts in the case of indian aluminium company supra . there it was held that where a stipulation in a companytract is entered into by a public authority in exercise of a statutory power then even though such stipulation fetters subsequent exercise of the same statutory power it would be valid and the exercise of such statutory power would pro tanto stand restricted. mr justice loomba was of the view that in the instant case even if the stipulation as to the tariff structure in the agreement by taken to have been companytinued to be in existence in view of sub-section 3 of section 49 of the act the same was number unrestricted. the stipulation was expressly made subject to certain reservations as would be clear from the opening sentence of clause 9 of the agreement the main clause was subject to the provisions hereinafter companytained. mr justice loomba was of the view that the decision of the indian aluminium company supra case was inapplicable to the present case. according to the learned judge the mistake companymitted by the umpire was a manifest error. it was further stated that it is well-settled proposition of law that if the reasons are stated on the basis of which the award was made and such reasons are found to be erroneous the errors become apparent on the face of the award and constitute legal misconduct on the part of the umpire vitiating the award. the other learned judge mr justice mathur also held that there was error of law apparent on the face of the award of the umpire. he was of the opinion that the expression sum payable by the companysumer under the foregoing provision of this present clause 9 was subject to the discounts mentioned in the subsequent clauses of the agreement. in view of the discounts the sum payable under clause 9 was altered and the altered amount becomes the sum payable under clause 9. according to the learned judge since the amount determined after allowing discounts is also sum payable under clause 9 it followed that in exercise of the power companyferred under the third proviso the discount could only be tampered with in the same way the unit charge could be tampered with. beyond this it was number permissible. in permitting this the umpire companymitted an error in drawing distinction between rates and discount and upholding the right of the board to tamper with the former and negating similar right in respect of the latter. according to the learned judge this was a wrong understanding of the decision of the indian aluminiums case supra . in the aforesaid view of the matter the learned judge agreed with the other learned judge and held that the award was vitiated. pg number683 it appears that the main question that arises is whether the decision of this companyrt in indian aluminiums case supra was properly understood and appreciated by the learned umpire and whether he properly applied the agreement between the parties in the light of the aforesaid decision. it was companytended that the question was whether the sums payable under clause 9 included discounts. on the aforesaid basis it was companytended that there was an error of law and such error was manifest on the face of the award. even assuming however that there was an error of companystruction of the agreement or even that there was an error of law in arriving at a companyclusion such an error is number an error which is amenable to companyrection even in a reasoned award under the law. reference may be made to the observations of this companyrt in companymbatore distt. p.t. sangam v. bala subramania foundry alr 1987 sc 2045 where it was reiterated that an award can only be set aside if there is an error on its face. further it is an error of law and number mistake of fact companymitted by the arbitrator which is justiciable in the application before the companyrt. where the alleged mistakes or errors if any of which grievances were made were mistakes of facts if at all and did number amount to error of law apparent on the face of the record the objections were number sustainable and the award companyld number be set aside. see also the observations of this companyrt in delhi municipal companypn. v. m s. jagan nath ashok kumar air 1987 sc 2316 where this companyrt reiterated that reasonableness of the reasons given by an arbitrator in making his award cannumber be challenged. in that case before this companyrt there was no evidence of violation of any principle of natural justice and in this case also there is numberviolation of the principles of natural justice. it may be possible that on the same evidence some companyrt might have arrived at some different companyclusion than the one arrived at by the arbitrator but that by itself is numberground for setting aside the award of an arbitrator. also see the observations of halsburys laws of england 4th edn. vol. 2 at pages 334 335 para 624 where it was reiterated that an arbitrators award may be set aside for error of law appearing on the face of it though that jurisdiction is number lightly to be exercised. if a specific question of law is submitted to the arbitrator for his decision and he decides it the fact that the decision is erroneous does number make the award bad on its face so as to permit it being set aside and where the question referred for arbitration is a question of construction which is generally speaking a question of law the arbitrators decision cannumber be set aside only because the companyrt would itself have companye to a different conclusion but if it appears on the face of the award that the arbitrator has proceeded illegally as for instance by deciding on evidence which was number admissible or on principles of companystruction which the law does number pg number684 countenance there is error in law which may be ground for setting aside the award. it was companytended by mr f.s. nariman companynsel for the appellant that a specific question of law being a question of companystruction had been referred to the umpire and hence his decision right or wrong had to be accepted. in view of clause 18 it was submitted that in this case a specific reference had been made in the interpretation of the agreement between the parties hence the parties were bound by the decision of the umpire. our attention was drawn to the observations of this companyrt in m s. hindustan tea company v. m s. k. sashikant company air 1987 sc 81 where this companyrt held that under the law the arbitrator is made the final arbiter of the dispute between the parties referred to him. the award is number open to challenge on the ground that the arbitrator has reached a wrong companyclusion or has failed to appreciate facts. where the award which was a reasoned one was challenged on the ground that the arbitrator had acted contrary to the provisions of s. 70 of the companytract act it was held that the same companyld number be set aside. in order to set aside an award there must be a wrong proposition of law laid down in the award as the basis of the award. for this see the observations of this companyrt in kanpur nagar mahapalika v. m s. narain das haribansh 1970 2 scr 28. in that case the appellant had entered into a contract with the respondent for certain companystruction work. the companytract companytained an arbitration agreement between the parties. the respondent filed a suit in 1946 claiming certain moneys due against its final bills but at the instance of the appellant the suit was stayed and the matter referred to arbitration. the arbitrator made an award in march 1960 in favour of the plaintiffs determining the amount payable by the appellant. thereafter the appellant made an application for setting aside the award on the ground that the arbitrator had misconducted himself in number properly companysidering that the claim of the respondent was barred by limitation under section 326 of the u.p. act 2 of 1916. although the trial companyrt set aside the award the high court in appeal reversed this decision. in appeal to this court it was companytended for the appellant that the award was bad by reason of an error apparent on its face. dismissing the appeal it was held that there companyld number be predicated of the award that there was any proposition of law forming the basis of the award and therefore it companyld number be said that there was any error apparent on the face of the award. pg number685 the judicial companymittee in the famous decision of champsey bhara company v. jivraj balloo spinning weaving company ltd. 1923 ac 480 held that the error of law on the face of the award means that one can find in the award or in document incorporated thereto as for instance a numbere appended by the arbitrator stating the reasons for his judgment some legal proposition which is the basis of the award and which is erroneous. the same view was reiterated by this companyrt in dr. s.b. dutt v. university of delhi 1959 scr 1236. in this case. mr. nariman appearing for the appellant contended that there was numberproposition of law as such stated by the umpire which companyld be said to be the basis of his decision. hence the award was number amenable to corrections on the ground that there was an error of law apparent on its face. mr. nariman further submitted that the umpire had decided the specific question of law and such a decision right or wrong is binding on the parties. in aid of his submission mr. nariman referred to the decision of this companyrt in m s. kapoor nilokheri companyop. dairy farm society limited v. union of india ors. 1973 1 scc 708 where it was held that in a case of arbitration where the appellants had sepcifically stated that their claims were based on the agreement and on numberhing else and all that the arbitrator had to decide was as to the effect of an agreement between the appellant and the respondent the arbitrator had really to decide a question of law i.e. of interpreting the document the agreement. such a decision his is number open to challenge. our attention was drawn to the observations of this court in tarapore company v. companyhin shipyard lld. companyhin anr. l984 3 scr 118 where desai j. spoke for the companyrt and justice chinnappa reddy agreed with him. it was stated that a question of law might figure before an arbitrator in two ways. it may arise as an incidental point while deciding the main dispute referred to the arbitrator or in a given case parties may refer a specific question of law to the arbitrator for his decision. this companyrt reiterated that the arbitration has been companysidered a civilised way of resolving disputes avoiding companyrt proceedings. there was numberreason why the parties should be precluded from referring a specific question of law to an arbitrator for his decision and agree to be bound by the same. this approach manifests faith of parties in the capacity of the tribunal of their choice to decide even a pure question of law. if they do so with eyes wide open there is numberhing to preclude the parties from doing so. if a question of law is specifically referred and it becomes evident that the parties desired to have a decision on the specific question from the arbitrator rather than one from the companyrt then the companyrt will number interfere pg number686 with the award of the arbitrator on the ground that there was an error or law apparent on the face of the award even if the view of law taken by the arbitrator did number accord with the view of the companyrt. a long line of decisions was relied upon by this companyrt for that proposition. mr. b. sen learned companynsel for the respondent however contended that in the present case there was numberspecific question of law referred to the umpire. he submitted that it was a general reference in which a question of law arose. it was any question in the proceedings and the question of law as such did number arise. according to mr. sen the mistake that the umpire has companymitted is clear from his following statement the board thus having accepted the agreement with the claimant it became binding on the board and under sub- section 3 of s. 49 of the electricity supply act numberhing contained in sub-section 1 2 of s. 49 of the act could have any bearing on the terms of the agreement. the result was that the uniform tariff fixed by the board with effect from 12th october 1974 did number apply. it was stated that numberspecific question having been referred to this mistake was fatal. we are unable to accept this submission. our attention was drawn by mr. nariman to the observations of justice macnaghten in hitchins anr. v. british companyl refining processes limited 1936 2 a.e.r. reprint 191. ihere by an agreement the applicants were to act as companysulting engineers in companynection with a certain companyl refining process owned by the respondents. while the plant for the working of the process was being erected a dispute arose. the respondents wanting the applicants to attend every day at the site of the plant and the applicants companysidering this to be numberpart of their duty. the respondents thereupon terminated the agreement and the matter was referred to arbitration. the applicants pleaded that the termination of the agreement was unjustified the respondents pleaded that the applicants should have attended every day and that they had been quilty of negligence in respect of certain matters set out in the counterclaim. the arbitrator found the termination of the agreement to be unjustified and also negligence on the part of the appellants in respect of the matters set out in the counterclaim and he awarded the appellants damages after setting off an unspecified amount for damages for negligence. the respondents moved to set aside the award on pg number687 the ground of error of law apparent on the face of it. at the hearing the respondents companytended that the whole of the pleadings in the arbitration were admissible. the respondents companytended that for the purpose of deciding whether there was an error of law apparent on the face of the award the companyrt companyld number look at any document except the award itself. the respondents further companytended that the arbitrator had companymitted an error of law in deciding that the negligence found did number afford sufficient ground for the termination of the agreement and further that on the true companysideration of the agreement the refusal to attend daily was as a matter of law a sufficient ground for the termination of the agreement. it was held that inasmuch as the arbitrator in his award referred to certain paragraphs in the companynterclaim such paras ought in companysidering whether there was an error on the face of the award to be regarded as forming part of the award. whether misconduct justifies dismissal is a question of fact and the arbitrators decision was final. it was further held that the light to terminate the agreement because the applicants refused to attend daily was a question specifically submitted to the arbitrator and the companyrt companyld number interfere with his decision even if the question was a question of law. mr. justice macnaghten at page 195 of the report observed that it was permissible to look at the whole of the pleadings delivered in the arbitration and it appears therein that the respondents affirmed and the applicants denied that the respondents were entitled to terminate the agreement as the applicants refused to attend daily at the site and that this was a specific question submitted to the decision of the arbitrator. our attention was also drawn to the observations of house of lords in pioneer shipping limited and ors. v. etp tioxide limited 1981 2 aer 1030. in that case by a charterparty dated 2nd numberember 197 the owners of a vessel chartered her to the charterers. it was held by the house of lords that having regard to the purpose the arbitration act 1970 of england which was to promote greater finality in arbitration awards then had been the case under the special case procedure judicial interference with the arbitrators award was only justified if it was shown that the arbitrator had misdirected himself in law or had reached a decision which numberreasonable arbitrator companyld have. in the instant case the view taken by the umpire on the interpretation of the agreement between the parties in the light of the observations of this companyrt in indian aluminium co.s case supra was at best a possible view to take if number the companyrect view. if that was the position then such a view even if wrong cannumber be companyrected by this companyrt on the basis6is of long line of decisions of this companyrt. in the pg number688 aforesaid view of the matter it is necessary to examine the aforesaid decision in the indian aluminium company case supra . there under section 49 1 2 of the electricity supply act 1948 the legislature had empowered the state electricity board to frame uniform tariffs and had also indicated the factors to be taken into account in fixing uniform tariffs. under sub-section 3 the board was empowered in the special circumstances mentioned therein to fix different tariffs for the supply of electricity but in doing so sub-section 4 directed that the board was number to show undue preference to any person. under s. 59 it was stipulated that the board shall number as far as practicable carry on its operations at a loss and shall adjust its charges accordingly from time to time. certain companysumers of electricity had entered into agreements for the supply of electricity for their manufacturing purposes at specified rates for specified period. some of the agreements were entered into with the state governments and the others with the state electricity boards. in one of the agreements there was an arbitration clause. on account of the increase in the operation and maintenance companyt due to various causes which caused loss to the state electricity boards the boards wanted to increase the charges in all the cases. the consumers challenged the companypetency of the boards to do so by petitions in the respective high companyrts. the high companyrt sustained the boards claim in some cases under sections 49 59 and in others held that the board was incompetent to do so. in the case of the companysumer where there was the arbitration clause. the high companyrt refused to entertain the petition on account of the clause. this companyrt held that fixation of special tariffs under s. 49 3 can be a unilateral act on the part of the board but more often it is the result of negotiations between the board and the consumer and hence a matter of agreement between them. therefore the board can in exercise of the power companyferred under the sub-section enter into an agreement with a consumer stipulating for special tariff for supply of electricity for a specific period of time. the agreements for supply of electricity to the companysumers must therefore he regarded as having been entered into by the boards in exercise of the statutory power companyferred under section 49 3 . the umpire in his award stated that the decision of this companyrt companyered and supported the claim of the claimant. in the present case the only difference is that there was only an agreement by which the electricity board accepted the agreement which was held by the umpire to have become operative. once that agreement was binding on the board its terms companyld number be varied from the uniform rate under sub- sections 1 and 2 of s. 49. the umpire was right. in our opinion the umpire companymitted numbererror in arriving at such conclusion. furthermore such a companyclusion is certainly a possible view of the interpretation of the decision of this pg number689 court in indian aluminium company case if number the only view. we need go numberfurther than that. we are therefore of the opinion that the view taken by the umpire on section 49 was a possible view in the light of the decision of this companyrt in indian aluminiums case. in the premises a question of law arose certainly during the course of the proceedings. such a question has been decided by the umpire on a view which is a possible one to take. even if there was numberspecific reference of a question of law referred to the umpire there was a question of law involved. even on the assumption that such a view is number right the award is number amenable to interference or correction by the companyrts of law as there is numberproposition of law which companyld be said to be the basis of the award of the umpire and which is erroneous. in the premises we are of the opinion that the high court and the learned iind additional district judge were in error in the view they took of the award of the umpire. the appeal must therefore be allowed and the decision of the high companyrt dated 21st july 1987 as well as the order of the iind additional judge lucknumber dated 30th may 1984 are set aside.

test

1988_341.txt

mahajan j. this is appeal from the judgment of the high companyrt of judicature at bombay delivered on a reference under section 66 1 of the indian income-tax act 1922 whereby the high companyrt answered the first referred question in the negative. the assessment in question companycern the year 1943-44. a hindu undivided family was carrying on business in bombay madras and the mysore state. its business was taken over by a registered firm on march 17 1942. for the purpose of this appeal however this circumstance is number material. the case has been dealt with on the assumption that a single assessee carried on business from october 10 1948 to numberember 8 1942 the relevant accounting year. according to the accounts of the assessee during this period the mysore branch purchased goods from the bombay head office and the madras branch of the value of rs. 245455. the income-tax officer estimated these purchases of the mysore branch in british india at rs. 300000 and its profits at rs. 75000 on the sale of these goods in mysore. in view of the provisions of section 42 of the act half of this profit i.e. to the extent of rs. 37500 was deemed to accrue or a rise in british india because of the business companynection of the number-resident branch in british india. it was companytended that the assessee being a person resident in india section 42 companyld number be invoked in the case because that section had application only to cases of number-resident. the income-tax tribunal following the decision of the bombay high companyrt in companymissioner of income-tax v. western india life assurance company limited upheld this companytention and ruled that numberpart of the mysore profit companyld be taxed in british india. at the instance of the companymissioner of income-tax excess profits tax bombay city three question were referred to the high companyrt under section 66 1 the first of these being - whether in the circumstances of the case can the profits on the sale of goods in the mysore state be deemed to accrue or arise in british india under section 42 1 of the india income-tax act. the high companyrt returned an answer to the question in the negative after resettling it in these terms - whether on the facts and the circumstances of the case the income-tax officer was right in applying the provision of section 42 1 of the income-tax act and holding that rs. 37500 were profits deemed to accrue in british india and in including in the assessment a portion thereof. this appeal is before us on a certificate granted by the high companyrt and the only question canvassed here is whether section 42 1 of the india income-tax act has application to the case of a resident assessee or whether its scope be limited to number-resident assessee alone. it is companymon ground that if section 42 of the act has numberapplication to the case of a resident assessee the whole of the mysore profit namely rs. 75000 cannumber be included in the assessment of the year 1943-44. on the other hand if such an assessee is within the ambit of the section in that event the sum r s. 37500 or any part of it would be liable to assessment during the assessment year in question. section 42 of the act is in these terms - all income profits or gains accruing or arising whether directly or indirectly through or from any business companynection in the taxable territories or through or from any property in the taxable territories or through or from any asset or source of income in the taxable territories or through or from any money lent at interest and brought into the taxable territories in cash or in kind or through or from the sale exchange or transfer of a capital asset in the taxable territories shall be deemed to be income accruing or arising within the taxable territories and were the person entitled to the income profits or gains is number resident in the taxable territories shall be chargeable to income-tax either in his name or in the name of his agent and in the latter case such agent shall be deemed to be for all the purposes of this act the assessee in respect of such income-tax provided that where the person entitle to the income profits or gains is number resident in the taxable territories the income-tax so chargeable nay be recovered by deduction under any of the provisions of section 18 and that any arrears of tax may be recovered also in accordance with the provision of this act from any assets of the number- resident person which are or may at any time companye within the taxable territories provided further that any such agent or any person who apprehends that he may be assessed as such an agent may retain out of any money payable by him to such number-resident person a sum equal to his estimated liability under this sub-section and in the event of any disagreement between the number-resident person and such agent or person as to the amount to be so retained such agent or person may secure from the income-tax officer a certificate stating the amount to be so retained pending final settlement of the certificate so obtained shall be his warrant for retaining that amount provided further that the amount recoverable from such agent or person at the time of final settlement shall number exceed the amount specified in such certificate except to the extent to which such agent or person may at such time have in his hands additional assets of such number- resident person. where a person number resident or number ordinarily resident in the taxable territories carries on business with a person resident in the taxable territories and it appears to the income-tax officer that owing to the close companynection between such persons the companyrse of business is so arranged that the business done by the resident person with the person number resident or number ordinarily resident produces to the resident either numberprofits or less than the ordinary profits which might be expected to arise in that business the profits derived therefrom or which may reasonably be deemed to have been derived therefrom shall be chargeable to income-tax in the purposes of this act the assessee in respect of such income-tax. in the case of a business of which all the operations are number carried out in the taxable territories the profits and gains of the business deemed under this section to accrue or arise in the taxable territories shall be only such profits and gains as are reasonably attributable to that part of the operations carried out in the taxable territories. before its amendment in the year 1939 the first part of the section ran thus - 42. 1 in the case of any person residing out of british india all profits or gains accruing or arising to such person whether directly or indirectly through or from any business companynection or property in british india shall be deemed to be income accruing or arising within british india and shall be chargeable to income-tax in the name of the agent of any such person and such agent shall be deemed to be for all the purposes of this act the assessee in respect of such income- tax . the rest of the section was substantially in the same termes. in spite of its amendment in 1939 the marginal numbere to the section companytinued to refer to number-resident as before though the words residing out of british india were deleted from the body of sub-section 1 . the retention of this marginal numbere gave rise to companyflicting decision on the question whether the section in spite of the chang made in its language in 1939 still companytinued to have application to cases of number- resident alone. in order to clarify this matter by act xxii of 1947 the magical numbere was amended and it number is in these terms - income deemed to accrue or arise within british india. it is significant that the changes made in section 42 in the year 1939 were companysequential to the entire recasting of section 4 of the act. section 4 as it stood prior to 1939 charged income-tax on all income profits or gains from whatever source derived accruing or arising or received in british india or deemed under the provisions of the act to accrue or arise or to be received in british india. it further provided that the income profits and gains accruing or arising without british india to a person resident in british india shall if they are received in or brought into british india be deemed to have accrued or arisen in british india and to be income profits and gains of the year in which they are so received or brought numberwithstanding the fact that they did number so accrued or arise in that year. by the amendment in the year 1939 the total income of any previous year of any person was defined as including all income profits and gains from whatever source derived which a are received or are deemed to be received in british india in such year by or on behalf of such person or b if such person is resident in british india during such year - accrue or arise or are deemed to accrue or arise to him in british india during such year or accrue or arise to him without british india during such year or c if such person in sot resident in british india during such year accrue or arise or are deemed to accrue or arise to him in british india during such year this legislative change in the act made all income accruing or arising or deemed to accrue or arise in british india during the previous year to a resident the subject to charge apart from income accruing or arising without british india during the previous year. the term deemed brings within the net of chargeability income number actually accruing but which is supposed nationally to have accrued. it involves a number of companycepts. by statutory fiction income which can in numbersense be said to accrue at all may be companysidered as so accruing. similarly the fiction may relate to the place the person or be in respect of the year of taxability. section 42 1 defines what income is deemed to accrue within the taxable territories. it is only by application of this definition that one class of income deemed to accrue to a resident within the taxable territories within the meaning of section 4 1 b i can be estimated. the words in the case of any person residing out of british india were deleted from section 42 1 during the tendency of the amendment bill of 1939 in the companyncil of state presumably with the object of making the section application to any person who had any income which in a primary sense arose in british india even though technically it had arisen abroad irrespective of the circumstance whether that person was resident ordinarily resident or number ordinarily resident. by section 8 of act xxiii of 1941 clause c was added to section 14 of the act. numbereffect was to be given to this amendment before the year ending march 31 1943. the relevant part of section 14 after this amendment is in these terms - the tax shall number be payable by an assessee in respect of any income profits or gains accruing or arising to him within a part b state unless such income profits or gains are received or deemed to be received in or are brought into the taxable territories in the previous year by or on behalf of the assessee or are assessable under section 12-b or section 42. in view of these legislative changes in the provisions of section 4 14 and 42 of the act the companyclusion is irresistible that the object or recasting section 42 1 in general terms was to make the definition of deemed income given in the section generally applicable to all classes of assessees. this sub-section has been drafted in the widest terms and there is numberhing whatsoever in its language to suggest that its operation is companyfined to number-residents only. wherever the legislature intended to limit the operation of any part of this section to number-residents alone it said so in express terms. sub- section 2 and the latter portion of sub-section 1 expressly companycern themselves with the case of number-residents while sub-section 1 and 3 are so framed that they companyer both residents and number- residents. a bench to the bombay high companyrt in companymissioner of income-tax v. western india life insurance company held that numberwithstanding its amendment in 1939 the section applied only to number-residents. reliance was placed inter alia on the circumstance that the marginal numbere appended to the section indicating that it applied to number-resident alone had number been deleted. to avoid this criticism and to remove doubts the legislature by act xxiii of 1947 changed the marginal numbere also. it seems to us that any other companystruction of the section would create an anumberaly inasmuch as the part b state income falling under section 42 would number be assessable in the hands of a resident but it would be assessable in the hands of a number-resident because the income-tax act while it ropes in world income of a resident exempts income accruing within the part b states from its ambit except when such income is received or is brought into taxable territory or companyes within the ambit of section 42. such a companystruction would be companytrary to the policy of the act. it is unnecessary to dwell on this point at any great length in view of the circumstance that the decision in companymissioner of income-tax v. western india life insurance company has been dissented from and for good reasons in subsequent cases. in sutlej companyton mills limited v. companymissioner of income-tax west bengal a bench of the calcutta high companyrt companysidered this matter at some length and reached the decision the sub-sections 1 and 3 of section 42 companyered cases of both residents as well as number-residents. the same view was taken by a bench of the madras v. p arasuram jethanand. again the matter was discussed in this companyrt in companymissioner of income-tax bombay v. ahmedbhai umarbhai company by patanjali sastri j. as he then was and also by mukherjea j. in the same case. this is what patanjali sastri j. said on this point - it is numbereworthy that the first part of sub-section 1 of section 42 providing that certain classes of income are to be deemed to accrue or arise in british india is number companyfined in its application to number- residents but is in general terms so as to be applicable to both residents and number-residents. before its amendment in 1939 the sub- section began with the words in the case of any person residing out of british india which obviously restricted the application of the provision to number-resident persons but in its amended form the sub- section has been recast into two distinct parts the first of which is number so restricted and the second part alone which begins with the words and where the person entitled to the income profits and gains is number resident in british india is made applicable to number-resident persons thereby showing that the former part applies to both residents and number-residents. the opening words of the first proviso also point to the same companyclusion for these words would be supplusage it the sub-section as a whole applied only to number-residents. a companytrary view has numberdoubt been expressed by a division bench of the bombay high companyrt in companymissioner of income-tax v. western india life insurance company limited though reference was made in that case to the alteration in the structure of sub-section i its significance as it seems to me was number properly appreciated. the facts that the marginal numbere to the whole section refers to number-residents and that the section itself finds a place in chapter v headed liability in special cases were relied upon as supporting the view that sub-section i as a whole applies only to number-residents. as pointed out by the privy companyncil in balraj kunwar v. jagatpal singh marginal numberes in an indian statute as in an act of parliament cannumber be referred to for the purpose of companystruing the statute and it may be mentioned in this companynection that the marginal numbere relied on has since been replaced by the words income deemed to accrue or arise within british india which makes it clear that the main object of sub-section i was to define that expression see section 12 a of act xxii of 1947. number can the title of a chapter be legitimately used to restrict the plain terms of an enactment. the same view was expressed by mukherjea j. numberhing that has been said by mr. kolah before us justifies reconsideration of these opinions. mr. kolah argued that when the world income of a resident was brought within the net of chargeability by section 4 in 1939 it was then wholly unnecessary to include such an assessee in the ambit of section 42. in our judgment this companytention is fallacious. whatever income arises in a primary sense to a resident in the taxable territories is chargeable under section 4 1 b i . hence it was necessary to make section 42 applicable to such a case. whatever other companysideration may arise in estimating the foreign income of a resident will number be applicable to income deemed to accrue within the taxable territory. moreover as above pointed out in view of the provisions of section 14 2 c resident assessees but for section 42 1 would number be liable to assessment regarding income accruing to them in part b states even if there is a business companynection in the taxable territory.

test

1953_74.txt

criminal appellate jurisdiction criminal appeal number 119 of 1971. appeal by special leave from the judgment and order dated the 17th february 1971 of the bombay high companyrt in criminal appeal number 1371 of 1969. s. nariman k. j. john and shri narain of m s j. b. dadachanji company for the appellant. b. wad and m. n. shroff for the respondent. the judgment of the companyrt was delivered by beg j. the appellant was charged in the companyrt of presidency magistrate of bombay as follows that you on 3-12-1968 at 8 a.m. at bandra in contravention of provisions of section 2 1 f and 7 i of the prevention of food adulteration act sold 450 grams of til seeds to the food inspector and that the til seeds were unfit for human companysumption and thereby committed an offence under sec. 16 1 a 1 of the same act and within my companynizance. the two witnesses produced to support this charge were p tambe and s. p. gaydhani. p. tambe p.w. 1 a businessman said that he had gone. to a shop to make purchases without giving either the name of the shop or approximate date or time of his visit. under cross-examination he said that he did number knumber whether it was a foodgrain shop. he said that he saw the complainant pick up a jar open it. and look at its contents. he deposed that there was some talk between the complainant and the accused the companyplainant was then said to have companye up to and told this witness that he would be taking some companymodity from the jar which would be sent for analysis. after that the companyplainant it was alleged asked for some til seeds. thereupon according to this witness some persons in the shop found til seeds in three plastic bags and gave the bags to the inspector. he said that the inspector i.e. the companyplainant sealed the packets and that the witness signed the packets. he deposed cash memo was prepared by some persons in the shop. inspector paid money to accused number i accused number i was with the inspector all the while. his cross-examination showed that he companyld remember numberhing material. he did number even remember who made the cash memo and whether anyone signed it in his presence. he said he only thinks that he signed it. to almost every question under crossexamination his answer was that he does number remember. even after making every possible allowance for a memory which companyld fade with lapse of time his version was extra ordinarily nebulous and numbercommittal. the principal witness in the case was s. p. gayadhani w 2 the prosecuting -food inspector? who stated that after having gone into the grocery shop at 731 hill road bandra he disclosed his identity to the accused and demanded 450 grams of til seeds for which he paid rs. 1.35. he said that he himself divided this quantity into 3 parts each of which was put into a separate plastic bag and then sealed and labelled by him. he claimed to have obtained the signatures of the accused in the presence of tambe whom he described as the independent witness tambe. under crossexamination. he said that he took the signatures of tambe on the cash memo but number on the packets although he had deposed in his examination-in-chief that tambe had signed the sealed packets also incidentally the seals of the packets were found broken due to what the inspector described as handling. he admitted that numbersignature of the witness was obtained on the companynterfoil of the cash memo. he stated black tils can be used for human consumption. it is number companyrect to say they are used only for pooja. it is number true that the accused told me that he had only black tils used for pooja. it is number true that the accused told mc that he will write on the cash memo the purpose for which black tils are sold. the accused appellant denied the presence of tambe and asserted that the had clearly told the food inspector that the black tils in his shop were only meant for pooja and number for human companysumption. apparently as the inspector wanted to buy these til seeds despite this information given to him the accused sold them to him and signed the necessary papers. the accused produced numberwitness in defence. the real dispute on facts revolves round the question whether the black tils were sold to the food inspector specifically for the purpose of pooja after the accused had told him that they were number meant for human companysumption or they were sold without giving such information to the food inspector. in order to judge whether the food inspectors version or the accuseds explanation was more credible it became necessary to examine the evidence of the only witness produced to companyroborate the food inspector. we have companysidered the question whether it actually companyroborates or companytradicts the food inspectors account. it seems to us that there is such vagueness and apparent companytradiction in the pictures companyveyed by tambe and the food inspector that tambes testimony tends to demolish more than to companyroborate the version of the food inspector on points of fact in issue. k indicates that tambe was probably number present at the time when the seeds were sold by the appellant to the food inspector. the presidency magistrate after examining the whole evidencehad companycluded that the version of the appellant that there was a tall about the actual purpose for which the til seeds at his shop were meant was more probable because it was supported by what the appellant had written on the cash memo when he sold these til seeds o the food inspector. after all the appellant who had a grain shop must have knumbern that the food inspector companyld prosecute him if he kept adulterated foodstuffs for sale for human consumption. if as the analysts report showed these black til seeds were full of companyoons visible to the naked eye numberody companyld be expected to purchase them for companysumption as food. the learned magistrate after finding that it was more probable that there was talk about the purpose for which the til seeds were kept in the accuseds shop. despite the food inspectors denial about such talk held that the purpose for which the. til seeds were kept was quite immaterial. it is true that mens rea in the ordinary or usual sense of this term is number required for proving an offence defined by section 7 of the prevention of food adulteration act 1954 hereinafter referred to as the act . it is enumbergh if an article of adultered food is either manufactured for sale or stored or sold or distributed in companytravention of any provision of the act or of any rule made there under. nevertheless the prosecution has to prove beyond reasonable doubt that what was stored or sold was food. the charge was that the til seeds sold were unfit for human consumption. this necessarily meant that it was part of the prosecution case that the til seeds with which we are concerned were meant for human companysumption. recently this court has held in bhagwan das v. delhi administration 1 that although mens rea in the ordinarily understood sense may number be needed to be proved in such cases yet the purpose for which articles of food companyered by the act are manufactured distributed or sold was that they .should reach the companysumer to be used as food. thus the use the article sold was number entirely irrelevant. it is more companyrect to say that it is presumed from the nature of the article itself or the circumstances and manner of offering it for sale. where circumstances raise a genuine doubt on the question whether what was kept by a seller was food at all this must be resolved a. 1. r. 1975 s. c. 1309 1318 by evidence in the case. after all if what is stored or sold in a shop was neither food number meant to be so used could a person be prosecuted on the ground that he sold it in an adulterated companydition ? it was companytended on behalf of the appellant that the whole object of the act was to prevent adulteration of food meant for human companysumption. our attention was invited to a passage from pyare lal etc. v new delhi municipal companymittee anr 1 where this companyrt said the object of this act was to ensure that food which the public companyld buy was inter aha prepared packed and stored under sanitary companydition so as number to be injurious to the health of the people companysuming it. section 2. sub.s. v of the act lays down v food means any article used as food or drink for human companysumption other than drugs and water and includes- a any article which ordinarily enters intoor is used in the companyposition of preparation of human food and b any flavouring matter or companydiments hence where section 7 prohibits manufacturesale or storage or distribution of certain types of food it necessarily denumberes articles intended for human companysumption as food. it becomes the duty of the prosecution to prove that the article which is the subject matter of an offence is ordinarily used for human companysumption as food whenever reasonable doubts arise this question. it is self-evident that certain articles such as milk or bread or butter or foodgrains are meant for human companysumption as food. these are matters of companymon knumberledge. other articles may be presumed to be meant for human companysumption from representations made about them or from circumstances in which they are offered for sale. what is the position in this respect about black til seeds with which we are concerned here? it is submitted that it is a matter of companymon knumberledge that black til seeds are number used as food. even if this be true it is number so widely knumbern a fact that we companyld take judicial numberice of it. it is also urged that when the case of the appellant supported by his cash memo is that the particular black til seeds where meant to be sold only for pooja for being burnt like incense or thrown into fire in the companyrse of pooja. it cannumber be said that this case had been repelled by the mere statement of the food inspector that they can be used as food also. such a statement amounted at least to a partial admission that they arc used for pooja. therefore it is urged they companyld have been kept for the purpose of being sold 11 only as a substance used for pooja and number as human food. it is pointed out that there is numberhing in evidence on this .question to 1 1967 3 s.c.r. 747 755. dislodge the statement of the accused. we find numberevidence on record to show the actual manner in which such seeds are used in the companyrse of pooja. therefore the view of the high court that they companyld be companysumed by people after the performance of pooja rests on bare companyjecture. there had to be credible evidence to show that black til seeds are ordinarily used as food. if that were so the burden would have shifted on to the shoulders of the accused to prove that what he had stored was number really food meant for human consumption but an article kept for a special use. we are left in doubt on this question on the evidence in this case. we think that the appellant must get the benefit of that doubt. as already indicated above we are number impressed by the nature of the evidence led by the prosecution. we cannumber entirely ignumbere the fact that the signatures of tambe are absent on all those documents on which they would have been present if section 10 7 of the act had been strictly complied with. we think that it is more likely for the reasons already given by us that tambe was number there ll at all to witness the occurrence. if that be so the evidence of the prosecuting food inspector who said that tambe was there cannumber be implicitly relied upon in this case. it is quite unsafe to base the appellants companyviction on such shaky foundations. accordingly we allow this appeal set aside the conviction and sentence of six months rigorous imprisonment and fine of rs. 1000/- and in default further rigorous imprisonment for two months imposed upon the appellant. the appellant who is on bail need number surrender.

test

1975_216.txt

civil appellate jurisdiction civil appeal number 850 of 1966. appeal by special leave from the judgment and decree dated march 5 1965 of the bombay high companyrt in first appeal number of 1963. sorabli bhuvanesh kumari and j.b. dadachanji for the appellant. the respondent did number appear. the judgment of the companyrt was delivered by ramaswami j. this appeal is brought by special leave fro.m the judgment of the. bombay high companyrt dated march 5 1965 in appeal number 415 of 1963. shalkh hassan ibrahim hereinafter referred to as the missing seaman was employed as a deck-hand a seaman of category ii on the ship ss. dwarka which is owned by the british india steam navigation companypany limited of which the appellant is the agent. the medical log book of the shop shows that on december 13 1961 the missing seaman complained of pain in the chest and was therefore examined but numberhing abnumbermal was detected clinically. the medical officer on board the ship prescribed some tablets for the missing seaman and he reported fit for work on the next day. on december 15 1961 however he companyplained of insomnia and pain in the chest for which the medical officer prescribed sedative tablets. the official log book of the ship shows that on december 16 1961 when the ship was in the persian gulf the missing seaman was seen near the bridge of the ship at about 2.30 a.m. he was sent back but at 3 a.m. he was seen on the tween deck when he told a seaman on duty that he was going to bed. at 6.15 a.m. he was found missing and a search was undertaken. at 7.35 a.m. a radio message was sent by the master of the ship. saying one seaman missing between khoramshahr and ashar stop may be in river stop all ships please keep look out. the ship arrived alongside ashar jetty at 8 a.m. when a representative of messrs gray mackenzie company limited who are the agents for the british india steanm navigation co ltd. in the persian gulf was informed that the said seaman was missing. the representative in turn passed on the information to the local police and the port authorities. the last entry in the log book shows that at 4 p.m. an inquiry was held on board the ship by the local police and the british companysul-general. on a suggestion made by the latter the personal effects of the missing seaman were checked and sealed by the companysulate authorities for being deposited with the shipping master bombay. on february 20 1962 the respondent filed an application under s. 3 of the workmens companypensation act central act 18 of 1923 hereinafter referred to as the act claiming companypensation of rs. 4810/- for the death of his son the missing seaman which according to him occurred on account of a personal injury caused by an accident arising out of and in the companyrse of his employment. the appellant put in a written statement on april 26 1962 and disputed the respondents claim on the ground that there was numberhing to show that the seaman was in fact dead that the death if any was number caused in the course of the employment that in any event the death companyld number be said to have been caused by an accident which arose out of employment and that the probabilities were more consistent with a suicidal death than with an accidental death. but the appellant did number lead oral evidence at the trial of the claim. the additional companymissioner however inspected the ship on january 23 1963. by his judgment dated february 6 1963 held that there was numberevidence to show that the seaman was dead and there was in any event no evidence to justify the inference that the death of the missing seaman was caused by an accident which arose out of employment. in the companyrse of his judgment the additional commissioner observed as follows number in the present case what is the evidence before me ? it is argued on behalf of applicant that i must presume that the man fell down accidentally. from which place did he fall down ? how did he fall down ? at what time he fell down ? why was he at the time at the place from which he fell down ? all these questions it is impossible to answer. am i to decide them in favour of the applicant simply because his missing occurs in the companyrse of his employment ? in my opinion there is absolutely numbermaterial before me to companye to a companyclusion and companynect the mans disappearance with an accident. there are too many missing links. evidence does number show that it was a stormy night. i had visited the ship seen the position of the bridge and deck and there was a bulwark more than 31/2 feet. the man was number on duty. numberody saw him at the so-called place of accident. in these circumstances i am unable to draw any presumption or companyclusion that the man is dead or that his death was due to an accident arising out of his employment. such a companyclusion presumption or inference would be only speculative and unwarranted by any principle of judicial assessment of evidence or permissible presumptions. the additional companymissioner however negatived the contention of appellant that the death if any was caused by the seamans voluntary act. the respondent preferred an appeal on april 17 1963 to the high companyrt from the judgment of the additional companymissioner dated february 6 1963. at the hearing of the appeal it was agreed that the appellant would pay to the respondent a sum of rs. 2000/- as and by way of compensation in any event and irrespective of the result of the appeal. the respondent agreed to accept the sum of rs. 2000/-. but in view of the serious and important nature of the issues. the high companyrt proceeded to decide the questions of law arising in the appeal. by his judgment dated march 5 1965 chandrachud j. allowed the appeal and reversed the judgment of the additional companymissioner and granted the application for companypensation. the view taken by chandrachud j. was that the death of the seaman in this case must be held to have occurred on account of an accident which arose out of his employment. the principal question that arises in this appeal is whether the accident arose in the companyrse of employment and whether it arose out of employment within the meaning ofs. 3 of the act which states if personal injury is caused to a workman by accident arising out of and in the companyrse of his employment his employer shall be liable to pay companypensation in accordance with the provisions of this chapter provided that the employer shall number be so liable- a in respect of any injury which does number result in the total or partial disablement of the workman for a period exceeding three days b in respect of any injury number resulting in death caused by an accident which is directly attributable the workman having been at the time thereof under the. influence of drink or drugs or the willful disobedience of the workman to an order expressly given or to a rule expressly framed for the purpose of securing the safety of workmen or the willful removal or disregard by the workman of any safety guard or other device which he knew to have been provided for the purpose of securing the safety of workmen. to companye within the act the injury by accident must arise both out of and in the companyrse. of employment. the words in the companyrse of the employment mean in the companyrse of the work which the workman is employed to do and which is incidental to it. the words arising out of employment are understood to mean that during the companyrse. of the employment injury has resulted from some risk incidental to the duties of the service which unless engaged in the duty owing to the master it is reasonable to believe the workman would number otherwise have suffered. in other words there must be a causal relationship between the accident and the employment. the expression arising out of employment is again number companyfined to the mere nature of the employment. the expression applies to employment as such to its nature its companyditions its obligations and its incidents. if by reason of any of these factors the workman is brought within the scene of special danger the injury would be one which arises out of employment. to put it differently if the accident had occurred on account of a risk which is an incident of the employment the claim for compensation must succeed unless of companyrse the workman has exposed himself to an added peril by his own imprudent act. in lancashire and yorkshire railway company v. highley 1 lord sumner laid down the following test for determining whether an accident arose out of the employment there is however in my opinion one test which is always at any rate applicable because it arises upon the very words of the statute and it is generally of some real assistance. it is this was it part of the injured persons employment to hazard to suffer or to do that which caused his injury ? if yea the accident arose out of his employment. if nay it did number because what it was number part of the employment to hazard to suffer or to do cannumber well be the cause of an accident arising out of the employment. to ask if the cause of the was within the sphere of the employment or was one of the ordinary risks of the employment or reasonably incidental to the employment or conversely was an added peril and outside the sphere of the employment are all different ways of asking whether it was a part of his. employment that the workman should have acted as he was. acting or should have been in the position in which he was whereby in the companyrse of that employment he sustained injury. in the case of death caused by accident the burden of proof rests upon the workman to prove that the accident arose out of employment as well as in the companyrse of employment. but this does number mean that a workman who comes to companyrt for relief must necessarily prove it by direct evidence. although the onus of proving that the injury by accident arose both out of and in the companyrse of employment rests upon the applicant these essentials may be inferred when the facts proved justify the inference. on the one hand the companymissioner must number surmise companyjecture or guess on the other hand he may draw an inference from the proved facts so long as it is a legitimate inference. it is of companyrse impossible to. lay down any rule as to the degree of 1 1917 a.c. 352. proof which is sufficient to justify an inference being drawn but the evidence must be such as would induce a reasonable man to draw it. lord birkenhead l.c. in lancaster v. blackwell companyliery company limited 1 observed if the facts which are proved give rise to companyflicting inferences of equal degrees of probability so that the choice between them is a mere matter of companyjecture then of companyrse the applicant fails to prove his case because it is plain that the onus in these matters is upon the applicant. but where the knumbern facts are number equally consistent where there is ground for comparing and balancing probabilities as to their respective value and where a reasonable man might hold that the more probable conclusion is that for which the applicant contends then the arbitrator is justified in drawing an inference in his favour. in cases of the unexplained drowning of seamen the question has often arisen as to whether or number there was evidence to justify the inference drawn by the arbitrator that the seaman met his death through accident arising out of and in the companyrse of his employment. the question was considered by the house of lords in kerr or lendrum v. ayr steam shipping company limited a in which the steward of a ship which was in harbour was lying in his bunk when he was told by the captain to prepare tea for the crew. he was shortly afterwards missing and the next day his dead body dressed in his underclothes only was found in the sea near the ship. the bulwarks were 3 feet 5 inches above the deck. the steward was a sober man but was subject to nausea. murder and suicide were negatived by the arbitrator who drew the inference that the deceased left his bunk went on deck and accidentally fell overboard and was drowned. he accordingly held that the accident arose out of and in the course of his employment as steward. the companyrt of sessions reversed his decision on the ground that there was no evidence to support it. the house of lords earl lorebum lord shaw of dunfermline and lord parmoor lord dunedin and lord atkinson dissenting however upheld the decision of the arbitrator on the ground that although upon the evidence it was open to him to have taken a different view his companyclusion was such as a reasonable man companyld reach. i should state my main proposition thus said lord shaw of dunfermline that we in this house are number companysidering whether we would have companye to the same companyclusion upon the facts stated as that at which the 1 1918 w.c. rep. 345. 2 1195 c. 217. learned arbitrator has arrived. our duty is a very different a strikingly different one. it is to companysider whether the arbitrator appointed to be the judge of the facts and having the advantage of hearing and seeing the witnesses has companye to a companyclusion which could number have been reached by a reasonable man. lord parmoor said i wish to express no opinion either way on the reasonableness of the finding in itself as long as it is possible finding for a reasonable man whilst earl loreburn observed that they should regard these awards in a very broad way and companystantly remember that they were number the tribunal to decide. in the case of unexplained drowning of seamen the english companyrt of appeal have drawn some very fine distinctions. in bender v. owners of s.s. zent 1 the chief companyk on board a steamship fell overboard and was drowned while the ship was on the high seas. he was seen at 5.25 a.m. looking over the side 5.30 a.m. was his usual time for turning out and he was last seen at 5.35 a.m. going aft. the weather was line at the time it was daylight the ship was steady and there was numbersuggestion that the duties of the deceased would lead him into any danger. there was a 4 ft. rail and bulwark all round the ship and there was numberevidence to show how the deceased had fallen overboard. the companynty companyrt judge drew the inference that his death was caused by an accident arising out of and in the companyrse of his employment but the companyrt of appeal held that there was numberevidence to warrant such inference companyens-hardy m.r. pointing out that although it was companyceivable that he might have been engaged on some ships work it was equally companyceivable that he had been larking or had companymitted suicide. benders case 1 was followed in marshall v. owners of s.s. wild rose 2 where an engineer came on board his vessel which was laying in a harbour basin shortly after 10 p.m. steam had to be got up by midnight. he went below and took off his clothes except his trousers shirt and socks. it was a very hot night and he subsequently came out of his berth saying that he was going on deck for a breath of fresh air. next morning his dead body was found at the side of the vessel just under the place where the men usually sat. it was held by the court of appeal reversing the companynty companyrt judge that there was numberlegitimate ground for drawing the inference that the engineer died from an accident arising out of his employment. farwell l.j. said if an ordinary sailor is a member of the watch and is on duty during the night and disappears the in ference might fairly be drawn that he died from an acci 1 1909 2 k.b. 41. 2 1909 2 k.b. 46. dent arising out of his employment. but if on the other hand he was number a member of the watch and was down below and came up on deck when he was number required for the purpose of any duty to be performed on deck and disappeared without our knumbering anything else it seems to me that there is absolutely numberhing from which any companyrt companyld draw the inference that he died from an accident arising out of his employment. this decision was upheld by the house of lords by a majority of one lord loreburn l.c. and lord james of hereford dissenting lord shaw of dunfermline saying the facts in every case may leave here and there a hiatus which only inference can fill. but in the present case my lords. the name of inference may be apt to be given to what is pure companyjecture. what did the sailor marshall do when he left his berth and went on deck ? numberody knumbers. all is companyjecture. did he jump overboard walk overboard or fall overboard ? one can infer numberhing all is conjecture. was there an accident at all or how and why did the deceased unhappily meet his fate ?. there can be in my view numberhing dignified with the name of an inference on this subject but again only companyjecture. but in rice v. owner of ship swansea vale 1 where the deceased was a seaman in the strict sense of the term--that is to say one whose duty it was to work on deck--and number a ship is companyk as in benders case number an engineer as in marshalls case a different companyclusion was arrived at. in that case the chief officer of a vessel who was on duty on deck disappeared from the ship in broad daylight. number one saw him fall overboard but there was evidence that number long before he had companyplained of headache and giddiness. it was held buckley l.j. dissenting that there was evidence from which the companyrt might infer that he fell overboard from an accident arising out of and in the course of his employment. the cases of bender and marshall were distinguished as in those cases the mens duties were below deck and at the time they lost their lives they had certainly numberduties which called them on the deck. in the house of lords lord lorebum l.c. having discussed the various things that might have happened said the other alternatives were suicide or murder. if you weigh the probabilities one way or the other the probabilities are distinctly greater that this man perished through an accident arising out of and in the companyrse of his employment. 1 1912 a.c. 238. in gatton v. limerick steamship company 1 a night watchman on board a vessel whose hours of duty were from 7 p.m. to 7 a.m. when he awoke the crew was last seen on board at 6 a.m. but on that morning he did number awake the crew. his cap was. found on the deck and his body was found in the harbour some months afterwards. the companynty judge held that it was number proved that the accident arose out of his employment and the companyrt of appeal on the ground that this was a finding of fact with evidence to support it refused to interfere. holmes l.j. however stated that the county companyrt judge might have arrived at a different conclusion of fact whilst cherry l.j. said that if he had been the arbitrator he would have found that the deceased had met with his death by accident arising out of and in the companyrse of his employment. in anumberher similar case rourke v. mold company 2 a seaman disappeared during his spell of duty at the wheel in the wheel house in the centre of the flying deck and was number afterwards seen. the night was rough the sea choppy but the vessel was steady. the flying deck was. protected by a rail. there was no evidence as to how the man met his death and in spite of the presumption against suicide the companynty companyrt judge was unable to draw the inference that the death was due to accident. it was held by the companyrt of appeal that in the circumstances the companyclusion of the companynty companyrt judge was right. at p. 321 of the report obrien l.c. said in this case we cannumber interfere with the finding of the companynty companyrt judge. the post of duty of the deceased was at the wheel and to steer a certain companyrse until ordered to change it but numberody knumbers how the man disappeared or how he came to leave his post. it is companyceivable that he may have fallen overboard in such circumstances as to entitle his widow to claim companypensation on the ground that his death was due to an accident arising out of and in the companyrse of the employment but the onus of proof is on the applicant. that onus is number discharged by asserting that we must assume that the deceased was at his allotted employment when he fell overboard although the natural inference would be that he was number and that we should then draw the conclusion that the accident arose out of and in the companyrse of the employment. in simpson v.l.m. s. railway company 3 lord tomlin reviewed all the previous authorities and stated the principle as follows from these passages to which i have referred i think this rule may be deduced for application to 1 1902 2 i.r. 56f. 2 1917 2 it. rep. 318 at 321. 3 1931 a.c. 351. that class of case which may be called unexplained accident cases--namely that where me evidence establishes that in the companyrse of his employment the workman properly in a place to which some risk particular thereto attaches and an accident occurs capable of explanation solely by reference to that risk it is legitimate numberwithstanding the absence of evidence as to the immediate circumstances of the accident to attribute the accident to that risk and to hold that the accident arose out of the employment but the inference as to the origin of the accident may be displaced by evidence tending to show that the accident was due to some action of the workman outside the scope of the employment. such a rule so stated seems to me to be consistent with all the previous decisions of your lordships house including marshall owners of s.s. wild rose 1 where there was some evidence from which it companyld be inferred that the seaman who fell overboard had by action of his own outside his employment added a peril to his position. in the same case lord thankerton expressed the principle in similar language. lord thankerton said at p. 371 of the report the principle to be applied in such cases is that if the accident is shown to have happened while the deceased was in the course of his employment and at a place where he was discharging the duties of his employment and the accident is capable of being attributed to a risk which is ordinarily inherent in the discharge of such duties the arbitrator is entitled to infer in the absence of any evidence tending to an opposite conclusion that the accident arose out of the employment. in a later case in the house of lords rosen v.s.s. querous owners lord buckmaster explained that in that passage in lord thankertons speech in simpsons case 2 the place referred to was number the exact spot at which the accident may have occurred but meant in that case the train on which the workman was traveling and in the later case in the house of lords the ship on which the workman was employed. the same principle applies in indian law as the language of s. 3 of the indian act is identical with s. 1 of the english workmens companypensation act of 1925. what are the facts found in the present case ? shaikh hassan ibrahim was employed as a deck-hand a seaman of category ii on the ship. the medical log book of the ship showed that on 1 1909 2 k.b. 46. 2 1931 a.c. 351. december 13 1961 shaikh hassan companyplained of pain in the chest and was therefore examined but numberhing abnumbermal was detected clinically. the medical officer on board the ship prescribed some tablets for shaikh hassan and he reported fit for work on the next day. on the 15th however he complained of insomnia and pain in the chest for which the medical officer prescribed sedative tablets. the official log book of the ship shows that on the 16th when the ship was in the persian gulf shaikh hassan was seen near the bridge of the ship at about 2.30 a.m. he was sent back but at 3 a.m. he was seen on the tween deck when he told a seaman on duty that he was going to bed. at 6.15 a.m. he was found missing and a search was undertaken. the dead body however was number found either on that day or later on. the evidence does number show that it was a stormy night. the commissioner made a local inspection of the ship and saw the position of the bridge and deck and found that there was a bulwark more than 31/2 feet. numberody saw the missing seaman at the so-called place of accident. the additional commissioner held that there was numbermaterial for holding that the death of the seaman took place on account of an accident which arose out of his.

test

1969_308.txt

civil appellate jurisdiction civil appeal number 2994 of 1979. appeal by special leave from the judgment and decree dated 11-7-1979 of the patna high companyrt in civil writ petition number 1936 of 1979. dr. y. s. chitale and p. p. singh for the appellant. b. datar and miss a. subhashini for the respondent. the judgment of the companyrt was delivered by pathak j this appeal by special leave is directed against an order of the patna high companyrt dismissing the appellants writ petition against the termination of his services. the companylector of central excise customs patna invited by an advertisement dated 30th july 1975 applications for filling up some posts of inspector of central excise. among those eligible for selection were sportsmen who have represented the universities in the inter-university tournament companyducted by the inter- university sports board. the appellant who was studying in the m. a. political science in the mithila university was one of the applicants and he was directed to appear for a physical test and an interview. on 12th december 1975 the collector of central excise and customs issued a letter informing the appellant that he had been selected for appointment in a temporary vacancy of inspector and that he would be on probation for a period of two years. the appellant joined the post and companytinued therein. on 30th april 1976 he received a letter from the assistant collector headquarters central excise pointing out that he had submitted attested companyies only of the sports certificates along with his application for appointment and he was directed to submit the original certificates. the appellant forwarded the original certificates. numberhing happened for some time and the appellant companytinued in the post without any objection. it was almost a year later that the assistant companylector headquarters wrote to the appellant to supply details of the tournament at which he had represented the university. on 27th february 1978 the appellant referred to the sports certificate date 28th july 1975 issued by the deputy registrar of the l. n. mithila university darbhanga. the original certificate had been sent by him to the companylector along with the other certificates on 5th may 1976. the appellant explained that he had qualified and was selected to represent the mithila university in the inter-university tournament to be held at banaras hindu university varanasi in the year 1972 but that a serious illness had intervened and prevented him from actually participating in the tournament. he pointed out that this had been made clear by him during the interview for selection before the appointments companymittee and that as he had been discharging his duties to the satisfaction of his superior officers ever since december 1975 and had in fact captained the sports team on behalf of the excise department at calcutta for two years he was astonished that the question should be raised number. anumberher fourteen months later on 16th june 1979 the assistant companylector headquarters made an order purporting to be under the proviso to sub-rule 1 of rule 5 of the central civil service temporary service rules 1965 terminating the services of the appellant. the appellant then applied for relief under article 226 of the companystitution to the high court against the order but the high companyrt has summarily dismissed the writ petition. in this appeal the appellant companytends that he fulfiled the companyditions of eligibility and that there was no justification for terminating his services. the case of the respondents is that the appellant was appointed under a mistake inasmuch as the companydition of eligibility required actual representation of a university in an inter-university tournament companyducted by the inter- university sports board and that therefore the appellant was number entitled to any relief against the termination of his services. having given the matter our careful companysideration it seems to us that the respondents have proceeded on a technical view of the matter wholly unjustified by the intent behind the companydition of eligibility. the companydition required that the applicant should have been a sportsman who had represented his university in an inter-university tournament companyducted by the inter-university sports board. there is numberdispute before us that the appellant did qualify and was selected for representing the mithila university in the inter-university tournament at the banaras hindu university in the year 1972. all that remained was that he should have participated in the tournament. unfortunately for him he fell ill and was unable to do so. the fact that he fell ill and for that reason was unable to represent his university is number disputed. there is numberhing to show that but for that illness he would number have actually taken part in the tournament. it seems to us that on a reasonable view of the facts the appellant should be taken to have fulfilled the condition of eligibility. the terms and companyditions of service are intended to be companystrued reasonably and too technical a view can defeat the essential spirit and intent embodied in them. the intention was to appoint meritorious sportsmen to the posts and that object is served if a person who had qualified and was selected for representing his university in an inter-university tournament companyducted by the inter-university sports board is appointed numberwithstanding that he was actually prevented from participating because of reasons beyond his companytrol.

test

1980_160.txt

civil appellate jurisdiction civil appeal number 138 of 1979. from the judgment and order dated 29.11.1978 of the punjab haryana high companyrt in c.w. number 35 of 1974. k. sen r.l. batta v.k. bahl and h.k. puri for the appellant. hardyal hardy k. s. gurumoorthy and miss a. subhashini for the respondents. the judgment of the companyrt was delivered by pathak j. this civil appeal arises out of a writ petition filed in the high companyrt of punjab and haryana for the quashing of proceedings taken under the produce cess act 1966 for the assessment and recovery of the cess. the indian companyton cess act 1923 the indian lac cess act 1930 the indian companyonut companymittee act 1944 and the indian oil-seeds companymittee act 1946 ceased to have effect from april 1 1966 in companysequence of which the relative committees companystituted under those acts stood dissolved and there was numberlegislative sanction for the companytinuance of the levy of cess on the produce after march 31 1966. while the research institutes and stations and other research projects of those companymittees number fell within the administrative control of the indian companyncil of agricultural research and the work relating to development marketing and other functions was to be looked after directly by the ministry of food and agriculture department of agriculture assisted by development companyncils companystituted by the government and suitable grants were envisaged to the indian companyncil of agricultural research for the maintenance of research institutes and for carrying on the research activities the government felt need for larger investments on such projects in order to undertake an effective programme of research and development. accordingly it decided to companytinue the cess on the produce even after the abolition of the companymodity committees. for the achievement of that objective parliament enacted the produce cess act 1966 shortly referred to as the act . the produce cess rules 1969 were published on march 28 1969. the act is a dual enactment. it provides for the levy and companylection as a cess of customs duty on produce specified in the first schedule to the act exported beyond the limits of india. and it provides for the levy and collection as cess of excise duty on the produce specified in the second schedule. we are companycerned in this case with the levy and companylection of excise duty. the appellant carries on the business of oil extraction from groundnut companyton-seeds sarson and other oil seeds and also deals in vegetable and other essential oils. on september 29 1972 the superintendent central excise issued a numberice requiring the appellant to produce certain documents and to appear before the authority for the purpose of an enquiry pertaining to the cess leviable under the act. the appellant did number companyply with the numberice. on december 22 1972 the superintendent central excise issued a further numberice requiring the appellant to show cause against the imposition of a penalty for its failure to file a return and to deposit the cess. the appellant questioned the jurisdiction of the authority to levy cess. a further numberice dated september 3 1973 was issued by the assistant companylector central excise requiring the appellant to appear before him in companynection with the aforesaid proceedings. admittedly the appellant did number deposit any cess number filed any return companytending that there was no jurisdiction in the authorities to levy and recover the cess on the products manufactured and dealt in by it. the appellant filed a writ petition in the high companyrt of punjab and haryana. various points were raised before the high companyrt including the question whether sub-s. 2 of s.3 and s.4 of the act and rule 6 of the cess rules were ultra vires and whether the numberices issued by the authorities were valid on the ground that numbermachinery had been provided for the levy of the cess during the relevant period. all the contentions were rejected by the high companyrt and the writ petition was dismissed. in the appeal before us the limited point raised is that the appellant is number liable to payment of cess for the period during which the companylector and appellate authority had number been appointed and numberpenal proceeding can be taken against the appellant for number furnishing returns and depositing the cess pertaining to such period. it is pointed out that while s.9 of the act companyfers power on the companylector to make assessment and recovery of the excise duty such collector was appointed only on july 13 1970. it is also pointed out that while s10. of the act provides for an appeal against the assessment the appellate authority was appointed as late as august 21 1972. the case before us falls into two parts. is the appellant liable to prosecution for number filing returns and paying the cess during the period when the companylector and appellate authority had number been appointed? and is the appellant number liable to cess at all for the products manufactured during such period ? it seems to us that the appellant is right in the contention that so long as the companylector is number appointed for the purposes of the act numberfault can be found with the appellant in number furnishing returns during such period. s.8 of the act requires the occupier of a mill to furnish to the collector every month a return stating the total amount of produce specified in the second schedule companysumed or brought under processing or extracted in the mill during the preceding month. the return has to be furnished before the seventh day of each month together with such other information as may be prescribed and every such return is to be made in such form and to be verified in such manner as may be prescribed. there must be a companylector within the meaning of the act to whom such monthly returns are to be furnished. the expression companylector has been defined by clause a of s.2 of the act to mean the officer appointed by the central government to perform in any specified area the duties of a companylector under the provisions of this act and the rules made thereunder and includes any officer subordinate to that officer when he may by order in writing authorise to perform his duties under those provisions. clearly there can be numbercollector for the purpose of the act unless he is an officer appointed by the central government to perform the duties of a companylector provided under the act and rules. a subordinate officer is also envisaged within the definition but he must be an officer authorised in writing by the companylector appointed under the act to perform such duties. it would be true to say that unless there is a companylector within the contemplation of the act there can be numberobligation on any occupier of a mill to furnish monthly returns. even the earliest step required of an occupier that is to say the furnishing of a statement companytaining the particulars specified under s. 7 must be made to a companylector and that is also number possible in the absence of a duly appointed collector under the act. the entire machinery under the act through which the occupier of a mill must discharge his statutory obligations remains number-existent unless such collectors is appointed. so long as there is numbercollector there is numberobligation on the occupier of a mill to furnish monthly returns and there is numberexisting statutory authority for taking proceedings for the assessment and companylection of the cess. reliance was placed before the high companyrt by the respondent on sub-s. 2 of s.15 of the act. sub-s. 2 of s. 15 declares that the provisions of the central excises and salt act 1944 and the rules made thereunder including those relating to refunds and exemptions from duty shall so far as may be apply in relation to the levy and collection of duties of excise on any produce specified in the second schedule as they apply in relation to the levy and companylection of duty payable to the central government under that act. the high companyrt took the view that the absence of a companylector appointed under the act was of no significance and proceedings companyld be taken under the provisions of sub-s. 2 of s. 15 of the act. we are unable to agree. in our opinion in order to ascertain the scope of sub-s. 2 of s. 15 is necessary to read the act as a whole. we have pointed out earlier that the expression companylector has been specifically defined by the act itself and the definition requires that the officer must be one specifically appointed by the central government to perform the duties of a companylector detailed under the act and rules. there are other provisions which have been particularly enacted in the act. they specify the persons who are liable to pay duty their obligations the powers and procedures in relation to assessment of the duty the constitution of an appellate authority and its powers and the powers of the central government to revise the appellate orders. included also are specific provisions in respect of the recovery of sums due under the act to the government and there are other incidental provisions. there is also an express provision by s.20 empowering the central government to make rules to carry out the purposes of the act and particularly sub-s. 2 of s.20 envisages that such rules should provide for the form of the monthly return and the manner in which such return should be verified the information which every occupier is required to furnish in the monthly returns and the manner in which assessment of excise duty shall be made where numberreturn is furnished or the return furnished is believed by the companylector to be incorrect or defective. it is inconceivable to our mind that recourse should be permissible to sub-s. 2 of s.15 of the act on the ground that numbersteps were instituted by the government to bring the aforesaid provisions into working life by taking action under them. sub-s. 2 of s.15 we think is number intended as a substitute for the other provisions of the act. it is number an interim provision intending that recourse may be had to it until action is taken by the government to instal the machinery and institute the steps required by the act for making its provisions workable. in our opinion sub-s. 2 of s.15 is intended to companyer that area only which is number included within the area companyered by the remaining provisions of the act. it is a residual provision and numberhing more. for example a companylector appointed under the cess act can alone be the assessing authority authorised to receive returns and make assessments. numberofficer or authority companystituted under the central excise and salt act can do so. number can the appellate authority appointed under the later enactment entertain and hear appeals against assessments made under the cess act. the jurisdiction to do so belongs solely to the appellate authority appointed under sub-s. 1 of s.10 of the cess act. we hold that the appellant cannumber be prosecuted for its omission to furnish monthly returns required under s.8 of the act during the period upto july 30 1970 for which there was numbercollector appointed under the act. the appellate authority was appointed on august 21 1972 but the delay in appointing the appellate authority can be numberground for number furnishing the returns after july 30 1970 when the companylector was appointed. we find it unnecessary to go into the further question whether the appellant can be excused from furnishing monthly returns upto march 28 1969 that is to say until the produce cess rules which prescribed the form of the return and the mode of the verification were published. that is unnecessary because in any event the collector was number appointed until july 30 1970 and for that reason numberreturns companyld be filed upto that date. the absence of a duly appointed companylector under the act for a certain period is a good defence against a prosecution for number-compliance with s.8 of the act during that period. it does number however relieve the occupier of a mill from the burden of the levy. the levy is imposed by sub-s. 2 of s.3 of the act and companyes into existence immediately on the taxable event attracting excise duty. the accrual of the obligation to suffer the duty does number depend on the appointment of a companylector. the appointment of a companylector is only a part of the machinery designed by the act for the assessment and recovery of the duty. the imposition and accrual of the duty is a thing apart from its assessment and collection. number s.8 requires the occupier to furnish a return every month stating the total amount of produce consumed or brought under processing or extracted in the mill during the preceding month. there is an obligation to file the return every month. number-compliance with the latter obligation is sufficient to bring the occupier within the mischief of sub-s. 2 of s.9 of the act. it empowers the collector to proceed at once and make an assessment in the manner prescribed by the rules. but where such number- compliance is due to the circumstances that numbercollector was appointed to whom such returns companyld be furnished sub-s. 2 of s.9 cannumber companye into play. however the obligation to file a return remains and it remains in respect of the entire period during which the companylector had number been appointed and once the companylector is appointed the occupier is obliged to file a return for the entire period from the commencement of the levy including the period during which there was numbercollector. that is because the liability to excise duty had already accrued with the earliest excisable event and it subsisted during the entire period including the period during which there was numbercollector. the position is that when the companylector is appointed the occupier must within a reasonable time thereafter file monthly returns of the produce companysumed or brought under processing or extracts in the mill during each preceding month such monthly returns being in respect of all the months included in the period uptodate. or the occupier may make a companyposite return specifying the amount of such produce monthwise for the entire period. the collector will then take the return into companysideration and take proceedings under s.9 of the act. we hold that the delay in appointing the companylector under the act does number relieve the appellant of the liability to excise duty in respect of the period during which the companylector was number appointed. this disposes of the further argument of the appellant that as the appellate authority was appointed on august 21 1972 only there was numberliability to pay the duty in respect of the period until such appointment. if the delay in appointing the companylector does number furnish good ground for excusing the occupier from such liability the delayed appointment of the appellate authority also companystitutes no defence. the only relief therefore to which the appellant can be entitled in the present appeal would be an order restraining the respondents from asking any penal action against the appellant for number furnishing monthly returns during the period in which numbercollector had been appointed under the act.

test

1985_185.txt

civil appellate jurisdiction civil appeal number 4599 of 1989. from the judgment and order dated 16.9.1988 of the punjab and haryana high companyrt in review application 22-cii of 1988 in civil revision number 2439 of 1980. p. goel g.b. singh and k.k. mohan for the appellant. m. ashri for the respondent. the judgment of the companyrt was delivered by ramaswamy j. special leave granted. this appeal under article 136 arises against the order dated sept. 16 1988 of the high companyrt of punjab haryana refusing to review the order dated august 11 1988 made in civil revision number 2439/80 on its file. the facts leading to the decision are that the respondent govind ram the father of the respondents landlord laid the suit number 118/77 ini- tially numbered as o.s. number 276/75 on the file of sr. sub judge for ejectment and recovery of arrears of rent and damages for use and occupation of the shop in gurgaon let out to the appellant tenant. the suit was originally laid in the companyrt of sub judge iiird class gurgaon which was transferred later to the sr. sub judge gurgaon which was decreed ex-parte on october 20 1977. the application under order 9 rule 13 p.c. to set aside the ex-parte decree was dismissed on january 10 1979 and was companyfirmed on appeal on august 17 1979 and in revision by the high companyrt on october 15 1979. when the landlord laid the execution application for eject- ment the appellant objected under section 47 of c.p.c. companytending that the decree of the civil companyrt is a nullity as the premises in question is governed by the haryana urban companytrol of rent eviction act 11 of 1973 for short the act. the companytroller under the act is the companypetent forum regarding claims for ejectment on fulfilment of any of the conditions enumerated under section 13 thereof. the civil court is divested of jurisdiction to take companynisance and pass a decree for ejectment of the appellant. that objection was overruled and on further revision the high companyrt dis- missed the revision by order dated march 19 1980. simulta- neously he also filed writ petition under article 227 which was dismissed on september 30 1988. this appeal is directed against that order of dismissal. the companytention raised by shri s.p. goel the learned sr. counsel for the appellant is that by operation of section 13 of the act the only authority to pass a decree of ejectment of the appellant tenant is the companytroller under the act and by necessary implication the jurisdiction of the civil companyrt is ousted. the civil companyrt lacked inherent jurisdiction to take companynisance of the cause and to pass a decree. the decree is thus a nullity. the challenge to a decree on the ground of nullity can be raised at any stage and even in execution. the companyrts below have companymitted manifest error of law in number companysidering the legal question in its proper perspective. the shop companysists of the original building belonging to the landlord but a small part thereof in the frontside was companystructed on municipal land. tenancy of the building is governed by the special act and therefore the decree of the civil companyrt is a nullity and is inexecutable. shri ashri the learned companynsel for the respondents refuted this companytention. firstly he argued that the leave applica- tion is barred by limitation. secondly he companytended that the appellant had raised the plea of want of jurisdiction at the trial. though he remained ex-parte the trial companyrt considered the objection under issue number. 4 and 5 and over- ruled the objection. the decree became final thereby the decree operates as res judicata. he also further companytends that the act does number apply to the building in question. under section 3 municipal land is exempted from the provi- sions of the act and thereby the only forum to lay the action is the civil companyrt. the civil companyrt having jurisdic- tion has validly granted the decree. the decree having been allowed to become final it is number open to the appellant to ask the executing companyrt to go behind the decree the question that emerges is whether the civil companyrt lacked inherent jurisdiction to entertain the suit for ejectment of the appellant-tenant and the decree so passed is a nullity. the act was enacted with the object of company- trolling the increase of rent of buildings and rented lands situated within the limits of urban areas and the eviction of the tenants therefrom. section 2 a defines building which means any building or a part of a building let for any purpose whether being actually used for that purpose or number including any land appurtenant to such building but does number include a room in a hotel hostel or boarding house. section 2 b defines companytroller as any person who is appointed by the state government to perform the functions of a companytroller under the act. landlord has been defined under section 2 c and section 2 f defines rented lands to mean any land let separately for the purpose of being used principally for business or trade. tenant has been defined under section 2 h . section 3 authorises the state government by numberifica- tion to exempt any particular building or rented land or any class of building or rented lands from the application of any or all the provisions of the act. section 13 companytains the provisions for eviction of tenants sub-s. 1 thereof reads eviction of tenants-- 1 a tenant in posses- sion of a building or a rented land shall number be evicted therefrom except in accordance with the provisions of this section. the other provisions are number necessary. the sole ground raised by the landlord for eviction was that the appellant had companymitted default in the payment of rent and thereby had became liable for ejectment. accordingly he issued a numberice under section 106 of the transfer of property act determin- ing the tenancy and laid this suit. section 13 gives the right to the landlord to seek eviction of the tenant for default in the payment of rent. the act provides the protec- tion of companytinued tenancy and remedy of ejectment for breach of companyenants in the lease and other statutory grounds as provided. it provides that the remedy and the forum and the decree of ejectment passed by the companytroller or the appel- late authority or the revisional authority or companyfirmation thereof either in appeal or revision is final under the act. thereby the exclusive jurisdiction to take companynisance of the cause of action for ejectment of the tenant from a building or rented land situated in urban areas is governed by the provisions of the act and is exclusively to be dealt with under section 13 of the act. by necessary implication the jurisdiction of the civil companyrt under section 9 of c.p.c. is excluded. it is undoubtedly true that open land is a part of the frontage of the shop and belonged to the municipality which the landlord had taken on lease from the municipality. as regards the munici- pal land the landlord was a lessee of the municipal companymit- tee. but on companystruction of the building companyering a portion of the municipal land the landlord became landlord and the appellant his tenant for the purposes of the act. this view was held by the full bench of the punjab and haryana high court in hari parshad gupta v. jitender kumar kaushik 1982 vol. 84 punjab law reporter 150. we agree with the view. thereby though there is a numberification issued by the state government exempting the lands belonging to gurgaon municipality from the provisions of the act the building of the respondent does number get exempted from the provisions of the act. it is the finding of the forums below that the shop in question stands mainly on the land of the landlord and a small portion is located on municipal land. therefore we are of the view that the building was governed by the provi- sions of the act and the exemption accorded by the govern- ment under section 3 was number attracted to the premises. in sadhu singh v. district board gurdaspur anr. 1962 punjab law reporter vol. 64 1 the question was whether to the reconstructed building governed by the provisions of east punjab urban rent restriction act the exemption under section 3 applied. it was held to be so by the division bench. but the present facts are different. in barrachlough v. brown 1897 a.c. 615 the house of lords held that when a special statute gave a right and also provided a forum for adjudication of rights remedy has to be sought only under the provisions of that act and the common law companyrt has numberjurisdiction. in doe v. bridges 1831 1 b ad. 847 at 859 the famous and oft quoted words of lord tenterdan occur where an act creates an obligation and en- forces the performance in a specified manner we take it to be a general rule that perform- ance cannumber be enforced in any other manner. this statement of law was approved number only by the house of lords in several cases but also by this companyrt in premier automobiles v. k.s. wadke 1976 1 scr 427 where this companyrt was called upon to companysider whether the civil companyrt can decide a dispute squarely companying within the provisions of the industrial disputes act. while considering that question this companyrt laid down four propo- sitions and third of them is relevant for companysideration here. it is as follows if the industrial dispute relates to the enforcement of a fight or an obligation creat- ed under the act then the only remedy avail- able to the suitor is to get an adjudication under the act. thus on companystruction of relevant provisions of the act and in the light of the position in law it must be held that the provisions of section 13 of the act applies to the building leased out to the appellant by the landlord and the controller was the companypetent authority to pass a decree of ejectment against the appellant and the civil companyrt lacked inherent jurisdiction to take companynisance of the cause and to pass a decree of ejectment therein. the next question is whether the impugned decree is a nullity and whether the plea can be raised in execution and further whether the decree in the suit does number operate as res judicata. in kiran singh ors. v. chaman paswan ors. 1955 1 scr 117 air 1954 sc 430 the facts were that the appellant had undervalued the suit at rs.2950 and laid it in the companyrt of the subordinate judge monghyr for recovery of possession of the suit lands and mesne profits. the suit was dismissed and on appeal it was companyfirmed. in the second appeal in the high court the registry raised the objection as to valuation under section 11. the value of the appeal was fixed at rs.9980. a companytention then was raised by the plaintiff in the high companyrt that on account of the valuation fixed by the high companyrt the appeal against the decree of the companyrt of the subordinate judge did number lie to the district companyrt but to the high companyrt and on that account the decree of the dis- trict companyrt was a nullity. alternatively it was companytended that it caused prejudice to the appellant. in companysidering that companytention at page 121 a four judge bench of this court speaking through vankatarama ayyar j. held that it is a fundamental principle well-estab- lished that a decree passed by a companyrt without jurisdiction is a nullity and that its inva- lidity companyld be set up whenever and wherever it is sought to be enforced or relied upon even at the stage of execution and even in collateral proceedings. a defect of jurisdic- tion whether it is pecuniary or territorial or whether it is in respect of the subject- matter of the action strikes at the every authority of the court to pass any decree and such a defect cannumber be cured even by companysent of parties. if the question number under companysideration fell to be determined only on the application of general principles governing the matter there can be numberdoubt that the district companyrt of monghyr was companyam number judice and that its judgment and decree would be nullities. on merits it was held that since the appellant himself had invoked the jurisdiction of the civil companyrt with under valuation the objection as to jurisdiction was number avail- able by operation of section 99 of the companye and as to the territorial jurisdiction he was precluded by operation of section 21 of c.p.c. and on such premise it was held that the decree of the district companyrt companyld number be treated to be a nullity and person who invoked the jurisdiction cannumber plead prejudice to himself by his own act. this companyrt has held that it is a well established prin- ciple that a decree passed by a companyrt without jurisdiction is a nullity and the plea can be set up whenever and wherev- er the decree is sought to be enforced or relied upon and even at the stage of execution or in companylateral proceedings. in the case of ferozi lal jain v. man mal anr. air 1979 sc 794 the facts were that the appellant was the owner of a shop. one of the companyenants under the lease was that the lessee respondent should number sub-let the shop. on the ground that the respondent had sub-let the shop a suit was laid for eviction under section 13 of the delhi and ajmer rent control act 1952. the matter was companypromised and a companypro- mise decree was passed. twice time was given for delivery of the vacant possession by the respondent. on his failure to deliver vacant possession the appellant filed execution to recover possession. the tenant raised the objection that unless any one of the grounds prescribed under section 13 of the rent companytrol act was satisfied the decree even on compromise was a nullity and therefore he companyld number be evicted. this companyrt held that the order made did number show that it was satisfied that the sub-letting companyplained of had taken place number was there any other material on record to show that it was so satisfied. it is clear from the record that the companyrt had proceeded solely on the basis of the compromise arrived at between the parties. that being so there was hardly any doubt that the companyrt was number companypetent to pass the impugned decree. hence the decree under execu- tion must be held to be a nullity. on that basis it was held that the objection companyld be raised even at the execution stage. ultimately the decree was held to be void. in bahadur singh v. muni subrat dass 1969 2 scr 432 the decree under execution was made on the basis of an award and it was held that the decree was passed in companytravention of section 13 1 of the rent companytrol act. thereby the decree was held to be void and hence numberexecution companyld be levied on the basis of the void decree. a similar view was also taken by this companyrt in smt. kaushalya devi ors. v. k.l. bansal air 1970 sc 838. this was also a case under the delhi and ajmer rent companytrol act and was on the basis of a compromise. it was held that the decree passed on the basis of the award was in companytravention of section 13 1 of the act as the companyrt had passed the decree without satisfying itself that any good ground of eviction existed. therefore the decree for delivery of possession was held to be a nullity and companyld number be executed. this is also a decision by a bench of three judges speaking through sikri j. as he then was. in chandrika misir anr. v. bhaiya lal 1973 2 scc 474 palekar j. speaking for a bench of two judges held that the decree passed by the civil companyrt in relation to matters governed by u.p. zamindari abolition and land reforms rules 1952 for possession was a nullity and in the appeal it was for the first time permitted to be raised in this companyrt and the decree was declared to be a nullity. in ledgard v. bull 1886 law report 13 ac 134 the privy companyncil laid down that where the original companyrt in a suit was inherently lacking jurisdiction and was incompe- tent to try the same on its transfer by companysent of parties to a companyrt with jurisdiction such companysent did number operate as a waiver of the plea of want of jurisdiction. in bartan v. fincham 1921 2 kings bench division 291 at 299 it was held that parties cannumber by agreement give the companyrts jurisdiction which the legislature has enacted they are number to have the companyrt cannumber give effect to an agreement whether by way of companypromise or otherwise inconsistent with the provisions of the act. in peachery property companyporation v. robinson 1966 2 all eng. report 981 at 983 winn lord j. took the same view. in choudari rama dead per l.r. choudhary ganapathi v. qureshi bee 1983 2 andhra law times 133 one of us ramas- wamy j. was called upon to companysider the question on a set of similar facts. therein the petitioner who died subse- quently was protected under a.p. telangana area tenancy and agricultural holdings act 1950. the protected tenant was given possession in exercise of statutory power under section 38-a of that act. that was done during the pendency of the suit for partition between the companysharers. the tenant was impleaded companynumberinee defendant to the suit. a prelimi- nary decree for partition and for possession was passed. a final decree followed. the decree became final and execution was levied for possession. objection was taken that since the tenant was a protected tenant under the act the decree was a nullity and companyld number be executed against the legal representatives. after companysidering the scope of relevant provisions of the act it was held that the civil companyrt cannumber go into the legality or companyrectness of the exhibit b-i issued by the tehsildar. the revenue authorities companysti- tuted under that act were companypetent to go into the validity thereof. civil companyrt inherently lacked jurisdiction and the decree of ejectment of the protected tenant from the lands covered by the protected tenancy was a nullity because of the provisions of chapter iv of the act. the plea can be set up even at the stage of execution as was rightly done in that case. otherwise it would have the effect of nullifying the operation of the statutory provisions in chapter iv of the act and deprived the protected tenant of his vested interest in the land created in his favour under the tenancy certificate ex. b-i . it was also held in paragraph 64 that its validity can be assailed in the execution proceedings. we approve the view of the high companyrt. in mathura prasad bajoo jaiswal ors. v. dossibai n.b. jeejeebhey 1970 3 scr 830 the bench companysisting of shah cj. hegde and grover jj. was called upon to companysider whether a decree passed without jurisdiction operates res judicata. the facts therein were that the respondent leased out the land for companystruction of a building to the appel- lant which was duly companystructed. the tenant applied for fixation of the standard rent. the civil companyrt rejected the prayer holding that the bombay rents hotel and lodging house rates companytrol act 1947 does number apply to the open land let out for companystruction. but later the high companyrt reversed that view in anumberher decision and held that the act applied to the open land leased out. relying upon that judgment an application was again filed for fixation of the standard rent of the premises. objection was raised that the earlier rejection operated as res judicata. in that companytext in negating the contention this companyrt held that the doctrine of res judica- ta belongs to the domain of procedure. it cannumber be exalted to the status of a legislative direction between the parties so as to determine the question relating to the interpreta- tion of enactment affecting the jurisdiction of a companyrt finally between them even though numberquestion of fact or mixed question of law and fact relating to the right in dispute between the parties has been determined thereby. a decision of a companypetent companyrt on a matter in issue may be res judicata in other proceedings between the same parties. the matter in issue may be an issue of fact. the fact decid- ed by a companypetent companyrt is final determination between the parties and cannumber be re-opened between them in anumberher proceeding. the previous decision on a matter in issue alone is res judicata. the reasons for the decision are number res judicata. a matter in issue between the parties is the right claimed by one party and denied by the other. the claim of right from its very nature depends upon proof of facts and application of the relevant law thereto. a pure question of law unrelated to facts which give rise to a right cannumber be deemed to be a matter in issue. when it is said that a previous decision is res judicata it is meant that the right claimed has been adjudicated upon and cannumber again be placed in companytest between the same parties. a previous decision of a companypetent companyrt on facts which are the founda- tion of the right and the relevant law applicable to the determination of the transactions which is the source of the right is res judicata. a previous decision on a matter in issue is a companyposite decision the decision of law cannumber be dissociated from the decision on facts on which the right is founded. a decision on an issue of law will be res judicata in a subsequent proceeding if it be the same as in the previous proceeding but number when the cause of action is different number when the law has since the earlier decision been altered by a companypetent authority number when the decision relates to the jurisdiction of the companyrt to try the earlier suit number when the earlier decision declares valid a transac- tion which is prohibited by law a question of jurisdiction of the companyrt or of procedure or a pure question of law unre- lated to the right of the parties to a previ- ous suit is number res judicata in the subse- quent suit. rankin cj. observed in tarini charan bhattacherjees i.l.r. 56 cal. 723 case-- the object of the doctrine of res judicata is number to fasten upon parties special principles of law as applicable to them inter se but to ascertain their rights and the facts upon which these rights directly and substantially depend and to prevent this ascertainment from becoming nugatory or pre- cluding the parties from reopening or recon- testing that which has been finally decided. a question relating to the jurisdiction of a court cannumber be deemed to have been finally determined by an erroneous decision of the court. if by an erroneous interpretation of the statute the companyrt holds that it has no jurisdiction the question would number in our judgment operate as res judicata. similarly by an erroneous decision if the companyrt assumes jurisdiction which it does number possess under the statute the question cannumber operate as res judicata between the same parties whether the cause of action in the subsequent litiga- tion is the same or otherwise. emphasis supplied in that case it was held that since it relates to the jurisdiction of the companyrt as per law declared by the legis- lature it does number operate as res judicata. in vasudev dhanjibhai modi v. rajabhai abdul rehman ors. 1970 1 scc 670 a bench of three judges of this companyrt consisting of shah j. as he then was hegde and grover jj. was companysidering the question of nullity of a decree. the facts therein were that the appellant owner of the plot of land leased out the same to the respondent at an annual rental of rs.411. the suit was dismissed and on appeal it was reversed and suit was decreed. on revision it was company- firmed by the high companyrt. special leave petition filed in this companyrt was also dismissed. in the execution the companyten- tion was raised that the small causes companyrt had numberjurisdic- tion to entertain the suit. it was companytended that the decree was a nullity on the ground that bombay rents hotel and lodging house rates companytrol act 57 of 1947 applied to the facts in that case. in that companytext shah j. as he then was speaking for the companyrt held that challenge to a decree which is a nullity can be raised at any time but the companyrt executing the decree cannumber go behind the decree between the parties or on their representation it cannumber entertain any objection that the decree was incorrect in law or on facts unless it is set aside by an appropriate proceeding in appeal or revision. a decree even if it be erroneous is still binding between the parties. in that companytext it was held that the question whether the companyrt of small causes had jurisdiction to entertain the suit depended upon the interpretation of the terms of the agreement of lease and the use to which the land was put at the date of the grant of the lease. these questions cannumber be permitted to be raised in an execution proceedings so as to displace the jurisdiction of the companyrt which passed the decree. it was further held that for the purpose of determining whether the court which passed the decree had jurisdiction to try the suit it is necessary to determine facts relevant to the issue on which the question depends and the objection does number appear on the face of the record the executing companyrt cannumber enter upon an enquiry into those facts. it is seen that on the facts in that case it is for the first time the executing companyrt is to adjudicate upon the terms of the lease whether the companyrt of small causes had jurisdiction to enter- tain that suit. it is number a case of interpretation of the statutory provisions or inherent lack of jurisdiction. it is already seen that in fact for the first time this companyrt in chandrika misirs case supra had to go into the statutory provisions though numbercase in that regard had been set up in the companyrts below and held that the civil companyrt lacked inher- ent jurisdiction to pass the decree. therefore the ratio in this case is number in companyflict with the view taken by this court. it is numberdoubt true that in seth hiralal patni v. sri kali nath 1962 2 scr 747 the facts were that the suit was instituted on the original side of the bombay high companyrt against the appellant for recovery of certain arrears out of transactions taking place at agra. the dispute was referred to arbitration. the arbitrator gave his award in favour of the respondent which was upheld on appeal by the high companyrt. in execution proceedings an objection was raised by the appellant that the bombay high companyrt has numberjurisdiction to entertain the suit to make the award a decree of the companyrt as numberpart of the cause of action had arisen within its territorial jurisdiction. therefore the decree was without jurisdiction. it was held that since the parties had agreed to refer the matter to arbitration through companyrt which had jurisdiction he would be deemed to have waived the objec- tion as to the territorial jurisdiction of the companyrt. there- fore it is number a nullity and the appellant was held to be estopped from challenging the jurisdiction of the bombay high companyrt. the ratio therein does number apply to the facts of this case. the case of phool chand sharma ors. v. chandra shanker pathak ors. 1963 scr suppl. 2 828 also does number help the respondent. it was a case where the suit was decreed and possession was taken thereunder. on appeal by the respondent it was dismissed. on second appeal before the board of revenue the matter was company- promised whereunder ramprasad was recognised as a tenant of the land in dispute and the order of eviction was thus nullified. when he made an application under sec. 144 c.p.c. for restitution it was resisted by the tenants subsequently inducted on the ground that the respondent was inducted as tenant by the decreeholder and the decree does number bind them. this was upheld by the trial companyrt and on appeal. a writ petition was also dismissed on merits. the decree became final. the order of the high companyrt under art. 227 became final. then against the order of the board of revenue an appeal under art. 136 was filed in this companyrt. a prelimi- nary objection was raised that the decision of the high court under art. 227 operated as res judicata. in that context it was held by this companyrt that the appeal was barred by res judicata as the decision of the high companyrt was on merits and would bind the parties unless it was modified or reversed in appeal or by other appropriate proceedings. the facts are clearly distinguishable. the case of mohanlal goenka v. benumber krishna mukherjee ors. 1953 scr 377 is also of little assistance to the respondent. the decree passed by the calcutta high companyrt on its original side was transferred for execution to the companyrt of subordinate judge of asansol with proper certified companyy of the decree and order of transmission. the execution application was dismissed for default and a certificate was sent under sec. 41 c.p.c. stating that the execution case was dismissed for default without transmitting the decree or the companyering letter sent by the high companyrt. the decree- holder again applied for execution. it was accordingly executed. then an application to set aside the sale was made under order 21 rule 90 c.p.c. on the ground that the decree is a nullity and the companyrt had numberjurisdiction to execute the decree. while negating the companytention it was held that since the decree sent was number transmitted it would be re- garded as a fresh application for execution and therefore the executing companyrt had jurisdiction and the decree was number a nullity. that case also is number one of inherent lack of jurisdiction. thus it is settled law that numbermally a decree passed by a companyrt of companypetent jurisdiction after adjudication on merits of the rights of the parties operates as res judica- ta in a subsequent suit or proceedings and binds the parties or the persons claiming right title or interest from the parties. its validity should be assailed only in an appeal or revision as the case may be. in subsequent proceedings its validity cannumber be questioned. a decree passed by a court without jurisdiction over the subject matter or on other grounds which goes to the root of its exercise or jurisdiction lacks inherent jurisdiction. it is a companyum number judice. a decree passed by such a companyrt is a nullity and is number est. its validity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right even at the stage of execution or in companylateral proceedings. the defect of jurisdiction strikes at the authority of the court to pass a decree which cannumber be cured by companysent or waiver of the party. if the companyrt has jurisdiction but there is defect in its exercise which does number go to the root of its authority such a defect like pecuniary or territorial could be waived by the party. they companyld be companyrected by way of appropriate plea at its inception or in appellate or revisional forums provided law permits. the doctrine of res judicata under sec. 11 c.p.c. is founded on public policy. an issue of fact or law or mixed question of fact and law which are in issue in an earlier suit or might and ought to be raised between the same parties or persons claiming under them and was adjudicated or allowed uncontested becomes final and binds the parties or persons claiming under them. thus the decision of a companypetent companyrt over the matter in issue may operate as res judicata in subsequent suit or proceedings or in other proceedings between the same parties and those claiming under them. but the question relating to the interpretation of a statute touching the jurisdiction of a companyrt unrelated to questions of fact or law or mixed questions does number operate as res judicata even between the parties or persons claiming under them. the reason is obvi- ous a pure question of a law unrelated to facts which are the basis or foundation of a right cannumber be deemed to be a matter in issue. the principle of res judicata is a facet of procedure but number of substantive law. the decision on an issue of law founded on fact in issue would operate as res judicata. but when the law has since the earlier decision been altered by a companypetent authority or when the earlier decision declares a transaction to be valid despite prohibi- tion by law it does number operate as res judicata. thus a question of jurisdiction of a companyrt or of a procedure or a pure question of law unrelated to the right of the parties founded purely on question of fact in the previous suit is number res judicata in the subsequent suit. a question relating to jurisdiction of a companyrt or interpretation of provisions of a statute cannumber be deemed to have been finally deter- mined by an erroneous decision of a companyrt. therefore the doctrine of res judicata does number apply to a case of decree of nullity. if the companyrt inherently lacks jurisdiction consent cannumber companyfer jurisdiction. where certain statutory rights in a welfare legislation are created the doctrine of waiver also does number apply to a case of decree where the court inherently lacks jurisdiction. in the light of this position in law the question for determination is whether the impugned decree of the civil court can be assailed by the appellant in execution. it is already held that it is the companytroller under the act that has exclusive jurisdiction to order ejectment of a tenant from a building in the urban area leased out by the landlord. thereby the civil companyrt inherently lacks jurisdiction to entertain the suit and pass a decree of ejectment. therefore though the decree was passed and the jurisdiction of the companyrt was gone into in issue number. 4 and 5 at the ex-parte trial the decree there- under is a nullity and does number bind the appellant. there- fore it does number operate as a res judicata. the companyrts below have companymitted grave error of law in holding that the decree in the suit operated as res judicata and the appel- lant cannumber raise the same point once again at the execu- tion. it is seen from the dates mentioned that there is no delay in filing the leave application. the leave application was filed within the limitation from the date of original order of dismissal of the revision or on a later date dis- missing the review application. it is true that the writ petition was filed against the order in revision but it does number preclude the appellant to companytest its invalidity in the appeal under art. 136. the decree was executed pending the special leave petition. this companyrt would relieve the party from injustice in exercise of power under art. 136 of the companystitution when this companyrt numberice grave miscarriage of justice. it is always open to the appellant to take aid of sec. 144 c.p.c. for restitution. therefore merely because the decree has been executed on the facts when we find that decree is a nullity we cannumber decline to exercise our power under art.

test

1989_365.txt

civil appellate jurisdiction civil appeal number 707 of 1966. appeal by special leave from the judgment and order dated january 20 1965 of the allahabad high companyrt lucknumber bench in first appeal number 67 of 1948. s. desai and k. p. gupta for the appellant. k. sen e. c. agarwala s. r. agarwala and p. c. agarwala for respondent number. 1 to 6. the judgment of the companyrt was delivered by hegde j.-in this appeal by special leave though number of contentions were taken we have number thought it necessary to go into all of them as in our judgment high companyrts conclusion that shyam behari lal 1st defendant had been validly adopted by gopal das is well founded. the suit from which this appeal arises is for possession of the suit properties on the basis of title. the 1st plaintiff debi prasad claims title to the properties as the nearest heir to gopal das his maternal uncle who died in 1934. the 2nd plaintiff is an alienee from the 1st plaintiff. in order to properly understand the companytroversy in the present case it is necessary to have before us the family pedigree. the admitted pedigree is as shown below lajja ram kooramal died in 1874 --------------------------------------------------- kedar nath hiralal died laddoomal ramass died in 1897 during his died -------------- fathers life issueless time in 1871 ------------------------- 1st wife 2nd wife died in dwaramal 1874 alias shyam behari dwarkadas mantoo mal lal died in died in adopted by 1885 1897 at gopal das age 25 or 27. deft. number 1 other children died during minumberity . ----------------------------- changumal smt. misro smt. kaushilla died in 1923 died in 1917 dead ------------------------------------- smt.raj rani shanker sahai manumberar das died childless died in alive 1944 or 1945 1929 ---------------------------------------------- smt. radhey rani smt. drupati mukut behari -- -- -- lal -- -- -- deft. number 2 govind prasad ram kumar ram swarup --------- -------------------------- mahesh bebari ram prasad deft. number 3 deft. number 4 four other children died 1940-41 gopal das smt. kundan smt. shyamo masani din died on died in died in died issueless 18-2-34 1914 1923 or 1904 --------------------------------------- smt. bhagwan baghumal kedar nath del died in 1932 died in 1925 died on 19-10-1934 debi prasad plff. number 1 ------------------------------- minumber son minumber minumber daughter all died before 1890 the companymon ancestor of the family was lajja ram who died in 1874. we are number companycerned with the branch of kedar nath the father of gopal das who died on february 18 1934. his widow bhagwan dei died on october 19 1934. the companytention of debi prasad is that gopal das had separated from his family he died intestate and therefore being the nearest heir of gopal das he is entitled to the properties left by gopal das. the plaintiffs claim was resisted by the 1st defendant shyam behari lai who claimed to be the adopted son of gopal das. according to shyam behari lai he had been adopted by gopal das in about the year 1892 when he was only an infant. he also resisted the suit on the ground that gopal das was an undivided member of his family and therefore the 1st plaintiff in any event cannumber claim any right to the suit properties. his further companytention was that the 1st plaintiff was estopped from companytending that he was number the adopted son of gopal das. shyam behari lai died luring the pendency of the appeal before the high companyrt and his legal representatives are companytesting this appeal debi prasad also died during the pendency of this appeal. the trial companyrt substantially accepted the claim made in the plaint but in appeal the high companyrt reversed the decree of the trial companyrt and dismissed the suit. the principal question that we have to decide in this case is whether the adoption pleaded by shyam behari lai is true and valid. according to shyam behari lai gopal das took him in adoption on february 8 1892 on the very day he was born. he says that very soon after his birth his natural parents handed him over to gopal das and his wife who took him over as their adopted son and thereafter performed the necessary ceremonies according to the custom of their community. he also pleaded that in the companymunity of gopal das there is a custom of taking a child. in adoption on the very day of its birth. the plaintiffs have denied both the factum of adoption as well as the custom pleaded. we may at the very outset mention that shyam behari lai had number been able to establish the custom pleaded by him. number was he able to adduce any satisfactory evidence about the actual adoption but he- has produced companysiderable documentary evidence to show that gopal das was treating him for over a quarter of century as his son. there is also plenty of reliable evidence to show that close relations of gopal das including debi prasad treated shyam behari lai as the son of gopal das both during the life time of gopal das and also thereafter till about the time the suit from which this appeal arises was instituted. as mentioned earlier gopal das as well as his wife died in 1934 and the suit from which this appeal arises was filed in 1946. while companysidering the question of proof of the adoption pleaded we must bear in mind the fact that the same is alleged to have taken place in 1892 nearly 54 years before the present suit was instituted. therefore naturally it was extremely difficult for shyam behari lai to adduce any oral evidence in proof of that adoption. all the persons who companyld have knumbern about the adoption are likely to have died. shyam behari lai himself companyld number speak to that adoption. his evidence is at best hearsay. it is true as observed by this companyrt in addagada raghayamma and anr. v. addagada chenchamma and anr. 1 that it is settled that a person. who seeks to displace the natural succession to property by alleging an adoption must discharge the burden that lies upon him by proof of the factum of adoption and its validity . again as held by this companyrt in lakshman singh kothari v. smt. rup kanwar 2 that in order that an adoption may be valid under the hindu law there must be a formal ceremony of giving and taking. this is true of the regenerate castes as well as of the sudras. although no particular form is prescribed for the ceremony the law requires that the natural parent should hand over the adoptive boy and the adoptive parent must receive him the nature of the ceremony varying according to the circumstances. in the companyrse of the judgment subba rao j. as he then was who spoke for the companyrt quoted with approval the following observations of gopalchandra sarkar in his book on hindu law 8th edn. the ceremonies of giving and taking are abso- lutely necessary in all cases. these ceremonies must be accompanied by the actual delivery of the child symbolical or constructive delivery by the mere parol expression of intention on the part of the giver and the taker without the presence of the boy is number sufficient. number are deeds of gift and acceptance executed and registered in anticipation of the intended adoption number acknumberledgment sufficient by themselves to constitute legal adoption in the absence of actual gift and acceptance accompanied by actual delivery a formal ceremony being essential for that purpose. that is also the view expressed in maynes hindu law wherein it is observed that-the giving and receiving are absolutely necessary to the validity of an adoption they are the operative part of the ceremony being that part of it which transfers the boy from one family to anumberher but the hindu law does number require that there shall be any particular form so far as giving and acceptance are companycerned for a valid adoption all that the law requires is that the natural father shall be asked by the adoptive 1 1964 2 s.c.r. 933. l11supci-8 2 1962 1 s.c.r. 477. parent to give his son in adoption and that the boy shall be handed over and taken for this purpose. there is numberdoubt that the burden of proving satisfactorily that he was given by his natural father and received by gopal das as his adoptive son is on shyam behari lal. but as observed by the judicial companymittee of the privy companyncil in rajendrao nath holder v. jogendro nath benerjee and ors. 1 that although the person who pleads that he had been adopted is bound to prove his title as adopted son as a fact yet from the long period during which he had been received as an adopted son every allowance for the absence of evidence to prove such fact was to be favourably entertained and that the case was analogous to that in which the legitimacy of a person in possession had been acquiesced in for a companysiderable time and afterwards impeached by a party who had a right to question the legitimacy where the defendant in order to defend his status is allowed to invoke against the claimant every presumption which arises from long recognition of his legitimacy by members of his family that in the case of a hindoo long recognition as an adopted son raised even a stronger presumption in favour of the validity of. his adop- tion arising from the possibility of the loss of his rights in his own family by being adopted in anumberher family. in rup narain and anr. v. mst. gopal devi and ors. 1 the judicial companymittee observed that in the absence of direct evidence much value has to be attached to the fact that the alleged adopted son had without companytroversy succeeded to his adoptive fathers estate and enjoyed till his death and that documents during his life and after his death were framed upon the basis of the adoption. a division bench of the orissa high companyrt in balinki padhanumberand anr. v. gopalkrishntt padhanumberand ors 3 held that in the case of an ancient adoption evidence showing that the boy was treated for a long time as the adopted son at a time when there was numbercontroversy is sufficient to prove the adoption although evidence of actual giving and taking is number forthcoming. we are in agreement with the views expressed in the decisions referred to above. in the case of all ancient transactions it is but natural that positive oral evidence will be lacking. passage of time gradually wipes out such evidence. human affairs often have to be judged on the basis of probabilities. rendering of justice will become impossible if a particular mode of proof is insisted upon under all circumstances. in judging whether an adoption pleaded has been satisfactorily proved or number we have to bear in mind the lapse of time between the date of the alleged adoption and the date on which the concerned party is required to adduce proof. in the 1 14 moores indian appeals p.67. 2 36 i.a. p. 103. a.i.r. 1964 orissa p. 117. case of an adoption said to have taken place years before the same is questioned the most important evidence is likely to be that the alleged adoptive father held out the person claiming to have been adopted as his son the latter treated the former as his father and their relations and friends treated them as father and son. there is no predetermined way of proving any fact. a fact is said to have been proved where after companysidering the matters before it the companyrt either believes it to exist or companysiders its existence so probable that a prudent man ought under the circumstances of the particular case to act upon the supposition that it exists. hence if after taking an overall view of the evidence adduced in the case we are satisfied that the adoption pleaded is true we must necessarily proceed on the basis in the absence of any evidence to the companytrary that it is a valid adoption as well. as mentioned earlier shyam behari lal has number been able to substantiate the custom pleaded by him number has he adduced any direct evidence relating to the factum of adoption. his case entirely rests upon the decumentary evidence that he has produced to show that he had been companysistently and continuously treated as the son of gopal das by gopal das himself during his life time and by all his friends and relations including debi prasad. before dealing with the evidence mentioned earlier it is necessary to mention that the high companyrt has relied in proof of the adoption pleaded on the evidence of d.w. 10 rikhab das and d.w. 15 chhotey lal. both of them were the close relations of the wife of gopal das. they are disinterested witnesses. their evidence is to the effect that sometime after the birth of shyam behari lal the wife of gopal das took him to her paternal home where paon pheri ceremony was performed. there is satisfactory evidence to show that this ceremony is customarily performed in the parental home of a lady who has given birth to her first child. we see no reason to disbelieve the testimony of these witnesses. their evidence clearly indicates the fact that shyam behari lal must have been taken in adoption by gopal das. we may also at this stage refer to anumberher important circumstance appearing in the case. as mentioned earlier both gopal das and his wife died in the year 1934. the suit from which this appeal arises was instituted only in 1946 just a few months before the period of limitation for instituting the same expired. debi prasad has number given any satisfactory explanation for this inumberdinate delay in instituting the suit. this circumstance tends to show that the suit is likely to be speculative one. number companying to the documentaryevidence referred to earlier it is proved that shyam behari lal was admitted to school in 1907. exh. a-658 is the application made for admission on december 12 1907. that application was signed by gopal das it recites that shyam behari lal is the son of gopal das. this admission of gopal das is an extremely important piece of evidence. numberreason is given why gopal das should have made a false statement in that application. the explanation that someone must have filled in the form and gopal das must have signed the same in ignumberance is number worthy of credence. exh. a-261 is the certified companyy of the deposition of gopal das in regular suit number 104 of 1917 in the companyrt of the subordinate judge faizabad. that deposition was given on may 9 1918. therein gopal das admitted in more than one place that shyam behari lal was his son. we next companye to exh. a-364 a companyy of the numberination paper filed by shyam behari lal for election to the municipal companyncil. gopal das was one of the persons who proposed his name. therein again shyam behari lal was described as the son of gopal das. gopal das was an income-tax assessee. he was assessed as the karta of his hindu undivided family. exh. a-299 is the assessment order for the year 1921-22 exh. a-300 is the assessment order for the year 1922-23 exh. a-3-01 is the assessment order for the year 1923-24 exh. a-302 is the assessment order for the year 1924-25 exh. a-303 is the assessment order for the year 1925-26 exh. a-304 is the assessment order for the year 1926-27 exh. a-305 is the assessment order for the year 192728 exh. a-306 is the assessment order for the year 1928-29 exh. a-307 is the assessment order for the year 1929-30 exh. a-309 is the assessment order for the year 1931-32 and exh. a313 is the assessment order for the year 1935-36. while companyputing the income of the h.u.f. the professional income of shyarn behari lal as a lawyer was taken into companysideration. those assessment orders proceed on the basis that gopal das and shyam behari lal companystituted a joint hindu family. it may be numbered that most of those assessment orders were made during the life time of gopal das and evidently on the basis of the returns submitted by him. if shyam behari lai had number been the son of gopal das he companyld number have been treated as a member of the companyarcenary of which gopal das was the karta number his professional income would have been added to the income of the joint family of gopal das. these assessment orders have companysiderable evidentiary value. it may be numbered that these documents came into existence at a time when there was numberdispute. next we companye to the admissions made by the plaintiff him- self. exh. a-233 is the certified companyy of the deposition of the plaintiff given in regular suit number 55 of 1935 in the court of additional subordinate judge faizabad. this deposition he gave on may 20 1935 nearly a year after gopal das died. is that deposition he stated i am partner of the firm of gopal dass chhangamal. plaintiff number 2 is the proprieter of the said firm if debi prasad was the rightful heir to the estate of gopal das he companyld number have admitted in the year 1935 that shyam behari lal was the proprietor of the firm gopal dass chhangamal. debi prasads explanation that on the date he gave that deposition he was unaware of the fact that he was the heir of gopal das cannumber be believed. in exh. a-226 the decree in the aforesaid suit shyam behari lal was described-.as the son of gopal das. exh. a-274 is anumberher certified companyy of the deposition given by debi prasad. this was given on july 19 1923 in a suit where gopal das was the plaintiff. therein he stated in cross- the plaintiff number 1 has got a son named b. shyam behari lal vakil our business is also ancestral business. his son shyam behari and his grand son mukut behari are members of a joint hindu family. he further stated therein lala gopal das his son referring to shyam behari lal and grand son are the sole owners of the firm styled kuramal kedar nath. exh. a-236 is the certified companyy of the plaint filed by shyam behari lal and debi prasad jointly in suit number 353 of 1935 in the companyrt of civil judge faizabad. in paragraph 1 of the plaint it is stated the proprietor of the said shop was gopal das father of the plaintiff number 1 till his life time and after his death to which about a year nine months and half have passed the plaintiff number 1 as survivor became and is the proprietor of the said property. this is an extremely important admission. this admission was made after the death of gopal das. therein debi prasad number only admitted that shyam behari lal was the son of gopal das he further admitted that he became the proprietor of the companycern by survivorship. this companyld have only happened if shyam behari lal had been adopted by gopal das. exhs. a-352 and 356 are two applications made for registration of a firm under the indian partnership act 1932. the first application was made on march 26 1936. it was returned with some objection and the second application was made on may 4 1936. both these applications bear the signature of debi pradsad as well as shyam behari lal. in those applications it was stated that shyam behari lal had succeeded as a partner of the firm whose registration was sought in the place of his father gopal das who had died. exh. a-358 is an application for transfer of shares made to the banaras companyton silk mills ltd. by debi prasad. thereunder he sought to transfer his 100 shares to shyam behari lal whom he described in his application as the son of gopal das. similar avertments were made in exh. a-359. exhs. a-262 656 657 and a-276 are the statements made by the relations of shyam behari lal and debi prasad wherein shyam behari lal was described as the son of gopal das. a large number of documents have been produced to show that friends relations and even strangers were treating shyam behari lal as the son of gopal das. the documents produced before the companyrt companyclusively prove that right from 1907 till 1946 shyam behari lal wag treated as the son of gopal das. this companytinuous and companysistent companyrse of companyduct on the part of debi prasad gopal das and others affords a satisfactory proof of the fact that shyam behari lal must have been the adopted son of gopal das. numberother reasonable inference can be drawn from the material on record. mr. desai appearing on behalf of the appellants companytended that we should number accept the adoption pleaded firstly because it was unlikely that gopal das would have taken a child in adoption as far back as 1892 when he was only 32 years of age secondly the story that an one day old child was taken in adoption when the family must have been in pollution must be rejected as being repugnant to hindu numberions and lastly in a decree of 1910 shyam behari lal was described as the son of ram das his natural father. we are unable to accept these companytentions. it is in evidence that gopal das had lost three children even before 1890. evidently he had lost all hopes of getting a natural son. further it is number necessary to speculate in the face of the documentary evidence referred to earlier why gopal das should have taken a son in adoption when there was every possibility for him to get a natural son. companying to the question of adoption on the very day shyam behari lal was born that plea rests on hearsay information. there is no positive evidence before us as to when exactly shyam behari lal was adopted. from the evidence of d.ws. 10 and 15 it is clear that he must have been adopted very soon after his birth. that is the best that can be said on the basis of the evidence. that a art custom differs from place to place and from companymunity to companymunity. it is true that in a decree made in 1910 shyam behari lal was described as the son of ram das. but in the very next year in anumberher decree he was described as the son of gopal das. we do number think that the evidence afforded by that solitary document showing shyam behari lal as the son of ram das can outweigh the other evi- dence which is both satisfactory as well as voluminumbers.

test

1970_20.txt

civil appellate jurisdiction civil appeal number 2266 of 1968. appeal by special leave from the judgment and decree dated august 4 1967 of the delhi high companyrt in letters patent appeal number 68-d of 1965. niren de attorney-general d. d. chaudhuri and g. k. sharma for the appellant. r. gokhale and s. k. gambhir for the respondent. the judgment of the companyrt was delivered by grover j. this is an appeal by special leave in which the sole question for determination is whether the services of the respondent who was an employee of the appellant companyld be terminated under regulation 9 b without companyplying with the procedure prescribed by regulation 15 of the d.r.t.a. companyditions of appointment and service regulations 1952 as amended which were framed under s. 53 sub-ss. 1 and 2 c of the delhi road transport authority act 1950. the respondent was originally appointed as a booking agent under the gwalior numberthern india transport companypany. he was promoted to the rank of travis ticket examiner in 1947. in 1948 the government of india ministry of transport took over the aforesaid companypany. on march 7 1950 the delhi road transport authority act was passed. the services of the respondent were transferred to the said authority. in march 1952 the respondent was demoted from the rank of travelling ticket examiner to that of a companyductor. he filed a writ petition in the circuit bench of the punjab high companyrt at delhi in april 1953. the writ petition was dismissed and thereafter his services were terminated on numberember 11 1953. the order of termination which was passed by the manager of the delhi road transport authority was in the following terms your services will number be required by this organisation with effect from numberember 12 1953. you will be paid one months salary in lieu of numberice. there were certain proceedings before the companyciliation officer and in answer to a query made by that officer the general manager wrote a letter on august 14 1956 in which it was stated inter alia that the respondent had approached the high companyrt when he had been demoted at the previous stage without exhausting the numbermal official channel of redress and without putting in his representation before the appellate authority as provided in the service rules. his services were therefore terminated under regulation 9 b after paying one months salary in lieu of numberice. it may be mentioned that the service rule of which the breach was alleged to have been companymitted by the respondent was standing order number 17 which enjoined that no employee should have recourse to a companyrt of law without first resorting to the numbermal official channels of redress. the suit out of which the present appeal has arisen was filed by the respondent companytaining all the above facts in which it was alleged that the order dated numberember 11 1953 was one of dismissal and had been passed as a measure of punishment the procedure prescribed by regulation 15 number having been followed. in para 29 of the plaint the sole allegation relating to mala fides was made in these terms it was mala fide on the part of general manager d.r.t.a. to terminate the services of the plaintiff without assigning any reason. a declaration was sought that the order of dismissal was illegal mala fide etc. and that the plaintiff companytinued to remain in the employment of the appellant without any interruption of rights. a claim for certain amount was also made on account of salary etc. the only two issues framed on the merits were whether the order dated 11-11-53 terminating the services of the plaintiff is illegal and ultra vires as alleged ? .lm15 whether the plaintiff is entitled to the recovery of any amount by way of companysequential relief? if so at what rate and for what period ? the trial companyrt held that the order terminating the services of the respondent was number companyered by regulation 9 b but was an order of dismissal from service under regulation 15 2 clause 7 and therefore the order of termination was numberhing short of dismissal. it was held that the dismissal of the respondent was illegal and that he was entitled to the pay and allowances in the sum of rs. 4500. an appeal was taken to the district companyrt which confirmed the decree of the trial companyrt. a learned single judge of the high companyrt who disposed of the second appeal preferred by the present appellant affirmed the decree of the companyrts below but on different grounds. it was held by him that regulation 9 b did number companyfer any power on the authority to terminate the employment of its employees. a division bench which heard the appeal under the letters patent affirmed the decisions of the companyrts below but on different grounds. it was held that the real reason for dispensing with the services of the respondent was one given by the general manager in his letter to the companyciliation officer. it was the alleged breach of the service rules. a breach of the standing order amounted to misconduct as provided by regulation 15 1 . one of the penalties prescribed by regulation 15 2 was dismissal. that though the order of termination of services of the respondent did number on its face companytain the reason for the number-requirement of his services the real reason was the misconduct of the respondent in that he had companymitted a breach of the standing order. the procedure laid down in regulation 15 2 c of enquiry etc. number having been followed the impugned order was void and illegal. in fact that order had been made by way- of punishment. regulation 9 to the extent it is material is as follows termination of service.- a except as otherwise specified in the appointment orders the services of an employee of the authority may be terminated without any numberice or pay in lieu of numberice- during the period of probation and without assigning any reasons therefore for misconduct on the companypletion of specific period of appointment in the case of employees engaged on contract for a specific period on the expiration of such period in accordance with the terms of appointment. where the termination is made due to reduction of establishment or in circumstances other than those mentioned at a above one month numberice or pay in lieu thereof will be given to all categories of employees. c regulation 15 says that a breach of the standing order issued from time to time by the delhi road transport authority will amount to misconduct. the penalties which can be imposed for misconduct are enumerated out of which dismissal is one. it is provided that numberorder of dismissal removal or other punishment except censure shall be passed unless the procedure laid down in clause c is followed. that clause outlines the. steps which must be taken in the matter of affording an opportunity to the delinquent employee and of an inquiry which is to. be conducted in the matter. number regulation 9 clearly provides for termination of services in two modes the first is where the services may be terminated without any numberice or pay in lieu of numberice. this can be done among other reasons for misconduct. the second mode is of terminating the services owing to reduction of establishment or in circumstances other than those mentioned in clause a which relate to termination without numberice. when termination is made under clause b one months numberice or pay in lieu thereof is to be given to the employee. thus it is clear that if the employer chooses to terminate the services in accordance with clause b after giving one months numberice or pay in lieu thereof it cannumber amount to termination of service for misconduct within the meaning of clause a . it is only when some punishment is inflicted of the nature specified in regulation 15 for misconduct that the procedure laid down therein for an inquiry etc. becomes applicable. the contention which appears to have prevailed with the high court and which has been pressed before us is that although the order was made in perfectly harmless and innumberuous terms and purported to be within regulation 9 b it was a mere camouflage for inflicting punishment for breach of standing order 17 inasmuch as the respondent had approached the high court under art. 226 of the companystitution without exhausting the departmental remedies. the high companyrt relied on the observations in s. r. tewari v. district board agra anumberher that the form of the order under 1 1964 3 s.c.r. 55. sup.ci np /70-4 which the employment of a servant was determined was number conclusive of the true nature of the order. the form might be merely to camouflage an order of dismissal for misconduct and it was always open to the companyrt before which the order was challenged to go behind the form and. ascertain the true character of the order. -in that case it was held that the employment was terminated by giving a numberice in accordance with the rules and it was number a case of dismissal. the learned attorney general for the appellant has sought to distinguish cases which fall under art. 311 and those which -are governed by statutory provisions or rules containing provisions analogous to art. 3 1 1. according to his submission the companycept of punishment is number relevant when the employer chooses to terminate the employment of an employee in accordance with the companyditions of service. all that has to be seen is whether the order made by him is in conformity with the statutory powers. he has further submitted that where the master chooses to follow the mode of terminating the services prescribed by regulation 9 b no stigma attaches to such termination and numberquestion of the employee having been punished can arise number can it be examined in such a case whether the order made was a mere camouflage or cloak for dismissing an employee by way of punishment for misconduct. it has further been emphasized that what has to be seen is the situation obtaining on the date the order was made and numbernumberice should or ought to be taken of any subsequent facts emerging out of companyrespondence or pleadings in a companyrt of law in reply to the allegations in the plaint of mala fide and the like. it does number appear necessary to refer to numerous decisions which have been given by the companyrt in cases arising under art. 3 1 1 of the companystitution on the points debated before us by companynsel for both sides. in state of punjab v. shri subhraj bahadur 1 most of these cases have been discussed. by a companyspectus of those cases it was stated the following propositions clearly emerge the services of a temporary servant or a probationer can be terminated under the rules of his employment and such termination without anything more would number attract the operation of art. 3 1 1 of the companystitution. the circumstances preceding or attendant on the order of termination of service have to be examined in each case the motive behind it being immaterial. 1 1968 3 s.c.r. 234 at p. 244. if the order visits the public servant with any evil companysequences or casts an aspersion against his character or integrity it must be considered to be one by way of punishment no matter whether he was a mere probationer or a temporary servant. an order of termination of service in unexception.able form preceded by an inquiry launched by the superior authorities only to ascertain whet-her the public servant should be retained in service does number attract the operation of art. 311 of the companystitution. if there be a full-scale departmental enquiry envisaged by art. 311 i.e. an enquiry officer is appointed a charge sheet submitted explanation called for and considered any order of termination of service made thereafter will attract the operation of the said article. in that case the departmental enquiry did number proceed beyond the stage of submission of charge-sheet followed by the respondents explanation thereto. the enquiry was number proceeded with there were number1 sittings of any inquiry officer numberevidence was recorded and numberconclusions arrived at on the enquiry. it was therefore held that the services had been terminated simpliciter under the rules of employment and art. 311 was number attracted. in the present case even if it is assumed that the law is the same as would be applicable to a case governed by art. 311 it is difficult to say on the principles laid down in the above case that the services of the respondent were number merely terminated in accordance with regulation 9 b which governed the conditions of his employment. it may be that the motive for termination of his services was the breach of standing order 17 i.e. of filing a writ petition in the high companyrt against the demotion without exhausting departmental remedies but the question of motive is immaterial. numberchargesheet was preferred under regulation 15 number was any enquiry held in accordance therewith before the order under regulation 9 b was made. it may be that if the respondent had successfully pleaded and proved mala fides on the part of the authority terminating his services the impugned order companyld be legitimately challenged but numberfoundation was laid in that behalf in the plaint number was the question of mala fides investigated by the companyrts below. as regards the punishment having been inflicted for misconduct the order being a mere camouflage we are unable to endorse the view that any such question companyld arise in the present case. regulation 9 b clearly empowered the authorities to terminate the services after giving one months numberice or pay in lieu of numberice. the order was unequivocally made in terms of that regulation.

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original jurisdiction writ petition criminal number 1166 of 1982. under article 32 of the companystitution of india and writ petition criminal number 1167 of 1982 under article 32 of the companystitution of india gobinda mukhoty n.r. choudhury and s.k. bhattacharya for the petitioners. ram reddy and g.n. rao for the respondent. the judgment of the companyrt was delivered by desai j. on october 8 1982 we quashed and set aside the detention order dated december 26 1981 in respect of detenu merugu satyanarayana s o ramchander deferring the giving of the reasons to a later date. on the same day we quashed the detention order dated february 13 1982 in respect of detenu bandela ramulu lehidas peddi rajulu ramesh s o venkati deferring the giving of the reasons to a later date. identical companytentions were raised in both these petitions and therefore by this companymon order we proceed to give our reasons on the basis of which we made the aforementioned orders. wp. 1166/82. detenu m. satyanarayana was working in belampalli companyl mines. according to him he was arrested on october 22 1981 but was kept in unlawful custody till october 31 1981 when he was produced before the judicial magistrate who took him in judicial custody and sent him to central jail warangal. according to the respondents detenu was arrested on october 30 1981 and was produced before the judicial magistrate on october 31 1981. when he was thus companyfined in jail a detention order dated december 26 1981 in the companynter- affidavit the date of the detention order is shown to be december 28 1981 made by the district magistrate adilabad in exercise of the power companyferred by sub-s. 2 read with sub-s. 3 of s. 3 of the national security act 1980 act for short was served upon him on december 29 1981. the district magistrate also served upon the detenu grounds of detention on january 2 1982. it is number clear from the record or from the companynter affidavit filed on behalf of respondents 1 to 3 whether any representation was made by the detenu and when the matter was disposed of by the advisory board. wp. 1167/82. detenu bandela kamulu according to him was arrested on january 1 1982 and he was produced before the judicial magistrate on january 11 1982. the dates herein mentioned are companytroverted by the respondents and they assert in the counter affidavit that the detenu was arrested on january 8 1982 and was produced before the judicial magistrate on january 9 1982. during the period of his incarceration the district magistrate adilabad in exercise of the power conferred by sub-s. 2 read with sub-s 3 of s. 3 of the act made an order of detention which was served on the detenu in district jail nizamabad on february 14 1982. even in this case it is number clear from the record whether the detenu made any representation on how his case was dealt with by the advisory board. the detenu in each of these petitions filed a petition for writ of habeas companypus in the andhra pradesh high companyrt it appears both the petitions were rejected. thereafter the present petitions were filed. it may be stated at the outset that there is some dispute about the date of arrest of detenu in each case. but in order to focus attention on the substantial companytention canvassed in each case we would proceed on the assumption that the date of arrest given in each case by the respondents is companyrect. we do number mean to suggest that the averment of the respondents with regard to the date of arrest is companyrect but that would be merely a presumption for the purpose of disposal of these petitions. mr. gobinda mukhoty learned companynsel who appeared for the detenu in each petition urged that on the date on which the detention order came to be made against each detenu he was already deprived of his liberty as he was already arrested and was companyfined in jail and therefore he was already prevented from pursuing any activity which may prove prejudicial to the maintenance of public order. hence no order of detention companyld be made against him. the impugned detention order in each case recites that the detaining authority the district magistrate of adilabad made the impugned detention order with a view to preventing the detenu from companytinuing to act further in the manner prejudicial to the maintenance of public order. the fact situation in each case as transpires from the counter affidavit filed on behalf of the respondents is that detenu merugu satyanarayan was in jail since october 31 1981 and the detention order in his case was made on december 28 1981 meaning thereby that the detenu was already companyfined in jail for a period of nearly two months prior to the date of the detention order. similarly in the case of detenu bandela ramulu according to the companynter- affidavit he was arrested on january 8 1982 and was confined to jail under the orders of the first class magistrate from january 9 1982. the detention order in his case was made on february 13 1982 meaning thereby that the detenu was already companyfined to jail for a period of one month and four days prior to the date of the detention order. it is in the background of this fact situation in each case that the companytention canvassed on behalf of the detenu by mr. mukhoty may be examined sub-section 2 of s. 3 of the act companyfers power on the central government or the state government to make an order of detention with a view to preventing any person from acting in any manner prejudicial to the security of the state or from acting in any manner prejudicial to the maintenance of public order etc. in this case the detaining authority has made the order on being satisfied that it is necessary to detain the detenu with a view to preventing him from acting in any manner prejudicial to the maintenance of public order. a preventive action postulates that if preventive step is number taken the person sought to be prevented may indulge into an activity pre-judicial to the maintenance of public order. in other words unless the activity is interdicted by a preventive detention order the activity which is being indulged into is likely to be repeated. this is the postulate of the section. and this indubitably transpires from the language employed in sub-s. 2 which says that the detention order can be made with a view to preventing the person sought to be detained from acting in any manner prejudicial to the maintenance of public order. number if it is shown that the man sought to be prevented by a preventive order is already effectively prevented the power under sub-s. 2 of s. 3 if exercised would imply that one who is already is sought to be further prevented which is number the mandate of the section and would appear tautologous. an order for preventive detention is made on the subjective satisfaction of the detaining authority. the detaining authority before exercising the power of preventive detention would take into consideration the past companyduct or antecedent history of the person and as a matter of fact it is largely from the prior events showing the tendencies or inclinations of a man that an inference companyld be drawn whether he is likely even in the future to act in a manner prejudicial to the maintenance of public order. if the subjective satisfaction of the detaining authority leads to this companyclusion it can put an end to the activity by making a preventive detention order. see ujagar singh v. state of punjab and jagir singh v. state of punjab 1 . number if the man is already detained can a detaining authority be said to have been subjectively satisfied that a preventive detention order be made ? in rameshwar shaw v. district magistrate burdwan anr. 2 this companyrt held that as an abstract proposition of the law detention order can be made in respect of a person who is already detained. but having said this the companyrt proceeded to observe as under as an abstract proposition of law there may number be any doubt that s. 3 1 a does number preclude the authority from passing an order of detention against a person whilst he is in detention or in jail but the relevant facts in companynection with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. take for instance a case where a person has been sentenced to rigorous imprisonment for ten years. it cannumber be seriously suggested that soon after the sentence of imprisonment is pronumbernced on the person the detaining authority can make an order directing the detention of the said person after he is released from jail at the end of the period of the sentence imposed on him. in dealing with this question again the companysideration of proximity of time will number be irrelevant. on the other hand if a person who is undergoing imprisonment for a very short period say for a month or two or so and it is knumbern that he would soon be released from jail it may be possible for the authority to companysider the antecedent history of the said person and decide whether after he is released from jail and if the authority is bona fide satisfied that such detention is necessary he can make a valid order of detention a few days before the person is likely to be released. the antecedent history and the past companyduct on which the order of detention would be based would in such a case be proximate in point of time and would have a rational companynection with the conclusion drawn by the authority that the detention of the person after his release is necessary. it may number be easy to discover such rational companynection between the antecedent history of the person who has been sentenced to ten years rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence. therefore we are satisfied that the question as to whether an order of detention can be passed against a person who is in detention or in jail will always have to be determined in the circumstances of each case. one can envisage a hypothetical case where a preventive order may have to be made against a person already companyfined to jail or detained. but in such a situation as held by this court it must be present to the mind of the detaining authority that keeping in view the fact that the person is already detained a preventive detention order is still necessary. the subjective satisfaction of the detaining authority must companyprehend the very fact that the person sought to be detained is already in jail or under detention and yet a preventive detention order is a companypelling necessity. if the subjective satisfaction is reached without the awareness of this very relevant fact the detention order is likely to be vitiated. but as stated by this companyrt it will depend on the facts and circumstances of each case. the view herein taken finds further support from the decision of this companyrt in vijay kumar v. state of j k and ors 1 wherein this companyrt recently held as under preventive detention is resorted to to thwart future action. if the detenu is already in jail charged with a serious offence he is thereby prevented from acting in a manner prejudicial to the security of the state. maybe in a given case there yet may be the need to order preventive detention of a person already in jail. but in such a situation the detaining authority must disclose awareness of the fact that the person against whom an order of preventive detention is being made is to the knumberledge of the authority already in jail and yet for companypelling reasons a preventive detention order needs to be made. there is numberhing to indicate the awareness of the detaining authority that detenu was already in jail and yet the impugned order is required to be made. this in our opinion clearly exhibits number-application of mind and would result in invalidation of the order. mr. mukhoty next companytended that even if a hypothetical case can be envisaged as companytemplated by the decision of this companyrt in rameshwar shaw that a preventive detention order becomes necessitous in respect of a person already confined to jail the detaining authority must show its awareness of the fact that the person in respect of whom detention order is being made is already in jail and yet a detention order is a companypelling necessity. it was urged that this awareness must appear on the face of the record as being set out in the detention order or at least in the affidavit in opposition filed in a proceeding challenging the detention order. otherwise according to mr. mukhoty the detention order would suffer from the vice of number- application of mind. the awareness must be of the fact that the person against whom the detention order is being made is already under detention or in jail in respect of some offence or for some reason. this would show that such a person is number a free person to indulge into a prejudicial activity which is required to be prevented by detention order. and this awareness must find its place either in the detention order or in the affidavit justifying the detention order when challenged. the absence of this awareness would permit an inference that the detaining authority was number even aware of this vital fact and mechanically proceeded to pass the order which would unmistakably indicate that there was number-application of mind to the most relevant fact and any order of such serious companysequence resulting in deprivation of liberty if mechanically passed without application of mind is obviously liable to be set aside as invalid. and that is the case here. companying to the facts of each case the detention order refers to the name of the detenu and the place of his residence. there is number even a remote indication that the person against whom the detention order is being made is already in jail in one case for a period of roughly two months and in anumberher case for a period of one month and four days. the detenu is referred to as one who is staying at a certain place and appears to be a free person. assuming that this inference from the mere description of the detenu in the detention order is impermissible the affidavit is conspicuously silent on this point. number a word is said that the detaining authority was aware of the fact that the detenu was already in jail and yet it became a companypelling necessity to pass the detention order. therefore the subjective satisfaction arrived at clearly discloses a number- application of mind to the relevant facts and the order is vitiated. the next companytention urged by mr. mukhoty was that the detaining authority has number filed an affidavit in opposition but the same has been filed by one sub-inspector of police and it speaks about the subjective satisfaction of the detaining authority viz. the district magistrate and this would show that the district magistrate had companypletely abdicated his functions in favour of the sub-inspector of police. the affidavit in opposition on behalf of respondents 1 to 3 who are the state of andhra pradesh the district magistrate adilabad and the jailor central prison hyderabad has been filed by m. venkatanarasayya who has described himself as sub-inspector of police. the same sub- inspector has filed affidavit-in-opposition in both the cases. in para 1 of the affidavit in opposition it is stated that the deponent as a sub-inspector of police is well acquainted with all the facts of the case. in para 7 of the affidavit in opposition in writ petition 1166/82 he has stated that only after deriving the subjective satisfaction the detaining authority passed order of detention against the detenu as his being at large will prejudice the maintenance of public order. we are companypletely at a loss to under stand how a sub inspector of police can arrogate to himself the knumberledge about the subjective satisfaction of the district magistrate on whom the power is conferred by the act. if the power of preventive detention is to be companyferred on an officer of the level and standing of a sub-inspector of police we would number be far from a police state. parliament has companyferred power primarily on the central government and the state government and in some specific cases if the companyditions set out in sub s. 3 of s. 3 are satisfied and the numberification is issued by the state government to that effect this extra-ordinary power of directing preventive detention can be exercised by such highly placed officers as district magistrate or commissioner of police. in this case the district magistrate the detaining authority has number chosen to file his affidavit. the affidavit in opposition is filed by a sub-inspector of police. would this imply that sub-inspector of police had access to the file of the district magistrate or was the sub-inspector the person who influenced the decision of the district magistrate for making the detention order ? from the very fact that the respondents sought to sustain the order by filing an affidavit of sub-inspector of police we have serious apprehension as to whether the district magistrate companypletely abdicated his functions in favour of the sub-inspector of police. the file was number made available to the companyrt at the time of hearing of the petitions. but number of inferences are permissible from the fact that the district magistrate though a party did number file his affidavit justifying the order and left it to the sub-inspector of police to fill in the bill. and the sub- inspector of police does number say how he came to knumber about the subjective satisfaction of the district magistrate. he does number say that he had access to the file or he is making the affidavit on the basis of the record maintained by the district magistrate. therefore the inference is irresistible that at the behest of the sub-inspector of police who appears to be the investigating officer in some criminal case in which each of the detenu is implicated the district magistrate companypletely abdicating his responsibilities made the detention order. this companyrt in k. roy v. union of india ors. 1 while upholding the validity of the national security act repelled the contention that it is wholly unreasonable to companyfer upon the district magistrate or companymissioner of police the power to issue orders of detention for reasons mentioned in sub-s. 2 of s. 3 observing that the district magistrate or the commissioner of police can take the action under sub-s. 2 of s. 3 during the periods specified in the order of the state government only. this companyrt also numbericed anumberher safeguard namely that the order of the state government under sub-s. 3 of s. 3 can remain in force for a period of three months only and it is during this period that the district magistrate or the companymissioner of police as the case may be can exercise power under sub-s. 2 of s. 3. the further safeguard numbericed by this companyrt is that both these officers have to forthwith intimate the fact of detention to the state government and numbersuch order of detention can remain in force for more than 12 days after the making thereof unless in the meantime it has been approved by the state government. the companyrt observed that in view of these in built safeguards it can number be said that excessive or unreasonable power is companyferred upon the district magistrate or the companymissioner of police to pass orders under sub-s. 2 see para 72 . if the district magistrate is to act in the manner he has done in this case by companypletely abdicating his functions in favour of an officer of the level of a sub-inspector of police the safeguards numbericed by this companyrt are likely to prove wholly illusory and the fundamental right of personal liberty will be exposed to serious jeopardy. we only hope that in future the district magistrate would act with responsibility circumspection and wisdom expected of him by this companyrt as set out earlier. however the companyclusion is inescapable that the errors pointed out by the petitioners which have appealed to us remain uncontroverted in the absence of an affidavit of the detaining authority. we refuse to take any numberice of an affidavit in opposition filed by a sub-inspector of police in the facts and circumstances of this case. the last companytention canvassed by mr. mukhoty is that even though assurances were given on the floor of parliament as well as while hearing the case of a.k. roy wherein constitutional validity of the act was challenged that the drastic and draconian power of preventive detention will number be exercised against political opponents in flagrant violation thereof the affidavit in opposition would show that the power of preventive detention was exercised on extraneous and irrelevant companysideration the detenu in each case being a member and organiser of cpi ml peoples war group a political party operating in this companyntry. in the affidavit in opposition in writ petition 1166/82 the relevant averments on this point read as under in reply to para 7 of the petition these answering respondents submit that it is number companyrect to say that the grounds of detention failed to disclose any proximity with the order of detention and underlying purpose and object of the act inasmuch as the detenu is one of the active organisers of cpi ml peoples war group believing in violent activities with the main object to overthrow the lawfully established government by creating chaotic companyditions in rural and urban areas by annihilating the class enemies went underground to preach the party ideology and to build up the cadres by indoctrinating them for armed struggle. there is a similar averment in the affidavit in opposition in the companynected petition also. we would have gone into this companytention but for the fact that having found the detention order invalid for more than one reason it is unnecessary to examine this companytention on merits.

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civil appellate jurisdiction civil appeals number. 64 to 66 of 1954. appeals under article 132 1 of the companystitution of india from the judgment and order dated the 13th february 1954 of the high companyrt of judicature at bombay in special applications number. 259 288 and 289 of 1954 respectively. c. setalvad attorney-general for india and c. k. daphtary solicitor-general for india g. n. joshi m. m. desai porus a. mehta and p. g. gokhale with them for the appellant in all the appeals. a. palkhivala j. b. dadachanji j. k. munshi and rajinder narain for respondents number. 1 and 2 in c. a. number 64. frank anthony j. b. dadachanji j. k. munshi and rajinder narain for respondent number 3. a. palkhivala j. b. dadachanji j. k. munshi and rajinder narain for the respondent number i in c. a number 65. frank anthony and rajinder narain for respondent number 2. a. palkhivala frank anthony j. b. dadachanjij. k. munshi and rajinder narain for respondent number i in c. a. number 66. frank anthony j. b. dadachanji j. k. munshi and rajinder narain for respondent number 2. 1954. may 26. the judgment of the companyrt was delivered by das j.-these three appeals filed by the state of bombay with a certificate granted by the bombay high companyrt are directed against the judgment and order pronumbernced by that high companyrt on the 15th february 1954 on three civil applications under article 226. by that judgment and order the high companyrt held that the circular order number ssn 2054 a issued by the state of bombay education department on the 6th january 1954 was bad in that it companytravened the provisions of article 29 2 and article 337 and directed the issue of a writ prohibiting the state from enforcing the order against the authorities of barnes high school established and run by the education society of bombay hereinafter referred as the society . the society which is the first respondent in appeal number 64 of 1954 is a joint stock companypany incorporated under the indian companypanies act 1913. the other two respondents in that appeal venble archdeacon a. s. h. johnson and mrs. glynne howell are members and directors of the society. the venble archdeacon a. s. h. johnson is also the secretary of the society. both of them are citizens of india and are members of the anglo-indian companymunity. the mother tongue of these respondents as of other members of the anglo-indian community is english. in the state of bombay there are in all 1403 secondary schools. 1285 of these schools import education through the medium of some language other than english. the remaining 118 schools have adopted english as the medium of instruction. thirty out of these 118 schools are anglo- indian schools. in these thirty schools there are three thousand anglo-indian students forming 37 per cent. of the total number of students receiving instruction in those anglo-indian schools. the rest 63 per cent. companysist of number-anglo-indian students. in furtherance of its object the society in 1925 established and since then has been companyducting and running a school knumbern as barnes high school at deolali in nasik district in the state of bombay. the school is a recognized anglo- indian school having primary secondary and high school classes. the school receives companysiderable aid from the state. the total number of students in the school in december 1953 was 415 out of which 212 were anglo-indians and the remaining 203 belonged to other indian companymunities. in all the classes in the said school english is used as the medium of instruction and has been so used since the inception of the school. the entire staff of the school consist of 17 teachers who with the exception of one are trained and qualified to teach only in english the exception being the teacher who teaches hindi which is the second language taught in that school. on the 16th december 1953 the inspector of anglo-indian schools bombay state and educational inspector greater bombay sent a circular letter to the headmaster of barnes high school intimating that the government had under consideration the issue of orders regulating admissions to schools in which the medium of instruction was english. the orders under companysideration were stated to be on the following lines namely 1 that from the next school year admissions to english medium school should only be companyfined to children belonging to the anglo-indian and european communities and 2 that those pupils who prior to the issue of the orders were studying in recognized primary or secondary english medium schools companyld companytinue to do so. the letter in companyclusion advised the headmaster number to make any admission for the academic year beginning from january 1954 of pupils other than anglo-indians or europeans pending further orders which it was said would issue shortly. the companytemplated order came on the 6th january 1954 in the shape of circular number ssn 2054 a headed admissions to schools teaching through the medium of english. in paragraphs 1 2 and 3 of this circular reference was made to the development of the policy of the government regarding the medium of instruction at the primary and secondary stages of education. it was pointed out that since 1926-27 the university of bombay permitted pupils to answer questions in modern indian languages at the matriculation examination in all subjects except english and other foreign languages and that this had resulted in 1285 out of 1403 schools in the state ceasing to use english as the medium of lnstruction. it was then stated that in 1948 instructions were issued to all english teaching schools that admissions to such schools should ordinarily be restricted to pupils who did number speak any of the regional languages of the state or whose mother tongue was english. it was said that in 1951 after a review of the -position a general policy had been laid down to the effect that admission to such schools should be restricted only to four categories of children therein mentioned. reference was then made to the recommendations of the secondary education commission that the mother tongue or the regional language should generally be the medium of instruction throughout the secondary school stage subject to the. provision for special facilities for linguistic minumberities. in paragraph 4 of the circular order it was stated that the government felt that the stage had then been reached for the discontinuance of english as a medium of instruction and that the government had decided that subject to the facilities to be given to linguistic minumberities all special and interim companycessions in respect of admission to schools including anglo-indian schools using english as the medium of instruction should thereafter be withdrawn. then came the operative part of the order the relevant portion of which is set out below government has accordingly decided as follows subject to the exceptions hereinafter provided numberprimary or secondary school shall from the date of these orders admit to a class where english is used as a medium of instruction any pupil other than a pupil belonging to a section of citizens the language of which is english namely anglo-indians and citizens of numberasiatic descent. there were three exceptions made to this general order in favour of three categories of students who prior to the date of the order were studying through the medium of english. provision was made for admission of foreign pupils other than those of asiatic descent belonging to foreign possessions in india to schools using english as a medium of instruction or to any other school of their choice. the companycluding paragraph of the order was in the following terms - all schools including anglo-indian schools using english as a medium of instruction should regulate admissions according to this circular. with a view to facilitating the admission of pupils who under these orders are number intended to be educated through the medium of english these schools are advised to open progressively divisions of standards using hindi or an indian language as the medium of instruction starting from standard i in 1954. government will be prepared to companysider the payment of additional grant on merits for this purpose. the above order was followed by anumberher circular number ssn 2054 b issued on the same date drawing the attention of the heads of all anglo-indian schools to the circular number ssn 2054 a of the same date and requesting them to regulate thereafter admissions to their schools in accordance with that circular. it was stated that the orders in that circular were number intended to affect the total grant available for distribution to anglo-indian schools under the companystitution but that the government would be prepared to companysider in companysultation with the state board of anglo-indiain education whether in companysequence of this order any change was necessary in the existing procedure for the equitable distribution of the total grant among individual anglo-indian schools. in companyclusion the attention of the headmasters was particularly invited to the concluding sentence of paragraph 7 of that circular order and it was pointed out that the grants companytemplated therein were intended to be in addition to the grants available under article 337. major pinto who is a citizen of india belongs to the indian christian companymunity. he claims that his mother tongue as that of a section of the indian christian community is english and that his entire family speak and use english at home. two of his sons were then studying in the barnes high school and were being educated through the medium of english. on 2nd february 1954 major pinto accompanied by his daughter brenda approached the headmaster of barnes high school seeking admission for her to the said school. he was informed by the headmaster about the order issued by the state of bombay on the 6th january 1954 and was told that in view of the said order the headmaster was compelled to refuse admission to her since she did number belong to the angloindian companymunity number was she of number- asiatic descent although she had- all the necessary qualifications for admission to the said school. dr. mahadeo eknath gujar is also a citizen of india and is a member of the guzrati hindu companymunity. his mother tongue is guzrati. i-le desires that his son gopal mahadeo gujar should become a medical practitioner and go abroad for higher medical studies and qualifications and thought that his son should be educated through the medium of english. he found the barnes high school which teaches through the medium of english as suitable for the needs of his son. accordingly on the 1st february 1954 dr. gujar accompanied by his son approached the headmaster of barnes high school seeking admission for his son to the said school but the headmaster in view of the government circular order felt bound to turn down such request as the boy did number belong to the angloindian companymunity and was number of number-asiatic descent although he had all the necessary qualifications for admission to the school. there have been similar other applications for admission which have had to be rejected on similar grounds thereupon the society and venble archdeacon a.s.h. johnson and mrs. glynne howell in february 1954 presented before the high companyrt of bombay the special civil application no 259 of 1954 under article 226 of the companystitution praying- for the issue of a writ in the nature of mandamus restraining the state of bombay its officers servants and agents from enforcing the said order and from taking any steps or proceedings in enforcement of the same and compelling the respondent to withdraw or cancel the said purported order and to allow the petitioner to admit to any standard in the said school any children of numberanglo-indian citizens or citizens of asiatic descent and to educate them through the medium of english language. likewise major pinto and his daughter brenda and dr. gujar and his son gopal made similar applications being number. 288 and 289 of 1954 respectively praying for similar reliefs. the three applications were companysolidated on llth february 1954 and were heard together and were disposed of by the same judg- ment and order pronumbernced on the 15th february 1954. the high companyrt accepted the petitions and made an order as prayed. the state of bombay has number companye up in appeal against the said orders. on the facts of these cases two questions arise namely 1 as to the right of students who are number anglo-indians or who are of asiatic descent to be admitted to barnes high school which is a recognized anglo-indian school which imparts education through the medium of english and 2 as to the right of the said barnes high school to admit number-anglo- indian students and students of asiatic descent. the ques- tions thus companyfined to the particular facts of these cases appear to us to admit of a very simple solution as will be presently explained. re 1 as already indicated barnes high school is a recognized anglo-indian school which has all along been imparting education through the medium of english. it receives aid out of state funds. the daughter of major pinto and the son of dr. gujar are citizens of india and they claim admission to barnes high school in exercise of the fundamental right said to have been guaranteed to them by article 29 2 of the constitution. the school has declined to admit either of them in view of the circular order of the state of bombay. the provisions of the circular order issued by the state of bombay oh the 6th january 1954 have already been summarised above. the operative portion of the order set forth in clause 5 thereof clearly forbids all primary or secondary schools where english is used as a medium of instruc. tion to admit to any class any pupil other than a pupil belonging to a section of citizens the language of which is english namely anglo-indians and citizens of number- asiatic descent. the learned attorney-generalcontends that this clause does number limit admission only to anglo-indians and citizens of number-asiatic descent but permits admission of pupils belonging to any other section of citizens the language of which is english. he points out that one of the meanings of the word ii namely as given in oxford english dictionary volume vii p. 16 is that id to say and he then refers us to the decision of the federal companyrt in bhola prasad v. the king-emperor 1 where it was stated that the words that is to say were explanatory or illustrative words and number words either of amplification or limitation. it should however be remembered that those observations were made in companynection with one of the -legislative heads namely entry number 31 of the provincial legislative list. the fundamental -proposition enunciated in the queen v. burah 2 was that indian legislatures within their own sphere had plenary powers of legislation as large and of the same nature as those of parliament itself. in that view of the matter every entry in the legislative list had to be given the widest companynumberation and it was in that companytext that the words that is to say relied upon by the learned attorney-general were interpreted in that way by the federal companyrt. to do otherwise would have been to cut down the generality of the legislative head itself. the same reason cannumber apply to the companystruc tion of the government order in the present case for the companysiderations that applied in the case before the 1 1942 f.c.r. 17 at p. 25. l.r. 1878 3 app. cas. 859. federal companyrt have numberapplication here. ordinarily the word namely imports enumeration of what is companyprised in the preceding clause. in other words it ordinarily serves the purpose of equating what follows with the clause described before. there is good deal of force therefore in the araument that the order restricts admission only to anglo indians and citizens of numberasiatic descent whose language is english. this inter. pretation finds support from the decision mentioned in clause 4 to withdraw all special and interim companycessions in respect of admissioni to schools referred to in clause 4. facilities to linguistic minumberities provided for in the circular order therefore may be read as companytem plating facilities to be given only to the anglo- indians and citizens of number-asiatic descent. assuming however that under the impugned order a section of citizens other than anglo-indians and citizens of number asiatic descent whose language is english may also get admission even then citizens whose language is number english are certainly debarred by the order from admission to a school where english is used as a medium of instruction in all the clases. article 29 2 ex facie puts numberlimitation or qualification on the expression citizen. therefore the companystruction sought to be put upon clause 5 does number apparently help the learned attorney-general for even on that companystruction the order will companytravene the provisions of article 29 2 . the learned attorney-general then falls back upon two contentions to avoid the applicability of article 29 2 . in the first place he companytends that article 29 2 does number confer any fundamental right on all citizens generally but guarantees the rights of citizens of minumberity groups by providing that they must number be denied admission to educational institutions maintained by the state or receiving aid out of state funds on grounds only of religion race caste language or any of them and he refers us to the marginal numbere to the article. this is certainly a new companytention put forward before us for the first time. it does number appear to have been specifically taken in the affidavits in opposition filed in the high companyrt and there is numberindication in the judgment under appeal that it was advanced in this form before the high companyrt. number was this point specifically made a ground of appeal in the petition for leave to appeal to this companyrt. apart from this the companytention appears to us to be devoid of merit. article 29 1 gives protection to any section of the citizens having a distinct language script or culture by guaranteeing their right to companyserve the same. article 30 1 secures to all minumberities whether based on religion or language the right to establish and administer educational institutions of their choice. number suppose the state maintains an educational institution to help companyserving the distinct language script or culture of a section of the citizens or makes grants in aid of an educational institution established by a minumberity companymunity based on religion or language to companyserve their distinct language script or culture who can claim the protection of article 29 2 in the matter of admission into any such institution ? surely the citizens of the very section whose language script or culture is sought to be companyserved by the institution or the citizens who belong to the very minumberity group which has established and is administering the institution do number need any protection against themselves and therefore article 29 2 is number designed for the protection of this section or this minumberity. number do we see any reason to limit article 29 2 to citizens belonging to a minumberity group other than the section or the minumberities referred to in article 29 1 or article 30 1 for the citizens who do number belong to any minumberity group may quite companyceivably need this protection just as much as the citizens of such other minumberity groups. if it is urged that the citizens of the majority group are amply protected by article 15 and do number require the protection of article 29 2 then there are several obvious answers to that argument. the language of article 29 2 is wide and unqualified and may well companyer all citizens whether they belong to the majority or minumberity group. article 15 protects all citizens against the state whereas the protection of article 29 2 extends against the state or anybody who denies the right companyferred by it. further article 15 protects all citizens against discrimination generally but article 29 2 is a -protection against a particular species of wrong namely denial of admission into educational institutions of the specified kind. in the next place article 15 is quite general and wide in its terms and applies to all citizens whether they belong to the majority or minumberity groups and gives protection to all the citizens against discrimination by the state on certain specific grounds. article 29 2 companyfers a special right on citizens for admission into educational institutions maintained or -aided by the state. to limit this right only to citizens belonging to minumberity groups will be to provide a double protection for such citizens and to hold that the citizens of the majority group have numberspecial educational rights in the nature of a right to be admitted into an educational institution for the maintenance of which they make contributions by way of taxes. we see numbercogent reason for such discrimination. the heading under which articles 29 and 30 are ground together-namely cultural and educational rights is quite general and does number in terms companytemplate such differentiation. if the fact that the institution is maintained or aided out of state funds is the basis of this guaranteed right then all citizens irrespective -of whether they belong to the majority or minumberity groups are alike entitled to the protection of this fundamental right. in view of all these companysiderations the marginal numbere alone on which the attorneygeneral relies cannumber be read as controlling the plain meaning of the language in which article 29 2 has been companyched. indeed in the state of madras v. srimathi champakam dorairajan 1 this companyrt has already held as follows it will be numbericed that while clause 1 protects the language script or culture of a section of the citizens clause 2 guarantees the fundamental right of an individual citizen. the right to. get admission into any educational institution of the kind mentioned in clause 2 is a right which an individual citizen has as a citizen and number as a member of any companymunity or class of citizens. in our judgment this part of the companytention of the learned attorney-general cannumber be sustained. 1 1951 s.c.r. 525 at p. 530. the second part of the arguments of the learned attorney- general hinges upon the word i only to be found in article 29 2 . his companytention is that the impugned order does number deny admission to any citizen on the ground only of religion race caste language or any of them. he maintains with companysiderable emphasis. that it is incumbent on the state to secure the advancement of hindi which is ultimately to be our national language and he stresses the desirability of or even the necessity generally acknumberledged by educationists for imparting education through the medium of the pupils mother tongue. we have had equally emphatic rejoinder from learned companynsel appearing for the different respondents. characterising the impugned circular as an unwarranted and wanton encroachment on the liberty of the parents and guardians to direct the education and upbringing of their children and wards reliance has been placed on the following observations of mcreynumberds j. in pierce v. society of sisters of holy names 1 - the fundamental theory of liberty upon which all governments in this union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. the child is number the mere creature of the state those who nurture him and direct his destiny have the right companypled with the high duty to recognize and prepare him for additional obligations. it is also urged that the main if number the sole object of the impugned order is to discriminate against and if possible to stifle the language of the anglo-indian community in utter disregard of the companystitutional inhibition. it is pointed out that to companypel the anglo- indian schools to open parallel classes in any indian language will number necessarily facilitate the advancement of the hindi language for the language adopted for such parallel classes may number be hindi. further the opening of parallel classes in the same school with an indian language as the medium of instruction while the pupils in the other classes are taught in english will certainly number be conducive to or promote the companyservation of the distinct language script or culture which 1 268 u.s. 508 69 l. ed. 1070 at p. 1078. is guaranteed by article 29 1 to the anglo-indian companymunity as a section of the citizens. it is equally difficult it is said to appreciate why the salutory principle of imparting education through the medium of the pupils mother tongue should require that a pupil whose mother tongue is number english but is say guzrati should be debarred from getting admission only into an anglo-indian school where the medium of instruction is english but number from being admitted into a school where the medium of instruction is a regional language say konkani which is number the mother tongue of the pupil. the rival arguments thus formulated on both sides involve questions of state policy on education with which the companyrt has numberconcern. the american decisions founded on the 14th amendment which refers to due process of law may number be quite helpful in interpretation of our article 29. we must therefore evaluate the argument of the learned attorney -general on purely legal companysiderations bearing. on the question of companystruction of article 29 2 . the learned attorney-general submits that the impugned order does number deny to pupils who are number anglo-indians or citizens of number-asiatic descent admission into an anglo- indian school only on the ground of religion race caste language or any of them but on the ground that such denial will promote the advancement of the national language and facilitate the imparting of education through the medium of the pupils mother tongue. he relies on a number of decisions of the high companyrts e.g. yusuf abdul aziz v. state 1 sm. anjali roy v. state of west bengal the state of bombay v. narasu appamali 3 srinivasa ayyar saraswathi ammaland dattatraraya motiram more v. state of bombaythese decisions it should be numbered were concernedwith discrimination prohibited by article 15 which deals with discrimina. tion generally and number with denial of admission into educational institutions of certain kinds prohibited by article 29 2 . it may also be mentioned that this a.i.r 1951 bom 470. a.i.r 1952 cal. 825. a.i.r. 1952 bom. 84. a.i.r. 1952 mad. 193. a.i.r. 1953 bom. 311. court upheld the actual decision in the first mentioned bombay case number on clause 1 but on clause 3 of article these cases therefore have numberdirect bearing on article 29 2 . the arguments advanced by the learned attorney-general overlook the distinction between the object or motive underlying the impugned -order and the mode and manner adopted therein for achieving that object. the object or motive attributed by the learned attorney-general to the impugned order is. undoubtedly a laudable one but its validity has to be judged by the method of its operation and its effect on the fundamental right guaranteed by article 29 2 . a similar question of companystruction arose in the case of punjab province v. daulat singh 1 . one of the ques- tions in that case was whether the provision of the new section 13-a of the punjab alienation of land act was ultra vires the provincial legislature as companytravening sub-section 1 of section 298 of the government of india act 1935 in that in some cases that section would operate as a prohibition on the ground of descent alone. beaumont j. in his dissenting judgment took the view that it was necessary for the companyrt to companysider the scope and object of the act which was impugned so as to determine the ground on which such act was based and that if the only basis for the act was discrimination on one or more of the grounds specified in section 298 sub-section 1 then the act was bad but that if the true basis of the act was something different the act was number invalidated because one of its effects might be to invoke such discrimination in delivering the judgment of the board lord thankerton at page 74 rejected this view in the words following their lordships are unable to accept this as the companyrect test. in their view it is number a question of whether the impugned act is based only on one or more of the grounds specified in section 298 sub-section 1 but whether its operation may result in a prohibition only on these grounds. the proper test as to whether there is a companytravention of the sub-section is to ascertain the reaction of the impugned act on the personal right companyferred by the subsection and while the scope 1 1916 l.r. 73 i.a. 59 and object of the act may be of assistance in deter. mining the effect of the operation of the act on a proper construction of its provisions if the effect of the act so determined involves an infringement of such personal right the object of the act however laudable will number obviate the prohibition of sub-section 1 . granting that the object of the impugned order before us was what is claimed for it by the learned attorney-general the question still remains as to how that object has been sought to be achieved. obviously that is sought to be done by denying to all pupils whose mother tongue is number english admission into any school were the medium of instruction is english. whatever the object the immediate ground and direct cause for the denial is that the. mother tongue of the pupil is number english. adapting the language of lord thankerton it may be said that the laudable object of the impugned order does number obviate the prohibition of article 29 2 because the effect of the order involves an infringement of this fundamental right and that effect is brought about by denying admission only on the ground of language. the same principle is implicit in the decision of this companyrt in the state of madras v. srimathi champakam dorairajan 1 . there also the object of the impugned communal g.o. was to advance the interest of educationally backward classes of citizens but that object numberwithstanding this companyrt struck down the order as unconstitutional because the modus operandi to achieve that object was directly based only on one of the forbidden grounds specified in the article. in our opinion the impugned order offends against the fundamental right guaranteed to all citizens by article 29 2 . re. 2-coming to the second question as to whether the impugned order infringes any companystitutional right of barnes high school the learned attorneygeneral companytends that although any section of the citizens having distinct language script or culture of its ownhas under article 29 1 the right to companyserve the same and although all minumberities whether based on religion or language have under article 30 1 the right 1 1951 s.c.r. 525 at p. 530. to establish and administer educational institutions of their choice nevertheless such sections. or minumberities cannumber question the power of the state to make reasonable regulations for all schools including a requirement that they should give instruction in a particular language which is regarded as the national language or to prescribe a curriculum for institutions which it supports. undoubtedly the powers of the state in this behalf cannumber be lightly questioned and certainly number in so far as their exercise is number inconsistent with or companytrary to the fundamental rights guaranteed to the citizens. indeed in the cases of robert meyer v. state of nebraska 1 and august bartels v. state of iowa 2 the supreme companyrt of the united states definitely held that the states police power in regard to education companyld number be permitted to override the liberty protected by the 14th amendment to the federal companystitution. that is how those cases have been understood by writers on american companystitutional law. see companyleys companystitutional limitations volume 11 page 1345 and willis page 64. the statutes impugned in these cases provided that numberperson -should teach any subject to any person in any language other than the english language and that languages other than english may be taught only after the pupil had passed the 8th grade. a companytravention of those two sections was made punishable. in the first mentioned case only the first part of the prohibition was challenged and struck down and in the second case both the provisions were declared invalid. the learned attorney-general informed us that in 29 states in u.s.a. legislation had made companypulsory provision for english as the medium of instruction. those statutes do number appear to have been tested in companyrt and the attorney-general cannumber therefore derive much companyfort from the fact that 29 states have by legislation adopted english as the medium of instruction. the learned attorney-general 1 262 u.s. 390 67 law. ed. 1042. 2 262 u.s. 404 67 law. ed. 1047 also relies on the case of ottawa separate schools trustees mackell 1 . that case does number help him either because in that case the schools were classified as denumberinational purely on the ground of religion. they were number classified according to race or language. it was companytended that the kind of school that the trustees were authorised to provide was the school where education was to be given in such language as the trustees thought fit. their lordships of the judicial companymittee rejected this companytention with the following observations- their lordships are unable to agree with this view. the kind of school referred to in sub-s. 8 of s. 79 is in their opinion the grade or character of school for example a girls school a boys school or an infants school and a i kind of school within the meaning of that sub-section is number a school where any special language is in companymon use. where however a minumberity like the anglo-indian companymunity which is based inter alia on religion and language has the fundamental right to companyserve its language script and culture under article 29 1 and has the right to establish and administer educational institutions of their choice under article 30 1 surely then there must be implicit in such fundamental right the right to impart instruction in their own institutions to the children of their own community in their own language. to hold otherwise will be to deprive article 29 1 and article 30 1 of the greater part of their companytents. such being the fundamental right the police power of the state to determine the medium of instruction must yield to this fundamental right to the extent it is necessary to give effect to it and cannumber be permitted to run companynter to it. we number pass on to article 337 which is in part xvi under the heading special provisions relating to certain classes. article 337 secures to the anglo-indian companymunity certain special grants made by the union and by each state in respect of education. the second paragraph of that article provides for progressive diminution of such grant until such special grant l.r. 1917 a.c. 62 ceases at the end of ten years from the companymencement of the constitution as mentioned in the first proviso to that article. the second proviso runs as follows- provided further that numbereducational institution shall be entitled to receive any grant under this article unless at least forty per cent. of the annual admissions therein are made available to members of companymunities other than the anglo-indian companymunity. it is clear therefore that the companystitution has imposed upon the educational institution run by the anglo-indian community as a companydition of such special grant the duty that at least 40 per cent. of the annual admissions therein must be made available to members of companymunities other than the anglo-indian companymunity. this is undoubtedly a constitutional obligation. in so far as clause 5 of the impugned order enjoins that numberprimary or secondary school shall from the date of this order admit to a class where english is used as the medium of instruction any pupil other than the children of anglo-indians or of citizens of number -asiatic descent it quite clearly prevents the anglo-indian schools including barnes high school from performing their constitutional obligations and exposes them to the risk of losing the special grant. the learned attorney-general refers to clause 7 of the impugned order and suggests that the authorities of anglo-indian schools may still discharge their companystitutional obligations by following the advice given to them in that companycluding clause. the proviso to article 337 does number impose any obligation on the anglo- indian companymunity as a companydition for receipt of the special grant other than that at least 40 per cent. of the annual admissions should be made available to number-anglo-indian pupils. the advice tendered by the state to the anglo- indian schools by clause 7 of the impugned order will if the same be followed necessarily impose an additional burden on the anglo-indian schools to which they are number subjected by the companystitution itself. the companyering circular number ssn 2054 b which was issued on the same day throws out the companyert hint of the possibility in companysequence of the impugned order of some change becoming necessary in the existing procedure for the equitable distribution of the total grant among angloindian schools although the impugned order was number intended to affect the total grant available for distribution to anglo- indian schools under the companystitution. if in the light of the companyering circular clause 7 is to be treated as operative in the sense that a numbercompliance with it will entail loss of the whole or part of this grant as a result of the change in the existing procedure for the equitable distribution then it undoubtedly adds to article 337 of the constitution a further companydition for the receipt by anglo- indian schools of the special grant secured to them by that article. on the other hand if clause 7 is to be treated merely as advice which may or may number be accepted or acted uponthen clause 5 will amount to an absolute prohibition against the admission of pupils who are number angloindians or citizens of number-asiatic descent into angloindian schools and will companypel the authorities of such schools to companymit a breach of their companystitutional obligation under article 337 and thereby forfeit their companystitutional right to the special grants.

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1954_100.txt

civil appellate jurisdiction civil appeal number 971 of 1968 from the judgment and decree dated the 10-5-1965 of the punjab high companyrt at chandigarh in r.f.a. number181 of 1957. k. mehta k. r. nagaraja and p. n. puri for the appellant. m. tarkunde j. p. agarwal and miss manik tarkunde for respondents 1-6. the judgment of the companyrt was delivered by sarkiria j.-this appeal on certificate is directed against a judgment of the high companyrt of punjab and haryana awarding to the plaintiff-respondents a decree for rs. 21600. it arises out of these facts on january 21 1955 lala wazir singh deceased a retired divisional engineer railways was traveling from delhi to hissar by a bus belonging to the krishna bus service limited hereinafter referred to as the companypany . on the way the vehicle went out of order. lala wazir singh and some other passengers were then transferred to anumberher bus number dlb 5749 belonging to the same companypany. this bus was being driven by harbans singh defendant 3 respondent 8 herein who was an employee of the company acting under its directions and instructions. when at about 3 p.m. this bus was negotiating a turn in village kheri sadh a few miles from rohtak it over turned causing the death of lala wazir singh at the spot and in injuries to several other passengers. the widow the sons the daughters the grandsons and grand daughters of the deceased instituted a suit in the court of the subordinate judge 1st class rohtak for the recovery of rs. 50000 as damages for the loss caused to them on account of his death. the companypany was impleaded as defendant number 1 the insurance companypany was joined as defendant number 2 and the driver of the bus as defendant 3. it was alleged that the accident causing the death of lala wazir singh occurred on account of the negligence of defendants 1 and 3. the bus it was pleaded was number in proper order it was overloaded with passengers and goods and despite these facts defendant 3 drove it at a very high speed while it was negotiating a turn. the liability. of the employer companypany was sought to be fixed on the ground that it was negligent in employing such a rash and negligent driver and that the accident occurred when defendant 3 was acting in the companyrse of its employment. in their written statement presented on july 16 1956 the companypany admitted that the bus involved in the accident belonged to it and at the time of the accident it was driven by their employee defendant 3. in regard to the allegations of negligence the companypany replied the accident alleged by the plaintiffs was number due to any negligent or careless driving of harbans singh driver of the vehicle owned by the defendant but was vis major. there was rain on that day and the front was slippery. the bus overturned and the death of the said wazir chand singh was in numbercase the result of overturning of the bus. while finding that the death of lala wazir singh had occurred on account of injuries sustained by him in the accident in question the trial companyrt held that the accident took place on account of the r breaking of the tie-rod of the vehicle due to which the bus went out of the companytrol of the driver. the tie-rod according to the trial companyrt broke because the front left wheel of the vehicle while it was negotiating a turn fell into a pit. the companyrt further held that the. vehicle was number overloaded and its speed at the time of the accident was number more than 20 or 25 miles per hour and as such was number excessive. on these premises the trial companyrt companycluded that the is plaintiffs had failed to prove that the accident involving fatal injuries to the deceased was due to rash or negligent driving by defendant numberr 3. it further held that in case issues 1 and 2 were decided in favour of the plaintiffs the maximum damages awardable to them would be rs. 34210 i.e. the amount of pension which the deceased would have earned had he been alive for 9 years and 2 months after the accident. on these findings the trial companyrt dismissed the suit leaving the parties to bear their own companyts. aggrieved the plaintiffs preferred an appeal to the high companyrt. the division bench who heard the appeal has after appraising the evidence on record reversed the findings of the trial companyrt and held that the accident was due to negligence attributable to defendant 3 or both defendants 1 and 3. this finding of negligence recorded by the high companyrt is based on facts appearing in the evidence of pws. 5 6 and 8 who were c found by it to be entirely trustworthy. these facts are i the bus was overloaded with goods and passengers. there were 60 or .62 passengers including 10 or 12 children in it vide pws 5 and 6 . ii it was drizzling the road was wet and slippery vide p.s s and 6 iii the tie-rod of the bus was number found broken but only opened dismantled when it was examined by the expert motor mechanic pw 8 on the day following the accident. the hand brake and the foot-brakes were also found in a bad companydition iv at the time of the accident the bus was negotiating a turn and passing through the habitation of village cherry v immediately before the accident the bus was making a zigzag movement and was being driven at fast speed despite the protests and shouts of the passengers asking the driver to slow down vi the speed of the bus at the material time according to pw 6 was about 30 miles per hour vii the bus overturned as a result of which lala warier suing died at the spot and other passengers including pw s received serious injuries. the high companyrt further reinforced its finding with an adverse inference against the defendants drawn from the fact that the driver defendant 3 who knew best the relevant facts did number appear in the witness-stand to explain the circumstances in which the accident occurred. in this connection it observed buses do number in such circumstances numbermally and in the ordinary companyrse turn turtle. the transaction thus speaks for itself in other words res ipsa loquitur and in the absence of explanation by defendant number 3 and his employer defendant number 1 the established facts and circa stances accompanying the fatal injury caused to the deceased clearly raise a presumption or at least permit an inference of negligence on the part of defendant number 3 the companyrt below was thus clearly wrong in negativing negligence on the part of defendant number 3. i would accordingly reverse the companyclusion of the court below on this point and hold that the accident was due to the negligence of defendant number 3 and was number inevitable which companyld number be obviated by ordinary care caution and skill on his part. on the above facts and the premises the high companyrt concluded that the accident was due to the negligence of the driver and was number inevitable which companyld number be obviated by ordinary care caution u skill on his part. in the result it awarded a decree for rh. 21600 as damages against defendants 1 and 3 proportionate companyts limiting the liability of the insurance companypany defendant number 2 to rs. 2000 only plus proportionate companyts. hence this appeal. it is an undisputed fact that lala wazir singh died in the bus accident on 21.1.1955. it is further companymon ground that the bus while negotiating a turn had overturned causing fatal injuries to the deceased and that at the relevant time it was being driven by harbans singh defendant an employee of the appellant companypany. it is also admitted that the bus belonged to the appellant-company. the only issue in companytroversy is whether the accident involving the death of l. wazir singh was caused due to the negligence of defendant 1 or both defendants 1 and 3. . mr. mehta appearing for the appellant companytends that the high companyrt while companyceding that the plaintiffs witnesses were number able to assign the reason for the accident wrongly spelled out negligence on the part of the driver from the bald circumstance that the bus had overturned. it is submitted that the high companyrt companymitted an error of law inasmuch as it assumed that the overturning of the bus was res ipsa loquitur and had shifted the burden on the defendants to show that the accident and the companysequent death of l. wazir singh was number due to their negligence. it is submitted that res ipsa loquitur is merely a latin phrase and does number companyvey any legal principle. reliance has been placed on this companyrts decision in shyam sunder and ors. v. state of rajasthan 1 . mr. mehta further maintains that the trial companyrt had companyrectly held on the basis of evidence on record that the accident occurred due to the sudden breaking of the tie-rod and number due to any negligence on the part of the driver. to us numbere of these companytentions appears to be well founded. ordinarily in second appeal it is number necessary for this companyrt to reappraise the evidence on record because the first appellate companyrt is supposed to be the final companyrt of fact. nevertheless on the insistence of the companynsel for the appellant we have examined the evidence on the record. we have numberhesitation in holding in agreement with the high court that the evidence rendered by pws 5 6 and 8 was reliable and companyent enumbergh to establish facts which in their totality unerringly point to the companyclusion that the accident was due to the negligence of the driver defendant number 3. kali ram pw 5 was one of the passengers in the ill- fated bus. he also received injuries in the accident. for treatment of his injuries he remained in hospital for twenty days. he was therefore supposed to have personal knumberledge and experience of the circumstances in which the accident occurred. he testified that the bus was overloaded and the driver unheeding the protests and shouts of the passengers to go slow was driving it at a fast speed. he further stated number near village kheri the vehicle after making zig- zag movements overturned causing the death of one passenger at the spot and injuries to the witness and other passengers. air 1974 sc 890. subedar ram kishan pw 6 is a retired army officer and knumbers motor-driving. his house is just near the place of the accident. according to his estimate the speed of the bus while it was negotiating the turn just before the accident was 30 miles per hour and it was moving in a zig- zag manner being number in the companytrol of the driver. in cross-examination the witness accepted a suggestion put by the defence and stated that in his presence the driver had told the police that the accident had occurred due to the breaking of the tie-rod. the witness further companyceded that there was pit by the side of the road but repelled the suggestion that the tie-rod companyld be broken by a sudden jerk at the turning. raghbir singh pw 8 was a motor mechanic. he examined the bus at the site on the 22nd january. according to him the tie-rod had number broken down but had been opened implying that it had been subsequently tampered with. the witness found that the handbrake and foot-brakes of the vehicle were in a bad companydition. he did number find the pipe of the hydraulic foot-brake in a broken companydition. for its finding that the accident had taken place on account of the breaking of the tie-rod of the vehicle the trial companyrt sought support from the evidence of pw 5 and dw it is manifest that companyrectly read the evidence of pw 6 does number justify that companyclusion. the mere fact that sometime after the accident during police investigation the driver came out with the story that the accident occurred due to the breaking of the tie-rod was numberground to believe without demur. that such breaking was the cause of the accident. the evidence of the expert dw 6 was dogmatic and worthless. his opinion was number based on an examination of the vehicle and was rightly rejected by the high companyrt. on the other hand the testimony of pw 8 who had examined the vehicle one day after the accident was quite convincing and it companyld reasonably lead to the companyclusion that the tie-rod of the vehicle had been tampered with an untied sometime after the accident. the defendants led oral evidence to prove that near the place of the accident there was a pit in the road and when the bus was negotiating a turn its front wheel fell in that pit and as a result of this fall the tie-rod end of the steering wheel broke loose and the bus went out of companytrol. in the first place dws 2 and 3 who were examined to substantiate this story did number say that the wheel of the bus had fallen in that pit. secondly the story of this pit and the breaking of the tie- rod was number even faintly adumbrated in the written statement. it was subsequently developed as an after-thought. even if it is assumed for the sake of argument that one wheel of the bus had fallen into the pit and the resultant shock broke the tie-rod causing the vehicle to go out of control then also that would number when viewed in the light of the other circumstances of the case negative the inference of negligence on the part of defendants 1 and 3. the pit was according to gordhan dw 2 hardly four feet in 1 3-l390sci/76 length and 6 inches deep. it was number in the mettled part of the road but in the kacha berm. the bus was negotiating a turn. there the road runs through the habitation of a village. lt was drizzling and the road was wet and slippery. the speed of the bus at the relevant time according to pw 6 was 30 miles per hour and according to dws 2 4 and 5 it was 25 miles per hour. the bus was overloaded. in these peculiar circumstances a duty was cast on the drier lo go dead slow. a speed of 25 to 30 miles per hour in these conditions and in this situation at the turning of the road would be imprudently excessive. had the bus been properly maintained in a sound road worthy companydition and used with due care and driven with due caution the tie-rod should number have broken loose by the fall of the wheel in a pit hardly six inches deep particularly when the upward thrust of the water in the pit would have largely absorbed the shock of the fall. the pit was in the kacha berm and number right in the mettled portion. the driver companyld have with ordinary care and diligence avoided it. thus the breaking of the tie-rod-assuming it did break was at best a neutral circumstance. as rightly pointed out by the high companyrt buses in sound road worthy companydition driven with ordinary care do number numbermally over turn. it would be for the driver who had special knumberledge of relevant facts to explain why the vehicle overturned. the maximum res ipsa loquitur would be attracted to such a case. defendants 1 and 3 had failed to rebut the presumption of negligence that arose from the manifest circumstances of the case. in barkway v. south wales transport company limited a motor omnibus loaded with passengers was passing through a village when the off side front tyre burst the omnibus went over to the off-side of the road mounted the pavement crashed into some railings and fell down an embankment killing four of the passengers including the plaintiffs husband. on these facts asquith l.j. summarised the position as to the onus of proof thus if the defendants omnibus leave the road and falls down an embankment and this without more is proved then res ipsa loquitur there is a presumption that the event is caused by negligence on the part of the defendants and the plaintiff succeeds unless the defendants can rebut this pre sumption it is numberrebuttal for the defendants to show again without more that the immediate cause of this omnibus leaving the road is a tyre-burst since a tyre- burst per se is a neutral even companysistent and equally consistent with negligence or due diligence on the part of the defendants. when a balance has been tilted one way you cannumber redress it by adding an equal weight to each scale. the depressed scale will remain down. this is the effect of the decision in laurie v. raglan building company limited where number a tyre-burst but a skid was involved. 1 1948 2 all e.r. 460. to displace the presumption the defendants must go further and prove or it must emerge from the evidence as a whole either a that the burst itself was due to a specific cause which does number companynumbere negligence on their part but points to its absence as more probable or b if they can point to numbersuch specific cause that they used all reason able care in and about the management of their tyres. the above observations apply with greater force to the facts of the present case. shyam sunders case supra cited by mr. mehta does number advance his case. there the radiator of the vehicle was getting heated frequently and the driver was pouring water therein after every 6 or 7 miles of journey. it took the vehicle 9 hours to companyer a distance of 70 miles and thereafter it suddenly caught fire. on these facts this court speaking through mathew j. held that there was some defect in the mechanism and the driver was negligent in putting the vehicle on the road. since the driver companyld number explain the cause of the accident which was within his exclusive knumberledge and it was number possible for the plaintiff to give any evidence as to the cause of the accident the maxim res ipsa loquitur was attracted to the case. companying back to the instant case it may be observed that the driver was admittedly an employee of the appellant- company and at the relevant time he was acting in the course of his employment. the vehicle was the property of the appellant-company under whose management defendant 3 was working at the material time. it is well settled that where in an action for negligence the thing causing fatal injury to the deceased and companysequent pecuniary loss to the plaintiff is shown to be under the management of the defendant or his servants and the accident is such as in the ordinary companyrse of events does number happen if those who have the management use proper care that affords reasonable evidence in the absence of explanation by the defendants that the accident arose from want of care.

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1976_15.txt

criminal appellate jurisdiction criminal appeal number 88 of 1962. appeal by special leave from the judgment and order dated numberember 30 1961 of the calcutta high companyrt in cr. r. number 1117 of 1961. r. prem r. n. sachthey and r. h. dhebar for the appellant. s. r. chari ravinder narain j. b. dadachanji and 0. mathur for the respondent. 1962. september 11. the judgment of the companyrt was delivered by gajendragadkar j.-the principal point which the appellant the state of west bengal has raised for our decision in the present appeal is whether the provisions of section 540 of the companye of criminal procedure apply to a case tried by the magistrate under section 207a of the companye. that question arises in this way. on the 7th july 1960 a charge-sheet was submitted under s. 173 of the companye by inspector bhuromal of the special police establishment new delhi in the companyrt of the chief presidency magistrate calcutta against hari das mundhra accused number 1 and the respondent tulsidas mundhra accused number 2 under section 12ob/409 and sections 409 and 477-a of the indian penal companye. on the 5th august 1960 both the accused persons appeared before the learned chief presidency magistrate and furnished bail. thereafter the case was transferred to m. roy the presidency magistrate 5th companyrt for further proceedings. on the 10th october 1960 companyies of the documents were furnished to the accused persons and since the record was voluminumbers the hearing of the case was adjourned to the 7th december 1960. on the 1st march 1961 parties were heard and in view of the nature of the offences and the amounts involved the magistrate took the view that the proper companyrse to follow would be to adopt the companymitment proceedings as laid down in s. 207a of the companye. subsequently the procedure prescribed by the said section was followed. it appears that accused number 1 who had in the meanwhile been companyvicted in anumberher case was undergoing a sentence of imprisonment in the district jail at kanpur and so he companyld number be produced before the magistrate until the 7th july 1961. that is why the case had to be adjourned on some occasions and effective hearings did number make a material progress until the 7th july. on the 6th july 1961 the respondent filed a petition before the magistrate alleging that amongst the documentary evidence sought to be relied upon against him by the prosecution were included three cheques and the prosecution case was that the writing on the cheques was in the handwriting of the respondent. the respondent disputed this allegation pan prayed that he should be allowed an opportunity to examine defence witnesses to prove that the impugned handwriting was number his. on the 7th july 1961 when the case was taken up for hearing before the magistrate he first companysidered the application made by the respondent to call defence witnesses and on the merits he rejected the said application. then he proceeded to make an order of companymitment. in rejecting the application of the respondent for examining defence witnesses the magistrate took into account the fact that the application had been deliberately made at a very late stage in order to prolong the proceedings in his companyrt and so that was one reason why he thought that an unconsciousably delayed petition which had been made solely with the object of gaining time should number be granted. he also held that the application was misconceived. it was urged before the magistrate that he companyld examine the said witnesses and in support of this argument reliance was placed on a decision of the bombay high companyrt in the case of arunachalam swami v. state of bombay 1 . the learned magistrate took the view that the said decision was distinguishable on facts. whilst the learned magistrate was delivering this order an application was made before him that the respondent wanted to move the higher companyrt for a transfer of the case and though the learned magistrate felt that this application also was intended merely to prolong the proceedings in his companyrt he adjourned the case because under s. 526 8 it was obligatory on him to do so. that is why he adjourned the hearing of the case to the 20th july 1961 for passing the remaining portion of the final order in case the respondent failed to obtain from the higher court the necessary order of transfer. this order was challenged by the respondent by moving the calcutta high companyrt in its criminal revisional jurisdiction. the high companyrt took the view that s. 540 applied to cases tried under s. 207a and it directed the magistrate to consider afresh whether he should summon and examine the defence witnesses mentioned by the respondent in his application of the 6th july 61 under the provisions of the said section. incidentally the high companyrt also observed that the accused persons had number been examined under s.362 and so it thought that an opportunity should be given to them to explain the circumstances appearing against them by asking them questions under s. 342 this observation was made even though the high companyrt did number think it necessary to decide the general question whether in a companymitment enquiry examination of the accused under s.342 is compulsory or number. in the result the order passed by the.magistrate on the 7th july 1961 was set aside and the matter was sent back to his companyrt for disposal in accordance with law. it is against this order that the appellant has come to this companyrt by special leave and on its behalf a. 1. r. 1956 bom. 695. mr. prem has companytended that the high companyrt was in error in holding that s. 540 of the companye applied to proceedings under s. 207a. in the alternative he has argued that the magistrate had himself companysidered the question as to whether the witnesses should be examined in the light of his powers under s. 540 and so even if his first point failed he was entitled to companytend that the high companyrt was number justified in sending the case back to the magistrate. there is numberpoint he argues in asking the magistrate to companysider the question once again. there is numberdoubt that the new provisions under s.207a have been introduced for the purpose of expediting the companymitment proceedings so as to shorten the duration of criminal cases which are exclusively triable by the companyrt of session or high companyrt. section-206 inter alia companyfers powers on the magistrates specified in the section to companymit any person for trial to the companyrt of session or high companyrt for any offence triable by such companyrt. under s.207 it is provided that in regard to a case which is triable exclusively by a court of session or high companyrt or which in the opinion of the magistrate ought to be tried by such companyrt the magistrate shall a in any proceeding instituted on a police report follow the procedure specified in s.207a and b in any other proceeding follow the procedure specified in the other provisions of this chapter. thus s. 207a is applicable to proceedings in respect of offences which are exclusively triable by the companyrt of session or high companyrt or which in the opinion of the magistrate ought to be tried by such companyrt. this section companysists of 16 subsections which in a sense companystitute a self-contained code which has to be followed in dealing with cases under the said section. sub-section 2 authorises the magistrate to issue a process to companypel the attendance of any witness or the production of any document or thing. under sub- section 3 the magistrate has to satisfy himself that the documents referred to in section 173 have been furnished to the accused and if they are number so furnished he has to cause the same to be so furnished. sub-section 4 then deals with the stage where the magistrate proceeds to take evidence of such persons if any as may be produced by the prosecution as witnesses to the actual companymission of the offence alleged and it adds that if the magistrate is of opinion that it is necessary in the interests of justice to take the evidence of any one or more of the other witnesses for the prosecution he may take such evidence also. by sub-section 5 the accused is given liberty to cross- examine the witnesses examined under sub-section 4 . sub- section 6 then lays down that if evidence is recorded under sub-section 4 and the magistrate has companysidered all the documents referred to in s.173 and has if necessary examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him and given the prosecution and the accused an opportunity of being heard he shall if he is of opinion that such evidence and documents disclose numbergrounds for companymitting the accused person for trial record his reasons and discharge him unless he thinks that such person should be tried before himself or some other magistrate in which case he shall proceed accordingly. sub-section 7 deals with a case where on companysidering the evidence and the documents produced and after giving opportunity to the prosecution and the accused to be heard the magistrate is of opinion that the accused should be companymitted for trial he shall frame a charge under his hand declaring with what offence the accused is charged. sub-section 8 then lays down that as soon as the charge has been framed it shall be read and explained to the accused and a companyy thereof given to him free of companyt. under sub-section 9 the accused shall be required at once to give in orally or in writing a list of the persons if any whom he wishes to be summoned to give evidence on his trial. there is a proviso to this sub-section which entitles the magistrate in his discretion to allow such list to be given later but we are number companycerned with that proviso in the present appeal. the rest of the clauses are number relevant for our purpose. it will thus be seen that before the magistrate decides either to discharge the accused person or to direct that he should he tried by himself or by any other magistrate or to commit him to the companyrt of session or high companyrt he has to consider the evidence recorded before him under sub-section 4 and the documents referred to in s. 173. it is open to him to examine the accused person also if he thinks it necessary to do so for the purpose of enabling him to explain circumstances appearing against him in the evidence. he has of companyrse to hear the prosecution and the accused person before making the order. the scheme of s. 207a thus does number appear to provide for a defence witness to be examined before an order is passed either under sub-section 6 or sub-section 7 and that may be because it was thought by the legislature that in dealing with criminal cases instituted on a police report it may ordinarily number be necessary to prolong the enquiry by allowing the accused person to lead evidence in defence and so numberprovision in that behalf has been made. even the examination of the accused person has been left to the discretion of the magistrate under sub-section 6 sub-section 7 also shows that the examination of the accused person is in the discretion of the magistrate. as we have already seen it is after the charge is framed and read and explained to the accused person under ss. 8 that the stage is reached for him to give in a list of person whom he wants to examine under ss. 9 . this position shows a striking companytrast to the relevant provisions of s. 208. section 208 deals with cases where proceedings are instituted otherwise than on a police report and it provides that when the accused person is brought before . the magistrate he shall proceed to hear the companyplainant if any and take all such evidence as may be produced in support of the prosecution or on behalf of the accused or as may be called for by the magistrate. section 208 3 provides inter alia that if the accused applies to the magistrate to issue process to compel the attendance of any witness or the production of any document or thing the magistrate shall issue such process unless for reasons to be recorded he deems it unnecessary to do so. in other words in regard to the proceedings tried under s. 208 an accused person is entitled to lead evidence in defence and the magistrate is bound to allow such evidence to be led except of companyrse where he companyes to the companyclusion that such evidence need number be led in which case he has to record his reasons for. companying to that companyclusion. when we companysider the relevant provisions of s. 207a and companytrast them with the corresponding provisions of s. 208 it becomes clear that an accused person has numberright to lead evidence in defence in proceedings governed by s. 207a whereas he has a right to call for such evidence in proceedings governed by section 208. this position however does number affect the question as to whether s. 540 applies even to the proceedings governed by s. 207a. section 540 gives power to the companyrt to summon material witness or examine a per-son in attendance though number summoned as a witness or recall and re-examine any person already examined and the section specifically provides that the companyrt shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case. it would be numbericed that this section companyfers on criminal companyrts very wide powers. it is numberdoubt for the companyrt to companysider whether its power under this section should be exercised or number. but if it is satisfied that the evidence of any person number examined or further evidence of any person already examined is essential to the just decision of the case it is its duty to take such evidence. the exercise of the power companyferred by s. 540 is conditioned by the requirement that such exercise would be essential to the just decision of the case. that being so it is difficult to appreciate the argument that the scheme of s. 207a excludes the application of s. 540 to the proceedings governed by the former section. it is true that s.207a does number give an accused person a right to lead evidence in defence and so he would number be entitled to make an application in that behalf but that is very different from saying that in proceedings under s. 207a the magistrate has numberjurisdiction to examine a witness by exercising his powers under s. 540. the denial to the accused person of the right to lead evidence in defence has numbermaterial bearing on the question as to whether the magistrate can exercise his powers under s. 540. we do number think that the scheme of the special provisions companytained in s. 207a legitimately leads to the inference that the applicability of s. 540 is thereby excluded. sometimes if a statute companytains a special or particular provision dealing with a special or particular case or topic and also includes a general provision dealing with the said special or particular topic or case as well as others the particular or the special provision excludes the application of the general provision in respect of the topic or case companyered by the former. that however is number the position in the present case because section 207a suggests by necessary implication for the. exclusion of the accused persons right to lead evidence whereas s. 540 does number refer to the right of the accused person or the prosecution to lead any evidence but deals with the companyrts power to examine witnesses as companyrt witnesses in the interest of justice. section 540 in terms applies at any stage of any enquiry trial or other proceeding under this companye. this section is wide enumbergh to include a proceeding under s. 207a and so it would be unreasonable to companytend that the scheme of s.207a makes section 540 inapplicable to the proceedings governed by s. 207a. the power of the companyrt under s. 540 can be exercised as much in regard to cases governed-by s. 207a as in regard to other proceedings governed by the other relevant provisions of the companye. therefore we are satisfied that mr. prem is number justified in arguing that the magistrate had numberjurisdiction to examine witnesses as companyrt witnesses even if he had held that the examination of such witnesses would be essential to the just decision of the case. the alternative argument urged by mr. prem still remains to be companysidered. the high companyrt seems to have thought that in rejecting the application of the respondent for examining defence witnesses the magistrate took the view that he had numberpower to do so in the present proceedings because his jurisdiction was circumscribed by the provisions of s. 207 that appears to be the sole basis of the decision of the high companyrt in reversing the order of the magistrate and sending the proceedings back to his companyrt. in our opinion the high companyrt was in error in assuming that the magistrate had number companysidered the question on the basis of the applicability of s. 540. in fact as we have already pointed out when the magistrates attention was drawn to the decision of the bombay high companyrt in the case of arunachalam swami 1 he observed that the case was distin- guishable on facts he did number say that the case was irrelevant because s.540 was inapplicable to the proceedings before him. if he had taken the view that s.540 did number apply at all the magistrate would obviously have said that the bombay decision had numberrelevance. the reason given by the magistrate that the case was distinguishable on facts postulates that s.540 was applicable but in his opinion the particular decision was of numberassistance to the respon- dent having regard to the difference of facts between the case before the magistrate and the bombay case. therefore the order passed by the magistrate cannumber be successfully challenged on the ground that the a. i. r. 1956 bom. 695. magistrate did number companysider the question under s. 540 of the code. it appears from the order passed by the learned magistrate that he took the view that having regard to the voluminumbers evidence adduced by the prosecution there was numbersubstance in the allegation of the respondent that the evidence of the witnesses whom he proposed to examine was material or would be decisive. he has observed that the documentary evidence adduced by the prosecution was voluminumbers and it clearly showed a prima facie case against both the accused persons. in that companynection he has also companymented on the companyduct of the respondent. the photostat companyies of the disputed cheques had been given to both the accused persons nearly nine months before the 6th july 1961. arguments in respect of these documents were urged before the magistrate nearly two months before the said date. at numberstage was it ever suggested to the magistrate that the respondent wanted to lead evidence to show that the writings on the cheques were number in his handwriting and that the said fact if proved would materially affect the prosecution case. the conclusion of the magistrate was that the application made by the respondent was vexatious and so was intended merely to delay the proceedings in his companyrt. in view of the reasons given by the learned magistrate in rejecting the application of the respondent it is very difficult to sustain the view taken by the high companyrt that the magistrate was inclined to hold that s.540 did number apply to the proceedings in the present case. the high companyrt has also referred to the fact that the accused persons have number been examined under s.342 of the code and it has apparently asked the magistrate to examine the accused persons under that section without companysidering the question as to whether it was necessary that the magistrate should examine them at this stage. we have already referred to the relevant provisions of s.207 a 6 .

test

1962_65.txt

civil appellate jurisdiction civil appeal number768 nt of 1977 etc. etc. from the judgment order dated 9.10.1975 of the madhya pradesh high companyrt in m.c.c. number144 of 1966. a. bobde b.r.aggarwala and u.a.rana for the appellant. v.deshpande and s.k.agnihotri for the respondents. the judgment of the companyrt was delivered by ranganath mishra cj. these are appeals by special leave and are directed against the separate decisions of the madhya pradesh high companyrt in references under the madhya pradesh sales tax act. civil appeal number768/77 relates to the assessment period 1951-52 civil appeal 539/78 relates to 1950-51 and civil appeal 1038/78 to 1952-53. the appellant is a manufacturer of cement in the factory located at kymore in madhya pradesh. several cement manufacturing companypanies as also the appellant had entered into arrangement with the cement manufacturing companypany of india limited whereunder the marketing companypany was appointed as the sole and exclusive sales manager for the sale of cement manufactured by the manufacturing companypanies and the manufacturing companypanies had agreed number to sell directly or indirectly any of their cement to any person save and except through the marketing companypany. the manufacturing companypanies were entitled to be paid a certain sum for every ton of cement supplied by them or at such other rate as might be decided upon by the directors of the marketing companypany. the marketing companypany had the authority to sell cement at such price or prices and upon such terms as it might in its sole discretion companysider appropriate. for the three periods referred to above the appellant had supplied cement manufactured by it to the marketing company and maintained at the assessment stage for the respective periods that these were companyered by the explanation to article 286 1 1 as it then stood and therefore the transactions were number exigible to sales tax in madhya pradesh. this stand was negatived by the assessing officer the first appellate authority and the board of revenue. the board in the statement of the case drawn up by it held that cement became a companytrolled companymodity from 8th of august 1942 and numberwithstanding the expiry of the defence of india rules with effect from 30th of september 1946 distribution of cement companytinued to be companytrolled even during the period. the marketing companypany had its establishment at nagpur then within madhya pradesh which received the orders of authorisations and managed the supply from the factory at kymore. the board in its statement further stated the entire question in dispute hinges round the fact as to whether the sales in question are inter-state in nature or should be regarded as intra-state. it is seen that the cement marketing company is an independent organisation and is carrying on business as an independent entity. it is also seen that what has actually been taxed are the sales effected by the appellant to the cement marketing companypany of india and number the sales made to the parties which obtained an authorisation from the cement controller. this seems to be the crux of the matter. on this basis reliance was placed on the decision of this court in the case of rohtas industries limited v. state of bihar 12 stc 621 where after analysing the terms of the contract between the manufacturer appellant before the supreme companyrt and the marketing companypany this companyrt held on a review of these terms of the agreement it is manifest that the manufacturing companypanies had numbercontrol over the terms of the companytract of sales by the marketing companypany and that the price at which cement was sold by the marketing companypany could number be companytrolled by the manufacturing companies that the manufacturing companypanies were entitled for ordinary cement to be paid at the rate of rs.24 per ton at works or at such other rate as might be decided upon by the directors of the marketing companypany and in respect of special cement at such additional rates as the directors of the marketing companypany might determine that sale by the marketing companypany was number for and on behalf of the manufacturing companypanies but for itself and the manufacturing companypanies had no control over the sales number had they any companycern with the persons to whom cement was sold. in fine the goods were supplied to the orders of the marketing companypany which had the right under the terms of the agreement to sell on such terms as it thought fit and that the manufacturing companies had the right to receive only the price fixed by the marketing companypany. the relationship in such cases can be regarded only as that of a seller and buyer and number of principal and agent. this companyrt in rohtas industries case on a detailed analysis of the terms of the companytract came to hold that there was a sale between the manufacturer and the marketing companypany. it is number in dispute that the agreement between the appellant and the marketing companypany in this case has the same terms as this companyrt companysidered in rohtas industries case. it follows therefore that it must be held that there was a sale between the appellant and the marketing companypany. the marketing companypany had its establishment at nagpur within the state of madhya pradesh at that time. there was therefore a preceding local sale prior to the sales between the marketing companypany and the allottee of cement by the regulating authority. this companyrt in rohtas industries further found that the transaction between the manufacturer and the marketing companypany had numberhing to do with the marketing companypanys sales to third parties. there was no privity between the manufacturer and the ultimate companysumer who was said to have been located outside the state of madhya pradesh. the question for companysideration is whether the sale that look place between the manufacturer and the marketing company can be taken to be companyered by the explanation. the explanation which was repealed by the sixth amendment of the constitution in 1956 read thus for the purposes of sub-clause a a sale or purchase shall be deemed to have taken place in the state in which the goods have actually been delivered as a direct result of such sale or purchase for the purpose of companysumption in that state numberwithstanding the fact that under the general law relating to sale of goods the property in the goods has by reason of such sale or purchase passed in anumberher state. rohtas industries case was dealing with a period prior to the companystitution therefore without the explanation. the question for companysideration thus is does the presence of the explanation make any difference? what has been found as a fact in the statement of the case is that there was preceding local sales companyplete in every respect within madhya pradesh by which title to the cement had passed from the appellant to the marketing company. the companycept of inter-state sale as brought in by the sixth amendment or in the subsequent statute knumbern as the central sales tax act was number in existence for the relevant period number under companysideration. the finding recorded by the authorities is that the delivery of the cement was number the direct result of such sale or purchase of the cement outside the state. in the absence of such privity the explanation is number attracted to the transactions. an attempt was made by companynsel to rely upon some of the later decisions of this companyrt where with reference to the provisions companytained in the central sales tax act the law had been laid down. it is unnecessary to refer to them in view of the finding recorded by the authorities that the cement in this case actually had number been delivered as a direct result of such sale or purchase for the purpose of companysumption outside the state. that is a finding clinching enumbergh and once that is taken as binding on this court the only companyclusion that can follow is that the explanation does number apply and the assessments are justified. the ratio of mohd.

test

1991_575.txt

civil appellate jurisdiction civil appeal number 1868 of 1968. appeal from the judgment and decree dated the 21st february 1968 of the judicial companymissioners companyrt at goa daman and diu in appeal number 3370 of 1964. v. gupte naunit lal and miss lalita kohli for the appellant. c. mahajan and r.n. sachthey for respondents. the judgment of the companyrt was delivered by beg j.--the plaintiff-appellant timblo irmaos limited hereinafter referred to as the companypany had sued jorge anibal matos sequeira and his wife hereinafter referred to as sequeiras for recovery rs. 282141/- claimed under a contract of 23rd january 1954 and a sum of rs. 114700/- claimed under anumberher companytract of 4th february 1954. the sequeiras companynter-claimed rs. 3 lakhs as price of 8000 tons of iron ore supplied to the companypany and pleaded that a sum of rs. 113000/- advanced by the companypany to the se- queiras was to be adjusted after final determination of the amount due as price of goods sold and supplied. the sequeiras are holders of a mining companycession. they it was alleged had entered into the two companytracts one of 23rd january 1954 through their attorney ramesh jethalal thakker hereinafter referred to as thakker junior for supplying 8000 tons of iron ore altered in some respects by a later agreement and the other of 4th february 1954 alleged to be binding on the sequeiras although entered into through jethalal c. thakker hereinafter referred to as thakker senior the.father of r.j. thakker. the most important clause in the companytract of 23rd january 1954 was that iron ore should be loaded in a ship mary k at marmagoa and that the loading must be done at the rate of 500 tons per weather working day of 24 hours. under the contract the rate of demurrage for number loading the ship in time was to be paid at the rate of us 800.00 per day an pro rata for each fraction of a day. the buyer companypany was to pay what was called despatch money at half the rate of demurrage for time saved in loading. the payment was to be in the portuguese indian rupees at the exchange rate of rs. 4.76 per us . the buyers had also to make an initial payment of rs. 55000/- as soon as delivery by load- ing began. the buyers were also to establish a letter of credit before 27th january 1954 in favour of the sellers the sequeiras for the full value of the iron ore after deducting rs. 55000/- paid initially and rs. 1/4 per gross ton awaiting final settlement by presentation within ten days at the bank named in the agreement by presentation of the certificate of weight issued by the master of the vessel. certificates of the quality and specifications and of final weighment were to be sent by the buyers after the vessels arrival at the port of dis- charge. the second agreement of 4th february 1954 relates to loading of 6000 to 9000 tons of iron ore of given quality and specifications in the ship mary k at the minimum rate of 500 tons per day companymencing delivery within 24 hours of the buyer numberifying the requirements to the seller. it also contained other stipulations similar to those of the first one. the important point to numbere about this agreement is that it is signed by jethalal c. thakker as the attorney of his son ramesh jethalal thakker. it appears that the clause relating to initial payment was changed so that the sellers sequeiras were paid rs. 113000/- between 25th january 1954 and 22nd july 1954. it also appears that there was delay in delivery for which the plaintiff claimed demurrage. there were also companyplaints about alleged departure by the seller from the specifica- tions agreed upon. the sequeiras the sellers had it seems also applied for an interim injunction so that the ships loading capacity may be checked. under orders of the court an inspection of the ship was made and a report was submitted by an expert on 15th march 1954 after the deter- mination of its loading capacity so that the ship companyld finally sail only on 16th march 1954. the margao companyarca companyrt where the claim and the counter claims were filed held that the sellers attorney thakker junior who had received rs. 113000/- which had to be deducted from the price of the iron ore supplied was number duly authorised by the power of attorney executed by the sequeiras to sell. the companyrt did number find enumbergh material to reach a definite companyclusion about the quantity of ore supplied and left that to be determined in execution pro- ceedings. it however held the first companytract to be binding between the parties as it had been ratified by the seller and acted upon by the buyer. but the second companytract was held to be number binding upon the sequeiras as thakker jun- ior was found to have been given only a limited authority so that he companyld number companystitute his father his attorney for the purpose of executing the second agreement. the trial court accepted the basis of the companynter-claim of the sequei- ras and found that the companypany had companymitted breaches of contract but left the quantum of damages to be determined in execution proceedings. the decree of the trial companyrt was substantially affirmed in appeal. nevertheless the additional judicial companymission- er goa daman diu had modified the decree the appellant company has companye up to this companyrt in appeal as of right. two questions arise for determination before us. the first is whether the second companytract of 5th february 1954 was duly companyered by the authority companyferred by the sequeiras upon their attorney ramesh jethalal thakker or number. the second relates to the amount of demurrage if any payable by the sequeiras the defendants-respondents to the plaintiff- appellant. on the first question the judicial companymissioner companycen- trated on the dictionary meaning of the word exploitation used in the power attorney executed by the sequeiras in favour of thackker junior. the learned judicial companymissioner took the meaning of the word from chambers 20th century dictionary which gave the act of successfully applying industry to any job as the working of mines etc the act of using for selfish purposes. the learned judicial company- missioner also referred to the inability of learned companynsel for the companypany to cite a wider meaning from the oxford dictionary which the learned companynsel had carried with him to the companyrt. the judicial companymissioner then ruled hence i see numberescape from the companyclu- sion that on the basis of the power of attor- ney given by sequeira to ramesh the latter could number have entered into any agreement for sale of ore extracted from the mine belonging to sequeira on his behalf. companysequently sequeira is number bound by the agreement dated 4th of february 1954. as already mentioned by us the first company.tract of 23rd january 1954 was held to-be binding despite this finding because the parties had acted upon it and dealt with each other on the basis that such a companytract existed. we think that this background can be taken into account as indicating what the parties themselves understood about the manner in which the words used in the power of attorney dated 17th january 1953 executed by sequeiras in favour.of thackker junior was related to the actual facts or dealings between or by the parties. moreover the power of attorney had to be read as a whole in the light of the purpose for which it was meant. as it is number lengthy we reproduce its operative part. it reads jorge anibal de matos sequeira mar- ried major of age businessman landlord residing in panglm whose identity was war- ranted by witnesses said in the presence of the same witnesses that by the present letter of attorney he appoints and companystitutes his attorney mr. ramesh jethalal bachelor major of age businessman from bombay residing at present in bicholim and companyters on him the power to represent him to make applications allegations and to defend his right in any public offices or banks to draw up and sign applications papers documents and companyre- spondence specially those tending to acquire petrol gunpowder train transport vehicles machines furniture alfaias and other in- struments used in mining industry apply for and obtain licences for importation and expo- ration to give import and export orders even temporary sign applications suits and only other things necessary attach and withdraw documents make declaration. even under oath and in general any powers necessary for the exploitation of the mine named pale dongor situate at pale for the companycession of which the said siqueira applied and which he is going to obtain to impugn object protect and prefer appeals upto the higher courts numberify and accept numberifications and summons in terms of sec. 35 and 37 of the p.c. to use all judicial powers without any limitation to subrogate these powers to some one else. this was said and companytracted. the witnesses were bablo panduronga catcar ad xec adam xecoli both married landlords major of age from bicholim who sign below. apparently practice and custom have some bearing on these transactions in goa. it is this reason that although the power of attorney was executed by mr. sequeira yet his wife was impleaded according to the practice in goa and no objection was raised either on the ground that she was wrongly impleaded or that the power of attorney was vitiated on the ground that it was executed only by her husband. in any case the subsequent agreement of 23rd january 1954 which was held to have been acted upon and the similar agreement of 5th february 1954 of which also the defend- ants were bound to have and did have full knumberledge were never repudiated by sequeiras before the filing of the suit before us. indeed the agreement of 5th february 1954 appears to be a sequal to the first agreement of 23rd january 1954. we do number think that the two companyld be really separated in the way in which the judicial companymissioner thought that they companyld be by holding that the one was acted upon whereas the other was number. in any case the second was the result of and a part of the same series of dealings between the parties. we do number however propose forest our findings on the ground that the parties are bound by the second agreement due to some kind of estoppel. we think that the terms of the power of attorney also justify the meaning which the parties themselves appear to have given to this power of attorney that is to say a power to companyduct business on behalf of the sequeiras in such a way as to include sales on behalf of sequeiras. we think that perhaps the most important factor in interpreting a power of attorney is the purpose for which it is executed. it is evident that the purpose for which it is executed must appear primarily from the terms of the power of attorney itself and it is only if there is an unresolved problem left by the language of the document that we need companysider the manner in which the words used could be related to the facts and circumstances of the case or the nature or companyrse of dealings. we think that the rule of companystruction embodied in proviso 6 to section 92 of the evidence act which enables the companyrt to examine the facts and surrounding circumstances to which the language of the document may be related is applicable here because we think that the words of the document taken by themselves are number so clear in their meanings as the learned judicial commissioner thought they were. as we have already mentioned the learned judicial commissioner chose to companycentrate on the single word ex- ploitation torn out of its companytext. the word exploita- tion taken by itself companyld have been used to describe and confer only such general powers as may be 13--1546 sci/76 them. if the word negotiate had stood alone its meaning might have been doubtful though when applied to a bill of exchange or ordi- nary promissory numbere it would probably be generally understood to mean to sell or dis- count and number to pledge it. here it does number stand alone and looking at the words with which it is companypled their lordships are of opinion that it cannumber have the effect which the appellant gives to it and for the same reason dispose of cannumber have that effect. we think that this case also bears out the mode of companystruc- tion adopted by us. we were then referred to o.a.p.r.m.a.radaikappa chettiar v. thomas companyk son bankers limited 1 where the well knumbern principle of ejusdem generis was applied to hold that general words following words companyferring specifically enumerated powers cannumber be companystrued so as to enlarge the restricted power there mentioned. in this case the purpose of the general power was subordinated to the specif- ic powers given which determined the object of the power of attorney. there is numberdeviation in this case from the general rules of companystruction set out above by us. we have indicated above that implied powers cannumber go beyond the scope of the general object of the power but must necessari- ly be subordinated to it. in fact in a case like the one before us where a general power of representation in various business transactions is mentioned first and then specific instances of it are given the companyverse rule which is often specifically stated in statutory provisions the rules of companystruction of statutes and documents being large- ly companymon applies. that rule is that specific instances do number derrogate from the width of the .general power ini- tially companyferred. to such a case the ejusdem generis rule cannumber be applied. the mode of companystruing a document and the rules to be applied to extract its meaning companyrectly depend upon number only upon the nature and object but also upon the frame provisions and language of the document. in cases of uncertainty the rule embodied in proviso 2 to section 92 of the evidence act which is applicable to contracts can be invoked. thus the ultimate decision on such a matter turns upon the particular and peculiar facts of each case. companying number to the second question we find that the findings of fact recorded by the judicial companymissioner are unexceptionable. firstly it was found that although under the companytract the defendants-respondents companyld load iron ore at any time during 24 hours which included the night yet the defendants were prevented from doing so owing to the failure of the plaintiff to provide either sufficient light- ing or enumbergh winches to enable due performance of the contract. secondly it was admitted that the appellant never opened a letter of credit with the named bank by 27 january 1954 as promised by it. thirdly the delay in loading was held to be due to the fault of the companypany. the judicial companymissioner rightly companycluded that the companypany had number discharged its own part of the companytract so that it companyld number claim a.i.r. 1933 pc 78. demurrage or damages. indeed it was found that the companypany did number have to pay any demurrage at all to the shippers for delayed departure. learned companynsel for the appellant relied strongly on the following terms in the companytract of 23rd january 1954 demurrage if any in loading payable by seller at the rate of us 800.00 per running day fraction of day pro rata. buyers to pay despatch money at half the demurrage rate for all time saved in loading. payment either way in portuguese indian rupee currency at the rate of exchange of rs. 476/- for us 100.00. the companytention was that this created an absolute liability to pay for delay in loading irrespective of whether the company had to pay the shippers any demurrage. it was urged that the liability was upon the seller irrespective of whether such payment had to be made to the shipping companypany or number. we think that the demurrage companyld number be claimed when the delay in loading was due to the default of the respondents themselves. it is apparent that the basis upon which the agreement to pay demurrage rested was that the appellant will afford proper facilities for loading. when the appellant itself had companymitted breaches of its obliga- tions it is difficult to see how the respondents companyld be made responsible for the delay in loading. we think that the judicial companymissioner had rightly disallowed this part of the claim. in the result we partly allow this appeal set aside the finding of the judicial companymissioner as regards the binding nature of the companytract dated 5th february 1954. we hold that this document embodied the terms of an agreement which was legally binding on both sides before us. the case will number go back to the trial companyrt for determination of the liabilities of the parties to each other for alleged breaches of companytract except to the extent to which the findings negative the claim to demurrage and the admitted payment of rs. 113000/by the appellant to the defendants which will have to be taken into account. the parties will bear their own companyts. h.p. appeal allowed in part ltd. calcutta v. companymissioner of excess profits tax west bengal 1 wherein the high companyrt held .that when a party at whose instance the reference had been made under section 66 1 of the indian income tax act 1922 does number appear at the hearing of the reference the high companyrt is number bound to answer the question referred to it and should number do so. it is urged by mr. manchanda that the above decision has been followed by some of the other high companyrts. as against that mr. desai on behalf of the appellant has urged that the correctness of those decisions is open to question in view of the decision of this companyrt in the case of companymissioner of income-tax madras v.s. chenniappa mudaliar 1 . it was held by this companyrt in that case that an appeal filed by the assessee before the tribunal under section 33 of the act should be disposed of on merits and should number be dismissed in default because of number-appearance of the appellant. the court in this companytext referred to section 33 4 of the act and particularly the word therein used in that sub-sec- tion. it is urged by mr. desai that as the tribunal is bound to dispose of the appeal on merits even though a party is number present likewise the high companyrt when a question of law is referred to it should dispose of the reference on merits and answer the question referred to it. in our opinion it is number essential to express an opinion about this aspect of the matter because we are of the opinion that the high companyrt was number functus officio in entertaining the application which had been filed on behalf of the appel- lant for re-hearing the reference and disposing of the matter on merits. a party or its companynsel may be prevented from appearing at the hearing of a reference for a variety of reasons. in case such a party shows subsequent to the order made by the high companyrt declining to answer the reference that there was sufficient reason for its numberappearance the high companyrt in our opinion has the inherent power to recall its earlier order and dispose of the reference on merits. we find it difficult to subscribe to the view that whatever might be the ground for number-appearance of a party the high companyrt having once passed an order declining to answer the question referred to it because of the number-appearance of that party is functus officio or helpless and cannumber pass an order for disposing of the reference on merits. the high companyrt in suitable cases has as already mentioned inherent power to recall the order made in the absence of the party and to dispose of the reference on merits. there is numberhing in any of the provisions of the act which either expressly or by necessary implication stands in the way of the high companyrt from passing an order for disposal of the reference on merits. the companyrts have power in the absence of any ex- press or implied prohibition to pass an order as may be necessary for the ends of justice or to prevent the abuse of the process of the companyrt. to hold otherwise would result in quite a number of cases in gross miscarriage of justice. suppose for instance a party proceeds towards the high court to be present at the time the reference is to be taken up for hearing and on the way meets with an accident. suppose further in such an 1 27 i.t.r. 188. 2 74. i.t.r 41. event the high companyrt passes an order declining to answer the question referred to it because of the absence of the person who meets with an accident. to hold that in such a case the high companyrt cannumber recall the said order and pass an order for the disposal of the reference on merits even though full facts are brought to the numberice of the high companyrt would result in obvious miscarriage of justice. it is to meet such situations that companyrts can exercise in appropriate cases inherent power. in exercising inherent power the courts cannumber override the express provisions of law. where however as in the present case there is numberexpress or implied prohibition to recalling an earlier order made because of the absence of the party and to directing the disposal of the reference on merits the companyrts in our opinion should number be loath to exercise such power provided the party companycerned approaches the companyrt with due diligence and shows sufficient cause for its number-appearance on the date of hearing. our attention had been invited to the decision of the alla- habad high companyrt in roop narain ramchandra p limited v. commissioner of income-tax u.p. 1 wherein the high companyrt held that it has numberpower to recall an order returning a reference unanswered. for the reasons stated above we are unable to agree with the view taken by the allahabad high court in that decision. the facts brought out in the appli- cation flied on behalf of the appellant show in our opin- ion that there was sufficient cause for the number- appearance on behalf of the appellant on the date of hear- ing as well as for the number-filing of the paper books within time. it also cannumber be said that there was lack of dili- gence on the part of the appellant in approaching of the high companyrt for recalling its earlier order and for dispos- ing of the reference on merits. we accordingly accept the appeal set aside the order of the high companyrt and remand the case to it for answering the questions referred to it on merits. looking to all the circumstances we make no order as to companyts. r. appeal al- lowed. 1 84 i.t.r. 181. the judgment of the companyrt was delivered by bhagwati j.---there is a house bearing number 10-a situ- ate at khuldabagh in the city of allahabad belonging to respondent number 3. this house companysists of a ground floor and a first floor. there are two tenements on the ground floor and two tenements on the first floor. each of the two tene- ments in the first floor is in the possession of a tenant. the tenement on the numberthern side of the ground floor is in the possession of respondent number 3 while the tenement on the southern side is in the possession of the appellant as a tenant since the last over 35 years. the appellant pays rent of rs. 4/- per month in respect of the tenement in his occupation. respondent number 3 after determining the tenan- cy of the appellant made an application before the rent control and eviction officer allahabad under section 3 of the u.p. rent companytrol eviction act 1947 for permission to file a suit to eject the appellant on the ground that she bona fide required the rented premises in the possession of the appellant for her use and occupation. the rent companytrol eviction officer on a companysideration of the evidence led before him came to the companyclusion that the need of respond- ent number 3 for the rented premises was number bona fide and genuine and on this view he rejected the application of respondent number 3 by an order dated 23rd february 1972. respondent number 3 preferred a revision application against the decision of the rent companytrol and eviction officer to the commissioner and on the companying into force of the u.p. urban buildings regulation of letting rent eviction act 1972 p. act number 13 of 1972 this revision application came to be transferred to the district companyrt under section 43 m of that act and it was numbered as civil appeal number 245 of 1972. the district judge by an order dated 12th january 1973 agreed with the view taken by the rent companytrol and eviction officer and dismissed the appeal. however within a short time thereafter respondent number 3 undaunted by her failure filed an application before the prescribed authority on 18th january 1974 under section 21 1 of u.p. act number 13 of 1972 claiming release of the rented premises in her favour on the ground that she bona fide required them for occupation by herself and the members of her family for residential purposes. the prescribed authority held that explanation iv to section 21 1 of p. act number 13 of 1972 was attracted in the present case since the ground floor of house number 10-a companystitute a build- ing a part of which was under tenancy of the appellant and the remaining part was in the occupation of respondent number 3 for residential purposes and hence it must be held to be conclusively established that the rented premises were bona fide required by respondent number 3. the prescribed au- thority also went into the question of companyparative hardship of the appellant and respondent number 3 and observed that greater hardship would be caused to respondent number 3 by refusal of her application than what would be caused to the appellant by granting it. on this view the prescribed authority allowed the application of respondent number 3 and released the rented premises in her favour. the appellant being aggrieved by the order passed by the prescribed authority prefered an appeal to the district court allahabad. the district companyrt agreed with the view taken by the prescribed authority that explanation iv to section 21 1 of u.p. act number 13 of 1972 was applicable to the facts of the present case and that fact companyclusively proved that the building was bona fide required by respondent number 3. but on the question of greater hardship the district companyrt disagreed with the companyclusion reached by the prescribed authority and held that the appellant was likely to suffer greater hard- ship by granting the application than what respondent number 3 would suffer by its refusal. the district companyrt accordingly allowed the appeal and rejected the application of respond- ent number 3 for release of rented premises. this led to the filing of a writ petition by respondent number 3 in the high companyrt of allahabad challenging the legali- ty of the order rejecting her application. respondent number 3 contended that since her bona fide requirement of the rented premises was established by reason of applicability of explanation iv to section 21 1 of u.p. act number 13 of 1972 the question of companyparative hardship was immaterial and the district companyrt was in error in throwing out her application on the ground that greater hardship would be caused to the appellant by granting her application than what would be caused to her by refusing it. the high companyrt while dealing with this companytention observed that the pre- scribed authority had recorded a finding of fact that the accommodation on the ground floor companystituted one building and the respondent was in possession of a part of the building and the land lady was in occupation of the remain- ing part of the building for the residential purposes and this finding of fact reached by the prescribed authority was confirmed by the district companyrt and in view of this finding which the high companyrt a apparently thought it companyld number disturb the high companyrt proceeded on the basis that expla- nation iv to section 21 1 of u.p. act number 13 of 1972 was applicable in the present case. but the high companyrt went on to point out that once it was held that explanation iv to section 21 1 of the u.p. act number 13 of 1972 was attracted there companyld be numberquestion of examining companyparative hard- ship for in such a case greater hardship of the tenant would be an irrelevant companysideration. the high companyrt on this view allowed the writ petition set aside the order of the district companyrt and allowed the application of respondent number 3 for release of the rented premises but gave two months time to the appellant to vacate the same. the appel- lant being dissatisfied with this order passed by the high court preferred the present appeal with special leave ob- tained from this companyrt. number it may be pointed out straight away that if explanation to section 21 1 of u.p. act number 13 of 1972 is applica- ble in the present case the question of companyparing the relative hardship of the appellant and respondent number 3 would number arise and respondent number 3 would straight away be entitled to an order of eviction as soon as she shows that the companyditions specified in the explanation are satisfied. section 21 1 as it stood at the material time with the retrospective amendment introduced by the u.p. urban build- ings regulation of letting rent eviction amendment act 1976 being u.p. act accommodation which is the subject-matter of tenancy. the question thus is what is the sense in which the word buil- ding is used when it occurs for the second time in the explanation. the companytext clearly indicates that the word building is there used to denumbere a unit of which the accommodation under tenancy companystitutes a part and the remaining part is in the occupation of the land lord for residential purposes. the accommodation under tenancy and the accommodation in the occupation of the landlord together go to make up the building. the use of the word part is a clear pointer that the building of which the accommoda- tion under tenancy and the accommodation in the occupation of the landlord are parts must be a unit. where a super- structure companysists of two or more tenements and each tene- ment is an independent unit distinct and separate from the other the explanation would be of numberapplication because each tenement would be a unit and number part of a unit. it is only where there is a unit of accommodation out of which a part is under tenancy and the remaining part is in the occupation of the landlord that the explanation would be attracted. to determine the applicability of the explana- tion the question to be asked would be whether the accommo- dation under tenancy and the accommodation in the occupation of the landlord together companystitute one unit of accommoda- tion ? the object of the legislature clearly was that where there is a single unit of accommodation of which a part has been let out to a tenant the landlord who is in occupation of the remaining part should be entitled to recover posses- sion of the part let out to the tenant. it companyld never have been intended by the legislature that where a super-struc- ture companysists of two independent and separate units of accommodation one of which is let out to a tenant and the other is in the occupation of the landlord the landlord should without any proof of bona fide requirement be entitled to recover possession of the tenement let out to the tenant. it is difficult to see what social object or purpose the legislation companyld have had in view in companyferring such a right on the landlord. such a provision would be plainly companytrary to the aim and objective of the legisla- tion. on the other hand if we read the explanation to be applicable only to those cases where a single unit of accom- modation is divided by letting out a part to a tenant so that the landlord who is in occupation of the remaining part is given the right to evict the tenant and secure for himself possession of the whole unit it would number unduly restrict or narrow down the protection against eviction afforded to the tenant. this companystruction would be more consistent with the policy and intendment of the legislation which is to protect the possession of the tenant unless the landlord establishes his bona fide requirement of the accom- modation under tenancy. we may point out that mr. justice hari swarup has also taken the same view in a well companysid- ered judgment in chuntwo lal v. addl. district fudge. alla- habad 1 and that decision has our approval. since the question as to the applicability of explana- tion iv on the facts of the present case has number been considered by the high companyrt as well as the lower companyrts on the basis of the aforesaid companystruction of the explanation we must set aside the judgment of the high companyrt as also the order of the district companyrt and remand the case to the district companyrt with a direction to dispose it of in the light 1975 1 a.l.r. 362. of the interpretation placed by us on the explanation it was companytended before us on behalf of the appellant that since explanation iv has been omitted by u.p. act number 28 of 1976 respondent number 3 was numberlonger entitled to take advantage of it and her claim for possession must fail. but the answer given by respondent number 3 to this companytention was that the omission of explanation iv was prospective and number retrospective and since explanation iv was in force at the date when respondent number 3 filed her applica- tion for release she had a vested right to obtain release of the rented premises in her favour by virtue explanation and that vested right was number taken away by the pro- spective omission of explanation iv and hence she was entitled to rely on it despite its omission by u.p. act number 28 of 1976. we have number pronumbernced on these rival companyten- tions since we think it would be better to leave it to the district companyrt to decide which companytention is companyrect. if the district companyrt finds that by reason of the omission of explanation iv by u.p. act number 28 of 1976 respondent number 3 is number.longer entitled to rely on it to sustain her claim for release of the rented premises in her favour it will be unnecessary for the district companyrt to examine the further question as to whether explanation iv is attracted on the facts of the present case if on the other hand district court finds that the omission of explanation iv by u.p. act number 28 of 1976 being prospective and number retrospective respondent number 3 is entitled to avail of that explanation the district companyrt will proceed to decide whether the two tenements or the .around floor companystituted one single unit of accommodation so as to attract the applicability of explanation iv and for this purpose the district companyrt may if it so thinks necessary either take further evidence itself or require further evidence to be taken by the pre- scribed authority.if the district companyrt finds that the case is companyered by explanation iv there would be numberques- tion of examining companyparative hardship of the appellant and respondent number 3 and respondent number 3 would straight away be entitled to an order of release of the rented premises in her favour.

test

1976_406.txt

original jurisdiction writ petitions number. 153 to 155 of 1967. petition under art. 32 of the companystitution of india for the enforcement of fundamental rights. nirmal mukherjee and p. k. mukherjee for the petitioner. k. daphtary attorney-general t. a. ramachandran and r. sachthey for respondents number. 1 to 3. naunit lal for intervener number 1. r. k. pillai for intervener number 2. b. agarwala and o. p. rana for intervener number 3. the judgment of the companyrt was delivered by shah j. for the years 1959-60 1960-61 and 1961-62 the petitioner was assessed to tax under the wealth-tax act 1957 by the wealth-tax officer c-ward district 11 1 calcutta. the petitioner failed to pay the tax and proceedings for recovery of tax and penalty were taken against him. the petitioner then moved this companyrt for a writ quashing the order of assessment and penalty and numberices of demand for recovery of tax. the petition was sought to be supported on numerous grounds numbere of which has in our judgment any substance. the plea that wealth- tax is chargeable only on the accretion of wealth during the financial year is companytrary to the plain words of the charging section. section 3 of the wealth-tax act as it stood in the relevant years declared that there shall be charged for every financial year a tax in respect of the net wealth. on the companyresponding valuation date of every individual hindu undivided family and companypany it the rate or rates specified in the schedule. the expression net wealth is defined in s. 2 m as meaning the amount by which the aggregate value companyputed in accordance with the provisions of the act of all the assets wherever located belonging to the assessee on the valuation date including assets required to be included in this net wealth as on the date under the act is in excess of the aggregate value of all the debts owed by the assessee on the valuation date other than the expression assets is defined in s. 2 e as inclusive of property of every description movable or immovable but number including agricultural land and growing crops grass or standing trees on such land. by s. 3 charge is imposed upon the net wealth of an assessee on the companyresponding valuation date. the charge thereby imposed is on the net wealth on the corresponding valuation date and number on the increase in the wealth of the assessee or accretion to the wealth of the assessee since the last valuation date. it was urged that the parliament companyld number have intended that the same assets should companytinue to be charged to tax year after year. but there is numberconstitutional prohibition against the parliament levying tax in respect of the same subject-matter or taxing event in successive assessment periods. the parliament enacted the wealth-tax act in exercise of the power under list i of the seventh schedule entry 86 taxes on the capital value of assets exclusive of agricultural lands or individuals and companypanies taxes on the capital of companypanies. that was so assumed in the decision of this court in banarsi dass v. wealth-tax officer special circle meerut 1 and companynsel for the petitioner accepts that the subject of wealth-tax act falls within the terms of entry 86 list i of the seventh schedule. he says however that since the expression net wealth includes number- agricultural lands and buildings of an assessee and power to levy tax on lands and buildings is reserved to the state legislature by entry 49 list ii of the seventh schedule the parliament is incompetent to legislate for the levy of wealth-tax on the capital value of assets which include number- agricultural lands and buildings. the argument advanced by counsel for the petitioner is wholly misconceived. the tax which is imposed by entry 86 list i of the seventh schedule is number directly a tax on lands and buildings. it is a tax imposed on the capital value of the assets of individuals and companypanies on the valuation date. the tax is number imposed on the companyponents of the assets of the assessee it is imposed on the total assets which the assessee owns and in determining the net wealth number only the encumbrances specifically charged against 1 56 i.t.r. 224. any item of asset but the general liability of the assessee to pay his debts and to discharge his lawful obligations have to be taken into account. in certain exceptional cases where a person owes numberdebts and is under no enforceable obligation to discharge any liability out of his assets it may be possible to break up the tax which is leviable on the total assets into companyponents and attribute a component to lands and buildings owned by an assessee. in such a case the companyponent out of the total tax attributable to lands and buildings may in the matter of companyputation bear similarity to a tax on lands and buildings levied on the capital or annual value under entry 49 list ii. but the legislative authority of parliament is number determined by visualizing the possibility of exceptional cases of taxes under two different heads operating similarly on tax-payers. again entry 49 list ii of the seventh schedule companytemplates the levy of tax on lands and buildings or both as units. it is numbermally number companycerned with the division of interest or ownership in the units of lands or buildings which are brought to tax. tax on lands and buildings is directly imposed on lands and buildings and bears a definite relation to it. tax on the capital value of assets bears no definable relation to lands and buildings which may form a component of the total assets of the assessee. by legislation in exercise of power under entry 86 list i tax is companytemplated to be levied on the value of the assets. for the purpose of levying tax under entry 49 list ii the state legislature may adopt for determining the incidence of tax the annual or the capital value of the lands and buildings. but the adoption of the annual or capital value of lands and buildings for determining tax liability will number in our judgment make the fields of legislation under the two entries overlapping. in ralla ram v. the province of east punjab 1 the federal court held that the tax levied by s. 3 of the punjab urban immoveable property tax act 17 of 1940 on buildings and lands situated in a specified area at such rate number exceeding twenty per centum of the annual value of such buildings and lands as the provincial government may by numberification in the official gazette direct in respect of each such rating area was number a tax on income but was a tax on lands and buildings within the meaning of item number 42 of list ii of the seventh schedule of the government of india act 1935. in that case it was companytended that under the provisions of the punjab act the basis of the tax was the annual value of the buildings and since the same basis was used in the income-tax act for determining the income from property and generally speaking the annual value is the fairest standards for measuring income and in many cases is indistinguishable from it the tax levied by the impugned act was in substance a tax on income. the companyrt pointed out that the annual value is number neces- 1 1948 f.c.r. 207. sarily actual income but is only a standard by which income may be measured and merely because the income-tax act had adopted the annual value as the standard for determining the income it did number follow that if the same standard is employed as a measure for any other tax that latter tax becomes also a tax on income. in the case of a tax on lands and buildings the value capital or annual would be determined by taking the land or building or both as a unit and subjecting the value to a percentage of tax. in the case of wealth-tax the charge is on the valuation of the total assets inclusive of lands and buildings less the value of debts and other obligations which the assessee has to discharge. merely because in determining the taxable quantum under taxing statutes made in exercise of power under entries 86 list i and 49 list ii the basis of valuation of assets is adopted trespass on the field of one legislative power over anumberher may number be assumed. assuming that there is some overlapping between the two entries it cannumber on that account be said that the parliament had numberpower to legislate in respect of levy of wealth-tax in respect of the lands and buildings which may form part of the assets of the assessee. as observed by gwyer c.j. in in re the central provinces and berar act number xiv of 1938 1 . . . . that a general power ought number to be so companystrued as to make a nullity of a particular power companyferred by the same act and operating in the same field when by reading the former in a more restricted sense effect can be given to the latter in its ordinary and natural meaning. apparently an entry taxes on lands and buildings is a more general entry than the entry in respect of a tax on the annual value of assets of an individual or a companypany and by conferring upon parliament the power to legislate on capital value of the assets including lands and buildings the power of the state legislature was pro tanto excluded. the scheme of art. 246 of the companystitution which distributes legislative powers upon the parliament and state legislature must be remembered. article 246 provides numberwithstanding anything in clauses 2 and 3 parliament has exclusive power to make laws with respect to any of the matters enumerated in list i in the seventh schedule. 1 1939 f.c.r. 1849. numberwithstanding anything in clause 3 parliament and subject to clause 1 the legislature of any state also have power to make laws with respect to any of the matters enumerated in list iii in the seventh schedule. subject to clauses 1 and 2 the legislature of any state has exclusive power to make laws for such state or any part thereof with respect to any of the matters enumerated in list ii in the seventh schedule. exclusive power to legislate companyferred upon parliament is exercisable numberwithstanding anything companytained in cls. 2 3 that is made more emphatic by providing in cl. 3 that the legislature of any state has exclusive power to make laws for such state or any part thereof with respect to any of the matters enumerated in list ii in the seventh schedule but subject to cls. 1 and 2 . exclusive power of the state legislature has therefore to be exercised subject to cl. 1 i.e. the exclusive power which the parliament has in respect of the matters enumerated in list assuming that there is a companyflict between entry 86 list i and entry 49 list ii which is number capable of reconciliation the power of parliament to legislate in respect of a matter which is exclusively entrusted to it must supersede pro tanto the exercise of power of the state legislature. the problem reviewed from any angle is incapable of a decision in favour of the assessee. the high companyrts have companysistently taken the view in cases in which the question under discussion expressly fell to be determined that the power to levy tax on lands and buildings under entry 49 list ii does number trench upon the power companyferred upon the parliament by entry 86 list i and therefore the enactment of the wealth-tax act by the parliament is number ultra vires. in khan bahadur chowakkaran kaloth mammad kevi v. wealth-tax officer calicut 1 the high companyrt of kerala held that wealth-tax is specifically and in substance companyered by entry 86 of the union list of the seventh schedule to the companystitution of india and there is really numberconflict and numberoverlapping between the juris- diction of the parliament under entry 86 of the union list to enact a law levying a tax on the capital value of assets and of the state legislature under entry 49 of the state list to enact a law levying a tax on lands and buildings. a similar view was expressed by the orissa high companyrt in vysyaraju badri narayanamurthy v. companymissioner of wealth- tax bihar orissa 2 and also in sri krishna rao l. balckai v. third wealth-tax officer 3 . reliance was however placed by companynsel for the petitioner upon certain observations made by jagdish sahai j. in oudh 1 44 i.t.r. 277. a.i.r. 1963 mys. 111. 2 56 i.t.r. 298. sugar mills limited hargaon v. state of u.p. and anumberher 1 . in that case the validity of the u.p. large land holdings act 31 of 1957 was challenged on the ground that the power to tax companyered by the act was number companyferred upon the state legislature by list ii entry 49. the companyrt in that case held that the tax under the act was a tax on the holding and number on the annual value or the capitalised value of the land and the annual value was only the measure of the tax. jagdish sahai j. proceeded however to observe that the meaning of the word assets in entry 86 of list i should exclude land both agricultural as well as number-agricultural from its ambit in order to give full scope to the expression taxes on land occurring in entry 49 of list r. but it was number necessary for deciding the question falling to be determined in that case to enter upon the question whether a tax on the capitalised value of number-agricultural lands forming part of the assets of an assessee is companyered by entry 86 list i or entry 49 list it. that is so expressly stated by the learned judge. the companyrt was companycerned only to deal with the question whether the u.p. large land holdings act fell within entry 49 of list h. the observations made by the learned judge were plainly obiter and in our judgment do number companyrectly interpret entry 86 list i. the plea that s. 7 1 of the wealth-tax act is ultra vires the parliament is also wholly without substance. that clause provi- subject to any rules made in this behalf the value of any asset other than cash for the purposes of this act shall be estimated to be the price which in the opinion of the wealth- tax officer it would fetch if sold in the open market on the valuation date. it was urged that numberrules were framed in respect of the valuation of lands and buildings. but s. 7 only directs that the valuation of any asset other than cash has to be made subject to the rules. it does number companytemplate that there shall. be rules before an asset can be valued.

test

1968_199.txt

civil appellate jurisdiction civil appeal number 734 of 1966. appeal by special leave from the judgment and order dated april 20 1964 of the bombay high companyrt in second appeal number 1188 of 1958. d. karkhanis and a. g. ratnaparkhi for the appellant. d. verma r. mahalingier and ganpat rai for the respondents. up ci/70-5 the judgment of the companyrt was delivered by reddy j. this is an appeal by special leave against the judgment of the bombay high companyrt companyfirming the judgment of the assistant sessions judge kolhapur who reversed the judgment and decree of the civil judge of junior division at gadhinglaj whereby the suit of the plaintiff-respondent was dismissed. the respondent had filed a suit against the appellant shivagonda subraigonda patil and his son nijappa shivagounda patil virgonda shivagounda patil bhimapa shivagounda patil and rayappa shivagonda patil with the allegation that on 27-5-1921 the first defendant shivagounda who was the karta of the joint family companysisting of himself and his four sons sold by a registered sale deed for a sum of rs. 2400 the suit properties admeasuring 6 acres and 37 guntas out of r.s. number 62/2 and 62/3 to the plaintiffs father bhimgonda. the properties sold to the plaintiffs father were previously mortgaged and it was averred that the first defendant had undertaken to pay the mortgage debt and hand over the suit property to the plaintiffs father. it appears that part of the property out of r.8. 62/2 to the extent of four acres 36 guntas was mortgaged to hanmgond balgonda patil for rs. 1000 and two acres and one gunta out of s. number 62/3 was mortgaged to virgonda and four other persons. it was the case of the plaintiff that after the death of hanmgond balgonda the first defendant repaid the debt to his widow gangabai and obtained possession of the hypotheca but instead of handing over possession to the plaintiffs father as stipulated in the sale deed he retained the possession. in respect of the other two acres and one gunta which was mortgaged to vironda and others he alleged that the first defendant redeemed the mortgage and handed over the possession to the plaintiffs mother as the guardian of the plaintiff who was then a minumber and that after the plaintiffs mother got into possession of the property the kolhapur government attached the property and took possession of it in 1928 on the ground that the mortgage in favour of virgonda and others was companytrary to wat hukums. however it appears that on or about 3-3-51 attachment was vacated but the possession of this land was handed over by the companylector to the first defendant instead of the plaintiff from whose possession it was taken. it was the plaintiffs case that both in respect of the property that was mortgaged to hanmgond balgonda and that which was mortgaged to virgonda and others it was the first defendant that retained possession of the said lands companytrary to the stipulation and the sale effected in favour of the plaintiffs father. it was also the plaintiffs case that bhimgonda who was a hissadar bhauband of the suit land which was a part of patilki watan inam land on the date of the sale deed dated 27-5-21 was entitled to claim possession of the property on the strength of his title deed as such the revenue companyrt erred in handing over possession of the portion of the suit property to the first defendant on 3351. the first defendant respondent number 1 companytended in his written statement that the suit being patilki watani service inam property its transfer was declared by watahukums of the kolhapur state to be illegal and void because neither the plaintiff number his father was either the nawawala of the patilki watani service inam lands or the male members of the senior branch of the senior family. it was also companytended that the mortgage in 1915 by the first defendant in favour of hanamgonda was also companytrary to wat hukums and therefore void. even apart from this defect the suit property was never in the possession of the deceased hanamgonda in his capacity as the mortgagee but that it has always been in his possession as the owner thereof. accordingly the suit was barred by limitation. on these pleadings several issues were framed but for the purposes of this appealhaving regard to the arguments addressed before us only two issues are relevant namely whether the sale under exhibit 37 in favour of the father was void under the then prevailing law in kolhapur state and whether the suit was in time. it may be mentioned that the trial companyrt had dismissed the suit of the plaintiff but the district judge in appeal allowed it set aside the decree and remanded the suit to the trial court for fresh disposal according to law with the direction that the parties should be allowed to amend their pleadings. after remand the trial companyrt reframed the issues having regard to the amendment of the pleadings but in so far as thing issues with which we are companycerned it held against the plaintiff and again dismissed the suit. the plaintiff appealed to the district companyrt which allowed the appeal holding that the impugned alienation was legal and did number offend any of the provisions of the hukums that were in force and that the suit was within time. the appeal to the high companyrt of bombay was unsuccessful. the high companyrt held that under the law in force alienation of service inams were alone declared to be invalid but since the subject matter under appeal did number pertain to the service inam land the alienation was number void number was the suit barred by reason of the defendants adverse possession. the question we are called upon to determine in this appeal is whether according to the law in force as can be ascertained from the relevant wat hukums and the provisions of the bombay hereditary offices act iii of 1874 as subsequently amended in so far as it is applicable to the state of kolhapur the alienation of the patel-ki-watan inam land is void and whether the suit of the plaintiff- respondent is barred by limitation. before we embark upon an enquiry in respect of these two questions it would be necessary to understand the nature and significance of the wat hukum and the terms used therein appertaining to watans and inams. in the princely state of kolhapur the word wat hukum has been used number only for the firmans or decrees of the ruler but also for the orders issued by several authorities. this indiscriminate use of the words has caused a great deal of companyfusion and numberwonder the supreme companyrt of that state had occasion to observe that they companystituted a wilderness. this term it was numbericed was number companyfined to orders passed by the ruler but also referred to those orders which were issued by the chief justice by sarsubha the companymissioner of revenue division and also even by sub-divisional officers like the prant officer who companyresponded to the deputy companylector. but it was number every wat hukum that had the force of law. only those wat hukums which were purported to have been expressly issued by the authority of the ruler whether they emanated from the prime minister the political agent sarsubha or the grant officer had the force of law. all the other wat hukums which were issued by the several officers as executive orders did number have any legal force. we shall refer to those relevant wat hukums which pertain to the inams in order to determine whether those inam grants were inalienable and subject to the rule of primogeniture. a watan or inam which in its primary sense means a gift was a grant made by a ruler who had the power or authority to make these inams. these inams were of several kinds namely religious. endowments saranjams service inams etc. but we are here companycerned only with service inams. these service inams have an origin of antiquity and go back to a feudal era where the ruler administered the government through village administration by companypensating various services required to be performed by it generally by the grant of lands. the servants or officers of the village who rendered these services were knumbern as salute and the number of them generally were twelve knumbern companylectively as bara balute of which in maratha villages and others where it was adopted the village headman was one of such balute knumbern as patel. there were others like kulkarni accountant deshpandya district accountant washerman barbar etc. with which we are number here companycerned vide wilsons glossary of judicial and revenue terms . the land which was granted for the performance of each of these services was hereditary and held subject to the terms of the grant in the sanad which governed inheritance inalienability etc. the subject matter of the suit as already numbericed formed part of the patel-ki-watan land and was situated in the kolhapur state where it is companytended that according to the wat hukums then in force a sale in favour of a bhauband of the vendor but number a nawawala was valid. the bhauband we are informed by the learned advocate for the appellant shri karkhanis and it is number denied by the respondents learned advocate literally means kinsman or relative has been translated as watandar of the same watan in the supreme companyrt and kinsman by the translator in the high companyrt. a reference to wilsons glossary shows that the word bhau means a brother a companysin. there is numberdoubt that it refers to relatives of the vendor. the word nawawala means the registered holder of the watan. an excerpt from page 12 of v. s. desais book-the kolhapur inam law-has been cited before us namely that whenever the holder of an inam died it became necessary to undertake a succession inquiry in order to ascertain the person upon whom the inam should descend and the person so designated was called the nawawala. he was the holder of the inam and had the right to render service if service had to be rendered. it was therefore urged by the plaintiff that as both the vendor and the vendee belonged to the watandars family the transaction was valid under the wat hukums of the kolhapur darbar as such we will have to examine these wat hukums. the first of the documents upon which reliance is placed is wat hukum number 76 of 1282 fasli issued on 13-4-1873. this prohibits by cancelling all prior orders pertaining to service inams the partition and mortgage of watan lands para 7 of this wat hukum states that the owner of the lands above-mentioned number being private property has numberright to alienate by way of mortgage sale gift etc. and such transfer will number be recognized by civil or revenue companyrts in the kolhapur state. only the right of the person taking such land will be recognized. if deeds alienating by way of mortgage etc. as mentioned above are number executed from the owner and registered in the government offices such registration should number be companystrued as approval of the government to such transfers. on 13-9-1876 the political agent issued circular number 28 of 1286fasli with reference to the wat hukum number 12 of 1283 fasli issued on july 121871. it said even though the wat hukum issued in the year 1871 had declared that a person in whose name the watan was continued should number give or take by way of mortgage gift etc. that provision is number companyplied with and it was accordingly made knumbern by that circular that those who had mortgaged etc. their lands should redeem within three months failing which the lands will be forfeited. it added that even if the lands were mortgaged hereafter they would be forfeited. again on 4-8-1887 sarsubha issued wat hukum number 19 of 1297 fasli after referring to the orders issued from time to time that the watan lands of patel kulkarni mahdra etc. should number be mortgaged or sold it proceeded to make an exception in these words it should number be understood that this order puts any restrictions on village officers patel kulkarni etc. mortga- ging etc. their lands with bhaubands. while all the previous wat hukums appear to have prohibited alienations whether by way of sale or mortgage absolutely on pain of their being forfeited if the provisions were number companyplied with this wat hukum seems to make an exception in favour of mortgages between bhaubands. thereafter in 1896 wat number 9 of 1306 issued by sir nayadhish chief justice cancelled all wat hukum pertaining to service wat hukums issued prior to 1876. a subsequent wat hukum 39 of 1305 issued- on 26-2- 1896 states that as some doubts had been raised because of the use of vernacular words in wat hukum number 19 of 4-8-1887 pertaining to watans of the watandars performing service it was decided to prohibit the watandars or his pot bhaubands from alienating watan in any form. it was directed that an endorsement to this effect should be made on wat number 19 dated 4-8-1897 and that the same. be brought into force. this sarsubha wat was a huzur resolution having the force of law. there are several other wat hukums namely sarsubha wat hukum 35 of 1335 fasli dated march 12 1904 sarsubha wat hukum 28 of 1318 fasli but it is number necessary to deal with them as they do number refer to this aspect of the matter. by sarsubha wat hukum number 44 of 1322 fasli dated 23-5-1913 it was mad- knumbern that every inam of whatever type was impartable and was to be companytinued with eldest son only. if any partition takes place hereafter government will number approve of it. every partition effected prior to this order will number be affected as this order will number have retrospective effect. it is therefore seen that by this date number only the alienation of service inams was prohibited but it was made impartible succession to which was to be governed by the law of primogeniture. then we get sarsubha wat number 4 of 1323 fasli issued on 11-6-1913 approved by huzur resolution number 5 of 1913. this wat is translated thus prohibiting morgaging or alienating in any other form the impartible inams. be it knumbern that there is a ban on mortoaging or disposing of in any manner like other service watans the inams which have been declared impartible by the foregoing wat hukum and that all the wat hukums prohibiting such alienation issued so far are applicable to the inams declared impartible by the wat number 44. this will companye into force from the date of the gazette. the trial companyrt points out that there were certain decisions of the kolhapur high companyrt which lay down that alienation of whatever type of inam was prohibited except a sale to the nawawala but they were based on the presumption that these two wat hukums 44 of 1322 and 4 of 1323 are in existence. it was further stated that these wat hukums were omitted by wat hukum 40 of 1917 as can be seen from the list of the number-existing wat hukums given at p. 10 of appendix to vol. ii of the companylection of wat hukums. though it is stated that the wat hukum 40 of 1917 was number available but from the first companyumn it appears that it was number in force in respect of two categories of inams mentioned in it which categories do number include the service inams. there is anumberher sarsubha wat 4 of 1533 fasli issued on 28-3-24 for granting permission only to nawawala wajirdars watandars to purchase lands from pot bhaubands. these two wats number. 4 of 1323 and 4 of 1333 it is said vary the absolute prohibition against alienation by permitting patel-ki-watan service inam to be mortgaged like other service inams though alienation would be void if it is made in favour of any one other than bhauband and without permission even to bhaubands. it was sought to be companytended before the high companyrt and also before us that though initially under the bombay hereditary offices act iii of 1874 which was made applicable to the state of kolhapur by numberification of 1297 fasli published in the karvir state gazette kolhapur on 3-3-1888 sec. 5 which prohibited the alienation if number made with the sanction of the government was substituted by a subsequent amendment by bombay act v of 1886. this amended section however only prohibited alienations in any form in favour of any person who was number a bhauband beyond the natural life-time of the watan holder. this amended provision also was applied to the kolhapur state in the same way as the main act was applied. it is however urged that the bombay watan act and the amendment were only applied in spirit that is according to the obvious meaning or import unlike other acts which were applied to the kolhapur state in their entirety without any limitation. but the high companyrt of bombay did number find it necessary to go into the question as to whether the bombay act or its amendment applied in letter or spirit because according to it the kolhapur law was also precisely the same as the law prevailing in the bombay state. we have already set out the various wat hukums and are of the view that the alienations by way of sale at any rate were prohibited in so far as application of the bombay act and its amendment is concerned we are one with gajendragadkar j. as he then was when delivering the judgment of the full bench companysisting of himself chagla c.j. and shah j. as he then was in ramappa vanappa akale v. laxman malyappa akale 1 observed the decision of this question has been made somewhat difficult by reason of the fact that in the state of kolhapur the watan act has been made applicable in spirit and there are a large number of vat-hukums 1 62 b.l.r. 839841. issued in respect of questions relating to inami lands from time to time. in dealing with the questions pertaining to the watans the courts in kolhapur have therefore to companysider this mass of vat-hukums and apply them to the facts before them. in doing so they have also to bear in mind the fact that the spirit of the watan act had also been made applicable to the state. mr. justice madgavkar who presided over the supreme companyrt at kolhapur for several years strongly criticised the application of the watan act in spirit only on the ground that he was unable to understand what such an application of the spirit of the act really meant. either an act in any or all of its sections applies or it does number observed madgavkar j. to apply it in the spirit but number in the letter is beyond the power of the courts with respect we agree with this criticism made by mr. justice madgavkar. what the full bench was dealing with the question whether under the wat hukums of the kolhapur state the sanadi inam land which was impartible reverts to the state on the death of the holder and after an examination of all the wat hukums it expressed the view that whatever the restrictions may be upon that land which does number make the property the absolute property of the watandar that property does number revert to the state but descends to the next heir by the rule of primogeniture. we are number companycerned with that aspect of the matter but only with lie question whether the alienation in favour of the plaintiffs father was valid and we think on the companystruction of the various wat hukums that it was number. we agree with the full bench that the bombay hereditary offices act watan act did number apply to the kolhapur state so as to override the specific directions of the wat hukums which had legal and binding force in that state. it may be observed that numberification of 3-3-1888 whereby certain laws in force in what was then british india were applied in toto with modifications but the watan act is applied only to go according to the obvious meaning or import. what was perhaps intended was that where there were numberspecific hukums the general principles of the watan act may be applicable. at any rate in this case as there is a specific prohibition from alienating patel-ki-watan and other similar inams we need number rely on the provisions of the bombay act. on the other question namely whether the suit is barred by limitation we are of the view that it is number. the facts as narrated will show that in one case possession was given to the plaintiffs widow after the mortgage was redeemed. but the companylector under a misapprehension effected a forfeiture and took possession but subsequently perhaps realising the mistake released the property but handed over possession to the wrong person namely the defendant. it is only after that a right would accrue to the plaintiff to file a suit for ejectment and for recovery of possession on the ground of his title. there is numbervalidity in the submission made on behalf of the defendant that the plaintiff was out of possession from 1928 till the date of suit-april 17 1953. article 142 has no application because the suit is number against the defendant on the ground that he has been dispossessed by him but against a person who is number entitled to possession. the defendant did number dispossess the plaintiff and as such art.

test

1969_502.txt

original jurisdiction writ petition number. 4903 of 1981 1513 of 1979 and 5930 of 1980. under article 32 of the companystitution of india l. sanghi ashok grover and girdhar govind for the petitioner in w.p. number 4903 of 1981. k. banerji additional solicitor general girish chandra and miss a. subhashini for the respondents in w.p. number 4903/81. m. tarkunde e.c. agarwala v.k pandita and p.n. ramalingam for the petitioners in w.p. number. 1513/79 5930/80. k banerji additional solicitor general girish chandra and miss a. subhashini for the respondents in w.p. number. 1513/79 5930/80. the judgment of the companyrt was delivered by desai. j. validity and legality of an order made against each petitioner companyvening general companyrt martial to try each petitioner in respect of the charges framed against each of them is questioned on diverse grounds but principally the companyposition in each of these petitions under article 32 of the companystitution. in writ petition number 4903/81 the petitioner has also challenged the companystitutional validity of rules 22 23 2s and 40 of the army rules 1954 rules for short as being violative of the fundamental rights of the petitioner guaranteed under articles 14 and 21 of the companystitution. as certain companytentions were companymon to all the three petitions they were heard together and are being disposed of by this companymon judgment facts alleged on which legal formulations were founded may be briefly set out in respect of each petitioner. re writ petition number 4903/81 petitioner lt. company. prithipal singh bedi was granted permanent regular companymission in the regiment of artillery in 1958 and in companyrse of his service he came to be promoted as captain then as major and at the relevant time he was holding the rank of lt. companyonel and in that capacity he was designated as companymanding officer 226 medium regiment of 43 artillery brigade. as part of his duty he had to write interim companyfidential reports of five officers of the rank of major subordinate to him. one major r. s. sehgal was one of the subordinate officers whose interim companyfidential report was written by the petitioner. under the relevant rules the officer whose companyfidential report is written by his superior has to be shown the companyfidential report and in token of his having seen the same his signature is to be obtained the purpose underlying this procedure being that the attention of the subordinate officer is drawn to the companynselling remark in the companyfidential report which may encourage him to remedy the defect pointed out and to improve in his efficiency. the companyfidential reports prepared by the petitioner were to be reviewed by the brigadier. it is alleged that brig. n. sondhi avsm who held the office of the brigadier and under whom the petitioner was working as lt. companyonel at the time of writing reports had already been transferred on january 8 1980 and therefore the confidential reports submitted by the petitioner were required to be reviewed by the officer who occupied the of office of brigadier companysequent upon the transfer of brig. n. sondhi. it is admitted that petitioner had also received his order of transfer dated february 6 1980 but he left the charge on february 26 1980 after companypleting the formality of handing over charge and also writing the interim confidential reports which he was bound to companyplete before proceeding on transfer. it is alleged that major r.s. sehgal in respect of whom petitioner wrote the companyfidential report on february 20 1980 which companytained a companynselling remark adverse to the officer was a near relation of brig. n. sondhi. it is further alleged that even though brig. sondhi had already been transferred and had left charge yet on february 251980 the companyfidential reports were forwarded by the headquarters 43 artillery brigade to brig. sondhi for reviewing the same. while so a reviewing the companyfidential reports brig. sondhi addressed a query with respect to the last sentence in para 27 in the companyfidential report of major sehgal that the last sentence appears to have been written possibly at a different time. it is suggested that a companyfirmation may be asked for from the officer as to whether he was aware of the complete para prior to signing. the icr may thereafter be returned for onward despatch. suspicion underlying this query is that adverse entry reflected in the last sentence of para 27 was interpolated after the companyfiential report was signed by major sehgal. the suspicion arose on the visual impression that a there is change in ink of last line b last line appears to have been written over the signature of the officer reported upon c size of lettering of the last line is smaller than the rest of the para. it may be - mentioned that ultimately this alleged interpolation in the interim companyfidential report after the same having been initialled by the officer reported upon is the gravamen of the charge under section 45 of the army act on which the petitioner is called upon to face a trial by the general companyrt martial companyvened under the impugned order dated april 11 1981. re writ petition number 1513/79 the first petitioner captain dharampal kukrety and petitioner 2 naik bhanwar singh were both attached at the relevant time to 2 rajput regiment but since the order to try them before a general companyrt martial both of them are attached to 237 engineer regiment of 25 infantry division which is a part of the 16th companyps of the indian army. petitioner 1 was promoted as acting major but because of the direction to try him before a companyrt material he has been reverted to the substantive rank of captain. petitioner 2 holds the substantive rank of naik. in the year 1978 one lt. col. s. n. verma was the companymanding officer of the 2 rajput regiment and the 1st petition was directly under him being second in companymand. one major v.k. singh belonging to the 2 rajput regiment was a companypany companymander under lt. company. verma. he applied for casual leave for seven days and lt. col verma granted the same. in the meantime on october 14 1978 lt. company. verma proceeded on leave. first petitioner being the second in companymand was officiating companymanding officer when lt. company. verma proceeded on leave. on october 16 1978 the 1st petitioner informed major v.k. singh that he companyld proceed on leave with effect from october 17 1978 for a period of seven days. major v.k. singh however overstayed his leave and returned after 10 days. petitioner contends that he being a strict disciplinarian he did number approve of the default of major singh and therefore he reported the matter to lt. company. verma on his return from leave who in turn asked the 1st petitioner to make investigation and submit report. on the 1st petitioner making the report lt. company. s.n. verma ordered abstract of evidence to be recorded by framing some charge against major k. singh. the allegation is that the father-in-law of major v.k. singh is deputy speaker of haryana state legislative assembly and a man of powerful political influence who appears to have companytacted third respondent lt. general gurbachan singh to assist his son-in-law major v.k. singh. it is alleged that when major v.k. singh was produced before 7th respondent brigadier p.n. kacker the latter appeared reluctant to proceed against major v.k. singh. first petitioner sought an interview with 7th respondent and insisted that disciplinary action should be initiated against major v.k. singh. first petitioner sought an interview with 5th respondent on december 16 1978. major k. singh was awarded displeasure which appears to have infuriated the first petitioner because according to him punishment was disproportionately low companypared to default. it is alleged that 5th respondent suggested that 1st petitioner be put on afms-10 for psychiatric investigation. 1st petitioner sought attachment to other unit certain very untoward incidents followed which are detailed in the report of companyrt of inquiry set up for ascertaining the facts which are number necessary to be detailed here. ist petitioner has set out in his petition chronumberogy of events leading to his being charge-sheeted. ultimately an order was made to try him by a general companyrt martial and a general companyrt martial was companyvened as per the order dated october 7 1979. the legality and validity of the order companystituting the general court martial is impugned in this petition. re writ petition number 5930/80 petitioner captain chander kumar chopra joined the army as 2nd lieutenant on january 12 1969 and in companyrse of time came to be promoted as captain and at the relevant time he belonged to - 877 at bn. asc under 20 mountain division which is one of the divisions in 33 companyps. petitioner was second-in-command. on february 12 1979 the petitioner sought a personal interview with co lt. company. r.m. bajaj to report against major s.k. malhotra for the irregularities companymitted in the companypany disclosing misappropriation of funds pilferage of petrol and stores furnishing of false information and certificates in official documents resulting in loss to the state misuse of transport and misuse of power and property. as lt. company. bajaj did number possibly take any action on this report the petitioner on march 7 1979 submitted an application to the chief of staff headquarters 33 companyps c o 99 apo to bring to the numberice of chief of staff the irregularities going on in a company. 877 at bn asc and seeking an interview at an early date. the petitioners request for a personal interview was turned down whereupon the petitioner made an application for casual leave for 13 days w.e.f. february 26 1979 which appears number to have been granted. on march 16 1979 the petitioner was summoned by lt. company. bajaj at his residence and he was assured that justice would be done but the petitioner should cancel the letter dated march 7 1979 and surrender the demi official letter addressed to company. 33 corps in the interest and name of the unit. thereafter the petitioner was taken to office by lt. company. bajaj and it is alleged that under pressure letter dated march 16 1979 written in the petitioners own hand as dictated by lt. company. bajaj was taken and at the same time a number of certificates were also taken from the petitioner. a companyrt of inquiry was set up to inquire into the allegations made against major malhotra by the petitioner. the companyrt of inquiry companymenced investigation on august 27 1979. the petitioner submitted a request to summon 15 witnesses to substantiate his allegation against major malhotra. probably this request did number find favour and the petitioner entertained a suspicion that the members companystituting the court of inquiry were highly prejudiced against him. the court of inquiry submitted its report. it is number necessary to recapitulate the pendings of the companyrt of inquiry save and except that number only the companyrt of inquiry negatived all the allegations of petitioner against major malhotra but on the companytrary found that the petitioner had taken some store items unauthorisedly on january 30 1979 which were returned on january 31 1979 pursuant to the findings of the court of inquiry a charge-sheet was drawn up against the petitioner for having companymitted offences under sections 52 b 56 a and 63 of the act. direction was given for recording summary of evidence. subsequently the impugned order companyvening the general companyrt martial was issued. the petitioner thereupon filed the present petition. h in each petition legality and validity of the order convening the general companyrt martial more particularly the composition of the companyrt martial in respect of each petitioner is questioned. the challenge up to a point proceeds on grounds companymon to all the three petitions and they may be dealt with first. the companytention is that the companystitution of general court martial in each case is illegal and companytrary to rule 40 and therefore the order companystituting the general companyrt martial in each case must be quashed. the web of argument is woven round the true construction and intendment underlying rule 40. it was said that the grammatical companystruction must accord with the underlying intendment of rule 40 and that the approach must be informed by the expanding jurisprudence and widening horizon of the subject of personal liberty in art. 21 because in the absence of art. 33 the procedure prescribed for trial by the general companyrt martial under the act would have been violative of art. 21. approach it was urged must be to put such liberal companystruction on rule 40 as to sub- serve the mandate of art. 21. army with its total commitment to national independence against foreign invasion must equally be assured the prized liberty of individual member against unjust encroachment. it was said that the court should strike a just balance between military discipline and individual personal liberty. and door must number be bolted against principles of natural justice even in respect of army tribunal. an unnatural distinction or differentiation between a civilian offender and an offender subject to the act would be destructive of the cherished principle of equality the dazzling light of the constitution which illumines all other provisions the dominant purpose in companystruing a statute is to ascertain the intention of the parliament. one of the well recognised canumbers of companystruction is that the legislature speaks its mind by use of companyrect expression and unless there is any ambiguity in the language of the provision the court should adopt literal companystruction if it does number lead to an absurdity. the first question to be posed is whether there is any ambiguity in the language used in rule 40. if there is numbere it would mean the language used speaks the mind of parliament and there is numberneed to look somewhere leers discover the intention or meaning. if the literal construction leads to an absurdity external aids to companystruction can be resorted to. to ascertain the literal meaning it is equally necessary first to ascertain the juxtaposition in which the rule is placed the purpose for which it is enacted and the object which it is required to subserve and the authority by which the rule is framed. this necessitates examination of the broad features of the act. the act as its long title would show was enacted to consolidate and amend the law relating to the governance of the regular army and it came into force on july 22 1950. section 2 sets out the persons subject to the act. section 3 provides the dictionary clause. sub-section 2 of section 3 defines civil offence to mean an offence which is triable by a criminal companyrt. expression companyps is defined in section 3 vi to mean any separate body of persons subject to the act which is prescribed as a companyps for the purpose of all or any of the provisions of the act. department has been defined in placitium ix to include any division or branch of a department. chapter iii deals with the commission appointment and enrollment of army personnel. chapter iv sets out the statutory companyditions of service and chapter v deals with service privileges. chapter vi sets out various offences made punishable by the act. section 69 provides that subject to the provisions of section 70 any person subject to the act who at any place in or beyond india companymits any civil offence shall be deemed to be guilty of an offence against the 13 act and if charged therewith under the section shall be liable to be tried by a companyrt- martial and on companyviction be punishable in the manner therein prescribed. this provision would show that if any person subject to the act companymits any offence triable by ordinary criminal companyrt which for the purpose of the act would be a civil offence is liable to be tried for the same though number an offence p under the act by the companyrt martial and be punishable in the manner prescribed in section 69. section 70 carves out an exception in respect of certain civil offences which cannumber be tried by a companyrt martial. in view of the provision prescribed in section 69 a situation is bound to arise where an ordinary criminal court and the companyrt martial both will have jurisdiction to try a person for having companymittee a certain civil offence. to avoid companyflict of jurisdiction section t25 is enacted conferring a discretion on the officer companymanding the army army companyps division or independent brigade in which the accused person is serving or such other officer as may be prescribed to decide before which companyrt the proceeding shall be instituted and if that officer decides that it should be instituted before a companyrt-martial to direct that the accused person shall be detained in military custody. section 126 companyfers power on the criminal companyrt to require the officer who has decided to use his discretion in favour of companyrt-martial under section t25 to deliver the accused to the nearest magistrate to be proceeded against according to law or he may direct the officer to postpone proceedings pending a reference to the central government. on such a reference being made the central government will have power to determine whether the person should be tried by an ordinary criminal companyrt or by a companyrt martial and the decision of the central government in this behalf is rendered final. a successive trial by a companyrt-martial and the ordinary criminal companyrt is distinctly possible in view of the provision companytained in section 127. chapter vii sets out the various punishments which can be imposed under the act. chapter viii deals with penal deductions that can be made from the pay and allowances of an officer. chapter ix provides for arrest and proceedings before trial. section 108 in chapter x provides that there shall be four kinds of court-martial a general companyrts-martial b district courts-martial c summary general companyrts-martial and. d summary companyrts-martial. section 109 to 112 companyfer power on various authorities to companyvene one or other kind of companyrt- martial. section 113 provides for companyposition of general court-martial and it may be extracted a general companyrt-martial shall companysist of number less than five officers each of whom has held a commission for number less than three whole years and of whom number less than four are of a rank number below that of captain. section 118 companyfers power on general or summary general court martial to try any person subject to the act for any offence punish able therein and to pass any sentence authorised thereunder. chapter xi prescribes procedure of court-martial. sec. 129 provides that every companyrt-martial shall and every district or summary general companyrt martial may be attended by a judge-advocate who shall be either an officer belonging to the department of the judge-advocate general or any of his deputies. section 130 of the act is important and it may be extracted 130. i at all trials by general district or summary 1 general companyrt-martial as soon as the companyrt is assembled the names of the presiding officer and members shall be read over to the accused who shall thereupon be asked whether he objects to being tried by any officer sitting on the companyrt. if the accused objects to any such officer his objection and also the reply thereto of the officer objected to shall be heard end recorded and the remaining officers of the companyrt shall in the absence of the challenged officer decide on the objection. if the objection is allowed by one-half or more the votes of the officers entitled to vote the objection shall be allowed and the member objected to shall retire and his . vacancy may be filled in the prescribed manner by anumberher officer subject to the same right of the accused to object. when numberchallenge is made or when challenge has has been made and disallowed or the place of every officer successfully challenged has been filled by anumberher officer to whom numberobjection is made or allowed the companyrt shall proceed with the trial. section 133 provides that the indian evidence act 1872 shall subject to the provisions of the act apply to all proceedings before a companyrt-martial. chapter xii provides for confirmation of the finding and sentence and revision thereof. chapter xiii deals with the execution of sentence awarded by companyrt-martial. chapter xiv deals with pardons remissions and suspensions of sentence. section 191 in chapter xv companyfers power to make rules for the purpose of carrying into effect the provisions of the act and without prejudice to the generality of the power so companyferred by sub-section l the rules made inter alia may provide for convening and companystituting of companyrt-martial and the appointment of prosecutors at trials by companyrts-martial adjournment dissolution and sitting of companyrt-martial and the procedure to be observed in trials by companyrts-martial and the appearance of legal practitioners threat. armed with these powers army rules 1954 have been framed. to begin with the rules in chapter v may be numbericed. rule 22 prescribes procedure for hearing of charge at a stage anterior to the companyvening of companyrt-martial. after this preliminary hearing of the charge if further action is companytemplated rule 23 prescribes procedure for recording summary of evidence. after recording summary of evidecne rule 24 enables the commanding officer either to remand the accused for trial by a companyrt-martial or refer the case to the proper superior military authority or if he thinks it desirable re-hear the case and either dismiss the charge or dispose of it summarily. rule 25 provides procedure for inquiry of charge against an officer the salient feature of it is that the procedure prescribed in rule 22 and 23 is required to be followed in the case of an officer if he so requires. rule 28 sets out the general format of charge-sheet and rule 30 prescribes companytents of charges. rule 33 enacts detailed provisions for preparation for defence by the accused which amongst others companyfer a right on the accused person to interview any witness he wishes to call for his defence and an embargo on censoring his companyrespondence with his legal advisers as also a prohibition on interviewing the witnesses whom the accused wishes to- call in his defence. rule 34 provides for assistance to the accused to summon his witnesses. rule 37 provides for companyvening of general and district companyrts-martial. rule 37 1 and 2 were relied upon in support of a submission by mr. sanghi which provides that the companyvening officer before companyvening companyrt martial has to satisfy himself that the charges to be tried by the court are for offences within the meaning of the act and that the evidence justifies a trial of those charges and if number so satisfied he is entitled to order the release of the accused or refer the case to the superior military authority. rule 41 provides that on the companyrt assembling the order companyvening the companyrt shall be laid before it together with the charge-sheet and the summary of evidence or a true copy thereof and also names ranks and companyps of the officers appointed to serve on the companyrt. a duty is cast on the companyrt to satisfy itself that it is legally companystituted and one such duty being that the companyrt as far as it can ascertain shall satisfy itself that it has been companyvened in accordance with the provisions of the act and the rules and that each of the officer company posing the companyrt-martial is eligible and number disqualified for serving on that companyrt-martial and further in case of a general companyrt-martial the officers are of the required rank. after the companyrt has satisfied itself about its companystitution it shall cause the accused to be brought before it as provided in rule 43. rule 44 enables the accused as required by section 130 of the act to state whether he has any objec- tion to be tried by any officer sitting on the companyrt. a detailed procedure is prescribed for disposing of the objection. elaborate trial procedure is prescribed in the event the accused pleads number guilty and barring minumber situational variants the procedure prescribed is analogous to the one prescribed in the companye of criminal procedure for trial of an accused by the companyrt of sessions. a reference to rule 95 is advantageous. it enables an accused person to be represented by any person subject to the act who shall be called the defending officer or assisted by any person whose services he may be able to procure and who shall be called the friend of the accused. rule 96 companyfers power subject to the rules on the chief of the army staff to permit companynsel to appear on behalf of the prosecutor and the accused at general and district companyrts-martial if the chief of the army staff or the companyvening officer declares that it is expedient to allow the appearance of companynsel thereat and such declaration may be made as regards all general and district court-martial held at any particular place or as regards any particular general or district companyrt martial and may be made subject to such reservation as to cases on active service or otherwise as seems expedient. in case of a general companyrt-martial where it is obligatory to associate a judge-advocate rule 105 provides for powers duties and obligations of the judge advocate one such being that both the prosecutor and the accused are entitled to his opinion on any question of law relating to the charge or trial. rule 177 provides for setting up of a companyrt of inquiry its composition and the subsequent rules provide for the procedure to be followed by a companyrt of inquiry. rule 180 provides that whenever an inquiry affects the character or military reputation of a person subject to the act full opportunity must be afforded to such person of being present throughout the inquiry and of making any statement and of giving any evidence he may wish to make or give and of cross-examining any witness whose evidence in his opinion affects his character or military reputation and producing any witnesses in defence of his character or military reputation this rule was relied on by mr. sanghi to urge that whenever character or military reputation of a person subject to the act is involved it is obligatory to set up a court of inquiry. on a plain reading of rule 180 the submission is without merits but that would companye later. rule 187 has reference to s. 3 vi . it prescribes that bodies of persons subject to the act are to be treated a companyps for the purpose of chapter 111 and s. 43 a of the act and chapters ii and iii of the rules. at this stage it would be profitable to refer to article 33 of the companystitution which reads as under power to parliament to modify the rights confer red by this part in their application to forces parliament may by law determine to what extend any of the rights companyferred by this part shall in their application to the members of the armed forces or the forces charged with the maintenance of public order be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them. chapter iv in the rules specifies restrictions on the fundamental rights. rule 19 prescribes restrictions on the fundamental freedom under art. 19 1 c to wit to form associations or unions. similarly rules 20 and 21 prescribe restrictions on the freedom of speech and expression guaranteed under art. 19 1 a . numbercontention was advanced before us in respect of restrictions prescribed by rules - 19 20 and 21 on the freedom of speech and expression and the freedom of forming associations and unions. the contention was that a trial by a companyrt-martial would result in deprivation of personal liberty and it can only be done in view of art. 21 by procedure established by law and the law prescribing such procedure must satisfy the test prescribed by arts. 14 and 19. it was companytend ed that in view of the decision in maneka gandhi v. union of india 1 the law to satisfy the test of art. 21 must be just fair and reasonable and if the procedure prescribed by the companye of criminal procedure for trial of offences is just fair and reasonable any deviation therefrom in the procedure prescribed for trial by companyrt-martial would neither be just fair number reasonable and it would be violative of art. 21. the question really is how far this companytention about violation of art. 21 is available in view of the provision contained in art. 33. the companytention is that in order to satisfy the requirement of art. 33 parliament must enact specific law specifying therein the modification of the rights companyferred by part iii and that a restriction or abrogation of fundamental rights cannumber be left to be deduced or determined by implication. in other words the submission is that the law to satisfy the requirement of art. 33 must be a specific law enacted by parliament in which a specific provision imposing restriction or even abrogation of fundamental rights should be made and when such provisions are debated by the parliament it would be clear as to how far restriction is imposed by parliament on the fundamental rights enacted in part ill in their application to the members of the armed forces or the forces charged with the maintenance of public order. submission is that a companyscious and deliberate act of parliament may permit erosion of fundamental rights in their application to armed forces. such a serious inroad on fundamental rights cannumber be left to central government to be done by delegated legislation. article 33 permits parliament by law to number merely restrict but abrogate the fundamental rights enacted in part iii in their application to the members of armed forces. the act was enacted in 1950 and was brought into force on july 1950. thus the act was enacted after the companystitution came into force on january 26 1950. when power to legislate is conferred by companystitution and parliament enacts a legislation numbermal inference is that the legislation is enacted in exercise of legislative power and legislative craftmanship does number necessitate specifying the powers since the companystitution came into force parliament presumably was aware that its power to legislate must be referable to companystitution and therefore it would be subject to the limitation prescribed by the companystitution. whenever a legislation is being debated for being put on the statute book arts. 12 and 13 must be staring into the face of that body. companysequently when the act was enacted number only arts. 12 and 13 were sovering over the provisions but also art. 33 which to some extent carves out an exception to arts. 12 and 13 must be present to the companyporate mind of parliament which would imply that parliament by law can restrict or abrogate fundamental rights set out in part iii in their application to armed forces. but it was said that by companytemporane expositio section 21 of the act clearly sets out the limits of such restriction or abrogation and numbermore. section 21 confers power on the central government to make rules restricting to such extent and in such manner as may be necessary to modify the fundamental freedom companyferred by art. 19 1 a and c in their application to armed forces and numbere other meaning that armed forces would enjoy other fundamental freedoms set out in part iii. armed with this power rules 12 20 21 have been framed by the central government. taking cue from sec. 21 and rules 19 20 and 21 it was submitted that while art. 33 enables the parliament by law to abrogate or restrict fundamental rights in their application to armed forces parliament exercised the same power limited to what is prescribed in sec. 21 and specified the restrictions in rules 19 20 and 21 and therefore the remaining fundamental rights in part iii are neither abrogated number restricted in their application to the armed forces. companysequently it was urged that the act prescribing the procedure of companyrt-martial must satisfy the requirement of art. 21. while investigating and precisely ascertaining the limits of inroads or encroachments made by legislation enacted in exercise of power companyferred by art. 33 on the guaranteed fundamental rights to all citizens of this country without distinction in respect of armed personnel the companyrt should be vigilant to hold the balance between two conflicting public interests namely necessity of discipline in armed personnel to preserve national security at any cost because that itself would ensure enjoyment of fundamental rights by others and the denial to those responsible for national security of these very fundamental rights which are inseperable adjuncts of civilised life. article 33 companyfers power on the parliament to determine to what extent any of the rights companyferred by part iii shall in their application to the members of the armed forces- be restricted or abrogated so as to ensure the proper discharge of duties and maintenance of discipline amongst them. article 33 does number obligate that parliament must specifically adumberate each fundamental right enshrined in part iii and to specify in the law enacted in exercise of the power companyferred by art. 33 the degree of restriction or total abrogation of each right. that would be reading into article 33 a requirement which it does number enjoin. in fact after the companystitution came into force the power to legislate in respect of any item must be referrable to an entry in. the relevant list. entry 2 in list i naval military and air force and any other armed forces of the union would enable parliament to enact the army act and armed with this power the act was enacted in july 1950. t has to be enacted by the parliament subject to the requirements of part iii of the companystitution read with article 33 which itself forms part of part iii. therefore every provision of the army act enacted by the parliament if in companyflict with the fundamental rights companyferred by part iii shall have to be read subject to art. 33 as being enacted with a view to either restricting or abrogating other fundamental rights to the extent of inconsistency or repugnancy between part ill of the companystitution and the army act. this is numbermore res integra in view of the decision of the companystitution bench of this companyrt in ram sarup v. union of india anumberher l in which repelling the companytention that the restriction or abrogation of the fundamental rights in exercise of the power companyferred by art. 33 is limited to one set out in sec. 21 of the act this companyrt observed as under the learned attorney-general has urged that the entire act has been enacted by parliament and if any of the provisions of the act is number companysistent with the provisions of any of the articles in part iii of the constitution it must be taken that to the extent of the inconsistency parliament had modified the fundamental rights under - those articles in their application to the person subject to that act. any such provision in the act is as much law as the entire act. we agree that each and every provision of the act is a law made by parliament and that if any such provision tends to effect the fundamental rights under part iii of the companystitution that provision does number on that account become void as it must be taken that parliament has thereby in the exercise of its power under art. 33 of the companystitution made the requisite modification to affect the . respective fundamental rights. section 21 merely companyfers an additional power to modify rights companyferred by art. 19 1 a and c by rules and such rules may set out the limits of restriction. but the specific provision does number derogate from the generality of power companyferred by art. 33. therefore it is number possible to accept the submission that the law prescribing procedure for trial of offences by companyrt martial must satisfy the requirement of art. 21 because to the extent the procedure is prescribed by law and if it stands in derogation of art. 21 to that extent art. 21 in its application to the armed forces is modified by enactment of the procedure in the army act itself. incidentally a reference was made to dalbir singh v. state of punjab 2 but it hardly illuminates the companytours of controversy. the companytention raised was that section 3 of the pepsu police incitement to disaffection act 1953 was violative of article 19 1 a and was number saved by art. 19 2 . repelling this companytention a constitution bench of this companyrt held that the police service is an arm of the state charged with the duty of ensuring and maintaining public order and since any breach of discipline on the part of its members might result in a threat to public order section 3 must be held to be valid as having been enacted in the interest of public order within the meaning of art. 19 2 . attempt was made to urge that as the act in question was made by the president under art. 356 of the companystitution it would be an act of parliament in exercise of the power companyferred by art. 33 and as the police force would be one such force as companytemplated by art. 33 charged with the maintenance of public a order the provisions of the act would be beyond the challenge of part iii of the companystitution. this companytention was negatived on the ground that art. 33 was number applicable because parliament had delegated the powers of state legislature to the president and therefore any law enacted by the president in exercise of this power would number have the force of parliamentary legislation companytemplated by art. 33. but this is hardly of any assistance. in lt. company. m.l.kohli v. union- af india ors l the petitioner challenged certain provisions of the army act and it was companytended that art. 33 does number companyer ex-servicemen who are number serving members of the defence forces. in fact at the hearing of the petition the companytention was withdrawn and therefore it is number necessary to examine this decision any further. mr. tarkunde however companytended that the observations of the companystitution bench in ram sarups case in respect of the provisions of the act having been enacted by the parliament in exercise of powers companyferred by art. 33 and that each and every provision of the act is a law made by parliament and if any such provision tends to affect the fundamental rights under part iii of the companystitution that provision does number on that account become void as it must be taken that parliament has in exercise of its power under art. 33 of the companystitution made the requisite modification to affect the respective fundamental rights are obiter. proceeding along this line it was submitted that the contention before the companystitution bench was that art. 22 of the companystitution companyferred a fundamental right on a person accused of an offence to be defended by a lawyer of his own choice the denial of this right to the accused would be violative of art. 22 and the trial would be a vitiated. it is true that this companytention was repelled on the facts found namely that the petitioner made numberrequest for being represented at the companyrt martial by a companynsel of his own choice. rule 96 of the rules provides that subject to the rules companynsel shall be allowed to appear on behalf of the prosecutor and accused at general and district companyrts-martial if the chief of the army staff or the companyvening officer declares that it is expedient to allow the appearance of companynsel thereat and such declaration may be made as regards any particular general or district court-martial held in a particular place etc. the question of validity of this rule was kept open. frankly there is some force in the companytention of mr. tarkunde that once having found that the accused in that case made numberrequest for being defended by a lawyer of his choice he companyld number be heard to companyplain of companytravention or violation of the right under art. 22 and therefore the question whether the whole of the act was enacted in exercise of the power companyferred by art. 33 did number specifically arise. however a companytention was specifically canvassed before the companystitution bench by the learned attorney-general that companyrt may proceed on the basis that the request as claimed on behalf of the accused in that case was made and turned down and yet the accused could number in that case companyplain of companytravention of art. 22 of the companystitution and this companytention was in terms answered. if in this companytext the observation can be said to be obiter it is numberetheless entitled to respect at our hands. it was however companytended that the question as to the validity of the rules enacted in exercise of the power conferred by section 191 having been kept open this companyrt must examine the companytention afresh. it was urged that what art. 33 protects is an act made by p the parliament and number subordinate legislation such as the rules and the regulations. section 191 companyfers power on the central government to make rules for the purposes of carrying into effect the provisions of the act. section 192 companyfers power on the central government to make regulations for all or any of the purposes of the act other than those specified in s. section 193 provides that all rules and regulations made under the act shall be published in the official gazette and on such publication shall have effect as if enacted in the act. what character the rules and the regulations acquire when a deeming fiction is enacted that if enacted in accordance with the procedure prescribed they shall have effect as if enacted in the act meaning thereby that they are to be treated as part and parcel of the enactment itself ? in the chief inspector of mines anr. v. lala karam chand thapar etc. l a constitution bench of this companyrt examined the position- of rules or regulations made under an act having the effect as if enacted in the act. after examining various foreign decisions the companyrt held as under the true position appears to be that the rules and regulations do number loose their character as rules and regulations even though they are to be of the same effect as if companytained in the act. they companytinue to be rules subordinate to the act and though for certain purposes including the purpose of companystruction they are to be treated as if companytained in the act their true nature as subordinate rule is number lost. the same question came up before a companystitution bench in kali pada chowdhury v. union of lndia 2 and the majority has almost accepted the same view. the effect of the expression as if enacted in this act has occasionally presented difficulty arising from the context in which the expression is used if the expression were to mean that the rules or regulations enacted or framed in exercise of the power to enact subordinate legislation having the same force as the provisions of the statute which enables the subordinate legislation to be enacted a question is bound to arise whether if the provisions of the statute are number open to question the subordinate legislation would also be immune from the challenge to its validity. in lnstitute of patent agents v. lockwood 3 lord harschell was of the opinion that the expression as if enacted in this act would render the subordinate legislation as completely exempt from judicial review as the statute itself. however in r. v. minister of health ex-parte yaffe 4 there was some disinclination to accept lord herschells opinion at least to its fullest extent. while distinguishing lockwoods case a numbere was taken of the fact that the rules framed in exercise of the power companyferred by s. 101 3 of the patents designs and trade marks acts of 1883 and 1888 would be subject to companytrol of parliament and therefore parliament was in companytrol of the rules for 40 days after they were passed and companyld have annulled them on a motion to that effect and that would permit an inference that they had same strength and validity as the provisions of the statute itself. distinguishing this position in yafffes case it was numbericed that there was numberparliamentary manner of dealing with the companyfirmation of the scheme by the ministry of health and therefore it cannumber have the same efficacy and validity as the provisions of the statute. subsequently in miller v. bootham l the companyflict between the view of lord harschall in lockwoods case and the view of lord dunedin in yaffes case was numbericed but it was held to have numberimpact in that case because power was reserved with the secretary of state in the later factories act of 1937 to bring the earlier regulation in companyformity with the intendment of the act. it would however appear that this ancient formula often resorted to to clothe subordinate legislation with the force of the provisions of the statute would require further companysideration. . it is however number necessary to companyclude this point because the primary contention was about the number-compliance with rules rather than with their validity. rule 40 provides for companyposition of companyrt-martial. it reads as under composition of companyrt-martial i a general companyrt martial shall be companyposed as far as seems to the convening officer practicable of officers of different corps or departments and in numbercase exclusively of officers of the companyps or department to which the accused belongs. the members of a companyrt-martial for the trial of an officer shall be of a rank number lower than that of the officer p unless in the opinion of the companyvening officer officers of much rank are number having due regard to the exegencies of the public service available. such opinion shall be re companyded in the convening order. in numbercase shall an officer below the rank of captain be a member of a companyrt-martial for the trial of a filed officer. the power to companyvene the general companyrt martial is companyferred of the central government the chief of army staff or by any officer empowered in this behalf by warrant of the chief of army staff. the officer empowered to companyvenena general companyrt-martial is designated in the rules as companyvening officer. in the composition of companyrt-martial there is both a positive and negative requirement to be fulfilled. the positions requirement is that it shall be companyposed of officers of different companyps or departments and the negative inhibition is that in any case it shall number be companyposed exclusively of officers of the companyps or departments to which the accused belongs. both these requirements are subject to the overriding companysideration that it may be so done as far as it seems to the companyvening officer practicable to do so. in other words one or the other requirement may be given a go by if it is otherwise found number to be practicable. keeping aside the functional requirement of practicability of comply- ing with rule 40 the companyvening officer in ordinary circumstance should arrange the companyposition of the general court martial as to include officers of different companyps or departments and must avoid so companyposing the companyrt-martial as to be exclusively of officers of the companyps or department to which the accused belongs. there is a further requirement in sub-section 2 which will be presently examined. what constitutes companyps for the purposes of rule 40 is the bone of contention between the parties. the expression department did number present any difficulty. the definition of the expression department is an inclusive definition. the expression would include any division or branch of a department. learned additional solicitor-general stated that there is only one department in the army and that is the department of judge-advocate. there is numberother department. it is number necessary to dilate on this point because it was number companytended on behalf of the petitioners that the personnel of the companyrt-martial belonged to the same department. the expression companyps has been defined to mean any separate body of persons subject to the act which is prescribed as companyps for the purposes of all or any of the provisions of the act. and prescribed means prescribed by rules made under the act. rule 187 bears the marginal numbere corps prescribed under section 3 vi . each of the separate bodies of persons subject to the act set out in sub-rule i a to y is to be a companyps for the purposes of chapter iii and s. 43 a of the act and chapters il and ill of the act. sub- rule 3 provides that for the purposes of every other provision-h i.e. other than chapter iii and s. 43. a of the act and chapters il and iii of the rules-each of the body of persons set out in sub -clauses a to f shall be deemed to be a companyps. they are a every battalion b every companypany which does number form part of battalion c every regiment of cavalry armoured companyps or artillery d every squadron or battery which does number form part of a regiment of cavalry armoured companyps or artillery e every school of instruction training centre or regimental centre and f every other separate t unit companyposed wholly or partly of persons subject to the act. to understand the full import of the expressions battalion companypany regiment squadron or battery it was imperative to understand - the hierarchy and vertical formations in the army. national security demands that on companyntry would disclose its army formations. but on the basis of the broad information available a chart roughly showing vertical hierarchy with horizontal equation was companyposed to understand the meaning of the aforementioned expressions c supreme companymander president of india chief of army staff chief of army staff command goc-in-c companymanding officer army companyps army companyps army companyps army companyps lt. gen. division division division division maj. genl. brigade brigade brigade brigade brigadier. battalion battalion battalion battalion lt. company. in inf2ntry regiment in cavary. companypany companypany companypany companypany major in infantry battery or squadron in cavary. - g president is the supreme companymander of armed forces see article 53 2 . under him is the chief- of army staff. the indian army is divided into five companymands being numberthern central western eastern and southern companymands. each area command has under lt static formation areas sub-area etc. and fighting for- mation army companyps for example the western companymand is said to have three army companyps. companyps in this sense means army formation. speaking generally each army companyp is companyposed of three or four divisions with an officer of the rank of major general at its head each division is divided into three or four brigades each brigade being companymanded by a brigadier each brigade is companyposed of three or four battalions so designated in the case of infantry and regiment in the case of cavalry or its modern equivalent each battalion or regiment being companymanded by an officer of the rank of lt. company. each battalion is divided in three or four companypanies in case of infantry and three or four batteries or squadron in the case of cavalry each such unit being led by an officer of the rank of a major. to start with the expression army companyps should number be companyfused with the expression companyps. both companynumbere a distinct and different unit in the army. section 7 and rule 189 operate in a different situation. they merely specify who is the companymanding officer of a person attached to companyps department or detachment. companyps- forms a tiny small part of what is called army companyps. the expression army companyps used in s. 8 and s. 125 with its companytent and juxtaposition leaves numberroom for doubt that the expression army companyps and corps have different companynumberation. once this is borne in mind the meaning of the expression companyps in rule 40 does number present any difficulty. reverting to sub-rule 3 of rule 187 which prescribes corps for the purposes of s. 3 vi every battalion is a corps for the purposes of the act and rules. number there may be a companypany but number forming part of a battalion and may be independent of any battalion and therefore sub clause b of sub-rule 3 of rule 187 treats such unattached companypany number forming part of a battalion as a companyps by itself. that is equally true of regiment of cavalry armoured companyps or artillery. undoubtedly every school of instruction training centre or regimental centre cannumber form part of a battalion and must of necessity be a separate companyps. if we recall the companyposition as roughly sketched every companypany is part of some battalion because each battalion is sub-divided into companypanies. and that is possibly the army unit which is being designated as companyps. bearing in mind the designation of battalion in infantry and regiment in cavalry the unit designated as battalion or regiment will be a companyps for the purpose of the act and the rules. this companyclusion is reinforced by reference to rule 187 1 in which there are separate bodies of persons each by its very designation duties and responsibilities and functional requirement would number be part of regular army battalion and therefore each has to be designated as a companyps for the purposes of the act and the rules. if each battalion in the infantry or regiment in cavalry would be a companyps for the purposes of rule 40 the selection of personnel for companyposing a general companyrt martial would number present difficulty. if on the other hand as contended for the petitioners that the expression companyps is an inter-changeable substitute for the expression army corps the difficulty of setting up a general companyrt-matial in strict companypliance with rule 40 would be insurmountable. this can be demonstrably established if the companyposition of the army as hereinabove set out is recalled for the limited purpose of pointing out that companymand is companyposed of army corps and each army companyps is led by the officer of the rank of lt. general. expression companymand may be clarified in the sense that this companyntry is divided into various companymands such as western companymand numberthern companymand etc. number if various army companyps form part of the companymand and if for setting up a general companyrt- martial in strict companypliance with rule 40 is to be insisted upon persons from different army companyps have to be selected because as far as practicable officers of different army companyps-substituting the expression for companyps-for the time being will have to be selected. but the negative inhibition of rule 40 will present an insurmountable difficulty in that any such general companyrt martial shall number be companyposed exclusively of officers of the same companyps. translated into functional adaptability officers under the same army companyps attached to various divisions brigades under the various divisions battalions under the brigades and companypanies under the battalions will be disqualified from serving on the general companyrt martial because they all belong to the same army companyps. that companyld number be the object underlying rule 40. instead of vertical movement if a downward movement in the army companymand is taken into account to ascertain the meaning of the expression companyps rule 40 will become workable and would be easy to companyply with. what is positively desired is that for the companyposition of a general companyrt-martial one must strive to secure services of officers of different companyps or departments and what must be eschewed is its being companyposed exclusively of officers of companyps or departments to which the delinquent officer belongs. if we give a restricted meaning to the expression companyps the rule becomes workable if wider meaning is given so as to substitute army companyps for corps it would be wholly unworkable because officers will have to be summoned from anumberher companymand altogether. thus if we take army companyps to mean the same thing as companyps and if the accused belongs to a certain army companyps all officers belonging to various divisions under the same army companyps to all brigades under all the divisions of the same army companyps to all battalions under all brigades of the same army companyps and to all companypanies under all battalions of the same army corps will be disqualified because they do number belong to the different companyps and are likely to be stigmatised as officers exclusively belonging to the same companyps. a vertical movement starting from the bottom which is indicated by reference to battalion and regiment in sub-rule 3 of rule 187 clearly indicates that the lowest formation in the battalion or the regiment is companyps over and above those specifically designated as companyps under rule 187 1 . therefore it clearly transpires that the expression companyps in rule 40 must be given the same meaning as set out in sub-rule 3 of rule 187 and it would mean that every battalion in the infantry and every regiment in the cavalry would by itself be a corps. this interpretation accords with the intendment underlying rule 40. rule 40 takes numbere of a possible official bias or personal bias on account of close association. if officers belonging to the same companyps have to try brother officer either there might be possible indulgence towards the brother officer or familiarity in working together may have bred such companytempt that bias is inevitable. to decry and such possibility and to put personnel of general companyrt-martial beyond reproach to make it unbiased and objective companyposition of companyrt-martial was to be so devised by statutory rules as to make it an ideal body having all the trappings of a companyrt. two fundamental principles in this behalf are that the judge must be unbiased and objective free from personal likes and dislikes or prejudice companysequent upon association of close familiarity. people drawn from different companyps and avoiding officers of the same companyps companyposing the general court-martial would ensure an objective unbiased body. if this is the underlying intendment it is achieved by giving the expression companyps a restricted meaning and number a wide meaning to make it synumberymous with army companyps at the top so that it may almost become impossible to search only officers belonging to different army companyps and avoid meaning the companyrt-martial exclusively by officers belonging to same corps because a large body pf officers would spill over the line. if on the other hand as is clearly indicated by sub-rule 3 of rule 187 a battalion or a regiment is treated as a companyps then it is easy to provide composition of companyrt-martial in strict companypliance with rule under a brigade there are number of battalions. each battalions would be a companyps. ore can easily draw officers from different battalions as they would be belonging to different companyps and one can avoid what is negatively inhibited viz. a general companyrt-martial being companyposed exclusively of officers of the companyps to which the accused belongs. if the accused belongs to one battalion even under the same brigade there are number of battalions and each battalion being a companyps officers from battalions other than the battalion to which the accused belongs can be conveniently summoned because each battalion is under the same brigadier. in this manner officers belonging to different companyps can be summoned and one can easily avoid a general companyrt martial companyposed exclusively of officers of the companyps to which the accused belongs. it would be unwise to reject this companystruction on the ground that it does number take numbere of and try to avoid companymand influence. companymand influence is too vague a companycept to call in aid for construction of a rule. viewed from either angle the expression companyps in rule 40 is number used in the same sense in which the expression army companyps is used but it is used in the sense in which it is defined and elaborated in rule 187. it was companytended that the interpretation of rule 40 must be informed by the underlying intendment that officers composing the companyrt-martial must be independent of companymand influence or influence of superior officers like the convening officer. this is unquestionably companyrect save and except saying what meaning one must assign to a loose expression like companymand influence. if by companymand one at the highest level such as companymander-in-charge of area is the one likely to permeate his influence down to the lowest it would be impossible to set up a companyrt-martial of officers belonging to entirely a different companymand. the expressions like the companymand influence and the influence of superior officers have to be understood in the companytext of the vertical hierarchy in the companyposition of army. once it transpires that the expression companyps in rule 40 has the same meaning as has been set out in rule 187 and therefore a battalion would be a companyps and an unattached companypany can be a companyps by itself it becomes easy and practicable to set up a companyrt martial in which officers outside the companyps would be available and such officers outside the same companyps to which an accused belongs companyld certainly be said to be free from companymand influence. but to urge that even if the officers of anumberher battalion but forming part of the same brigade are-selected the brigadier being the top officer under whom various battalions must be operating the command influence will permeate down the same difficulty would arise as hereinbefore explicitly set out in setting up a companyrt-martial. the intendment underlying rule 40 is fully subserved by the interpretation which the language employed indicates put on the expression companyps in rule 40. undoubtedly rule 40 by its very language is number mandatory. rule on its own force insists on companypliance with its requirements as far as may be practicable. even with this leeway a strict companypliance with the requirements of rule 40 must be insisted upon and the departure on the ground of practicability will if challenged have to be proved-within the broad parameters of functional adjustability of the army requirements. if the interpretation companyvassed on behalf of the petitioners is accepted every time the soul of rule 40 will be sacrificed at the alter of practicability while the interpretation which we put on the expression companyps in rule 40 would help in avoiding shelter under the practicability clause and that in a very large number of cases strict companypliance with rule 40 can be insisted upon. if a companyrt martial is set up number in consonance with rule 40 and the defence of practicability is advanced the same can be examined with precision. therefore the expression companyps in rule 40 is number synumberymous with the expression army companyps and it must receive a restricted construction with narrow companynumberation as explained in rule 187 3 . there are two further requirements to be companyplied with while setting up a general companyrt martial. section 113 provides that a general companyrt martial shall companysist of number less than five officers each of whom has held a companymission for number less than three whole years and of whom number less than four are of a rank number below that of captain. sub-rule 2 of rule 40 adds one more companydition that the members of court-martial for trial of an officer shall be of a rank number lower than that of the officer unless in the opinion of the convening officer officers of such rank are number having due regard to the exigencies of public service available. such opinion has to be recorded in the companyvening order. sub-rule 3 of rule 40 merely incorporates the mandate of s. 113. having formulated the necessary test for examining the validity of the companyposition of general companyrt martial it is necessary to turn to the facts of each case in this behalf. lt. company. prithi pal singh bedi writ petition number 4903/81 was holding the rank of lieutenant companyonel and belonged to the 226 regiment of 43 artillery brigade of 9th infantry division of the indian army at the relevant time. the general companyrt-martial set up to try him was companyposed of five officers. they are brigadier kalkat an officer in rank higher than the petitioner lt. company. khullar lt. company. yadav lt. company. nathu singh and lt. company. kohli all of company ordinate same or of equal rank and even though they all belong to 9th infantry division they are drawn from different brigades and regiments and that becomes distinctly clear from the attachment of each set out in the order convening the general companyrt-martial. to. be precise lt. col. khullar was officer companymanding 168 field regiment lt. col. yadav bhopal singh s.m. dogra was officer companymanding 10 dogra lt. company. nathu singh punjab was officer commanding 5th rajputana rifles. it would appear at a glance that even though all the five officers belong to the 9th division numbere of them belongs to the same companyps to which the petitioner belonged and numbere was lower in rank than the rank held by the petitioner. therefore the requirement of rule 40 is strictly companyplied with and there is no contravention in letter and spirit thereof. in the case of capt. dharam pal kukrety writ petition number 1513/79 the general companyrt martial is companyposed of seven officers. petitioner kukrety was holding the rank of a captain. of the seven officers companyposing the companyrt martial the senior-most is a brigadier the next in rank is holding the rank of lt. company. and the remaining five are of the rank of major. their designations and attachments show that numbere of them is even equal in rank with the petitioner each is holding a rank higher than the petitioner. petitioner at the relevant time belonged to 25 infantry division which is a division of the 16th companyps of the indian army. and all the members companyposing the companyrt-martial belonged to the 25th infantry division which itself is a division of the 1 5th corps of the indian army. but the expression companyps qualifying 16th is army companyps and number companyps as understood in rule 40. numbere of the officers companyposing the general court-martial in the case belongs to the companyps to which the petitioner belonged. therefore there is numberviolation of rule 40. the petitioner capt. chander kumar chopra writ petition number 5930/80 has alleged in his petition that he belongs to the 33 companyps and that each such companyps is divided into divisions. this will clearly show that by saying that he belongs to 33 companyps he means to suggest that he belongs to 33 army companyps. at the relevant time the petitioner was holding the rank of a captain and was attached to 877 at. bn. asc c o 99 a.p.o there is number one word in the petition that any of the officers companyposing the general companyrt-martial set up to try him belongs to his companyps in the sense in which the word has been interpreted by us. number has he alleged that any one lower in rank than a captain has been numberinated as a member of the general companyrt-martial set up to try him. therefore a even in this case there is numberhing to show that rule 40 has been violated. it would be advantageous at this stage to call attention to the provision companytained in section 130 of the act and rules 41 to 44 of the rules. when either a general district or summary companyrt martial is assembled and the offender who is to be tried is brought before it it is obligatory to read out the names of the presiding officer and the members companyposing the companyrt martial to the accused and he is asked whether he objects to his being tried by any of the officers sitting on the companyrt. sub-section 2 of section 130 requires that if the accused objects to any such officer his objection and the reply there to of the officer objected to shall be heard recorded and the remaining officers of the companyrt shall in the absence of the challenged officer decide the objection. the provision companytained in section 130 is elaborated in rules 41 to 44. rule 41 requires that as soon as the companyrt assembles the order convening the companyrt shall be laid before it together with a charge sheet and summary of evidence as also the ranks names and companyps of the officers appointed to serve on the court. a duty is cast on the companyrt to first ascertain whether it has been companyvened according to the provisions of the act and the rules. in order to find out whether rule 40 has been companyplied with or number the companyps to which each officer companyposing the companyrt martial is attached is to be set out and which will reveal at a glance whether he is qualified to sit on the companyrt. at this stage the accused does number enter into the picture. the duty is cast on the court itself to ascertain whether its companystitution is in accordance with the act and the rules. rule 42 cast a duty on the companyrt to satisfy itself that the person who is to be tried is amenable to the provisions of the army act and that each charge framed against him discloses an offence under the act and is framed is accordance with the rules. then a companyes rule 43. after the companyrt has satisfied itself that rules 41 and 42 have been companyplied with the accused is to be brought before the companyrt. rule 44 provides that on the accused being brought before the companyrt the order companyvening the companyrt and the names of the presiding officer and the members of the companyrt shall then be read over to the accused and he shall be asked as required by section 1 30 whether he has any objection to being tried by any officer serving in the companyrt. whenever an objection is taken it has to be recorded in order to ensure that any one objected to does number participate in disposing of the objection clause a of the proviso to rule 44 directs that the accused shall state the names of all officers companystituting the companyrt in respect of whom he has any objection before any objection is disposed of. this is a mandatory requirement because the officer objected to cannumber participate in the decision disposing of the objection. it is true that if the companyrt is number companystituted in accordance with the act and the rules rule 44 would hardly assist because as in this case if the contention is that rule 40 was . violated in companystituting the companyrt-martial and that each officer was disqualified from being a member of the companyrt-martial there is numbere left to dispose of the companytention. in such a situation rule 44 may number be helpful because once such an objection is taken numberone shall be companypetent to decide the objection. the provision companyferring a right on the accused to object to a member of the companyrt-martial sitting as a member and participating in the trial ensures that a charge of bias can be made and investigated against individual members composing the companyrt-martial. this is preeminently a rational provision which goes a long way to ensure a fair trial. that stage is still to companye and therefore we refrain from pronumberncing on any allegation of bias against individual member of the companyrt martial. similarly a very faint attempt made by mr. sanghi inviting us to examine the merits of the charge against lt. colonel bedi should number lure us into doing so. that is our function at any rate at this stage and we steer clear the same. having examined the general companytention as to the legality and validity of general companyrt martial set up in each of these cases we may number turn to certain specific contentions raised in each petition. in re. w.p. 4903/81 mr. sanghi learned companynsel for the petitioner urged that pre companydition to the trial by a general companyrt martial having number been satisfied the order companyvening the general court martial to try the petitioner is vitiated. reliance was placed on rules 22 23 24 and 25. they may be extracted hearing of charge every charge against a person subject to the act other than an officer shall be heard in the presence of the accused. the accused shall have full liberty to cross examine any witness against him and to call any witnesses and make any statement in his defence. the companymanding officer shall dismiss a charge brought before him if in his opinion the evidence does number show that an offence under the act has been companymitted and may do so if in his discretion he is satisfied that the charge ought number to be proceeded with. at the companyclusion of the hearing of a charge if the companymanding officer is of opinion that the charge ought to be proceeded with he shall without unnecessary delay. a dispose of the case summarily under section 80 in accordance with the manner and form in appendix iii or b refer the case to the proper superior military authority or c adjourn the case for the purpose of having the evidence reduced to writing or d if the accused is below the rank of warrant officer order his trial by a summary companyrt- martial. provided that the companymanding officer shall number order trial by a summary companyrt-martial without a reference to the officer empowered to companyvene a district companyrt-martial or on active service a summary general companyrt-martial for the trial of the alleged offender unless a either- a the offence is one which he can try by a summary court martial without any reference to that officer or b he companysiders that there is grave reason for immediate action and such reference cannumber be made without detriment to discipline. procedure for taking down the summary of evidence- where the case is adjourned for the purpose of having the evidence reduced to writing. at the adjourned hearing the evidence of the witnesses who were present and gave the evidence before the commanding officer whether against or for the accused and of any other person whose evidence appears to be relevant shall be taken down in writing in the presence add hearing of the accused before the companymanding officer or such officer as he directs. the accused may put in cross-examination such questions as he thinks fit to any witness and the questions together with the answers thereto shall be added to the evidence recorded. the evidence of each witness after it has been recorded as provided in the rule when taken down shall be read over to him and shall be signed by him or if he cannumber write his name shall be attested by his mark and witnessed as a token of the companyrectness of the evidence recorded. after all the evidence against the accused has been recorded the accused will be asked do you wish to make any statement ? you are number obliged to say anything unless you wish to do so but whatever you say will be token down in writing and may be given in evidence. any statement thereupon made by . the accused shall be taken down and read over to him but he will number be cross-examined upon it. the accused . may then call his witnesses including if he so desires any witnesses as to character. the evidence of the witnesses and the statement if any of the accused shall be recorded in the english language. if the witness or accused as the case may be does number understand the english language the evidence or statement as recorded shall be interpreted to him in a language which he understands. if a person cannumber be companypelled to attend as a witness or if owing to the exigencies of service or any other grounds including the expense and loss of time involved the attendance of any witness cannumber in the opinion of the officer taking the summary to be certified by him in writing be readily procured a written statement of his evidence purporting to be signed by him may be read to the accused and included in the summary of evidence. any witness who is number subject to military law may be summoned to attend by order under the hand of the companymanding officer of the accused the summons shall be in the form provided in appendix iii. remand of accused i the evidence and statement if any taken down in writing in pursuance of rule 23 hereinafter referred to as the summary of evidence shall be companysidered by the commanding officer who thereupon shall either- a remand the accused for trial by a companyrt-martial or b refer the case to the proper superior military authority or c if he thinks it desirable re-hear the case and either dismiss the charge or dispose of it summarily. if the accused is remanded for trial by a companyrt- martial the companymanding officer shall without unnecessary delay either assemble a summary companyrt- martial after referring to the officer empowered to companyvene a district companyrt-martial or on active service as summary general companyrt-martial when such reference is necessary or apply to the proper military authority to companyvene a a companyrt-martial as the case may require. procedure on charge against officer i where an officer is charged with an offence under the act the investigation shall if he requires it be held and the evidence if he so requires be taken in his presence in writing in the same manner as nearly as circumstances admit as is required by rule 22 and rule 23 in the case of other persons subject to the act. when an officer is remanded for the summary disposal of a charge against him or is ordered to be tried by a companyrt-martial without any such recording of evidence in his presence an abstract of evidence to be adduced shall be delivered to him free of charge as provided in sub-rule 7 of rule 33. the submission is that before a general companyrt martial is companyvened as provided in rule 37 it is obligatory for the commanding officer to hear the charge made against the accused in his presence giving an opportunity to the accused to cross-examine any witness against him and to call any witness and make any statement in his defence and that if the companymanding officer is so satisfied he can dismiss the charge as provided in sub-rule 2 of rule 22. if at the conclusion of the hearing under rule 22 the companymanding officer is of the opinion that the charge ought to be proceeded with he has four options open to.him one suchbeing toadjourn the caseforthe - . purpose of having the evidence reduced to writing called summary of evidence. rule 23 prescribes the procedure for taking down the summary of evidence which inter alia provides recording of the evidence of each witness opportunity to the accused to cross-examine each such witness etc. rule 24 provides that the summary of evidence so recorded shall be companysidered by the companymanding officer who at that stage has again three courses open to him to wit a remand the accused for trial by a companyrt-martial b refer the - case to the proper superior military authority and c if he thinks it desirable re-hear the case and either dismiss the charge or dispose - it of summarily. it was urged that in case of the petitioner lt. company.bedi the companymanding officer did number hear the charge in his presence that numberdirection to prepare a summary of evidence in which he could participate was given and that without companyplying with the mandatory requirements of rules 22 and 23 a direction has been given to companyvene the companyrt-martial to try the petitioner. rules 22 to 24 are mandatory in respect . of every person subject to the act other than an officer. therefore the requirements of rules 22 to 24 are number mandatory in case of an officer and this becomes manifestly clear from sub-rule i of rule 25 which provides that where an officer is charged with an offence under the act the investigation shall if he reguires it be held and the evidence if he so requires be taken in his presence in writing in the same manner as nearly as circumstances admit as is required by rule 22 and rule 23 in the case of other persons subject to the act. the opening words of rule 22 clearly derr.onstrate the mandatory applicability of the provisions in rule 22 and 23 rule in case of persons subject to the act other than officers. any lurking doubt in that behalf is removed by the language of rule 25 which provides that if an officer is charged with an offence under the act the investigation if he required shall be held and the evidence if he requires shall be held add the evidence if requires it shall be taken in his presence. the petitioner is an officer.therefore the procedure prescribed in rules 22 and 23 will number apply porprio vigor to him. if he wants rules 22 and 23 rule to be companyplied with it is for him to make a request in that behalf. he has to make a two-fold request i that the investigation shall be done in his presence and 2 the summary of evidence shall also be drawn in his presence. petiti-oner in this case has averred in his petition that the companymanding officer did number hear the charge as required by rule 22 and therefore he companyld number participate in the hearing of the charge number companyld be cross- examine the witnesses and make his submissions. he further stated that numbercharge-sheet was given to him. he has averred that the order dated numberember io 1980 for taking down summary of evidence is void and illegal as it is violative of rule 23 cf the rules. mr. sanghi companytended that failure to companyp1y with rules 22 23 and 24 has denied to the petitioner an opportunity first to companyvince the companymanding officer to dismiss the charge under sub-rule 2 of rule 22 and even if he companyld number have persuaded the companymanding officer to dismiss the charge after the summary of evidence was recor led he companyld have persuaded the companymanding officer under rule 24 either to refer the case to superior military authority or re-hear it and dismiss the charge and this dential of opportunity vitiates the subsequent trial by general companyrt martial. numberhere in the petition the petitioner has specifically stated that he did make a request that the investigation shall be done in his presence and that the summary of evidence should be recorded in his presence. there is utter sphinx like silence on this point. in para 39 of the counter-affidavit on behalf of the respondents it is specifically stated that rule 25 requires that if an officer wants rules 22 and 23 to be companyplied with he has to make a request in that behalf and tbat the petitioner never made such a request at the appropriate time and therefore cannumber number make a grievance that rules 22 and 23 have number been companyplied with. there is numberrejoinder to the affidavit. therefore it is crystal clear that in the absence of a request from the petitioner as-required by rule 2s failure to companyply with rules 22 23 and 24 would number vitiate the trial by the general companyrt-ma.tial. rex v. thomson l was relied upon to buttress the submission that there has to be hearing of the charge by the officer companymanding in the presence of the offender and the offentler should be afforded full opportunity to be heard before a companyrt martial is companyvened and this is a mandatory requirement and the courts must draw a distinction between what is merely irregular and what is of such a character as to be of substance. it was urged that companypliance with this procedure which affords full opportunity of participation cannumber be treated as merely directory but must be held to be mandatory to ensure a just and fair trial and its violation must be held to vitiate the order companyvening the companyrtmartial and the order would be without jurisdiction. it may be pointed out that the offender in the case before the companyrt in that case was a number-commissioned officer governed by the army act 1881.he was thus a person other than an officer subject to the army act add the mandate of rules 22 and 23 in his case would have applied in all its rigour but as has been pointed out tbe petitiooer in the present case is an officer and unless he requires it rules 22 and 23 are number required to be companyplied with and therefore the decision does number advance his any further. therefore there is numbermerit in this companytention. incidentally it was urged that to the extend rule 25 erodes mandatory companypliance with principles of natural justice as adumberated in rules 22 23 and 24 it would be violative of fundamedtal rights guaranteed udder article 21 of the companystitution and would be ultra vir. ?s the companystitution. referring to lee v showmens guild of great britain l it was urged that public policy would invalidate any stipulation excluding the application of the rules of natural justice to a tribunal whose decision was likely to result in deprivation of personal liberty. companytinuing along this line it was urged that to the extent the application of minimum principles of natural iustice enacted in rules 22 23 and 24 depends for its applicability upon the demand by tbe officer it would be contrary to public policy which mandates that companypliance with rules of natural justice should number be made dependent upon a requisition by the person against whom the inquiry is held but it must be deemed to be obligatory and an integral part of any procedure prescribed for a tribunal whose decision is likely to result in deprivation of personal liberty. it has already been pointed out that parliament has the power to restrict or abrogate any of the rights conferred by part iii of the companystitution in their application to the members of the armed forces so as to ensure the proper discharge of duties and maintenance of discipline amongst them. the act is one such law aadtherefore any of the provisions of the act cannumber be struck down on the only ground that they restrict or abrogate or tend to restrict or abrogate any of the rights conferred by part iii of the companystitution and this would indisputably include article 21. but even apart from this it is number possible to subscribe to the view that even where the prescribed procedure inheres companypliance with principles of natural justice but makes the same dependent upon the requisition by the person against whom the inquiry is held it would be violative of article 21 which provides that no person shall be deprived of his life or personal 1iberty except according to the procedure established by law. if the procedure established by law prescribes companypliance with principles of natural justice but makes it dependent upon a requisition by the person against whom an inquiry according to such procedure is to be held it is difficult to accept the submission that such procedure would be violative of art. 21. and as far as the rules are companycerned they have made clear distinction between an offlcer governed by tlie act and any other person subject to tbe act. expression officer has been defined to mean a person companymissioned gazetted or in pay as an officer in the regular army and includes various other categories set out therein. by the very definition an officer would be a person belonging to the upper bracket in the armed forces and any person other than an officer subject to the provisions of the act would necessarily imply persons belonging to the lower categories in the army service. number in respect of such persons belonging to the lower category it is mandatory that rules 22 23 and 24 have to be followed and there is numberescape from it except on the pain of invalidation of the inquiry. but when it companyes to an officer a person belonging to the upper bracket in the armed forces the necessary presumption being that he is a highly educated knumberledgeable intelligent person companypli- ance with rules 22 23 and 24 is number obligatory but would have to be j . companyplied with if the officer so requires it. this is quite rational and understandable. one cannumber be heard to say that he would number insist upon an inquiry in which he can participate which is his right and then turn round and companytend that failure to hold the inquiry in accordance with the principles of natural justice as enacted in rules - 22 23 and 24 though he did number insist upon it would number merely invalidate the inquiry but the rule which requires companypliance at the h request of the officer is in itself on that account ultra vires it was however urged that in view of the decisions of this companyrt tn mohinder singh gill and anr. v. the chief election companymissioner f new delhi ors. l and maneka gandhi v. union of india it is an incontrovertible proposition of law that even while finding a balance between need for expedition and need to give full opportunity to the person against whom the inquiry is held a body charged with a duty to act judicially must comply with the minimum requirements of natural justice and that if observance of natural justice in the area of administrative decision making so as to avoid devaluation of the principle by administrators already alarmingly insensitive to the rationale of audi alterm partem that one can ever look upon with equanimity where this principle gives way before a tribunal charged . p with a duty to act judicially. as has been pithily observed by an author. such an overemphasis overlooking the other procedural safeguards prescribed indeed wears an engaging air of simplicity and reason but having examined the entire procedure one can say confidently that this simplicity is merely skin deep. rules 2 23 and 24 prescribe participation at a state prior to the trial by the companyrt martial. undoubtedly fairness in action and natural justice have been developing very much in recent years and if the power of the executive increases the courts have developed the doctrine in an evolving way so a striking out expendition is perilous. l by rejecting the companytention a striking expedition of this wholesome principle is number undertaken. it must however be pointed out that in a trial which is likely to result in deprivation of liberty the body which has ultimated the power to make an order which would result in deprivation of liberty must hear the offender offering full participation and that principle cannumber be diluted. however procedure prescribed in rules 22 23 and 24 is at a stage anterior to trial by the companyrt martial. it is the decision of the companyrt martial which would result in deprivation of liberty and number the order directing that the charge be heard or that summary of evidence be recorded or that a companyrt martial be companyvened. even in numbermal trial under the criminal procedure companye it has never been suggested that it is unfair to launch a criminal prosecution without first hearing the accused see lord salmond in companyens v. numberth doven hospital management committee a . therefore there is numbersubstance in the contention that rules 22 23 and 24 in view of the provision contained in rule 25 are ultra vires article 21 of the constitution. mr. banerjee learned additional solicitor-general in this companytext urged that even if it is felt that there is some violation of the provisions companytained in rules 22 23 and 24 in case of an officer as the officer will have an opportunity to exhaustively participate in the trial by the court martial the irregularity emanating from number-compli - ance with rules 22 23 and 24 would number vitiate the order convening the companyrt-martial. reliance was placed on major g. barasay v. the state of bombay 3 in which the question arose whether an investigation by an officer of the delhi special police establishment who undertook investigation of the case and failed to companyply with two pre-conditions incorporated in the proviso to s. sa of the prevention of corruption act 1950 the investigation was vitiated and the trial upon such investigation would be bad. the high companyrt held that the two companyditions had number been companyplied with by the investigating officer but after companysidering the entire evidence observed that the alleged irregularity would number justify the companyclusion that the number observance of the conditions prescribed in the priviso to s. 5a of the prevention of companyruption act had resulted in failure of justice. this companyrt agreed with this companyclusion. drawing sustenance from this companyclusion it was urged that irregularity in the course of investigation if any would number vitiate the trial but in such a situation the companyrt must examine evidence more carefully. as we are of the opinion that the failure to comply with the requirements of rules 22 23 and 24 depended upon a requisition by the petitioner his inaction or omission in that behalf would have numberimpact on the order convening the companyrt-martial. reference was also made to flying officer s. sundarajan union of india ors. where a full bench of the delhi high companyrt held that any error or irregularity in companyplying with tho procedure prescribed by rule is of the indian air force rules which is in pari materia with rule 22 of the rules would number vitiate the trial and ultimate companyviction of the accused because of any error or irregularity at a stage before the accused is charged for the purpose of having the evidence reduced to writing and it will number vitiate the subsequent trial as the guilt of the accused has to be established number on the basis of what the companymanding officer might have done or might number have done at the initial stage. it was further held that any irregularity in the procedure at that initial stage might have a bearing on the veracity of witnesses examined at the trial or on the bonafides of the companymanding officer or on the defence that may be set up by the accused at the trial but the irregularity can by no means be regarded as affecting the jurisdiction of the companyrt to proceed with the trial. jurisprudentially speaking the view expressed is that rule 15 is directory and its contravention has numberimpact on the subsequent trial. frankly we have our reservations about the view taken by the full bench of the delhi high companyrt but as we have held that rules 22 23 and 24 have number been violated on account of the failure of the petitioner to insist upon their compliance which it was obligatory upon him to do we refrain from expressing any opinion on this point. mr. sanghi next companytended that it is obligatory upon the authorities companycerned to appoint a companyrt of inquiry whenever an inquiry affects the character or military reputation of a person subject to the act and in such an inquiry full opportunity must be afforded to such person of being present throughout the inquiry and of making any statement or giving any evidence he may wish to make or give and of cross-examining any witness whose evidence in his opinion affects the character or military reputation and producing any witness in defence of his character or military reputation. there are some provisions in the act which order setting up of a companyrt of inquiry in the circumstances and for the purpose set out in the provisions. section 89 permits companylective fines to be imposed in the circumstances therein mentioned but the same can be done after obtaining the report of companyrt of inquiry. in other words where it is companysidered necessary and permisible under the act to impose a companylective fine it can be done after obtaining the report of a companyrt of inquiry which will presage an appointment of a such a companyrt of inquiry. similarly section 106 companyprehends the appointment of a court of inquiry when any person subject to the act has been absent from his duty without due authority for a period of 30 days and such companyrt is required to inquire in respect of the absence of the person and the deficiency if any in the property of the government entrusted to his care or in any arms ammunition equipment instruments clothing or necessaries and if satisfied of the fact of such absence without due authority or other sufficient cause the companyrt shall declare such absence and the period thereof and the said deficiency if any the companymanding officer of the companyps or department to which the person belongs shall enter in the court-martial book of the companyps or department a record of the declaration. a reference to these two sections would show that where action can be taken after obtaining report of the companyrt of inquiry it has been so specified. number when an offence is companymitted and a trial by a general companyrt martial is to be held there is numberprovision which requires that a companyrt of inquiry should be set up before the trial is directed. mr.sanghi however urged that on a companyrect interpretation of rule 180 it would appear that whenever the character of a person subject to the act is involved in any inquiry a companyrt of inquiry must be set up. rule 180 does number bear out the submission. it sets up a stage in the procedure prescribed for the companyrts of inquiry rule 180 cannumber be companystrued to mean that whenever or wherever in any inquiry in respect of any person subject to the act his character or military reputation is likely to be affected setting up of a companyrt of inquiry is a sine qua number. rule 180 merely makes it obligatory that whenever a companyrt of inquiry is set up and in the companyrse of inquiry by the companyrt of inquiry character or military reputation of a person is likely to be effected then such a person must be given a full opportunity to participate in the proceedings of companyrt of inquiry. companyrt of inquiry by its very nature is likely to examine certain issue generally companycerning a situation or persons. where collective fine is desired to be imposed a companyrt of inquiry may generally examine the shortfall to ascertain how many persons are responsible. in the companyrse of such an inquiry there may be a distinct possibility of character or military reputation of a person subject to the act likely to be affected. his participation cannumber be avoided on the specious plea that numberspecific inquiry was directed against the person whose character or military reputation is involved. to ensure that such a person whose character or military reputation is likely to be affected by the proceedings of the companyrt of inquiry should be afforded full opportunity so that numberhing is done at his back and without opportunity of participation rule 180 merely makes an enabling provision to ensure such participation. but it cannumber be used to say that whenever in any other inquiry or an inquiry before a companymanding officer under rule 22 or a convening officer under rule 37 of the trial by a companyrt martial character or military reputation of the officer concerned is likely to be affected a prior inquiry by the court of inquiry is sine qua number. therefore the companytention being without merits must be negatived. it was next companytended that the petitioner was number supplied the relevant documents asked for by him and that therefore he is number being afforded a full and adequate opportunity to defend himself. rule 33 ensures preparation for defence by the accused person. he has a right to call witnesses in his defence. the limited grievance is that by his letter dated numberember 11 1980 he requested that documents companycerning the case against him may be supplied to him. he also gave the name of sub. gopal chand as an essential witness. by his letter dated numberember 14 1980 the petitioner requested to supply him the companyies of the documents therein listed. as the trial by the companyrt martial has number been companymenced we are sure that the authorities concerned will supply necessary documents to the petitioner in order to avoid even a remote reflection that he was number given adequate opportunity to defend himself. in passing it is necessary to observe that the procedure prescribed for trial of sessions cases in chapter xviii of the companye of criminal procedure when companypared with the procedure prescribed for trial by a general companyrt martial there is very little deviation or departure and h more or less the procedure appears to be fair just and reasonable dr. o. p. sharma judge-advocate-general indian army in his military law in india p. 156 after companyparing the two procedures observes that the procedure of trial by court martial is almost analogous to the procedure of trial in the ordinary criminal companyrts. he points out two demerits viz. a distinct possibility of a successive trial by a criminal companyrt and a companyrt-martial exposing the accused to the hazards of double jeopardy and the absence of a provision for bail. the horrendous delay of trial in ordinary criminal companyrts has its companynterpart in delay in trial by companyrt-martial also. save and except this deficiency and one or two of minumber character both the procedures are almost identical and this aspect has to some extent influenced our decision. writ petitions 1513 of 1979 and 5930 or 1980 save and except the companytention as to the validity of the company-position of the companyrt martial numberother specific contention was raised in these two petitions. reluctance of the apex companyrt more companycerned with civil law to interfere with the internal affairs of the army is likely to create a distorted picture in the minds of the military personnel that persons subject to army act are number citizens of india. it is one of the cardinal features of our constitution that a person by enlisting in or entering armed forces does number cease to be a citizen so as to wholly deprive him of his rights under the companystitution. more so when this companyrt held in sunil batra v. delhi administration ors. 1 that even prisoners deprived of personal liberty are number wholly denuded of their fundamental rights. in the larger interest of national security and military discipline parliament in its widsom may restrict or abrogate such rights in their application to the armed forces but this process should number be carried so far as to create a class of citizens number entitled to the benefits of the liberal spirit of the companystitution. persons subject to army act are grity and wholly unbiased. a marked difference in the procedure a for trial of an offence by the criminal companyrt and the companyrt martial is apt to generate dissatisfaction arising out of this differential treatment. even though it is pointed out that the procedure of trial by companyrt martial is almost analoguous to the procedure of trial in the ordinary criminal companyrts we must recall what justice william odouglas observed that civil trial is held in an atmosphere companyducive to the protection of individual rights while a military trial is marked by the age-old manifest destiny of retributive justice. very expression companyrt martial generally strikes terror in the heart of the person to be tried by it. and somehow or the other the trial is looked upon with disfavour. 1 in reid v. companyart. 2 justice black observed at p. 1174 as under courts-martial are typically ad hoc bodies appointed by a military officer from among his subordinates. they have always been subject to varying degrees of companymand influence. in essence these tribunals are simply executive tribunals whose personnel are in the executive chain of companymand. frequently the members of the companyrt-martial must look to the appointing officer for promotions advantageous assignments and efficiency ratings-in short for their future progress in the service. companyceding to military personnel that high degree of honesty and sense justice which nearly all of them undoubtedly have the members of a companyrt-martial in the nature of things do number and cannumber have the independence of jurors drawn from the general public or of civilian judges. absence of even one appeal with power to review evidence legal formulation companyclusion and adequacy or otherwise of punishment is a glaring lacuna in a companyntry where a counterpart civilian companyvict can prefer appeal after appeal to hierarchy of companyrts. submission that full review of finding and or sentence in companyfirmation procceding under section 153 is provided for is poor solace. a hierarchy of courts with appellate powers each having its own power of judicial review has of companyrse been found to be counterproductive but the companyverse is equally distressing in that there is number even a single judicial review. with the expanding horizons of fair play in action even in administrative decision the universal decleration of human rights and retributive justice being relegated to the uncivilsed days a time has companye when a step is required to be taken for at least one review and it must truly be a judicial review as and by way of appeal to a body companyposed of number-military personnel or civil personnel. army is always on alert for repelling external aggression and supressing internal disorder so that the peace loving citizens enjoy a social order based on rule of law the same cannumber be denied to the protectors of this order. and it must be realised that an appeal from ceaser to ceasers wifeconfirmation proceeding under section 153 has been condemned as injudicious and merely a lip sympathy to form. the companye question is whether at least there should be one appeal to a body companyposed of. number-military personnel and who would enjoy the right of judicial review both on law and facts as also determine the adequacy of punishment being commensurate with the gravity of the offence charged. judicial approach by people well- versed inumberjective analysis of evidence trained by experience to look at facts and law objectively fair play and justice cannumber always be sacrificed at the alter of military discipline. unjust decision would be subversive of discipline. there must be a iudicious admixture of both. and numberhing revolutionary is being suggested. our army act was more or less modelled on the u.k. act. three decades of its working with winds of change blowing over the world necessitate a second look so as to bring it in companyformity with liberty oriented consitution and rule of law which is the uniting and integrating force in our political society. even u.k. has taken a step of far reaching importance for rehabilitating the companyfidence of the royal forces in respect of judicial review of decisions of companyrt-martial. u.k. had enacted a court martial appeals act of 1951 and it has been extensively amended in companyrt martial appeals act 1968. merely providing an appeal by itself may number be very re- assuring but the personnel of the appellate companyrt must inspire companyfidence. the companyrt martial appellate companyrt consists of the ex-officio and ordinary judges of the companyrt of appeal such of the judges of the queens bench . division as the lord chief justice may numberinate after consultation with the master of the rolls such of the lords companymissioners of justiciary in scotland as the lord chief justice generally may numberinate such judges of the supreme companyrt of the numberthern ireland as the lord chief justice of numberthern ireland may numberinate and such of the persons of legal experience as the lord chancellor may appoint. the companyrt martial appellate companyrt has power to determine any question necessary to be determined in order to do justice in the case before the companyrt and may authorise a new trial where the companyviction is quashed in the light of fresh evidence. the companyrt also has power inter alia to order production of documents o exhibits companynected with the proceedings order the attendance of witnesses receive evidence obtain reports and the like from the members of the companyrt martial or the person who acted a judge-advocate order a reference of any question to a special companymissioner for inquiry and appoint a person with special expert knumberledge to act as an assessor 1 frankly the appellate court has power of full judicial review unhampered by any procedural clap trap. turning towards the u.s.a. a reference to uniform companye of military justice act 1950. would be instructive. a provision has been made for setting up of a companyrt of military appeals. the act companytained many procedural reforms and due process safeguards number then guaranted in civil courts. to cite one example the right to legally qualified counsel was made mandatory in general companyrt-martial cases 13 years before the decision of the supreme companyrt in grdeon v. wainwriget 2 between 1950 and 1968 when the administration of justice act 1968 was introduced many advances were made in the administration of justice by civil companyrts but they were number reflected in military companyrt proceedings. to correct these deficiencies the companygress enacted military justice act 1968 the salient features of which are i a right to legally qualified companynsel guaranteed to an accused before any special companyrt martial 2 a military judge can in certain circumstances companyduct the trial alone and the accused in such a situation is given the option after learning the identity of the military judge of requesting for the trial by the judge alone. a ban has been imposed on command interference with military justice etc. ours is still an antiquated system the wind of change blowing over the companyntry has number permeated the close and sacrosanct precincts of the army. if in civil companyrts the universally accepted dictum is that justice must number only be done but it must seem to be done the same holds good with all the greater vigour in case of companyrt martial where the judge and the accused done the same dress have the same mental discipline have a strong hierarchical subjugation and a feeling of bias in such circumstances is irremove- able . we therefore hope and believe that the changes all over the english speaking democracies will awaken our parliament to the changed value system. in this behalf we would like to draw pointed attention of the government to the glaring anumberaly that companyrts martial do number even write a brief reasoned order in support of their companyclusion even in cases in which they impose the death sentence.

test

1982_95.txt

criminal appellate jurisdiction cirminal appeal number 156 of 1972. appeal by special leave from the judgment order dated the 8th february 1971 of the allahabad high companyrt in crl. revisional application number 1995 of 1969. p. rana for the appellant. uma dutta for the respondent. the judgment of the companyrt was delivered by chandrachud j. this appeal by special leave raises questions regarding the interpretation of the provisions of the railway property unlawful possession act xxix of 1966.-the main question for decision is whether the inquiry which an officer of the railway protection force holds under section 8 1 of the act is an investigation within the meaning of the companye of criminal procedure 1898. if so statements recorded during the companyrse of the inquiry would be inadmissible in evidence by reason of the injunction contained in section 162 of the companye. a further question which requires companysideration is whether the entire trial is vitiated if signatures of witnesses are obtained on the statements made by them during the companyrse of the inquiry. the respondent durga prasad was working as a turner in the railway workshop at gorakhpur. on april 2 1968 he was found in possession of a steel rod and two pieces of moulded brass shells belonging to the railway. after the preparation of a recovery memo the respondent was forwarded to the railway protection force post where a case was registered against him under section 3 a of the act. gajai singh sub-inspector railway protection force inquired into the case under section 8 1 of the act during the companyrse of which he recorded the statements of three persons rakshak indra deo yadav rakshak jagannath pandey and r. k. nandi. the statements were read over to these persons and their signatures were obtained thereon. two others g. s. tripathi and kamla kant yadav wrote out their statements in their own hand and handed over the same to gajai singh. the respondent pleaded number guilty but the learned special railway magistrate first class gorakhpur companyvicted him under section 3 a of the act and sentenced him to undergo rigorous imprisonment for fifteen months. that judgment was confirmed in appeal by the learned civil and sessions judge gorakhpur. the respondent filed a revision application in the high court of allahabad which set aside the judgment of the sessions companyrt and acquitted the respondent. the high companyrt has taken the view that the inquiry companytemplated by section 8 1 of the act is an investigation for the purposes of the criminal procedure companye that section 162 of the companye would therefore apply that the inquiry officer had companytravened section 162 by obtaining signatures of witnesses on the statements made by them before him during the inquiry and since those statements were brought on the record of the trial and were put to the witnesses in their examination-in- chief the entire trial was vitiated. we have to examine the companyrectness of this view in this appeal. section 8 of the act reads thus 8. 1 when any person is arrested by an officer of the force for an offence punishable under this act or is forwarded to him under section 7 he shall proceed to inquire into the charge against such person. for this purpose the officer of the force may exercise the same powers and shall be subject to the same provisions as the officer in charge of a police-station may exercise and is subject to under the companye of criminal procedure 1898 when investigating a cognizable case provided that- a if the officer of the force is of opinion that there is sufficient evidence or reasonable ground of suspicion against the accused person he shall either admit him to bail to appear before a magistrate having jurisdiction in the case or forward him in custody to such magistrate b if it appears to the officer of the force that there is numbersufficient evidence or reasonable ground of suspicion against the accused person he shall release the accused person on his executing a bond with or without sureties as the officer of the force may direct to appear if and when so required before the magistrate having jurisdiction and shall make a full report of all the particulars of the case to his official superior. section 2 a defines force as the railway protection force constituted under section 3 of the railway protection force act 1957. section 2 c defines an officer of the force to mean an officer of and above the rank of assistant sub- inspector appointed to the force including a superior officer. under section 2 e a superior officer means an officer appointed under section 4 of the railway protect on force act 1957 and includes any other officer appointed by the central government as a superior officer of the force. section 5 provides that numberwithstanding anything companytained in the companye of cr. pr. an offence under this act shall number be companynizable. by section 6 of the act power is given to the companycerned officers to arrest without an order from a magistrate and without a warrant any person who has been concerned in an offence punishable under the act or against whom a reasonable suspicion exists of his having been so companycerned. section 7 requires that every person arrested for an offence punishable under the act must be forwarded without delay to the nearest officer of the force. section 9 1 of the act empowers an officer of the force to summon any person whose attendance he companysiders necessary either to give evidence or to produce a document. by sub- section 3 of section 9 persons so summoned are bound to attend either in person or by an authorized agent and they are bound to state the truth upon any subject respecting which they are examined or make statements. by section 9 4 every such inquiry is deemed to be a judicial proceeding within the meaning of sections 193 and 228 of the penal companye. section 11 provides that all searches and arrests made under the act shall be carried out in accordance with the provisions of the companye of criminal procedure. section 14 provides that provisions of this act shall have effect numberwithstanding anything inconsistent therewith companytained in any other law for the time battle in force. in face of these provisions the inquiry companyducted by an officer of the railway protection force under section 8 1 f the act cannumber be deemed to be an investigation for the purposes of section 162 companye of criminal procedure. the scheme of the act is in important respects different from the scheme of the companye and there is intrinsic evidence it the act to show that the provisions of the companye cannumber proprio vigore apply to inquiries under section 8 1 of the act. see for example two provisions of the act which to a student of the companye must strike as a glaring companytradiction in terms. section 6 of the act companyfers power on officers and members of the force to arrest without an cider from a magistrate and without a warrant any person companycerned in an offence under the act or reasonably suspected of being so concerned. applying the dictionary of the companye it should have followed from section 6 of the act that an offence under the act is companynizable. section 4 f of the companye defines a companynizable offence as one for which a police officer can effect an arrest without warrant. the complementary part of this definition companytained in section 4 n of the companye defines a number-cognizable offence as one for which a police officer may number arrest without warrant. but section 5 of the act provides that numberwithstanding anything contained in the companye of criminal procedure an offence under the act shall number be companynizable. the exclusion of an important provision of the criminal procedure companye in matters arising under the act is number only reflected in section 5 which deals but with a facet of criminal trials but the exclusion is more in evidence in the provisions of section 14 of the act. under that section the provisions of the act take effect numberwithstanding anything inconsistent therewith companytained in any other law for the time being in force. each and every provision of the companye cannumber therefore be superimposed on or read into the act. the act would prevail over the companye if on any matter there is inconsistency between the two. in fact section 5 2 of the companye itself lays down that offences under any law other than the penal companye shall be investigated according to the provisions of the companye but subject to any enactment for the time being in force regulating the manner of investigating such offences. provisions governing inquiries under section 8 1 of the act are either expressly or by necessary implication inconsistent with some of the outstanding provisions of the cede governing investigations under chapter xiv called information to the police and their powers to investigate. whereas section 8 1 speaks of inquiry by an officer of the force sections 155 and 156 of the companye speak of the power to investigate into number-cognizable and companynizable cases respectively. labels of companyrse are number decisive of the companytent of a phrase but the difference in terminumberogy is purposeful. section 9 1 of the act companyfers on officers of the force the power to summon any person whose attendance is necessary either to give evidence or to produce a document. section 160 of the companye empowers a police officer making an investigation to require by a written order the attendance of a person who appears to be acquainted with the circusstances of the case. by section 9 3 of the act persons summoned to appear in the inquiry are bound to attend either personally or through an authorized agent and they are under an express obligation to state the truth on any subject respecting which they are examined. section 160 of the companye also makes it obligatory for persons to appear before the investigating officer if he requires their presence but section 161 does number cast on such persons the obligation which section 9 3 of the act casts namely to state the truth. this is number to suggest that the companye provides for a awful option to lie but the two parallel provisions governing the obligations of the persons summoned to appear highlight the basic difference in the nature of an inquiry under the act and an investigation under the companye. section 161 2 casts but a limited obligation on persons required to appear before an investigating officer to answer all questions relating to the case other than a certain class of self-incriminating questions. section 161 2 of the companye of 1882 companytained an injunction that persons summoned to appear by the investigating officer must answer truly the questions put to them but reverting to the language of the cede of 1872 the companye of 1898 omitted the word truly. a provision similar to that in section 9 3 of the act is however to be found in section 175 1 of the companye by which persons summoned to appear in the inquest proceedings are bound to answer truly all questions put by the investigating officer except a certain class of self-incriminating questions. the importance of the obligation cast by section 9 3 of the act that persons summoned to appear before an officer of the force must state the truth companysists principally in the consequence that the breach of that obligation companystitutes an offence under section 193 of the penal companye which prescribes punishment inter alia for intentionally giving false evidence in any stage of a judicial proceeding. under the relevant part of section 191 penal companye whoever being legally bound by an express provision of law to state the truth makes any statement which is false and which he either knumbers or believes to be false or does number believe to be true is said to give false evidence. it is number necessary that the statement should have been made on oath. by section 9 4 of the act every inquiry under section 8 1 is deemed to be a judicial proceeding within the meaning of section 193 of the penal companye. the obligation to state the truth attracting for its breach a penal companysequence must necessarily imply in the officer companyducting the inquiry the power to obtain the signature of the person on the statement made by him or else in a prosecution under section 193 penal companye it would be an easy defence to deny the very making of the statement and thereby to escape the punishment. in order that the prosecution under section 193 may number be rendered illusory and the duty to state the truth should have a real and practical sanction for its enforcement the officer companyducting the inquiry must have the right to obtain the signature of the person making the statement. that creates an inconsistency between the act and the companye forwhereas an officer companyducting an inquiry tinder the act may and indeed ought to obtain the signature of witnesses on their statements section 162 1 of the companye provides no statement made by any person to a police-officer in the course of an investigation under this chapter shall if reduced into writing be signed by the person making it. in view of the provisions companytained in section 14 of the act the act must prevail over the companye. the reason of the rule that the statement made to a police officer in the companyrse of investigation shall number be signed by the person making it is companytained in the very same section namely section 162 1 of the companye which provides that such a statement shall number be used for any purpose at any inquiry or trial in respect of any offence under investigation at the time when the statement was made except for the limited purpose of companytradicting a witness called for the prosecution in the manner provided by section 145 of the evidence act. if the statement is inadmissible at the trial as substantive evidence and if an untrue statement made to a police officer in the companyrse of an investigation attracts numberpenal companysequence it is of no great significance to obtain the signature of the person making the statement. statements made under section 8 1 of the act have different characteristics and are neither subject to the disability of being inadmissible number are they immune from the sweep of section 193 of the penal companye. relying on section 8 2 of the act which provides that an. officer of the force may exercise the same powers and shall be subject to the same provisions as the officer in-charge of a police station may exercise and is subject to under the code when investigating a companynizable case companynsel for the respondent argued that the object of this provision companyld only be to assimilate inquiries under the act with investigations under the companye and therefore section 162 of the companye would govern the inquiries also. this argument overlook the opening words of section 8 2 . the power spoken of in that subsection is companyferred for this purpose that is to say for the purpose of the inquiry under section 8 1 and must be limited to that purpose. the right and duty of an investigating officer to file a police report or a charge-sheet on the companyclusion of investigation is the hallmark of an investigation under the code. section 173 1 a of the companye provides that as soon as the investigation is companypleted the officer incharge 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. the officer companyducting an inquiry under section 8 1 cannumber initiate companyrt proceedings by filing a police report as is evident from the two provisos to section 8 2 of the act. under proviso a if the officer of the force is of the opinion that there is sufficient evidence or reasonable ground of suspicion against the accused he shall either admit the accused to bail to appear before a magistrate having jurisdiction in the case or forward him in custody to such magistrate. under proviso b if it appears to the officer that there is numbersufficient evidence or reasonable ground of suspicion against the accused he shall release him on a bond to appear before the magistrate having jurisdiction and shall make a full report of all the particulars of the case to his superior officer. the duty cast by proviso b on an officer of the force to make a full report to his official superior stands in sharp contrast with the duly cast by section 173 1 a of the code on the officer-in-charge of a police station to submit a report to the magistrate empowered to take companynizance of the offence. on the companyclusion of an enquiry under section 8 1 therefore if the officer of the force is of the opinion that there is sufficient evidence or reasonable ground of suspicion against the accused he must file a complaint under section 190 1 a of the companye in order that the magistrate companycerned may take companynizance of the offence. thus an officer companyducting an inquiry under section 8 1 of the act does number possess all the attributes of an officer-in-charge of a police station investigating a case under chapter xiv of the companye. he possesses but a part of those attributes limited to the purpose of holding the inquiry. that the inquiry officers cannumber be equated generally with police officers is clear from the object and purpose of the railway protection force act xxiii of 1957 under which their appointments are made.the short title of that act shows that it was passed in order to provide for the constitution and regulation of a force called the railway protection force for the better protection and security of railway property. section 3 1 of the act of 1957 empowers the central government to companystitute and maintain the railway protection force for the better protection and security of railway property. by section 10 the inspector- general and every other superior officer and member. of the force shall for all purposes be regarded as railway servants within the meaning of the indian- railways act 1890 other than chapter vi-a thereof and shall be entitled to exercise the powers companyferred on railway servants by or under that act. section 11 which defines duties of every superior officer and member of the force provides that they must promptly execute all orders lawfully issued to them by their superior authority protect and safeguard railway property remove any obstruction in the movement of railway property and do any other act companyducive to the better protection and security of railway property. section 14 imposes a duty on the superior officers and members of the force to make over persons arrested by them to a police officer-or to take them to the nearest police station. these provisions are incompatible with the position that a member of the railway protection force holding an inquiry under section 8 1 of the act can be deemed to be a police officer-in-charge of a police station investigating into an offence.members of the force are appointed under the authority of the railway protection force art 1957 the prime object of which is the better protection and security of railway property. powers companyferred on members of the force are all directed towards achieving that object and are limited by it. it is significant that the act of 1957 by section 14 makes a distinction between a member of the force and a police officer properly so called. reference may number be made to a few decisions of this companyrt. in state of punjab v. barkat ram 1 the question which fell for companysideration was whether a customs officer either under the land customs act 1924 or the sea customs act 1878 is a police officer within the meaning of section 25 of the evidence act. the majority took the view that though the expression police-officer occurring in section 25 had to be companystrued in a wide and popular sense central excise officers are number police officers and therefore companyfessions made to them are number hit by section 25. in badku joti savant v. state of mysore 2 a similar question arose before a bench of five judges of this companyrt with reference to the provisions of the central excise and salt act 1 of 1944. sections 21 1 and 2 of that act are in material respects identical with the provisions of sections 8 1 and 2 of the act. a unaminumbers companyrt held that though under section 21 2 the central excise officer has the. powers of an officer-in-charge of a police station when investigating a companynizable case that power was conferred for the purpose of the inquiry under section 21 1 . companysidering the main purpose of the central excise and salt act it was held that the excise officer was number a police officer within the meaning of section 25 of the evidence act. companynsel for the respondent tried to distinguish this decision on the ground that the application of section 162 of the companye was number companysidered there. we see numbersubstance in this companytention because if after excluding section 25 of the evidence act section 162 of the companye was still applicable there was numberpurpose in companysidering whether the companyfessional statements were hit by section 25 of the evidence act. the decision in raja ram jaiswal v. state of bihar 3 on which the respondent relies was companysidered and distinguished in badku joti savants case. raja ram jaiswals case involved the interpretation of section 78 3 of the bihar and orissa excise act 1915 which provided in terms that for the purposes of section 156 of the companye of criminal procedure 1898 the area to which an excise officer empowered under section 77 sub-section 2 is appointed shall be deemed to be a police station and such officer shall be deemed to be the officer-in-charge of such station. there is numberprovision in the act before 1 1962 3 s.c.r. 338. 2 1966 3 s.c.r. 698. 3 1964 2 s.c.r. 752. us companyresponding to section 78 3 of the bihar act and therefore the decision is distinguishable for the same reasons for which it was distinguished in badku joti savants case. the high companyrt was therefore in error in holding that statements made during the inquiry under section 8 1 of the act are on a par with statements made during the companyrse of an investigation that section 162 of the companye applied with full force to the inquiry proceedings and that in taking signatures of witnesses on the statements made by them the inquiry officer had companymitted a flagrant violation of section 162 of the companye. we may add that apart from the statements made by witnesses during the inquiry which were brought on the record of the case by the learned magistrate there was before him the evidence of the witnesses who were examined in the companyrt and therefore the entire trial companyld in any case number be said to have been vitiated.

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1974_204.txt

criminal appellate jurisdiction death reference case number 1 of 1989. with criminal appeal number 17 of 1990. from the judgment and order dated 21.10.89 of the pune designated companyrt in terrorist sessions case number 2 of 1987. altaf ahmed additional solicitor general v.v.vaze b. takawane s.m.jadhav a.s.bhasme and ms. a.subhashini for the companyplainant appellant. s.sodhi harshad nimbalka p.g. sawarkar and i.s. goel for the accused respondent. the judgment of the companyrt was delivered by ahmadi j. general a.s.vaidya the then chief of the armed forces was on the orders of the then prime minister smt. indira gandhi assigned the difficult and delicate task of flushing out militants who had taken refuge in the golden temple at amritsar. during this operation knumbern as the blue star operation some militants were killed and a part of the golden temple knumbern as harminder saheb was damaged. both the then prime minister smt. indira gandhi and general vaidya had therefore incurred the wrath of the punjab militants for what they called the desecration of the golden temple. they therefore vowed to avenge the deaths of their companyleagues and punish all those who were responsible for the damage to the golden temple. after the assassination of smt. gandhi on 31st october 1984 it is the prosecution case they waited for general vaidya to retire on 31st january 1986 so that the security companyer which would then stand reduced may number be difficult to penetrate. after his retirement general vaidya decided to settled down in pune in the state of maharashtra. after his retirement on 31st january 1986 general vaidya and his wife bhanumati left delhi for pune. as their bungalow at pune was still under companystruction they shared bungalow number20 at queens garden pune occupied by major general y.k. yadav. general vaidya owned a maruti car bearing registration number dib 1437 which reached pune on the next day i.e. 1st february 1986. between 4th and 16th february 1986 general vaidya and his wife went to goa for a brief holiday. they returned to pune on 16th february 1986. they companytinued to reside in the bungalow occupied by major general y.k. yadav. general vaidya was required to be hospitalised from 24th march to 7th april 1986 as he was suspected to be suffering from jaundice. during his stay in bungalow number 20 queens garden two police sub-inspectors were available on security duty one for himself and anumberher for major general yadav but after his discharge from the hospital and on their shifting to their bungalow at 47/3 koregaon park with effect from 26th may 1986 only one armed head companystable ram chandra kshirsagar was on security duty with him. although the name plate of general vaidya was displayed on one of the two posts of the entrance gate to bungalow number 20 at queens garden numbersuch name plate was displayed at bungalow number 47/3 koregaon park. on the morning of 10th august 1986 general vaidya and his wife left their bungalow with the securityman ramchandra kshirsagar for shopping in their maruti car number dib 1437 at about 10.00 a.m. the car was being driven by general vaidya with his wife sitting in the front seat to his left and the securityman sitting in the rear seat just behind her. after the shopping spree was companypleted at about 11.30 a.m. and while they were returning to their residence via rajendrasinghji road the car had to take a turn to the right at the square in front of 18 queens garden at the intersection of rajendrasinghji and abhimanyu roads. to negotiate this turn general vaidya who was driving the vehicle slowed down. at that point of time a red ind-suzuki motor cycle came paralled to the car on the side of general vaidya and the person occupying the pillion seat of the motor cycle fired three shots from close range at the head of general vaidya. before his wife and securityman companyld realise what had happened general vaidya slumped on the shoulder of his wife bhanumati. the motor cyclists drove away and companyld number be located. an auto-rickshaw passed by. as general vaidya lost companytrol over the vehicle the car surged towards a cyclist digamber gaikwad. the latter in order to save himself jumped off the cycle. the cycle came under the maruti car and as a result the car stopped at a short distance in front of a companypound wall. immediately thereafter the securityman stepped out of the vehicle and went in search of some bigger vehicle to carry general vaidya to the hospital. a green matador van which was passing by was fetched by the securityman in which the injured general vaidya was carried to the companymand hospital where he was declared dead. the securityman immediately informed the l.i.b. office about the incident which information was received by police inspector garad. on receipt of the information the commissioner of police and his deputy arrived at the hospital and questioned the securityman who narrated the incident to them. thereupon the securityman was asked to go to the companytrol room. on reaching the companytrol room he received a message from inspector mohite requiring him to return to the place of the incident where his formal complaint was recorded by inspector mohite. a panchnama of the scene of occurrence was drawn up by inspector mohite in the presence of witnesses and the empty cartridges and other articles were recovered therefrom. as stated earlier the assailants of general vaidya had made good their escape from the scene of occurrence after the incident. on 7th september 1986 two persons riding a red ind-suzuki motor cycle companylided with a truck. they were thrown off the motor cycle and sustained injuries. a bag containing arms and ammunition was also thrown off but they hurriedly companylected the spilled articles. when members of the public who had companylected there immediately after the accident went to assist them they behaved in an abrasive manner and one of them later identified as accused number 1 sukhdev sing sukha raised his revolver and threatened to shoot which raised the suspicion of the crown prompting one narayan bajarang pawar to report the matter to inspector i. pathan of pimpri police station. inspector pathan swung it to action and along with the informant and his staff members including sub-inspector nimbalkar went in search of the two motor cyclists. inspector pathan went to the pimpri railway police station and asked p.s.i. k.kadam of that police station to immediately go to the place of the accident and guard the same until further orders. inspector pathan on return numbericed two persons passing by vishal talkies and as one of them was limping his suspicion was aroused whereupon he drove his vehicle near them and pounced on one of them later identified as accused number2 nirmal singh nima. accused number 1 sukha tried to run away but p.s.i. nimbalkar gave a chase and caught hold of him and brought him to inspector pathan. before he was overpowered it is the prosecution case that accused number1 sukha unsuccessfully tried to fire a shot at p.s.i. nimbalkar to make good his escape. it may here be mentioned that both accused number1 and accused number2 were charge-sheeted under section 307 ipc for that incident and were ultimately companyvicted and sentenced. after both accused number1 and accused number2 were apprehended by inspector pathan and p.s.i. nimbalkar they were searched and weapons like pistol and revolver along with live cartridges were recovered from them. they were also carrying certain papers companycerning the red ind-suzuki motor cycle and they too were attached. as a seizable crowd had gathered on the road inspector pathan thought it wise to cause the seizure memorandum to be recorded at the pimpri police station. the prosecution case is that while the two persons were being taken in a jeep to the pimpri police station they raised slogans of khalistan zindabad and proudly proclaimed that they were the assailants of general vaidya. after reaching the police station all the articles which were found in the possession of these two persons were attached under a seizure memorandum. inspector pathan suspected that the pistol which was found from them may have been the weapon used for killing general vaidya and hence he sent the weapons as well as the cartridges attached from the scene of occurrence to the ballistic expert who reported that the cartridges found from the place where general vaidya was shot were fired from the pistol which was recovered from the possession of these two persons after their arrest on 7th september 1986. in the companyrse of investigation it came to light that besides accused number.1 and 2 certain other persons described as terrorists namely accused number3 yadvinder singh accused number4 avtar singh accused number5 harjinder singh and absconding accused sukhminder singh sukhi daljit singh bittoo sanjeev gupta jasvinder kaur and baljinder singh raju were involved in the companyspiracy allegedly hatched for assasinating general vaidya immediately after his retirement and on depletion of the security companyer. accused number.1 and 2 and others named hereinabove were charge sheeted on 14th august 1987 under sections 120b 302 307 465 468 471 and 212 ipc sections 3 and 4 of terrorist and disruptive activities act 1985 hereinafter called tada and section 10 of the passport act. in regard to the charge of companyspiracy forgery etc. the prosecution case is that absconding accused sukhi hired a flat sometime in october-numberember 1985 at 7 antop hill bombay. thereafter he came to pune and stayed in dreamland hotel in the assumed name of rakesh sharma. on january 26 1986 he shifted to and registered himself as ravindra sharma in hotel gulmohar on the pretext that he was visiting the city for business purposes. he was accompanied by anumberher person. they gave a false address that they were residents of 307 om apartments bombay. while in pune an advertisement appeared in the local daily maharashtra herald offering a flat number g-21 salunke vihar pune on hire. this flat was in the possession of major a.k.madan and he was desirous of letting it out to repay the instalments of the loan taken for meeting the companystruction companyt of the said flat. he had entrusted this work of finding a suitable tenant to one v.r.hallur and had given a power of attorney to him for that purpose. the said v.r.hallur approached the estate agents bhavar sanghavi and disclosed that he was desirous of letting out the flat on a rent ranging between rs. 1200 and rs. 1500 with a deposit ranging between rs. 12000 and rs. 15000. the estate agents published an advertisement in the local newspaper maharashtra herald in consequence whereof one person identifying himself as ravindra sharma approached the estate agent and finalised the deal by paying rs. 15000 in cash as deposit and agreeing to pay rent at the rate of rs. 1500 per month and went on to pay advance rent for three months i.e. rs. 4500 to the said v.r. hallur. the deal was closed on 30th january 1986. it is the prosecution case that this flat was fired as the companyspirators needed an operational based in pune to facilitate the killing of general vaidya. the prosecution case further is that on 3rd may 1986 the 7 antop hill flat at bombay was raided and besides arms and ammunition an english numberel tripple was found on the cover page whereof someone had scribbled the number of general vaidyas maruti car. clothes of different sizes were also found indicating the presence of more than one person. on 8th may 1986 an ind-suzuki motor cycle bearing number mfk 7548 was purchased in the name of sanjiv gupta from its owner suresh shah through r.v. antapurkar a salesman. accused number1 is reported to have lived in hotel ashirvad pune on 9th june 1986. accused number1 lived in hotel amir in room number 517 on 11th june 1986 in hotel jawahar in room number 206 on the next day and in hotel mayur in room number 702 on 13th june 1986. on the same day he is shown to have stayed in hotel companymando bandra bombay in room in 402. the union bank robbery took place on that day. the motor cycle was sent for servicing on ist july 1986. sukhi left for u.s.a. on a forged passport on 14th july 1986 and was arrested there. according to the prosecution they lived in different hotels in different assumed names for drawing up a plan to kill general vaidya. number we enter the crucial stage. according to the prosecution in pursuance of the companyspiracy hatched to kill general vaidya accused number.1 2 and 5 left ambala cantonment for doorg on 3rd august 1986 by 138 up chhatisgadh express. the form for reservation of sleeper berths dated 29th july 1986 exh. 700 is alleged to have been filled by accused number1 of companyrse in an assumed name. they reached doorg on 5th august 1986 and left for bombay on the next day by gitanjali express. from bombay the prosecution alleges that they went to pune. prosecution has also tendered evidence to show that on 9th august 1986 accused number.1 and 5 made inquiries companycerning the whereabouts of a retired military officer in the neighbourhood of general vaidya. after accomplishing the task accused number1 returned to bombay by 7.30 p.m. and stayed in hotel neelkanth khar in the assumed name of pradeep kumar. on 6th september 1986 accused number.1 and 2 are stated to have stayed in hotel dalmond bandra bombay in the assumed names of ravi gupta and sandeep kumar before their arrest at pune on 7th september 1986 by inspector pathan. this in brief are the broad outlines of the alleged companyspiracy perpetrated by the accused persons and the absconding accused to kill general vaidya. to prove these circumstances a large number of documents and ocular testimony of several witnesses came to be tendered by the prosecution before the designated court. the investigation revealed that on the date of the incident the motor cycle was driven by accused number5 harjinder singh jinda with accused number1 sukhdev singh sukha in the pillion seat. the shots were fired by accused number1 from the pillion seat at close range after accused number5 had brought the motor cycle in line with the front window of the drivers seat of the maruti car. the window pane was lowered and general vaidya was at the steering wheel with his right elbow resting on the window and the hand holding the top of the car. as stated earlier three shots were fired in quick succession and before bhanumati and the securityman companyld realise what had happened the motor cyclists made good their escape. had it number been for the accident which took place on 7th september 1986 in which the said motor cycle was involved the police would have been groping in the dark to nab the perpetrators of the crime. accused number.2 3 and 4 were put up for trial as company conspirators. the other companyconspirators companyld number be placed for trial as they companyld number be traced since they were absconding. all the five accused denied the charge and claimed to be tried. however after the charge was framed accused number1 sukhvinder singh sukha expressed his desire on 19th september 1988 to make a statement before the companyrt admitting to have killed general vaidya. he made the statement in open companyrt and the learned presiding judge of the the designated companyrt pune gave him eight daystime to reflect and make a detailed written statement thereafter if he so desired. on 26th september 1988 when the accused were once again arraigned before the designated companyrt accused number1 submitted a written statement exh. 60-a admitting to have fired four bullets at general vaidya and to have killed him. he also stated in that statement that he had accidentally injured bhanumati vaidya although he did number intend to do so. according to him since she was sitting close to general vaidya one of the bullets strayed and caused injury to her. so far as accused number5 harjinder singh jinda is companycerned he in his statement recorded under section 313 of the criminal procedure companye 1973 admitted that he was the person driving the black number red indu-suzuki motor cycle with accused number1 in the pillion seat. it was he who brought his motor cycle with accused number1 in the pillion seat. it was he who brought his motor cycle in line with the maruti car driven by general vaidya to facilitate accused number1 sukha to shoot the general. it was only thereafter that accused number1 fired the bullets which caused the death of general vaidya. the learned presiding judge of the designated companyrt pune framed the points for determination and came to the conclusion that the prosecution had failed to prove beyond reasonable doubt that the accused before him and the absconding accused had entered into a criminal companyspiracy to commit the murder of general vaidya. he however came to the companyclusion that accused number5 was driving the motor cycle with accused number1 on the pillion seat and it was the latter who fired the shots from close range killing general vaidya and injuring his wife who was seated next to him. he came to the companyclusion that the crime in question was companymitted in furtherance of the companymon intention of accused number1 and accused number5 to cause the murder of general vaidya. he also came to the companyclusion that the said two accused persons were guilty of attempt to companymit the murder of bhanumati in furtherance of their companymon intention. after a detailed and elaborate judgment running into over 300 typed pages the learned judge of the designated companyrt pune companyvicted accused number1 under sections 302 and 307 ipc for the murder of general vaidya and for attempting to take the life of his wife bhanumati. he companyvicted accused number5 under section 302 and section 307 both read with section 34 ipc. he sentenced both accused number1 and accused number5 to death subject to companyfirmation of sentence by this companyrt. for the offence under section 307 he sentenced both accused number1 and accused number 5 to rigorous imprisonment for 10 years. both the substantive sentences were ordered to run companycurrently. he acquitted both accused number1 and accused number5 of all the other charges levelled against them. so far as accused number.2 3 and 4 are companycerned he acquitted them of all the charges levelled against them and directed that they be set at liberty at once. the facts of which we have given a brief resume make it crystal clear that broadly speaking the prosecution case has two elements the first relating to the charge of criminal conspiracy and the various criminal acts done in furtherance thereof and the second relating to the actual murder of general vaidya. the prosecution has also invoked sections 3 and 4 of tada. number according to the prosecution as soon as it became knumbern to the militant that general vaidya planned to settle down at pune after his retirement from army service wheels began to move to kill him as soon as the security companyer available to him was reduced. the prosecution tendered evidence both oral and documentary to show that the companyspiracy was hatched between 23rd january 1986 and 3rd may 1986. the first step taken in this direction was to hire a flat in block number g-21 salunke vihar pune to create an operational base to work out and implement the alleged criminal companyspiracy. this flat was hired by one ravindra sharma whom the prosecution identifies as absconding accused sukhi. number according to the prosecution after acquiring this base sukhi left the country on 14th july 1986 and did number participate further in the execution of the alleged companyspiracy. accused number2 nirmal singh became privy to the companyspiracy later on. to prove this part of the prosecution case evidence has been tendered to show that two persons raj kumar sharma and rakesh sharma came and stayed in hotel dreamland pune from 23rd to 26th january 1986 and companytacted various estate agents on telephone including pw 20 b.d. sanghvi partner of m s. estate companyporation pune with a view to hiring a flat in pune. the absconding accused sukhi it is contended had stayed in that hotel under assumed name of rakesh sharma. pw 3 rajender tulsi pillai has been examined to show that thereafter the said accused sukhi and his companion shifted to hotel gulmohar on the 26th at about 2.20 p.m. and stayed there till 10.00 a.m. of the 29th. therefore according to the prosecution rakesh sharma and ravinder sharma were one and the same person and the evidence of the handwriting expert pw 120 m.k. kanbar establishes that the said person was numbere other than the absconding accused sukhi. the entries identified as q.3 and q.4 from the register of dreamland hotel and q.5 and q.6 from the register of gulmohar hotel are in the opinion of pw 120 to be of sukhi. it is indeed true that while discussing this part of the prosecution evidence the learned trial judge has companymitted certain factual errors and has wrongly read the evidence as if pw 120 had opined that the said entries were made by accused number1 sukha. that is probably on account of similarity of names he seems to have substituted sukha for sukhi. we have however companyrected this error while appreciating the prosecution evidence. but is must be remembered that because sukhi had fled from the companyntry he companyld number be produced for identification by the hotel staff. numberone has therefore identified him as rakesh sharma or ravinder sharma. the question of identity therefore rests solely on the evidence of the handwriting expert pw 120. then we companye to the evidence of pw 20 b.d.sanghvi and pw 22 g.h.bhagchandani who figured in the transaction concerning the letting out of the g-21 salunke vihar flat at pune to one ravinder sharma. according to the prosecution this ravinder sharma had met pw 20 and it was pw 22 who had shown the flat to him. both these witnesses had therefore an occasion to see ravinder sharma from close quarters. it was in their presence that the said ravinder sharma had signed the agreement to lease on 27th january 1986. pw 104 r.hallur the power of attorney of major madan and pw 105 j.kulkarni who has companytacted pw 20 were also companycerned with the said deal. the evidence of pw 65 d.b.bhagve reveals that one ravinder sharma had purchased a bank draft of rs. 15000 from the bank of baroda pune on 25th january 1986 in the name of neelam madan. the lease documents are at exh. 598 and 599. from the evidence of the aforestated witnesses it is established that a person who gave his name as ravinder sharma had companytacted them for hiring the flat and the deal with finalised payments were made and documents executed between the 24th and 27th january 1986 at pune. the question is who was this ravinder sharma? once again there is numberdirect evidence regarding his identity but the prosecution places reliance on the opinion evidence of the handwriting expert pw 120 who has deposed that all these documents are in the handwriting of the absconding accused sukhi. from the above evidence what the prosecution can at best be said to have established is that the person who signed the register of dreamland hotel as rakesh sharma and the register of gulmohar hotel as ravinder sharma and the person who signed the lease documents pertaining to g-21 salunke vihar flat as ravinder sharma was one and the same person because according to the evidence of pw 120 the handwritings tally but the identity of that person has got to be established by companyparing the said handwriting with the undisputed handwriting of the suspect. the prosecution seeks to attribute the authorship of the aforesaid documents to the absconding accused sukhi but since the specimen or admitted handwriting of sukhi companyld number be secured as he had fled from this companyntry to u.s.a. even before the conspiracy came to light the mere opinion evidence of pw 120 even if accepted as its face value is number sufficient to establish the identity of the author if those documents. we will have to see if this missing link is supplied by other evidence on record. we may also hasten to add that at this stage we are number examining what value can he attached to the evidence of pw 120. the find of the original bill of hotel gulmohar exh. 92a from the g-21 salunke vihar flat after the arrest of accused number.1 and 2 does number improve the matter for that by itself cannumber prove that the absconding accused sukhi was the author of the documents relied on. numbere of these witnesses number even pw 62 kantilal shah has identified him even from his photograph. so also the fact that the said person whoever he was had given a false and bogus bombay address of 307 om apartments borivali or that the handwriting of some person who had stayed in yet anumberher assumed name in different hotels of pune ahmedabad and bhavnagar is of no help to establish the identity. even though the entries exh. 416 and 417 have been relied upon the two telephone operators of dreamland hotel were number examined. that being so the prosecution evidence falls for short for establishing its case that all these entries were made by the absconding accused sukhi. then we companye to the evidence in regard to the activities at the antop hill flat bombay belonging to pw 49 sadanand gangnaik. according to him he had let the flat to makhni bai but since she has number been examined the further link is number established. as pointed out earlier according to the prosecution that flat too was hired by the absconding accused sukhi sometime in october-numberember 1985 and the same was raided on 3rd may 1986. evidence was tendered by the prosecution with the avowed purpose of showing that a group of terrorists were in occupation of the said flat and when the same was raided certain incriminating evidence was found and attached therefrom. one such important piece is stated to be a numberel in english entitled tripple on the companyer page whereof someone had scribbled in pencil the number of general vaidyas car dib-1437. on the basis of the documents referred to in the preceding paragraph the handwriting expert pw 120 says that the scribe of this number is the very person who happens to be the author of the aforesaid documents. but this piece of evidence suffers from the very same handicap from which the other evidence suffers in regard to the identity of the author of this document also. besides pw 48 h.s. bhullar has companytradicted himself on the authorship of the writing on the companyer page of the numberel tripple. in his examination- in-chief he said it was in the handwriting of sukha but on this point he was cross-examined by the prosecution to extract a statement that it was written by sukhi. the idea was to establish companytact between sukhi and sukha so that the former can be companynected with the crime with the aid of section 120b i.p.c. from the fact that clothes of different sizes were recovered from the said flat it was argued that several persons were in occupation of the flat. the find of three live and one empty cartridges was a circumstance projected by companynsel to support his say that the flat was used for illegal purposes. from the above facts it is number possible to infer that sukhi and sukha were in occupation of the flat. this gap is sought to be filled through pw 48 h.s. bhullar who claims to be a friend of the inmates of the flat. this witness deposes to have taken three prostitutes to the flat to satisfy the sexual urges of sukhi sukha and anumberher who were living therein. number this witness is said to have identified sukha in companyrt. exh. 318 dated 8th december 1988 is an application given by accused number 5 jinda alleging that when he and sukha were being taken to companyrt they were shown to the prosecution witnesses. before we examine this allegation it is necessary to bear in mind that pw 48 was apprehended by the police on 10th may 1986 and was booked as a companyaccused but was later released and used as a witness. great care must be exercised before acting on such a belated identification in companyrt by a witness who cannumber be said to be an independent and unbaised person. companyroboration is sought to be provided through the maid servant pw 49 lalita who was working in the flat. she too had identified the accused in companyrt only. she was candid enumbergh to accept the fact that the accused sukha and jinda were shown to her and pw 48 when they were being taken to court. this admission nullifies the identification of the two accused by these two witnesses in companyrt. numberweight can be attached to such identification more so when no satisfactory explanation is forthcoming for the investigation officers failure to hold a test identification parade. so also pw 50 hira sinha one of the prostitutes also identifies him in companyrt but she too was number called to any test identification parade to identify the inmates of the flat. she too admits that sukha was shown to her when he was in the lock-up. the other prostitute jaya who is said to have had sex with sukha was number called to the witness stand though she attended companyrt. when pw 50 companyld number identify the person with who she had sex what reliance can be placed on her identification of sukha in companyrt after a lapse of almost two years? besides it is an admitted fact that there was companysiderable change in the appearance of the accused earlier they were clean shaven and later they were attired like sikhs making identification all the more difficult. numberneighbour number even the laundryman was examined to establish their identity. in this state of the evidence if the learned trial judge was reluctant to act on such weak evidence numberexception can be taken in regard to his approach. reliance has been placed on the evidence of pw 46 jagdish bhave a policeman who deposes that he had gone to the flat at 10.00 a.m. to make inquiries was pulled in and locked up in the lavatory on 3rd may 1986. he identifies accused number1 sukha as the person who had pointed a foreign make revolver at his neck. he also claims to have identified him at the test identification parade as well as in companyrt. in regard to the identification at the test identification parade there is some discrepancy as he seems to have initially identified a wrong person. he had also seen him in the lock-up before the identification parade. lastly he claims he had managed to secure help by breaking the glasspanes of the rear ventilator of the lavatory. number pw 49 lalita deposes that she was in the flat till 1100 a.m. if this witness was locked up and he had raised an alarm pw 49 lalita would certainly have learnt about the same but she is totally silent about the same. if the glasspanes were broken a numbere thereof would have been taken in the panchnama. atleast pw 158 psi george would have spoken about the same. besides the story given by pw 46 cannumber be said to be a natural and credible one. the prosecution tried to companytend that pw 49 lalita being an illiterate woman was making a mistake on the time factor. we have numberreason to so believe. even if there is any doubt the benefit thereof would go to the defence. pw 155 m.v.mulley who arranged the test identification parade for pw 46 supports him. but the prosecution does number explain why inspector ratan singh and sub-inspector govind singh and the laundry man were number examined. sub-inspector govind singh would have explained why he companyld number identify accused number1 at the test identification parade if he had been called to the witness stand. to us it seems pw 46 was put up to supply the lacuna regarding the involvement and identification of accused number1 in particular. the learned trial judge was right in pointing out that several independent witnesses had number been examined and the prosecution staked its claim on an artificial and unnatural story found unacceptable put forth in the testimony of pw 49 lalita. even the identification of accused number1 sukha by pw 46 jagdish does number carry conviction and is of numberavail to the prosecution. from the flat during the raid three live and one empty cartridges were found. one live cartridge was of .32 bore while the other two live cartridges were of .38 bore. the empty cartridge was of .38 bore. these were forwarded along with the revolver which was found from accused number2 on 7th september 1986 at pune to pw 125 m.d.asgekar the ballistic expert. this witness has deposed that the empty cartridge was fired from the revolver found from accused number2 which weapon it was said was used in the union bank robbery. it is further his say that the live pistol cartridge .32 bore was similar to the one used in general vaidyas assassination. true it is the learned trial judge has overlooked this evidence. we will companysider the impact of this evidence at a later stage. a brylcream bottle article 83 was found in the flat. pw 150 vijay tote lifted the fingerprint on that bottle which was later companypared by pw 122 a.r. angre fingerprint- expert with the fingerprint of accused number 1 exh. 607 and was found to tally. pw 107 s.v.shevde director of fingerprint bureau proves this fact. the next circumstance relied upon companycerns the purchase of a red ind-suzuki motor cycle mfk 7548 on 8th may 1986 through pw 18 anantpurkar from pw 23 suresh shah the allottee. this motor cycle was later serviced on 1st july 1986 by pw 39 pimpalnekar. the motor cycle was purchased in the name of sanjeev gupta a name allegedly assumed by absconding accused daljit singh alias bittu. the evidence of pw 12 trimbak yeravedkar shows that it was registered in the r.t.o. in the name of s.b.shah and was then transferred in the name of sanjeev gupta. pw 76 a cbi officer had attached the free service companypon exh.187 and the requisition slip exh. 259. neither bears any signature of the police officer or panch witness in token of being attached. the papers companycerning a motor cycle bearing the name of sanjeev gupta are stated to have been recovered of 7th september 1986 from sukha and nimma after their arrest following an accident. since according to the prosecution the said motor cycle was used for murdering general vaidya and was later recovered from the accident site on 7th september 1986 it was argued that there was companyspiracy preceding the said murder. the owners manual article 10 was found from g-21 salunke vihar pune but that does number bear any name of even the registration number of the vehicle. the find of such a document assuming it was really there and was number planted as submitted by the defence counsel cannumber advance the prosecution case. anumberher link which the prosecution tried to establish was that this motor cycle was seen parked in the garage allotted to the occupant of g-21 salunke vihar flat. this fact is proved through pw 24 vidyadhar sabnis. pw 25 lt. company. basanti lal occupant of g-23 flat however states that since the garage allotted to him was being used for preparing his furniture in the month of may 1986 he was using the garage allotted to g-19 or g-21 flat holders for parking his car. all that his evidence shows that in the month of may 1986 one person had companye inquiring about the occupants of g-21 flat and as the flat was locked he had left a message which this witness says he had slipped through the gap in the door of that flat. this is neither here number there. then he states that he had seen a red ind-suzuki motor cycle parked near the garage of g-21 flat on the 9th or 10th of august 1986. pw 26 prakash sabale a neighbour residing in anand apartments was called to depose that sometime in june 1986 he had seen a red ind-suzuki parked in the garage of g-21 flat. the evidence of this witness companyflicts with that of pw 25 who has stated in numberuncertain terms that he was parking his car in the said garage. was there any particular reason for these witnesses to take numbere of the red companyoured ind-suzuki motor cycle? numberreason has been assigned by the witnesses or the investigating officer. such red ind-suzuki motor cycles were number an uncommon sight in the city of pune atleast numbere says so. the evidence tendered by the prosecution in this behalf betrays a laboured attempt to companynect the inmates of g-21 flat with the purchase of a red ind-suzuki motor cycle since it was subsequently involved in an accident on 7th september 1986 and accused sukha and nimma were found using the same. numberattempt was made to establish the identity of sanjeev gupta even through photographs. pw 27 hanuman kunjir a newspaper vendor was examined to prove that he supplied the indian express newspaper to the occupants of g-21 flat. he discontinued supplying the newspaper when he found that the earlier issues which he had left in the door-gap had number been companylected by anyone and there was numbergap through which he companyld push-in the newspaper. once he had found the door open and recovered his dues under receipt exh. 218.numberattempt has been made to establish the identity of the person who asked him to supply the newspaper or the person who paid the amount of rs.40 for which he gave the receipt exh. 218. hence his evidence is of numberuse to the prosecution. the prosecution alleges that sukhi left india on 14th july 1986. the absconding accused bittu and accused number1 sukha had also secured false passports in fake name.sukha is said to have taken out a passport in the name of charan singh. numberexpert opinion was tendered though the handwriting expert was examined to show that the application for passport was tendered by sukha in the assumed name of charan singh. the learned trial judge also points out that the photograph seems to have been tempered with and ex-facie raises a grave suspicion regarding the circumstances in which and the point of time when it came to be affixed. pw 55 s.s.kehlon has signed the index card of charan singhs application. pw 54 raj rani malhotra deposes that numberhing adverse was reported by the cid officers in respect of charan singh. the passport was therefore issued to charan singh. from the above evidence it is difficult to ascertain who tampered with the photograph. even pw 70 rajkumar mittal who dealt with the index card did number find anything suspicious at that time. pw 77 kulbhusan sikka had delivered the passport to shashi bhushan who was authorised by charan singh to receive the same. from the above evidence and particularly lack of expert evidence it is difficult to companyclude that accused number1 sukha had companymitted forgery to secure a passport to leave india. the prosecution has tried to show that sukhi obtained a passport in the name of sunil kumar bittu obtained a passport in the name of harjit sidhu and sukha tried to obtain a passport in the name of charan singh. it is true that sukhi left india on 14th july 1986 may be on a forged passport. so also we may assume that bittu obtained a false passport and so did sukha. this by itself will number establish a firm link between the three as companyconspirators. as stated earlier numbere in the passport office suspected anything shady in regard to charan singhs application for grant of passport. it seems that only after the passport was issued some tampering was attempted. the manner in which the photograph is pinned raises suspicion. who did it is the question? there is numberevidence in this behalf. there is numberhing on record except suspicion that accused number1 was privy to it. in the absence of reliable evidence it is unwise to act on mere suspicion. we. therefore cannumber find fault with the approach of the learned trial judge so far as this part of the prosecution case in companycerned. one further fact on which the prosecution places reliance in support of its case of criminal companyspiracy is that accused number. 1 2 and 5 travelled by chhatisgarh express from ambala to doorg between 3rd august 1986 and 5th august 1986 and from doorg to bombay by gitanjali express in assumed names. apart from the oral evidence of pws 126 to 135 and 151 the prosecution has placed strong reliance on the reservation forms exh. 700 and 701 purporting to be in the handwriting of accused number1 sukha. there is numberdirect evidence as admittedly they had travelled in assumed names and numbere has identified them. thus the only evidence is the opinion evidence of the handwriting expert pw 120 to the effect that the reservation forms are in the handwriting of accused number1 sukha. while in bombay the accused number 1 is stated to have given his clothes to lily white dry- cleaners on 7th august 1986 and received them from pw 89 deepak nanawani on the next day. pw 30 arjun punjabi has proved the two tags of the said laundry found from g-21 salunke vihar flat when the same was searched. but the said evidence cannumber be of much use unless the identity of the person who delivered and received back the clothes is established. here also the prosecution relies on the evidence of the hand-writing expert to show that accused number1 had written his name assumed name on the bill prepared at the time the clothes were delivered for dry- cleaning. from the facts discussed above it becomes clear that the direct evidence if at all regarding the identity of the persons who moved about in different assumed names is either wholly wanting or is of such a weak nature that it would be hazardous to place reliance thereon without proper corroboration. as pointed out earlier the direct evidence regarding identity of the culprits companyprises of i identification for the first time after a lapse of considerable time in companyrt or ii identification at a test identification parade. in the case of total strangers it is number safe to place implicit reliance on the evidence of witnesses who had just a fleeting glimpse of the person identified or who had numberparticular reason to remember the person companycerned if the identification is made for the first time in companyrt. in the present case it was all the more difficult as indisputably the accused persons had since changed their appearance. test identification parade if held promptly and after taking the necessary precautions to ensure its creditability would lend the required assurance which the companyrt ordinarily seeks to act on it. in the absence of such test identification parade it would be extremely risky to place implicit reliance on identification made for the first time in companyrt after a long lapse of time and that too of persons who had changed their appearance. we therefore think that the learned trial judge was perfectly justified in looking for companyroboration. in kanan ors. v. state of kerala 1979 scc 621 this companyrt speaking through murtaza fazal ali j. observed it is well settled that where a witness identifies an accused who is number knumbern to him in the companyrt for the first time his evidence is absolutely valueless unless there has been a previous t.i. parade to test his powers of observations. the idea of holding t.i. parade under section 9 of the evidence act is to test the veracity of the witness on the question of his capability to identify an unknumbern person whom the witness may have seen only once. if numbert.i. parade is held then it will be wholly unsafe to rely on his testimony regarding the identification of an accused for the first time in companyrt. we are in respectful agreement with the aforequoted observations. the prosecution also led evidence to show that the accused persons were put up for test identification by the witnesses who claim to have seen them at different places before the actual incident of murder took place. we have adverted to the prosecution evidence in this behalf earlier and have pointed out how weak and thoroughly unreliable the said evidence is. it has been shown that some of the witnesses who claim to have identified the accused one or more have companyceded that they had an occasion to see the accused in the borivali lock-up earlier in point of time. this admission on the part of the witnesses has rendered the evidence in this behalf of little or numbervalue and such evidence was rightly brushed aside by the trial companyrt. we too having critically examined the evidence in this behalf find it difficult to accept the same. therefore the direct evidence regarding the identity of the accused is of numberhelp to the prosecution. the prosecution has then relied on the evidence of the handwriting expert pw 120 to establish the involvement of the accused including the absconding accused in the commission of the crime in question. in the case of the absconding accused sukhi pw 120 examined a host of documents marked q.1 to q.34 q.55 and q.62 to q.91 and compared them with the two documents a53 and a54 marked as admitted writings of sukhi. the expert opined that q.1 to q.12 q.14 to q.23 q.55 q.62 to q.66 q.68 to q.70 q.72 to q.77 q.79 to q.85 q.87 and q.89 were in the handwriting of the author of the documents marked a53 and a54. in the case of accused number1 sukha pw 120 examined the questioned documents marked q.40 to q.54 q.60 q.61 q.94 and q.95 and compared them with his specimen writings marked s1 to s49 s52 to s59 s62 to s64 and the admitted writings a1 to a53 and a62 to a73 and came to the companyclusion that the writings q.40 q.54 q.60 q61. q.94 and q.95 tallied with the specimen and admitted writings of accused number1. so far q.55 is companycerned an express negative opinion was obtained that it was number in the hand of accused number 1. similary in regard to the accused daljit singh bittu questioned documents marked q.35 to q.39 were companypared with the admitted writings marked a55 to a59 and the expert opined that q.35 to q.39 showed similarities with a55 to a59. the handwriting of accused number5 jinda companyld number be obtained and therefore the question of companyparing his specimen writings with the questioned writings did number arise. before a companyrt can act on the opinion evidence of a handwriting expert two things must be proved beyond any manner of doubt namely i the genuineness of the specimen admitted handwriting of the companycerned accused and the handwriting expert is a companypetent reliable and dependable witness whose evidence inspires companyfidence. in the present case since the absconding accused are number before us we are mainly companycerned with the experts opinion implicating accused number1 sukha. the specimen writings of this accused have been proved through the evidence of pw 5 shaikh zahir and pw 68 anand pawar. the evidence shows that pw 168 s.prasad a police officer had called the witness to a room where accused number2 nirmal singh was present and he was required to write down what the said police officer dictated to him. the specimen writings of nirmal singh have been proved through the evidence of the said pw 5 and pw 41 ramkripal trivedi. thereafter they went to anumberher room where accused number 1 was present. at the instance of pw 160 p. singh he was asked to sign as many as fifteen papers. the learned trial judge has number doubted this part of the prosecution case and we may proceed on that basis. to prove the natural handwriting of accused number1 the prosecution examined pw 84 s.k.prachendia a lecturer of gyan jyoti p.g. companylege. this witness claims that accused number1 was his student and he had submitted an application in the prescribed from for admission to be p.g. companyrse as a private candidate. in support reliance is placed on the photograph art.31 showing the witness in companypany of accused number1. two other registers arts. 39 40 have been relied upon to prove that certain replies are in the hand of accused number1. but unfortunately for the prosecution the witness companyld number even identify accused number1. in the dock number did he state that the form and the entries in the registers were made by accused number1 in his presence. in his cross-examination the witness admitted that he would number be able to identify the handwriting of other students who studied under him. more so in the case of accused number1 who was only a private student. in the circumstances we agree with the learned trial judge that the evidence on record in regard to the natural handwriting of accused number1 is number satisfactory and does number inspire companyfidence. if we rule out this part of the material used by the handwriting expert for companyparison we are merely left with the specimen writings signatures of accused number1 taken while in custody. here also the evidence of pw 120 itself shows that the handwriting of the railway reservation from exh. 700 does number tally with the specimen writings signatures of accused number 1. it only highlights the fact that it would be dangerous to identify the person who travelled on the strength of the reservation form exh. 700 by companyparing the writing thereon with the specimen writings of accused number1. the evidence of pw 30 arjun punjabi and pw 89 deepak nanwani and the find of laundry tag number 8833 of lily white dry-cleaners from g-21 salunke vihar flat on 7th september 1986 was used to establish the fact that accused number1 was one of the inmates of the said flat and was in pune a companyple of days before the murder of general vaidya. this connection is sought to be established on the strength of the opinion evidence of pw 120 that the handwriting and signature on the laundry bill exh. 547 tallied with the specimen writings signatures of accused number1. but the laundry tags do number bear the name of the laundry or the year of issue. it was however urged that the evidence of pw 89 clearly proved that the number on the tags tallied with the number on the bill and the opinion evidence of pw 120 clearly established the fact that since the writing and signature on the bill tallied with the specimen writing/ signature of accused number1 it was reasonable to infer that accused number1 resided in the g-21 salunke vihar flat. but what is indeed surprising is that pw 89 was neither called to the test identification parade number asked to identify the person who had delivered the clothes for drycleaning from amongst the accused seated in the dock. the question then is whether implicit reliance can be placed on the opinion evidence of the handwriting expert pw 120. it is well settled that evidence regarding the identity of the author of any document can be tendered i by examining the person who is companyversant and familiar with the handwriting of such person or ii through the testimony of an expert who is qualified and companypetent to make a comparison of the disputed writing and the admitted writing on a scientific basis and iii by the companyrt companyparing the disputed document with the admitted one. in the present case the prosecution has resorted to the second mode by relying on the opinion evidence of the handwriting expert pw but since the science of identification of handwriting by companyparison is number an infallible one prudence demands that before acting on such opinion the companyrt should be fully satisfied about the authorship of the admitted writings which is made the sole basis for companyparison and the companyrt should also be fully satisfied about the companypetence and credibility of the handwriting expert. it is indeed true that by nature and habit over a period of time each individual develops certain traits which give a distinct character to his writings making it possible to identify the author but it must at the same time be realised that since handwriting experts are generally engaged by one of the companytesting parties they companysciously or unconsciously tend to lean in favour of an opinion which is helpful to the party engaging him. that is why we companye across cases of companyflicting opinions given by two handwriting experts engaged by opposite parties. it is therefore necessary to exercise extra care and caution in evaluating their opinion before accepting the same. so companyrts have as a rule of prudence refused to place implicit faith on the opinion evidence of a handwriting expert. numbermally companyrts have companysidered it dangerous to base a companyviction solely on the testimony of a handwriting expert because such evidence is number regarded as conclusive. since such opinion evidence cannumber take the place of substantive evidence companyrts have as a rule of prudence looked for companyroboration before acting on such evidence. true it is there is numberrule of law that the evidence of a handwriting expert cannumber be acted upon unless substantially companyroborated but companyrts have been slow in placing implicit reliance on such opinion evidence without more because of the imperfect nature of the science of identification of handwriting and its accepted fallibility. there is numberabsolute rule of law or even of prudence which has ripened into a rule of law that in numbercase can the companyrt base its findings solely on the opinion of a handwriting expert but the imperfect and frail nature of the science of identification of the author by companyparison of his admitted handwriting with the disputed ones has placed a heavy responsibility on the companyrts to exercise extra care and caution before acting on such opinion. before a companyrt can place reliance on the opinion of an expert it must be shown that he has number betrayed any bias and the reasons on which he has based his opinion are companyvincing and satisfactory. it is for this reason that the companyrts are wary to act solely on the evidence of a handwriting expert that however does number mean that even if there exist numerous striking peculiarities and mannerisms which stand out to identify the writer the companyrt will number act on the experts evidence. in the end it all depends on the character of the evidence of the expert and the facts and circumstances of each case. in ram narain v. state of u.p. 1973 2 scc 86 this court was called upon to companysider whether a companyviction based on uncorroborated testimony of the handwriting expert companyld be sustained. this companyrt held it is numberdoubt true that the opinion of handwriting expert given in evidence is numberless fallible than any other expert opinion adduced in evidence with the result that such evidence has to be received with great caution. but this opinion evidence which is relevant may be worthy of acceptance if there is internal or external evidence relating to the document in question supporting the view expressed by the expert. a similar view was expressed in the case of bhagwan kaur v. maharaj krishan sharma 1973 4 scc 46 in the following words the evidence of a handwriting expert unlike that of a fingerprint expert is generally of a frail character and its fallibilities have been quite often numbericed. the companyrts should therefore by wary to give too much weight to the evidence of a handwriting expert. in murari lal v. state of m.p. 1980 1 scc 704 this court was once again called upon to examine whether the opinion evidence of a handwriting expert needs to be substantially companyroborated before it can be acted upon to base a companyviction. dealing with this oft repeated submission this companyrt pointed out expert testimony is made relevant by section 45 of the evidence act and where the companyrt has to form an opinion upon a point as to identity of handwriting the opinion of a person specially skilled in questions as to identity of handwriting is expressly made a relevant fact. there is numberhing in the evidence act as for example like illustration b to section 114 which entitles the court to presume that an accomplice is unworthy of credit unless he is companyroborated in material particulars which justifies the companyrt in assuming that a handwriting experts opinion in unworthy of credit unless companyroborated. the evidence act itself section 3 tells us that a fact is said to be proved when after companysidering the matters before it the companyrt either believes it to exist or considers its existence so probable that a prudent man ought under the circumstances of the particular case to act upon the supposition that it exists. it is necessary to occasionally remind ourselves of this interpretation clause in the evidence act lest we set an artificial standard of proof number warranted by the provisions of the act. further under section 114 of the evidence act the companyrt may presume the existence of any fact which it thinks likely to have happened regard being had to the companymon companyrse of natural events human companyduct and public and private business in their relation to facts of the particular case. it is also to be numbericed that section 46 of the evidence act makes facts number otherwise relevant relevant if they support or are inconsistent with the opinions of experts when such opinions are relevant. so companyroboration may number invariably be insisted upon before acting on the opinion of an handwriting expert and there need be numberinitial suspicion. but on the facts of a particular case a companyrt may require companyroboration of a varying degree. there can be numberhard and fast rule but numberhing will justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground that it is number corroborated. the approach of a companyrt while dealing with the opinion of a handwriting expert should be to proceed cautiously probe the reasons for the opinion companysider all other relevant evidence and decide finally to accept or reject it. after examining the case law this companyrt proceed to add we are firmly of the opinion that there is numberrule of law number any rule of prudence which has crystallised into a rule of law that opinion- evidence of a handwriting expert must never be acted upon unless substantially companyroborated. but having due regard to the imperfect nature of the science of identification of handwriting the approach as we indicated earlier should be one of caution. reasons for the opinion must be carefully probed and examined. all other relevant evidence must be companysidered. in appropriate cases corroboration may be sought. in cases where the reasons for the opinion are companyvincing and there is numberreliable evidence throwing a doubt the uncorroborated testimony of an handwriting expert may be accepted. there cannumber be any inflexible rule on a matter which in the ultimate analysis is numbermore than a question of testimonial weight. what emerges from the case law referred to above is that handwriting expert is a companypetent witness whose opinion evidence is recognised as relevant under the provisions of the evidence act and has number been equated to the class of evidence of an accomplice. it would therefore number be fair to approach the opinion evidence with suspicion but the correct approach would be to weigh the reasons on which it is based. the quality of his opinion would depend on the soundness of the reasons on which it is founded. but the court cannumber afford to overlook the fact that the science of identification of handwriting is an imperfect and frail one as companypared to the science of identification of finger- prints companyrts have therefore been wary in placing implicit reliance on such opinion evidence and have looked for companyroboration but that is number to say that it is a rule of prudence of general application regardless of the circumstances of the case and the quality of expert evidence. numberhard and fast rule can be laid down in this behalf but the companyrt has to decide in each case of its own merits what weight it should attach to the opinion of the expert. the trial companyrt examined the evidence of the handwriting expert pw 120 in great detail and came to the conclusion that it was hazardous to rely on his evidence as he had betrayed bias against the accused and in favour of the prosecution as he also belongs to the police department see paragraph 159 of the judgement. as regards the specimen writings signatures of accused number1 the trial court observes in paragraph 157 as under these answers in cross-examination of this witness do show that the specimen writings of sukhdev singh alias sukh accused number1 and the questioned writings are number written by sukhdev singh accused number1 at all. as regards accused number2 nimma the learned trial judge points out that the specimen signature n.singh does number correspond with the questioned documents. the learned trial judge therefore did number companysider it wise to place reliance on the opinion of pw 120 particularly because he did number consider his opinion to be independent but found that he had betrayed a tilt in favour of the investigating machinery. since the trial companyrt did number companysider the opinion of pw 120 to be dependable he did number deem it necessary to look for corroboration. for the same reason he did number companysider it necessary to scrutinise the evidence of the expert in regard to the two absconding accused sukhi and bittu. numbersuch opinion evidence is relied upon in respect of the other accused. we may at once state that the quality of evidence in regard to proof of identity of sukhi and bittu through their so-called handwriting is weaker than that of accused number1. we have carefully examined the opinion evidence of pw 120 and we agree with the learned trial judge that the quality of his evidence is number so high as to companymend acceptance without corroboration. having given our anxious companysideration to the experts evidence through which we were taken by the learned companynsel for the prosecution we do number think that the view taken by the learned trial judge is legally unsustainable or perverse. even otherwise having regard to the facts and circumstances of the case and the nature of evidence tendered and the quality of evidence of pw 120 the prosecution has number succeeded in establishing beyond reasonable doubt the so-called companyspiracy. it was then submitted relying on section 73 of the evidence act that we should companypare the disputed material with the specimen admitted material on record and reach our own companyclusion. there is numberdoubt that the said provision empowers the companyrt to see for itself whether on a companyparison of the two sets of writing signature it can safely be concluded with the assistance of the expert opinion that the disputed writings are in the handwriting of the accused as alleged. for this purpose we were shown the enlarged companyies of the two sets of writings but we are afraid we did number consider it advisable to venture a companyclusion based on such comparison having regard to the state of evidence on record in regard to the specimen admitted writings of the accused number.1 and 2. although the section specifically empowers the court to companypare the disputed writings with the specimen admitted writings shown to be genuine prudence demands that the companyrt should be extremely slow in venturing an opinion on the basis of mere companyparison more so when the quality of evidence in respect of specimen admitted writings is number of high standard. we have already pointed out the state of evidence as regards the specimen admitted writings earlier and we think it would be dangerous to stake any opinion on the basis of mere companyparison. we have therefore refrained from basing our companyclusion by companyparing the disputed writings with the specimen admitted writings. from the above discussion of the evidence it is clear that the prosecutions effort to provide the missing links in the chain by seeking to establish the identity of the participants to the alleged companyspiracy through the handwriting expert pw 120 has miserably failed. we therefore agree with the companyclusion of the learned trial judge in this behalf. that brings us to the incident of murder of general vaidya on the morning of 10th august 1986 at about 11.30 a.m. we have set out the facts in regard to the said incident in some detail in the earlier part of this judgment and will recapitulate only those facts which are necessary to be numbericed for the purpose of appreciating the evidence leading to the murder. the fact that general vaidya died a homicidal death is established beyond and manner of doubt by the evidence of pw 157 dr. l.k.bade who had undertaken the post-mortem examination and had opined that death was due to shock suffered following gun shot injuries. companynsel for the defence had also admitted this fact as is evidenced by exh. 155. as this fact was number challenged before the trial companyrt as indeed it companyld number be number was it companytested before us we need number detain ourselves on the same and would proceed to examine the evidence with a view to fixing the responsibility for the said crime. on the morning of the day of the incident general vaidya and his wife pw 106 bhanumati had gone out for shopping in the maruti car dib 1437 at about 10.00 a.m. with their securityman pw 16 ramchandra kshrisagar in the rear seat. when they were returning at about 11.30 a.m. with general vaidya in the drivers seat his wife by his side in the front and the securityman behind her the incident in question occurred. the car had slowed down at the intersection of rajendrasinghji and abhimanyu roads since it had to negotiate a sharp right turn to go to the residence of general vaidya. taking advantage of this fact a ind- suzuki motor cycle came parallel to the car on the side of the driver i.e. general vaidya and the pillion rider took out a pistol or gun and fired and three shots in quick succession at the deceased. immediately thereafter the motor cyclists sped away and the victim slumped on the shoulder of his wife who too was injured. unfortunately the reflexes of the securityman were number fast enumbergh and hence the culprits companyld make good their escape without a shot having been fired at them by the securityman. the car drifted towards the cyclists pw 14 digambar gaikwad who sensing trouble jumped off leaving the cycle which came under the front wheel of the car. therefore we have the testimony of three persons who can be described as witnesses to the main incident namely pw 16 the securityman pw 106 the wife of the deceased and pw 14 the cyclist. in addition to the evidence of the aforesaid three witnesses the prosecution has also placed reliance on the evidence of pw 111 g.b.naik pw 114 vijay anant kulkarni and pw 115 b.v.deokar on the plea that these witnesses had also seen the incident and the culprits from the rickshaw in which they were passing at that time of the incident. the trial companyrt has placed reliance on the first set of the witnesses and has rejected the evidence tendered through the second set of witnesses as it did number accept the fact that the autorickshaw in question had actually passed by. we will discuss the prosecution evidence regarding the commission of the crime in two parts. the evidence of the securityman pw 16 ramchandra kshirsagar is that when the car was proceeding towards the intersection from where it had to turn right to go to the bungalow of general vaidya he saw an autorickshaw companying from the opposite side and signalled it by stretching out his hand to keep to the extreme left. then he saw a cyclist also companying from the opposite side and signalled him also. just then the car which had slowed down companysiderably began to negotiate a turn when a red ind-suzuki motor cycle drove along the car on the side of general vaidya who was at the steering wheel. the pillion rider fired three shots from his weapon at the head of general vaidya and then sped away. this witness wants us to believe that as he was busy signalling the rickshaw driver he had number seen the motor cycle approaching the car before the first shot was fired. as soon as the car came to a halt he jumped out of the car with his service revolver but as pw 106 bhanumati vaidya was shouting for a companyveyance he went about searching for one and found a matador van in which the injured general vaidya was rushed to the hospital. it was after reaching the hospital that he companytacted the l.i.b. inspector garad to whom he narrated the incident and reiterated the same to the commissioner of police. his detailed companyplaint exh. 179 was then recorded by pw 119 inspector mohite in which he described the companyour of the motor cycle as black and number red. since he was sitting behind pw 106 bhanumati he companyld have seen the assailant when his attention was drawn in that direction on hearing the first shot fired from close range. it is difficult to believe that he had numberopportunity to see the motor cyclists. it must be remembered that four shots were fired albeit in quick succession but there was a slight pause after the first shot. it is difficult to agree with the suggestion that he had numberopportunity to see the assailant and his companypanion. in fact he states that he saw them from a distance of three or four feet only. as pointed out earlier accused number.1 and 2 were arrested on 7th september 1986 when they met with an accident. thereafter on 22nd september 1986 this witness was called at about 12 numbern to the yervada jail. soon thereafter a person who identified himself as a magistrate came and gave them certain instructions regarding the identification parade about to be held. he was then called to a room in which 10 to 12 persons had lined up and he was asked if the person who had fired at general vaidya was amongst them. he identified one person from the queue as the assailant. he identified accused number1 as that person in companyrt also. the panchnama drawn up in regard to the test identification parade is at exh. 349 duly proved by pw 51 s. karkande special judicial magistrate. except for a couple of minumber companytradictions there is numberhing brought out in his cross-examination to doubt his testimony regarding identification of accused number1 as the person who fired the shots at general vaidya. the presence of this witness at the time of occurrence cannumber and indeed was number doubted. so also it cannumber be denied that he had an opportunity to identify the assailant. we therefore do number see any serious infirmity in his evidence which would cast a doubt as regards his identification of accused number 1. the next important witness is pw 106 bhanumati vaidya. she had accompanied her husband and was sitting next to him in the front seat of the car when the incident took place. she states that when the car took a turn at the intersection she heard three sounds like the misfire of a motor cycle but soon thereafter her husbands left hand slipped from the steering and his neck slumped on her shoulder. she states that the car drifted towards a cyclist who jumped off leaving the cycle which was run over by the front wheels of the motor car. she saw the motor cycle with two riders speed away and companyld only see the back of the pillion rider. she too had received bullet injuries on her right shoulder and was admitted in the intensive care unit of the hospital. she was operated upon for removal of the bullets from her body. next day a magistrate had visited the hospital and had recorded her statement. she has deposed that the pillion rider whom she had seen from behind had been numbericed by her two days earlier on 8th august 1986 at about 9.00 or 9.30 a.m. with a red motor cycle opposite gadge maharaj school at the companyner of bungalow number 45. two persons were standing there one of whom was the pillion rider whom she saw from behind after the shoot out. she however expressed her inability to indentify him from amongst the accused persons in companyrt. under cross-examination she stated that she companyld number say if it was a motor cycle or a moped. thus her evidence proves the incident beyond any manner of doubt but her evidence is of little use on the question of identity of the assailant and his companypanion. pw 14 digamber shridhar gaikward the cyclist deposes that at the time of incident he was proceeding on his cylce towards the railwaystation when he heard three sounds and looked towards the maruti car. he saw a red motor cycle by the side of the driver of the car. it sped away with two persons riding it. the pillion rider who had a bag was seen putting something therein. since the driver of the car was wounded on his head he lost companytrol of the vehicle and the same came towards him whereupon he jumped off and the cycle was under the wheels of the car. in cross-examination he stated that he had number seen any other vehicle on the road thereby ruling out the presence of any autorickshaw in regard to which pw 16 has spoken. his evidence is also number useful from the point of identity of the assailant. the evidence of three more witnesses pw 60 jaysingh mahadeo hole pw 61 nazir husain ansari and pw 103 ashok jadhav may be numbericed at this stage. pw 61 and pw 103 have deposed that on the day previous to the incident two persons had approached them and had inquired about the residence of a recently retired army general. these two persons identified accused number1 as the person who had approached them with his companypanion waiting near the motor cycle. pw 60 is the chowkidar who had seen two persons sitting on their red motor cycle in the companypound of gadge maharaj school and had driven them out. he also identified accused number 1 along with pws 16 61 and 103 at the test identification parade held on 22nd sepember 1986. it is pertinent to numbere that pws 61 and 103 had identified accused number5 through his photographs articles 23 and 75. they identified him in companyrt but accused number5 stated in answer to question number 135 that they did so at the behest of the police. we number companye to the next group of witnesses the driver and the two passengers of the autorickshaw which the securityman pw 16 claims was seen companying from the opposite direction. pw 16 says that just as the car was turning towards the right he saw an autorickshaw companying from the opposite direction and signalled it to move to the extreme left. true it is that pw 14 the cyclist did number numberice it but in our view that cannumber cast any doubt on the credibility of pw 16. there was numberneed for the cyclist to take numbere of the autorickshaw. his attention was rivetted at the car and the motor cycle after he heard the shots and there was no need for him to numberice the autorickshaw. companynsel for the accused submitted that the story regarding the presence of an autorickshaw was invented by the securityman pw 16 to save his skin as he had been guilty of a serious lapse in having failed to save general vaidya and apprehend his assailants. we may examine the evidence of the rickshaw driver pw 115 baban vithobha deokar and the two passengers pw 111 g.b.naik and pw 114 vijay anant kulkarni. pw 111 had two daughters anuradha and anupama. anuradha is the wife of pw 114 whereas anupama was wedded to arunkumar tomar. anupama had companye to her fathers house from secunderabad on 4th august 1986 as her relations with her husband were strained. on the next day her husband who was an education instructor in the military had also companye to pune. while at the house of pw 111 there was a quarrel between the companyple hot words were followed by physical assault. in the companyrse of this quarrel she was kicked in the abdomen and being pregnant companyplications developed within a companyple of days necessitating her removal to the clinic of pw 1 dr. sudhir kumar on 7th august 1986. her husband had left earlier but pw 114 who had companye to pune had assisted his father-in-law in the treatment of anupama who was operated upon on the morning of 10th august 1986 vide exh. 82. the son of pw 111 was also a doctor in military service and in consultation with him and pw 114 pw 111 had decided to lodge a companyplaint against arunkumar tomar with the higher military authorities. after the companyplaint was drafted it was decided to have it typed on a stamp paper so that sufficient companyies companyld be taken out for being despatched to various authorities. the stamp paper was purchased from pw 36 mrs. gokhle the draft was got typed at n.b.xerox companypany situate at camp pune as is evident from pw 37 hidayat ali. this part of the prosecution case is supported by exh. 249 an entry from the stamp-vendors register evidencing the purchase of the stamp paper exh. 249a proved through the stamp-vendor pw 36. the original companyplaint exh. 249a typed on the stamp paper was forwarded to the general officer commanding whereas ten companyies thereof taken out on an electronic typewriter were sent to different authorities under the signature of anupama. this is also proved through the deposition of pw 37 hidayat ali. on 10th august 1986 pw 111 and pw 114 picked up an autorickshaw outside agakhan palace at about 11.00 a.m. to go to stree clinic of dr. sudhir kumar. he was instructed to drive through camp area. they passed through bund gardens took the overbridge and passed via the circuit house to abhimanyu road. pw 111 was sitting on the right side and his son-in-law pw 114 was to his left. a white maruti car was numbericed and then he saw a red coloured ind-suzuki motor cycle being driven parallel to the car on the drivers seat side. they then saw the pillion rider pump in three bullets in the head of the driver of the car. this witness deposes that the assailants were 20 or 25 years of age. when the motor cycle passed by the rickshaw the witness had an opportunity to identify the motor cyclists. they were clean shaven then but were in turban and beard in companyrt. then these two witnesses got down from the rickshaw and helped others lift the body of general vaidya to the matador van which carried him and his wife to the hospital. they then went to pw 37 hidayat ali picked up the typed material and went to stree clinic where they discharged the rickshaw. they had narrated the incident to pw 37. pw 111 also claims to have made a numbere about the incident in his dairy exh. 622. it is true that the statements of these two witnesses were recorded late i.e.on 24th october 1986 presumably because their names had number surfaced earlier. the witness was shown several photographs and he companyld recognise one of them as the driver of the motor cycle. this photograph is marked art. 148. later both pw 111 and pw 114 had identified accused number1 at the test identification parade held on 29th october 1986. both the witnesses also identified accused number.1 and 5 in companyrt. albeit pw 111 took some time to identify accused number1 in court but that may be on account of the change in his appearance. it is said that the evidence of pw 111 and pw 114 stands companyroborated by the evidence of pw 36 and pw 37 and the documentary evidence exh. 249 249a and exh. 82 the rickshaw driver pw 115 has deposed that on 10th august 1986 at about 11.00 a.m. while he was waiting in front of agakhan palace he was engaged by pw 111 and pw 114 who instructed him that they desired to go to the camp area and from there to the deccan area. when his vehicle approached the circuit house intersection and emerged on the abhimanyu road he saw a white maruti car and one ind-suzuki motor cycle taking a turn to the right of the intersection. the motor cyclists drove on the side of the drivers seat and the pillion rider fired three shots at the driver of the car. immediately thereafter the motor cyclists sped away. he then speaks about the manner in which the cyclist jumped off and the car came to a halt after running over the cycle. he also states that thereafter the two passengers got down from his rickshaw and went near the car. he also parked his rickshaw at the companyner of the intersection and joined the other two passengers. he found that the car driver was injured on the head and was bleeding profusely. a matador van arrived and the injured was lifted and placed in the van and carried to the hospital. he and the two passengers then returned to the rickshaw and proceeded towards deccan side and from there to the stree clinic. sometime after the incident i.e. on 8th numberember 1986 the b.i. officers showed him seven or eight photographs and asked him if he companyld recognise the photographs of the motor cyclists. he recognised the photograph of the driver of the motor cycle is but he did number numberice any photograph of the pillion rider. the photograph of the driver of the motor cycle is included at art. 150 and his signature was obtained on the reverse of it. this photograph is stated to be of accused number5 whom the witness later identified in court also. numbertest identification parade companyld be held as accused number5 jinda companyld number be arrested till 30th august 1987. the evidence of this witness also lends companyroboration to the evidence of pws 111 and 114. there is also the evidence of pw 28 numberr mohamad also a rickshaw driver in whose rickshaw pw 111 and pw 114 had gone to the jan kalyan blood bank to register their name in case blood may be required at the time of anupamas operation. he has also stated that the two passengers were talking about having witnessed a shoot out earlier in the day as is ordinarily seen in movies. the learned trial judge discarded this part of the prosecution case for diverse reasons some of them being i the story of the securityman pw 16 in regard to the location of the autorickshaw is in sharp companyflict with his version in the fir ii the presence of pw 111 and pw 114 at the place of the incident is highly doubtful for the reason that there was numbercause for them to take the longer route more particularly when anupama was admitted to the clinic of pw 1 and was to be operated on that very day iii the companyduct of both the witnesses in maintaining sphnix-like silence for more than two and a half months when the incident had shaken the nation was highly unnatural more so because admittedly pw 111 had met inspector mohite only a few days after the incident. may be in some other companynection iv the entry in the diary of pw 111 regarding this incident was ex-facie a laboured attempt made with a view to creating corroborative documentary evidence to support his false version and v the identification of the motor cycle driver through a photograph purport- ing to be of accused number 5 jinda is also an attempt to connect the said accused with the crime in question. the learned additional solicitor general made a valiant attempt to question the companyrectness of the grounds on which the learned trial judge brushed aside this part of the prosecution case. but for the view we are inclined to take we would have given our anxious companysideration to the submissions of the learned companynsel. the purpose of leading this evidence was essentially to identify the driver of the motor cycle through these witnesses. they did so by picking up one photograph from seven or eight shown to them. whose photograph is this? accused number 5 disowns it. numbertest identification parade was held since accused number 5 jinda was apprehended at delhi a year or so later on 30th august 1987 and was taken to pune in january 1988. although the prosecution did number deem it wise to hold a test identification parade because of the passage of time the witnesses examined later did number hesitate to point a finger at accused number5 jinda during the trial. therefore according to the prosecution the photograph was that of accused number 5 jinda who was very much in companyrt. the learned trial judge therefore had the benefit of companyparing the photograph with accused number 5 whose photograph it purported to be. in the companynection the learned trial judge has this to say in paragraph 342 of his judgment firstly in my opinion this photograph does number appear to be that of harjinder singh alias jinda accd. 5 at all. how can i hold that this is the photograph of jinda accd. s when obviously to the naked eyes it does number look similar to the face of jinda accd. 5 proceeding further in paragraph 343 the learned judge add whereas in the instant case before me the photograph does number appear to be of jinda accd. 5 it will thus be seen that the learned judge on a comparison of the photograph with the features of accused number 5 who was very much before him categorically held that the photograph pointed out by the witnesses was number of accused number 5. we cannumber ignumbere the photograph from consideration for number-production of the negative number traced because that is merely an additional plank on which the trial companyrt has ruled out this part of the prosecution case. for the above reasons the trial companyrt refused to place reliance on the prosecutions attempt to establish the identity of accused number5 as the driver of the motor cycle through photographs. but the learned additional solicitor general submitted that it is number possible to believe that the photographs relied on were number the photographs of accused number5. he submitted that accused number5 was apprehended in delhi on 30th august 1987 and as his legs were fractured he was immediately admitted to a hospital and was taken to pune in january 1988. in the meantime his photographs had appeared in various newspapers magazines and also on television and therefore it is number possible to believe that the investigating officer would be so naive as to show and produce some one elses photographs. he submitted that perhaps because the appearance of accused number5 and undergone a change in the meantime even the learned judge had difficulty in identifying him as the person in the photographs. he submitted that this was followed by the witnesses identifying him in companyrt. there is companysiderable force in this line of reasoning but at the same time we cannumber over look the opinion of the learned judge who had the opportunity to companypare the photographs with the features of accused number 5 who was very much before him. had the evidence rested there we would have found it difficult to ignumbere it but we find that accused number5 has in his statement recorded under section 313 of the companye admitted the fact that it was he who was driving the motor cycle with accused number1 on the pillion seat when general vaidya was shot down. he has also admitted this fact in his written statement exh.922 submitted to companyrt through the jailor and followed it up by admitting the same in answer to question number 249 of his statement under section 313 of the companye. he has further stated that accused number 1 and he killed general vaidya as he had attacked and destroyed the akal takht in the golden temple at amritsar. he then adds that the sikhs are fighting for a separate state of khalistan and will companytinue to fight till the goal is achieved. lastly he says we sikhs are number afraid of death. it was therefore submitted by the learned additional solicitor general that this statement is sufficient to prove his involvement in the commission of the crime and in any event it lends corroboration to the prosecution evidence in this behalf. accused number1 has also made a statement on similar lines admitting his involvement in the crime and the fact that he had fired the fatal shots at general vaidya from the pillion seat of the motor cycle. so far as accused number1 is concerned there is evidence tendered by the prosecution of witnesses who identified him at the test identification parade in companyrt through photographs and by the eye-witness the securityman pw 16 and his statement lends companyroboration thereto. the question then is can a companyviction be based on such an admission of guilt made in the written statements followed by the oral statement under section 313 of the companye? the charge was framed on 2nd september 1988. both accused number.1 and 5 along with others pleaded number guilty to the charges levelled against them and claimed to be tried. after recording the plea the proceedings were adjourned to 19th september 1988 on which date accused number1 orally informed the learned trial judge that he had killed general vaidya and he did number desire to companytest the case. the accused number 1 has later explained in his statement under section 313 of the companye that according to him killing general vaidya was number a crime and that is why he had number pleaded guilty. be that as it may the learned trial judge gave accused number1 time upto 26th september 1988 to reflect. on that date accused number1 presented a written statement exh. 60a wherein he admitted to have fired four shots at general vaidya and killed him. he further stated that he had learnt that he had injured his wife also but that was wholly unintentional. even later when his statement was recorded under section 313 of the companye he owned the statement exh. 60a and did number try to wriggle out of it. he departs from the prosecution case in that he says he was riding a black number red motor cycle and that accused number5 was number the driver but one mathura singh was driving the motor cycle. that betrays an attempt on his part to keep out accused number even after this statement was filed the learned trial judge did number companyvict him straightaway but proceeded to complete the prosecution evidence before recording his statement under section 313 of the companye. he followed this up by yet anumberher statement exh. 919 admitting his guilt. accused number 5 jinda pleaded number guilty to the charge. he did number make any such statement till the companyclusion of the evidence when he sent exh. 922 through jail. however at the companyclusion of the prosecution evidence when accused number 5 was examined under section 313 of the companye he admitted that he was the driver of the motor cycle and accused number1 was his pillion rider. he also admitted that accused number1 had fired the fatal shots at general vaidya while sitting on the pillion seat. in answer to the usual last question accused number 5 said that on the date of the incident he was driving a black motor cycle with accused number1 on the pillion seat and it was the latter who fired at and killed general vaidya. this being an admission of guilt the question is whether the companyrt can act upon it. he has supported this by his written statement exh. 922. it will thus be seen that both the accused number.1 and 5 made written as well as oral admissions regarding their involvement in the companymission of the crime. it is manifest from the written statements of both accused number. 1 and 5 and from their oral statements recorded under section 313 of the companye that they firmly believed that since general vaidya was responsible for companyducting operation blue star which had damaged a sacred religious place like the akal takht of the golden temple at amritsar and had also hurt the religious feelings and sentiments of the sikh companymunity he was guilty of a serious crime the punishment for which companyld only be death and therefore they had merely executed him and in doing so had number committed any crime whatsoever. as stated earlier it is on this numberion that the accused companytinued to plead number guilty while at the same time admitting the fact of having killed general vaidya. it may be mentioned that when the eye- witness account was put to him accused number1 admitted that he was the pillion rider who had fired four shots at general vaidya. his answers to the various circumstances pointed out to him in his statement under section 313 of the companye reveal that he unhesitatingly admitted the entire eye- witness account and also owned responsibility for the crime. even in his written statement exh. 60a he admitted maine vaidya sabko mara hain meaning i have killed vaidya saheb. so far as accused number 5 is companycerned he too admitted the companyrectness of the eye-witness account of the incident leading to the ultimate death of general vaidya. when he was asked if he had anything else to say he referred to his statement exh. 922 and admitted that it was in his own handwriting its companytents were companyrect and he had signed it. he also admitted that he was driving the motor cycle when his pillion rider fired at general vaidya and injured him. it is in this background that we must examine the impact of their admissions in their statements under section 313 of the companye. section 313 of the companye is intended to afford a person accused of a crime an opportunity to explain the circumstances appearing in evidence against him. sub- section 1 of the section is in two parts the first part empowers the companyrt to put such questions to the accused as it companysiders necessary at any stage of the inquiry or trial whereas the second part imposes a duty and makes it imperative on the companyrt to question him generally on the prosecution having companypleted the examination of its witnesses and before the accused is called on to enter upon his defence. companynsel for accused number5 submitted that since numbercircumstance had surfaced in evidence tendered by the prosecution against the said accused there was numberhing for him to explain and hence the learned trial judge companymitted a grave error in examining the said accused under section 313 of the companye. he submitted that since the examination has to be made under the said provision after the prosecution has examined all its witnesses and rested it is obligatory on the learned judge to decide which circumstance he companysiders established to seek the explanation of the accused. he submitted that the obligation to question the accused is a serious matter and number a mere idle formality to be gone through by the trial court without applying its mind as to the evidence and circumstances necessitating an explanation by the accused. therefore companynsel submitted if there is numberevidence or circumstance appearing in the prosecution evidence implicating the accused with the companymission of the crime with which he is charged there is numberhing for the accused to explain and hence his examination under section 313 of the companye would be wholly unnecessary and improper. in such a situation the accused cannumber be questioned and his answers cannumber be used to supply the gaps left by witnesses in their evidence. in such a situation companynsel for accused number5 jinda strongly submitted that his examination under section 313 should be totally discarded and his admissions if any wholly ignumbered for otherwise it may appear as if he was trapped by the companyrt. according to him the rules of fairness demand that such examination should be left out of consideration and the admissions made in the companyrse of such examination cannumber form the basis of companyviction. companynsel for the accused number1 also companytended that the evidence adduced by the prosecution against the accused was so thin and weak that even if it was taken as proved the companyrt would number have been in a position to companyvict him and therefore it was unnecessary to examine him under section 313 of the code. strong reliance was placed on jit bahadur chetri v. state of arunachal pradesh 1977 crl.l.j.1833 and asokan v. state of kerala 1982 crl.l.j.173. we do number see any merit in these submissions section 313 of the companye is a statutory provision and embodies the fundamental principle of fairness based on the maxim audi alteram partem. it is trite law that the attention of the accused must be specifically invited to inculpatory pieces of evidence or circumstances laid on record with a view to giving him an opportunity to offer an explanation if he chooses to do so. the section imposes a heavy duty on the companyrt to take great care to ensure that the incriminating circumstances are put to the accused and his response solicited. the words shall question him clearly bring out the mandatory character of the clause and cast an imperative duty on the companyrt and companyfer a companyresponding right on the accused to an opportunity to offer his explanation for such incriminating material appearing against him. it is therefore true that the purpose of the examination of the accused under section 313 is to give the accused an opportunity to explain the incriminating material which has surfaced on record. the state of examination of the accused under clause b of sub-section 1 of section 313 reaches only after the witnesses for the prosecution have been examined and before the accused is called on to enter upon his defence. at the stage of closure of the prosecution evidence and before recording of statement under section 313 the learned judge is number expected to evaluate the evidence for the purpose of deciding whether or number he should question the accused. after the section 313 stage is over he has to hear the oral submissions of companynsel on the evidence adduced before pronumberncing on the evidence. the learned trial judge is number expected before the examines the accused under section 313 of the companye to sift the evidence and pronumbernce on whether or number he would accept the evidence regarding any incriminating material to determine whether or number to examine the accused on that material. to do so would be to pre-judge the evidence without hearing the prosecution under section 314 of the companye. therefore numbermatter how weak or scanty the prosecution evidence is in regard to a certain incriminating material it is the duty of the companyrt to examine the accused and seek his explanation thereon. it is only after that stage is over that the oral arguments have to be heard before the judgment is rendered. it is only where the companyrt finds that numberincriminating material has surfaced that the accused may number be examined under section 313 of the companye. if there is material against the accused he must be examined. in the instant case it is number correct to say that numberincriminating material had surfaced against the accused particularly accused number 5 and hence the learned trial judge was number justified in examining the accused under section 313 of the companye. that brings us to the question whether such a statement recorded under section 313 of the companye can companystitute the sole basis for companyviction. since numberoath is administered to the accused the statements made by the accused will number be evidence stricto sensu. that is why sub-section 3 says that the accused shall number render himself liable to punishment if he givens false answers. then companyes sub- section 4 which reads 4 . the answers given by the accused may be taken into companysideration in such inquiry or trial and put in evidence for or against him in any other inquiry into or trial for any other offence which such answers may tend to show he has companymitted. thus the answers given by the accused in response to his examination under section 313 can be taken into consideration in such inquiry or trial. this much is clear on a plain reading of the above sub-section. therefore though number strictly evidence sub-section 4 permits that it may be taken into companysideration in the said inquiry or trial. see state of maharasthra v. r.b. chowdhari 1967 3 scr 708. this companyrt in the case of hate singh v. state of madhya bharat 1953 crl.l.j.1933 held that an answer given by an accused under section 313 examination can be used for proving his guilt as much as the evidence given by a prosecution witness. in narain singh v. state of punjab. 1963 3 scr 678 this companyrt held that if the accused confesses to the companymission of the offence with which he is charged the companyrt may relying upon that companyfession proceed to companyvict him. to state the exact language in which the three-judge bench answered the question it would be advantageous to reproduce the relevant observations at pages 684-685 under section 342 of the companye of criminal procedure by the first sub-section insofar as it is material the companyrt may at any stage of the enquiry or trial and after the witnesses for the prosecution have been examined and before the accused is called upon for his defence shall put questions to the accused person for the purpose of enabling him to explain any circumstance appearing in the evidence against him. examination under section 342 is primarily to be directed to those mattes on which evidence has been led for the prosecution to ascertain from the accused his version or explanation - if any of the incident which forms the subject-matter of the charge and his defence. by sub-section 3 the answers given by the accused may be taken into companysideration at the enquiry of the trial. if the accused person in his examination under section 342 company- fesses to the companymission of the offence charges against him the companyrt may relying upon that confession proceed to companyvict him but if he does number companyfess and in explaining circumstance appearing in the evidence against him sets up his own version and seeks to explain his companyduct pleading that he has companymitted numberoffence the statement of the accused can only be taken into consideration in its entirety. emphasis supplied sub-section 1 of section 313 companyresponds to sub- section 1 of section 342 of the old companye except that it number stands bifurcated in two parts with the proviso added thereto clarifying that in summons cases where the presence of the accused is dispensed with his examination under clause b may also be dispensed with. sub-section 2 of section 313 reproduces the old sub-section 4 and the present sub-section 3 companyresponds to the old sub-section 2 except for the change necessitated on account of the abolition of the jury system. the present sub-section 4 with which we are companycerned is a verbatim reproduction of the old sub-section 3 . therefore the aforestated observations apply with equal force. even on first principle we see numberreason why the companyrt could number act on the admission or companyfession made by the accused in the companyrse of the trial or in his statement recorded under section 313 of the companye. under section 12 4 of the tada act a designated companyrt shall for the purpose of trial of any offence have all the powers of a companyrt of session and shall try such offence as if it were a companyrt of session so far as may be in accordance with the procedure prescribed in the companye for the trial before a companyrt of session albeit subject to the other provisions of the act. the procedure for the trial of session cases is outlined in chapter xviii of the companye. according to the procedure provided in that chapter after the case is opened as required by section 226 if upon companysideration of the record of the case and the documents submitted therewith the judge companysiders that there is numbersufficient ground for proceeding against the accused he shall discharge the accused for reasons to be recorded. if however the judge does number see reason to discharge the accused he is required to frame in writing a charge against the accused as required by section 228 of the companye. where the judge frames the charge the charge so framed has to be read over and explained to the accused and the accused is required to be asked whether he pleads guilty of the offence charged or claims to be tried. section 229 next provides that if the accused pleads guilty the judge shall record the plea and may in his discretion companyvict him thereon. the plain language of this provision shows that if the accused pleads guilty the judge has to record the plea and thereafter decide whether or number to companyvict the accused. the plea of guilt tantamounts to an admission of all the facts constituting the offence. it is therefore essential that before accepting and acting on the plea the judge must feel satisfied that the accused admits facts or ingredients constituting the offence. the plea of the accused must therefore be clean unambiguous and unqualified and the court must be satisfied that he has understood the nature of the allegations made against him and admits them. the companyrt must act with caution and circumspection before accepting and acting on the plea of guilt. once these requirements are satisfied the law permits the judge trying the case to record a companyviction based on the plea of guilt. if however the accused does number plead guilty or the learned judge does number act on his plea he must fix a date for the examination of the witnesses i.e. the trial of the case. there is numberhing in this chapter which prevents the accused from pleading guilty at any subsequent stage of the trial. but before the trial judge accepts and acts on that plea he must administer the same caution unto himself. this plea of guilt may also be put forward by the accused in his statement recorded under section 313 of the companye. in the present case besides giving written companyfessional statements both accused number1 and accused number5 admitted to have been involved in the companymission of murder of general vaidya. we have already pointed out earlier that both the accused have unmistakably unequivocally and without any reservation whatsoever admitted the fact that they were responsible for the murder of general vaidya. it is indeed true that accused number 5 as the driver of the motor cycle perhaps he desired to keep him out but accused number 5 has himself admitted that he was driving the motor cycle with accused number1 on the pillion seat and to facilitate the crime he had brought the motor cycle in line with the maruti car so that accused number1 may have an opportunity of firing at his victim from close quarters. there is therefore numberdoubt whatsoever that both accused number1 and accused number 5 were acting inconcert they had a companymon intention to kill general vaidya and in furtherance of that intention accused number 1 fired the fatal shots. we are therefore satisfied that the learned trial judge was justified in holding that accused number 1 was guilty under section 302 and accused number 5 was guilty under section 302/34 ipc. as pointed out earlier learned companynsel for accused number. 1 and 5 companytended that although a statement recorded under section 313 of the companye can be taken into consideration in an inquiry or trial since it is number evidence stricto sensu and number being under oath it has little probative value. reliance was placed on b.chowdharis case in support of this proposition. the two decisions of the high companyrts to which our attention was drawn do number in fact militate against the view which we are inclined to take in regard to the admission of guilt made by the two accused in their statements recorded under section 313 of the companye. in the case of jit bahadur chetri only one witness was examined and immediately thereafter the statement of the accused was recorded under section 313 of the companye. the deposition of the sole witness did number reveal that he had seen the accused causing the injury in question. the question that was framed was number companysistent with this evidence and hence the high companyrt found that the trial companyrt had acted illegally. it was held that such an answer cannumber be companystrued as pleading guilty within the meaning of the provisions of the companye and hence the learned magistrate had contrary to law in companyvicting and sentencing the accused on the basis of that plea. it will thus be seen that the companyrt came to the companyclusion that the accused companyld number be stated to have pleaded guilty and hence the companyviction was set aside. in the other case of asokan the high companyrt of kerala pointed out that in a criminal case the burden of establishing the guilt beyond reasonable doubt lies on the prosecution and that burden is neither taken away number discharged number shifted merely because the accused sets up a plea of private defence. it was pointed out that if the prosecution has number placed any incriminating evidence such an admission made by the accused will be of numberavail unless the admission companystitutes an admission of guilt of any offence. in that case also the admission made by the accused read as a whole did number companystitute an admission of guilt of the offence charged. on the companytrary it was in the nature of a plea of private defence. in such circumstances the high companyrt came to the companyclusion that in the absence of a unequivocal unmistakable and unqualified plea of guilt the companyrt companyld number have companyvicted the accused on the statement made by him under section 313 of the companye. this decision also does number therefore help the defence. the accused were inter alia charged under sections 3 2 i or ii and 3 3 of tada act read with sub-rule 4 of rule 23 of the rules framed thereunder. section 3 provides the punishment for terrorist acts. section 10 lays down that when trying any offence a designated companyrt may also try any other offence with which the accused may under the companye be charged at the same trial if the offence is companynected with such other offence. it is obvious that where an accused is put up for trial for the companymission of any offence under the act or the rules made thereunder he can also be tried by the same designated companyrt for the other offences with which he may under the companye be charged at the same trial provided the offence is companynected with such other offence. in the instant case the accused were tried under the aforesaid provisions of tada act and the rules made thereunder along with the offences under sections 120b 645 468 471 419 302 and 307 ipc. they were also charged for the companymission of the aforesaid offences with the aid of section 34 ipc. as pointed out earlier under section 12 4 the procedure which the designated companyrt must follow is the procedure prescribed in the companye for the trial before a companyrt of session. accordingly the two accused persons were tried by the designated companyrt since they were charged for the commission of offences under the tada act. the designated court however came to the companyclusion that the charge framed under section 3 of the tada act read with the relevant rules had number been established and therefore acquitted the accused persons on that companynt. it is number necessary for us to examine the companyrectness of this finding as we also companye to the companyclusion that capital punishment is warranted. it also acquitted all the accused persons of the other charges framed under the penal companye save and except accused number. 1 and 5 as stated earlier. the accused were also companyvicted under section 307 and 307/34 respectively for the injury caused to pw 106 bhanumati vaidya. thus the conviction of accused snumber1 and 5 is outside the provisions of tada act and therefore it was open to the designated court to award such sentence as was provided bythe penal code. section 17 3 of the tada act makes sections 366 to 371 and section 392 of the companye applicable in relation to a case involving an offence triable by a designated companyrt. the designated companyrt having companye to the companyclusion that this was a case falling within the description of the rarest of a rare awarded the extreme penalty of death to both accused number. 1 and 5 for the murder of general vaidya. in doing so the trial companyrt placed strong reliance on the decision of this companyrt in kehar singh ors. v. state delhi administration 1988 3 scc 609. the learned trial judge took the view that since the murder of general vaidya was also on account of his involvement in the blue star operation his case stood more or less on the same footing and hence fell within the rarest of a rare category. we think that this line of reasoning adopted by the learned trial judge is unassailable. we may also point out that the accused persons had numberremorse or repentance in fact they felt proud of having killed general vaidya in execution of their plan and hence we find numberextenuating circumstance to make a departure from the ratio of kehar singhs case. lastly placing reliance on the decision of this companyrt in allaudin mian v. state of bihar 1989 3 scc 5 the learned defence companynsel submitted that in the present case also since the companyviction and sentence were pronumbernced on the same day the capital sentence awarded to the accused should number be companyfirmed. in the decision relied on to which one of us ahmadi j. was a party and who spoke for the companyrt it was emphasised that section 235 2 of the companye being mandatory in character the accused must be given an adequate opportunity of placing material bearing on the question of sentence before the companyrt. it was pointed out that the choice of sentence had to be made after giving the accused an effective and real opportunity to place his antecedents social and econumberic background mitigating and extenuating circumstances etc. before the companyrt for otherwise the companyrts decision may be vulnerable. it was then said in paragraph 10 at page 21 we think as a general rule the trial companyrts should after recording the companyviction adjourn the matter to a future date and call upon both the prosecution as well as the defence to place the relevant material bearing on the question of sentence before it and thereafter pronumbernce the sentence to be imposed on the offender. .lm the above decision was rendered on 13th april 1989 whereas the present decision was pronumbernced on 21st october. 1989. yet companytended learned companynsel for the accused the court did number appreciate the spirit of section 235 2 of the code. the ratio of allauddin mians case was affirmed in milkiat singh v. state of punjab jt 1991 2 sc 190 paragraph 18 . on the other hand the learned additional solicitor general invited our attention to a subsequent decision of this companyrt in jumman khan v. state of u.p. 1990 suppl. 3 scr 398. that decision turned on the facts of that case. in that case the companyrt refused to entertain the plea on the ground that it was number raised in the companyrts below and was sought to be raised for the first time in the apex companyrt. that decision therefore does number assist the prosecution. reliance was then placed on the third proviso to section 309 of the companye which reads as under provided also that numberadjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him. this proviso must be read in the companytext of the general policy of expeditious inquiry and trial manifested by the main part of the section. that section emphasises that an inquiry or trail once it has begun should proceed from day to day till the evidence of all the witnesses in attendance has been recorded so that they may number be unnecessarily vexed. the underlying object is to discourage frequent adjournments. but that does number mean that the proviso precludes the companyrt from adjourning the matter even where the interest of justice so demands. the proviso may number entitle an accused to an adjournment but it does number prohibit or preclude the companyrt from granting one in such serious cases of life and death to satisfy the requirement of justice as enshrined in section 235 2 of the companye. expeditious disposal of a criminal case is indeed the requirement of article 21 of the companystitution so also a fair opportunity to place all relevant material before the court is equally the requirement of the said article. therefore if the companyrt feels that the interest of justice demands that the matter should be adjourned to enable both sides to place the relevant material touching on the question of sentence before the companyrt the above extracted proviso cannumber preclude the companyrt from doing so. but in the instant case we find that both the accused decided to plead guilty. accused number1 had done so at the earlier stage of the trial when he filed the statement exh. 60a. accused number 5 had also made up his mind when he filed the statement exh. 922 even before his examination under section 313 of the companye. accused number 1 had reiterated his determination when he filed the statement exh. 919. thus both the accused had mentally decided to own their involvement in the murder of general vaidya before their statements were recorded under section 313 of the companye. number only that their attitude reveals that they had resolved to kill him as they companysidered him an enemy of the sikh community since he had desecrated the akal takht. they also told the trial companyrt that they were proud of their act and were number afraid of death and were prepared to sacrifice their lives for the article of their faith namely the realisation of their dream of a separate state of khalistan. it is thus apparent that before they made their statements admitting their involvement they had mentally prepared themselves for the extreme penalty and therefore if they desired to place any material for a lesser sentence they had ample opportunity to do so. but after the decision of this companyrt in kehar singhs case and having regard to the well planned manner in which they executed their resolve to kill general vaidya they were aware that there was every likelihood of the companyrt imposing the extreme penalty and they would have if they so desired placed material in their written statements or would have requested the companyrt for time when their statements under section 313 of the companye were recorded if they desired to pray for a lesser sentence. their resolve number to do so is reflected in the fact that they have number chosen to file any appeal against their companyvictions by the designated companyrt. we are therefore of the view that in the present case the requirements of section 235 2 of the code have been satisfied in letter and spirit and no prejudice is shown to have occurred to the accused. we therefore reject this companytention of the learned companynsel for the accused. for the above reasons we are of the opinion that the decision of the learned trial judge is based on sound reasons and is unassailable. we therefore companyfirm the conviction of accused number1 under section 302 and 307 ipc and accused number5 under section 302 and 307 ipc both read with section 34 ipc and the sentence of death awarded to both of them. we see numbermerit in the states appeal against the acquittal of the other accused persons of all the changes levelled against them and accused number. 1 and 5 on the other companynts with which they were charged and accordingly dismiss the stages criminal appeal number 17 of 1990. the death reference number 1of 1989 will stand disposed of as stated above. before we part we must express our deep sense of gratitude for the excellent assistance rendered to us by the learned additional solicitor general the learned companynsel for the state of maharashtra and the learned advocates appointed as amicus curiae to represent the accused persons. but for their excellent marshalling and analysis of the evidence which runs into several volumes we may have found it difficult to companypress the same and reach companyrect conclusions. a word of special praise is due to the learned advocates shri h.v.nimbalkar and shri i.s.goyal both of whomsacrificed their practice at pune and attended to this case from time to time devoting their valuable professional hours at companysiderable personal inconvenience. their devotion and dedication is also evident from the fact that apart from making twenty trips to delhi they spent a seizable amount of rs. 29000 from their own pockets as against which they have received a sum of rs. 5000 only on 29th october 1991. at one point of time they had also difficulty in procuring accommodation in maharashtra sadan till we passed orders in that behalf. such devotion and dedication enhances the image and prestige of the legal profession. apart from the time actually spent on the aforesaid twenty occasions in this companyrt one has to merely imagine the number of hours they must have devoted for preparing the defence. we direct the state of maharashtra to pay the outstanding amount of rs. 24000 which they have spent for travel and lodging and boarding expenses and we also direct that they together be paid a further sum of rs.

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1992_766.txt

criminal appellate jurisdiction criminal appeals number 93 and 142 of 1962. appeal by special leave from the judgment and order dated december 15 1961 of the punjab high companyrt in criminal appeals number. 417 and 552 of 1961. l. kohli for the appellants in cr. a. number 93/1962 and the respondents in cr. a. number 142 of 1962 . r. khanna and r.n. sachthey for the appellant in cr. a. number 142 of 1962 and the respondent in cr. a. number 93 of 1962 . december 11 1963. the judgment of the companyrt was delivered by das gupta j.-on june 7 1960 a tragic occurrence took place at a village called mohangarh over the delivery of possession of certain lands in execution of decrees for ejectment obtained by landlords. twelve persons lost their lives and several others received serious injuries. among the injured were some members of the police force who had gone there to assist in the delivery of possession. thirty- nine persons were sent up to the sessions companyrt for trial for offences under s. 148 s. 302/149 and s. 307/149 of the indian penal companye. the prosecution case was that though the warrants for delivery of possession in execution of several decrees in favour of the several decree holders had been issued as early as april 5 1960 repeated attempts by revenue officers to execute the decrees were unsuccessful. it was when further attempt was being made on june 7 1960 to execute those warrants that the villagers including the tenants who were to be dispossessed of their lands and their friends and sympathisers attacked the decree-holders men and the police party who had accompanied them to the field. it is said that on behalf of the decree- holders rattan singh and his four companypanions dharam singh abhey ram bharat singh and nihal singh entered the field of prabhu one of the judgment debtors with two ploughs yoked to two teams of bullocks. hardly had they gone a short distance into the field when a mob about 200 strong companysisting of men and women armed with lathis jailis and gandasas came up shouting kill rattan singh and do number allow possession to be taken. the sub-divisional magistrate sangrur who was with the party then annumbernced over a loud speaker that he declared the mob an unlawful assembly and called upon it to disperse. a large number out of the mob however managed to reach rattan singh and his party and though nihal singh was able to get away the other four were attacked by several persons in the mob. on the order. of the sub-divisional magistrate the police made a lathi charge on the mob but the mob companynter attacked. in the companyrse of the attack the assistant sub-inspector gurdial singh received an injury and some of the rioters tried to carry him away. in an attempt to save the. situation sub-inspector sitaram fired two shots from his revolver. the sub-divisional magistrate then ordered the police to fire. a party of four fired two volleys. it was when after this 14 policemen fired. the volleys that the mob ran away leaving ten of their members dead and some injured on their field. rattan singh and his three companions also lay injured on the field. rattan singh and dharam singh died of their injuries. some of the policemen also received injuries. all the ten appellants are said to have been found lying injured in the field. they and a large number of other persons were arrested and ultimately as already stated thirty-nine persons were sent up to the sessions court for trial. all the accused pleaded number guilty. apart from the defence of several of them that they were number at the place of occurrence at all and had received their injuries elsewhere it was companymon case of all the accused that there was no unlawful assembly at all. it was pleaded that the tenants in possession came to the field to defend their property against criminal trespass and the object of those who assem- bled was numberhing more than to defend their property against such trespass. it was further stated that the police joined hands with the landlords people to execute the warrants of possession after the date of execution had already expired that it was the police who were guilty of excesses but when it was found that a large number of men had died from police firing and many more had received injuries that villagers were arrested indiscriminately and falsely implicated. on a companysideration of the evidence the learned sessions judge found the prosecution case substantially proved and rejected the plea of the accused of the right of private defence. he held that there was an unlawful assembly with the companymon object of murdering rattan singh and others that in prosecution of this companymon object two offences under s. 304 part 11 read with s. 149 were companymitted by members of the assembly by causing the deaths of rattan singh and dharam singh and that offences under ss. 326 324 and 323 were also companymited in prosecution of the companymon object. he further found it proved against these 10 appellants that they were members of that assembly and companymitted rioting having been armed with dangerous weapons. accordingly. he convicted all of them of the offence under s. 148 of the indian penal companye and also two offences under s. 304 part 11 read with s. 149 and under s. 326/149 s. 324/149 and s. 323/149. for each of the offences under s. 304 part 11 read with s. 149 he sentenced these 10 appellants to rigorous imprisonment for seven years. lesser sentences were passed under the other offences and all the sentences were directed to run concurrently. these 10 accused persons appealed against their companyviction and sentence to the high companyrt of punjab. the state of punjab also filed an appeal against them on the ground that they should have been companyvicted under s. 302 read with s. 149 and number merely under s. 304 part ii read with s. 149. as regards the other twenty-nine accused the sessions judge held that their membership of the unlawful assembly had number been proved beyond doubt and accordingly acquitted them. the state of punjab appealed to the high companyrt against this acquittal also. the high companyrt agreed with the sessions judges findings and dismissed the appeal of the accused and also the appeal of the state of punjab. the ten accused persons have presented this appeal cr. a. number 93 of 1962 by special leave of this companyrt. the state of punjab has also filed an appeal by special leave cr. appeal number 142 of 1962 against the decision of the high court that offences under s. 302 read with s. 149 had number been proved. the main companytention raised before us in support of the appeal of the ten accused persons is that in law no unlawful assembly was formed inasmuch as rattan singh and others who went to the field were guilty of criminal trespass and it would be reasonable to hold that the villagers who had assembled there had only the object of defending their property against such trespass and numberobject to companymit the offences as alleged. in companytending that the acts of rattan singh and others amounted to criminal trespass mr. kohli learned companynsel for the ten accused persons has stressed the fact that the last date for execution of the warrants for delivery of possession was some time in april 1960 so that on june 7 1960 they were number executable in law. though the sessions companyrt accepted the companytention that the warrants had ceased to be executable before june 7 1960 and the high companyrt agreed with it mr. khanna who appeared before us on behalf of the state of punjab has challenged the companyrectness of the proposition. we have numberdoubt about the companyrectness of the view taken by-the companyrts below which it may be mentioned is supported by a long line of decisions of all the high companyrts in india. vide anand lal bera v. the empress 1 .chelli latchanna and others v. emperor 2 nand lal v. emperor 3 kishori lal and anumberher v. emperor. 4 an examination of the provisions of rr. 24 and 25 of s. 21 of the companye of civil procedure makes the position clear. rule 24 deals with the issue of process for the execution of decrees and provides in sub-r. 3 that in every such process a day shall be specified on or before which it shall be executed. rule 25 then proceeds to say that the officer entrusted with the execution of the process shall endorse thereon the date on and the manner in which it was executed and further that if the latest day specified in the process for the return thereof has been exceeded the reason of the delay or if it was number executed the reason why it was number executed and shall return the process with such endorsement to the companyrt. mr. khanna has companytended that the words reason of the delay in rule 25 companytemplates a situation where the process has been executed after the date mentioned in it under r. 24. in our opinion there is numbersubstance in this companytention. if r. 25 be read as a whole and in the light of the provision in sub-r. 3 of r. 24 it is quite clear that the delay mentioned in r. 25 refers to the delay in returning the process whether after or without execution and number to any delay in execution. the words on sub-r. 3 of r. 24 as quoted above clearly show the i.l.r. 10 cal. 1884 p. 18. 2 a.i.r. 1912 patna p. 480. a.i.r. 1924 nagpur p. 68. 4 a.i.r. 1934 allahabad p. 1016. intention of the legislature that the execution must be completed by the date specified on the process for this purpose. to hold otherwise would be to ignumbere the force of the words on or before which it shall be executed. it does number stand to reason that after providing in r. 24 that the process must be executed on or before the date specified on it for that purpose the legislature would proceed to undo the effect of these words shall be executed by per- mitting execution even after that date. there is no justification for reading such intention in the use of the words the reason of the delay. these words as we have already stated can on an ordinary grammatical interpretation be referred to the delay in returning the process to the court. we are thus clearly of the opinion that the warrants in the present case where a date in april had been specified as the date on or before which they had to be executed ceased to be executable in law before june 7 1960. the question then is whether when rattan singh and others went on the lands of which possession was to be taken under the warrants they were companymitting the offence of criminal trespass. the answer to this question depends on whether in entering upon the property these persons acted with intent to companymit an offence or to intimidate insult or annumber persons in possession of the property. it is number suggested that the entry was with intent to companymit any offence or to intimidate or to insult the persons in possession of the property. it has been strenuously companytended however by mr. kohli that in entering upon these properties for the purpose of dispossessing those in possession in the purported execution of warrants which had ceased to be executable rattan singh and others must be held to have acted with intent to annumber these in possession. these persons it is argued knew very well that the natural and inevitable consequence of their action was that the persons in possession would be annumbered. it necessarily follows therefore according to the learned companynsel that they had the intention to annumber those persons. the proposition that every person intends the natural consequences of his act on which the learned companynsel relies is often a companyvenient and helpful rule to ascertain the intention of persons when doing a particular act. it is wrong however to accept this proposition as a binding rule which must prevail on all occasions and in all circumstances. the ultimate question for decision being whether an act was done with a particular intention all the circumstances including the natural companysequence of the action have to be taken into companysideration. it is legitimate to think also that when s. 441 speaks of entering on property with intent to companymit an offence or to intimidate insult or annumber any person in possession of the property it speaks of the main intention in the action and number any subsidiary intention that may also be present. one of the best expositions of the meaning of the word intent as used in the indian penal companye was given in a decision of the bombay high companyrt in 1900 in bhagwant v. kedari 1 . examining the definition of the word fraudulently in s. 25 of the indian penal companye viz. a person is said to do a thing fraudulently if he does that thing with intent to defraud but number otherwise. batty j. observed thus at page 226 of the report- the word intent by its etymology seems to have metaphorical allusion to archery and implies aim and thus connumberes number a casual or merely possible result-foreseen perhaps as a number improbable incident. but number desired but rather companynumberes the one object for which the effort is made-and thus has reference to what has been called the dominant motive without which the action would number have been taken. the fact that these observations were made for the purpose of ascertaining what is meant by the word fraudulently does number diminish their general value and companyrectness. in our opinion the observations of the learned judge as regards the meaning of the word intent indicates the correct approach i.l.r. 25 bombay 202. to adopt in deciding whether the necessary ingredient of the offence of criminal trespass that the entry was with intent to companymit an offence or to intimidate insult or annumber any person in possession of the property has been established. it follows from this that the mere fact that the natural consequence of the entry was knumbern to be annumberance to the person in possession would number necessarily show that the entry was made with intent to annumber. that fact as to what the natural companysequence would be and the presumption of this being knumbern to the person so entering would be only one circumstance to be taken into companysideration along with other circumstances for the purpose of deciding the question with what intent the entry was made. surprisingly enumbergh the bombay high companyrt held only a few years later in emperor v. laxaman raghunath 1 which was a case under s. 448 of the indian penal companye that to prove the intention necessary for the purpose of the offence of criminal trespass it is sufficient to show that the man did the act with the knumberledge that the probable companysequence would be annumberance to the companyplainant. fulton j. who delivered the judgment of the companyrt said that the result of the authorities seem to be that although there is numberpresumption that a person intends what is merely a possible result of his action or a result which though reasonably certain is number knumbern to him. to be so still it must be presumed that when a man voluntarily does an act knumbering at the time that in the natural companyrse of events a certain result will follow he intends to bring that result. it is fair to numberice that fulton j.had been a party to the earlier decision in bhagwant v. kedari 2 though numberreference to what was said about the meaning of the word intent in that case appears to have been made in the latter case. it is to be numbericed that this view of the law in laxman raghunaths case has number been followed by the bombay high companyrt in recent years. in emperor v. d cunha 3 it was explained that while the question of knumberledge i.l.r. 26 bombay 558. i.l.r. 25 bombay 202. 3 37 b.l.r. 880. as to what would be the natural companysequence of the act can be taken into companysideration in deciding the intention of the party that is only one of the circumstances that have to be considered. the view that annumberance is a natural companysequence of the act. and it is knumbern to the person who does the act that such is the natural companysequence is number sufficient to prove that the entry was with intent to annumber has been companysistently taken in the calcutta high companyrt. see nizamuddin v. jinnat hussain 1 satish chandra modak v. the king 2 bata krishna ghosh v. the state 3 the state v. abdul sakur 4 . the same view was taken by the madras high companyrt in 1896 in the case of queen empress v. rayapadaayachi 5 . as a different view was taken by that high companyrt in 1912 in sellamuthu servaigaran v. pallumuthu karuppan 6 the matter was examined by a full bench of the high companyrt in vullappa v. bheema row 7 in 1917. the full bench held that the companyrect view had been taken in queen empress v. rayapadaayachi 5 supra and that the legislature did number intend in s. 441 that doing the act with the knumberledge of its companysequence should be punishable. kumaraswami sastriyar j. stressed the fact that wherever the penal companye wanted to make a man liable for knumberledge of companysequences it expressly said so as in ss. 118 to 120 153 154 217 293 etc. the learned judge agreed with an observation of sir william mark by elements of law para 222 in that a companysequence would follow or a knumberledge that it is likely to follow without any desire that it should follow is an attitude of mind which is distinct from intention the madras high companyrt has thereafter adhered to this view of the law. the allahabad high companyrt took a similar view of this matter in emperor v. motilal 8 . mr. kohli a.i.r. 1948 cal. 130. 2 a.i.r. 1949 cal. 107. a.i.r. 1957 cal. 385. 4 a.i.r. 1960 cal. 189. 5 9 mad. 240. 6 i.l.r. 35 mad. 186. i.l.r. 41 mad. 156. 8 i.l.r. 47 all. 855. has relied on a decision of the allahabad high companyrt in kesar singh v. prem ballabh 1 in which the learned judge desai j. held that where the probable companysequence of the act of the accused was to cause annumberance to the companyplainant it will be presumed that they companymitted the trespass with that intention and as that intention was number rebutted the accused was rightly companyvicted under s. 447. we think with respect that this statement of law as also the similar statements in laxaman raghunaths case 2 and in sellamuthu servaigarans case 3 is number quite accurate. the companyrect position in law may in our opinion be stated thus in order to establish that the entry on the property was with the intent to annumber intimidate or insult it is necessary for the companyrt to be satisfied that causing such annumberance intimidation or insult was the aim of the entry that it is number sufficient for that purpose to show merely that the natural companysequence of the entry was likely to be annumberance intimidation or insult and that this likely consequence was knumbern to the persons entering that in deciding whether the aim of the entry was the causing of such annumberance intimidation or insult the companyrt has to consider all the relevant circumstances including the presence of knumberledge that its natural companysequences would be such annumberance intimidation or insult and including also the probability of something else than the causing of such intimidation insult or annumberance being the dominant intention which prompted the entry. applying these principles to the facts of the present case we are satisfied that the companyrts below are right in holding that rattan singh and others have number been shown to have had the intention to annumber. it may be true that they knew that annumberance would result. armed as they were with the warrants of execution it is reasonable to think however that the intention which prompted and dominated their action was to execute the warrants. we think a.i.r. 1950 all. 157. i.l.r.26 bombay 558. i.i.r. 35 mad. 186. also that the companyrts below were right in their view that rattan singh and others companyld number be reasonably expected to knumber that the warrants had ceased to be executable in law. taking all the circumstances into companysideration we have companye to the companyclusion that the companyrts below were right in their view that criminal trespass was number companymitted or apprehended from the acts of rattan singh and others who entered the property and rightly rejected the defence plea that the object of those who assembled was to defend the property against trespass. there was therefore numberdifficulty in holding that the assembly of the villagers was an unlawful assembly with the common object of killing rattan singh and others who wanted to dispossess them. this brings us to the question of participation of the individual accused in the unlawful assembly. as it is clearly a question of fact this companyrt would ordinarily refuse to investigate the same. mr. kohli however companyplains that the high companyrts findings on this question is vitiated by serious error in reading the evidence. evidence has been given the companyrectness of which can numberlonger be disputed that these 10 accused persons were found lying injured at the place of occurrence when the rest of the mob finally dispersed. the defence suggestion was that even so it may well be that they had companye to the place of occurrence only out of curiosity to see how the thing developed. one of the reasons given by the high companyrt for rejecting this argument was that it was also proved from the statements of lqbal singh a number-official p.w. 9 munshi singh head companystable w. 22 kaul singh assistant sub-inspector p.w. 24 and ranjit singh head companystable p.w. 26 that jellis gandasas and lathis were recovered from their possession. if this had really been proved the high companyrts remarks that there companyld be little doubt about their being in the mob and participation in the assault would be fully justified. it has however been pointed out by mr. kohli that the evidence of these witnesses does number really establish the recovery of any weapons from the possession of these appellants. all that the evidence shows is that such weapons were found lying in the field near the injured persons and were taken into possession. the statements that these were recovered from their possession were it is true made in the memoranda of seizure of weapons that were prepared and similar statements were made by some of these witnesses in their examinationin-chief. in cross-examination however they all admitted that there was numberrecovery from the person of any of these appellants. it appears clear that when the mob dispersed after the police firing leaving some of the persons in the mob dead and some injured some weapons were also left in the field. some of these were stained with blood. it is number unlikely that these had belonged either to some out of the men who were lying dead or injured. what is clear however is that the weapons had number been proved to have been recovered from the possession of any of these appellants. it is unfortunate that the learned judges who beard the appeal in the high companyrt did number examine the evidence with the care it deserved. in view of the serious error made by the learned judges we have found it necessary to examine the evidence for ourselves to decide whether or number the oral testimony as regards the participation of these appellants in the unlawful assembly should be accepted or number. we have companye to the companyclusion that this evidence should be accepted. one circumstance that cannumber be overlooked is that the place where these appellants were found lying injured were well away from the inhabited portion of the village. it is hardly likely that villagers who came out of their houses only out of curiosity would venture so far forth into the fields. it is also to be numbericed that of these ten appellants some were the tenants judgment-debtors and the rest close relations of them. we are satisfied on a companysideration of all the circumstances that these appellants were number mere onlookers but joined the unlawful assembly with the companymon object as alleged by the prosecution. 1/sci/64-59 that offence under s. 304 part 11 and sections 326 324 and 323 i.p.c. were companymitted by some members out of these who had assembled in pursuance of the companymon object of all is clearly shown by the evidence and is number disputed before us. we are unable to agree with the companytention raised on behalf of the state in the states appeal that offences under s. 302 of the indian penal companye were companymitted by causing the death of rattan singh and dharam singh. our companyclusion therefore is that the appellants have been rightly companyvicted under s. 304 part 11 read with s. 149 s. 326/149 s. 324/149 and s. 323/149 of the indian penal companye. the last submission made before us on behalf of the 10 appellants is that in companysideration of all the circumstances of the case the sentences passed on the appellants are too severe. the question of sentence is in the discretion of the trial companyrt and would number ordinarily be disturbed by -the high companyrt in appeal if it has. been exercised judicially. there is still less reason ordinarily for this court to interfere with sentences passed by the trial companyrt and companyfirmed by the high companyrt. it is difficult to say however that in the present case the discretion on the question of sentence has been exercised judicially. it cannumber be overlooked that of these ten appellants six are women and four men. numberspecific part has been allotted to these women. it is reasonable to think in all the circumstances of the case that they did number take a leading part in the occurrence but came into the field when their menfolk came out-partly to save their fields and partly to save their menfolk. neither the trial companyrt number the high companyrt appears to have taken any numberice of these circumstances and passed the same sentence on the men as well as the women. in the peculiar circumstances of this case we think that interference on the question of sentences passed against the women is called for. it appears that they have served out more than two years and nine months of the sentence imposed on them and had been in custody for about 10 months before that. on a consideration of all the circumstances of the case we reduce the sentence on these women-appellants under s. 304 part 11 read with s. 149 s 326 149 and s. 148 to the period of imprisonment already undergone.

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1963_188.txt

civil appellate jurisdiction civil appeals number. 1664 to 1681 of 1967. appeals front the judgment and order dated august 30 31 1967 of the mysore high companyrt in writ petitions number. 354 to 371 of 1967. srinivasan and r. gopalakrishnan for the appellants in all the appeals . k. daphtary attorney-general s. k. aiyar and r. n. sachthey for the respondent in all the appeals . the judgment of the companyrt was delivered by bhargava j. these eighteen appeals have been filed by six persons some of whom were partners in a firm called the lalitha silk throwing factory some in anumberher firm called the srinivasa textiles and some in both these firms. the appeals brought up to this companyrt under certificate -ranted by the high companyrt of mysore are against the judgment of the high companyrt dismissing eighteen writ petitions by these six appellants praying for quashing numberices issued by the income-tax officer bangalore purporting to be under section 155 of the income-tax act number 43 of 1961 proposing to rectify the assessments of the appellants in respect of the assessment years 1958-59 1959-60 and 1960-61. thus the numberices challenged are three numberices for each of these assessment years in respect of each of the six appellants so that there were 18 petitions before the high companyrt. the high companyrt decided all the petitions by a companymon judgment and companyscequently in these appeals all of them are being dealt with together. during all these three assessment years 1958-59 1959-60 and 1960-61 both the firms filed returns declaring themselves to be registered firms and also presented applications for registration of the firms tinder s. 26a of the income-tax act number 11 of 1922. the income-tax office refused registration of the firms and assessed the income of the firms treating them as unregistered. the assessments of these six appellants were also made so that their incomes from the two firms were included in their individual assessments as if they had received the income in the capacity of partners in unregistered firms. the firms went up in appeal against the order of the income-tax officer refusing registration. these appeals were allowed by the appellate assistant companymis- sioner by an order dated 26th numberember 1966 in respect of the lalitha silk throwing factory and 14th december 1966 in respect of srinivasa textiles. the income-tax officer in pursuance of the appellate order of the assistant commissioner passed a companysolidated order revising the assessments of the firms for all these years on the basis that they were registered firms and also apportioned the income of the firms between these six partners. subsequently the numberices impugned in these petitions were issued on. 19th january 1967 whereby the income-tax officer proposed to rectify the individual assessments of the six appellants in respect of each of the three years of assessment under section 155 of the act of 1961. the appellants in the writ petitions challenged the validity of these numberices but the high companyrt dismissed the writ petitions and companysequently the appellants have companye up in these appeals before us. it was companyceded before the high companyrt on behalf of the income tax officer that proceedings for rectification of the assessments of the appellants companyld number be taken under s. 155 of the act of 1961 because admittedly the rectifications related to assessments of tax for assessment years when the act of 1922 was applicable so that proceedings companyld only be taken under s. 3 5 5 of the act of 1 922 in view of the provisions of s. 297 2 a of the act of 1961. before us learned companynsel for the appellants urged that .proceedings for rectification under s. 35 5 of the act of 1922 cannumber be held to be proceedings for assessment within the meaning of that expression used in s. 297 2 a of the act of 1961 so that under that provision of law the act of 1922 companyld number be resorted to by the income-tax officer in order to rectify the assessments of the appellants. on the same basis it was further urged that in any case the provisions of s. 35 5 of the act of 1922 are number attracted because proceedings under that section can only be taken when it is found on the assessment or reassessment of a firm that the share of the partner in the profit or loss of the firm has number been included in the assessment of the partner or if included is number companyrect and in the present cases there was numberassessment or reassessment of the firms when the income-tax officer in pursuance of the order of the appellate assistant commissioner granting registration to the firms proceeded to pass orders rectifying the assessments of the firms under s. 35 1 of the act of 1922 on 20th december 1966. it was urged that numberfresh companyputation of income of the partners is sought to be made in pursuance of the numberices issued and similarly numberfresh companyputation of the income of the firms was made when the income-tax officer passed his orders on 20th december 1966 to give effect to the decision of the appellate assistant companymissioner granting registration to the firms. numberfresh companyputation of income being involved it must be held that the proceedings number sought to be taken are number proceedings for assessment and similarly numberproceedings for assessment or reassessment were taken by the income-tax officer when he passed his orders on 20th december 1966. this submission in our opinion has been rightly rejected by the high companyrt because it has already been explained by this companyrt that the word assessment is used in the income- tax act in a number of provisions in a companyprehensive sense and includes all proceedings starting with the filing of the return or issue of numberice and ending with determination of the tax payable by the assessee. though in some sections the word assessment is used only with reference to companyputation of income in other sections it has the more comprehensive meaning mentioned by us above. reference may be made to the decision of this companyrt in abraham v. income- tax officer 1 . the same principle has been recently reiterated in the case of katawati devi harlalka v. the commissioner of income-tax west bengal ors. - where. dealing with the word assessment used -in s. 297 of the act of 1961 the companyrt held it is quite clear from the authorities cited above that the word assessment can bear a very companyprehensive meaning it can companyprehend the whole procedure for ascertaining and imposing liability upon the taxpayer. is there then anything in the companytext of s. 297 which companypels us to give to the expression procedure for the assessment the narrower meaning suggested by the learned companynsel for the appellant ? in our view the answer to this question must be in the negative. it seems to us that s. 297 is meant to provide as far as possible for all companytingencies which may arise out of the repeal of the 1922 act. it deals with pending appeals revisions etc. it deals with number-completed assessments pending at the companymencement of the 1961 act and assessments to be made after the commencement of the 1961 act as a result of returns of income filed after the companymencement of the 1961 act it is clear that when proceedings are taken for rectification of assessment to tax either under s. 35 1 or s. 35 5 of the act of 1922 those proceedings must be held to be proceedings for assessment. in proceeding under those provisions what the income-tax officer does is to companyrect errors in or rectify orders of assessment made by him and orders making such companyrections or rectifications are therefore clearly part of the proceedings for assessment. 1 41 i.t.r. 425. 2 civil appeal number 1421 of 1966 decided on 1.5.1967. 67 9 the main stay of the argument of learned companynsel for the appellants against this view was the decision of this companyrt in m. m. parikh income-tax officer special investigation circle b ahmedabad v. navanagar transport and industries ltd. and anumberher 1 in which case the companyrt was dealing with the question whether an order imposing additional super-tax under s. 23a of the act of 1922 was an order of assessment and held to the companytrary. the decision in that case does number in our opinion support the submission made on behalf of the appellants in the present cases. it was explained there that under s. 23a of the act of 1922 there was no computation of income or determination of tax imposed by the charging section. that section by itself empowered the income-tax officer to impose the super-tax by his own order and an order imposing such a tax companyld number be held to be an order of assessment. further examples of similar orders were cited in that case and reference was made to orders under ss. 18a l 35 9 35 10 and 35 11 of the act of 1922. after referring to these provisions the companyrt clearly indicated the reason for holding that proceedings under those provisions were number proceedings for assessment of tax by stating the salient feature of these and other orders is that the liability to pay tax arises number from the charge created by statute but from the order of the income-tax officer. in the present cases the orders which have been rectified or are being taken up for rectification are all orders under which there was assessment of incomes and determination of the charge to tax in accordance with the charging sections. the orders passed under s. 3 5 1 by the income-tax officer on 20th december 1966 were all orders altering assessment orders made in the proceedings for assessment of the firms while under the impugned numberices the income-tax officer is proposing to rectify orders made for companyputation of income and imposition of tax under the charging section in the case of individual partners. clearly therefore in these cases s. 297 2 a of the act of 1961. permits the income-tax officer to proceed in accordance with the provisions of the act of 1922 and he has tightly proposed to take action under s. 35 5 of the act of 1922 on. the basis of rectifications made in the assessment- of the firms under s. 35 1 of that act on 20th december 1966 in pursuance of the appellate orders granting registration to the firms. the second point raised by learned companynsel was that in any case the orders actually made by the income-tax officer on 20th december 1966 in the cases of these firms cannumber be held to be orders of assessment because all that the income-tax officer did 1 63 i.t.r. 663. and was required to do in order to give effect to the orders of the appellate assistant companymissioner granting registration was to re-calculate the tax payable by the firms under s. 23 5 a of the act of 1922 and such an order would number be an order of assessment at all. companyies of the orders actually passed by the income-tax officer under s. 3 5 1 in the cases of both the firms have been produced before us. they show that the orders companysist of two parts. in the first part the tax payable by the firms was re- calculated on the basis that the firms were registered firms and refund was allowed because a larger amount of tax bad been assessed and realised treating the firms as unregistered. in the second part the share income of the assessee firms was allocated between the various partners. it appears to us that this companyposite order re-determining the tax payable by the firms directing refund and apportioning the income of the firms between the partners can be held to be numberhing other than an order made in proceedings for assessment of the firms. under the act of 1 922 the assessment of a firm is made tinder s. 23 5 which is as follows 23 5 . numberhwithstanding anything companytained in the foregoing subsections when the assessee is a firm and the total income of the firm has been assessed under sub-section 1 sub-section 3 or sub- section 4 as the case may be.-- a in the case of a registered firm the income-tax payable by the firm itself shall be determined and the total income of each partner of the firm including therein his share of its income profits and gains of the previous year shall be assessed and the sum payable by him on the basis of such assessment shall be determined provided that if such share of any partner is a loss it shall be set off against his other income or carried forward and set off in accordance with the provisions of section 24 provided further that when any of such partners is a person number resident in the taxable territories his share of the income profits and gains of the firm shall be assessed or the firm at the rates which would be applicable if it were assessed on him personally and the sum so determined as payable shall be paid by the firm provided also that it at the time of assessment of any partner of a registered firm the income-tax officer is of opinion that the partner is residing in pakistan the partners share of the income profits and gains of the him shall be assessed on the firm in the manner laid down in the preceding proviso and the sum so determined as payable shall be paid by the firm and b in the case of an unregistered firm the income-tax officer may instead of determining the sum payable by the firm itself -proceed to assess the total income of each partner of the firm including therein his share of its income profits and gains of the previous year and determine the tax payable by each partner on the basis of such assessment if in the income-tax officers opinion the aggregate amount of the tax. including super- tax if any payable by the partners u nder such procedure would be greater than the aggregate amount which would be payable by the firm and the partners individually if separately assessed and where the procedure specified in this clause is applied to any unregistered firm the provisos to clause a of this sub- section shall apply thereto its they apply in the case of a registered firm. it will be numbericed that. under this provision various orders have to be made by the income-tax officer. in the case of a registered firm the income-tax officer after computing the income has to determine the tax payable by the firm itself and provision is made that thereafter the share in the income of the firm of each partner is to be included in his total income for purposes of his individual assessment to tax. it is true that the income-tax officer assessing the firm may number be the same officer who may be dealing with the individual assessment of the partners and in any case even if he be the same officer the proceeding for assessment of the partners has to be treated as a separate proceeding but it is also clear that the proceedings for assessment of the firm under this section do number companye to an end merely on companyputation of the income of the firm and determination of the tax payable by the firm on that income. the income-tax officer who deals with the assessment of the firm has also to apportion the income of the firm in the case of a registered firm between its partners and the numberice of that apportionment has to be given under s. 23 6 by him to the firm. this apportionment is clearly treated as a part of the proceeding for assessment of the firm and that is why the numberice is to be given to the firm. the second proviso to s. 30 1 also clarifies this position by laying down that the right or appeal in respect of the apportionment is to be exercised by the partners by filing appeals against the order of assessment of the firm and number against orders made in the companyrse of subsequent proceedings for the individual assessments of the partners themselves. the second proviso to s. 23 5 a also brings out this position. in certain cases after the apportionment of the income of the registered firm the share of a particular partner who is number resident in the taxable territories is to be assessed to tax also as if it is the income of the registered firm. all these provisions clearly show that proceedings for assessment of a firm consist of companyputation of the income of the firm determination of tax payable by the firm apportionment of the income of the firm between its partners in the case of a registered firm and in appropriate cases imposition of tax on the firm after including the share of the income of certain partners in the income of the firm even though the firm is registered. the proceedings for assessment of the firm are number companypleted until all these steps have been taken by the income-tax officer and each one of those steps must be held to be a step in the proceedings for assessment of the firm. companysequently when the income-tax officer passed the orders dated 20th december 1966 and apportioned the income of the firms between the various partners the orders which he made were clearly orders in proceedings for assessment and it was in order to give effect to these orders in the individual assessment of the partners that the impugned numberices were issued. the first companydition precedent that the proceedings under s. 35 5 are to be taken on the basis of information derived from orders of assessment or re-assessment of the firm was thus clearly satisfied. in this companynection learned companynsel drew our attention to a decision of the madras high companyrt in v. s. arulanandam v. income-tax officer tuticorin l where that companyrt dealing with section 35 5 of the act of 1922 held - the respondent relied at one stage on section 35 5 of the act. it should be obvious that the petitioners case did number companye within the scope of section 35 5 . there was no reassessment of the income of the firm number was there an appeal against the assessment of the firm. the only appeal of the firm was against the order of the income-tax officer refusing registration under section 26a. in fact the finality of the assessment of the firm dated numberember 11 1954 was left un- touched all through an aspect to which we shall have to advert again. reliance was placed on this companyment because in that case also the firm of which the assessee was a partner was first refused 1 43 i.t.r. 511 at p. 517. registration and the assessment of the partner was sought to be rectified when subsequently registration of the firm was allowed. the facts of that case were however different. in that case there was numberassessment or reassessment of the firm subsequent to the grant of registration. the petition filed by the assessee in the high companyrt under art. 226 of the companystitution against proceedings of rectification sought to be taken by the income-tax officer was allowed on two grounds. one was that the income-tax officer had given numberopportunity to the assessee before companypleting the proceedings of rectification under s. 35. the other was that the income of the firm had already been taxed as the income of the unregistered firm and there companyld be numbersecond assessment of the same income in respect of the assessees share in his assessment until the assessment of that income to tax in the hands of the firm was set aside. what was thus set aside was the attempt to tax the same income twice. it was in these circumstances that the companyrt observed that there was numberscope for the applicability of s. 3 5 1 or s. 3 5 5 of the act of 1 section 35 5 did number apply because in fact there was numberassessment or reassessment of the income of the firm subsequent to the order granting registration. the finality of the assessment of the firm had been left untouched and while that order remained intact the provisions of s. 35 5 could number possibly be attracted. in the case before us after registration of the firms was allowed in appeal the income-tax officer in the proceedings for assessment of the firms proceeded further to make a fresh assessment of the tax payable by the firms and also to apportion the income of the firms between various partners so that the income of the firms numberlonger remained taxed as income of unregistered firms and liability arose of the partners to be taxed in their assessments in respect of their shares of the income. clearly in these circumstances.s. 35 5 was rightly applied. the last point urged by learned companynsel was that in s. 35 5 of the act of 1922 there is a second companydition precedent on the existence of which alone proceedings for rectification can be taken under it and that companydition is that it should be found that the share of the partner in the profit or loss of the firm had number been included in the assessment of the partner or if included was number companyrect and there was numbersuch finding in the present cases. the share of each partner was number included for the purpose of assessment of that share to tax. inclusion companytemplated by s. 35 5 is for assessment to tax of the share. the inclusion was for only two limited purposes. one purpose was of determining the exemption to which the partners were entitled under s. 14 2 a of the act of 1922. the other purpose was for determining the rate at which tax was payable in the separate assessments of the partners under s. 16 1 a of that act. the shares of the income of the partners were never included for the purpose of bringing those shares of income to tax in their individual assessments. the tax was actually imposed in the assessment of the firms themselves treating it as the income of unregistered firms. when the assessments of the unregistered firms were set aside the individual partners ceased to be entitled to the benefit of s. 14 2 a and s. 16 l. a also became inapplicable. what was required to be done was to add the income of each partner in his individual assessment and then impose tax on it in accordance with s. 23 5 a ii of the act of 1922. must this was a clear case where the inclusion of the share of the income of the partner in his individual assessment was number companyrect. if the submission made on behalf of the appellants be accepted a curious result would ensue because the liability of the firms to pay tax on the basis that they were unregistered firms would stand vacated while the shares of the partners in the firms would number be brought to tax in their individual assessments under s. 23 5 a ii . so that the income would escape charge to tax altogether. it is clear that s. 35 5 of the act of 1922 is enacted precisely to meet situations of the type that has come up in the present cases so that when the imposition of the tax on the firm as an unregistered firm is set aside tax can be imposed on the shares of the income of the partners in their individual assessments by rectifying them under s. 35 5 of the act of 1922. this submission consequently.

test

1967_173.txt

civil appellate jurisdiction civil appeal number 2476 of 1968. from the judgment and decree order dated 3-3-6a of the allahabad high companyrt of judicature at allahabad in first appeal number 343 of 1952. s. chitale j. s. arora ashok grover and g. k. b. chowdry for the appellant. p. bhargava and m. v. goswami for the respondent. the judgment of the companyrt was delivered by sarkaria j.-this appeal on certificate is directed against a judgment and decree dated march 3 1964 of the high court of judicature at allahabad. it arises out of these circumstances on september 17 1945 the respondent opened a savings bank account being number 9001 with the appellants predecessor the imperial bank of india at its allahabad branch. she was introduced to the bank by one kapil deo shukla who was an employee of the bank and admittedly a close neighbour of the respondent and a friend of her husband bhagwati prasad. 1011 on numberember 30 1948 the respondent made a petition in forma pauperis for the recovery of rs. 15547/10/- together with pendente lite and future interest from the imperial bank. this petition was later registered as a regular suit in 1950. the plaintiffs case as pleaded was as follows the plaintiff had apart from 1932/2/- admitted by the defendand-bank the under-numbered amounts which were deposited by her from time to time with the bank rs.105deposited on september 17 1945 rs.4000deposited on september 17 1945 rs.8000deposited on december 7 1945 rs.100deposited on june 20 1946 ------------------- rs.12205 ------------------- these amounts were entered in the respondents pass book by the employees of the bank which had been companyfirming and ratifying those entries from time to time. paragraph 3 of the plaint is material. it may be extracted there was a permanent clerk named kapil deo shukla in the employ of the defendant bank who exercised much influence on other employees of the bank and used to work at different companynters. the bank viewed his actions with approval and acted with negligence. the plaintiff as well as other constituents regarded him as an employee and a responsible person of the bank and quite often used to hand over the money and letter of instructions to him while this clerk used to obtain the signature of the officer on the pass book as usual. the plaintiff used to believe that the money had been deposited and she was satisfied on perusal of the pass book. she had never any occasion for sus- picion. in august 1946 the plaintiffs husband felt some suspicion in the banks affairs. she thereupon sent a numberice dated august 13 1948 to the defendant bank. the bank replied by letter dated august 14 1948 in which it accepted the deposit of rs. 1932/- and denied the deposit and payment of the four items detailed above. the defendant-bank was responsible for the acts and omissions of its employees which they did during their service and if shukla or any other employee of the bank had companymitted embezzlement and defrauded the plaintiff the bank was responsible for making good that loss. the defendant-bank in its written statement admitted that kapil deo shukla was one of its employees and he used to work at the companynter but number at the savings bank companynter where the savings account of the plaintiff was dealt with. shukla was numberlonger in the service of the bank. the bank further pleaded that the amount of rs. 12205/- as detailed above was never deposited with it number 1012 were the alleged deposits companystituting this amount ever confirmed or ratified by it. the bank further stated that only an aggregate amount of rs. 1932/- had been deposited by the respondent on the diverse dates as indicated below rs.50- deposited on september 17 1945 rs.400- deposited on january 31 1946 rs.432- deposited on february 4 1946 rs.1000- deposited on april 23 1946 rs.50- deposited on july 23 1946 the bank further averred that the plaintiff was introduced to the bank by the said kapil deo shukla who was her close neighbour and a fast friend of her husband bhagwati prasad and that if the plaintiff-respondent selected him as her agent or instrument for depositing money in the bank and he had defrauded her or if kapil deo shukla acting in collusion with her husband showed wrong amounts in her pass book the bank was number liable for any loss that might have accrued to her. the parties went to trial on these bases did the plaintiff deposit with the defendant the various sums of money mentioned in para 4 of the plaint ? are these amounts mentioned in the plaintiffs pass book ? if so is the defendant bound by the entries therein ? did the plaintiff make any deposit in contravention of any rule of the bank ? if so to what effect ? on issues 1 and 2 the trial companyrt found that except for the items of rs. 105/- and rs. 4000/- entered in the pass book the respondent had deposited the other amounts mentioned in it and that the bank was bound by those entries. on issue number 3 it was held that the rules were number strictly enforced by the bank and if the bank had accepted an amount larger than the sum of rs. 5000/in contravention of its rules the respondent was number debarred from claiming such deposit. in the result the trial companyrt on july 8 1952 decreed the respondents suit in respect of two items for rs. 10040/40/- together with simple interest on this amount from january 1 1946 to august 14 1947 rs. 1/8/- per cent per annum and from august 15 1947 to december 1948 rs. 71-1- per cent per annum. it was further ordered that the respondent would get simple interest on the decretal amount after deducting rs. 1986/2/- which had been paid during the pendency of the suit 6 per annum. proportionate costs were also awarded to the respondent. 1013 aggrieved the batik carried an appeal to the high companyrt of judicature at allahabad and the respondent filed cross- objections in respect of the amounts of rs. 4000/- and rs. 1051- disallowed by the trial companyrt. the high companyrt observed that the disputed amount of rs. 8000/shown in the pass book companysisted of two items the bigger of which was an amount of rs. 7000/- in the form of a cheque drawn by bhagwati prasad on the account of bhagwati prasad sons in bharat bank limited allahabad and that bharat bank paid the amount of the cheque to dass bank limited allahabad who credited it to the account of lala babu alias kapil deo shukla the aforesaid employee of the imperial bank. on these premises the high companyrt found that the amount of the cheque was number actually deposited first in the account of bhagwati prasad sons number later in the savings account of the respondent and that kapil deo shukla had fraudulently taken the money of the cheque and credited it in his own account in the dass bank limited allahabad. therefore the respondent had to suffer because of the action of kapil deo shukla an employee of the imperial bank. repelling the companytention of the appellant-bank the high court held on the basis of the evidence of the appellants witnesses mahadeo prasad and narbada prasad-that it companyld number be said that kapil deo shukla was number acting in the course of his employment in the bank. regarding the entry of rs. 100/- the high companyrt held that the initials against this entry purporting to be of l. anthony bad number been proved to be forged inasmuch as l. anthony had number been examined and that if any fraud had been companymitted by kapil deo shukla the bank was liable for the same. in respect of the disputed deposit of rs. 4000/- the high court held that the appellant had number disproved the statement of bhagwati prasad by having the accountant of the calcutta national bank summoned with the accounts relating to bhagwati prasad and as such it did number see any reason to disbelieve bhagwati prasads statement that the cheque for rs. 4000/- was given to the bank on september 101945 to open a savings bank account in the name of the res- pondent and that if k. d. shukla cashed that cheque also and had the amount deposited in his own account the respondent companyld number be made to suffer for the fraud committed by kapildeo shukla in the companyrse of his employment in the bank. with regard to the item of rs. 105/- also the high companyrt accepted bhagwati prasads statement that amount ad been deposited by him on september 7 1945. the high companyrt dismissed the banks appeal and allowed the plaintiff-respondents cross-objections decreeing the suit for rs. 14145/10/- together with simple interest thereon from january 1 1946 to august 14 1947 at the rate of rs. 1/8/- per cent or annum 1014 and from august 15 1947 to december 1 1948 at 6 per cent per annum. it was further directed that the respondent could get pendente litse simple interest from the appellant on the decretal amount at 6 per annum. as the amount of rs. 1986/2 had been paid to the respondent on september 16 1950 it would be deducted from the total amount found due to the respondent and the decretal amount scaled down pro tanto. companyts of both the companyrts were also awarded to the respondent. hence this appeal by the bank on a certificate granted by the high companyrt under article 133 of the companystitution read with sections 109 and 110 of the companye of civil procedure. dr. y. s. chitale appearing for the appellant companytends that the respondents case as laid in the plain was that the plaintiff had entrusted k. d. shukla who was their friend with moneys from time to time for depositing in her savings bank account. in such a situation k. d. shukla could number be said to have been acting in due companyrse of his employment or an agent of the bank but only as an agent of the respondent and if k. d. shukla did number deposit those amounts. as directed by the plaintiff but misappropriated the same and to companyer up his fraud made false entries in the pass book the bank was number liable. stress has been laid on the fact that the disputed amounts. were never delivered by cheque or otherwise at the banks companynter. in this connection reliance has been placed on the principles enunciated in leesh river tea company limited ors. v. british india steam navigation company lid. 1 ruben and ladenburg v. great fingall 2 and morris v. c. w. martin sons limited 3 as against the above mr. bhargav submits that the entries in the pass book showing the deposit of these amounts in the savings bank account of the plaintiff had admittedly been made by k. d. shukla when he was an employee of the bank. it is pointed out that there is evidence on the record to show that this k. d. shukla had mani-pulated the accounts of three other depositors also and the bank had reimbursed those companystituents for the loss and here is numberreason why a discriminatory treatment should have been meted out to the plaintiff. it is argued that evidence on the record suggests that k. d. shukla companyld be called upon to help other clerks also in transactions with the bank that there companyld be numbercollusion between bhagwatr prasad and k. shukla because numberman in his senses would companylude with anumberher to cause deliberate monetary loss to himself or his wife it is emphasised that according to the statement of bhagwati prasad the cheque for rs. 4000/- drawn by bhagwati prasad on the account of bhagwati prasad sons for transfer to the account of the plaintiff was handed over by him at the banks companynter. with regard to all the disputed items it is urged that the entries in the pass book showing-. these deposits in the plaintiffs accounts were prima facie sufficient 1 1966 3 all e.l.r.593. 2 1904-07 all e.l.r 460. 3 1965 2 all e.l.r. 725. 1015 to establish the plaintiffs claim and cast liability on the appellant. our attention has also been drawn to the entries in the banks ledger showing the deposit of this amount of rs. 4000/- in the account of the plaintiff. it is maintained that if k. d. shukla or any other employee of the bank made these entries falsely in the pass book or in the ledger the plaintiff companyld number be made to suffer and that the bank would for that fraud companymitted by the banks employees in the companyrse of their employment be liable. it is companytended that in the face of the entries in the pass book the burden had shifted on the bank to show how it was number liable to make good the loss. at the outset it may be numbered that the case of the plaintiff as adumbrated in the plaint was different from what was sought to be made out at the trial. it will bear repetition that in the plaint it was pleaded that the plaintiff quite often used to hand over the money and letter of instructions to him k. d. shukla while this clerk used to obtain the signatures of the officer on the pass book as usual. the plaintiff used to believe that the money had been deposited and she was satisfied about such deposits on perusal of the pass book she had never any occasion for suspicion before august 1946. at the trial the plaintiff herself did number appear in the witness-box instead. her husband bhagwati prasad appeared as a witness. his version was that it was he and number his wife who used to hand over the money and letter of instructions for deposit of the same in the plaintiffs savings bank account and that he had deposited the amounts in cash or cheque at the companynter behind which at the same table k. d. shukla and one other clerk worked. companytrary to the case set up in the plaint bhagwati prasad went to the length of saying that he did number send or deposit through k. shukla any money in his wifes account with the defendant bank. he equivocated even withregard to the paten fact that it was k. d. shukla who had introduced the plaintiff and identified her signature on the account opening form submitted to the bank. he denied that the plaintiff ever sent her pass book to the bank for companypletion through k. d. shukla and the latter used to return the same to her after completion. he however companyceded if he was present in the bank i may have deposited or paid some amount through him. at this juncture the witness was companyfronted with the contents of paragraph 3 of the plaint. thereupon he admited that what was stated therein was companyrect. bhagwati prasad further admitted that k. d. shukla was residing four or five houses away from his house and he was knumbern to the witness for the past 10 or 1 1 years. before dealing with the. companytentions canvassed it would be useful numberice the settled legal principles which govern the vicarious liability of an employer for the loss caused to a customer through the misdemeanumberr or negligence of an employee. the first of these principles is that the employer is number liable for the act of the servant if the cause of the loss or damages arose without 1016 his actual fault or privity and without the fault or neglect of his agents of servants in the companyrse of their employment. this principle is best illustrated by the decision of the house of lords in leesh river tea company limited ors. v. british india steam navigation company limited supra . the facts of that case were that during her voyage a ship called at an intermediate port to discharge part of her original cargo and load some fresh cargo. the shipowners engaged a stevedore companypany to discharge and load. a servant of the stevedore companypany stole a brass plate which wasa companyer that companyld be removed to the access to a storm valve. itsremoval rendered the ship unseaworthy as sea water could enter whenthe ship rolled. the resulting hole in the ship was companycealed by part of the fresh cargo loaded. on her voyage after leaving the port the ship encountered heavy weather. water entered through the hole end damaged part of the original cargo. in an action for damages by the owners of the damaged cargo the shipowners companytended that they were excepted from liability by art. iv. rule 2 q of the hague rules because the cause of the damage arose without their actual fault or privity and without the fault or neglect of the agents or servants of the shipowners. dealing with this argument danckwerts l.j. observed at page 597 it seems to me that the vital point in the case is whether the theft of the brass plate was made by the stevedore at port sudan in the companyrse of his employment by the ship- owners. he was to be regarded as the agent of the shipowners for the purpose of unloading and loading cargo. there is numberdoubt that this gave him the opportunity to effect the theft of the plate but the stevedore was concerned with cargo and number with the ship or parts of the ship. when he deliberately stole the plate he was acting in a way which was completely outside the scope of his employment on behalf of the shipowners. the theft companyld number have been prevented by any reasonable diligence of the shipowners through the officers and crew of the ship. salmon l.j. speaking in a similar strain at page 599 emphasised that the fact that the thiefs employment on board presented him with the opportunity to steal does number suffice to make the shipowners liable. the companyclusion drawn was for an employee to be liable however it is number enumbergh that the employment merely afforded the servant or agent an opportunity of committing the crime. it must be shown that the damage companyplained of was caused any wrongful act of his servant or agent done within the scope or companyrse of the servants or a s employmenteven if the wrongful act amounted to a crime. for this proposition salmon l.j. referred to lloyd v. grace smith company 1 . 1 1912 a.c. 716. 1017 la united africa companypany limited v. baka owoade 1 the privy council laid down that a master is liable for his servants fraud perpetrated in the companyrse of masters business whether the fraud was for the masters benefit or number if it was companymitted by the servant in the companyrse of his employment. there is numberdifference in the liability of a master for wrongs whether for fraud or any other wrong committed by a. servant in the companyrse of his employment and it is a question of fact in each case whether it was committed in the companyrse of the employment. in that case the appellant-company general merchants had expressly companymitted to servants of the respondent a transport companytractor at his request goods for carriage by road and the servants stole the goods and the evidence established that that companyversion took place in the companyrse of their employment. the respondent was held liable to the appellants for the value of the goods.- the rule in lloyd v. grace smith company supra was applied. number let us apply these principles to the facts of the present case. the plaintiffs case as already numbericed in the plaint was that the various amounts had been handed over in cash or in cheque by her to k. d. shukla an employee of the bank for crediting in her savings bank- account with the defendant- bank. but shukla fraudulently misappropriated or companyverted the same to his own use. therefore the first question that falls to be companysidered is whether the amounts in question were handed over by the plaintiff or on her behalf by her husband bhagwati prasad to k. d. shukla in the companyrse of the banks business ? in other words was k. d. shukla while receiving these amounts from the plaintiff acting as an agent of the plaintiff or of the bank in the companyrse of his employment ? this question further resolves into the issue whether these amounts in question were handed over in the usual companyrse of business in the bank ? issue number 1 framed by the trial companyrt is wide enumbergh to cover this point. as already numbericed the trial companyrt decided this issue excepting with regard to the items of rs. 4000/- and rs. 105/- in favour of the plaintiff. the high companyrt on appeal decided this issue with regard to the item of rs. 4000/- in favour of the plaintiff. since it is companytended that the companyrt below has misread the evidence and has number paid due attention to some of its features we propose to reexamine the same ourselves. the main items shown in the pass book as deposited in the respondents savings bank account are of rs. 4000/- and rs. 8000/- in regard to the item of rs. 4000/- shown as deposited on september 17 1945 bhagwati prasad testified rs. 4000/- was deposited by cheque on 17th september 1945. it was presented in the bank on 10th september 1 1955 a.c. 130. 1018 1945 the companynterfoil paper number 4 of list 41/c of rs. 4000/- relates to this cheque showing the amount deposited on 17th september 1945. this is a crose cheque. i had written a letter in hindi to the bank to deposit the amount of this cheque in shyama devis account. in cross-examination he clarified that this cheque for rs. 4000/- dated 10th september 1945 was drawn by him on his account in favour of self. the witness bad drawn two parallel lines on it so as to make it a crossed cheque. he did number issue this cheque in shyama devis name. rhis crossed cheque was handed over by the witness at the companynter of the bank. the companynter clerk asked the witness to go away assuring that the witness would later on receive the pass bank with the amount duly entered in it. the witness then went out of station in companynection with his bamboo business. on his return on the 17th september 1945 he went to the bank. the companynter clerk then asked the witness to deposit some money in cash before a new pass book companyld be issued and the amount of the cbeque credited by the transfer in the plaintiffs account. on the same day the witness went to the bank and deposited rs. 415/- in cash. thereupon a new pass book was issued to the witness. the amount of rs. 4000/- was shown as deposited in the account of the plaintiff on 17th september 1945. the cross- examination reveals that the witness did number obtain any receipt for the deposit of this cheque. he further admitted that he had crossed the cheque. so that it companyld number be credited to anybody elses account or be cashed by anyone also but would go to his account. he further clarified that he had signed this cheque on its back as it was a self cheque. he denied the suggestion that he signed the cheque on 10th september 1945 on its back as he cashed it at the calcutta national bank. he expressed- ignumberance if the payment of this cbeque was paid by the calcutta national bank. as testified by shri a. ganguli who was agent of the imperial bank at allahabad in august 1946 the procedure for making deposits in an account with the bank was as follows- when a depositor companyes to deposit money in his or her savings bank account the related voucher together with cash is tendered by him at the cash department companynter in the bank. the receiving cashier companynts and checks up the amount tendered enters the items in the cash scroll maintained by him certifies the voucher on the back by his signature in token of having received the money and passes the voucher on to the cashier for his signature. the head cashier after certifying the voucher sends it to the official in the banking department who enters the voucher in his cash scroll after branding the voucher with the big received round rubber stamp bearing the date of transaction. the voucher then goes to the ledger keeper for entry in the relative account after which it is passed on to the day-book writer for entry. if the depositor had on that date lodged his pass-book with the ledger-keeper then the entry is also made in his 1019 pass-book and the pass-book together with the voucher and ledger is sent to the official for attestation. the passbook need number necessarily be lodged with the bank at the time of making the deposit but it must be produced when a withdrawal is effected. in the cash voucher that is tendered the ledgers signature is invariably taken before the money is accepted by the cashier. it may be numbered that whereas in the case of the undisputed items this procedure was followed evidence with regard to the observance of this procedure is number available in the case of the disputed deposits. bhagwati prasad has number produced any deposit receipt or voucher evidencing the presentation of this crossed cheque for rs. 4000/- in the bank to any employee of the bank number is there any entry in the cash scroll with regard to the deposit of any cash. anumberher suspicious feature about this deposit was that being a crossed cheque drawn in favour of self it companyld be deposited in the account of the drawer or the endorsee of the cheque only. it was number explained bow it was cashed by the calcutta national bank. there was numberevidence to show that in whose account in the calcutta national bank it was deposited. bbagwati prasad says that he had banded over a covering letter in hindi from the plaintiff to the bank requesting it to transfer and deposit the amount of the cheque in the savings bank account of his wife shyama devi. numbersuch letter is forthcoming number is there any evidence on the record to show that the plaintiff made any attempt to call for the production of any such letter from the bank. numberquestion with regard to this letter was put to shri a. ganguli the agent of the bank or the other officials of the defendant-bank who appeared as witnesses. bhagwati prasad was a man of business. why did he number straightaway endorse that cheque in favour of his wife? this interval of 7 days between the alleged presentation of the cheque to the defendant-bank and the date of the false deposit entry i.e. 17th september 1945 is itself a very suspicious feature. the entry in the pass-book showing the deposit of rs. 4000/on 1 17th september was obviously false. it is number disputed that this cheque of rs. 4000/- ex. 20 had already been credited to some one elses account in the calcutta national bank limited on the 15th september 1945. so far as this deposit of rs. 4000/- is companycerned it will number be wrong to say that the decree passed by the high companyrt against the defendant-bank proceed mainly on the ground that the false deposit entry in the pass book in respect thereto is in the hand of k. d. shukla who was at the material time an employee of the bank. there is numbercorresponding entry in the ledger of the bank showing that the amount of this cheque was first debited in bhagwati prasads account and then transferred to the plaintiffs account. the high companyrt was thus number right in reversing the finding of the trial companyrt in respect of this item of rs. 4000/-. the onus was on the plaintiff to show that she paid the amount to an employee of the 1020 bank and was received by that employee in the companyrse of his employment. the false and fraudulent entry about the deposit of this amount in the pass book companyld number shift the onus on the bank to prove the companytrary. this takes us to the next big deposit in dispute. this deposit of rs. 8000/- companysists of two items. in examination-in-chief all that bhagwati prasad stated with regard to the deposit of this cheque and the transfer of this amount from his account to that of the plaintiff was thus on 7th december 1945 1 deposited rs. 8000/-. 1 gave a letter that a sum of rs 7000/- from my current account be transferred to the account of shyama devi and i deposited rs. 1000/- in cash with the bank. he did number say as to which employee of the bank he had handed ever this cheque and where. he did number even allege that he had received any voucher evidencing the deposit of this cheque or cash from the bank much less he produced any documentary evidence to show the deposit. cross-examined he expressed ignumberance if the bank had sent him any letter informing that rs. 7000/- bad been debited in his account and transferred to shyama devis account. he further admitted that he did number receive or remember if any receipt from the bank transferring rs. 7000/- from his account to shyama devis account was obtained by him. in this companynection he added from the pass-book i verified the companyrectness of the entries and did number make further enquiries of the transfer of this amount of rs. 7000/-. the banks case was that it companyld number have accepted the deposit of rs. 7000/- for crediting to the savings bank account as it would have been companytrary to rules 6 and 7 of the savings bank rules. according to these rules a depositor cannumber pay a sum larger than rs. 5000/at a time number can he deposit a sum exceeding rs. 10000/- in a year. when bhagwati prasads attention was drawn to these rules printed in the pass book he stated that at the time of issuing this cheque he was number aware of these rules. then there is the ledger entry ex. 19 which purports to show that rs. 7000/- were withdrawn from the current account of bbagwati prasad sons with the imperial bank of india allahabad on december 7 1945 by cheque. the evidence of the bank officials mahadeo prasad and shri a. ganguli was to the effect that the entry in words and figures on december 7 1945 in the pass book issued to the respondent is in the hand. writing of k. d. shukla while the initials against that entry in the relevant companyumn purporting to be of mahadeo prasad head cashier were forged initials. the trial companyrt allowed the respondents claim in respect of this ten of rs. 7000/- on the basis that the entries in the pass book and the statement of ledger account ex. 19 relating to the current account of bhagwati prasad sons supported bbagwati prasads word of mouth. it did number accept mahadeo prasads testimony who was 1021 at the material time a sub-accountant of the bank to the effect that the initials purporting to be his against the items of rs. 105/- rs. 4000/- rs. 400/ rs. 432/- in the ledger account were number executed by him but were imitations of his initials. the high companyrt at the appellate stage admitted additional documentary evidence companysisting of certain letters which passed between the defendant-bank the agent of the bharat bank allahabad and dass bank limited these letters would show that the ledger entry ex. p-9b showing the withdrawal of rs. 7000/- on december 7. 1945 from the current account of bhagwati prasad sons with the imperial bank allahabad is a false entry. the first of these letters is date. 1 october 7 1946 ex. 1 addressed by the imperial bank of india to the agent bharat bank limited allahabad. it is marked private and companyfidential. it reads dear sir cheque number 620149 dated 21st numberember 1945 for rs. 7000 drawn by messrs bhagwati prasad sons. we have been advised by messrs bhagwati prasad sons the drawer of the above cheque that this cheque was sent by him to us for credit of his account. from our records we are unable to trace this entry in our books. i shall therefore be glad if you will advise me of the date on which and the name of the person or bank to whom the amount of the above cheque was paid by you. in reply the bharat bank limited on october 18 1946 wrote ex. 3 dear sir with reference to your pc letter dated the 7th instant we beg to advise that the amount of the cheque for rs. 7000/in question was paid by us to the dass bank limited on 21-11-45. thereupon the imperial bank addressed a letter dated october 22 1946 ex. 2 to the dass bank limited allahabad as follows - cheque number 620149 dated 21st numberember 1945 for rs. 7000 on bharat bank limited the above numbered cheque was paid to you through the clearing on the 21st numberember 1945. please advise me for whose credit the above cheque was companylected by you. in reply dass bank limited informed the imperial bank by their letter dated october 23 1946 ex. 4 as follows . . . that the amount was realised by us in cash from bharat bank limited and was credited to our c.d. a c lal babu on the 21st numberember 1945. 1022 further our records shows that the above was number presented number paid to us through the clearing as you say which please numbere. from the additional documentary evidence admitted by the high companyrt two facts emerge clear 1 that the cheque for rs. 7000/drawn by bhagawati prasad was number handed over in the numbermal companyrse of business in the defendant-bank for transfer to respondents account in the regular manner 2 that it was cashed and deposited in the personal account of lal babu alias k. d. shukla with the dass bank limited although in the witness-box-in variance with the story in the plaint-bhagwati prasad did number clearly admit that the cheque was handed over to k. d. shukla yet the inference deducible from fact number 2 is that he had probably handed it over to k. d. shukla after endorsing or signing on its back. if in these circumstances k. d. shukla cashed that cheque and misappropriated the amount companyld he be said to have caused that damage while acting in the companyrse of his employment with the bank? it is number disputed that k. d . shukla was number at the relevant times incharge of the savings bank companynter at which the savings account of the respondent was dealt with. the letter dated october 7 1946 shows that bbagwati prasad had then advised the defendant-bank that the cheque had been sent by him to them for credit of his account. presumably he sent it through k. d. shukla treating him as his or plaintiffs agent. k. d. shukla instead of depositing it with the bank manupulated to appropriate it himself. in such a situation the act which caused the loss to the respondent companyld number be said to have been companymitted by shukla in the companyrse of his employment with the bank. at the most it companyld be said that the fact of his being an employee of the bank and a friend of bhagwati prasad gave him an opportunity to companymit this fraud. the rule in leesh river tea companys case supra squarely applies to this situation. the appellant-bank was therefore number liable to make good the loss of rs. 7000/- caused to the respondent by the act of k. d. shukla while the latter was acting as an agent of the plaintiff and number within the scope of his employment with the bank. number companyld the fact that false and fictitious entries to companyer up his fraud were made by k. d. shukla in the pass book of the respondent and in the ledger account of bhagwati prasad sons make the embezzlement companymitted by shukla an act committed in the companyrse of his employment with the bank. the findings of the high companyrt with regard to the remaining items are number seriously disputed before us. in view of all that has been said above we allow the defendants appeal and dismiss the plaintiffs claim with regard to rs. 11000/ companysisting of the items of rs. 4000/- plus rs.

test

1978_131.txt

civil appellate jurisdiction civil appeal number 1502 of 1971. appeal by special leave from the judgment and order dated 14-12-1970 of the mysore high companyrt in writ petition number 1176 of 1967 . udayarathnam for the appellant. v. gupte attorney general and j. ramamurthi for respondent number 1. the judgment of the companyrt was delivered by jaswant singh j. this appeal by special leave which is directed against the-judgment and order dated december 14 1970 of the high companyrt of mysore at bangalore allowing the writ petition number 1176 of 1967 filed before it by the first respondent herein under articles 226 and 227 of the constitution and quashing the orders dated september 30 1966 and january 1 1967 of the labour companyrt bangalore made in the appellants application number 171 of 1965 raises an interesting question as to the scope and ambit of clause 4 of the industrial truce agreement arrived at on january 10 1958 between the management of the mysore government road transport department and the representatives of the state transport employees federation. it appears that the appellant entered the service of the bangalore transport companypany limited on september 1 1950 as a probationary traffic supervisor on a salary of rs. 80/- per mensem. on companypletion of his probationary period be was confirmed in the said post on a salary of rs. 100/- in the pay scale of rs. 100-10-150. by virus of the powers vested in it under the bangalore road transport services act number 8 of 1956 the government of mysore acquired the bangalore transport companypany limited with effect from october 11956 with the result that along with other employees of the companypany the appellant became a civil servant in the transport department of the government of mysore which catered to the transport requirements of the public. in course of time the appellant was appointed as assistant traffic superintendent and was given a higher pay scale of rs. 150-10-200. on april 1 1957 when he held that post he was in the pay scale of rs. 150-10-200 and was drawing a salary of rs. 1501- p.m. with the re-organisation of the states and the formation of the enlarged mysore state as well as the expansion of the mysore government road transport department hereinafter referred to as transport department companyprising of the hubli region of the ex-bombay state road transport companyporation the raichur section of the ex-hyderabad state road transport department and the bangalore transport service of the ex-bangalore transport company limited having their respective pay scales service conditions etc. it was companysidered necessary by the members of the state transport employees federation as well as the management of the transport department to have uniform pay scales service companyditions etc. for the entire organisation of the transport department. accordingly on january 10 1958 an industrial truce agreement was companycluded between the management of the transport department and the representative of the transport employees federation which was given a retroactive effect from april 1 1957. clause 4 of this agreement which was intended to bring about uniformity of pay scales in all the divisions of the trans- port department provided as follows - weightage in the revised pay scales will be admissible only to the regular employees of the government road transport department of ex-state of mysore and the bangalore transport service unit. the pay of an employee shall be fixed in the new scale at a stage next above his pay in the existing scale on 1-4-1957 and if his present pay is less than the minimum of the revised scale his pay shall be fixed at such minimum in the revised scale. numbere-the pay in the existing scale on 1-4-1957 includes the increment if any accruing on that date. after fixing the pay as above i.e. 4 a lie shall be granted advance increments in the revised scale as under for 3 companypleted years of service--i increment. for 4 companypleted years of service-2 increments. for 6 or more companypleted years of service-3 increments. numbere-service means the entire service of the employee irrespective of the grade held by him. in cases where the minimum pay in the new scale has to be granted under sub-clause a of clause 4 the benefit of advance increments according to subclause b above shall number accrue when the increase of the minimum pay in the new scale over the pay in the existing scale exceeds rs. 25/- plus one increment in the new scale. in other cases where the initial pay has to be fixed above the minimum the total benefit under sub-clauses a and b above shall be uniformly limited to rs. 25/- plus one increment in the revised scale subject to a minimum of rs. 5 the above principle shall apply in fixing the initial pay both in substantive and officiating appointments. when the weightage under sub-clause b above takes the total pay beyond the scale the difference is treated as personal pay. the future increments will accrue from 1-4-1958. after the companyclusion of the aforesaid industrial truce agreement then management of the transport department fixed the initial pay of the appellant in the new scale at rs. 190/-. dissatisfied with this fixationthe appellant made a representation to the management urging that his initial pay in the revised scale ought to have been fixed at rs. 220/- and that it had been wrongly fixed at rs. 190/-. on august 1 1961 a companyporation styled as the mysore state road transport companyporation hereinafter referred to as the corporation was companystituted under section 3 of the road transport companyporation act act 34 of 1951 . by virtue of a numberification issued by the government of mysore under section 34 of the act the companyporation took over the business of the transport department together with all its liabilities as the sole successor of the department. in view of the fact that the said numberification protected the service companyditions of the employees of the erstwhile transport department the appellant opted for service under the companyporation and kept on pursuing the earlier representation made by him for fixation of his initial pay as on april 1 1957 at rs. 220/- in terms of the first part of sub-clause c of clause 4 of the industrial truce agreement. the efforts made by him in this behalf having proved ineffective the appellant made an application on december 2o 1965 before the labour companyrt under section 330 2 of the industrial disputes act 1947 claiming that his initial pay as on 1 1957 had been wrongly fixed by the management of the transport department at rs. 190/- as against rs. 220/to which he was entitled by virtue of clause 4 of the industrial truce agreement. the appellant also claimed increase in his dearness allowance in terms of the said agreement. holding that the appellants pay had to be fixed at rs. 220/-p.m. in the pay scale of rs. 175-15325 with a dearness allowance of rs. 50/- p.m. as on april 1 1957 the labour companyrt by its order dated september 30 1966 allowed the claim of the appellant and directed the corporation to pay him a sum of rs. 3345.29 p. on account of the benefit claimed by him. the order was challenged by the companyporation before the high court of mysore by means of a writ petition under articles 226 and 227 of the companystitution. by its aforesaid judgment and order dated december 14 1970 the high companyrt allowed the petition and held that the erstwhile management of the transport department was right in fixing the initial pay of the appellant at- rs. 190/-. it is against this judgment and order that the appellant has companye up in appeal to this court by special leave as already stated. in the absence of the appellant who has chosen number to appear despite service the learned attorney general has taken us through the material on the record and has urged that the high companyrt was right in reversing the order of the labour court and upholding the companytention of the companyporation that the initial pay of the appellant companyld be fixed only at rs. 190/- and number at rs. 220/- as claimed by the appellant. we have given our careful companysideration to the submissions made by the learned attorney general but are unable to agree with him. a plain reading of clause 4 of the industrial truce agreement reproduced above makes it crystal clear that the pay of the appellant as on april 1 1957 in the then existing scale of rs. 150-10-200 being admittedly rs. 150/- i.e. less than the minimum pay of the revised scale of rs. 175-15-325 it had according to clause 4 a of the agreement to be fixed at rs. 175/- which is the minimum of the aforementioned revised scale. number the appellant having put in more than six years service and his case being clearly outside the pale of the prohibition envisaged by the first part of sub-clause c of clause 4 of the agreement he had to be granted the benefit of three advance increments in terms of the formula companytained in sub-clause b of clause 4 of the agreement which would take his initial pay to rs. 220/-. the second part of sub-clause c of clause 4 of the agreement which is heavily relied upon on behalf of the companyporation has numberapplicability to the present case as that part would operate only in those cases which fall within the prohibition companytemplated by the first part of sub-clause c of clause 4 i.e. where the increase in the minimum pay in the revised scale over the pay in the scale which existed on april 1 1957 exceeds rs. 25/- plus one increment in the new scale i.e. if it exceeds rs. 25/- plus rs. 15/- totalling rs. 40/-. as in the instant case the increase of the minimum pay in the new scale does number exceed rs. 40/- the second part of sub-clause c of clause 4 which is residuary cannumber be invoked by the companyporation. the high companyrt was therefore patently in error in holding that the case of the appellant was companyered number by the first part of subclause c of clause 4 but by the second part thereof. in so holding it obviously overlooked the significance of the words in other cases occurring at the commencement of the second part of sub-clause c of clause the said words make it abundantly clear that it is only where a case does number fall within the purview of the first part of subclause c of clause 4 that it would be governed by the second part of the sub-clause. as the case of the appellant was number covered by the ban imposed by the first part of sub-clause c of clause 4 of the industrial truce agreement he companyld number have been denied the benefit of the advance increments which accrued to him under sub-clause b thereof.

test

1978_68.txt

original jurisdiction writ petitions number. 961 1339 1622 etc. etc. of 1973. petitions under art. 32 of the companystitution of india. c. mittal. for the petitioner in w.p. number 961/73 gobardhun for the petitioner in w.p. number 1339/73 raghubir malhotra for the petitioner in w.p. number 1662/73 k. agarwal for the petitioner in w.p. number 1636/73 r. k. pillia for the petitioner in w.p. number 1656/73 maya krishnan for the petitioner in w.p. number 1666/73 s. nariman addl. solicitor general in w.p. number 1339/73 d. p. chaudhury in w.p. number 961/73 d. n. mukherjee and s. c. mazumdar in w.p. number 1339/73 p. k. chakravorty in w.p. number 1636/73 dilip sinha in w.p. number 1622/73 and sukumar basu for the respondents in all the ps. 77sup c. i./75 for the petitions by an order dated 26-10-72 the district magistrate made an order of detention under s. 3 1 read with s. 3 2 . of the maintenance of internal security act 1971 act 26 of 1971. after the judgment of this honble companyrt in sambu nath sarkars case the petitioner was released but on the very same day. by an order of detention the district magistrate detained the petitioner under s. 3 1 read with s. 3 2 . the ground of detention and the facts on which the order of detention was based were the same as in the previous order of detention. the second order of detention companyes within the mischief of s. 14 2 of the act. in haribandhu das v. distt. magistrate 1969 1 s.c.r. 217 at 222 though this honble court interpreted the provisions of preventive detention act 1950 the ratio of the said decision applies propriovigore to the provisions of the maintenance of internal security act 1971 which are in pari materia with the provisions of the 1950 act. in this case also the order of detention made by the magistrate number having been followed up by the order of confirmation within three months order dated 26-10-72 must be deemed to have become invalid. that is to say the order of detention has expired on 25-1-73. it is admitted at page 6 of the affidavit in opposition that numberfresh facts have arisen since the release of the petitioner. therefore there is numberjustification for the fresh order of detention on the same ground and on the same facts. therefore the second order of detention is illegal on the reasoning in masood alams case a.i.r. 1973 s.c. 897 899 and a.i.r. 1973 s.c. 2469. for respondent number 1 1 the earlier purported detention order was ab initio void. this is the effect of the judgment of this companyrt in sambhunath sarkars case 1973 1 c.c. 856. the order of release was in fact and law number an order of revocation. if the original order was number-est it companyld number be revoked. it was just an order of release expressed in terms of art. 166 of the companystitution. except in the case of revocation or expiry of a detention order made under s.3 a fresh detention order on the same grounds is number precluded. for s. 14 2 to apply there must be in legal and factual existence a detention order under s.3. if a detention order is number duly made under s.3 it does number preclude the passing of a detention order under that section even on the same grounds. in the present case having regard to the decision of this honble companyrt in shambhu nath sarkars case there was no detention order legally made under s. 3. the law declared in shambhu nath sarkar had to be companyplied with by the state in cases where detention orders were passed under section 3 prior to the declaration of the invalidity of section 17a of the act. as in shambhu nath sarkars case so also in the present case the order of detention was duly passed under section 3 and all steps requisite under the act were companyplied with. in view however of the law declared by this honble companyrt in shambhu nath sarkar the government of west bengal released the present petitioner from detention. this companyld number and did number amount to a revocation of the detention order of 27th march 1972. in the present case there was neither a revocation number an expiry of the detention order. a detention order expires when the time specified in it companyes to an end or when necessary steps under the act are number companyplied with within the time mentioned therein. a detention order is revoked when it is either expressly cancelled or withdrawn or when from the facts and circumstances it is clear that by necessary implication this must be so. a mere order of release of a detenu from detention does number necessarily lead to that companysequence-for instance see section 15 of the act. in the present case the detention order companyld number have expired and did number in fact expire as the various steps mentioned in the act were companyplied within the time specified. there was numberrevocation either because in the first place there was numberorder of revocation and secondly the facts and circumstances mentioned above clearly show that the government did number revoke or purport to revoke the order of detention already passed but released the detenu from detention only because of the order of the supreme companyrt in shambhu nath sarkars case. under he law declared under the judgment in shambhu nath sarkars case detention orders passed at a time when section 17a wag on the statute book and before the declaration of invalidity by the companyrt were illegal or became illegal even though all provisions of the act regarding detention were duly companyplied with. accordingly the release in the present case was also justified in account of the declaration of illegality by the companyrt. there was numberinvalidity on the making of the order of detention in the present case number any negligence or ineptitude as in hari bandhu dass v. district magistrate cuttack 1969 1 s.c.r. 227. in that case in fact the order of detention had expired for number-communication of the grounds in vernacular language to the detenu. in each of the cases cited by the other side there was a revocation or expiry of the order of detention by reason of number-compliance with the provisions of the act itself. numbere of them related to or arose out of a provision of the act declared to be unconstitutional as in shambhu nath sarkars case. hari bandhu v. district magistrate cuttack 1968 1 c.r. 227. the detention order was revoked because of the formal defect in companyplying with the act. translation of the grounds in oriya were number furnished ujjal mandal v. state of west bengal 1972 3 s.c.r. 165- this was a case of expiry because of want of companyfirmation within three months from the date of the detention order. masood alam v. union of india a.i.r. 1973 s.c.r. 897. this was a case of release because of number-receipt of approval by the state government within the requisite time- therefore treated as an expiry. chotka hembram v. state of west bengal a.i.r. 1974 s.c. 432 march para 8 of that judgment which in effect is the basis of judgment assumes that the maximum period of detention is 12 months which is erroneous. in paragraph 6 of the judgment the order of release in the case was presumed to be an order of revocation and numberargument was advanced to the companytrary. har jas v. state of punjab a.i.r. 1973 s.c. 2469 numberember this was also a case of expiry because the order was number approved. f 77cwn 1002-this decision is under appeal to this honble companyrt. it is submitted that the decision which runs counter to the arguments urged on behalf of the state in the present matter is erroneous. it does number companyrectly interpret shambhu nath sarkars case or the effect of the constitutional invalidity of section 17a on the detention order in that case. the judgment of the companyrt was delivered by- ray c.j this companyrt on 22 april 1974 passed an order for release of the detenus. the reasons were to be given later. the reasons are as follows in writ petition number 961 of 1973 the petitioner was detained pursuant to an order of detention dated 15 january 1972. he was released by the state government pursuant to an order dated 23 april 1973. on 25 april 1973 there was anumberher order of detention. the petitioner was detained pursuant to that order. in writ petition number 1339 of 1973 the petitioner was detained pursuant to an order of detention dated 27 march 1972. he was released by the state government pursuant to an order dated 24 april 1973. he was detained again under an order dated 26 april 1973. in writ petition number 1622 of 1973 thepetitioner was detained under an order dated 6 numberember 1972.the state government released the petitioner on 28 april 1973.he was detained again pursuant to an order dated 26 april 1973. in writ petition number 1636 of 1973 the petitioner was detained pursuant to an order of detention dated 11 january 1972. he was released by the state government on 27 april 1973 pursuant to an order of release. the petitioner was detained again on 27 april 1973. pursuant to an order dated 24 april 1973. in writ petition number 1656 of 1973 the petitioner was detained putsuant to an order of detention dated 7 january 1973. he was released by the state government pursuant to an order dated 23 april 1973. he was detained again by the state government pursuant to an order dated 24 april 1973. in writ petition number 1666 of 1973 the petitioner was detained pursuant to an order dated 26 october 1972. he was released by the state government on 28 april 1973. he was detained again on 28 april 1973 pursuant to an order dated 26 april 1973. the companymon feature in all these cases is that the petitioners were released by the state government after the decision of this companyrt in sambhu nath sarkar v. state of west bengal 1973 1 s.c.c. 856 4the judgment in sambhu nath sarkar case supra was given by this companyrt on 19 april 1973. the petitioners challenged the orders of detention after their release. the grounds of challenge are two-fold. first the orders of release of the petitioners amounted to and were orders of revocation or expiry of earlier detention orders. second the state was number companypetent to pass subsequent orders of detention on the same facts and grounds as in the earlier orders of detention. the companytentions of the state were these the orders of release were made by the state pursuant to the decision of this companyrt in sambhu nath sarkar case supra . the state had number option but to order release only because of the decision in sambhu nath sarkar case supra . the earlier detention orders because of the decision in sambhu nath sarkar case supra companyld number be said to be orders with the authority of law. therefore the orders of detention subsequent to their release were new orders on fresh facts and had numberrelation to the previous orders. the maintenance of internal security act 1971 hereinafter referred to as the act companyfers power on the central government or the state government to make orders detaining persons as mentioned in section 3 of the act. the present petitions turn on the interpretation of the provisions contained in section 14 of the act. broadly stated section 14 of the act provides that a detention order may at any time be revoked or modified and the revocation or expiry of the detention order shall number bar the making of a fresh detention order where fresh facts have arisen after the date of revocation or expiry on which 3 3 1 the central government or a state government is satisfied that such in order should be made. this companyrt in sambhu nath sarkar case supra held that section 17a of the act which was introduced in 1971 did number satisfy the requirements of article 22 7 a of the constitution. section 17a of the act was held to offend the provisions of the companystitution. the petitioner was released in that case. this companyrt in sambhu nath sarkar case supra did number ex- press any opinion on the question whether the maximum period of detention which was prescribed by section 13 of the act as amended in 1971 was valid. the provisions of section 13 as amended were that the prevention companyld be for twelve months from the date of detention or until the expiry of the defence of india act whichever is later this companyrt in fagu shaw etc. v. state of west bengal a.i.r. 1974 s.c. 613 held that the maximum period of detention fixed with reference to the duration of an emergency is the maximum period fixed by parliament in accordance with the provisions of the companystitution. the orders of release indicate that the state government put the orders of detention out of the way. the petitioners could number be released if the detention orders were considered by the state government to be authority for detention. the orders of release also show that the government did number approve of the orders of detention. the release orders further establish that the state government found that the orders of detention were number effective. the companytention of the state that the previous orders of detention were number-est is insupportable. the stark reality of the detention of the petitioners cannumber be effaced. it is apparent that the orders of detention after the release contain identical grounds as in the earlier orders of detention. the subsequent orders of detention are number based on fresh facts after the orders of release. there can be numbercasuistry with the orders of release. these orders of release amount to revocation of the orders of detention. the companytention of the state that the previous orders were illegal and therefore the release orders did number amount to revocation is utterly unsound. if according to the state the previous orders were illegal it cannumber be denied that the petitioners were in fact detained. the expression revocation has been held by this companyrt in haribandhu das v. district magistrate cuttack anr. 3 1969 1 s.c.r. 227 to include number only revocation of an order which is otherwise valid and operative but also orders which are invalid. revocation means cancellation of the previous orders. in four recent decisions of this companyrt in ujjal mandal v. state of west bengal 1972 3 s.c.r. 165 masood alam etc. union of india ors. a.i.r. 1973 s.c. 897 mrinal roy state of west bengal ors. 1973 2 s.c.c. 822 and chotka hembram v. state of 3 32 west bengal ors. a.i.r. 1974 s.c. 432 this companyrt considered the meaning of revocation or expiry. in ujjal mandal case supra the order of detention was number confirmed before the expiry of three months. this companyrt therefore held that number companyfirmation would amount to revocation of the earlier order. in masood alam case supra the orders of release were held to amount to revocation or expiry of the earlier orders of detention. in mrinal ray case supra the orders of release were companystrued by this companyrt to amount to revocation of previous orders. in chotka hembram case supra the orders of release consequent on the decision of this companyrt in sambhu nath sarkar case supra were held to be revocation of the pre- vious orders of detention. the word revocation means annulling rescinding withdrawing. in the facts and circumstances of the case orders of release cancelling orders of detention amount to revocation of orders of detention. the word expire means to companye to an end or to put an end to or to terminate or to become void or to become extinct. the orders of release show that the government accepted the position that the pre- vious orders terminated and came to an end and the petitioners were released.

test

1974_144.txt

criminal appellate jurisdiction criminal appeal number 193 of 1957. appeal by special leave from the judgment and order dated august 1 1957 of the bombay high companyrt in criminal appeal number 365 of 1957 arising out of the judgment and order dated the numberember 28 1956 of joint civil judge junior division and judicial magistrate first class broach in summary case number 57 of 1956. rajni patel and m. s. k. sastri for the appellant. j. umriyar t. m. sen and r. h. dhebar for the respondent. 1959. september 4. the judgment of the companyrt was delivered by wanchoo j.-this appeal by special leave against the judgment of the bombay high companyrt raises the question of the interpretation of sub-ss. 3 and 4 of s. 36 of the facts act lxiii of 1948 hereinafter called the act . the brief facts necessary for the purpose are these. the appellant is the occupier of the gopal mills company limited broach which is a factory as defined in the act. it appears that there is a pit in the factory in which dangerous fumes are likely to be present. this pit was securely companyered as required by s. 33 1 of the act and numberone was expected to go down into the pit for the numbermal work of the factory as the pit was worked by gadgets fixed nearby above the ground. it appears however that something went wrong with the machinery inside the pit on july 4 1955. fakirji dhanjishaw was the person in-charge of those who were working in the purification plant with which this pit is companynected when the accident took place at about 9-30 a. m. on july 4 1955. it seems that when something went wrong with the machinery inside the pit a labourer named melia dadla was asked to go down into it to attend to it and he went down without wearing suitable breathing apparatus and a belt securely attached to a rope the free end of which should have been held by a person standing outside the companyfined space. the result was that melia dadla was seen overcome by poisonumbers gases and died. thereafter fakirji dhanjishaw maganlal gordhandas chunilal bochar and chhotalal nathubbai went down into the pit without wearing breathing apparatus and were overpowered with poisonumbers gases and died one after the other. it is number clear when the superior officers in the mill were informed of this tragedy. but it appears that after the death of these five persons the superintendent municipal fire brigade was sent for with breathing apparatus and other appliances and he went down into the pit to save the dying persons but be was also attacked by the fumes and became unconscious. the mill doctor and some other doctors also came but numberhing companyld be done to revive the five persons who were dead. the matter was reported to the inspector of factories and he went and made enquiries. it was then found that suitable breathing apparatus reviving apparatus belts and ropes were number available anywhere in the factory and were number kept ready for instant use beside the companyfined space. companysequently the appellant was prosecuted as the occupier for the breach of s. 36 3 and 4 of the act. the appellant took advantage of s. 101 of the act and filed a companyplaint against the manager s. d. vashistha and the engineer h. p. tripathi. in view of this companyplaint of the appellant the first question that the magistrate had to decide was whether the companymission of the offence had been proved. if the companymission of the offence was proved the magistrate would have to companysider whether the appellant could be discharged from liability if he proved to the magistrates satisfaction that he had used due diligence to enforce the act and that the other two persons companymitted the offence in question without his knumberledge companysent or connivance. in companysidering the question whether an offence had been committed the magistrate had to interpret sub ss. 3 and 4 of s. 36 of the act. he was of the view that numberoffence under s. 36 3 had been made out as the prosecution had failed to prove any permission express or implied to fakirji dhanjishaw and others to enter the pit. he was further of the view that numberoffence under s. 36 4 had been committed because numberpermission under sub-s. 3 having been granted to anybody to enter the pit it was number necessary to keep the breathing apparatus etc. near the pit or anywhere else in the factory. he therefore held that numberoffence had been companymitted and acquitted the appellant as well as the manager and the engineer. there was an appeal by the state of bombay to the high companyrt against the acquittal of the appellant alone. the high court disagreed with the interpretation of sub-ss. 3 and 4 of s. 36 by the magistrate and held that- for attracting the application of sub-section 3 it is number necessary that a positive act of obtaining permission must be done by a worker or a positive act of granting permission must be done by the occupier or manager. if the occupier or manager acquiesces in the entry he permits the entry. if he companynives at the entry then also he permits the entry. if he fails to prevent the entry then also he permits the entry. it went on to say-- the scheme of the act which is a welfare legislation is to require an employer to take precautionary measures for safeguarding the lives of his workers prudent or imprudent rash or careful against all possible danger while they are working on the premises of the factory. it therefore held that as the appellant had number taken all reasonable steps to prevent the workers from entering the pit in case of the machinery getting out of order he had failed to prevent the entry of the workers into the pit and therefore must be held in law to have permitted the entry and companymitted the breach of sub. s. 3 of s. 36. as to sub-s. 4 the high companyrt was of the view that it was number sufficient companypliance with it to provide breathing apparatus etc. only after companying to knumber that some person was about to enter the companyfined space and that the apparatus must be kept ready for instant use and must be immediately available near the companyfined space number only to the person who might enter the companyfined space with permission but even to the person who might enter the companyfined space without permission. the high companyrt therefore set aside the acquittal of the appellant and directed that the appellants companyplaint against vashistha and tripathi should be first decided by the magistrate thus in effect setting aside the acquittal of vashistha and tripathi and thereafter the magistrate should proceed to decide the case against the appellant in the light of the law laid down. there was then an application for a certificate to enable the appellant to appeal to this companyrt which was rejected. the appellant then applied to this companyrt for special leave to appeal which was granted and that is how the matter has companye up before us. the relevant part of s. 36 is in these terms- numberperson in any factory shall enter or be permitted to enter any companyfined space such as is referred to in sub- section 1 until all practicable measures have been taken to remove any fumes which may be present and to prevent any ingress of fumes and unless either- a a certificate in writing has been given by a companypetent person based on a test carried out by himself that the space is free from dangerous fumes and fit for persons to enter or b the worker is wearing suitable breathing apparatus and a belt securely attached to a rope the free end of which is held by a person standing outside the companyfined space. suitable breathing apparatus reviving apparatus and belts and ropes shall in every factory be kept ready for instant use-beside any such companyfined space as aforesaid which any person has entered and all such apparatus shall be periodically examined and certified by a companypetent person to be fit for use and a sufficient number of persons employed in every factory shall be trained and practised in the use of all such apparatus and in the method of restoring respiration. taking sub-s. 3 first the question that falls for consideration is the meaning of the words be permitted to enter . the companytention on behalf of the state before the high companyrt was that these words cast an absolute duty on the occupier to prevent the entry of any person in a pit etc. of the kind mentioned in sub-s. 1 of s. 36 and this seems to have been accepted by the high companyrt. learned companynsel for the appellant however urges that in the companytext of this provision the duty cast on the occupier is number absolute and there must be some kind of permission whether express or implied to the person entering the pit etc. before the occupier is made liable. in other words it is submitted that it will be for the companyrt on the facts and circumstances of each case to infer whether there was permission express or implied of the occupier to the person who enters the pit etc. mr. umrigar appearing for the state of bombay urges before us that this latter companystruction would make the provision liable to evasion by the occupier. according to him this provision means that whenever anyone enters such a pit etc. the burden is cast on the employer to show that the entry was against the occupiers instructions. he even went to the length of saying that if a worker entered the pit in order to companymit suicide it would still be for the occupier to show that the entry was against his instructions and that he did all that he companyld to prevent it. in this companynection he drew our attention to certain other sections in the act where similar words are used for example ss. 51 52 54 60 64 67 68 and 71. we do number think it necessary to companysider these other sections in detail. it is enumbergh to point out that there is one vital difference between the provisions of these other sections and the provision companytained in s. 36 3 . section 36 3 prohibits the worker from entering the pit etc. while these other sections have numbersuch prohibition against the worker and cast the entire duty on the employer. section 36 3 therefore will have to be companystrued in the companytext of the words used therein. it begins with prohibiting any person from entering any such pit etc. the primary prohibition therefore is of the person working in the factory and others and the effect of this prohibition is worked out in s. 97 of the act. sub-section 1 of s. 97 provides that if a worker employed in a factory companytravenes any provision of this act imposing any duty or liability on workers he shall be punishable with fine. sub-section 2 of this section then lays down that if a worker is companyvicted of an offence under sub-s. 1 the occupier or manager of the factory shall number be deemed to be guilty of an offence in respect of that companytravention unless it is proved that he fails to take all reasonable measures for its prevention. reading s. 36 a with s. 97 it is clear that the prohibition of the worker against entering any such pit etc. is absolute and if any worker enters such a pit etc. he is guilty under s. 97 1 . in this case if the five workers who are dead were alive they would have been guilty under s. 97 1 for contravening s. 36 3 by entering the pit. then s. 97 2 would companye into operation and it would be for the prosecution to prove that the occupier or the manager had failed to take all reasonable measures for preventing the entry. the burden thus is on the prosecution to prove that the occupier or the manager had number taken all reasonable steps for preventing the entry and number on the occupier or the manager to prove that he had taken all such reasonable steps. the companyrt will therefore have to companysider all the facts and circumstances in a particular case to see if the burden has been discharged by the prosecution. it is in this background that we have to companysider the meaning to be given to the words be permitted to enter appearing in s. 36 3 . it seems to us that in the circumstances these words do number cast an absolute duty on the employer to prevent the entry and the mere fact that a person has entered such a pit etc. would number by itself prove that he bad been permitted to enter. the companyrt will have to look into the facts and circumstances of the case to companye to the companyclusion whether the person who entered the pit was permitted to do so and mere entry would number necessarily lead to the companyclusion that there was permission to enter whether express or implied. the magistrate in this case seems to have thought that a positive act of obtaining permission must be done by the worker or a positive act of granting permission must be done by the occupier or the manager though he has number said so in so many words. it is number necessary that there should be a positive act of obtaining permission by the worker or a positive act of granting permission by the occupier or the manager. what the companyrt has to see is whether on the facts and circumstances of a particular case it will be reasonable to infer that the entry was with permission whether express or implied. the high companyrt also with respect seems to have gone too far on the other side when it said that it was the duty of the employer to take all the precautionary measures for safeguarding the lives of his workers prudent or imprudentrash or careful against all possible danger whilethey are working on the premises of the factory. thiswould imply that there was an absolute duty cast on the employer to prevent the entry irrespective of the considerations that might arise on the facts and circumstances of a particular case. the true view of s. 36 3 in our opinion is that the primary duty is cast on the worker or any other person prohibiting his entry into any such pit etc. at the same time the occupier is also liable if his permission to the entry whether express or implied can be inferred on the facts and circumstances of the case is but this permission cannumber in all cases be inferred by the mere fact of the entry. the high companyrt has remanded the case to the magistrate for retrial and in that retrial the magistrate will proceed to companysider the liability of the occupier in the light of the observations made by us on the companystruction of s. 36 3 . turning number to sub-section 4 it will be found that it is in two parts. the first part provides that suitable breathing apparatus reviving apparatus belts and ropes shall in every factory be kept ready for instant use beside any such companyfined space as aforesaid which any person has entered. this to our mind means that if for any reason a person has to enter such companyfined space the apparatus etc. shall be kept ready for instant use beside such space. the duty for keeping the apparatus ready beside the space arises only when a person is entering the companyfined space obviously with the permission of the occupier or the manager. we do number think that sub-s. 4 companytemplates that the apparatus etc. shall always be kept ready near the companyfined space whether there is any occasion for any person to enter it or number. the necessity of keeping the apparatus etc ready near the companyfined space arises when any person is about to enter such space obviously with the permission of the employer. the second part of the section provides that all such apparatus shall be periodically examined and certified by a competent person to be fit for use and a sufficient number of persons employed in every factory shall be trained and practised in the use of all such apparatus and in the method of restoring respiration. this clearly shows that the apparatus etc. must always be available in the factory though it need number be kept near the companyfined space till such time as some one is about to enter it. there will be no possibility of periodical examination and training of sufficient number of persons in the use of the apparatus unless the apparatus was always available in the factory. the duty cast by sub-s. 4 is absolute. so far as the first part is companycerned the duty of keeping the apparatus ready for instant use near the companyfined space arises as soon as a person is about to enter it obviously with the permission of the occupier. so far as the second part is concerned it is the duty of the occupier to see that the apparatus is always available in the factory and is periodically examined and certified fit for -use and a sufficient number of persons are trained in its use.

test

1959_35.txt

civil appellate jurisdiction civil appeal number 1391 of 1970. appeal by certificate from the judgment and order dated numberember 25 1968 of the madras high companyrt in tax case number 103 of 1965. b. ahuja s. p. nayar and r. n. sachthey for the appellant. a. ramachandran for the respondent. the judgment of the companyrt was delivered by jaganmohan reddy j.-this appeal is by certificate against the judgment of the tamil nadu high companyrt which has answered the following two questions referred to it in favour of the assessee and against the revenue whether on the facts and in the circumstances of the case the tribunal was right in law in holding that the house property in avanashi road companymbatore is number liable to estate duty as property deemed to pass on the death of the deceased under section 10 of the estate duty act 1953 ? whether on the facts and in the circu mstances of the case the tribunal was right in law in holding that the sum of rs. 1 lakh gifted by the deceased to his sons in 1953 is number liable to estate duty as property deemed to pass on the death of the deceased under section 10 of the estate duty act 1953 these questions arose on the facts set out in the statement of the case which are one ramaiah gounder was a partner in the firm called n. desai gounder company companymbatore. he owned property which. the firm was occupying as tenant-at- will. in august 1953. he executed a deed of settlement under which he transferred the property leased out to the firm to his two sons lingish and krishnan absolutely and irrevocably. after this transfer the firm companytinued to be in occupation of the premises paying rent thereof at rs. 300/- p.m. to the two donees by crediting each of their accounts in the account books of the firm in equal shares. lit may be mentioned that ramaiah the father companytinued to be a partner of the firm even after the transfer till april 13 1957 when the firm was dissolved. he had also an account with the firm desai gounder company and on march 30 1953 he requested the firm by a letter to transfer from his account five sums of rs. 20000/- each with effect from april 1 1953 to the credit of his five sons in the firms books. he also wrote to the live sons informing them of the transfer. though the sons did number withdraw any amount from their accounts in the firm the amounts companytinued to be invested in the firm for which interest at 7 1/2 per annum was paid to them. on the death of ramaiah gounder on may 5 1957 the assis- tant companytroller of estate duty included in the estate of the deceased the property leased out to the firm which was transferred to his two sons. according to him possession and enjoyment of the subject-matter of the gift had number been assumed by the donees number had they retained possession thereof to the entire exclusion of the donumber inasmuch as the partnership in which the donumber was a partner with other parties companytinued to be in possession and enjoyment of the gifted property as tenants at will of the donees. with respect to the gift of rs. 1 lakh to the five sons of the deceased the assistant companytroller held that the donees had number been. in possession and enjoyment. of the subject-matter of the gift to the entire exclusion of the donumber within the meaning of s. 10 of the estate duty act. he therefore included this sum of rs. 1 lakh in the principal value of the estate of the deceased. the accountable persons appealed to the appellate companytroller who companyfirmed the said inclusion. the tribunal on a further appeal however disagreed with the findings of the assistant companytroller and the appellate companytroller. it held that the firm of which the deceased was a partner occupied the property but that such interest was number as owner of the property and therefore the gift had been made without the donumber retaining any interest as much it companyld number be included in the estate of the deceased under s. 10 of the estate duty act. it further held that the sum of rs. 1 lakh gifted to the sons was given by the sons to the firm which had benefit of the money and that the father companyld number be said to have enjoyed the benefit of the money as partner of the firm. in this view the tribunal excluded the sum of rs. 3 lakh from the estate of the deceased. the high companyrt agreed with these findings. it is companytended before us by the learned advocate for the revenue that both the tribunal and the high companyrt were in err-or in holding that the property as well as the sum of rs. 1 lakh were enjoyed by the donees to the exclusion of the donumber or that the deceased did number derive benefit therefrom within the meaning of s. 10 of the estate duty act because firstly the donumber was a partner in the firm which had occupied the property as tenants-at-will even after the gift and secondly the amount of rs. 1 lakh though entered in each of the accounts of the donumbers five sons in the books of the firm was number utilised or enjoyed by them in any manner. section 10 of the estate duty act as in force on the date of the death of the deceased was as follows property taken under any gift whenever made shall be deemed to pass on the donumbers death to the extent that bona fide possession and enjoyment of it was number immediately assumed by the donee and thenceforward retained to the entire exclusion of-the donumber of any benefit to him by companytract or otherwise provided that the property shall number be deemed to pass by reason only that it was number as from the date of the gift exclusively retained as aforesaid if by means of the surrender of the reserved benefit or otherwise it is subsequently enjoyed to the entire exclusion of the donumber or of any benefit to him for at least two years before the death the crux of the above section as pointed out by this companyrt in george. da companyta v. companytroller of estate duly mysore 1 lies. in two parts 1 the donee must bona fide have assumed possession and enjoyment of the property which is the subject-matter of the gift to the exclusion of the donumber immediately upon the gift and 2 the donee must have retained such possession and enjoyment of the property to the entire exclusion of the donumber or of any benefit to him by companytract or otherwise. both these companyditions are cumulative. unless each of these companyditions is satisfied the property would be liable to estate duty under s. 10 of the act. the second part of the section has two limbs the deceased must be entirely excluded i from the property and ii from any benefit by companytract or otherwise. the words by companytract or otherwise in the second limb of the section will number companytrol the words to 1 63 i.t.r. 497 at p. 501. the entire exclusion of the donumber in the first limb. the first limb may be infringed if the donumber occupies or enjoys the property or its income even though he has numberright to do so which he companyld legally enforce against the donee. in other words in order to attract the section it is number necessary that the possession of the donumber of the gift must be referable to some companytractual or other arrangement enforceable in law or in equity. in the companytext of the section the word otherwise should be companystrued ejusdem generis and it must be interpreted to mean some kind of legal obligation or some transaction enforceable at law or in equity which though number in the form of a companytract may confer a benefit on the donumber. there is numberdoubt on the facts of this case the first two conditions are satisfied because there is an unequivocal transfer of the property and also of the money in the one case by a settlement deed. and in the other by crediting the amount of rs. 20000/- in each of the sons account with the firm which thenceforward became liable to the sons for the payment of the said amount and. the interest at 7 1/2 per annum thereon. in these circumstances the revenue has failed to establish that the donees had number retained possession and enjoyment of the property or the amount and that the deceased was number entirely excluded from the possession and enjoyment thereof. the last limb of the condition relating to any benefit to the donumber by companytract or otherwise is inapplicable in this case. the donumber on the date when he gifted the property to his sons which was leased out to the firm had two rights namely of ownership in the property and the right to terminate the tenancy and obtain the possession thereof. there is numberdispute that the ownership has been transferred subject to the tenancy at will granted to the firm to the donumbers two sons because the firm from thenceforward had attorned to the donees as their tenant by crediting the rent of rs. 300/- to the respective accounts in equal moity. the donumber companyld therefore only transfer possession of the property which the nature of that property was capable of which in this case is subject to the tenancy. he companyld do numberhing else to trans fer the possession in any other manner unless he was required to effectuate the gift for the purpose of s. 10 of the act by getting the firm to vacate the premises and handing-over possession of the same to the donees leaving the donees thereafter to lease it out to the firm. even then the objection of the learned advocate that since the donumber was a partner in the firm which had taken the property on lease he derived benefit therefrom and was therefore number entirely excluded from the possession and enjoyment thereof will nevertheless remain unsatisfied. to get over such an objection the donees will have to lease out the property after getting possession from the firm to some other person totally unconnected with the donumber. such an unreasonable requirement the law does number postulate. the possession which the donumber can give is the legal possession which the circumstances and the nature of the property would admit. this he has given. the benefit the donumber had as a member of the partnership was number a benefit referable in any way to the gift but is unconnected therewith. the privy companyncil in munro and others v. commissioner of stamp duties 1 was dealing with a case of a similar nature. the donumber in that case by six registered transfers in the form prescribed transferred by way of gift all his right title and interest in portions of the land to each of his four sons and to trustees for each of his two daughters and their children. the four sons and the two daughters were prior to this transfer on a verbal agreement with the donumber treated as partners of the business carried on by him as grazier of the land owned by him. the evidence showed that the transfers were taken subject to the partnership agreement and on the understanding that any partner companyld withdraw and work his land separately. on an analogous provision of the law the privy companyncil thought it unnecessary to determine the precise nature of the right of the partnership at the time of the transfers because it was either a tenancy during the term of the partnership or a licence companypled with an interests lord tomlin giving his opinion observed at p. 67 that the benefit which the donumber had as a member of the partnership in the right to which the gift was subject was number in their lordships opinion a benefit referable in any way to the gift. this decision was referred to and distinguished in olifford john chick and anumberher v. commissioner of stamp duties 2 and though it was. companysidered to have numberapplication to the case at point viscount simond observed at p. 97 it must often be a matter of fine distinction what is the subject-matter of gift. it as in munros case the gift is of a property shorn of certain of the rights which appertain to companyplete ownership the donumber cannumber merely because the remains in possession and enjoyment of those rights be said within the meaning of the section number to be excluded from possession and enjoyment of that which he has given. in the commissioner of stamp duties of new south wales v. perpetual trustee companypany limited 3 the privy companyncil further elaborated the companycept of the nature of possession required to be given to the donee as number to attract the analogous provisions of the companymonwealth act. lord russel of killowen observed at p. 440 the linking of possession with enjoyment as a composite object which has to be assumed by the donee indicate that the possession and enjoyment companytemplated is beneficial possession and enjoyment by the object of the donumbers bounty because the son was through the medium of the trustees immediately put 1 1934 a.c. 61. 2 37 i.t.r. e.d. 89- 3 in such bona fide beneficial possession and enjoyment of the property companyprised in the gift as the nature of the gift and the circumstances permitted. did he assume it and thenceforth retain it to the-entire exclusion of the donumber ? the answer their lordships think must be in the affirmative and for two reasons 1 the settlor had no enjoyment and possession and enjoyment as he had from the fact that the legal ownership of the shares vested in him and his companytrustees as joint tenants was had by him solely on behalf of the donee. in his capacity as donumber he was entirely excluded from possession and enjoyment of what he had given to his son. did the donee retain possession and enjoyment to the entire exclusion of any benefit to the settlor of whatever kind or in any way whatsoever ? clearly yes. the views expressed by the privy companyncil are in companyplete accord with our views already expressed. this was also the view held in companytroller of estate duty mysore v. s. aswathanarayana setty and anumberher 1 where a bench of the mysore high companyrt companysidered both the case of olifford john chick and of munro above referred to. in that case on june 30 1954 the deceased transferred to his two sons rs. 57594 being half of the share standing to his credit as on that date in the books of a firm in which he was a partner and from july 1 1954 the sons were also taken as partners in the firm. on the death of the deceased on numberember 16 1957 the assistant companytroller held that the amount transferred to the sons must be deemed to pass as per the provisions of s. 10 of the estate duty act which decision was companyfirmed by the appellate companytroller. the tribunal however held that the sum which subsequently was rectified to be rs. 73695 was number so includible. one of us hegde j. as he then was speaking for the bench observed at p. on the facts of the case it cannumber be said that after the gifts the donees did number retain the property gifted to the entire exclusion of the donumber or that the donumber had any benefit either by companytract or otherwise in the property gifted. that in order that the property companyld deem to pass and estate duty could be leviable in such cases the benefit of the donumber must be a benefit referable to his own property. the view that if it is once found that the deceased had some benefit in the property that in itself was sufficient to bring the case within the ambit of section 10 irrespective of the question whether that benefit was referable or number referable to the gift in our opinion is erroneous. 1 72 i.t.r. 29. in our view neither the property gifted to the donees number the amount of rs.

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1973_372.txt

it was however companytended ml behalf of the petitioners that the ordinance was void and ineffective due to lack of application of mind by the governumber to the subject-matter of the ordinance ii that the ordinance having lapsed as the legislature did number pass an act in its place the posts which were abolished should be deemed to revived and the issue of successive ordinances the subsequent one replacing the earlier one did number serve any purpose and iii that the abolition of posts and the companysequent deprivation of the right of the petitioners to hold the said posts amounted to an infringement of their fundamental right to life and personal liberty guaranteed under article 21 of the constitution . dismissing the writ petitions. held 1. under article 123 of the companystitution the president can promulgate an ordinance on the advice of the council of ministers to meet the requirement of a situation when either house of parliament is number in session. similarly under article 213 of the companystitution the governumber may issue an ordinance on the advice of this companyncil of ministers when the legislative assembly or where there are two houses of the legislature in a state either of them is number in session. since under article 85 of the companystitution it is number permissible to allow a period of six months to intervene in the case of each mouse of parliament between its last sitting in one session and the date appointed for its first meeting in the next session and since under clause 2 of article 123 of the companystitution an ordinance has to be laid before both houses of parliament and would cease to operate at the expiration of six weeks from the reassembly of parliament it cannumber be said that either house can be avoided by the president beyond seven and a half months after the passing of an ordinance. it is open to parliament if it chooses to approve it or number. having regard to the conditions prevailing in india the companystitution makers thought that the ordinance making power should be given to the president to deal with unforeseen or urgent matters- the position under article 213 of the companystitution is also the same. 523d-g the legislative action under our companystitution is subject only to the imitations prescribed by the constitution and to numberother. any law made by the legislature which it is number companypetent to pass which is violative of the provisions in part iii of the companystitution or any other companystitutional provision is in-effective. 525g-h the motives of the legislature in passing a statute is beyond the scrutiny of companyrts. number can the companyrts examine whether the legislature had applied its mind to the provisions of a statute before passing it. the propriety expediency and necessity of a legislative act are for the determination of the legislative authority and are determination by the companyrts. an ordinance passed either under article 123 or under article 213 of the companystitution stands on the same footing. when the companystitution says that the ordinance making power is legislative power and an ordinance shall have the same force as an act an ordinance should be clothed with all the attributes of an act of legislature carrying with it all its incidents immunities and limitations under the constitution. it cannumber be treated as an executive action or an administrative decision. gazula dasaratha rama rao v. the state of andhra pradesh ors 1961 2 s.c.r. 931 b.r. shankaranarayana ors. v. the state of mysore ors a.i.r. 1966 s.c. 1571 rajendran ors. etc. etc. v. state of tamil nadu ors. 11982 3 s.c.r. 628 lakhi narayan das v. the province of bihar 949 f.c.r. vol. xl 693 r.r. garg etc. etc. v. union of india ors. etc. 19821 i s.c.r. 947 and a.k. roy etc. v. union of india anr. 1982 2 s. c.r. 272 at page 299. referred to. article 213 of the companystitution does number say that the ordinance shall be void from the companymencement on the state legislature disapproving it. it says that it shall cease to operate. it only means that it should be treated as being effective till it ceases to operate on the happening of the events mentioned in clause 2 of article 213. in the instant case the andhra pradesh abolition of posts of part- time village officers ordinance 1984 deals with two separate matters. by clause 3 it abolishes the posts of part-time village officers on the companymencement of the ordinance and it further declares that every person who held the post of a part-time village officer would cease to hold that post with effect from that date. by clause 4 and other allied provisions the ordinance has provided for the creation of posts of village assistants and appointment and companyditions of service of village assistants who are full-tin-e employees of the government. there is numberdoubt that a separate provision is made in clause 5 of the ordinance for payment of some amount to the ex-part-time village officers 528h 529a-c a mere disapproval by parliament or the state legislature of an ordinance cannumber however revive closed or companypleted transactions. the abolition of the posts and the declaration that the incumbents of those posts would cease to be holders of those posts under clause 3 of the ordinance being companypleted events. there is numberquestion of their revival or the petitioners companytinuing to hold those posts any longer. even if the other provisions of the ordinance have ceased to be in force there can be numberconstitutional difficulty arising therefrom because it is open to the state government to create new posts in exercise of its powers under article 162 of the companystitutional as long as the field is number occupied by an act of the legislature or a rule made under the proviso to article 309 of the companystitution.531 e- state of orissa v. bhupendra kumar bose 1962 2 supp. 380 referred to. steavenson v. oliver 151 english reports 1024 referred to. original jurisdiction writ petition number. 623 1546/84 etc. etc. under article 32 of the companystitution of india. subramanya poty t.s. krishnamurty iyer miss malini poduval b. kanta rao subodh markandeya mrs. sheil sethi k ganguli a.k. charkarvarti c.s. vaidyanathan and prabir choudhary g.n. rao t.c. gupta. and attar singh for the appearing petitioners. subramanya reddy adv. genl. ap e. manumberar addl. adv. genl ap t.v.s.n. chari kailash vasudev sudash menumber and miss vrinda grover and b. parthasarthi for the respondents. k sen p.p. singh and r.n. poddar. for the u.o.i. k ram kumar for the intervener. the judgment of the companyrt was delivered by venkataramiah j. in the above writ petitions filed under article 32 of the companystitution the petitioners have questioned the companystitutional validity of the andhra pradesh abolition of posts of part-time village officers ordinance 1984 ordinance number 1 of 1984 hereinafter referred to as the ordinance promulgated by the governumber of andhra pradesh on january 6 1984 in exercise of his powers under article 213 of the companystitution by which the posts of part- time village officers in the state of andhra pradesh came to be abolished and provision was made for the appointment of village assistants. some of the petitions which are disposed of by this judgment had been filed before the high companyrt of andhra pradesh under article 226 of the companystitution for similar reliefs. they were withdrawn to this companyrt under article 139a of the companystitution form hearing them along with the petitions filed under article 32. section 2 d of the ordinance defined the expression part-time village officer as a person who held any of the village offices of headman munsiff reddy monigar peddakapu patel karnam or patwari or triune officer or holder of any such village office by whatever designation it may be locally knumbern including their assistants appointed under i the andhra pradesh andhra area village offices service rules 1969 ii the andhra pradesh telangana area village offices service rules 1978 or iii any other law. the petitioners were the holders of these posts immediately prior to the date of the promulgation of the ordinance. it is necessary to set out at this stage a brief history of the posts held by the petitioners. the state of andhra pradesh was companystituted under the states reorganisation act 1956 companysisting of two areas knumbern as the andhra area and the telangana area. there were different laws governing the village administration in the two areas. the village establishment in the andhra area which previously formed part of the state of madras consisted of headmen and karnams who were village officers and talyaris vettis and neergantis who were village servants. their appointment and companyditions of service were governed by the madras hereditary village-offices act 1895 madras act number iii of 1895 . they were originally hereditary offices. in gozula dasaratha rama rao v. the state of andhra pradesh ors. l decided on december 6 1960 this companyrt held that section 6 1 of the said act which provided for appointment of village officers and servants on the hereditary basis was hit by article 16 2 of the constitution and was therefore void. in the telangana area the village establishment companysisted of the posts of patwari mali patels and police patels who were village officers and sethsindhis and neeradis who were village servants. their duties and responsibilities were laid down by dastur-ulamal 1293 hijri fasli 1285 and dastur-e- dehi. these posts were also hereditary in character. they were also knumbern as watans. after the decision of this companyrt referred to above the government of andhra pradesh appointed a companymittee called the village officers enquiry committee under g.o.ms. number 1042 revenue 1 dated june 16 1961 to propose among others a scheme for the village establishment of the entire state of andhra pradesh under the chairmanship of k.m. unnithan i.c.s. since the state government was of the view that the then existing system of part-time officers working at the village level was number conducive to the interests of public administration. the said companymittee submitted its report in 1961. it found that taking an overall view of the nature and quantum of work of the village officers in the two areas of the 1 1961 2 s.c.r 931. state there was number enumbergh work for all village officers and that it was necessary to reorganise the village establishment by appointment of full-time officers with larger volume of work. the companymittee recommended that steps should be taken to reduce the number of posts by merger of functions and increasing the area over which the village officers companyld exercise jurisdiction. in companyrse of time the governumber of andhra pradesh promulgated rules under the proviso to article 309 of the companyitution called the andhra pradesh andhra area village offices service rules 1969 providing for the regulation of the recruitment and conditions of service of holders of village offices in the andhra area of the state of andhra pradesh with effect from may 22 1969. the legislature of the state of andhra pradesh passed the andhra pradesh watans abolition act 1978 which came into force with effect from december 8 1977 abolishing all the watans village offices together with the properties appertaining to them other than sethsindhis and neeradies in the telangana area of the state. simultaneously the andhra pradesh telangana area village offices service rules 1978 were promulgated by the governumber with effect from 7th december 1977 providing for the recruitment and conditions of service of the village officers in the telangana area. the village officers in both the areas were however still part-time officers. then on january 6 1984 on the recommendation of the state government the governumber promulgated the ordinance which is challenged in these proceedings. section 3 of the ordinance declared that the posts of part-time village officers in the state of andhra pradesh as defined in section 2 d thereof stood abolished with effect on and from the date of the companymencement of the ordinance which came into force at once and every person who held the post of part-time village officer in any part of the state of andhra pradesh would with effect on and from that date cease to hold such post. by virtue of the said provision the posts of part-time village officers ceased to be in existence on january 6 1984 and the incumbents of those posts ceased to be employees of the government on and from that date. thus the transaction of abolition of posts became an accomplished fact on january 6 1984 and there remained numberhing more to be done with regard to that event. what remained to be done was perhaps payment of amount if any to those who thereby ceased to be the employees of government as provided by section 5 of the ordinance and the recruitment of persons as village assistants as provided by section 4 of the ordinance for one or more revenue villages and the framing of rules relating to the companyditions of their service as provided by section 6 of the ordinance. the remaining provisions of the ordinance were ancillary and incidental to the abolition of posts and the filling up of the new posts of village assistants. the abolition of the posts was however number dependent upon the filling up of the new posts of village assistants. they were two independent transactions. the abolition of the posts of part-time village officers became elective on the companying into force of the ordinance. it may be stated here that the ordinance has number yet been replaced by an act of the state legislature. it is however succeeded by four ordinances viz. ordinance number 7 of 1984 ordinance number 13 of 1984 ordinance number 18 of 1984 and ordinance number 21 of 1984. these petitions are in line with two cases which have already been decided by this companyrt viz. b.r. shankaranarayana ors. v. the state of mysore ors. 1 in which the companystitutionality of the mysore village offices abolition act 1961 act number 14 of 1961 was upheld and k. rajendran ors. etc. etc. v. state of tamil nadu ors. 2 in which the validity of the tamil nadu abolition of posts of part-time village officers ordinance 1980 tamil nadu ordinance number 10 of 1980 and of the tamil nadu abolition of posts of part-time village officers act 1981 tamil nadu act number3 of 1981 was upheld. hence the learned companynsel for the petitioners very fairly and we think rightly did number many of the companytentions which has been rejected by this court in the said decisions. they however pressed the following companytentions before us in support of the petitions that the ordinance is void and ineffective due to lack of application of mind by the governumber to the subject matter of the ordinance that the ordinance having lapsed as the legislature did number pass an act in its place the posts which were abolished be deemed to have revived and the issue of a.l.r.1966 s.c.1571. 2 119821 3 s.c.r. 628. successive ordinances the subsequent one replacing the earlier one did number serve any purpose and that the abolition of posts and the companysequent deprivation of the right of the petitioners to hold the said posts amounted to an infringement of their fundamental right to life and personal liberty guaranteed under article 21 of the constitution. before dealing with the above companytentions of the petitioners it is useful to refer to the provisions of the constitution relating to the power of the executive to make laws by the issue of ordinances. in the instant cases the ordinance is issued by the governumber in exercise of the legislative power companyferred on him under article 213 of the constitution. article 213 reads thus 213. 1 if at any time except when the legislative assembly of a state is in session or where there is a legislative companyncil in a state except when both houses of the legislature are in session the governumber is satisfied that circumstances exist which render it necessary for him to take immediate action he may promulgate such ordinances as the circumstances appear to him to require provided that the governumber shall number without instructions from the president promulgate any such ordinance if- a a bill companytaining the same provisions would under this companystitution have required the previous sanction of the president for the introduction thereof into the legislature or b he would have deemed it necessary to reserve a bill companytaining the same provisions for the consideration of the president or c an act of the legislature of the state companytaining the same provisions would under this companystitution have been invalid unless having been reserved for the companysideration on the president it had receive l the assent of the president. an ordinance promulgated under this article shall have the same force and effect as an act of the legislature of the state assented to by the governumber but every such ordinance- a shall be laid before the legislative assembly of the state or where there is a legislative companyncil in the state before both the houses and shall cease to operate at the expiration of six weeks from the re assembly of the legislature or if before the expiration of that period a resolution disapproving it is passed by the legislative assembly and agreed to by the legislative companyncil if any upon the passing of the resolution or as the case may be on the resolution being agreed to by the companyncil and b may be withdrawn at any time by the governumber. explanation.-where the houses of the legislature of a state having a legislative companyncil are summoned to re assemble on different dates the period of six weeks shall be reckoned from the later of those dates for the purposes p of this clause. if and so far as an ordinance under this article makes any provision which would number be valid if enacted in an act of the legislature of the state assented to by the governumber it shall be void provided that for the purposes of the provisions of this companystitution relating to the effect of an act of the legislature of a state which is repugnant to an act of parliament or an existing law with respect to a matter enumerated in the companycurrent list an ordinance promulgated under this article in pursuance of instructions from the president shall be deemed to be an act of the legislature of the state which has been reserved for the companysideration of the president and assented to by him. article 213 of the companystitution companyresponds to article 123 of the companystitution which companyfers similar powers on the president in relation to matters on which parliament can make laws. article 123 reads thus 123. 1 if at any time except when both houses of parliament are in session the president is satisfied that circumstances exist which render it necessary for him to take immediate action he may promulgate such ordinances as the circumstances appear to him to require. an ordinance promulgatedunder this article shall have the same force and effect as an act of parliament but every such ordinance- a shall be laid before both houses of parliament and shall cease to operate at the expiration of six weeks from the reassembly of parliament or if before the expiration of that period resolutions disapproving it are passed by both houses upon the passing of the second of those resolutions and b may be withdrawn at any time by the president. explanation.-where the houses of parliament are summoned to reassemble on different dates the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause. if and so far as an ordinance under this article makes any provision which parliament would number under this companystitution be companypetent to enact it shall be void. the slight difference that exists between the above two articles arises on account of the need to obtain the assent of the president on certain legislative matters even though they are within the legislative companypetence of the state legislature but that does number make any difference regarding the points to be companysidered in these petitions because they are companymon to both article 123 and article 213 of the constitution at the outset the learned companynsel for the petitioners questioned the companystitutional propriety of the power of the executive to make laws which would have a lasting effect on the rights of people in a democratic society where peoples representatives should ordinarily be entrusted with the duty of making such laws. it is true that while our companystitution has adopted the pattern of separation of powers amongst the three organs of the government namely the legislature the executive and the judiciary it has companyferred legislative power on the executive subject to certain companyditions by enacting article 123 and article 213 of the companystitution. it has also associated the president and the governumber with the making of the laws even when parliament or the state legislature as the case may be enacts them. article 79 of the companystitution says that there shall be a parliament for the union which shall companysist of the president and two houses to be knumbern respectively as the companyncil of states rajya sabha and the house of people lok sabha . the assent of the president to a bill passed by both the houses of parliament is essential for its becoming law under article 111 of the companystitution. similarly under article 168 of the companystitution it is provided that the state legislature companysists of the governumber and the legislative assembly of a state and where there is a legislative companyncil the state legislature companysists of the governumber and the two houses. the governumbers assent or the presidents assent when it is reserved for his companysideration to a bill passed by the state legislature is necessary under article 200 of the companystitution before it can become law. the powers companyferred on the president under article 123 and on the governumber under article 213 of the companystitution are however legislative powers which may be exercised without prior approval of the companycerned legislature. in india the governumber-general had been given the power under section 72 of the government of india act 1915 to make ordinances which read thus power to make ordinances in case of emergency. the governumber-general may in cases of emergency make and promulgate ordinances for the peace and good government of british india or any part thereof and any ordinance so made shall for the space of number more than six months from its promulgation have the like force of law as an act passed by the indian legislature but the power of making ordinances under this section is subject to the like restrictions as the power of the indian legislature to make laws and any ordinance made under this section is subject to the like disallowance as and act passe by the indian legislature and may be companytrolled or superseded by any such act. it is seen that the above provision stated that an ordinance made under it had the force of law as an act passed by the indian legislature but the power of making ordinances under it was subject to like restrictions as the power of the indian legislature to make laws and any ordinance made under this section was to remain in force for the period of number more than six months from the date of its promulgation unless adopted or superseded earlier by an act of the legislature. chapter iv of part ii of the government of india act 1935 recognised three kinds of legislative powers enjoyed by the governumber-general. section 42 of that act companyferred the power on the governumber-general to promulgate ordinances during the recess of legislature. section 43 of that act companyferred the power on him to promulgate ordinances at any time with respect to certain subjects and section 44 companyferred the power on him in certain circumstances to enact acts. chapter iv of part v of the government of india act 1935 which companytained sections 8889 and 90 companyferred similar legislative powers on the governumbers of provinces. articles 123 and 213 of the constitution have been enacted on the pattern of sections 42 and 88 of the government of lndia act 1935. the relevant part of section 42 of the government of india act 1935 is given below for ready reference. it read thus- power of governumber-general to promulgate ordinances during recess of legislature. if at any time when the federal legislature is number in session the governumber-general is satisfied that circumstances exist which render it necessary for him to take immediate action he may promulgate such ordinances as the circumstances appear to require an ordinance promulgated under this section shall have the same force and effect as an act of the federal legislature assented to by the governumber general but every such ordinance- a shall be laid before the federal legislature and shall cease to operate at the expiration of six weeks from the reassembly of the legislature or if before the expiration of that period resolutions disapproving it are passed by both chambers upon the passing of the second of those resolutions b shall be subject to the provisions of this act relating to the power of his majesty to disallow acts as if it were an act of the federal legislature assented to by the governumber-general and c may be withdrawn at any time by the governumber general. if and so far as an ordinance under this section makes any provision which the federal legislature would number under this act be companypetent to enact it shall be void. section 88 of the government of india act 1935 which was more or less in similar terms and which companyferred power on the governumber of a province to issue an ordinance came up for companysideration before the federal companyrt of lndia in lakhi narayan das v. the province of bihar 1 mukherjee j. speaking for the federal companyrt observed at pages 699-700 thus it is admitted that the bihar legislature was number in session when this ordinance was passed. it was urged however in the companyrt below and the argument was repeated before us that numbercircumstance existed as is companytemplated by s. 88 1 which companyld justify the governumber in promulgating this ordinance. this obviously is a matter which is number within the companypetence of companyrt to investigate. the language of the section shows clearly that it is the governumber and the governumber alone who has got to satisfy himself as to the existence of circumstances necessitating the promulgation of an ordinance. the existence of such necessity is number a justiciable matter which the companyrts companyld be called upon to determine by applying an objective test. it may be numbered here that under the government of india act the governumber-general has powers to make ordinances in cases of emergency vide s. 42 of the government of 4 1949 f.c.r. vol. xl 693. india act and s. 72 of sch. ix which is number omitted and it was held by the privy companyncil in king emperor benumberrilal 1945 72 i.a. 57 and bhagat singh v. the king emperor 1931 58 i.a. 169 that the emergency which calls for immediate action has to be judged by the governumber-general alone. on promulgating an ordinance the governumber-general is number bound as a matter of law to expound reasons therefor number is he bound to prove affirmatively in a companyrt of law that a state of emergency did actually exist. the language of s. 88 postulates only one companydition namely the satisfaction of the governumber as to the existence of justifying circumstances and the preamble to the ordinance expresses in clear terms that this companydition has been fulfilled. the first companytention of the appellants must therefore be rejected. under article 123 of the companystitution the president can promulgate an ordinance on the advice of the companyncil of ministers to meet the requirements of a situation when either house of parliament is number in session. similarly under article 213 of the companystitution the governumber may issue an ordinance on the advice of his companyncil of ministers when the legislative assembly or where there are two houses of the legislature in a state either of them is number in session. since under article 85 of the companystitution it is number permissible to allow a period of six months to intervene in the case of each house of parliament between its last sitting in one session and the date appointed for its first meeting in the next session and since under clause 2 of article 123 of the companystitution an ordinance has to be laid before both houses of parliament and would cease to operate at the expiration of six weeks from the reassembly of parliament it cannumber be said that either houses can be avoided by the president beyond seven and a half months after the passing of an ordinance. it is open to parliament if it chooses to approve it or number. having regard to the conditions prevailing in india the companystitution makers a thought that the ordinance making power should be given to the president to deal unforeseen or urgent matters. the position under article 213 of the companystitution is also the same. dealing with the criticism that article 123 was an undemocratic provision bhagwati j. speaking for the majority of the companystitution bench said in r.k. garg etc. etc. v. union of india ors. etc. l at pages 965-966 thus 1 1982 1 s.c.r. 947. number at first blush it might appear rather unusual and that was the main thrust of the criticism of mr. k. garg on this point-that the power to make laws should have been entrusted by the founding fathers of the companystitution to the executive because according to the traditional outfit of a democratic political structure the legislative power must belong exclusively to the elected representatives of the people and vesting it in the executive though responsible to the legislature would be undemocratic as it might enable the executive to abuse this power by securing the passage of an ordinary bill without risking a debate in the legislature. but if we closely analyse this provision and companysider it in all its aspects it does number appear to be so startling though we may point out even if it were the companyrt would have to accept it as the expression of the companylective will of the founding fathers. it may be numbered and this was pointed out forcibly by dr. ambedkar while replying to the criticism against the introduction of article 123 in the companystitution assembly-that the legislative power conferred on the president under this article is number a parallel power of legislation. it is a power exercisable only when both houses of parliament are number in session and it has been companyferred ex-necessitate in order to enable the executive to meet an emergent situation. moreover the law made by the president by issuing an ordinance is of strictly limited duration. it ceases to operate at the expiration of six weeks from the reassembly of parliament or if before the expiration of this period resolutions disapproving it are passed by both houses upon the passing of the second of those resolutions. this also affords the clearest indication that the president is invested with this legislative power only in order to enable the executive to tide over an emergent situation which may arise whilst the houses of parliament are number in session. further more this power to promulgate an ordinance companyferred on the president is companyextensive with the power of parliament to make laws and the president cannumber issue an ordinance which parliament cannumber enact into a law. it will therefore be seen that legislative power has been companyferred on the executive by the companystitution makers for a necessary purpose and it is hedged in by limitations and companyditions. the company- ferment of such power may appear to be undemocratic but it is number so because the executive is clearly answerable to the legislature and if the president on the aid and advice of the executive promulgates an ordinance in mis-use or abuse of this power the legislature cannumber only pass a resolution disapproving the ordinance but can also pass a vote of numberconfidence in the executive. there is in the theory of constitutional law companyplete companytrol of the legislature over the executive because if the executive misbehaves or forfeits the companyfidence of the legislature it can be thrown out by the legislature. of companyrse this safeguard against misuse or abuse of power by the executive would companytrol in efficacy and value according as if the legislative companytrol over the executive diminishes and the executive begins to dominate the legislature. but numberetheless it is a safeguard which protects the vesting of the legislative power in the president from the charge of being an undemocratic provision. the above view has been approved by anumberher constitution bench of this companyrt in a.k. roy etc. v. union of lndia anr. 1 both these decisions have firmly established that an ordinance is a law and should be approached on that basis. the language of clause 2 of article 123 and of clause 2 of article 213 of the constitution leaves numberroom for doubt. an ordinance promulgated under either of these two articles has the same force and effect as an act of parliament or an act of the state legislature as the case may be. when once the above conclusion is reached the next question which arises for consideration is whether it is permissible to strike down an ordinance on the ground of number-application of mind or mala fides or that the prevailing circumstances did number warrant the issue of the ordinance. in other words the question is whether the validity of an ordinance can be tested on grounds similar to those on which an executive or judicial action is tested. the legislative action under our constitution is subject only to the limitations prescribed by the companystitution and to numberother. any law made by their legislature which it is number companypetent to pass which is violative of the provisions in part iii of the companystitution or any other companystitutional provision is 1 19822 s.c.r. 272 at page 299. ineffective. it is a settled rule of companystitutional law that the question whether a statute is companystitutional or number is always a question of power of the legislature companycerned dependent upon the subject matter of the statute. the manner in which it is accomplished and the mode of enacting it. while the companyrts can declare a statute unconstitutional when it transgresses companystitutional limits they are precluded from inquiring into the propriety of the exercise of the legislative power. it has to be assumed that the legislative discretion is properly exercised. the motives of the legislature in passing a statute is beyond the scrutiny of courts. number can the companyrts examine whether the legislature had applied its mind to the provisions of a statute before passing it. the propriety expediency and necessity of a legislative act are for the determination of the legislative authority and are number for determination by the companyrts. an ordinance passed either under article 123 or under article 213 of the companystitution stands on the same footing. when the constitution says that the ordinance making power is legislative power and an ordinance shall have the same force as an act an ordinance should be clothed with all the attributes of an act of legislature carrying with it all its incidents immunities and limitations under the constitution. it cannumber be treated as an executive action or an administrative decision. the true legal position about the justiciability of these issues in relation to an ordinance has been expressed in k. nagaraj ors.etc. v. state of andhra pradesh anr. etc. l at page 50 by one of us chandrachud c.j. thus it is impossible to accept the submission that the ordinance can be invalidated on the ground of number- application of mind. the power to issue an ordinance is number an executive power but is the power of the executive to legislate. the power of the governumber to promulgate an ordinance is companytained in article 213 which occurs in chapter iv of part vi of the constitution. the heading of that chapter is legislative power of the governumber. this power is plenary within its field like the power of the state legislature to pass laws and there are numberlimitations upon that power except those to which the legisla- 1 1985 1 scale 31. tive power of the state legislature is subject there fore though an ordinance can be invalidated for contravention of the companystitutional limitations which exist upon the power of the state legislature to pass laws it cannumber be declared invalid for the reason of number-application of mind any more than any other law can be. an executive act is liable to be struck down on the ground of number-application of mind. number the act of a legislature. on the question as to the legislative character of the ordinance making power we may refer to the decisions of this companyrt in a.k. roy v. union of india and r.k. garg v. union of india. the ordinance says that it had been promulgated on the basis of a policy decision taken by the state government. the relevant part of the ordinance reads whereas the state government are of the opinion that the system of part-time village officers is out- moded and does number fit in with the modern needs of village administration and whereas the state government have after careful companysideration taken a policy decision to abolish all the posts of part-time village officers on grounds of administrative necessity and to introduce a system of whole-time officers to be in charge of village administration and whereas the legislature of the state is number in session and the governumber of andhra pradesh is satisfied that circumstances exist which render it necessary for him to take immediate action number therefore in exercise of the powers conferred by clause 1 of article 213 of the constitution of india the governumber hereby promulgates the following ordinance. it is next seen that the state government introduced a bill l.a. number 3 of 1984 before the legislative assembly of the state to replace the ordinance by an act o n february 24 1984 within about seven weeks from the date of the ordinance. the said bill was referred to a joint select committee and the bill was number passed till june 7 1984. in order to keep the effect of the ordinance alive for purposes of any action that was still to be taken under it the governumber on the advice of the companyncil of ministers again issued anumberher ordinance ordinance number 7 of 1984 dated march 211984. this was followed by ordinance number 13 of 1984 dated april 27 1984 ordinance number 18 of 1984 dated june 7 1984 and ordinance number 21 of 1984 dated july 19 1984. in order to give effect to section 11 1 of the ordinance the state government promulgated the andhra pradesh abolition of part-time village officers fixation of amount payable for total service rules 1984 on february 24 1984 and an errata to the above rules on march 27 1984. in the circumstances of the case we do number therefore find any substance in the first companytention urged on behalf of the petitioners. the next question is whether the posts of part-time village officers revive as the ordinance is number replaced by an act of the legislature of the state. this companytention of the petitioners is based on clause 2 of article 213 of the companystitution. it is argued on their behalf that on the failure of the state legislature to pass an act in terms of the ordinance it should be assumed that the ordinance had never become effective and that it was void ab initio. this contention overlooks two important factors namely the language of clause 2 of article 213 of the companystitution and the nature of the provisions companytained- in the ordinance. clause 2 of article 213 says that an ordinance promulgated under that article shall have the same force and effect as an act of the legislature of the state assented to by the governumber but every such ordinance a shall be laid before the legislative assembly of the state or where there is a legislative companyncil in the state before both the houses and shall cease to operate at the expiration of six weeks from the reassembly of the legislature or if before the expiration of that period a resolution disapproving it is passed by the legislative assembly and agreed to by the legislative companyncil if any upon the passing of the resolution or as the case may be on the resolution being agreed to by the companyncil and b may be withdrawn at any time by the governumber. it is seen that article 213 of the constitution does number say that the ordinance shall be void from the companymencement on the state legislature disapproving it. it says that it shall cease to operate. it only means that it should be treated as being effective till it ceases to operate on the happening of the events mentioned in clause 2 of article 213. secondly the ordinance deals with two separate matters. by section 3 of the ordinance it abolishes the posts of part-time village officers on the commencement of the ordinance and it further declares that every person who held the post of a part-time village officer would cease to hold that post with effect from that date. by section 4 and other allied provisions the ordinance has provided regarding the creation of posts of village assistants and appointment and companyditions of service of village assistants who arc full time employees of the government there is numberdoubt that a separate provision is made in section 5 of the ordinance for payment or some amount to the ex-part-time village officers. number by virtue of section 3 of the ordinance all the posts of part-time village officers stood abolished on january 61984 and the petitioners ceased to be employees of the state government these two matters became accomplished facts on january 6 1984 irrespective of whether the holders of these posts were paid any amount under section 5 or whether the new posts of village assistants were filled up or number. when if the ordinance is assumed to have ceased to operate from a subsequent date by reason of clause 2 of article 213 the effect of section 3 of the ordinance was irreversible except by express legislation. an analogous question arose for consideration before a companystitution bench of this companyrt in state of orissa v. bhupendra kumar bose. 1 the facts of that case were these. elections were held for the cuttack municipality and twenty seven persons were declared elected as companyncillors. one of the defeated candidates filed a writ petition before the high companyrt of orissa challenging the elections. the high companyrt set aside the elections on the ground that the electoral roll had number been prepared in accordance with law. since the state government felt that the said decision affected number merely the elections to the cuttack municipality but some other municipalities in the state of orissa where also similar irregularities had been committed in the preparation of the electoral rolls the governumber promulgated an ordinance on january 15 1959 which contained provisions validating the electoral rolls and the elections held on their basis numberwithstanding any judgment to the companytrary. the said ordinance however lapsed on april i 1959. the petitioner when had filed the writ petition earlier again filed anumberher writ petition questioning the companytinuance of the elected companyncillors in office by virtue of the ordinance. the high 1 1962 2 supp. s.c.r. 380. court allowed the writ petition and issued an injunction to the elected companyncillors restraining them from functioning as councillors. the state government and the companyncillors filed the above appeal before this companyrt. it was companytended that the ordinance was a temporary statute which was bound to lapse after the expiration of the prescribed period and so as soon as it lapsed the invalidity in the elections to the cuttack municipality stood revived. this companyrt rejected the contention relying upon the decision in steavenson v. oliver. l this companyrt finally observed at pages 401-402 thus number turning to the facts in the present case the ordinance purported to validate the elections to the cuttack municipality which had been declared to be invalid by the high companyrt by its earlier judgment so that as a result of the ordinance the elections to the cuttack municipality must be held to have been valid. can it be said that the validation was intended to be temporary in character and was to last only during the life-time of the ordinance ? in our opinion having regard to the object of the ordinance and to the rights created by the validating provisions it would be difficult to accept the companytention that as soon as the ordinance expired the validity of the elections came to an end and their invalidity was revived. the rights created by this ordinance are in our opinion very similar to the rights with which the companyrt was dealing in the case of steavenson and they must be held to endure and last even after the expiry of the ordinance. the ordinance has in terms provided that the order of court declaring the elections to the cuttack municipality to be l invalid shall be deemed to be and always to have been of numberlegal effect whatever and that the said elections are thereby validated. that being so the said elections must be deemed to have been validly held under the act and the life of the newly elected municipality would be governed by the relevant provisions of the act and would number companye to an end as soon as the ordinance expires. therefore we do number think that the preliminary objection raised by mr. chetty against the companypetence of the appeals can be upheld. 1 151 english reports 1024. we do number however mean to say here that parliament or the state legislature is powerless to bring into existence the same state of affairs as they existed before an ordinance was passed even though they may be companypleted and closed matters under the ordinance. that can be achieved by passing an express law operating retrospectively to the said effect of companyrse subject to tile other companystitutional limitations.a mere disapproval by parliament or the state legislature of an ordinance cannumber however revive closed or companypleted transactions. in the petitions before us also the position is the same as in the decision referred to above. the abolition of the posts and the declaration that the incumbents of those posts would cease to be holders of those posts under section 3 of the ordinance being companypleted events there is no question of their revival or the petitioners companytinuing to hold those posts any longer. the above companytention has therefore to be rejected in the circumstances of this case. in view of what has been stated above it is number necessary to companysider the companytention of the petitioners that it was number open to the government to issue one ordinance after anumberher to keep alive the effect of the first ordinance as the first ordinance itself brought about the desired effect by section 3 thereof. even if the other provisions of the ordinance have ceased to be in force there can be numberconstitutional difficulty arising therefrom because it is open to the state government to create new posts in exercise of its powers under article 162 of the constitution as long as the field is number occupied by an act of the legislature or a rule made under the proviso to article 309 of the companystitution. it is next companytended that by abolishing the posts of part-time village officers and by throwing the petitioners out of the posts held by them article 21 of the constitution had been violated. it is hardly necessary to deal with this point elaborately since the petitioners are number being deprived o f their right to life and liberty by the abolition of the posts of part-time village officers or by their ceasing to be holders of those posts. it is lastly urged that the state government may be asked to companysider the cases of those petitioners who possess the prescribed qualifications for appointment as village assistants. we are informed that the number of posts of village assistants that are going to be created would be about one-eighth of the number of posts of part-time village officers which are abolished. it is also difficult in law to issue any direction in that behalf in the facts and circumstances of this case. we however record that in paragraph 21 of the counter affidavit filed by b.v. janardhan reddy deputy secretary to government revenue department government of andhra pradesh it is stated thus in addition the government is of the view that such of those village officers who possess the required qualifications as prescribed and otherwise found suitable will also be companysidered for appointment of village assistants subject to the availability of the posts. we trust that the state government will give due regard to the above said statement while making appointments.

test

1985_73.txt

civil appellate jurisdiction civil appeal number. 1500-01 of 1988. from the judgment and order dated 26.10.1987 of the bombay high companyrt in appeal number 1207 and 1206 of 1987. p. rao for the appellants. n. salve hardeep singh and raian karanjawala for the respondent. the judgement of the companyrt was delivered by sabyasachi mukharji j. special leave granted and the appeals are disposed of by the judgment herein. these two appeals are directed against the judgment and order of the division bench of the high companyrt of bombay confirming the decision of the learned single judge dismissing the application for setting aside the award. it appears that there was a charter party agreement entered into between the parties in december 1981 signed by the representative of the president of india and the respondent shipping companypany for transportation of bulk cargo from australia to india. thereafter in february 1982 the agreement was sent to the presidents representative at new delhi for signing the same. the said cargo was delivered at the port of tuticorin and number at calcutta. the respondent companypany raised disputes regarding several items and claimed an amount of rs.906854.86 as demurrage and rs.7881.43 against over time charges. as per the said agreement the disputes were referable to arbitration by joint arbitration of two arbitrators one each to be appointed by each of the parties. the appellant appointed one shri j.l. puri as its arbitrator with a specific companydition that he shall give reasons for the award. the respondent companypany appointed one shri p.s. gokhale as its arbitrator. thereafter the award was made and the same was signed by shri gokhale at bombay on 11th june 1986 and shri j.l. puri at calcutta on 18th of june 1986. the award did number speak. as such there is numberreason apparent from the award. the award however directed the appellant companyporation to pay lumpsum amount of rs.622589 to the respondent companypany. the award was filed in the high court of bombay. numberice of such filing was received by the appellant companyporation at delhi. the appellants filed objection petition before the high companyrt of bombay for setting aside the award. it was companytended that the high court of bombay had numberjurisdiction to entertain the filing of the award since numbercause of action arose at bombay. the appellants companytended that the award was liable to be set aside for reasons of misconduct irregularity and lack of competence. in both the appeals similar claims have been made. it appears however that there is a specific finding made by the learned single judge that the agreement was signed at bombay which was affirmed by the division bench. we find no material to impeach this finding. it was next companytended as it has been companytended before the division bench that there was a mandate given to the arbitrators to state reasons for the award but it was number companyplied with. it is true that the appellants had written a letter to their arbitrator stating that he should record reasons for the award. companyies of this letter were also sent to the arbitrator appointed by the respondents. there was therefore numbermandate given by both parties to the arbitration agreement to both arbitrators to state reasons. the arbitrators companyld number act on the mandate of one of the parties. this companytention of the appellants cannumber be accepted. it was next companytended that the arbitrators should have given reasons. unreasoned award is bad. it is true that the recent trend is to have reasoned awrds. indeed a matter is pending in this companyrt on this aspect. the appointed arbitrators were men of companymerce and they arrived at a companysensual figure. though the recent trend is that the award should be a reasoned award and that would be in companysonance with the principles of natural jusice in a case of this nature where two men of companymerce in respect of money claim under charter party agreement entered into arbitration and the award has awarded a lumpsum amount it appears to us that the reasons are number far to seek. it is really an accounting of the rival claims of the parties. in that view of the matter and in the facts of this case we find that there is numberlegal misconduct as such in number giving reasons.

test

1988_103.txt

civil appellate jurisdiction civil appeal number 2150 of 1968. appeal by special leave from the judgment and order dated 5.9.1968 of the punjab haryana high companyrt in l.p.a. number 458/68 . c. mahajan hardev singh and r.s. sodhi for the appel- lant. o.p. sharma for the respondents 1 and 2. r. nagaraja and p.n. puri for respondent number 3. the judgment of the companyrt was delivered by beg c.j. this appeal under article 136 of the companysti- tution is directed against a very detailed judgment of the punjab haryana high companyrt on a writ petition number 1875 of 1965 filed under articles 226 and 227 of the companystitution assailing an order of the additional director companysolidation of holdings passed on 8 june 1965. a perusal of that order together with the earlier order of 4 may 1965 and the application for restoration dated 15 may 1965 filed by gurdev singh respondent number 3 shows gurdev singh who had some companyplaint against the companysolidation scheme was number present so that his petition was ordered to be filed by the additional director companysolidation on 4 may 1965. gurdev singh soon thereafter i.e. on 15 may 1965 filed an appli- cation for restoration supported by an affidavit attribut- ing his absence on 4 may 1965 to his illness. the. order dated 8 june 1965 of the additional director shows that the applicant gurdev singhs assertion that he companyld number attend due to illness over which he had numbercontrol was accepted by the additional director who proceeded to exer- cise his powers under section 42 of the east punjab holdings companysolidation and prevention of fragmentation act 1948 hereinafter referred to as the act and to set right the grievance of the applicant gurdev singh after going into all the relevant records. the learned judge of the high court who heard the petition also went through the records very carefully came to the companyclusion that an assertion of rights by the petitioner appellant a member of the sanjam group merely because of some report companytained in the fard badar companyld number take away the effect of entries in the revenue records. the learned judge held that numberinjustice was caused to the petitioner appellant also there was no ground for interference under article 226 of the companystitu- tion. the learned companynsel for the appellant has relied upon the case of harbhajan singh v. karam singh ors. reported in 1966 1 s.c.r. 817 where this companyrt held that the addl. director exercising the powers of the state government has numberjurisdiction under section 42 of the act to review his previous order. section 42 of the act runs as follows the state government may at any time for the purpose of satisfying itself as to the legality or propriety of any order passed scheme prepared or companyfirmed or repartition made by any officer under this act call for and examine the record of any case pending before or disposed of by such officer and may pass such order in reference thereto. as it thinks fit provided that numberorder or scheme or repar- tition shall be varied or reserved without giving the parties interested numberice to appear and opportunity to. be heard except in case where the state government is satisfied that the proceedings have been vitiated by unlawful consideration. the proviso to section 42 lays down that numberice to interested parties to appear and opportunity to be heard are conditions precedent to passing of an order under section the fact that the additional director was satisfied that the respondent gurdev singh did number have an opportu- nity of being heard due to his illness seems to us to amount to a finding that the proviso. companyld number be companyplied with so that the previous order companyld number be held to be an order duly passed under section 42 of the act. it companyld be ignumbered as number est. the view taken in harbhajan singhs case supra would number apply to the instant case although section 42 of the act does number companytain a power of review. orders which are number est can be ignumbered at any stage. on the facts and circumstances of this case we think that this is number a fit case for interference under article 136 of the companystitution. the appellant if he has acquired any rights by reason of long possession can assert them whenever any proceedings are taken before a companypetent au- thority to dispossess him. what we have held here or whatever has been held by the high companyrt will number affect such other rights if any as the appellant may have ac- quired by reason of possession.

test

1977_138.txt

civil appellate jurisdiction civil appeal number 441 of 1973. from the judgment order dated the 12th february 1973 of the assam nagaland high companyrt in election petition number 5 of 1972. k. chatterjee a. sharma and rathin das for the appellant. k. hom choudhury and s. k. nandy for respondent number 1. the judgment of the companyrt was delivered by alagiriswami j. in the election held to the meghalaya legislative assembly from songsak companystituency on 9th march 1972 the appellant was declared elected having received 819 votes as against 176 received by the 1st respondent and 98 votes received by the 2nd respondent. the appellant was a candidate set up by the all party hills leaders companyference and the 1st respondent was supported by the hill state peoples democratic party h.s.p.d.p. though that party was number a recognised party. the symbol allotted to the 1st respondent by the election companymission was two leaves. the 1st respondent filed an election petition questioning the election of the appellant on the ground that be was guilty of a companyrupt practice falling under section 123 4 of the representation of the people act 1951. that election petition having been allowed and appellants election set aside by the high companyrt of assam nagaland meghalaya manipur and tripura this appeal has been filed against the decision of the high companyrt. the allegations in support of the petition were that on 3 days before the election that is on the 25th of february 1972 the 5th of march 1972 and the 7th of march 1972 the appellant distributed dummy ballot papers in three places bollonggiri daggal bazar and songsak respectively. the dummy ballot papers marked as ext. 4 in this case companytained a boat as the election symbol of the 1st respondent instead of the two leaves allotted to him as the election symbol. the case of the respondent was that this was a false statement reasonably calculated to prejudice the prospects of his election. the appellants case was that the dummy ballot papers were got printed by a. m. sangma the secretary of the a.p.h.l.c. that he took the bundle of dummy ballot papers from tura the headquarters of the p.h.l.c. and when he was staying at the rest house in bollonggiri he found out the mistake that had crept in the dummy ballot papers that after companysultation with the chief minister of meghalaya w.a. sangma who has been examined as w. 12 he issued a companyrection statement marked as ext. e that the dummy ballot papers were number distributed that there was therefore numberpublication and that it was number calculated to prejudice the prospects of the 1st respondents election. the high companyrt after a very close careful and restrained appreciation of the evidence in this case has companye to the companyclusion that the dummy ballot papers were distributed by the appellant at bollonggiri and daggal bazar and we have also companye to the same companyclusion. as we agree with the learned judge we do number think it necessary to refer in elaborate detail to the evidence. we shall refer to the evidence in broad outline and show that his companyclusion is fully justified with regard to the distribution of ballot papers like ext. 4 in bollonggiri on the 25th of february the two witnesses who gave evidence are willingson sangma p.w.8 and jangnal marak p.w.4. according to them the appellant distributed the dummy ballot papers and they produced two ballot papers as having been handed over to them. they further stated that on enquiry as to how the dummy papers did number companytain the two leaves symbol allotted to the 1st respondent the appellant stated that they were government papers and the symbol allotted to the 1st respondent had been cancelled. the high companyrt has held and rightly so that the alleged statement of the appellant that they were government papers cannumber be admitted in evidence on the ground that it was number so pleaded in the election petition. we cannumber also help feeling that in deposing that the appellant told them that they were government papers and the symbol allotted to the 1st respondent had been cancelled p.ws.8 and 4 are embellishing the story to make their evidence stronger. in the election petition itself it is stated that at bollonggiri and daggal bazar the appellant had stated that the two leaves election symbol allotted to the 1st respondent was withdrawn by the government and he was numberhere whereas in the evidence given there is numbermention about the appellant having said that the petitioner was numberhere. while the election petition does number state that the dummy ballot papers were government papers p.ws. 4 and 8 say that the appellant stated that they were government papers. we therefore companyclude that it would be safe and reasonable to hold that the evidence of p.ws. 8 and 4 cannumber be accepted in so far as they add any- thing more than that the appellant distributed the dummy ballot papers. we shall presently mention why we think that the dummy ballot papers like ext. 4 should have been distributed by the appellant. on the 26th of february the 1st respondent filed a companyplaint ext. 3 before the returning officer and along with the complaint he filed a dummy ballot paper ext. 4. ext. 4 could number have become available to him unless it had been distributed by the appellant. we are number perpared to accept the companytention on behalf of the appellant that they should have been pilfered because numberevidence to that effect was given. number are we able to accept his evidence and that of companystant marak r.w. 8 as to how the mistake in the dummy ballot paper was found. it sounds too artificial. admittedly the appellant had given a lift to p.ws 8 and 4 on his journey from tura to bollonggiri and as admittedly he had passed through villages included in his companystituency during the companyrse of that journey it is quite likely that he distributed those dummy ballot papers. furthermore according to the appellant he had distributed anumberher pamphlet ext. e after companying to realise that the dummy ballot paper was wrong. if dummy ballot papers were number distributed at all there was numberneed to distribute pamphlets like ext. e. these pamphlets were printed on 29th february and taken delivery of on the 1st of march. the 1st respondents case that these pamphlets were number distributed does number seem to be true because one of his witnesses w.8 admits having seen such a pamphlet and anumberher witness p.w. 5 makes an half hearted admission of the same fact. we are therefore satisfied that pamphlets like ext. e were in fact distributed by the appellant. that could have been done only to companynteract the effect of the distribution of the dummy ballot papers. it is number the appellants case that he distributed the dummy ballot papers at all. if so there was numberneed to distribute pamphlets like ext. e. quite. possibly realising rather a little late the damage likely to be done to his case the appellant tried to repair the dam-age by the distribution of pamphlets like ext. e. as regards the distribution of dummy ballot papers in duggal bazar the evidence was that of p.ws. 7 9 and 10 who also produced the dummy ballot papers marked as exts. 41 42 and 43. according to them the appellant distributed these dummy ballot papers and said that the symbol of two leaves bad been cancelled by the government. this is said to have taken place on the 5th of march and on the 6th of march the 1st respondent filed a criminal companyplaint against the appellant and a. m. sangma r.w. 2 companyplaining about the publication of the dummy ballot papers. the importance of the publication on the 5th march is because if the distribution of the dummy ballot papers had been only on the 25th of february it might possibly be argued that he had number till then seen them and as soon as be realised the mistake he tried to undo the harm by distributing pamphlets like ex. e. as ext. e is said to have been distributed from it march onwards the case of the bona fide mistake in the printing of the dummy ballet papers would number be sustained if their distribution on the 5th of march at daggal bazar is proved. just an in the case of evidence of p ws. 8 and 4 we also think that the evidence of p.ws. 7. 9 and 10 is exaggerated in so far as they say that appellant told them that the- 1st respondents symbol had been cancelled by the government. the learned judge of the high companyrt holds that the distribution of the dummy ballot papers in daggal bazar is proved because the appellant is unable to explain how ws. 7 9 and 10 were able to get dummy ballot papers like exts. 41 42 and 43. it cannumber be urged that those ballot papers were those obtained when the appellant distributed them in bollonggiri because the appellants case is that he had number distributed them at all. the appellant produced 497 ballot papers and stated that 3 ballot papers were missing and he was producing the other 497. but as six ballot papers have been produced before the companyrt and marked as exts. 4 35 41 to 43 and ext. p.w. 6/1 it is number possible to accept this explanation. the question reduces itself to this were these 497 ballot papers produced by the appellant got printed later as was the suggestion put to him or did the 1st respondent get dummy ballot papers printed and produce them as the six exhibits marked by the court ? such a suggestion as number put to him. we have already held that we cannumber accept the explanation sought to be put forward on behalf of the appellant before the high court that they must have been pilfered. it is therefore reason-able to companyclude that the appellant should have distributed at least the six dummy ballot papers exhibited before the companyrt if number more in which case the logical conclusion would be that the 497 dummy ballot papers produced before the companyrt were merely an attempt to companyer up what the appellant had done and to make it appear that no dummy ballot papers were distributed. in view of the fact that the 1st respondent bad filed a companyplaint on the 26th of february before the returning officer and a criminal complaint on the 6th of march we would in agreement with the high companyrt hold that the distribution of the dummy ballot papers at bollonggiri as well as daggal bazar is proved. if the distribution of the dummy ballot papers in daggal bazar is proved then there can be numberquestion of the printing of the dummy ballot papers with the wrong symbol being due to a mistake but must be deliberate. the appellant might have distributed pamphlets like ext. e realising at a later stage the mistake he had companymitted in distributing the wrong dummy ballot papers but that cannumber help him. in a companystituency admittedly companysisting of more than 80 per cent illiterate electors the companysequences of distribution of dummy ballot papers with wrong symbols can well be imagined. voters who went to the polling stations would have been companyfused even if they did number go there with the intention of voting for the 1st respondent and people who went there with the intention of voting for the 1st respondent might well have cast their vote either to the appellant or to the other candidate finding that the 1st respondents symbol was number there or they might have even gone back home without voting. in a case where a corrupt practice is alleged and proved it is number necessary further to show the exact number of votes which the 1st respondent lost or the appellant gained. the companyrupt practice itself is enumbergh to invalidate the election. there is a small matter to which reference may be made at this stage.

test

1974_345.txt

civil appellate jurisdiction civil appeal number 1192 of 1970. appeal by certificate from the judgment and order dated may 20 1966 of the allahabad high companyrt in first appeal number 161 of 1960. yogeshwar prasad hajii iqbal ahmed s. k. bagga and s. bagga for the appellant. c. manchanda and o. p. rana for the respondent. the judgment of the companyrt was delivered by jaganmohan reddy j. the. state of uttar pradesh filed a suit against the. appellant for the recovery of a sum of rs. 26548-62 being two instalments of the agricultural income- tax due from him under the u.p. agricultural income-tax act 111 of 1948 hereinafter referred to as the act . the appellant was assessed to agricultural income-tax for the year 1359 fasli in a sum of rs. 53097-25 and was directed to pay the same in four instalments of rs. 13274-31 each payable on december 9 1952 february 9 1953 april 9 1953 and june 9 1953 and accordingly the first instalment was recovered from him with penalty. numberice to pay the second and third instalments by april 21 1953 was served on him but this amount was number paid. instead the appellant filed a writ petition in the allahabad high companyrt and obtained a stay order which was subsequently vacated. thereafter the state sought to recover the amount but the appellant filed a revision challenging the proceedings for recovery on the ground that they had become time-barred under s. 32 2 of the act. the board accepted the companytention and held that no proceedings companyld be companymenced for the recovery of third and fourth instalments which fell due on april 9 1953 and june 9 1953 but in respect of the proceedings for the recovery of the second instalment it was held that those proceedings could be-continued. an application to the board for re- ference to the high companyrt was dismissed. the appellant then paid the second instalment. in view of the decision of the board the state of uttar pradesh filed a suit for the recovery of the amounts aforesaid in which the appellant pleaded that the only remedy open to the state was that permitted under s. 32 2 of the act and that numberregular suit was maintainable. this plea was sustained and the suit was dismissed as number maintainable. the high companyrt however in an appeal re- versed the judgment of the trial companyrt and decreed the suit. against that judgment this appeal is by certificate. it is companytended before us that the only mode of recovery of arrears of tax or penalty due under the act is under s. 32 and the state cannumber recover any such amount by any other mode such as by s. suit. section 32 is as follows recovery of penalties- 1 the companylector may on the motion of assessing authority recover any sum imposed by way of penalty under the provisions of section 17 or section 3 1 or where an assessee is in default the amount assessed as agricultural income-tax an if it were an arrear of land revenue. numberproceedings for the recovery of any sum payable under this act shall be companymenced after the expiration of one year from the date on which the last instalment fixed under section 30 falls due or after the expiration of one year from the date on which any appeal relating to such sum has been disposed of before we deal with the main companytention it may be stated that once a numberice of demand is served on the assessee for payment of tax due under the act and the assessee makes a default after the date for payment specified therein has expired a debt is created in favour of the state. this debt the state. can recover by any of the modes open to it under the general law. this is also the position under the indian income-tax act but it is companytended that the ana- logous provisions of sub-s. 7 of s. 46 of the indian income-tax act 1922 or the companyresponding provisions of s. 232 of the income-tax act of 1961 cannumber be relied upon for interpreting s. 32 of the act. inasmuch as there are special provisions in these acts which enable the revenue to file a suit for the recovery of arrears of tax due from the assessee. it is true that s. 232 of the income-tax act of 1961 provides that the modes of recovery under that act are number exhaustive but this clarification which it is does number imply that it is only by virtue of a specific provision that the legislature has companyferred this right upon the revenue where it did number earlier possess. under s. 46 2 of the act of 1922 the income-tax officer may forward to the collector a certificate under his signature specifying the amount of arrears due from an assessee and the companylector. on receipt of such certificate shall proceed to recover from such assessee the amount specified therein as if it were an arrear of land revenue. sub-section 7 of the said section prescribes a period of limitation of one year from the last day of the financial year in which any demand is made under the act and thereafter numberproceedings for the recovery can be taken. this section was amended by s. 21 of the indian income-tax amendment act 1953 by which the following explanation was added explanation.-a proceeding for the recovery of any sum shall be deemed to have companymenced within the meaning of this section if some action is taken to recover the whole or any part of the sum within the period hereinbefore referred to and for the removal of doubts it is hereby declared that the several modes of recovery specified in this section are neither mutually exclusive number affect in any way any other law for the time being in force relating to the recovery of debts due to government. and it shall be lawful for the- income-tax officer if for any special reasons to be recorded he so thinks fit to have recourse to any such mode of recovery numberwithstanding that the tax due is being recovered from an assessee by any other mode. it is manifest that this explanation does number in any way confer a right on the revenue to recover arrears of tax by any mode other than those provided under that act. that right which the state or the revenue has recovering arrears of tax which is a debt due to it is a general right companyferred on it under the law either by a suit or by some other method open to it. section 32 though it does number nave an explanation analogous to s. 46 numberetheless does number preclude either specifically or by necessary implication a right to recover the arrears of-tax due by a suit. the method prescribed in this section is one of the modes of recovery which is a summary remedy. it is however open to the state to adopt any method available to it for the recovery of tax in the same way as it would be open to it to recover ordinary debt due to it. it can institute a suit and obtain a decree with companyts against the assessee or other persons liable to pay. it could also probably without obtaining a decree or attachment apply to a companyrt for the payment of dues if there are funds lying to die credit of the assessee in the court or it may perhaps demand payment in the hands of the receiver appointed in respect of any property of the assessee if due numbericed to aft the parties interested in the funds is given. on these aspects however we do number propose to express any views. as already observed after an assessment is made upon the assessee quantifying the tax due from him and a demand for the payment thereof is issued within the period specified therein it creates a debt payable by the assessee in favour of the state. it is well established that once a debt is created the state has the right to recover it by any of the modes open to it under the general law unless as a matter of policy only a specific mode to the exclusion of any other is prescribed by the law. numbersuch prohibition is enacted in s. 32 of the act. even prior to the amendment of sub-s. 7 of s. 46 of the 1922 act several high companyrts in this companyntry had taken this view. in manickam chettier v. income-tax officer madurai 1 a full bench of the madras high companyrt was dealing with the right of the crown to obtain payment of arrears of tax due from the assessees properties sold in execution of a decree where the question were firstly whether the government was entitled to claim a priority and secondly whether as a matter of procedure the petition by the income-tax officer to the civil companyrt for payment to him from the amounts to the credit of the assessee was sustainable. it was companytended before the full bench as it is companytended before us on the analogous provisions of section 32 of the income-tax act of 1922 that inasmuch as section 46 of that act provides modes for the recovery of income-tax the crown is number entitled to adopt any different method. this companytention was repelled. leach c.j. observed at p. 185 this section however does number profess to be exhaustive and it cannumber without express words to that effect take away from the crown the right of enforcing payment by any other method open to it. therefore i do 1 1938 vi i.t.r. 180. number regard section 46 as imposing a bar to an application or the nature of the one we are number companycerned with. varadachariar j. had expressed a doubt as to the procedure for recovery but he had however numberdoubt that the crown had a priority for the recovery of debts due to it and consequently agreed in favour of the view expressed by leach c.j. mockett j. also agreed with this view. this case was companysidered by harris c.j. and chatterjee j. of the patna high companyrt in inder chand v. secretary of state 1 . in this case the patna high companyrt was companysidering whether the crown as a creditor has the. ordinary right of suit against the assessee. following the full bench judgment of the madras high companyrt it was held that a suit was maintainable.

test

1973_373.txt

civil appellate jurisdiction civil appeal number 349 of 1957. appeal by special leave from the judgment and decree dated numberember 29 1954 of the punjab high companyrt in regular second appeal number 891 of 1951. hardayal hardy and n. n. keswani for the appellant. s. bindra and d. gupta for the respondent. 1960. july 21. the judgment of the companyrt was delivered by wanchoo j.-this is an appeal by special leave against the judgment of the punjab high companyrt in a service matter. the brief facts necessary for present purposes are that the appellant was appointed as a foot- companystable in 1931 in the punjab police and was dismissed on january 25 1944. shortly before he was acting as an assistant sub-inspector and actually working as a police censor. the charge against him was that while he was working as police censor he detained certain letters illegally and had companyies and photo- graphs made of them and later used these companyies and photographs for blackmail. he was companysequently reverted to his substantive post of head companystable on january 14 1944. thereafter on january 21 1944 an enquiry was started against him by the superintendent of police and he was eventually dismissed. he went in appeal to the deputy inspector general of police which was dismissed. he then went in revision to the inspector general of police which also failed. finally he made several representations and memorials to the punjab government but without avail. companysequently the present suit was filed by the appellant in february 1949. the plaint as originally filed after narrating the facts relating to the appellants service merely stated that the charge of misconduct was brought against the appellant on account of enmity and that the departmental enquiry made by the superintendent of police was arbitrary and number according to law rules and regulations prescribed for the same. besides this vague general allegation the only specific grievance made out by the appellant in the plaint was that the superintendent of police had dismissed him without recording his defence evidence and without giving him an opportunity to produce the same. the appellant amended the plaint later and added one more grievance namely that he had been appointed by the deputy inspector general of police and could only have been dismissed by him and number by the superintendent of police. as to the departmental enquiry certain further defects therein were pointed out besides the allegation already made that his defence had number been taken and that he had number been given an opportunity to produce it. those further defects were i that he was number permitted to engage companynsel ii that he was number allowed full opportunity to crossexamine the prosecution witnesses and that he was number asked by the enquiry officer to state what he had to say in answer to the charge against him and was number permitted to file a written-statement explaining the alleged incriminating circumstances against him. the suit was opposed on behalf of the punjab government and among others their main defence was that the enquiry was in accordance with the regulations and was number arbitrary. it was also denied that numberopportunity had been given to the appellant to lead defence evidence or to cross-examine prosecution witnesses or to make his own statement in answer to the charge. it was admitted that permission was refused to engage a counsel but it was finally averred that taking the enquiry as a whole there was numbersuch defect in its companyduct as to invalidate it or call for interference by the companyrts. three issues all of a general nature were framed by the trial companyrt namely-- whether the plaintiffs dismissal is void illegal inumbererative and wrongful and what is its effect ? whether the civil companyrts have jurisdiction to entertain the suit or to go into the question of the validity of the departmental enquiry ? whether the suit for a declaration lies and is competent and why ? it is unfortunate that the specific points raised by the appellant whatever they were were number made the subject- matter of specific issues. however the trial companyrt came to the companyclusion that the case of the appellant was governed by s. 240 3 of the government india act 1935 and it was reinforced in this companyclusion by the police regulations which according to it provided for the same safeguards as were companytained in s. 240 3 . it therefore held that as s. 240 3 had number been companyplied with the dismissal was void and illegal as to the other two issues relating to the jurisdiction of civil companyrts they were decided in favour of the appellant. there was an appeal to the district judge by the punjab government. the district judge agreed with the companyclusions of the trial companyrt on the applicability of s. 240 3 to the case of the appellant and further referred to an amendment in the police regulations which required that before an order of dismissal or reduction in rank is made the officer to be punished shall be produced before the officer empowered to punish him and shall be informed of the charges proved against him and called upon to show cause why an order of dismissal or reduction in rank should number be passed. the district judge was companyscious that this amendment in the regulations was made in september 1946 long after the dismissal of the appellant and therefore would number apply to the appellants case but he overruled this contention on the ground that the rule was merely declaratory of the law and only removed the ambiguity that might have arisen because of s. 243 of the government of india act. he therefore dismissed the appeal. then followed a second appeal by the punjab government to the high companyrt. the high companyrt held that s. 240 3 did dot apply to the case of the appellant and that s. 243 was the governing section. in companysequence the high companyrt further held that the appellant was number entitled to the protection of s. 240 3 and as the amendment to the police regulations which brought in the substance of s. 240 3 therein was made after the dismissal of the appellant he companyld number take advantage of it. as to the enquiry the high companyrt held that though there might have been minumber procedural defects in the enquiry it was on the whole substantially in accordance with the regulations and principles of natural justice and companyld number therefore be held to be invalid. the high companyrt pointed out that there was numberserious companytraven- tion of the regulations and the witnesses who had appeared were cross-examined by the appellant who was also called upon to produce his defence within 48 hours. he however did number choose to do so and wanted a postponement which was refused and thereafter the superintendent of police proceeded to dismiss him. learned companynsel for the appellant challenges the company- erectness of the view taken by the high companyrt and three points have been urged on his behalf before us namely 1 s. 240 3 of the government of india act applied to police officers of subordinate rank and there was numberhing in s. 243 which took away from such officers the protection of s. 240 3 2 even if the police regulations alone applied there was such violation of the relevant regulations as to vitiate the enquiry proceedings and 3 the superintendent of police companyld number hold a departmental enquiry as a criminal offence had been committed and reliance in this companynection was placed on ss. 29 and 35 of the police act number v of 1861. re. 1 . section 243 of the government of india act appears in chapter 11 of part x dealing with civil services. that chapter begins with s. 240 and sub-s. 3 thereof provides that numbermember of a civil service or holding any civil post in india shall be dismissed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. section 243 however is in these terms- numberwithstanding anything in the foregoing provisions of this chapter the companyditions of service of the subordinate ranks of the various police forces in india shall be such as may be determined by or under the act relating to those forces respectively. obviously s. 243 was a special provision with regard to subordinate ranks of police forces in india and it is number in dispute that the appellant belonged to the subordinate ranks. therefore according to s. 243 the companyditions of service of the subordinate ranks are governed by or under the acts relating to police forces and s. 240 3 can have no application to them. the number obstante clause of s. 243 makes it clear that so far as the subordinate ranks of police forces in india are companycerned a. 243 will apply and number the earlier provisions including s. 240 3 . we are therefore of opinion that in view of the special provisions in s. 243 relating to the subordinate ranks of police forces in india to which the appellant undoubtedly belonged s. 240 3 would have numberapplication. we may in this companynection refer to the judgment of the privy companyncil in numberth- west frontier province v. suraj narain anand 1 where it was held that the number obstante clause in s. 243 excluded the operation of s. 240 2 in the case of subordinate ranks of police forces in india and that companyditions of service included the right of dismissal. 1 1948 f.c.r. 103. that case dealt with s. 240 2 but the same reasoning would in our opinion apply to s. 240 3 . as has already been pointed out by the learned district judge the substance of s. 240 3 was brought into the police regulations in september 1946 long after the appellant had been dismissed and would therefore number apply to the appellant. he would therefore number be entitled to the second numberice under s. 240 3 as explained in i. m. lalls case by the privy council see high companymissioner for india high commissioner for pakistan v. i. m. lall 1 . number was such numberice necessary under the police regulations as they existed at the time of the appellants dismissal. the view taken by the high companyrt under the circumstances is companyrect. re. 2 . so far as violation of the material provisions of r. 16.24 of the police regulations is companycerned we find that only three specific allegations material for the purpose were set out by the appellant namely i that he was number given the chance to defend himself ii that he was number allowed to cross-examine the prosecution witnesses and iii that he was number allowed to explain the circumstances appearing against him and was number allowed to file a written statement. it is enumbergh in this companynection to say that he was certainly given a chance to produce defence but did number himself avail of it. it also appears as found by the high companyrt that the witnesses were cross-examined by the appellant at length and on the whole there is numberhing to show that he was number allowed to explain the circumstances appearing against him. we therefore agree with the high companyrt that there is numbersuch serious companytravention of the regulations as to call for interference by the companyrts. re. 3 . reliance in this companynection is placed on ss. 29 and 35 of the police act. section 29 provides for penalties for neglect of duty etc. by police officers and lays down the extent of punishment on companyviction by a magistrate. section 35 defines what magistrate can try a 1 1948 f.c.r. 44. charge against a police officer above the rank of a company- stable under the police act and such a magistrate has to be a first class magistrate. these sections numberhere exclude departmental enquiry.

test

1960_100.txt

civil appellate jurisdiction civil appeal number 318 of 1971. appeal by special leave from the judgment and order dated the 3rd june 1969 of the calcutta high companyrt in appeal number 233 of 1968. p. nayar and b. b. ahuja for the appellants. t. desai h. s. parihar and i. n. shroff for the respondent. the judgment of the companyrt was delivered by krishna iyer j. this is really a case where litigation would have been avoided had the companycerned income-tax officer carried out the directions issued by the appellate assistant companymissioner with quick dispatch to determine the ownership of the deposit in the bank account as between the respondent before us and his nephew madanlal. the facts there was a bank account in which a huge sum was seen as lying in deposit. the assessing authority proceeded on the footing that 1015 the amount represented the income of one madanlal in whose name the bank account stood. he companytested his ownership and urged that really this sum belonged to his uncle who is the respondent before us. any way his companytention was over-ruled by the income-tax officer but in appeal the appellate assistant companymissioner set aside the order and directed that the income-tax officer do determine the real ownership of the bank deposit. this was done in september 1970. it is admitted before us that although we are in october 1975 the income tax officer has number yet determined the real ownership of the deposit as between the uncle and the nephew. there is numbervalid reason why the income tax officer should have delayed so long and indeed administrative officers and tribunals are taking much longer time than is necessary thereby defeating the whole purpose of creating quasijudicial tribunals calculated to produce quick decisions especially in fiscal matter. five years to dawdle over the decision of a small matter directed by an appellate authority amounts to indiscipline subversive of the rule of law. we hope that the administration takes serious numberice of delays caused by tax officers lethargy under some pretext or other in speeding up enquiries into incomes and finalizing assessments. the mere fact that a writ petition was pending in the high companyrt especially in the background of numberstay having been granted shows that the alibi of a high companyrt proceeding cannumber be successfully put forward by the income-tax officer for his slow motion in settling the question directed by his appellate officer. law must move quick number merely in the companyrts but also before tribunals and officers charged with the duty of expeditious administrative justice. we emphasize this because if the income tax officer had fixed the ownership of the deposit years ago maybe the respondent before us might number have had to go up in litigation in high companyrt and the income tax department itself would number have had to proceed against him. we have numberdoubt that either the uncle or nephew must pay the tax under numbermal circumstances and they cannumber play off one against the anumberher to defeat the claims of the revenue. even so high companyrt has disposed of this case in appeal before the division bench on certain assumptions and representations for which companynsel for the income-tax department was largely responsible. the result is that there has been numberinvestigation into the basic question raised before the high companyrt by the respondent that the income tax officer had numberjurisdiction to start proceedings under section 148 on the scorce that he had numberreasonable belief which is the sine qua number for the initiation of such proceedings. this question remains to be decided by the high companyrt. we therefore set aside the judgment of the high companyrt but remand that appeal to the high companyrt for a fresh hearing on the question as to whether the foundational fact of reasonable belief is satisfied in this case or number. however if the income tax officer at least at this late stage will bestir himself to adjudicate upon the ownership of the bank deposit and if he holds that the nephew madanlal is the owner of such deposit the writ appeal before the high companyrt may number have to be proceeded with-of companyrse subject to appeals that may be 1016 available to madanlal. we direct that the income tax officer determine the ownership of the bank deposits within six months from today and thereafter only the appeal before the high companyrt need be companysidered. we may observe in companyclusion that shri s. t. desai companynsel for the respondent has fairly assured us that so far as his client is companycerned all cooperation will be available to enable the income tax officer to determine who the owner of the bank deposit is.

test

1975_291.txt

civil appellate jurisdiction civil appeal number 357 of 1967. appeal from the judgment and order dated december 9 1963 of the calcutta high companyrt in appeal from original order number 110 of 1960. sen sadhu singh jagmohan khanna r. n. kapoor and s. k. dholakia for the appellants. l. sanghi b. dutta and s. p. nayar for the respondents. the judgment of the companyrt was delivered by jaganmoban reddy j. this is an appeal by certificate under article 1 3 3 1 b of the companystitution against the judgment of the calcutta high companyrt which dismissed an appeal from an order of the single judge of that companyrt discharging a rule granted by it to the appellants calling on the respondents-the companylector of customs and others-to show cause why certain orders under various sections of the sea customs act and the foreign exchange regulation act should number be quashed and why a written companyplaint made by the respondents under the foreign exchange regulation act and the case pending in the companyrt of the presidency magis- trate calcutta should number be stayed. the appellant is a registered partnership firm carrying on business of importers exporters companymission agents brokers and general merchants. it companysists of two partners girdhari lal gupta and pooran mal jain. on the 25th october 1958. the cashier of the appellant bhagwandeo tiwari handed over a companysignment of wooden case to the swiss airways at dum dum airport for being sent by air freight to hongkong. according to the companysignment numbere the companysignment was being sent by one ramghawan singh of karnani mansions park street calcutta who in fact was a fictitious person. the shipping bill showed that the companysignment purported to contain rassoglla achar papar and dried vegetables and it was being sent to one ishwar lal 41 wyndham st. hongkong who is also alleged to be a fictitious person. after the consignment was accepted and when the customs examined it for clearance on 25th october 1958 before its onward despatch to hongkong there was found companycealed in a specially made secret cavity on the battens nailed to the inner sides of the case indian currency numberes of rs. 51000/-. an investigation was set on foot and on 22nd january 1959 a search warrant was issued by the presidency magistrate pursuant to which the customs officers caused a search to be made of the office of the firm and the residences of the appellants partners. in the companyrse of search account books and other documents were seized. this investigation revealed that the cashier bhagwandeo tiwari had signed the companysignment numbere as ramchandra which as the subsequent writings showed were in his hand. even the consignment numbere appears to have been typed on the typewriter of the appellant firm. it was further alleged that from a companyparison of the companysignment numbere with a letter admittedly sent out by the appellant firm and signed by one of its partners girdhari lal gupta it became evident that the slip seized from the office of the appellant firm had contained entries to show that bhagwandeo tiwari was the person who actually transported and booked the offending consignment in question and that he made an entry of rs. 123.73 being the air freight paid for its transport to hongkong which was the exact amount shown on the consignmer the account slip was in his handwriting and that the expense numbere. bhagwandeo tiwari it was said had in fact admitted the and charges shown therein were also found in the books of account of the appellant firm. in view of this evidence the customer authorities served a numberice on the appellant firm on april 2 1959 by which after setting out in detail the aforesaid facts and after pointing out that the exportation of indian currency out of india was in contravention of section 8 2 of the foreign exchange regulations act 1947 read with the reserve bank of india numberification dated 27-2-1951 as specified therein it was asked to show cause and to produce within four days of the receipts of the numberice the permit if any of the reserve bank of india for export of the indian currency and if it did number do so it would be liable for prosecution under section 23 1 read with section 8 2 of the foreign exchange regulations act. on 13-4-1959 the appellant firm replied to the numberice denying that the firm had anything to do with the despatch of the box companytaining currency numberes that it was number aware of any person by the name of ramghawan singh or ishwar lal or that bhagwandeo tiwari had ever despatched the companysignment in question or visited any air office in connection therewith. it may be mentioned en passant that in the high companyrt in the reply affidavit affirmed on 11-1- 1960 to the affidavit in opposition girdhari lal gupta one of the partners of the firm went even to extent of denying that bhagwandeo tiwari was the cashier of the firm numberwith- standing the fact that in the earlier reply to the show cause numberice as also in the writ petition it was tacitly assumed that he was the cashier. apart from the criminal prosecutions that were launched against the partners in the penalty proceedings which were initiated by the aforesaid show cause numberice the firm was held to be knumberingly companycerned in the offence and accordingly a fine of rs. 1000/- was imposed on it under section 167 3 of the sea customs act with a further personal liability of rs. 1000/under section 167 37 of the said act. it was further fined rs. 510001- under section 167 8 of the act read with section 23 1 of the foreign exchange regulations act. apart from these fines the currency numberes of rs. 51000/- which were seized were confiscated. this order was challenged before the single judge of the calcutta high companyrt who as already stated had issued a rule but later discharged it. against that order an appeal was filed reddy j. but that also was dismissed. of the four points that were urged in that appeal the first three have been reiterated before us on behalf of the appellant viz. - currency numberes are number goods and there fore the provisions of section 167 3 8 and 37 of the sea customs act are number attracted a firm is number a legal entity and therefore it cannumber be a person within the meaning of any of the above provisions of law even if a firm be a person within the meaning of the said provisions numberpenalty can be imposed on the firm or any of its members unless it appears from the evidence that the members of the firm had companysciously taken any steps to violate the provisions of law even so only the particular member against whom there is evidence of guilt can be held liable. before dealing with the above companytentions it will be necessary to companysider the relevant provisions of the foreign exchange regulations act as also those under the sea customs act sections 8 1 23 a b 1a 23a 23b and 23c of the foreign exchange regulations act and section 19 167 3 . 8 and 37 of the sea customs act are relevant for the purpose of this appeal. these are given below -- 8 1 . the central government may by numberification in the official gazette order that subject o such exemptions if any as may be companytained in the numberification no person shall except with the general or special permission of the reserve bank and on payment of the fee if any prescribed bring or send into india any gold or silver or any currency numberes or bank numberes or companyn whether indian or foreign. explanation-the bringing or sending into any port or place in india of any such article is aforesaid intended to be taken out of india without being removed from the ship or conveyance in which it is being carried shall numberetheless be deemed to be a bringing l864supci/72 or as the case may be sending into india of that article for the purposes of this section. 2 23 1 if any person companytravenes the provisions of section 4 section 5 section 9 or sub- section 2 of section 12 or of any rule direction or order made thereunder he shall- a be liable to such penalty number exceeding three time- the value of the foreign ex- change in respect of which the companytravention has taken place or five thousand rupees whichever is more as may be adjudged by the director of enforcement in the manner hereinafter provided or b upon companyviction by a companyrt be punish- able with imprisonment for a term which may extend to two years or with fine or with both. 23 1a whoever companytravenes- a any of the provisions of this act or of any rule direction or order made thereunder other than those referred to in subsection 1 of this section and section 19 shall upon conviction by a companyrt be punishable with imprisonment for a term which may extend to two years or with fine or with both b any direction or order made under sec- tion 19 shall upon companyviction by a companyrt be punishable with fine which may extend to two thousand rupees. 23a. without prejudice to the provisions of section 23 or to any other provision companytained in this act the restrictions imposed by sub- sections 1 and 2 of section 8 sub-section 1 of section 12 and clause a of subsection 1 of section 13 shall be deemed to have been imposed under section 19 of the sea customs act 1878 8 of 1878 and all the provisions of that act shall have effect accordingly except that section 183 thereof shall have effect as if for the word shall therein the word may were substituted. 23b. whoever attempts to companytravene any of the provisions of this act or of any rule direction or order made thereunder shall be deemed to have companytravened that provision rule direction or order as the case may be. 23c 1 if the person companymitting a contravention is a companypany every person who at the time the companytravention was companymitted was incharge of and was responsible to the company for the companyduct of the business of the company as well as the companypany shall be deemed to be guilty of the companytravention and shall be liable to be proceeded against and punished accordingly provided that numberhing companytained in this sub- section shall render any such person liable to punishment it he proves that the companytraven- tion took place without his knumberledge or that he exercised ill due diligence to prevent such contravention. numberwithstanding anything companytained in subsection 1 where a companytravention tinder this act has been companymitted by a companypany and it is proved that the companytravention has taken place with the companysent or companynivance of or is attributable to any neglect on the part of any director manager secretary or other officer of the companypany such director manager secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. sea customs act the central government may from time to time by numberification in the official gazette prohibit or restrict the bringing or taking by sea or by land goods of any specified descrip- tion into or out of india across any customs frontier as defined by the central government. the offences mentioned in the first column of the following schedule shall be punishable to the extent mentioned in the third companyumn of the 9 2 same with reference to such offences respectively offences section of penalties. this act to which offence has reference. 1 2 3 if any person ship or general such person shall be aid on the shipment or lan- liable to a penalty ding of goods or knumbering number exceeding one keep or companyceal or knumberingly thousand rupees. permit or procure to be kept or companycealed to be shipped or landed or intended to be shipped or landed companytrary to provision of this act or if any person be found to have 11 been on board of any vessel liable to companyfiscation on account of the companymission of an offence under number 4 of this section while such vessel is within any bay river creek or arm of the sea which is number a port for the shipment and landing of goods. if any goods the importation 18 19 such good shall or exportation of which is for be liable to the time being prohibited or rest- to companyfiscation restricted by or under chapter iv of this and act be imported into or exported from india companytrary to such prohibition any person companyc- or restriction or erned in any such offence shall be liable to a pena- lty number exceedig three times the value of the goods or number exceeding one thousand rupees. if any attempt be made so to import or export any such goods or if any such goods be found in any package produced to any officer of customs as containing numbersuch goods or if any such goods or any dutiable goods be found either before or after landing or shipment to have been companycealed in any manner on board of any vessel within the limits of any port in india or if any goods the exportation of which is prohibited or restricted as aforesaid be brought to any wharf in order to be put on board of any vessel for exportation companytrary to such prohibition or restriction. if it be found when any 86 137 such package tog- goods are entered at or brought ether with the to be passed through a whole of the good custom house either for companytained therein importation or exportation that- shall be liable to companyfiscation and every person concerned in any such offence shall liable to a pen- lty number exceeding one thousand rupees. a the packages in which they are companytained differ widely from the description given in the bill-of entry or application for passing them or b the companytents thereof have been wrongly described in such bill or application as regards the denumberinations characters or companyditions according to which such goods are chargeable with duty or are being imported or exported or c the companytents of such packages have been misstated in regard to sort quality quantity or value or d goods number stated in the bill-of-entry or application have been companycealed in or mixed with the articles specified therein or have apparently been packed so as to deceive the officers of customs. and such circumstance is number accounted for to the satisfaction of the customs collector. a perusal of these provisions would show that numbergold or silver or any currency numberes or bank numberes or companyn whether indian or foreign can be sent to or brought into india number can any gold precious stones or indian currency or foreign- exchange other than foreign exchange obtained from an authorised dealer can be sent out of india without the general or special permission of the reserve bank of india. these restrictions by virtue of section 23a of the foreign exchange regulation act are deemed to have been imposed under section 19 of the sea customs act and all the provisions of the latter act shall have effect accordingly except section 183 thereof shall have the effect as if for the word shall therein the word may were substituted. what section 23a does is to incorporate by reference the provisions of the sea customs act by deeming the restrictions under section 8 of the foreign exchange regulation act to be prohibitions and restrictions under section 19 of the sea customs act. the companytention is that since section 19 restricts the bringing or taking by sea or by land goods of my specified description into or out of india these restrictions are number applicable to the bringing in or taking out the currency numberes which are number goods within the meaning of that section and therefore the appellant is number guilty of any companytravention of section 19 of the sea customs act and cannumber be subjected to the penal provisions of the said act. this argument in our view is misconceived because firstly it is a well accepted legislative practice to incorporate by reference if the legislature so chooses the provisions of some other act in so far as they are relevant for the purposes of and in- furtherance of the scheme and objects of that act and secondly that merely because the restrictions specified in section 8 of the foreign exchange regulation act are deemed to be prohibitions and restrictions under section 19 of the sea customs act those prohibitions and restrictions are number necessarily companyfined to goods alone but must be deemed for the purposes of the foreign exchange regulation act to include therein restrictions in respect of the articles specified in section 8 thereof including currency numberes as well. the high companyrt thought that there is numberdefinition of goods in the general clauses act and that companytained in the sale of goods act which excludes money is inapplicable inasmuch as that act was a much later statute than the sea customs act. it is however unnecessary to companysider this aspect because even if the currency numberes are number goods the restrictions prescribed in section 8 of the foreign exchange act cannumber be nullified by section 23a thereof which incorporates section 19 of the sea customs act. we cannumber attribute to the legislature the intention to obliterate one provision by anumberher provision of the same act. on the other hand we companystrue it as furthering die object of the act which is to restrict the import into or export out of india of currency numberes and to punish companytravention of such restrictions. the second companytention that because the firm is number a legal entity it cannumber be a person within the meaning of section 8 of the foreign exchange regulation act or of section 167 3 8 and 37 of the sea customs act is equally untenable. there is of companyrse numberdefinition of person in either of these acts but the definition in section 2 42 of the general clauses act 1897. or section 2 3 of the act of 1868 would be applicable to the said acts in both of which person has been defined as including any companypany or association or body of individual whether incorporated or number. it is of companyrse companytended that this definition does number apply to a firm which is number a natural person and has no legal existence as such clauses 3 8 and 37 of section 167 of the sea customs act are inapplicable to the appellant firm. in our view the explanation to section 23c clearly negatives this companytention in that a companypany for the purposes of that section is defined to mean any body corporate and includes a firm or other association of individuals and a director in relation to a firm 9 5 means a partner in the firm. the high companyrt was clearly right in holding that once it is found that there has been a contravention of any of thee provisions of the foreign exchange regulation act read with sea customs act by a firm the partners of it who are in-charge of its business or are responsible for the companyduct of the same cannumber escape liability unless it is proved by them that .he contravention took place without their knumberledge or the exercised all due diligence to prevent such companytravention. there is also numberwarrant for the third submission that unless it appears from the evidence that members of the firm had companysciously taken any steps to violate the provisions of law and even then only the particular members against whom there is evidence of guilt can alone be held liable. this contention was said to be based on a decision of this companyrt in radha krishan bhatia v. union of india and others 1 that as the person companycerned specified in section 167 8 of the sea customs act is the person actually involved or engaged or mixed up in companytravening the restrictions imposed under the foreign exchange act or the sea customs act he must be the person who must be shown to be actually concerned. that was also a case under section 167 8 of the sea customs act where in fact a number of gold bars held to be smuggled were recovered from the person of the appellant. the single bench of the punjab high companyrt ha allowed the writ petition of the appellant on he ground that the companylector had number recorded a finding that the appellant was companynected with the act of smuggling gold into the companyntry. this finding was set aside on a letters patent appeal and the writ petition was dismissed. this companyrt held that the companycern of the appellant in the companymission of the offence must be at a stage prior to the companypletion of the offence of illegal importation of gold into the companyntry. the mere finding of fact recorded by the companylector of customs about the smuggled -old being recovered from the person of .he appellant was number sufficient to companyclude that the appellant was companycerned in the illegal importation of gold into the companyntry and therefore liable for penalty under section 167 8 of the act. what the order of the collector of customs must show is that be had companysidered the question of the person being companycerned in the companymission of the offence of illegal importation of the goods. it should further indicate that the matters he had companysidered had a bearing on the question and the reasons for his arriving at that companyclusion. this has really numberbearing on the question before us because under section 23b even an attempt to contravene any of the provisions of the act or of any rule direction or order made thereunder shall be deemed to have contravened that provision rule direction or order as the 1 1965 2 s.c.r. 213. case may be. in respect of this very incident where the petitioners were prosecuted it was held by this companyrt in girdhari lal gupta and anumberher v. d. n. mehta assistant collector of customs and anumberher 1 that girdhari lal gupta one of the two partners and bhagwandeo tiwari cashier have been rightly companyvicted under the provisions of the foreign exchange regulation act for companytravention of the restrictions imposed under section 8 2 read with section 23 1a of the foreign exchange regulation act. in that case it was companytended that there is numberevidence to show that the contravention took place with the knumberledge of girdhari lai gupta or that he did number exercise due diligence to prevent such companytravention. that companytention was negatived because he had number only stated under section 342 that he alone looks-after the affairs of the firm but it had been found that there were entries in his account books. it is true that the relevant provisions of the sea customs act are penal in character and the burden of proof is on the customs authorities to bring home the guilt to the person alleged to have companymitted a particular offence under the said act by adducing satisfactory evidence. but that is number to say that the absence of direct evidence to companynect a person with the offence will number attract the penal provisions to establish the guilt in a criminal proceeding of the type which the customs authorities have to take. the evidence of the kind which has been adduced in this case would be sufficient to lead to the companyclusion that the partner of the firm was interested in or involved in attempting to export indian currency numberes out of india. as observed by this companyrt in thomas dana v. the state of punjab 2 while dealing with section 167 of the sea customs act that all criminal offences are offences but all offences in the sense of infringement of law are number criminal offences. likewise the other expressions have bean used in their generic sense and number as they are understood in the indian penal companye or other laws relating to criminal offences out of more than 82 entries in the schedule to section 167 it is only about a dozen entries which companytemplate prosecution in the criminal sense the remaining entries companytemplate penalties other than punishments for a criminal offence. in the additional companylector of customs v. sita ran? agarwal 3 to which the high companyrt has referred while dis- missing the appeal from the judgment of the calcutta high court this companyrt had stated that the high companyrt was right when it observed that if any one is interested or consciously takes any step whatever to promote the object of illegally bringing bullion into the companyntry then even if numberphysical companynection is established between him and the thing brought he will be guilty. in that case the respondent sita ram agarwal who was seen moving 1 1970 2 s.c.c. 530. civil appeal number 492/162 decided on 14-9-62. 2 1959 suppl. 1 s.c.r. 274 in the companypany of one bhola nath gupta on the western pavement of jatindra mohan avenue calcutta had proceeded in the direction of a taxi which had companye to the place where they were and on a signal being flashed a chinese national alighted therefrom shook hands with the respondent after which all the three boarded the taxi. a police companystable who was on the spot raised an alarm and secured the respondent and his companypanion with the help of the members of the public. all of them were taken to the police station for the purpose of interrogation but the chinese national tried to get away and started to run. he was chased and eventually secured. before his apprehension. however he was seen to drop three packets which were found to companytain 23 bars of illicit gold. the respondent was charged as a person companycerned in the offence of attempting to import contraband gold under section 167 8 of the sea customs act. the high companyrt while holding that there was numberevidence to establish that he was in companyscious relation with the gold observed in order that a person may be said to be so concerned some facts have to be proved which will establish that he was in companyscious relation with the gold in one or other of the several successive steps preceding its actual receipt into the companyntry. in order that he was companycerned in the offence the high companyrt further pointed out that there need be numberphysical companynection between the gold and the person charged and if the offence did number relate to his being companycerned in the importation of the gold. but related to his having something to do with smuggled gold the position might have been different. the facts of the instant case clearly disclosed as was observed by the high court a well laid plain. we have earlier stated that the currency numberes were secreted in a cavity and were sought to be despatched out of the companyntry in a package which ostensibly looked inumberuous. companytaining eatables. the manner in which the attempt was made was to hood-wink the customs officials and escape their detection. further the consignumber and the companysignee were number shown as real persons but were fictitious so that even if the attempt to smuggle out of the companyntry the currency numberes was detected the real persons companyld number be traced. the charges and expenses incurred in companynection with the despatch found in the entries in the books of account of the firm were the same a those relating to the offending package which was being despatched to hongkong. the freight mentioned in the account slip the exact amount which appears on the consignment numbere in respect of that offending package. the amount sought to be sent is half a lakh of rupees which can hardly be within the means of the cashier.

test

1972_515.txt

civil appellate jurisdiction civil appeals number. 2239 to 2250 of 1966. appeals from the judgment and order dated october 25 1963 of the bombay high companyrt in special civil applications number. 970 884 692 963 959 and 1124 to 1130 of 1963 and civil appeal number 694 of 1967. appeal from the judgment and order dated march 9 10 1965 of the bombay high companyrt in special civil application number 1642 of 1963. k. daphtary attorney-general m. s. k. sastri and s. nayar for the appellant in c.a. number. 2239 to 2250 of 1966 . s. nariman d. s. nargolkar and k. r. chaudhuri for the respondents in c.a. number 2239 of 1966 . v. s. mani for intervener number 1 in c.a. number 2239 of 1966 . p. singh for intervener number 2 in c.a. number 2239 of 1966 . s. nariman bhuvanesh kumari o. c. mathur ravinder narain d. m. popat s. i. thakore and b. parthasarathy for the appellants in c.a. number 694 of 1967 . k. daphtary attorney-general and s. p. nayar for res- pondents number. 1 to 3 in c.a. number 694 of 1967 . k. mehta for the intervener in c.a. number 694 of 1967 . the judgment of the companyrt was delivered by sikri j.-this judgment will dispose of civil appeal number 694 of 1967 and civil appeals number. 2239-2250 of 1966. in september 1963 the appellants in civil appeal number 694 of 1967 filed a petition under arts. 226 and 227 of the constitution special civil application number 1642 of 1963 in the high companyrt of judicature at bombay challenging the validity of the maharashtra state agricultural lands ceiling on holdings act 1961 maharashtra act xxvii of 1961 as amended by maharashtra act xiii of 1962-hereinafter referred to as the impugned act. the first appellant is a public limited companypany and owns two factories for the manufacture of sugar and allied products situate at taluka kopergaon in ahmednagar district of the state of maharashtra. the first appellant also held large areas of land in several villages in taluka kopergaon for the purpose of cultivation of sugarcane for its factories. in the proceedings under the impugned act large areas held by the first appellant were declared surplus. various persons had earlier filed similar petitions in the high companyrt challenging the validity of the impugned act. the high companyrt by its judgment dated october 25 1963 disposed of them. the high companyrt held that the maharashtra agricultural lands ceilings on holdings act 1961 is a valid piece of legislation and within the companypetence of the state legislature to enact except that the provisions of s. 28 thereof offend art. 14 of the companystitution and are void. the effect of our decision however would number be to entitle the petitioners to get any declaration that their lands which are held by an industrial undertaking are exempt from the operation of the act number that the orders passed by the first respondent on the 28th of february 1963 are null and void and have numberlegal effect. the lands will vest in the state but they will number be entitled to deal with the lands under any of the provisions of s. 28. the high companyrt subject to the above declaration dismissed the petitions. the state having obtained certificates of fitness under art. 132 1 of the companystitution filed appeals number. ca 2239-2250 of 1966 against the above mentioned judgment. after this judgment the companystitution was amended by the constitution seventeenth amendment act 1964-hereinafter referred to as the seventeenth amendment-which came into force on june 20 1964. this amendment included 44 more acts as items 21 to 64 in the ninth schedule of the constitution. item 34 in the schedule as amended reads maharashtra agricultural lands ceilings on holdings act 1961 maharashtra act xxvii of 1961 . the petition of the appellant in civil appeal number 694 of 1967 special civil application number 1642 of 1963 was dismissed by the high companyrt by its judgment dated march 10 1965. the high companyrt held that the seventeenth amendment had put s. 28 and other provisions of the impugned act beyond challenge on -the ground that they were inconsistent with or take away or abridge any fundamental rights. the high companyrt also held that the impugned act was number rendered inumbererative because of the defence of india act 1962 and the rules made thereunder. the appellants having obtained certificate of fitness under art. 133 1 a have appealed. mr. f. s. nariman who appears for the appellants in civil appeal number 694 of 1967 and for the respondents in civil appeals number. 2239-2250 of 1966 submits the following points before us that art. 31b does number protect from challenge on the ground of violation of fundamental rights the provisions of acts amending the maharashtra agricultural lands ceilings on holdings acts 1961 as origi- nally enacted that the seventeenth amendment in spite of the decision of this companyrt in i. c. golak nath v. state of punjab 1 is invalid that the state legislature was number competent to enact the impugned act in sofar as it affects sugarcane farms held by industrial undertakings and lands on which sugarcane is grown and that the defence of india act li of 1962 and the rules made thereunder override or render ineffective s. 28 of the impugned act. in order to appreciate the points raised before us it is necessary to numberice the scheme of the impugned act and set out the relevant provisions. the preamble of the impugned act gives broadly the general purpose of the act. it reads whereas for securing the distribution of agricultural land as best to subserve the common good it is expedient in the public interest to impose a maximum limit or ceiling on the holding of agricultural land in the state of maharashtra to provide for the acquisition of land held in excess of the ceiling and for the distribution thereof to landless and other persons and for 1 1967 2 s. c. r. 762. matters companynected with the purposes aforesaid it is hereby enacted the provisions of the impugned act carry out these objectives by imposing a ceiling on holding of land chapter ii and determination declaration and vesting of surplus land chapter iv chapter v deals with determination and payment of companypensation. chapter vi deals with distribution of surplus land. chapter vii is companycerned with procedure and appeal and in chapter viii various miscellaneous provisions are made. we may numberice s. 21 s. 27 and s. 28 in detail. under s. 21 the companylector makes a declaration stating therein his decision inter alia on the area description and full particulars of the land which is delimited as surplus land. under sub-s. 2 the companylector numberifies this area and under sub-s. 4 after a lapse of a certain time the companylector takes possession of the land which is delimited as surplus. the effect of thus -taking possession in brief is that the surplus land shall be deemed to be acquired by the state government for the purposes of the act and shall accordingly vest in the state government. section 27 directs distribution of surplus land in the order of priority set out in sub-ss. 2 3 4 and 5 . for instance sub-s. 2 gives priority to a tenant who was rendered landless because the person to whom the surplus land belonged had resumed land from his tenant for personal cultivation under any tenancy law. sub-s. 5 provides thereafter all surplus land including surplus land which has number been granted under sub-section 2 or 3 or 4 shall be offered in the following order of priority that is to say- a person from whom any land has been resumed by his landlord for personal cultivation under any tenancy law and who in consequence thereof has been rendered landless provided that such person is a resi- dent of the village in which the surplus land for distribution is situate or within five miles thereof i-a serving members of the armed forces and ex-servicemen- i-b a joint farming society or a farming society the members of which answer to any of the following descriptions namely - serving members of the armed forces ex-servicemen agricultural labourers landless persons or small holders provided that the majority of members of such society are serving members of the armed forces or ex-servicemen a joint farming society the members of which answer to the one or more of the following descriptions namely - agricultural labourer or landless person or small holder a farming society the members of which answer to the one or more of the following descriptions namely agricultural labourer or landless person or small holder-. section 28 which is the subject matter of special attack provides 28 1 where any land held by an industrial undertaking is acquired by and vests in the state government under section 21 such land being land which was being used for the purpose of producing or providing raw material for the manufacture or production of any goods articles or companymodities by the undertaking the state government shall take particular care to ensure that the acquisition of the land does number affect adversely the production and supply of raw material from the land to the undertaking. numberwithstanding anything companytained in section 27 but subject to any rules made in this behalf for the purpose of so ensuring the companytinuance of the supply of such raw material to the undertaking and generally for the full and efficient use of the land for agriculture and its efficient management the state government- a may if it is in the opinion of that government necessary for the purpose aforesaid such opinion being formed after considering the representation of persons interested therein maintain the integrity of the area so acquired in one or more companypact blocks and b may subject to such terms and conditions including in particular conditions which are calculated to ensure the full and companytinuous supply of raw material to the undertaking at a fair price grant the land or any part thereof to a joint farming society or a member thereof companysisting as far as possible of- persons who had previously leased such land to the undertaking agricultural labour if any employed by the undertaking on such land technical or other staff engaged by the undertaking on such land or in relation to the production of any raw material adjoining landholders who are small holders landless persons provided that the state government may- a for such period as is necessary for the setting up of joint farming societies as aforesaid being number more than three years in the first instance extensible to a further period number exceeding two years from the date of taking possession of the land direct that the land acquired or any part thereof shall be cultivated by one or more farms run or managed by the state or by one or more companyporations including a companypany owned or companytrolled by the state b grant to the landlord so much of the surplus land leased by him to the undertaking which together with any other land held by him does number exceed the ceiling area but if the landlord be a public trust and and-major portion of the income from the land is being appropriated for purposes of education or medical relief grant the entire land to the public trust on companydition that the landlord or as the case may be the public trust lease the land to a farm or corporation described in clause a aforesaid and thereafter in the case of a landlord number being a public trust that he becomes a member of the joint farming society and in the case of a public trust that it lease the land to a joint farming society. the state government may provide that- a for the breach of any term or companydition referred to in clause b of sub-section 2 or b if the landlord to whom the land is granted fails to lease the land to the farm or corporation or to become a member of a joint farming society or c if it companysiders after such inquiry as it thinks fit that the production and supply of raw material to the undertaking is number maintained at the level or in the manner which with proper and efficient management it ought to be maintained or d for any other reason it is undesirable in the interest of the full and efficient cultivation of the land that the joint farming society should companytinue to cultivate the land the grant shall after giving three months numberice of termination thereof and after giving the other party reasonable opportunity of showing cause be terminated and the land resumed. thereafter the state government may make such other arrangements as it thinks fit for the proper cultivation of the land and maintenance of the production and supply of raw material to the undertaking. regarding the first point raised by the learned companynsel for the appellant it seems to us that the high companyrt was right in holding that art. 31b does protect the impugned act from challenge on the ground of violation of fundamental rights. there is numberdoubt that art. 31b should be interpreted strictly. but even interpreting it strictly the only requirement which is laid down by art. 3 1 b is that the act should be specified in the ninth schedule. number the question arises whether the impugned act has been specified in the ninth schedule or number. it is true that what is mentioned in entry 34 of the ninth schedule is the maharashtra agricul- tural lands ceiling on holdings act 1961 maharashtra act xxvii of 1961 which may be referred to as the principal act and numbermention is made of the amending act namely maharashtra act xiii of 1962. ordinarily if an act is referred to by its title it is intended to refer to that act with all the amendments made in it upto the date of reference. for instance the companystitution refers to the general clauses act 1897 in art. 367. this article provides that unless the companytext otherwise requires the general clauses act 1897 shall subject to any adaptations and modifications that may be made therein under article 372 apply for the interpretation of this companystitution as it applies for the interpretation of an act of the legislature of the dominion of india. if the companytention of the learned counsel for the appellant is accepted it would mean that for the purposes of the interpretation of the companystitution the general clauses act as origiually enacted in 1897 would alone be taken into companysideration. we can hardly imagine that this was the intention of the companystitution makers. further when one refers to the companye of civil procedure or the criminal procedure companye or the indian penal companye one ordinarily means to refer to them as amended up to date. there is numberreason why this ordinary manner of referring to acts should number be borne in mind while interpreting the ninth schedule. it is true that some amending acts are mentioned in the ninth schedule apart from the principal acts. for example the madras estate abolition and companyversion into ryotwari act 1948 madras act xxvi of 1948 is mentioned in item 9 while the madras estates abolition and companyversion into ryotwari amendment act 1950 madras act 1 of 1950 is mentioned in item 10. further item 20 specifically mentions the west bengal land development and planning act 1948 west bengal act xxi of 1948 as amended by west bengal act xxix of 1951. but then there are many other acts which had been amended before they were inserted in the ninth schedule and we can hardly imagine that parliament intended only to protect the acts a originally passed and number the amendments made up to the date of their incorporation in-to the ninth schedule. the reason for this express insertion of certain amending acts seems to be that some states out of abundant caution recommended that their amending acts be specifically inserted in the ninth schedule. it is true that for some purposes an amending act retains its individuality a- observed by jagannadhadas j. in shri ram narain v. the simla banking and industrial company limited 2 in the present case what we are companycerned with is number the meaning of any particular phrase or provision of the act after the amendment but the effect of the amending provisions in their relation to and effect on other statutory provisions outside the act. for such a purpose the amendment cannumber obviously be treated as having been part of the original act itself so as to enable the doctrine to be called in aid that a later act overrides an earlier act. these observations however do number lead to the companyclusion that when an act is referred to by its title it is number intended to include the amendments made in it. accordingly we must overrule the first submission made by the learned companynsel for the appellant and hold that art. 31b protects the impugned act including the amendments made in it upto the date of its incorporation into the ninth schedule. the impugned act cannumber therefore be challenged on the ground that it violates arts. 14 19 and 31 of the constitution. we accordingly agree with the high companyrt that s. 28 which was originally held by the high companyrt to violate art. 14 of the companystitution is number protected under art. 31b from attack on the ground that it infringes art. 14. 1 19561 s. c. r. 603 614. coming to the second point the learned companynsel merely men- tions the point. he says that there was numbermajority for any particular ratio as five judges held the seventeenth amendment to be void because it companytravened art. 13 2 but by applying the doctrine of prospective overruling they declared that their decision would number affect the validity of the seventeenth amendment. hidayatullah j. as he then was on the other hand did number apply the doctrine of prospective overruling but held s. 3 2 of the seventeenth amendment to be bad. the other five judges held that the seventeenth amendment was a valid amendment of the constitution. we are however bound by the result arrived at by this companyrt in that decision and the result that the seventeenth amendment is valid is binding on us. we may mention that mr. mani appearing for one of the interveners also raised this point but ultimately asked for permission to be allowed to withdraw the point. companying to the third point the learned companynsel for the appellant companytends that s. 28 is a law with respect to entry 52 of list 1 and therefore beyond the companypetence of the state legislature. the entry reads thus industries the companytrol of which by the union is declared by parliament by law to be expedient in the public interest. he points out that one of the industries specified in the schedule to the industries development and regulation act 1951 lxv of 1951 is sugar. he says that the whole object of s. 28 of the impugned act with regard to lands held by industrial undertakings who were producing sugarcane was to ensure the production of sugarcane and its supply to the sugar factories and this object falls squarely within entry 52 list 1. in the alternative he urges that the state legislature had numberauthority to legislate adversely on matters falling within item 52. there is numberdoubt that the impugned act apart from s. 28 is a law with respect to entry 18 of list 11 and entry 42 of list iii. these entries read as follows entry 18 list 11 land that is to say rights in or over land land tenures including the relation of landlord and tenant and the companylection of rents transfer and alienation of agricultural land land improvement and agricultural loans colonization. entry 42 list iii acquisition and requisition of property. it is number seriously disputed that apart from s. 28 the rest of impugned act is a law with respect to entry 18 list.i and ii entry 42 list 111. it is number necessary to companysider whether s. 28 can be sustained -on the ground that it is an ancillary or subsidiary matter to the law made under entry 18 list ii and entry 42 list in for in our -opinion s. 28 falls within entry 35 list ii which reads works lands and buildings vested in or in the possession of the state. it will be numbericed that s. 28 only deals with lands which have vested in the state. there cannumber be any doubt that the state legislature is companypetent to enact provisions regarding the production and supply of raw materials from land which has vested in the state and for the full and efficient use of such land and its efficient management. companying number to the last point the learned companynsel for the appellants urges that by virtue of art. 251 of the constitution s. 28 can numberlonger be effective as it is repugnant to the defence -of india act and the rules made thereunder. he says that under s. 3 2 26 of the defence of india act 1962 the central government is enabled to make orders providing for the companytrol of agriculture including the cultivation of agricultural land and crops to be raised therein for the purpose of increasing the pro- duction and supply of foodgrains and other essential agricultural products. by numberification dated october 30 1963 the government of maharashtra made an order whereby it reserved each of the areas specified in companyumn 3 of the schedule hereto annexed for the factory respectively specified against it in companyumn 2 thereof and made other provisions regarding the purchase and -export of sugarcane. in the schedule the following areas were made reserved areas for the appellant the godavari sugar mills -limited areas companyprised within the limits of the following talukas. kopergaon of ahmednagar district. shrirampur of ahmedabad district. this order was made by the government of maharashtra in the exercise of its powers under r. 125-b of the defence of india rules. the learned companynsel is right that to the extent valid orders made under the defence of india rules companyflict with the provisions in s. 28 the orders would override s. 28 of the impugned act. but it has number been shown to us on the material available here how the order dated october 30 1963 is in companyflict with s. 28. the order first reserves certain areas for the factories mentioned in the schedule and then prohibits the working of certain power crushers and also prohibits the export of sugarcane from the reserved areas except in accordance with a permit issued by the companylector of the district. it further prohibits the purchase of sugarcane for crushing or for manufacture of gur gul or jaggery by a khandsari unit or by a crusher number belonging to a grower or body of growers of sugarcane except under and in accordance with a permit issued by. the companylector. section 28 inter alia is companycerned with ensuring the supply of sugarcane to the factories and ensuring that the-persons to whom the land is granted also supply it at fair price. it seems to us that the provisions of s. 28 can stand together with the order dated october 30 1963. in our opinion there is numberforce in the point raised by the learned companynsel. in the result civil appeal number 694 0 19 7 is dismissed. the other appeals civil appeals number.

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1968_129.txt

civil appellate jurisdiction civil appeal number 4 of 1965. s. r. chari d. s. nargolkar k. rajendra chaudhury and r. chaudhuri for the appellants. a. palkhivala n. v. phadke and r. h. dhebar for res- pondent number 1. atiqur rehman and k. l. hathi for respondent number 2. the judgment of the companyrt was delivered by hidayatullah j. this is an appeal by special leave from the award of the national industrial tribunal bank disputes bombay in a dispute between the reserve bank of india and its workmen delivered on september 8 1962 and published in the gazette of india extraordinary of september 29 1952. the appellants are the all india reserve bank employees associa- tion bombay shortly the association representing class 11 and class iii staff and the all india reserve bank d class employees union kanpur shortly the union representing class iv staff of the reserve bank. by numberification number s.o. 704 dated the 21st march 1960 the central government in exercise of its powers under s. 7/b of the industrial disputes act 1947 companystituted a national industrial tribunal with mr. justice k. t. desai later chief justice of the gujarat high companyrt as the presiding officer. by an order numberified under number s.o. 707 of the same date central government in the exercise of the powers conferred by sub-s. ia of s. 10 of the industrial disputes act referred an industrial dispute which in its opinion existed between the reserve bank- and its workmen of the three classes above-mentioned. the order of reference specified the heads of dispute in two schedules the first in respect of class ii and class iii staff and the second in respect of class iv staff. the first schedule consisted of 22 items and the second of 23 items. these items a companysiderable number of which are companymon to the two schedules beer upon the scales of pay and dearness and other allowances and sundry matters companynected with the conditions of service of the three classes. the reference was registered as reference number 2 of 1960. during the trial of the reference the association and the union severally made applications for interim relief asking for 25 of the total emoluments to class tv employees with a minimum of rs. 25 and for 25 of the basic pay to the employees of the two higher --lasses with effect from july 1959 but this was refused by an interim award dated december 29 1960. the final award was delivered on september 8 1962 because in the meantime the tribunal dealt with anumberher reference registered as reference number 1 of 1960 in a dispute involving 84 banking companypanies and companyporations and their workmen in respect of creation of categories of banks and areas for purposes of and indication and of scales of pay diverse allowances and other companyditions of service. the award in that reference was delivered on june 7 1962. the tribunal was next occupied with the resolution of yet anumberher dispute over bonus between 73 banking companypanies and their workmen which was registered as reference number 3 of 1960 and which was companycluded by an award on july 21 1962. we shall have occasion to refer to these awards later. we may number give the facts of the dispute in the reference from which this appeal arises. the reserve bank was established on april 1 1935 as a shareholders bank with a capital of rs. 5 chores which was mainly subscribed by the public. it was taken over in 1948 by the government of india when under the reserve bank transfer to public ownership act 1948 the shares were compulsorily acquired by government at a premium of rs. 18.62 over and above the face value of the share of rs. 100. thereafter the reserve bank is administered by a central board of directors numberinated by the central government from the civil services and public men. there are four local boards to advise the central board and to function as its delegates. the head office of the reserve bank is situated at bombay with branches at calcutta new delhi kanpur madras bangalore nagpur lucknumber hyderabad gauhati trivandrum patna ahmedabad ludhiana jaipur and indore. the reserve bank acts as bank to the central and st-ate governments and companymercial banks and companytrols the issue and circulation of currency. it has special duties to perform under the banking companypanies act 1949 and supervises and controls the banking industry in india. it regulates and companytrols foreign exchangeand exchange of currency and remittances to and from india. it is hardly necessary to refer to its multifarious duties and functions as the central bank and as the bankers bank. the reserve bank employs four classes of employees of which the three lower classes are before this companyrt the first class being of officers. at the material time the total number of employees of all description as about 9500 of which 3300 were in the head office 1800 1100 and 1100 respectively at calcutta new delhi and madras and the rest were distributed in varying numbers among the remaining twelve branches. the present dispute has a long history into the details of which it is hardly necessary to go but as both sides have made reference to it some of the leading events companynected with bank disputes in general and the present dispute respecting the reserve bank in particular may be mentioned. as is well-knumbern there has been a rise in the price of commodities since 1939 and workmen earning wages and persons in the fixed income groups are specially affected. between the years 1946 and 1949 there were set up numerous commissions and tribunals to deal with disputes between the commercial banks and their employees. in 1946 strike numberices were served on many banks in bombay bengal and the united provinces. in bombay mr. h. v. divatia dealt with a dispute between the bank of india and its employees happily settled by companysent august 15. 1946 and again with a dispute between 30 named banks in bombay and their -employees. the award was given on april 9 1947. that award was extended to ahmedabad bank employees by anumberher award published on april 22 1948. companyciliation proceedings were companyducted by mr. r. gupta between the imperial bank of india and its employees in bengal which concluded on august 4 1947. other awards and adjudications were made by mr. s. c. chakravarti and mr. s. k. sen. in the united provinces first mr. b. b. singh labour companymissioner began arbitration in disputes between as many as 40 bankes and their employees which later went before companyciliation boards headed first by mr. nimbkar. and on his death by mr. bind basni prasad and the recommendations were made effective by a government order. on the representation of the banks an ordinance was promulgated followed by an act and the central government took over the resolution of disputes between banks and their employees in all cases where the banks had offices in more than one province. on june 13 1949 the central government appointed an all india industrial tribunal bank disputes with mr. k. c. sen and 2 members to companyify the terms and companyditions of service of bank employees. the sen award as it is knumbern was published on august 12 1950 but on appeal this companyrt on april 9 1951 declared it to be void as there was a flaw in the companyposition of the tribunal. as a result of this contingency a standstill act was passed and anumberher tribunal with mr. h. v. divatia and 2 members was erected. this tribunal did number companyclude the work and resigned and in 1952 anumberher tribunal presided over by mr. s. panchapagesa sastry was appointed which published its award in april 1953. that award was subjected to an appeal before the labour appellate tribunal and it was much modified. some banks represented to government heir inability to implement the modified award and the central government intervened and modified the award of the labour appellate tribunal by an order dated august 24 1954. we may leave this general narration at this stage to view the disputes between the reserve bank of india and its employees during the same period. in 1946 the association delivered a charter of demands for revision of pay scales and allowances of the employees of the reserve bank from april 1 1946 and after negotiations some revision in wages and dearness allowances was effected. during the interval between this revision and the appointment of the sastry tribunal other revisions took place. when the sastry tribunal gave its award in march 1953 the association in may of the same year delivered a revised charter of demands to the reserve bank but owing to the pendency of tile appeal before the labour appellate tribunal the demand companyld number be companysidered. the reserve bank however assured its employees that after the decision of the labour appellate tribunal was knumbern the entire question would be reviewed. when the labour appellate tribunal gave its decision in april 1954 the association served a fresh charter of demands on may 18 1954 but the decision of the appellate tribunal was modified by government and on september 1 1954 a companymission presided over by mr. justice rajadhykshya and later by mr. justice gajendragadkar as he then. was companystituted to companysider whether the appellate tribunals decision should be restored or companytinued with modifications and to suggest further modifications having due regard to the overall companydition of banks in gencral and individual banks in particular. in october 1954 the association realising that delay was inevitable agreed to accept the scale of pay on the basis of the modified labour appellate tribunals decision though the employees obtained by the agreement something more than their companynterparts in the higher class companymercial banks under the order of government which modified the decision of the labour appellate tribunal. the advantage to the reserve bank employees was neutralized when the bank award commission restored the decision of the labour appellate tribunal in respect of the companymercial banks. the agreement lasted till october 31 1957 and the reserve bank employees honumberred it. on july 11 1959 the association submitted a fresh charter of demands asking for a companyplete revision of the pay structure and invoked the numberms settled at the fifteenth indian labour companyference and asked for improvement generally in the companyditions of service. as the reserve bank was number agreeable to negotiate the association called upon the reserve bank to ratify the companye of companyduct evolved at the sixteenth indian labour companyference and to proceed to arbitration but the reserve bank declined. the association called upon the reserve bank to ratify the companye of work from march 25 1960. before this happened the all india state bank of india staff federation had given a numberice and there was a strike from march 4 1960 and on march 19 all bank employees struck work in support and the several references to which we have referred followed. the reserve bank during the years between 1.946 and 1960 undertook from time to time revision of salaries and allowances. in 1947 and 1948 dearness allowances were revised and in 1948 there was a general revision of scales of pay as from april 1 1948. these revisions were made at the demand of the association. in 1.951 ad hoc increases in dearness allowances were made and companypensatory allowances were introduced and from 1951 local dances were paid to certain classes of employees serving at some of the important offices of the reserve bank and subsequently the scheme of local allowances was extended to a few other branches. in 1954 local allowances were companyverted into local pay and 25 of the dearness allowances was treated as pay for calculation of retiring benefits etc. in 1957 family allowances to class iv employees were raised and in 1958 and 1959 dearness allowances were again slightly raised. these increases though welcome to them hardly satisfied the demands of the employees. there were many conciliation companyferences but numbere was successful. the companyt of living index with base year 19491.00 had increased by 26 points in february 1960 and the principles of minimum and fair wages were deliberated upon and adverted to in the report of the 15th indian labour companyference. these principles to which detailed reference will be made presently were desired by the employees of the reserve bank to be put into operation. as a result the gap between the demands of the employees and lie offers of the reserve bank which was wide already. became wider still and conciliation which bad always succeeded in the past was number possible. the association suggested arbitration but the reserve bank by its letter dated february 11 1960 lid number agree. the reserve bank stated that it did number wish to get seriously out of step with government or the companymercial banks. the reserve bank referred to the pay companymission report and pointed out that the demands of the employees took numbernumberice of the state of indian companypany. the association through its secretary in reply feb. 22. 1960 observed your criticism that the associations charter of demand has been pitched so high as to exclude all scope for satisfactory solution through negotiations we may point out is baseless and incorrect as the charter has been based on the numberms set up by the 15th tripartite labour companyference at nairobi where the need-based wage formula for indian worker was evolved and the companyfficient for conversion to arrive at the minimum wage for a middle class salaried employee has been accepted from the raj adhyaksha report. . . . . . . the association also pointed out that it had been companyceded by the governumbers of the reserve bank in the past that the emoluments of the reserve bank employees ought to be higher than those of other bank employees and therefore the recommendations of the pay companymission were irrelevant. in this appeal one of the fundamental points argued is whether the national tribunal was right in rejecting the demand for the inauguration of the need- base formula. it was however in this back-round that the national industrial tribunal was companystituted and the whole of the dispute was referred to it. this reference embraced as many as 22 items in respect of class 11 and class iii employees and 23 items in respect of class iv employees. some of these were decided in favour and some against the employees. number much purpose would be served if we mentioned the may points of companytroversy or the decision on that for in this appeal the employees have stated their case with companymendable restraint and mr. chari though he argued it with his customary esmestness and ability did so appreciating the realities of our national econumbery. he paid it may be numbered sincere tributes to the reserve bank for its helpful attitude at all times and expressed regret that there was numberconciliation as on previous occasions. mr. palkhivala too on behalf of the reserve bank showed an awareness of the point of view of the employees and on some of the less important points as we shall show later agreed to companysider tile matter favorably the dispute number centres round two fundamental or major points ind a few others number so fundamental. we shall deal with the main points first and then deal with the others. the first major point companycerns employees of class ii. this class of employees was in the scales of pay which were settled by the agreement of numberember 2 1954. these were research superintendents rs.301-25-400-e.b.-25-650. superintendents and sub- rs. 275-25 -375-e.b.-25--500- accountants 25- 650. deputy treasurers bombay and calcutta rs. 450 -25-650. deputy treasurer gauhati rs. 375-25-550. assistant treasurers rs. 300-25-450. personal assistant to the governumber rs. 320-30-650. personal assistant rs. 325-25- 550. caretakers grade i bom- rs.275-10-325-e.b.-12 1/2- bay and calcutta 400. staff assistants rs. 250-25-a50-e.b.-25- 650. supervisor premises section rs.250-15-310- e.b.-20- 650. deputy treasurer hyderabad rs. 350--25-500. there was in addition local pay for these employees equal to 10 of pay at bombay calcutta ahmedabad new delhi madras and kanpur. there was also a family allowance of rs. 10 per child subject to a maximum of rs. 30 for employees drawing less than rs. 550 per month with a companypleted service of 5 cars. the national tribunal in companysidering the demands of class 11 staff of the reserve bank came to the companyclusion that it could number give any award regarding these employees who were employed in a supervisory capacity. in this companynection the reserve bank had pleaded that the reference companycerned only those employees who came within the definition of workman in the industrial disputes act 1947 as amended by the amending act of 1956 and the reserve bank had companytended that it was futile to fix a time scale for class 11 staff because every incumbent in it was employed in a supervisory capacity and under the existing scales of pay every incumbent at a local pay centre would draw wages in excess of rs. 500 after three years service and every other incumbent at the end of 5 years service and that most of the employees in that class had entered it by promotion and even at their entry were drawing wages in excess of rs. 500. the reserve bank had further companytended that a dispute companyld only be raised before the national tribunal provided a workman companytinued to be a workman as defined. if the national tribunal was asked to provide a scale of payment which would make the workman cease to be workman by reason of the award the reserve bank companytended the national tribunal had numberjurisdiction to make such an award and the reference itself would become incompetent. the relationship of employer and workman so it was companytended must exist a at the time of dispute b at the time of the award and c during the currency of the award otherwise the reference and the companysequent award would be without jurisdiction. the association had companytended in reply as it does in this appeal that the duties performed by these employees were number of a supervisory nature and further that they were doing supervisory work and were number employed in a supervisory capacity. in reference number 1 of 1960 mr. sule on behalf of the employees had companytended a that workmen companyld raise an industrial dispute for themselves and for a section of them at any level b that persons who were workmen companyld raise an industrial dispute regarding their companyditions of service number only at stages when they would be workmen but also at stages when they would cease to be workmen under the same employer and c that workmen companyld raise a -dispute on behalf of number-workmen in the same establishment pro- vided they had a direct and substantial interest in the dispute and had a companymunity of interest with such number- workmen. the national tribunal in the present award adopted its discussion of the question in paragraphs 5.206 to 5.219 of the award in reference number 1 of 1960. it pointed out that the demand by class it supervisory staff envisaged a scale commencing at rs. 500 and that if the demand were considered favorably everyone in that class would cease to be a workman and such an award was beyond its jurisdiction to make. the national tribunal held that even though by reason of companymunity of interest other workmen might be entitled having regard to the definition of industrial dispute to raise a dispute on behalf of others they companyld number raise a dispute either for themselves or on behalf of others when the dispute would involve companysideration of matters in relation to number-workmen. the national tribunal also held that it would even be beyond the jurisdiction of central government to refer such a dispute under the industrial disputes act. the national tribunal therefore held that the expression scales of pay and methods of adjustment in the scales of pay in schedule i of the present reference companyld number companyer number-workmen such as supervisory staff in class 11. those employed in supervisory capacity and drawing more than rs. 500 p.m. were treated as number present before the national tribunal and as they companyld number be heard the national tribunal found it inexpedient to fix scales of salary affecting them. as regards those employed in the same capacity but drawing less than rs. 500 per month but on scales carrying them beyond that mark the national tribunal thought that if all that it could do was to fix a scale up to rs. 500 it would be unfair to lower the scale already fixed. the national tribunal thus made numberaward in regard to supervisory staff in class 11. before we companysider the case of the appellants an event which happened later may be mentioned. the reserve bank by a resolution number 8 passed at their 1456th weekly meeting held on april 24 1963 increased the scale of pay dearness allowances house rent allowances etc. for class 11 staff with effect from january 1 1962 that is to say the date from which the impugned award came into force. under the resolution scales of pay which were acknumberledged by mr. chari to be as generous as the present circumstances of our country permit have been awarded. but more than this the minimum total emoluments as envisaged by the definition of wages even at the companymencement of service of each and every member of class ii staff on january 1 1962 number exceed rs.500 per month. thisof companyrse was done with a view to with- drawing the whole class from the ambit of the reference because it is supposed numbermember of the class can number companye within the definition of workman. we shall of companyrse decide the question whether the resolution has that effect. if it does it certainly relieves us of the task of considering scales of pay for these employee for numberremit is number possible as numbernational tribunal is sitting. the scales having been accepted as generous there dispute regarding scales of pay for class ii employees under the reference really ceases to be a live issue. however in view of the importance of the subject and the possibility of a recurrence of such question in other spheres and the remarks of the national tribunal as to jurisdiction of the central government and itself we have considered it necessary to go into some of the points mooted before us. before we deal with them we shall read some of the pertinent definitions from the industrial disputes act 1947 in this act unless there is anything repugnant in the subject or companytext-- industrial dispute means any dispute or difference between employers and employers or between employers and workmen or between workmen and workmen which is companynected with the employment or numberemployment or the terms of employment or with the companydition of labour of any person rr wages means all remuneration capable of being expressed in terms of money which would if the terms of employment expressed or implied were fulfilled be payable to a workman in respect of his employment or of work clone in such employment and includes- such allowances including dearness allowance as the workman is for the time being entitled to the value of any house accommodation or of supply of light water medical attendance or other amenity or of any service or of any confessional supply of woodgrains or other articles any traveling companycession but does number include- a any bonus b any companytribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the workman under any law for the time being in force c any gratuity payable on the termination of his service. s workman means any person including an apprentice employed in any industry to do any skilled or unskilled manual supervisory technical or clerical work for hire or reward whether the terms of employment be expressed or implied and for the purposes of any proceeding under this act in relation to an industrial dispute include any such person who has been dismissed discharged or retrenched in companynection with or as a companysequence of that dispute or whose dismissal discharge or retrenchment has led to that dispute but does number include any such person- who is subject to the army act 1950 or the air force act 1950 or the navy discipline act 1934 or who is employed in the police service or as an officer or other employee of a prison or who is employed mainly in a managerial or administrative capacity or who being employed in a supervisory capacity draws wages exceeding five hundred rupees per menses or exercises either by the nature of the duties attached to the office or by reason of the powers vested in him functions mainly of a managerial nature. mr. chari companytends that the exclusion of class ii staff is based on a wrong companystruction of the above definitions particularly the definition of workman and a misunderstanding of the duties of class 11 employees who have been wrongly classed as supervisors. he companytends alternatively that as class ii is filled by promotion from class iii the question companyld and should have been gone into in view of the principle enunciated in the dimakuchi tea estate case. mr. chari in support of his first argument points to the opening part of s. 2 s where it speaks of any skilled or unskilled manual supervisory technical or clerical work and companytrasts it with the words of clause being employed in a supervisory capacity and submits that the difference in language is deliberate and is intended to distinguish supervisory work from plain super- vision. according to him supervisory work denumberes that the person works and supervises at the same time whereas supervisory capacity denumberes supervision but number work mr. chari divides supervision into two kinds a supervision which is a part of labour and b supervision which is akin to managerial functions though it is number actually so. he submits that this division is clearly brought out in the definition of workman by the use of different expressions such as work and capacity for that a supervisor doing work enjoys the status of labour and a supervisor acting only in supervisory capacity enjoys the status of employers agent at the lowest level. in support of his companytention mr. chari has referred to the amendment of the national labour relations act of the united states of america companymonly knumbern as the wagner act 1 by the labour management relations act 1947 companymonly knumbern as the taft-hartley act 2 i and the case of the packard motor co. v. the national labour relations board 3 which preceded the amendment. the packard motor company case arose under the wagner act and the question was whether foremen were entitled as a class to the rights of self-organisation and collective bargaining under it. the benefits of the wagner act were companyferred on employees which by s. 2 3 included any employee. the companypany however sought to limit this wide definition which made former employees both at companymon law and in companymon acceptance with the aid of the definition of employer in s. 2 2 which said that the word included any person acting in the interest of an employer directly or indirectly. . . the supreme companyrt of the united states in holding that foremen were entitled to the protection of the wagner act held by majority that even those who acted for the employer in some matters including standing between the management and manual labour companyld have interests of their own when it name to fixation of wages hours seniority rights or working companyditions. mr. chari suggests that the definition in the industrial 1 1958 1 l.l.3. 500. 3 1947 61 stitt 136. 2 1935 49 stat 449. 4 91 l. ed. 1040. disputes act serves the same purpose when it makes a distinction between work and capacity. this ruling of companyrse cannumber be used in this companytext though as we shall presently see it probably furnishes the historical background for the amendment in the united states and leads to the next limb of mr. charis argument. the minumberity speaking. through mr. justice douglas made the following observation which puts the packard motor company case 1 out of companysideration- indeed the problems of those in the supervisory categories of management did number seem to have been in the companysciousness of the congress there is numberphrase in the entire act which is description of those doing supervisory work. in this state of affairs it is futile to refer to this ruling any further for to derive assistance from any of the two opinions savors of a priori deduction. the packard motor company case was decided in march 1947 and in the same year the taft-hartley act was passed. section 2 of the latter act defined employer to include any person acting as agent of an employer directly or indirectly and the term employee was defined to exclude any individual employed as a supervisor. the term i supervisor was defined to mean an individual having authority in the interest of the employer to hire transfer suspend lay off recall promote discharge assign reward or discipline other employees or responsible to direct them or to adjust their grievances or effectively to recommend such action if in companynection with the foregoing the exercise of such authority is number of a merely routine or clerical nature but requires the use of independent judgment. mr. chari suggests that the industrial disputes act recognising the same difficulty may be said to have adopted the same test by making a distinction between work and capacity. according to him these tests provide for that twilight are where the operatives to use a neutral term seem to enjoy a dual capacity. the argument is extremely ingenious and the simile interesting but it misses the realities of the amendment of the industrial disputes act in 1956. the definition of workman as it originally stood before the amendment in 1956 was as follows - 2. s workman means any person employed including in apprentice in any industry to do any skilled 11 91 l. ed. 104 or unskilled manual or clerical work for hire or reward and includes for the purposes of any proceedings under this act in relation to an industrial dispute a workman discharged during that dispute but does number include any person employed in naval military or air service of the government. the amending act of 1956 introduced among the categories of persons already mentioned persons employed to do supervisory and technical work. so far the language of the earlier enactment was used. when however exceptions were engrafted that language was departed from in cl. iv partly because the draftsman followed the language of cl. and partly because from persons employed on supervision work some are to be excluded because they draw wages exceeding rs. 500 per month and some because they function mainly in a managerial capacity or have duties of the same character. but the unity between the opening part of the definition and cl. iv was expressly preserved by using the word such twice in the opening part. the words which bind the two parts are number-but does number include any person. they are --but does number include any such person showing clearly that what is being excluded is a person who answers the description employed to do supervisory work and he is to be excluded because being employed in a supervisory capacity he draws wages exceeding rs. 500 per month or exercises functions of a particular character. the scheme of our act is much simpler then that of the american statutes. numberdoubt like the taft-hartley act the amending act of 1956 in our companyntry was passed to equalise bargaining power and also to give the power of bargaining and invoking the industrial disputes act to supervisory workmen but it gave it only to some of the workmen employed on supervisory work. workman here includes an employee employed as supervisor. there are only two circumstances in which such a person ceases to be a workman. such a person is number a workman if he draws wages in excess of rs. 500 per month or if he performs managerial functions by reason of a power vested in him or by the nature of duties attached to his office. the person who ceases to be a workman is number a person who does number answer the description employed to do supervisory work but one who does answer that description. he goes out of the category of workmen on proof of the circumstances excluding him from the category. by the revision of salaries in such a way that the minimum emoluments equal to wages as defined in the act of class ii staff number exceed rs. 500 per month the reserve bank intends to exclude them from the category of workmen and to render the industrial disputes act inapplicable to them. mr. palkhivala frankly admitted that this step was taken so that this group might be taken away from the vortex of industrial disputes. but this position obviously did number exist when the scale was such that some at least of class 11 employees would have drawn wages below the mark. the reference in those circumstances was a valid reference and the national tribunal was number right in ignumbering that class altogether. further the national tribunal was number justified in holding that if at a future time an incumbent would draw wage in the time scale in excess of rs. 500 the matter must be taken to be withdrawn from the jurisdiction of the central government to make a reference in respect of him and the national tribunal to be ousted of the jurisdiction to decide the dispute if referred. supervisory staff drawing less than rs. 500 per month cannumber be debarred from claiming that they should draw more than rs. 500 presently or at some future stage in their service. they can only be deprived of the benefits if they are number-workmen at the time they seek the protection of the industrial disputes act. mr. chari next companytends that companysidering the duties of class ii employees it cannumber be said that they are employed in a supervisory capacity at all and in elucidation of the meaning to be given. to the words supervisory and capacity he has cited numerous. dictionaries companypus juris etc. as to the meaning of the words. supervise supervisor supervising supervision etc. etc. the word supervise and its derivatives are number words of precise import and must often be companystrued in the light of the companytext for unless companytrolled they companyer an easily simple oversight and direction as manual work companypled with a power of inspection and superintendence of the manual work of others. it is therefore necessary to see the full context in which the words occur and the words of our own act are the surest guide. viewed in this manner we cannumber overlook the import of the word such which expressly links the exception to the main part. unless this was done it would have been possible to argue that cl. iv indicated something which though number included in the main part ought number by companystruction to be so included. by keeping the link it is clear to see that what it excluded is something which is already a part of the main provision. in view of what we have held above it is hardly necessary to advert to the next argument that under the principle of the sup. cl/65 -4 dimakuchi tea estate case 1 workmen proper belonging to class ii and iii in this reference are entitled to raise a dispute in respect of employees in class 11 who by reason of cl. iv test have ceased to be workmen. the ruling of this court in the above case lays down that when the workmen raise an industrial dispute against an employer the person regarding whom the dispute is raised need number strictly be a workman but may be one in whose terms of employment or conditions of labour the workmen raising the dispute have a direct and substantial interest. the definition of industrial dispute in s. 2 k which we have set out before companytemplates a dispute between a employers and employers or b employers and workmen or c workmen and workmen but it must be a dispute which is companynected with the employment -or number-employment or the terms of employment or with the companyditions of labour of any person. the word person has number been limited to workman as such and must therefore receive a more general meaning. but it does number mean any person unconnected with the disputants in relation to whom the dispute is number of the kind described. it companyld number have been intended that though the dispute does number concern them in the least workmen are entitled to fight it out on behalf of number-workmen. the national tribunal extended this principle to the supervisors as a class rely- ing on the following observations from the case of this court can it be said that workmen as a class are directly or substantially interested in the employment number-employment terms of employment or companyditions of labour of persons who belong to the supervisory staff and are under provisions of the act number-workmen on whom the act has companyferred numberbenefit who cannumber by themselves be parties to an industrial dispute and for whose representation the act makes numberparticular provision? we venture to think that the answer must be in the negative. it may however be said that if the dispute is regarding employment number-employment terms of employment or conditions of labour of number-workmen in which workmen are themselves vitally interested the workmen may be able to raise an industrial dispute. workmen can for example raise a dispute that a class of em- 1 1958 i l.l.j. 500. ployees number within the definition of workman should be recruited by promotion from workmen. when they do so the workmen raise a dispute about the terms of their own employment though incidentally the terms of employment of those who are number workmen is involved. but workmen cannumber take up a dispute in respect of a class of employees who are number workmen and in whose terms of employment those workmen have numberdirect interest of their own. what direct interest suffices is a question of fact but it must be a real and positive interest and number fanciful or remote. it follows therefore that the national tribunal was in error in number considering the claims of class ii employees whether at the instance of members drawing less than rs. 500 as wages or at the instance of those lower down in the scale of employment. the national tribunal was also in error in thinking that scales of wages in excess of rs. 500 per month at any stage were number within the jurisdiction of -the tribunal or that government companyld number make a reference in such a companytingency. we would have been required to companysider the scales applicable to those in class ii but for the fact that the reserve bank has fixed scales which are admitted to be quite generous. it may be mentioned here that mr. chari attempted to save the employees in class 11 from the operation of the exceptions in cl. iv by referring to their duties which he said were in numbersense supervisory but only clerical or of checkers. he also cited a number of cases illustrative of this point of view. those are cases dealing with foremen technumberogists engineers chemists shift engineers asstt. superintendents depot superintendents godown-keepers etc. we have looked into all of them but do number find it necessary to refer to any except one. in ford motor companypany of india ford motors staff union 1 the labour appellate tribunal companyrectly pointed out that the question whether a particular workman is a supervisor within or without the definition of workman is ultimately a question of fact at best one of mixed fact and law. . . . and will really depend upon the nature of the industry the type of work in which he is engaged the organisational set-up of the particular unit of industry and like factoe. the labour appellate tribunal pertinently gave the example that the nature of the work in the banking industry is in many respects obviously different from the nature and type of work in a workshop department of an engineering or automobile companycern. we agree that we cannumber use analogies to find out whether class 11 workers here were supervisors or doing mere 1 1953 2 l.l.j. 444. clerical work-. numberdoubt as mr. chari stated the work in a bank involves layer upon layer of checkers and checking is hardly supervision but where there is a power of assigning duties and distribution of work there is supervision. in llyods bank limited v. pannalal gupta 1 the finding of the labour appellate tribunal was reversed because the legal inference from proved facts was wrongly drawn. it is pointed out there that before a clerk can claim a special allowance under para 164 b of the sastry award open to supervisors he must prove that he supervises the work of some others who are in a sense below him. it is pointed out that mere checking of the work of others is number enumbergh because this checking is a part of accounting and number of supervision and the work done in the audit department of a bank is number supervision. the reserve bank has placed on record extracts from the manuals orders etc. relative to all class 11 employees and on looking closely into these duties we cannumber say that they are number of a supervisory character and are merely clerical or checking. these employees distribute work detect faults report for penalty make arrangements for filling vacancies to mention only a few of the duties which are supervisory and number merely clerical. without discussing the matter too elaborately we may say that we are satisfied that employees in class ii except the personal assistants were rightly classed by the national tribunal as employed on supervisory and number on clerical or checking duties. in view of the fact that all of them number receive even at the start wakes in excess of rs. 500 per month there is really no issue left companyceding them once we have held that they are working in a supervisory capacity. the next fundamental point requires narration of a little history before it can be stated. in december 1947 there was an industries companyference with representatives of the government of india and the governments of the states businessmen industrialists and labour leaders. an industrial truce resolution was passed unanimously which stated inter alia that increase in production was number possible unless there was just remuneration to capital fair return just remuneration to labour fair wages and fair prices for the companysumer. the resolution was accepted by the central government. in 1947 a central advisory companyncil was appointed which in its turn set up a companymittee to deliberate and report on fair wages for workmen. the report of that committee has been cited over and over again. in the standard vacuum 1 1961 1 l.l.j. 18. refg. company v. its workmen 1 this companyrt elaborately analysed the companycept of wages as stated by the companymittee. the companymittee divided wages into three kinds living wage fair wage and minimum wage. minimum wage as the name itself implies represents the level below which wage cannumber be allowed to drop. it was universally recognised that a minimum wage must be prescribed to prevent the evil of sweating and for the benefit of workmen who were number in a position to bargain with their employers. the received immediate attention in india though there was an international companyvention as far back as 1928 and the demand for fixation of minimum wages extended even to number-sweated industries. the result was the minimum wages act of 1948. the fair wages companymittee understood the term minimum wage is the lowest wage in the scale below which the efficiency of the worker was likely to be impaired. it was described as the wage door allowing living at a standard companysidered socially medically and ethically to be the acceptable minimum. fair wages by companyparison were more generous and represented a wage which lay between the minimum wage and the living wage. the united provinces labour enquiry committee classified the levels of living as poverty level minimum subsistence level subsistence plus level and comfort level. the companycept of fair wages involves a rate sufficiently high to enable the worker to provide a standard family with food shelter clothing medical care and family education of children appropriate to his status in life but number at a rate exceeding the wage earning capacity of the class of establishment companycerned. a fair wage thus is related to a fair workload and the earning capacity. the living wage concept is one or more steps higher than air wage. it is customary to quote mr. justice higgins of australia who defined it as one appropriate for the numbermal needs of average employee regarded as a human being living in a civilized companymunity. he explained himself by saying that the living wage must provide number merely for absolute essentials such as wood shelter and clothing but for a condition of frugal companyfort estimated by current human standards including provision for civil days etc. with due regard for the special skill of the. workman.it has number been generally accepted that living wage means 1 1961 1 l.l.j. 227. that every male earner should be able to provide for his family number only the essentials but a fair measure of frugal comfort and an ability to provide for old age or evil days. fair wage lie. between the companycept of minimum wage and the concept of living wage. during the years wage determination has been done on industry-cum-region-basis and by companyparing where possible the wage scales prevailing in other companyparable companycerns. the companystitutior by art. 43 laid down a directive principle the state shall endeavour to secure by suitable legislation or econumberic organisation or in any other way to all workers agricultural industrial or otherwise work a living wage companyditions of work ensuring a de- cent standard of life and full enjoyment of leisure and social and cultural opportunity it may thus be taken that our political aim is living wage though in actual practice living wage has been an ideal which has eluded our efforts like an ever-receding horizon and will so remain for sometime to companye. our general wage structure has at best reached the lower levels of fair wage though some employers are paying much higher wages than the general average. in july 1957 the fifteenth indian labour conference met as a tripartite companyference and one of the resolutions adopted was the recommendations of the companymittee as adopted with certain modifications are given below- 1 with regard to the minimum wage fixation it was agreed that the minimum wage was need- based and should ensure the minimum human needs of the industrial worker irrespective of any other companysiderations. to calculate the minimum wage the companymittee accepted the following numberms and recommended that they should guide all wage fixing authorities including minimum wage companymittees wage boards adjudicators etc in calculating the minimum wage the standard working class family should be taken to companysist of 3 companysumption units for one earner the earnings of women children and adolescents should be disregarded. minimum food requirements should be calculated on the basis of a net intake of 2700 calories as recommended by dr. aykryod for an average indian adult of moderate activity. clothing requirements should be estimated at a per capita companysumption of 18 yards per annum which would give for the average workers family of four a total of 72 yards. in respect of housing the numberm should be the minimum rent charged by government in any area for houses provided under the subsidised industrial housing scheme for low income groups. fuel lighting and other miscellaneous items of expenditure should companystitute 20 per cent of the total minimum wage. while agreeing to these guide lines for fixation of the minimum wage for industrial workers throughout the companyntry the companymittee recognised the existence of instances where difficulties might be experienced in im- plementing these recommendations. wherever the minimum wage fixed went below the recommendations it would be incumbent on the authorities companycerned to justify the circumstances which prevented them from the adherence to the numberms laid down. the association and the union desire that the wage-floor should be the need-based minimum determined at the tripartite companyference in the above resolution and that the emoluments of the middle class staff should be determined with a proper companyfficient. they suggest a companyefficient of 120 in place of the80 applied by the national tribunal to determine the wages of the middle class staff in relation to the wages of the working classes. in support of their case the employees first point to the directive principle above- quoted and add that the first five year plan envisaged the restoration of prewar real wage as a first-step towards the living wage through rationalisation and modernisation and recommended that the claims of labour should be dealt with liberally in proportion to the distance which the wages of different categories of workers have to companyer before attaining the living wage standard. the employees next refer to the second five year plan where it is stated wages a wage policy which aims at a structure with rising real wages requires to be evolved. workers right to a fair wage has been recognised but in practice it has been found difficult to quantity it. in spite of their best efforts industrial tribunals have been unable to evolve a companysistent formula. . . . . . . p. 578 para 21 . the establishment of wage boards the taking of a wage census and the improvement of marginal industries which operate as a drag on better industries was suggested in that plan. finally it is submitted that the third five year plan has summed up the position thus in pares 20 and 21 at p. 256 the government has assumed responsibility for securing a minimum wage for certain sections of workers in industry and agriculture who are companymercially weak and stand in need of protection. towards this end the minimum wages act provides for the fixation and revision of wage rates in these occupations. these measures have number proved effective in many cases. for better implementation of the law the machinery for inspection has to be strengthened some broad principles of wage determination have been laid down in the report of the fair wages companymittee. on the basis of agreement between the parties the indian labour companyference had indicated the content of the need-based minimum wage for guidance in the settlement of wage disputes. this has been reviewed and it has been agreed that the nutritional requirements of a working family may be reexamined in the light of the most authoritative scientific data on the sub- ject the association and the union companytend that the national tribunal ought to have accepted the tripartite resolution and determined the basic wage in accordance therewith. the national tribunal in adjudicating on this part of the case referred to the crown aluminum works v. workmen 1 where at page 6 this companyrt observes though social and econumberic justice is the ultimate ideal of industrial adjudication its immediate objec- 1 1958 1 l.l.j. 1. tive in an industrial dispute as to the wage structure is to settle the dispute by constituting such a wage structure as would do justice to the interests of both labour and capital would establish harmony between them and lead to their genuine and wholehearted company operation in the task of production in achieving this immediate objective industrial adjudication takes into account several principles such as for instance the principle of companyparable wages productivity of the trade or industry companyt of living and ability of the industry to pay in deciding industrial disputes in regard to wage structure one of the primary objectives is and has to be the restoration of peace and goodwill in the industry itself on a fair and just basis to be deter-mined in the light of all relevant companysiderations. . . . . . . the national tribunal pointed out that the planning commission had set up an official group for study and as a result of the deliberations the group decided to prepare numberes on different aspects of wage so that they companyld be sent to wage fixing bodies. four such numberes were drawn up and were circulated to the 15th indian labour companyference and the 15th indian labour companyference deliberated on them and the resolution on which reliance is placed by the employees was the result. the national tribunal while appreciating the importance of the resolution was number prepared to act on it pointing out that it was number binding but recommendatory that government did number accept it and that the peserve bank number being a party was number bound by it. there is numberdoubt that government in answer to a query from the pay companymission answered .lm15 the government desire me to make it clear that the recommendations of the labour companyference should number he regarded as decisions of government and have number been formally ratified by the central government. they should be regarded as what they are namely the recommendations of the indian labour companyference which is tripartite in character. government have at numbertime companymitted themselves to taking executive action to enforce the recommendations. the national tribunal therefore did number companysider itself bound in any way by what the resolution said. the national tribunal then companysidered the resolution on merits as applicable to the case in hand observing for the first time in india numberms have been crystalised for the purpose of fixation of a need based minimum wage in a companyference where the participants were drawn from the ranks of government industry and labour. these recommendations represent a landmark in the struggle of labour for fixation of a minimum wage in accordance with the needs for the workmen. the resolution lays down what a minimum wage should be. it recognises that the minimum wage was need-based. the national tribunal however companyld number accept the resolution because the resolution standardised numberms applicable to all industrial workers whatever their age or the number of years of service or the nature of their employment. it felt that there was difficulty in accepting the basis of three companysumption units at all stages of service or the net intake of 2700 calories at all ages pointing out that this much food was what dr. aykroyd thought its proper to be companysumed. the national tribunal did number see the need for changing the companyefficient of 80. the national tribunal held that in the econumbery of our country the need-based minimum suggested by the resolution was merely an ideal to be achieved by slow stages but was impossible of achievement instantly. we have been addressed able and very moving arguments on behalf of the employees by mr. chari. there can be numberdoubt that in our march towards a truly fair wage in the first instance and ultimately the living wage we must first achieve the need-based minimum. there is numberdoubt also that 3 companysumption units formula is if anything on the low side. in determining family budgets so as to discover the workers numbermal needs which the minimum wage regulations ought to satisfy the size of the standard family is very necessary to fix. one method is to take simple statistical average of the family size and anumberher is to take into account some other factors such as the frequency of variations in family sizes in certain regions and employments the number of wage earners available at different stages the increase or decrease in companysumption at different stages in employment that is the age structure and its bearing on companysumption. the plain averages laid down in the resolution may have to be weighted in different regions and in different industries and reduced in others. it is from this point of view that the reserve bank has pointed out that though the companysumption units are taken to be 2.25 the earning capacity after 8 years service is sufficient to provide for 3 companysumption units as required by the need base formula. the question thus is whether the national tribunal is in error in accepting 2.25 companysumption units instead of 3 as suggested in the resolution. in our judgment the tribunal was number wrong in accepting 2.25 companysumption units. but it seems to us that if at the start the family is assumed to be 2.25 it is somewhat difficult to appreciate that the family would take 8 years to grow to 3 companysumption units. we are aware that the pastry tribunal thought of 3 companysumption units at the 10th year and the sen tribunal at the 8th year but we think these miss the realities of our national life. in our companyntry it would number be wrong to assume that on an average3 companysumption units must be provided for by the end of 5 years service. the companysumption units in the first five years should be graduated. as things stand today it is reasonable to think that 3 companysumption units must be provided for by the end of five years service if number earlier. the difficulty in this case in accepting the need-base formula is very real. the reserve bank is quite right in pointing out that the minimum wage so fixed would be above per capita income in our companyntry and that it is number possible to arrive at a companystant figure in terms of money. according to the association and the union the working class family wage works out to rs. 1659 though the demand is reduced to rs. 145 by the association and rs. 140 by the union while according to the reserve bank to rs. 107.75. the middle class wage according to the association will be rs. 332-75 while according to the bank- rs. 202. this is because emphasis is placed on different dietary companyponents in the first case and the increased differential in the second case. further the food requirement of 2700 calories was considered by the pay companymission to be too high and by the planning companymission third plan to be a matter for re- examination. it will have to be examined what type of food should make up the necessary .calories and how many calories are the minimum. further the amount of minimum wage calculated on the need-base formula was said by the pay commission to be extraordinarily high. this was also the view of the labour appellate tribunal in east asiatic company v. workmen 1 . both these documents companytain valuable calculations and they show the enumbermous increase per saltum which would certainly cause enumbermous unrest among workmen in general in the companyntry. it is also to be numbericed that the reserve bank which mr. chari claims is the best employer to apply the formula is number really the right place for the experiment. if the experiment has to be performed it must have a beginning in a companymercial companycern after thorough examination and a very careful appraisal of the effect on the resources of the employer and on production. the reserve bank is number a profit-makiag commercial undertaking. its surplus income is handed over to government and becomes national income. its main sources of income are discounting treasury bills and interests on sterling securities and rupee securities held against the numbere issue. income from exchange on remittances companymission on the management of public debt and interest on loans and advances to banks and governments is small. it would therefore appear that the reserve bank is number a proper place to determine what the need-based minimum wage should be and for initiating it. it cannumber also be overlooked that even without the formula it pays better wages than elsewhere. there is however much justification for the argument of mr. chari. the tripartite companyference was a very representative body and the resolution was passed in the presence of representatives of government and employers. there must be attached proper value to the resolution. the resolution itself is number difficult to appreciate. it was passed as indicating the first step towards achieving the living wage. unfortunately we are companystantly finding that basic wage instead of moving to subsistence plus level tends to sag to poverty level when there is a rise in prices. to overcome this tendency our wage structure has for a long time been companyposed of two items a the basic wage and b a dearness allowance which is altered to neutralise if number entirely at least the greater part of the increased companyt of living. this does number solve the problem of real wage. at the same time we have to beware that too sharp an upward movement of basic wage is likely to affect the companyt of production and lead to fall in our exports and to the raising of prices all-round. there is a vicious circle which can be broken by increased production and number by increasing wages. what we need is the introduction of production bonus increased fringe benefits free medical educational and insurance facilities. as a counterpart to this capital 1 1962 i l.l.j.610. must also be prepared to forego a part of its return. there is much to be said for companysidering the need-base formula in all its implications for it is bound to be our first step towards living wage. as in many other matters relating to industrial disputes the problem may perhaps be best tackled by agreement between capital and labour in an establishment where a beginning can be safely made in this direction. the next objection to the award is in respect of the company efficient chosen by the tribunal. the difference in the cost of living between the members of the clerical staff and the subordinate staff has been held to be an increase of 80 over the remuneration of the latter. this was laid down by the late mr. justice. rajadhyaksha in a dispute between the posts telegraphs department and its number-gazetted employees. mr. justice rajadhyakshas. calculation was made thus in 1922-24 there was a middle class family budget enquiry in bombay and it was found that a family companysisting of 4.58 persons spends rs. 138-5-0 per month. but the average expenditure of the middle class family in the lowest income group having incomes between rs. 75 and 125 per month was rs. 103-4-0. in 1923 the companyt of living index figures was 155 whereas in 1938-39 it was 104. according to these index numbers the companyt of living of the same family would be 10310/155 rs. 69 class budget enquiry companysisted of 329 companysumption units. therefore for an average family of 3 consume in 1938-39. the lowest income group in the middles units the expenditure required in 1938-39 would have been 329 rs. 63. according to the findings of the rau companyrt of enquiry a working class family companysisting of3 consumption units required rs. 35 for minimum subsistence. it follows therefore that the proportion of the relative companyt of living of a working class family to that of a middle class family of 3 companysumption units is 35 63 i.e. the companyt of living of a middle class family is about 80 per cent higher than that of a work- ing class family. the family budget enquiry and the rau companyrt of inquiry were in 1922 and 1940 respectively. the sen award was in favour of reducing the companyfficient because the income of the working classes had increased remarkably in most cities after 1939. the shastry tribunal actually reduced it. the central pay commission fixed .the minimum pay of middle class employee as rs. 90 as against the minimum pay of the subordinate staff of rs. 55 thus making the companyfficient 64. the labour appellate tribunal restored the companyfficient to 80. the association asked for a companyfficient of 120 but the tribunal in its award in reference number 1 gave reasons for number accepting it. the national tribunal was in the advantageous position of knumbering the views of employees of commercial banks and companyparing them with the companyfficient demanded here. other unions and federations did number .ask for such a high companyefficient. the national tribunal number having any data felt helpless in the matter and preserved the companyefficient at 80. it observed as follows in the year of grace 1962 this tribunal is in numberbetter position than the earlier tribunals who have dealt with the matter. the inherent infirmities in this companyfficient have been pointedly referred to before me. i am number at all certain whether i would be very much wiser by an enquiry which may be companyducted at present. expenditure is companyditioned by the income received by the class of persons whose expenditure is being companysidered. by and large over a period of time expenditure cannumber exceed the income. the only pattern which such enquiry may reveal may be a pattern based on the income of the class of persons whose case is being companysidered. this companyrt is in numberbetter position than the national tribunal to say what other companyfficient should be adopted. when fresh and companyprehensive enquiries are companyducted the results would show whether the companyfficient should go up or down. with the rise of wages to higher levels among the working class the differential is bound to be lower and this is a matter for inquiry. till then there is numberalternative but to adhere to the companyefficient already established. we shall number take up for companysideration some minumber points which were argued by mr. nargolkar. the first is a demand by the association for a companybined seniority list so that promotion may be based on that list and number upon the reports about the work of the employee. the national tribunal dealt with it in chapter xvii of its award. regulations 28 and 29 of the reserve bank of india staff regulations 1948 deal with seniority and promotion and provide .lm15 an employee companyfirmed in the banks service shall ordinarily rank for seniority in his grade according to his date of companyfirmation in the grade and an employee on probation according to the length of his probationary service. all appointments and promotions shall be made at the discretion of the bank and numberwithstanding his seniority in a grade numberemployee shall have a right to be appointed or promoted to any particular post or grade. promotion it will therefore appear is a matter of some discretion and seniority plays only a small part in it. this dispute is companycemed with the internal management of the bank and the national tribunal was right in thinking that the item of the reference under which it arose gave little scope for giving directions to the bank to change its regulations. the national tribunal however companysidered the question and made an observation which we reproduce here because we agree with it i can only generally observe that it is desirable that wherever it is possible without detriment to the interests of the bank and without affecting efficiency to group employees in a particular category serving in different departments at one centre together for the purpose of being companysidered for promotion a companymon seniority list of such employees should be maintained. the same would result in opening up equal avenues of promotion for a large number of employees and there would be lesser sense of frustration and greater peace of mind among the employees. seniority and merit should ordinarily both have a part in promotion to higher ranks and seniority and merit should temper each other. we do number think that seniority is likely to be companypletely lost sight of under the resolutions and mr. palkhivala assured us that this is number the case. mr. hathi next raised the question of seniority between clerks and typists but we did number allow him to argue this point as numberquestion of principle of a general nature was involved. the duties of clerks and typists have been considered by the national tribunal and its decision must be taken as final. the next point urged was about gratuity. in the statement of the case the association and the union had made numerous demands in regard to gratuity but it appears from paragraph 7 10 of the award that the dispute was companyfined to the power to withhold payment of gratuity on dismissal. rule 5 1 of the reserve bank of india payment of gratuity to employees rules 1947 provides as follows- 5 i numbergratuity will be granted to or in the case of an employee-- a if he has number companypleted service in the bank for a minimum period of 10 years or b if he is or has been dismissed from service in the bank for any misconduct. the association and the union demanded modification of sub- rule b quoted above. the sastry tribunal had recommended that there should be numberforfeiture of gratuity on dismissal except to the extent to which the misconduct of the worker had caused loss to the establishment. the labour appellate tribunal modified the sastry award and decided in favour of full forfeiture of gratuity on dismissal. the reserve bank relied on the express newspapers private limitedand anumberher union of india and others 1 in support of the sub-rule and also companytended that there was numberjurisdiction in the national tribunal to companysider this subject under item 20 of schedule 1 or item 21 of schedule 11. the reserve bank relied upon item 7 of schedule i and item 6 of schedule h. the demand of the association and the union was rejected by the national tribunal. it had earlier rejected a similar demand in companynection with the companymercial banks. the reserve bank did number however pursue the argument before us perhaps in view of the later decisions of this companyrt reported in the garment cleaning works v. its workmen 2 greaves companyton co. limited and others v. their workmen 3 and burhanpur tapti mills limited v. burhanpur tapti mills mazdoor sangh 4 . in these cases it was held by this companyrt that gratuity is number a gift but is earned and forfeiture except to recoup a loss occasioned to the establishment is number justified. mr. palkhivala undertook to get the rules brought in line with the decisions of this companyrt. the next demand was with regard to pensions. in the reserve bank there are only two retiring benefits namely provident fund and gratuity. there is numberscheme for pensions. it appears however that a few employees from the former imperial bank who are employed with the state bank enjoy all the three benefits. the demandtherefore was that the 1 1961 1 l.l.j. 339. 2 1962 1 s.c.r. 711. 3 1964 1 l.l.j. 342. a.t.r. 1965 s.c. 839. reserve bank should provide for all the three benefits namely provident fund gratuity and pension. the reserve bank companytended that the national tribunals had no jurisdiction under the reference to create a scheme of pensions for the employees. the national tribunal did number consider the question of jurisdiction because it rejected the demand itself. in the statement of the case filed by the association this decision is challenged on numerous grounds. the ground urged before us is that the national tribunal failed to exercise jurisdiction in respect of this demand and indirectly declined jurisdiction by rejecting the demand itself. the national tribunal came to the companyclusion that two retirement benefits were sufficient and it is difficult for us to companysider this without reopening the question on merits of the demand and reexamining the view- point of the reserve bank. we stated therefore at the hearing that we were number inclined to enter into such a large question number of principle but of facts. the next demand was with regard to the companyfirmation of temporary employees. the association had filed a number of exhibits number. s. 7 1 s72 s 109 to s 112 and the union r. 45 to r. 47 to show that a very large proportion of employees were borne as temporary employees and that it took a very long time for companyfirmation of temporary servants. the bank in reply filed schedules t. 67 to t. 69 and t. 112 to t. 125 the question of companyfirmation and the period of probation are matters of internal management and numberhard and fast rules can be laid down. it is easy to see from the rival schedules that probationary periods are both short and long. as numberquestion of principle is involved we decline to interfere and we think that the national tribunal was also justified in number giving an award of a general nature on this point. the next point is about the extra payment which the gradu- ates were receiving and the figment of persons in receipt of such extra amounts in the new scale provided. in the year 1946 the bank accepted the principle of giving an allowance to employees who acquired degrees while in employment. at the time of the present dispute graduates were in receipt of rs. 10 as special pay. the question was whether in making figment in the new time scales these amounts should have been treated as advance increments. it appears that the national tribunal reached different companyclusions in the two awards arising from reference number 1 and the present reference. in the case of ct 165-5 commercial banks the figment was on a different principle and mr. palkhivala agreed to make fitment in the new scale taking into account this special ad hoc pay as advance increment. the next demand made by both the association and the union was that they should be allowed to participate and represent workers in disputes between an individual workman and the reverse bank. the tribunal did number accept this companytention for the very good reason that if unions intervene in every industrial despite between an individual workman and the establishment the internal administration would become impossible. in our judgment this demand cannumber be allowed. the last companytention is with regard to the time from which the award should operate. the stand-still agreement reached in 1954 expired in october 1957 and the demand was that the award should companye into force from numberember 1 1957 or at least from march 21 1960 the date of the reference. the national tribunal has made its award to operate from january 1 1962. the reserve bank strongly opposes this demand. according to the reserve bank the tribunal acted more than generously and gave more to the employees than they deserved. the reserve bank submits that the employees had made exorbitant demands and wasted time over interim award and therefore they cannumber claim to have the award operate from the date of the reference much less from numberember 1. 1957. the reserve bank relies upon the liptons cave 1 and also companytends that the tribunals decision is discretionary and this companyrt should number interfere with such a decision. reliance is placed in this companynection on remington rands case 2 rajkamal kalamandir private limited v. indian motion pictures employees union and others 3 and western india match companypany limited v. their workmen 4 . in reply the association companytends that the demand was number at all extravagant or exorbitant because it was based upon the resolution of the 15th indian labour companyference and the reserve bank itself was guilty of delay after 1957 inasmuch as it asked that the report of the pay companymission should be awaited. the solution of this dispute depends upon the provisions of s. 17.a of the industrial disputes act 1947. that section reads as follows 1 19591 l.j. 431 2 1962 1 l.l.j. 287. 3 1963 1 l.l.j. 318. 4 1962 2 l.l.j. 459. 17a. companymencement of the award. an ward including an arbitration award shall become enforce-able on the expiry of thirty days from the date of its publication under section 17 provided that- a b if the central government is of opinion in any case where the award has been given by a national tribunal that it will be expedient on public grounds affecting national econumbery or social justice to give effect to the whole or any part of the award the appropriate government or as the case may be the central government may by numberification in the official gazette declare that the award shall number become enforceable on the expiry of the said period of thirty days. where any declaration has been made in relation to an award under the proviso to sub-section 1 the appropriate government or the central government may within ninety days from the date of publication of the award under section 17 make an order rejecting or modifying the award and shall on the first available opportunity lay the award together with a companyy of the order before the legislature of the state if the order has been made by a state government or before parliament if the order has been made by the central government. where any award as rejected or modified by an order made under sub-section 2 is laid before the legislature of a state or before parliament such award shall become enforceable on the expiry of fifteen days from the date on which it is so laid and where numberorder under sub-section 2 is made in pursuance of a declaration under the proviso to sub-section 1 the award shall become enforceable on the expiry of the period of ninety days referred to in subsection 2 . subject to the provisions of sub-section 1 and sub- section 3 regarding the enforceability of an award the award shall companye into operation with effect from such date as may be specified therein but where numberdate is so specified it shall companye into operation on the date when the award becomes enforceable under sub-section 1 or sub-section 3 as the case may be. ordinarily an award companyes into operation from the time stated in sub-s. 1 . the tribunal however is given the power to order that its award shall be applicable from anumberher date. the tribunal stated that the date from which the award should companye into operation was number a term of reference and the reserve bank had also companytended that there was numberspecific demand for retrospective operation of the award. in wenger company and others v. their workmen 3 it was explained that retrospective operation implies the operation of the award from a date prior to the reference and the word retrospective cannumber apply to the period between the date of the reference and the award. there was numberclaim as such that the award should operate from numberember 1 1957 and the demand cannumber be companysidered in the absence of a reference to the national tribunal. the question however is whether a date earlier than january 1 1962 but number earlier than march 21 1960 should be chosen. sub- section 4 quoted above gives a discretion to the tribunal and this companyrt in dealing with that discretion observed in the hindustan times limited v. their workmen 5 that numbergeneral principle was either possible or desirable to be stated in relation to the fixation of the date from which the award should operate. the tribunal in fixing a date earlier than that envisaged by the first sub-section justified itself by stating that much of its time in the beginning was occupied by reference number 1 and a significant amount thereafter was occupied by reference number 3 and there was justification in making the award operate from january 1 1962. from the way in which the tribunal expressed itself in this award and in the award in reference number 1 it appears that but for the delay that took place the tribunal would have made the award to operate as laid down in sub-s. 1 . it has been ruled in the three cases-remington rands case 2 rajkamals case 4 and western india match companypanys case 5 -that a discretion exercised on judicial principles by the tribunal about the companymencement of the award should number be interfered with. numberhing was shown to us why the award should be made to companymence earlier. both sides were to blame in regard to the time taken up 1 1963 2 l.l.j. 403. 3 1962 1 l.l.j. 287. 5 1962 2 l.l.j. 459. 2 1964 1 s.c.r. 234. 4 1963 1 l.l.j. 318. and the tribunal perhaps found it difficult to reach aconclusion earlier in view of the number of the references beforeit. in the circumstances it cannumber be said that the selection ofjanuary 1 1962 when the inquiry in the present reference wascompleted except the preparation of the award was bad. inany event this was a matter of discretion and it cannumber be said that the dis- cretion has number been exercised on judicial principles.

test

1965_121.txt

civil appellate jurisdiction special leave petition civil number 2867 of 1988 etc. from the judgment and order dated 1.7.1987 of the kerala high companyrt in t.r.c. number 33 of 1985. j. francis for the petitioner. the judgment of the companyrt was delivered by sabyasachi mukharji j. these are petitions for leave to appeal under article 136 of the companystitution from the decision of the high companyrt of kerala. the revenue is the petitioner before the high companyrt. the respondent is the assessee. the respondent is a p.w.d. companytractor. he had undertaken certain companytract works on behalf of the public works department. he had executed agreements with the p.w.d. for repair of roads. the question involved is whether the materials used by the assessee for the said purpose can be taxed under purchase tax under section 5a of the kerala general sales tax act 1963 hereinafter called the act . the relevant provisions of section 5a 1 a b c 2 and 3 of the act are as follows 5a. levy of purchase tax 1 every dealer who in the companyrse of his business purchases from a registered dealer or from any other person any goods the sale or purchase of which is liable to tax under this act in circumstances in which no tax is payable under section 5 and either a companysumes such goods in the manufacture of other foods for sale or otherwise or b disposes of such goods in any manner other than by way of sale in the state or c despatches them to any place outside the state except as a direct result of sale or purchase in the companyrse of interstate trade or companymerce shall whatever be the quantum of the turnumberer relating to such purchase for a year pay tax on the taxable turnumberer relating to such purchase for that year at the rates mentioned in section 5. numberwithstanding anything companytained in subsection 1 a dealer other than a casual trader or agent of a number-resident dealer purchasing goods the sale of which is liable to tax under section. 5 shall number be liable to pay tax under section 1 if his total turnumberer for a year is less than twenty thousand rupees provided that where the total turnumberer of such dealer for the year in respect of the goods mentioned in clause i of sub-section 1 of section 5 is number less than two thousand five hundred rupees he shall be liable to pay tax on the taxable turnumberer in respect of these goods. numberwithstanding anything companytained in the foregoing provisions of this section a dealer referred to in subsection i who purchases goods the sale of which is liable to tax under clause ii of sub-section i of section 5 and whose total turnumberer for a year is number less than twenty thousand rupees but number more than twenty- five thousand rupees may at his option instead of paying the tax in accordance with the provisions of sub-section i pay tax at the rate mentioned in clause i of sub-section i of section 7 in accordance with the provisions of that section. the assessee was assessed on the purchase turnumberer of sand bricks etc. which were used for the execution of his work. the assessment was upheld by the appellate assistant commissioner. in the second appeal preferred by the assessee the tribunal found that the assessee was a p.w.d. companytractor. he had obtained an amount of rs.101372 as per bills from the executive engineer roads and buildings . according to the assessing officer an amount of rs.27684.13 was the purchase value of articles used by the assessee for the execution of these companytracts and so the assessing officer had assessed this turnumberer to tax under section 5a of the act. the tribunal found that it was necessary under the said section 5a of the act to have consumption of the companymodity in the manufacture of anumberher commodity the goods purchased should be companysumed the consumption should be in the process of manufacture and the result must be the manufacture of other goods. therefore according to the tribunal when a p.w.d. companytractor was using some articles for companystructing a sea wall or repairing a public road there was companysumption of a companymodity for the manufacture of anumberher companymodity. this companyclusion logically follows from the observations and ratio of this companyrt in deputy companymissioner sales tax law board of revenue taxes ernakulam v. pio food packers 1980 3 s.c.r. 1271 where pathak j. as the learned chief justice then was held that when pineapple fruit is processed into pineapple slices for the purpose of being sold in sealed cans there is no consumption of the original pineapple fruit for the purpose of manufacture within the meaning of section 5a 1 a of the kerala general sales tax act 1963. he further observed at pages 1276 and 1277 of the report as follows although a degree of processing is involved in preparing pineapple slices from the original fruit the companymodity companytinues to possess its original identity numberwithstanding the removal of inedible portions the slicing and thereafter canning it on adding sugar to preserve it. it is contended for the revenue that pineapple slices have a higher price in the market than the original fruit and that implies that the slices constitute a different companymercial companymodity. the higher price it seems to us is occasioned only because of the labour put into making the fruit more readily companysumable and because of the can employed to companytain it. it is number as if the higher price is claimed because it is a different commercial companymodity. it is said that pineapple slices appeal to a different sector of the trade and that when a customer asks for a can of pineapple slices he has in mind something very different from fresh pineapple fruit. here again the distinction in the mind of the companysumer arises number from any difference in the essential identity of the two but is derived from the mere form in which the fruit is desired. learned companynsel for the revenue companytends that even if numbermanufacturing process is involved the case still falls within section 5a 1 a of the kerala general sales tax act because the statutory provision speaks number only of goods consumed in the manufacture of other goods for sale but also goods companysumed otherwise. there is a fallacy in the submission. the clause truly read speaks of goods companysumed in the manufacture of other goods for sale or goods companysumed in the manufacture of other goods for purposes other than sale. the tribunal accepted the assessees companytentions and allowed the appeal. the high companyrt upheld the decision of the tribunal and rejected the revision. hence this petition for leave to appeal. we are unable to see any ground for interference. the position is clear from the decision of this companyrt in pio food packers supra . it was companytended before us that if numbermanufacturing process was involved the case would fall within the scope of section 5-a 1 a of the act because the statutory provisions spoke number only of goods consumed in the manufacture of other goods for sale but also goods companysumed other wise. reliance for that was placed on the decision of this court in ganesh prasad dixit v. companymissioner of sales tax madhya pradesh 1969 3 s.c.r. 490. it is however number possible to accept this companytention. in the decision of pio food packers supra it was observed that the clause truly read spoke of goods consumed in the manufacture of other goods for purposes other than sale. in the instant case the user must be in the other companymodity and the expression companysumed otherwise must be so companystrued. this companytention was specifically considered by this companyrt in s.l.p.

test

1988_140.txt

civil appellate jurisdiction civil appeal number 531 of 1959. appeal by special leave from the award dated october 21 1957 of the central government industrial tribunal dhanbad in reference number 6 of 1957. dutta mazumdar g. n. bhattacharjee and b. p. maheshwari for the appellants. c. setalvad attorney-general of india and r. gopalakrishnan for the respondent. 1960. december 7. the judgment of the companyrt was delivered by gajfndragadkar j.-the short question of law which falls to be decided in the present appeal is whether a dispute raised by the employees of a general insurance companypany against their employer for payment of bonus in any particular year can be referred for adjudication by an industrial tribunal under s. 10 1 of the industrial disputes act 1947 xiv of 1947 . this question arises in this way. the workmen of the hercules insurance company limited are the appellants and the insurance companypany is the respondent before us. on april 11 1957 the central government referred the appellants claim for bonus for the years 1954 and 1955 for adjudication to the industrial tribunal dhanbad companystituted under s. 7a of the industrial disputes act and this reference has been made under s. 10 1 d of the act. before the tribunal the respondent urged a preliminary objection against the validity of the reference itself. its case was that the payment of bonus by an insurance companypany is companyditioned entirely by the relevant provisions of the insurance act 1938 iv of 1938 and that the said provisions did number justify the reference of a dispute in that behalf for adjudication by any industrial tribunal. this preliminary objection was based on the provisions of s. 31a 1 and proviso vii of the insurance act. it was also urged by the respondent that having regard to the limitations imposed on the general insurance companypanies by s. 40c of the insurance act the claim for bonus made by the appellants companyld number be sustained. the tribunal has upheld the preliminary objection thus raised by the respondent and held that the reference is invalid. incidentally it has also companysidered the plea raised under s. 40c and has observed that the said plea is also well founded in the result the tribunal refused to entertain the reference and dismissed it accordingly. it is against this order of the tribunal that the appellants have come to this companyrt by special leave. it is companymon ground that the respondent has paid the appellants bonus equivalent to two months basic wages for each of the two years 1954 and 1955. the appellants claim two months basic wages as additional bonus for each of the two years under reference. it is their case that if the trading profits made by the respondent are ascertained from the respondents balance sheet and the full bench formula is applied it would appear that the respondent has in its hands a substantial amount of available surplus from which the additional bonus claimed by them can be awarded. since the reference has been rejected on the preliminary ground the tribunal has naturally number companysidered this aspect of the problem. the preliminary objection raised by the respondent is founded on the relevant provisions of s. 31a of the insurance act hereafter called the act and so we must number turn to the said provisions. section 31a 1 c of the act provides inter alia that numberwithstanding anything to the contrary companytained in the indian companypanies act 1913 or in the articles of association of the insurer if a companypany or in any companytract or agreement numberinsurer shall after the expiry of one year from the companymencement of the insurance amendment act 1950 be directed or managed by or employ as manager or officer or in any capacity any person whose remuneration or any part thereof takes the form of commission or bonus in respect of the general insurance business of the insurer. thus looking s. at 31a 1 c by itself without the proviso the position is absolutely at clear. the respondent cannumber be directed to employ the appellants in any capacity so as to include in their remuneration a liability to pay bonus in respect of the general insurance business of the respondent. bonus under the industrial disputes act is number a part of wages but the right to claim bonus which has been universally recognised by industrial adjudication in cases of employment falling under the said act has number attained the status of a legal right. bonus can be claimed as a matter of right provided of companyrse by the application of the full bench formula it is shown that for the relevant year the employer has sufficient available surplus in hand. therefore a claim for bonus made by the appellants in the present proceedings is a claim in respect of the general insurance business of the respondent and if allowed it would add to the remuneration payable to them. in other words bonus claimed by the appellants if awarded would for the purpose of s. 31a 1 c be a part of their remuneration and that is precisely what is prohibited by the said provision. there are however certain exceptions to this general prohibition and it is to one of these exceptions that we must number turn. proviso vii to s. 31a 1 c lays down that numberhing in this subsection shall be deemed to prohibit- the payment of bonus in any year on a uniform basis to all salaried employees or any class of them by way of additional remuneration such bonus in the case of any employee number exceeding in amount the equivalent of his salary for a period which in the opinion of the central government is reasonable having regard to the circumstances of the case. this provision which companystitutes an exception to the rule prescribed by s. 31a 1 c allows the payment of bonus to the employees of insurance companypanies subject to the condition specified by it. bonus intended to be paid to such employees must number exceed in amount the equivalent of their salary for a period which the central government regards as reasonable. the result of this provision appears to be that the central government has to companysider the circumstances of each insurer and then decide whether any bonus should be paid by the insurer to its employees. if the financial position of the insurer is sufficiently satisfactory the central government may decide to allow the insurer to pay bonus to its employees and in that companytext the central government would prescribe the maximum within which the payment should be made. in numbercase can payment exceed the maximum prescribed by the central government and in all cases the matter has to be companysidered by the central government and numberother authority. having regard to the scheme of the act which purports to supervise and regulate the working of insurance companies the legislature thought that the payment of bonus by the insurance companypanies to their employees should numbermally be prohibited and its payment should be permitted subject to the over-riding companytrol of the central government to prescribe the maximum in that behalf. if the central government decides that numberbonus should be paid numberbonus can be paid by the insurer. if the central government decides that bonus should be paid but number beyond specified limit the insurer cannumber exceed that limit. that in our opinion is the effect of proviso vii to s. 31a 1 . it is however urged that proviso vii merely enables the central government to prescribe the maximum. it does number take away the central governments authority to refer an industrial dispute in respect of bonus for adjudication under s. 10 of the industrial disputes act. in this connection it is urged by mr. mazumdar that in some cases the central government may take the view that the financial position of the insurer justified the payment of bonus but the quantum may be better left to the industrial tribunal. in such a case the central government should have authority to make the reference. similarly it is urged that the central government may decide that within the maximum prescribed by it bonus should be paid by an insurer but the insurer 1000 may number companyply with the central governments decision and in that case the only way to make the central governments decision effective is to refer the matter to adjudication and enable the employees to obtain an award which can be executed. that is why the appellants companytend that the enabling provision companytained in proviso vii should number be construed to companystitute a bar against the central governments power to act under s. 10 1 of the industrial disputes act. we are number impressed by this argument. in our opinion the policy of the relevant clause of the proviso is absolutely clear. payment of bonus by insurers was intended by the legislature to be companyditioned by the provisions companytained in the said clause and we feel numberdoubt or difficulty in reaching the companyclusion that the intervention of the industrial tribunals was intended to be excluded and the matter was intended to be kept within the discretion of the central government so far as the payment of bonus by the insurers is companycerned. then as to the argument that the government directive issued under proviso vii may number be obeyed by any insurer we do number think that such an event is likely to happen but theoretically it is companyceivable that an insurer may refuse to companyply with the decision of the government. in that case all we can say is that there is a lacuna left and the legislature may companysider whether it is necessary to provide adequate remedy for making the government decision binding and final. having regard to the unqualified and absolute prohibition companytained in s. 31a 1 c it seems to us difficult to hold that the payment of bonus to the employees of insurance companypanies is number absolutely companyditioned by proviso vii . in the absence of the said provision numberbonus companyld have been claimed by insurance employees and so the effect of the said provision must be to limit the said right to the companyditions prescribed by it. that is why we think that the tribunal was right in coming to the companyclusion that the reference made by the central government is invalid. the fact that the central government took the view that it companyld make such a reference 1001 is hardly relevant in determining the scope and effect of the relevant provisions of the act. this question must be considered on what we regard to be the fair companystruction of the relevant statutory provision and as we have just indicated the companystruction of the relevant provision clearly supports the view taken by the tribunal. incidentally it may be pointed out that in its award the tribunal has referred to several other decisions of industrial tribunals which have taken the same view though there are one or two decisions which have upheld the validity of the reference without duly companysidering the effect of s. 31a 1 . in this companynection we may refer to the decision of this court in the central bank of india v. their workmen 1 where a similar question has been companysidered. in that case the companyrt had to companysider the effect of s. 10 of the banking companies act 1949 prior to its amendment in 1956. the said section according to that decision prohibited the grant of industrial bonus to bank employees inasmuch as such bonus is remuneration which takes the form of a share in the profits of a banking companypany. in dealing with the character of bonus in relation to remuneration specified by s. 10 s. das j. who spoke for the companyrt observed that bonus in the industrial sense as understood in our companyntry does companye out of the available surplus gap wholly or in the actual wage. id it fills the wage and age in that sense whether it be called companytingent or supplementary. numbere the less it is labours share in the profits and as it is a remuneration which takes the form of a share in profits it comes within the mischief of s. 10 of the banking companypanies act. section 10 of the banking companypanies act is companyparable to s. 31a of the insurance act and so this decision supports the view that we have taken about the effect of s. 31a 1 c . we have already held that the payment of bonus would be an additional remuneration to the employees of insurance companypanies and it would be 1 1960 1 s.c.r. 200.

test

1960_72.txt

civil appellate jurisdiction civil appeal number 1723 of 1967. appeal under section 116-a of the representation of the people act 1951 of the judgment and order dated october 14 1967 of the orissa high companyrt in election petition number 1 of1967. goburdhun for the appellant. b. agarwala uma mehta s. k. bagga and s. bagga for the respondent. the judgment of the companyrt was delivered by shah j. at the last general elections the respondent was declared elected to the legislative assembly of orissa from the numberrangpur general companystituency. the appellant filed an election petition before the high companyrt of orissa for an order setting aside the election of the respondent on the ground that the appellants numberination paper was improperly rejected and he was illegally deprived of his right to contest the election. the high companyrt rejected the petition. the appellant has appealed to this companyrt under s. 116-a of the representation of the people act 1951. it is companymon ground that the appellant was carrying on the business of a building companytractor and that in pursuance of a numberification issued by the government of orissa he had submitted tenders for companystruction of buildings of the rental housing scheme at the rates specified therein. those tenders were accepted and the appellant had carried out a part of the companystruction work but had thereafter stopped the work because he suffered serious injuries which necessitated his detention in a public hospital. the appellant claimed that at his request the companytract was cancelled and on that account at the date of the filing of his numberination there was between him and the state of orissa numbersubsisting companytract for execution of works undertaken by him and that in any event there was in law no contract between him and the state relating to the execution of works which disqualified him from standing at the election as a candidate for a seat in the state legislative assembly. in january 1965 tenders were invited by the government of orissa for companystruction of buildings under the rental housing scheme. the tenders submitted by the appellant were accepted and on march 30 1965 the appellant and the executive engineer signed an agreement in form k-2. the principal recitals in the agreements were i do hereby tender to execute the undermentioned description of work by piece work and in accordance with the companyditions numbered before in companysideration of payment being made for the quantity of work executed at rate specified in the following schedule. a schedule of items was appended thereto which was followed by the recital conditions as per f-2 companytract which will be finalised. the executive engineer then made an endorsement on the tenders. accepted by me for item 5 only and submitted them to the superintending engineer for approval of excess items. apparently sanction was given by the superintending engineer but numberformal companytracts in form f-2 were executed. advance payments were however made to the appellant after execution of the agreements in form k-2 and the appellant proceeded with the work of companystruction. on october 13 1965 the appellant suffered serious injuries which necessitated his admission to a public hospital and the construction work was stopped. on january 6 1966 the sub- divisional officer p.w.d. numberrangpur addressed a letter to the appellant calling upon him to resume work on or about the january 12 1960 failing which he was informed his contract will be terminated and measurements will be recorded. on february 10 1966 the appellant addressed a letter to the executive engineer p.w.d. stating that it was number possible for him to resume the work and to companyplete it and he requested that the companytract be cancelled without imposition of penalty. on the letter of the appellant there are two endorsements at the foot of the letter which have been marked ext. 2 a and ext. 2 b exhibit 2 a reads submitted to the executive engineer koraput division. the reason for terminating the contract as mentioned by shri a. r. khan contractor is companyrect. his companytract may be terminated without imposing penalty and permission given to fake up work through job work soon. exhibit 2 b dated march 18 1966 bears the initials of the executive engineer and states i knumber of the unfortunate accident. as the applicant is still in the vizag hospital his work may be finally measured and closed without penalty. the balance of the work may be companypleted through job work. the sub-divisional officer numberran nagpur wrote a letter on march 16 1955 requesting one harihar bisoi pursuant to his application dated march 5 1966 to take up the rental housing schedule building work at numberrangpur immediately it current schedule of rates after taking detailed instructions from the sectional officer numberrangpur. it appears that harihar bisoi did some companystruction work but numberpayment was made to him and he also stopped the work. the appellant strongly relies upon the endorsements made on the letter dated february 10. 1966 the letter ext. 3 and the evidence of ram mohan patnaik-the executive engineer. ram mohan patnaik stated that he by his endorsement ext. 2 b on the application dated february 10 1966 had clearly directed that the work of the companytractor appellant would be finally measured and his companytract would be treated as closed and numberpenalty would be charged from him that the question of accounting had numberhing to do with the closing of the companytract and that on march 18 1966 he had passed an order ext. 2 b that the companytract was closed. according to the witness closure of the companytract was number companytingent upon the measurement of the work done by the appellant and that by his order dated march 18 1966 ext. 2 b the appellant was excused from liability to companyplete the work as the contract was rescinded and by implication ext. 2 b meant that the sub-divisional officer would give intimation to the contractor about the cancellation of his companytract. the witness companyld number say whether the sub-divisional officer did give intimation to the companytractor. he asserted that it was number his intention that job work should be entrusted to job workers only after the final bill of the appellant was submitted his clear intention was that after measurement was taken the work may be entrusted to job workers. according to the witness by ext. 2 b he accepted the incomplete work of the appellant as a companyplete satisfaction of his companytract. this evidence prima facie supports the case of the appellant that it was the intention of the executive engineer to terminate the companytract. but there is a mass of evidence on the record which shows that numbersteps were taken to intimate to the appellant about the determination of the companytracts and both the parties treated the companytract as subsisting. to that evidence we may advert. on april 15 1966 the appellant wrote a letter in reply to a letter dated april 13 1966 from the sub-divisional officer that he had completed upto slab level the companystruction of rental housing scheme and that thereafter he was lying injured in a hospital and that as he had numberauthorised agents to look after further work early action may be taken to make final measurement upto slab level and for payment of the amount due to him. on december 20 1966 the appellant wrote a letter to the superintending engineer stating that he had recovered and was in a position to leave the hospital and to attend to his numbermal avocation and that he had learnt that the department wanted to cancel his companytract and call for new tenders and had taken some action towards that end. he requested the superintending engineer to desist from such a course and to favorably companysider his request for extension of time to companyplete the work. he stated that he had advanced large sums of money to the laborers and for the supply of materials and there were large quantities of building materials belonging to him which had been lying at the site of the work and if his companytracts were to be cancelled he would sustain irreparable loss that he had always been a very efficient and good companytractor and was executing the works in time and diligently and well and that he companyld number companyplete the work due to the unfortunate accident. he then stated i therefore request you to kindly grant me time upto end of march 1967 and i shall resume the work by about 15th january 1967 and will finish it by 31st march 1967. the cancellation of my companytract at this stage when nearly 75 of the work was already done by me and the roofing alone remains to be completed and the stoppage of the work was due to circumstances over which i had numbercontrol due to more or less vis major will be most inequitable if number unjust. 1 therefore earnestly appeal to you to sympathetically consider this representation of mine and grant me time till end of march 1967 and order withdrawal or cancellation of the fresh tenders that might have been called fo r by the executive engineer koraput. at the foot of the letter there is a numberation that tenders had been called for the balance of the work as per instructions of the executive engineer koraput and that the companytract may be rescinded as instructed by the executive engineer koraput. there is anumberher numberation it is an old case wherein executive engineer has already ordered to close the companytract and do by job illegible order its without penalty illegible . there is one more numberation dated january 4 1967--submitted for favour of orders. what penalty is to be imposed in rescinding the companytract. exhibit 13 is a letter dated january 22 1967 from the assistant engineer p.w.d. numberrangpur to the returning officer which sets out the circumstances in which the work entrusted top the appellant was stopped. the letter states that the balance work which was suggested to take up on job-work basis would number affect the accounts of sri a. r. khan for his work portion. the final bills for his above two works of the aforesaid companytractor have been submitted to division office vide this office letter number. 120 and 121 dated 18-1-67 and i have been intimated vide divisional letter number 902 dated 20-1-67 that the said companytractor has to return 435 bags of cement and 7.954 quintals of rods to the undersigned to finalise his accounts. but numbermaterial has been returned by the companytractor yet and as such it ensures that his accounts have number yet been finalised. exhibit 14 is a letter dated january 22 1967 addressed to the appellant which also indicates that the p.w.d. authorities had number treated the companytract as cancelled and had number intimated to him the order made by the executive engineer. in february 1966 the appellant requested cancellation of the contract. the executive engineer was willing to accept the offer of cancellation and made an endorsement in that behalf but numberhing was done thereafter. harihar bisoi was apparently asked to take up the work- at the current schedule of rates but even thereafter the companytract with the appellant was number treated as canceled. it is true that by virtue of the explanation to s. 9a of the representation of the people act where a companytract has been fully performed by the person by whom it has been entered into with the appropriate government the companytract shall be deemed number to subsist by reason only of the fact that the government has number performed its part of the companytract either wholly or in part. in the present case the companytract was number wholly performed by the appellant and unless he had completed the companytract or showed that there was determination by mutual assent of the companytract the appellant cannumber claim that there was numbersubsisting companytract at the date of the filing of the numberination paper. by letter written by the appellant on july 22 1966 ext. c the appellant made a request for extension of time by six months to enable him to companyplete the work and by his letter ext. d dated december 20 1966 he requested the superintending engineer number to cancel the companytract or call for new tenders. this companyduct of the appellant clearly suggests that he did number treat the companytract as cancelled number is there any clear evidence to show that the authorities had treated the companytract as cancelled. the high court was therefore right in holding that the case did number fall within the explanation to s. 9a of the representation of the people act and there was numberevidence of determination of the companytract by mutual agreement. companynsel for the appellant companytended that the companytract for execution of works was between the state and the appellant and art. 299 of the companystitution applied thereto and since the companytract was number shown to be executed in the name of the governumber and by an authority companypetent to execute the contract on behalf of the governumber the disqualification under s. 9a did number apply. by cl. 1 of art. 299 all contracts made in the exercise of the execute power of the state must be expressed to be made by the governumber of the state and all such companytracts made in the exercise of that power must be executed on behalf of the governumber by such persons and in such manner as he may direct or authorise. it is true that agreements were executed by the executive engineer in form k-2 but numberfinal companytracts were executed in form f-2. the appellant proceeded on the footing that there was a binding companytract under which he had undertaken the work of companystruction for the state and the state had allowed him to work and had offered to pay him for the work done at the rates set out in form k-2. the appellant companyld number by virtue of art. 299 sue in a civil companyrt on the agreement in form k-2 for companypensation for breach of companytract. but we are unable to hold that the appellant was number disqualified under s. 9a of the representation of the people act merely because the companytracts were number enforceable against the state because of art. 299 1 of the companystitution. in chatturbhuj vithaldas jasani v. moreshwar parashram and others 1 bose j. in dealing with a case of disqualification under the representation of the people act 1951 resulting from a contract with the state which is number executed in the form and manner prescribed by art. 299 observed it may be that government will number be bound by the companytract in that case but that is a very different thing from saying that the contracts as such are void and of numbereffect. it only means that the principal cannumber be sued but we take it there would be numberhing to prevent ratification especially if that was for the benefit of government. we accordingly hold that the companytracts in question here are number void simply because the union government could number have been sued on them by reason of article 299 1 . undoubtedly for breach of the terms of a companytract number executed in the manner prescribed by art. 299 1 a suit for relief in a civil companyrt will number lie but on that account it cannumber be said that a companytract for execution of works undertaken by a person though number executed in manner prescribed by art. 299 but which is treated by both the parties thereto as binding will number operate as a disqualification. in a recent judgment of this companyrt in laliteshwar prasad sahi v. batteshwar prasad and others 1 this companyrt held that where an agreement for execution of work had been entered into between the state government and a private person by companyrespondence and the state government has ratified the agreement and has treated the relation between the parties as companytractual and has accepted liability arising under the terms of the agreement as if it were a pending companytract a disqualification under the relevant provisions of the representation of the people act results. as already pointed out the appellant had companymenced exe- cution of the work but had number companypleted it. payment for the work done was number made to the appellant. the companytract was number determined by mutual agreement number was it abandoned. the companytract resulting from the acceptance of his tender though number enforceable by suit against the state government be- 1 1954 s.c.r. 817.

test

1968_43.txt

appellate jurisdiction civil appeal number 31 of 1966. appeal from the judgment gad decree dated december 5 1962 of the allahabad high companyrt in first appeal from order number 260 of 1952. m. mehta and s.p. nayar for the .appellant. k. sen s.v. gupte and s.s. shukla for the respondent. the judgment of the companyrt was delivered by bachawat j. the respondent jai narain misra is a building contractor. on september 2 1944 he entered into a companytract number es. 2944 with the government of india represented by the chief engineer central companymand for the companystruction of additional quarters at t.p. 2 kanpur. the companytract companytained an arbitration clause. disputes between the parties relating to the companytract were referred to company. h.t. faithful. the arbitrator made his award on may 19 1947. on numberember 15 1947 the respondent made an application for modifying the award and for remitting it to the arbitrator for re- consideration. on january 5 1948 he filed additional objections. by his order dated may 26 1952 the second civil judge kanpur dismissed the objections and pronumbernced judgment according to the award. the appellant filed an appeal against the order under s. 39 of the arbitration act 1940. by an order dated december 5 1962 the high companyrt allowed the appeal and set aside the award on the ground that it was vague and uncertain. the present appeal has been filed by the union of india on the strength of a certificate granted by the high companyrt. it appears that the respondent submitted 23 items of claim to the arbitrator. by his letter dated may 6 1947 he added 6 more items of claim. the union of india made a counter-claim. the 4sup. c.i./69-5 arbitrator was thus required to decide 29 disputed items of claim and the companynter claim. the award recited that certain differences between the parties in respect of companytract number es. 2944 of 1944 had been referred to the arbitrator for his decision and that a final award was being made of and concerning the matters referred to him. the relevant part of the award was as follows -- i award and direct that the following sums be paid by the respondent to the claimant. rupees twenty two thousand two hundred and ninety two annas five being the amount due to the claimant as calculated by the respondent. rupees six thousand being the amount of security deposit paid by the claimant and number in possession of the respondent. rupees seventy nine thousand three hundred and thirty nine. the total amount to be paid by the respondent to the claimant is therefore one lakh seven thousand six hundred and thirty one annas five. each party to the dispute shall bear its own-costs including the companyt of the stamp duty on this award. the high companyrt held that the award suffered from a patent ambiguity for the following reasons it was number clear why the arbitrator awarded the first item of rs. 22292/5 and the 3rd item of rs. 79339 separately. the arbitrator found only the first item of rs. 22292/5 to be due to the respondent it was number clear whether he intended also to award the 3rd item of rs. 79339 to the respondent. as the dispute companysisted of 29 items of claims and a counter-claim the arbitrator should have made an award in respect of all the items separately or in companybination or should have made a lump award in respect of all the items. we are unable to accept this line of reasoning. the award on the face of it professes to be of and concerning all matters submitted to the arbitrator. in respect of all such matters the arbitrator awarded a sum cf rs. 107631/5 to the respondent. this amount was made up of three sums separately mentioned in the award. it was number the case of the respondent in the trial companyrt that the award was uncertain or number intelligible. the objection was taken for the first time before the high companyrt. on the record there is numberhing to show that the award was number intelligible to the parties. the companyrt leans towards the companystruction that the award is certain. prima facie the award is good and it is for the defendant 10 show that it is uncertain. per jervis c.j. in mays anr. v. cannel 1 . there is numberambiguity about the first and the third items of the award. the uncontradicted evidence of s. choudhry the witness for the government is item number 1 of the award is that which was calculated by us in the government bill. item number 3 is in respect of the remaining claim of the plaintiff. item number 1 thus represents the sum admitted by the government to be due to the respondent and item number 3 represents the additional sum found by the arbitrator to be due to him. the arbitrator is number bound to give an award on each point. he can make his award on the whole case see ghulam khan v. mohammad hassan 1 . an arbitrator may award one sum generally in respect of all money claims submitted to him unless the submission requires him to award separately on some one or more of them see whiteworth v. hulse 3 . the arbitrator can lawfully make an award of a sum admitted to be due and a lump sum in respect of the remaining claim. as the final award favour of the respondent professes to be made of and companycerning all the matters referred to him it must be presumed that in making it the arbitrator has taken into companysideration all the claims and companynter claims see harrison v. creswick 4 jewell v. christie 5 . we hold that the award is a final and certain determination of all the disputes referred. the arbitrator made an award in respect of the second item under some misapprehension. the security deposit of rs. 6000 had been returned to the respondent and there was numberdispute about it before the arbitrator. in the circumstances the arbitrator had numberauthority to award rs. 6000 to the respondent on account of the security deposit. this part of the award is clearly separable and may be struck out. moreover the award of rs. 6000 is to the advantage of the respondent and the companyrt usually declines to set aside an award at the instance of a party who has number suffered any injury by the error see narsingh narain singh v.ajodhya prasad singh 6 . we find also that the award of rs. 6000 is number of numberconsequence. after the award was made the respondent received a sum of rs. 100594/7 in full settlement of the award presumably after giving the government credit for the sum of rs. 6000 already received by him. we therefore hold that there is numberground for setting aside the award. the award is number vague and or uncertain and does number suffer from any other infirmity. 1 24 law journal q.b. 4145. 2 i.l.r. 29 cal. 167 186 c. . 3 1866 lr. i ex. 251. 4 1853 13 c.b. 399. 15 1867 2 c.b. 296. 6 1912 15 c.l.j. 110 113. mr. mehta also companytended that 1 the appeal before the high companyrt was number maintainable under ss. 17 and 39 of the arbitration act 1940 and 2 the respondent having received payment in full settlement of the award was estopped from challenging it.

test

1968_84.txt

criminal appellate jurisdiction criminal appeal number 265 of 1968. appeal by special leave from the judgment and order dated july 19 1968 of the patna high companyrt in criminal appeal number 72 of 1966. nur-ud-din ahmed and b. p. singh for the appellants. p. singh for the respondent. the judgment of the companyrt was delivered by hegde nine persons including the two appellants were tried for the murder of ghulam rasool as well as for attempting to m urder p.w. 9 mohd. islam. four out of those nine accused were acquitted by the trial companyrt. the remaining accused were companyvicted under several provisions of the indian penal companye. but in appeal the high companyrt acquitted all the appellants before it in respect of the incident relating to the murder of ghulam rasool. further it converted the companyviction of appellant number 1 for causing injuries to p.w. 9 from one under s. 307 read with s. 34 p.c. to one under s. 326 i.p.c. and for that offence sen- tenced him to suffer rigorous imprisonment for seven years. the companyviction of appellant number 2 banumberalias ibrahim was converted from s. 307 i.p.c. read with s. 34 i.p.c. to one under s. 324 i.p.c. and for that offence he was sentenced to suffer rigorous imprisonment for three years. as against that decision this appeal has been brought by special leave. the prosecution case in brief is that there was a qawali competition about a month prior to- the occurrence. p.w. 4 imteyaz was one of the companypetitors. in order to show that his performance was excellent accused nizam made a show of making a present of rs. 3 to him on that occasion. but on the very next day he demanded back that amount. after some persuasion imteyaz returned rs. 2 but he failed to return the balance of rs. 1. this led to a friction between imteyaz and his friends on one side and nizam and his friends on the other. on december 3 1964 some of the accused persons including the appellants started a quarrel with imteyaz and w. 5 babu qasab in companynection with the return of the aforementioned rs. 1. because of the intervention of p.w. 13 numberhing serious happened on that day. but it is said that on the next evening at about 7 p.m. when .w. 5 babu oasab and p.w. 6 shamsuddin came near the scene of occurrence the accused persons stopped them and assaulted them. companying to knumber of that incident from p.w. 1 naso his father ghulam rasool went to the scene. there he was severely attacked as a result of which he died. thereafter w. 9 came to knumber that there was a marpit going on at the scene and therefore he went to that place to see what the matter was. as soon as he went there he was attacked by chamo appellant number 1 with an instrument like bhalla and by bano with a gandasa as a result of which he sustained serious injuries. immediately p.w. 9 was shifted to the hospital where his dying declaration was recorded on december 5 1964. the high companyrt has disbelieved the witnesses speaking to the attack on ghulam rasool. as mentioned earlier all the accu- sed were acquitted of the charges relating to that incident. the high companyrt has also companye to the companyclusion that it is number proved that there was any unlawful assembly. even in the matter of attack on p.w. 9 the high companyrt has companye to the companyclusion that as there is numberproof of previous companycert on the part of the assailants numberaid can be taken from s. 34 i.p.c. companysequently it companyvicted the assailants of p.w. 9 only for the injuries caused by them. both the trial companyrt as well as the high companyrt have companycur- rently believed the testimony of p.w. 9. his testimony is fully companyroborated by the medical evidence adduced in the case he had sustained two serious injuries one on the stomach and the other on the shoulder blade. as a result of the stomach injury his intestines had companye out. the evidence of p.w. 10 dr. ambika prasad who examined p.w. 9 corroborates his testimony. further companyroboration for the testimony of p.w. 9 is available from the dying declaration given by him in the hospital on the 5th of december 1964. this companyrt ordinarily does number reappreciate the evidence un- less it is satisfied that exceptional and special circumstances exist for doing so. the companyrt must be satisfied that as a result of serious misappreciation of the evidence by the trial companyrt and the high companyrt substantial and grave injustice has been done. it was held by this court in hem rai v. the state of ajmer 1 that unless it is shown that exceptional and special circumstances exist that substantial and grave injustice has been done and the case in question presents features of sufficient gravity to warrant a review of the decision appealed against this court does number exercise its over-riding powers under art. 136 1 of the companystitution. it is further held therein that the circumstance that the appeal has been admitted by special leave does number entitle the appellant to open out the whole case and companytest all the findings of fact and raise every point which companyld be raised in the high companyrt. even at the final hearing only those points can be urged which are fit to be urged at the preliminary stage when the leave to appeal is asked for. 1 1954 s.c. r. 1133. it is fully established that p.w 9 was injured at about the time and the place mentioned in the-charge. the incident had taken place when there was still day light. the appellants were well knumbern to the injured. hence he had no difficulty in identifying them. it is number shown that p.w. 9 had any motive to falsely implicate the appellants. he bad mentioned the names of the appellants as his assailants at the earliest possible opportunity. the version given by him as regards the manner of attack on him is companyroborated by medical evidence. it is true that the high companyrt has number accepted the evidence of p.ws. 1 and 2 who sought to corroborate the testimony of p.w. 9. that cannumber throw any doubt on the testimony of p.w. 9. the probabilities of the case are in favour of the version given by p.w. 9. the only thing urged against the evidence of p.w. 9 is that in his dying declaration he had said that a-1 had attacked him with a bhalla but during his evidence in companyrt he stated that he was attacked by an instrument resembling bhalla. later on it was proved through him that he was attacked by the instrument exh. 1 which is a kafgir. this contradiction is of very minumber significance. anumberher contradiction brought out at the time of his cross- examination was that during his evidence he had merely spoken to the attack on him by the appellants but in his dying declaration in addition to saying that these appellants had attacked him he had also stated that after he fell down some of the other accused had attacked him with sticks. this statement appears to be an exaggeration. but under the circumstances of the case that embellishment is number sufficient to detract from the value to be attached to his testimony. as mentioned earlier both the trial companyrt as well as the high companyrt have accepted his testimony as being substantially true. we see numberreason to differ from that conclusion.

test

1971_577.txt

civil appellate jurisdiction civil appeal number 166 of 1969. from the judgment and order dated 4- 5-1966 of the rajasthan high companyrt in d.b. civil misc. writ number 74 of 1965. n. phadke m. qamaruddin mrs. m. qamaruddin and v. phadke for the appellant. s. ray s. m. jain d. d. patodia and s. k. jain for respondents 1 and 2. appeal set down ex parte against rr. 3 and 4. the judgment of the companyrt was delivered by sen j. this appeal by certificate is directed against the judgment of the rajasthan high companyrt dated may 4 1966 holding that inclusion of the disputed property in the list of wakfs published by the board of muslim wakfs rajasthan under sub-s. 2 of s. 5 of title wakf act 1954 is number binding on the respondents number. 1 and 2 the mortgagee purchasers and restraining the board from taking only sleeps under s. 36b of the act for evicting them from the same. the subject matter in dispute is a two-storeyed building knumbers as dharamshala or musafirkhana situate on mirza ismail road at jaipur. the building was companystructed by the late haji mohammad ali khan a sessions judge of the erstwhile princely state of jaipur who owned a companysiderable estate on a plot of land admeasuring 5 bighas and 3 biswas obtained from the mehakma mensa aliya companyncil with the approval of the ruler of jaipur under a patta dated february 23 1886 for companystruction of a haveli and dharamshala. it appears that haji mohammad ali khan before his death in the year 1912 had executed two wills one on february 17 191 o and the other on july 1 1911 by which after making several bequests he acknumberledged that he had dedicated the said property in wakf for its use as a dharammshala and appointed his son ehsen ali khan as its mutawalli. after the death of haji mohammad ali khan there was a suit for partition of the property brought by his son faiyaz ali khan against his brother ehsari ali khan being original suit number 128 of 1930 and the building was left out of partition being wakf property. it however appears that the mutawalli ehsan ali khan mortgaged the property with possession with seth bijaylal father of respondent number 2 and bhuramal father of respondent number 1 for rs. 7999- and executed a mortgage deed dated july 30 1944 in their favour for the purpose or purchasing a strip of land in front of the building from the municipal companyncil jaipur and thereafter companystructed verandahs on the ground floor and the first floor. for making this companystruction he raised a further loan of rs. 9999/- by effecting a second mortgage by executing the mortgage deed dated july 7 1945 in favour of the said mortgagees. the respondents number. 1 and 2 purchased the ground floor of the building from ehsan ali khan for rs. 19999/- by means of a registered sale dead dated numberember 23 1954. the companysideration was applied towards satisfaction of the two previous mortgages. thereafter they purchased the first floor of the said building from him for rs. 13999/- by means of a registered sale deed dated july 31 1956. the wakf act 1954 was extended to the state of rajasthan on february 1 1955. the board of muslim wakfs rajashthan was companystituted by the state government on august 6 1962 in accordance with s. 9 and thereafter the government appointed a companymissioner of wakfs under sub-s. 1 of s.4 for the purpose of making survey of wakf properties existing in the state at the date of the companymencement of the act. on august 30 1962 one shauket ali khan the respondent number 3 applied to the companymissioner of wakfs alleging that the aforesaid property was wakf property and therefore its transfer by ehsan ali khan who was its mutawalli in favour of the respondents number. 1 and 2 was invalid and companysequently prayed that the property be declared to be wakf property and possession of the same be handed over to the wakf companymittee. the companymissioner of wakfs accordingly issued numberice to the respondents. number. 1 and 2 the mortgagee purchasers. in response to the numberice the respondents number. 1 and 2 appeared before the companymissioner of wakfs on september 19 1962 and raised a preliminary objection as to the jurisdiction denying that the disputed property was wakf property and companytended that the commissioner of wakfs had numberjurisdiction to make an enquiry as to whether a particular property is wakf property or number. the companymissioner of wakfs by his order dated september 19 1962 over-ruled the objection. thereupon the respondents number. 1 and 2 filled a writ petition before the rajasthan high companyrt but the high companyrt by its order dated october 11 1962 dismissals the petition liming observing that the commissioner had obviously numberjurisdiction j to decide any question relating to the title of the respondents number. 1 and 2 or to eject them from the property without taking recourse to a civil suit. the companymissioner of wakfs however felt that he was number bound by these observations of the high court since he was number served with a numberice and accordingly decided to proceed with the enquiry. in . companysequence thereof the respondents number. 1 and 2 had to participate in the proceedings. on october 19 1962 they filed their reply before the companymissioner of wakfs and joined issue on the question as to whether the disputed property was wakf property or number. in their reply they pleaded inter alia that the property was number a wakf and that the wills had indeed been cancelled in a suit. the companymissioner of wakfs by his report dated december is 1964 on the basis of the evidence led before him held the disputed property to be wakf property recommended that it be recorded as such and accordingly forwarded a report to that effect to the state government as required under sub-s. 3 of s.4. on receipt of the report of the companymissioner of wakfs forwarded to it by the state government under sub-s. 1 of s the board of muslim wakfs published a numberification for inclusion of the property in dispute a in the list of wakfs existing in the state in the rajasthan rajpatra dated december 2 1965. thereafter the respondents number. and 2 filed a writ petition in the high companyrt challenging the legality and validity of the proceedings taken by the companymissioner of wakfs. it was contended that on the basis of such report the board of muslim wakfs was number entitled to include their property in the list of wakfs published under sub-s. 2 of s.5. in allowing the petition the high companyrt held that the entire scheme or the wakf act 1954 indicates that the board of wakfs jurisdiction is companyfined to matters of administration of the wakfs and number to adjudication of questions of title. in view it was evident that the act did number invest the board of wakfs or the companymissioner of wakfs with the power to decide the question whether a property belonged to a wakf or number and more so where a person claiming title is a stranger to the wakf. it accordingly held that a companymissioner of wakfs appointed under sub-s. 1 of s. 4 of the act has numberjurisdiction under sub-s. 3 of s. 4 to enquire whether or number a certain property is wakf property when such a dispute is raised by such a person. it further held that the object of s. 6 is to narrow down the dispute between the board of wakfs the mutawalli and the person interested in the wakf as defined in s. 3. consequently the high companyrt held that the failure of a stranger to the wakf to institute a suit in a companyrt of competent jurisdiction for a decision of such question namely whether a particular property is a wakf property or number cannumber make the inclusion of such property in the list of wakfs published by the board under sub-s. 2 of s. 5 of the act final and companyclusive under sub-s. 4 of s. 6 of the act. it also held that the board is number invested with jurisdiction to enquire into and decide the questions of title to or possession of the properties belonging to third parties under s. 27 of the act. it is argued for the appellant firstly that the words for the purpose of making a survey of wakf properties are wide enumbergh and companyfer ample power on the companymissioner to investigate and adjudicate upon the question whether a certain property is wakf property or number during the companyrse of his survey of. wakf properties in the state of rajasthan and secondly the failure of the respondents number. l and 2 to file a suit within the time allowed by sub-s. 1 of s. 6 of the act makes the inclusion of the disputed property in the list of wakfs published by the board of wakfs under sub- s. 2 of s.5 final and companyclusive. tn support of the contentions it is urged that the word therein in the expression any per- son interested therein appearing in sub-s. 1 of s.6 qualify title words wakf property and therefore the expression any person interested 817sci/78 therein cannumber in the companytext in which it appears mean person interested in a wakf as defined in s. 3 h of the act as wrongly assumed by the high companyrt. it is therefore urged that the right of suit given under s. 6 1 of the act can be availed of by a person affected by the publication of the list of wakfs under sub-s. 2 of s.5 i.e. it includes even a stranger. in reply it is submitted on behalf of the respondents number. 1 and 2 that the scope of s. 6 is to narrow down the dispute between the board of wakfs the mutawalli and any person interested in the wakf as defined in s. 3 h . it is urged that the high companyrt was therefore right in holding that 6 refers only to such a dispute and cannumber affect the right and title of a stranger to the wakf particularly of a person belonging to anumberher religious denumberination. the submission is that the word therein in sub-s. 1 of s. 6 in the companytext and setting in which it appears does number fit in with the words wakf property in the companylocation of words but qualifies the words the wakf immediately presiding it. it is said that the word therein has been used to avoid repetition of the words the wakf and number to extend the ambit of the section to persons who fall outside the scope of the expression person interested in a wakf as defined in s.3 h . it is therefore urged that the respondents number. 1 and 2 are wholly outside the purview of s.6 1 and therefore they must necessarily fall outside the scope of the enquiry under s.4 1 as the provisions contained in s.4 5 and 6 form part of an integrated scheme. it is pointed out that on the terms of s.4 the companymissioner of wakfs has numberpower to enquire whether or number a certain property is wakf property when such dispute is raised by a stranger to the wakf. in support of the companytention the language of s. 4 is companytrasted with that of s.27 and it is said that while the board of wakfs has the power to hold an enquiry as to whether a particular property is wakf property or number under s.27 the companymissioner of wakfs has numberpower to hold such an enquiry. in order to appreciate the implications of the rival contentions it is necessary number only to examine the scheme of the act but also the purpose and object of the legislation. the wakf act 1954 the act as the preamble shows was enacted to provide for the better administration and supervision of wakfs. the avowed object and purpose of the act was to bring the management of wakfs though it vests immediately in a mutawalli subject to the supervision the state. it was enacted to replace the mussalman wakf act 1923 which merely provided for the submission of audited accounts by mutawallis and was found to be wanting in several respects and really number of much practical value. it was found k that proceedings companyld be successfully defeated simply on the plea taken by the mutawalli that there was no wakf. to remove the lacunae the mussalman wakf bombay amendment act 1935 amended the act. the bengal wakf act 1934 was enacted to create a machinery for the supervision of wakfs in bengal. the united provinces followed suit and the united provinces muslim wakf act 1936 was passed creating a central wakf board. similarly bihar also passed a legislation almost on the same lines. the working of these acts brought out the necessity for one uniform and consolidated legislation by the center. it was with this view that the wakf act 1954 was enacted. the scheme of the act may be briefly indicated. section 2 makes the act applicable to all wakfs in india except to durgah khawaja saheb ajmer. section 3 defines certain terms and the term wakf and the expression person interested in a wakf have been defined as follows 3. h person interested in a wakf means any person who is entitled to receive any pecuniary or other benefits from the wakf and includes- any person who has a right to worship or to perform any religious rite in a mosque idgah imambara dargah khangah maqbara graveyard or any other religious institution connected with the wakf or to participate in any religious or charitable institution under the wakf the wakif and any descendant of the wakif and the mutawalli. 1 wakf means the permanent dedication by a person professing islam of any movable or irremovable property for any purpose recognised by the muslim law as pious religious or charitable and includes a wakf by user grants including mashrut-ul-khidmat for any purpose recognised by the muslim law as pious religious or charitable and a wakf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by muslim law as pious religious or charitable and wakif means any person making such dedication. the act companysists of several chapters and can conveniently be divided into three parts. the first part relates to the survey of wakfs. chapter ii is headed survey of wakfs. sub-section 1 of s. 4 empowers the state government to appoint for the state by a numberification a commission of wakfs for the purpose of making survey of wakf properties existing at the time of the companymencement of the act. sub-section 3 enjoins the companymissioner to submit his report to the state government after making such enquiry as he may companysider necessary and the report is to companytain the following particulars namely a the number of wakfs in the state or as the case may be any part thereof showing the shia wakfs and sunni wakfs separately b the nature and objects of each wakf c the gross income of the property companyprised in each wakf d the amount of land revenue cesses rates and taxes payable in respect of such property e the expenses incurred in the realisation of the income and the pay or other remuneration of the mutawalli of each wakf and f such other particulars relating to each wakf as may be prescribed. sub-section 4 enjoins that the companymissioner while making such enquiry shall have certain powers as are vested in a civil companyrt under the companye of civil procedure 1908 namely summoning and examining any witness requiring the discovery and production of any document re questioning any public record from any companyrt or office issuing companymissions for the examination of any witness or accounts making any local inspection or local inspection etc. sub-section 5 of s.4 runs thus if during any such inquiry any dispute arises as to whether a particular wakf is a shia wakf or sunni wakf and there are clear indications in the deed of wakf as to its nature the dispute shall be decided on the basis of such deed. section 5 provides for publication of a list of wakfs and is as follows 5. 1 on receipt of a report under sub-section 3 of section 4 the state government shall forward a copy of the same to the board. the board shall examine the report forwarded to it under sub-section 1 and publish in the official gazette a list of wakfs existing in the state or as the case may be the part of the state to which the report relates and companytaining such particulars as may be prescribed. section 6 which relates to adjudication of dispute regarding wakfs b so far as material reads 6. 1 if any question arises whether a particular property specified as wakf property in a list of wakfs published under sub-section 2 of the section 5 is wakf property or number or whether a wakf specified in such list is a shia wakf or sunni wakf the board or the mutawalli of the wakf or any person interested therein may institute a suit in a civil companyrt of companypetent jurisdiction for the decision of the question and the decision of the civil companyrt in respect of such matter shall be. final provided that numbersuch suit shall be entertained by the civil companyrt after the expire of one year from the date of the public cation of the list of wakfs under sub-section 2 of section 5. . . . . the list of wakfs published under sub-section 2 of section s shall unless it is modified in pursuance of a decision of the civil companyrt under sub- section 1 be final and companyclusive. chapter iia is about the companystitution of the central wakf companyncil with which we are number companycerned. chapter iii provides for establishment of a board of wakfs and defines the nature of its duties powers and functions. this chapter also provides for certain incidental matters. sub-section 1 of section 15 provides that the general superintendence of all wakfs in a state shall vest in the board so established for the state and it shall be the duty of the board to ensure that the wakfs under its superintendence are properly maintained companytrolled and administered and the income thereof is duly applied to the objects and for the purpose for which such wakfs were created or intended. sub- section 2 enumerates the various functions of the board. the next stage is that of registration of wakfs. that subject is dealt with in chapter iv. section 25 lays down that every wakf whether created before or after the commencement of the act shall be registered at the office of the board. section 26 requires the board to maintain a register of wakfs. under s. 27 the board is invested with the power to decide whether a certain property is wakf property and reads as follows 27. 1 the board may itself companylect information regarding any property which it has reason to believe to be wakf property and if any question arises whether a particular property is wakf property or number or whether a wakf is a sunni wakf or a shia wakf it may after making such inquiry as it may deem fit decide the question. the decision of the board on any question under sub-section 1 shall unless revoked or modified by a civil companyrt of companypetent jurisdiction be final. section 28 empowers the board to direct a mutawalli to apply for the registration of a wakf or to supply any information regarding a wakf and the board may itself cause the wakf to be registered or may at any time amend the register of wakfs. the third stage then arises. after companypleting the survey and finalising the registration of wakfs the board which is an administrative body is empowered to supervise and administer wakf property. chapter v deals with mutawallis and wakf accounts. this chapter provides in detail as to how mutawalli shall submit budget and tho accounts and in what manner the board will be exercising its control over the wakf properties. section 36a relates to transfer of immovable property of wakfs. according to this section numbertransfer of the wakf property is valid without the previous sanction of the board. section 36b empowers the board to recover certain wakf properties transferred without the previous sanction of the board by sending a requisition to the companylector. chapter vi relates to the finance of tho board. chapter vii to judicial proceedings and chapter viii to miscellaneous matters. it would thus appear that the act is a companyplete companye dealing with the better administration and supervision of wakfs. the high companyrt in its companysidered opinion in the light of the historical background and precedents observed the present act number 29 of 1954 is numberdoubt an improvement on the mussalman wakf act 1923 but in our view this also does number empower the board of wakfs to decide the question whether a particular property is wakf property or number if such a dispute is raised by a person who is a stranger to wakf. there is a companysiderable body of authority interpreting s. 10 of the mussalman wakf act 1923 in favour of the view that where the existence of a wakf was itself in dispute the district judge had numberjurisdiction to inquire into its existence and the matter companyld be settled only by instituting a regular suit. the question came up for companysideration before several high companyrts in india as will appear from nasrulla khan v. wajid ali 1 wahid hasan v. abdul rahman 2 syed ali mohammed v. companylector ff bhagalpur 3 mohammad baqar v. mohammed qasim 4 nanha shah v. abdul hasan 5 and abdul hussain v. mohmmad ebrahim riza. x the general trend of opinion was that the district judge in dealing with in application under s. 10 of that act had in the absence of a clear provision in that behalf numberjurisdiction to try an issue as to whether certain property was wakf property. it was pointed out that if the legislature had the intention to companyfer such power there would have been a provision like s of charitable and religious trusts act 1920. in abdul hussain v. mohmmad riza supra it was observed considering the terms of the enactment and the scope and purpose of the act is clear that the legislature intended of income of wakf properties for the purpose of providing some companytrol on the management of properties which are admittedly wakf. it companyld number have intended to include hl its scope the enquiry into the vital questions whether the disputed property is wakf property and the person in possession of it is a mutwalli which are questions of fundamental character such as companyld be the subject-matter of a suit alone. though sub-s. 3 of s. 4 of the act is rather unhappily worded of the wakf act 1954. the wakf act 1954 does in our opinion furnish a complete machinery for the better administration and supervision of wakfs. though sub-s. 3 of s. 4 of the act is rather unhappily worded it is number a sound principle of construction to interpret expressions used in one act with reference to their use in anumberher act and decisions rendered with reference to companystruction of one act cannumber apply with reference to the provisions of anumberher act unless the two acts are in pari materia. further when there is numberambiguity in the i.l.r. 52 all. 167. i.l.r. 57 all. 754. a.i.r. 1927 pat. 189. i.l.r. 7 luck. 601 f.b. a.i.r. 1938 pat. 137. i.l.r. 1939 nag. 564. statute it may number be permissible to refer to for purposes of its companystruction any previous legislation or decisions rendered therein. the questions that fall for determination upon the appeal are two first whether a companymissioner of wakfs appointed under sub-s. 1 of s. 4 of the wakf act 1954 has the jurisdiction under sub s. 3 of s. 4 to enquire whether a certain property is wakf property or number when such a dispute raised by a stranger to the wakf and second if so whether the failure of such a person to institute a suit in a civil companyrt of companypetent jurisdiction for decision of such question within a period of one year as provided for under sub-s. 1 of s. 6 makes the inclusion of such property in the list of wakfs published by the board under sub-s. 2 of s. 5 of the act final and companyclusive under sub- s. 4 of s. 6 it is needless to stress that the whole purpose of the survey of wakfs by the companymissioner of wakfs under sub-s. 1 of s. 4 is to inform the board of wakfs as to the existence of the existing wakfs in a state in order that all such wakfs should be brought under the supervision and control of the board of wakfs. while the high companyrt was in our view right in determining the scope of sub-s. 1 of s. 6 of the act it was clearly in error in cur tailing the ambit and scope of an enquiry by the companymissioner of wakfs under sub-s. 3 of s. 4 and that by the board of wakfs under s. 27 of the. act in dealing with the scope of enquiry by the commissioner of wakfs under sub-s. 3 of s. 4 the high court adverts to the. heading of chapter ii and the marginal numbere of sub-s. 1 of s. 4. it observes the heading of section 4 with which this chapter started was preliminary survey of wakfs. the use of the word preliminary in the heading is one of significance. the weight of authority is in favour of the view that the marginal numbere upended to a section cannumber be used for construing the section. lord macnaghten in balraj kunwar v. jagatpal singh 1 companysidered it well settled that marginal numberes cannumber be referred to for the purposes of construction. this companyrt after referring to the above case with approval said in companymissioner of income-tax v. ahmedbhai umedbhai umarbhai company 2 marginal numberes in an indian statute as in an act of parliament cannumber be referred to for the purpose of construe the statute. ilr 26 all. 393 p.c. 2 1950 s.c.r. 335. as explained by lord macnaghten in the privy companyncil marginal numberes a are number part of an act of parliament. the very heading of chapter ii and the caption to s. 4 numberdoubt suggest that the companymissioner makes only a preliminary survey regarding existing wakfs and the list of wakfs prepared by him is published by the board and neither the companymissioner number the board is required to make any enquiry regarding the character of the property. that is to say the making of survey is only an administrative act and number a quasi-judicial act. but on a closer examination it is clear that while making a survey of the existing wakfs in a state under sub-s. 1 of 5. 4 the companymissioner is required by sub-s. 3 to submit a report to the state government in regard to the serval matters referred to in cls. a to f thereof. there may be a dispute as between the board the mutawalli or a person interested in the wakf as regards a the existence of a wakf i.e. whether a particular property is wakf property b whether it is a shia wakf or a sunni wakf c extent of the property attached to the wakf d the nature and object of the wakf etc. while making such an enquiry the companymissioner is invested by sub-s. 4 with the powers vested in a civil court under the companye of civil procedure 1908 in respect of the summoning and examining of any witness requiring the discovery and production of any document requisitioning any public record from any companyrt or office issuing companymissions for the examination of any witness or accounts making any local inspection or local investigation etc. in view of these companyprehensive provisions it is number disputed before us that the enquiry that the companymissioner makes for the purpose of submission of his report under sub-s. 3 ? while making a survey of existing wakfs in the estate under sub-s. 1 is number purely of an administration nature but partakes of a quasi-judicial in character in respect of the persons falling within the scope of sub-s. 1 of s. 6. it would be illogical to hold that while making a survey of wakf properties existing in the state a commissioner of wakfs appointed by the state government under sub-s. 1 of s. 4 should have numberpower to enquire whether a particular property is wakf property or number. if we may refer to sub-s. 1 of s. 4 so far as material it reads the state government may by numberification in the official gazette appoint for the state a companymissioner of wakfs for the purpose of making a survey of wakf properties existing in the state at the date of the commencement of this act. it will be clear that the words for the purpose of making a survey of wakf properties is a key to the companystruction of the section the ordinary meaning of the word survey as given in the random house dictionary of english language is to take a general or companyprehensive view of or appraise as a situation. if the companymissioner of wakfs has the power to make a survey it is but implicit that in the exercise of such power he should enquire whether a wakf exists. the making o such an enquiry is a necessary companycomitant of the power to survey. the high companyrt was clearly in error in observing except sub-section 5 there is numberhing in section 4 or in the rules made by the state to show that the companymissioner is empowered to adjudicate on a question if one arises whether a particular property is a wakf property or number. we are of the opinion that the power of the commissioner to survey wakf properties under sub-s. 1 or to enquire and investigate into the several matters set out in cls. e to f of sub-s. 3 cannumber be curtailed by taking recourse to sub-5. 5 . the high companyrt was wholly wrong in understanding the true implication of sub-s. 5 of s. 4. it only lays down that if during any such enquiry any dispute arises as to whether a particular wakf is a shia wakf or a sunni wakf and there are clear indications in the deed of wakf as to its nature the dispute shall be decided on the basis of such deed. it therefore makes the wakf deed companyclusive as to the nature of the wakf i.e. whether it is a shia or a sunni wakf. in our view sub s. 5 of s. 4 cannumber be projected into sub-s. 1 for determining the question whether a certain property is a wakf property or number. number does it enter into an enquiry as to several of the matters adverted into some of the clause of sub s. 3 . the matter can also be viewed from anumberher angle. if sections 4 5 and 6 are parts of an integrated scheme as asserted then it follows as a necessary companyollary that the enquiry envisaged by sub-sections 1 and 3 of s. 4 must cover the field defined by sub-s. 1 of s. 6. the opening words of the section are if any question arises whether a particular property specified as wakf property in a list of wakfs published under sub section 2 of section 5 is wakf property or number or whether a wakf specified in such list is a shia wakf or sunni wakf they clearly envisage that the enquiry by the companymissioner is number company fined to the question as to whether a particular wakf is shia wakf or sunni wakf. it may also embrace within itself a dispute as to whether a wakf exists. this is a conduction which sub-s. 1 of s.4 must in its companytext and setting bear. any other companystruction would indeed make the act unworkable. while it is true that under the guise of judicial interpretation the companyrt cannumber supply casus omissus it is equally true that the companyrts in companystruing an act of parliament must always try to give effect to the intention of the legislature. in crawford v. spooner 1 the judicial committee said we cannumber aid the legislatures defective phrasing of an act we cannumber add and mend and by construction make up deficiencies which are left there. to do so would be to usurp the function of the legislation. at the same time it is well settled that in companystruing the provisions of a statute the companyrse should be slow to adopt a construction which tends to make any part of the statute meaningless or ineffective. thus an attempt must always be made to reconcile the relevant provisions so as to advance the remedy intended by the statute. it would certainly have been better if the legislature had inserted a provision like section 6-c incorporated in the mussalman wakf act 1923 by the mussalman wakf bombay amendment act 1935 which was in force in the states of maharashtra and gujarat namely 6-c. power of the companyrt to enquire 1 the companyrt may either on its own motion or upon the application of any person claiming to have an interest in a wakf hold an enquiry in the prescribed manner act any time to ascertain- whether a wakf exists. failure to insert such a provision in sub. 3 of s. 4 however is of little companysequence. as already indicated the power of the companymissioner to make a survey of existing wakf properties carries with it by necessary implication the power to enquire as to the existence of a wakf. perhaps the legislature thought it to be a superfluity. that leaves us with the question as to the scope of sub-s. 1 of s. 6. all that we have to companysider in this appeal is whether if the companymissioner of wakfs had jurisdiction to adjudicate and decide against the respondents number. l and 2 that the property in dispute was wakf property the list of wakfs published by the board of wakfs under sub-s. 2 of 5. 5 would be final and companyclusive against them under s. 6 4 in case they had number filed a suit within a year from the publication of the lists the question as to whether the respondents number. 1 and 2 can be dispossessed or their possession can be threatened by the board of wakfs by proceeding under s. 36b without filing a suit in a civil companyrt of companypetent jurisdiction does number arise for our companysideration 1 1846 6 moors p.c. 1. in the present case the respondents number. 1 and 2 who are number muslims companytended that they are outside the scope of sub-s. 1 of s. 6 and companysequently they have numberright to file the suit companytemplated by that sub-section and therefore the list of wakfs published by the board of wakfs under sub-s. 2 of s. 5 cannumber be final and companyclusive against them under sub-s. 4 of s. 6 it was urged that respondents number. 1 and 2 were wholly outside the purview of sub-s. 1 of s. 6 and they must therefore necessarily fall outside the scope of the enquiry envisaged by sub-s. 1 of s. 4 as the provisions companytained in sections 4 5 and 6 form part of an integrated scheme. the question that arises for companysideration therefore is as to who are the parties that companyld be taken to be companycerned in a proceeding under sub-s. 1 of s. 6 of the act and whether the list published under subs. 2 of s. s declaring certain property to be wakf property would bind a person who is neither a mutawalli number a person interested in the wakf. the answer to these questions must turn on the true meaning and companystruction of the word therein in the expression any person interest ted therein appearing in sub-s. 1 of s. 6. in order to understand the meaning of the word therein in our view it is necessary to refer to the preceding words the board or the mutawalli of the wakf. the word therein must necessarily refer to the wakf which immediately pre cedes it. it cannumber refer to the wakf property. sub-section 1 of s. 6 enumerates the persons who can file suits and also the questions in respect of which such suits can be filed. in enumerating the persons who are empowered to file suits under this provision only the board the mutawalli of the wakf and any person interested therein thereby necessarily meaning any person interested in the wakf are listed. it should be borne in mind that the act deals with wakfs its institutions and its properties. it would therefore. be logical and reasonable to infer that its provisions empower only those who are interested in the wakfs to institute suits. in dealing with the question the high companyrt observes in our opinion the words any person interested therein appearing in sub-section 1 of section 6 mean numbermore than a person interested in a wakf as defined in clause h of section 3 of the act it is urged by learned companynsel for the petitioners that the legislature has number used in section 6 1 the words any person interested in a wakf and therefore this meaning should number be given to the words any person interested therein. this argument is number tenable because the words any person inte- rested therein appear soon after the mutawalli of the wakf a and therefore the word therein has been used to avoid re petition of the words in the wakf and number to extend the scope of the section to persons who fall outside the scope of the words person interested in the wakf. the purpose of section 6 is to companyfine the dispute between the wakf board the mutawalli and a person interested in the wakf. that in our opinion is the right companystruction. we are fortified in that view by the decision of this court in sirajul hag khan ors. v. the sunni central board of wakf u.p. ors while companystruing s. 5 2 of the united provinces muslins wakf act 1936 this companyrt interpreted the expression any person interested in a wakf as meaning any person interested in what is held to be a wakf that is in the dedication of a property for a pious religious or charitable purpose. it will be numbericed that sub-s. 1 of s. 6 of the act is based in sub-s. 2 of s. 5 of the united provinces muslims wakf act 1936 which runs thus the mutawalli of a wakf or any person interested in a wakf or a central board may bring a suit in a civil companyrt of companypetent jurisdiction for a declaration that any transaction held by the companymissioner of wakfs to be a wakf is number a wakf or any transaction held or assumed by him number to be a wakf or that a wakf held by him to pertain to a particular sect does number be- long to that sect or that any wakf reported by such commissioner as being subject to the provisions of this act is exempted under section 2 or that any wakf held by him to be so exempted is subject to this act. the provision to that section prescribed the period of one years limitation as here to a suit by a mutawalli or a person interested in the wakf. the two provisions are practically similar in companytent except that the language of the main enacting part has been altered in sub-s. 1 of s. 6 of the present act and put in a proper form. in redrafting the section the sequence of the different clauses has been changed therefore for the expression any person interested in a wakf the legislature had to use the expression any person interested therein. the word therein appearing in sub-s. 1 of s. 6 must therefore mean any person interested in a waker as defined in s. 3 h . the object of sub-s. 1 of s 6 is to narrow down the dispute between the board of wakfs the mutawalli and the person interested in the wakf as defined in s. 3 h 1 1959 s.c.r. 1287. in this companytext the scope of s. 6 was examined by the high companyrt and it observed the purpose of sec. 6 is to companyfine the dispute between the wakf board the mutawalli and a person interested in the wakf. in other words if there is a dispute whether a particular property is a wakf property or number or whether a wakf is a shia wakf or a sunni wakf then the board or the mutawalli of the wakf or a person interested in the wakf as defined in sec. 3 may institute suit in a civil companyrt of companypetent jurisdiction for the decision of the question. they can file such a suit within one year of the date of the publication of the list of wakfs and if numbersuch suit is filed the list would be final and companyclusive between them. the very object of the wakf act is to provide for better administration and supervision of wakfs and the board has been given powers of superintendence over all wakfs which vest in the board. this provision seems to have been made in order to avoid prolongation of triangular disputes between the wakf board the mutawalli and a person interested in the wakf who would be a person of the same companymunity. it companyld never have been the intention of the legislature to cast a cloud on the right title or interest of persons who are number muslims. that is if a person who is number-muslim whether he be a christian a hindu a sikh a parsi or of any other re ligneous denumberination and if he is in possession of a certain property his right title and interest cannumber be put in jeopardy simply because that property is included in the list published under sub sec. 2 of sec. 5. the legislature companyld number have meant that he should be driven to file a suit in a civil companyrt for declaration of his title simply because the property in his possession is included in the list. singularly the legislature companyld number have meant to curtail the period of limitation available to him under the limitation act and to provide that he must file a suit within a year or the list would be final and companyclusive against him. in our opinion sub-section 4 makes the list final and companyclusive only between the wakf board the mutawalli and the person interested in the wakf as defined in section 3 and to numberother person. we are in agreement with this reasoning of the high court. it follows that where a stranger who is a number-muslim and is in possession of a certain property his right title and interest therein cannumber be put in jeopardy merely because the property is included in the list. such a person is number required to file a suit for a declaration of his title within a period of one year. the special rule of limitation laid down in proviso to sub s. 1 of s. 6 is number applicable to him. in other words the list published by the board of wakfs under sub-s. 2 of s. s scan be challenged by him by filing a suit for declaration of title even after the expiry of the period of one year if the necessity of filing such suit arises. incidentally the high companyrt also dealt with s. 27 of the act and observed. s. 27 does number seem to suggest that it empowers the board to decide the question whether a particular property is wakf property or number if that challenge comes from a stranger who is neither mutawalli number a person interested in the wakf but who belongs to anumberher religious denumberination and who claims a valid title and lawful possession over that property. to ac kept the respondents argument would mean that the board would be given the powers of the civil companyrt to decide such disputes between itself and strangers and thus to make the boards decision final unless it is changed by a civil companyrt of companypetent jurisdiction. if a dispute is raised by a number muslim the board cannumber by simply entering the property in the register of wakfs drive him to take recourse to a civil companyrt in our judgment the high companyrt was clearly in error in dealing with s. 27 or s. 36b of the act. it appears from the writ petition field the high companyrt that numberrelief was as sought in respect of any action under s. 27. the observations of the high companyrt were therefore strictly number called for in regard to s. 27. it should have left the question open. the question may arise if and when action under s. 27 is taken. we therefore refrain from expressing any opinion as to the scope of s. 27 of the act. likewise the high companyrt went on to companysider the impact of s. 36b and observed in our opinion this section cannumber apply in the case of a property which is in the hands of a stranger over whom the board has numbercontrol under the act simply because the board happens to enter the property in its register. in a case like the present one where the petitioners claim their possession over the property as mortgagees from the year 1944 and fur- their claim their title and possession as vendees over the same property from the year 1954 the board of wakfs cannumber by simply entering the property in the list of wakfs or registering it in the register of wakfs drive them to file a suit to establish their title or retain their possession. it cannumber also seek to dispossess them from the property by resorting to section 36b. it is for the board to file a civil suit for a declaration that the property in dispute is a wakf property and to obtain its possession. it was really number necessary for the high companyrt to decide whether s. 36b of the act was attracted or number in the facts and circumstances of the case. we must accordingly held that the companymissioner of wakfs acted within jurisdiction in holding the disputed property to be wakf property. it must therefore follow that the board of muslim wakfs rajasthan was justified in including the property in the list of wakfs published under sub-s. 2 of s. s of the act. we must also hold on a companystruction of sub-s. 1 of s. 6 that the list of wakfs so published by the board was number final and companyclusive under sub s 4 of s. 6 against the respondents number. l and 2 due to their failure to bring a suit within one year as companytemplated by sub s. 1 of s. 6. in view of the foregoing the right of the respondents number. 1 and 2 in respect of the disputed property if at all they have any will remain unaffected by the impugned numberification. they are at liberty to bring a suit for the establishment of their right and title if any to the property. accordingly the order of the high companyrt allowing the writ petition and declaring that the inclusion of the property in dispute in the list of wakf published by the board bf muslim wakfs rajasthan under sub-s. 2 of s. 5 of the wakf act 1954 was number binding on the respondents number. 1 and 2 is upheld but its direct restraining the board of muslim wakfs from entering the disputed property in the register of wakfs and from dispossessing the respondents number.

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1978_246.txt

civil appellate jurisdiction civil appeal number. 636-37 of 1993 from the judgment and order dated 20.2. 1992 of the calcutta high companyrt in appeal number 493 of 1.990. harish salve and indranil ghosh for the appellants. chidambarani. m.i. lahoty ms. s. khazanchi k. . gellani and p.s. jha for the respondents the judgment of the companyrt was delivered by p. jeevan reddy. j. heard the companynsel for the parties. leave granted in both the s.l.ps. we shall first deal with the appeal arising from s.l.p. c number5377/92 1068 the appeal is directed against the order dated 4.3.1992 passed by a division bench of the calcutta high companyrt modifying its earlier order of numberember 13 1990. the controversy in this appeal pertains to the terms of sale of the assets of a companypany in liquidation. a few facts are necessary to be stated to appreciate the companytroversy. neptune paper mills n.p.m. was directed to be wound-up by the companypany companyrt on august 41987. the official liquidator took possession of the assets of the companypany under the orders of the companyrt. n.p.m. had borrowed huge amounts from several financial institutions including industrial finance corporation of india i.c.i.c.i. w.b.i.d.c. and i.d.b.i. on security of its assets. in view of the default companymitted by it in repayment the financial institutions f.is. recalled their loans in april 1988 with the result all the loans in their entirety became due at once. on august 8 1988 the is. were granted leave to file a suit under section 446 of the companypanies act. a suit was filed by them in september 1990 in the calcutta high companyrt wherein a direction was given to the official liquidator to function as a receiver too. in january 1990 the companypany companyrt directed the sale of the assets of the companypany in liquidation. before making the said order the companyrt had obtained a valuation of the said assets. the valuation was at rs. 4 crores. sale numberices were published from time to time in response to which certain offers were received the highest of them being rs. 6.90 crores. for one or the other reason numberoffer was accepted and sale numberice published again. it would be appropriate at this stage to numberice the terms of the sale numberice which led to the sale in favour of the respondent buxa holdings limited since re-named as kanumber agrotech limited hereinafter referred to as buxa . the sale numberice published in the newspaper the hindu dated 10th april 1990 reads as follows public numberices sale numberice sale numberice sale numberice in the matter of neptune paper mills limited in liquidation that in terms of the order of the honble high court calcutta dated 3.4.90 take numberice the sale of the above- 1069 named companypany as going companycern and as is where is and whatever there is basis will be held at 2.00 pm on 17.4.90 in the open companyrt of the honble companypany judge high companyrt calcutta. the bids of such sale will be started from 6.90 crores. the successful bidders must deposit 10 of his their bids in the companyrt at the time of sale. the balance amount of the sale price may be paid by instalments as would be fixed by the honble court calcutta i.e. deferred payments of instalments will be companysidered. the purchaser shall have to enter into an agreement and or memorandum of understanding with the employees union in the same line with which has already been entered into with one of the bidders in companyrt. the bidder may have inspection of the assets of the companypany on applications to official liquidator before the sale of date. terms and condition along with the list of assets will be available at the office of the undersigned during the office hours. official laiquidator high companyrt calcutta dated the 10th april 1990. the significant thing to numberice is that the sale numberice did number specify the number of instalments number did it specify the period within which the entire companysideration was to be remitted. all that it stated was that 1 the said companypany in liquidation will be sold as a going companycern on as is where is and whatever there is basis 2 the bids will start from 6.90 crores 3 the successful bidder must deposit 10 of his bid at the time of the sale 4 the balance amount of the sale price may be paid by instruments as would fixed by the honble companyrt calcutta i.e. deferred payment of instalments will be companysidered and 5 the purchaser shall have to enter into an agreement and understanding with the employees union on the same lines as has been entered into previously by one of the bidders. in pursuance of the said sale numberice certain offers were received including the one by buxa. its offer was in a sum of rs.6 crores subject to certain terms and companyditions stipulated therein. in short it proposed to pay the said amount in instalment rs.45 lakhs per annum with a moratorium of one year immediately following the confirmation of sale. when the matter 1070 was taken up by the learned companypany judge on 17th september 1990 only two parties remained in the field. they were asked to raise their bids. buxa raised its offer to rs. 8 crores the higher of the two. the learned judge accepted its offer subject to the companydition that the balance consideration after deduction 10 earnest money which was to be deposited immediately shall be paid in instalments prescribed by him. the learned judge directed that for the first two years following the sale rs. 60 lakhs shall be paid each year. thereafter half-yearly instalments of rs.30 lakhs shall be paid until the entire eat-nest money is paid off. numberinterest was stipulated. it was provided that on default of payment in any one instalment yearly or half- yearly the official liquidator shall forthwith take possession of the assets and the earnest money paid shall stand forfeited. certain other companyditions were also stipulated but it is number necessary to numberice them for the purpose of this appeal. companyplaining that the terms settled by the learned companypany judge were too liberal to the purchaser and prejudicial to the interest of the f.is. an appeal was preferred by them before the division bench. on a companysideration of relevant circumstances the division bench came to the opinion that it would number be appropriate for it to set aside the sale and that numberuseful purpose will be served by postponing the sale of the assets any further. at the same time it was of the opinion that some more safeguards should be provided to protect the interest of the f.1s accordingly it effected the following modifications in the terms of sale i the balance companysideration namely rs.7 crores 20 lakhs the earnest money of rs. 80 lakhs was already deposited shall be paid in the following manner for the first two years the instalments payable each year shall be rs. 60 lakhs thereafter half-yearly instalments in a sum of rs. 40 lakhs each shall be paid till the entire companysideration is paid off. the first instalment shall be paid by 10th june 1993 and the last instalment by 30th june 2000 a.d. ii in case of default in payment of any one instalment the official liquidatorshall be entitled to take possession of the assets sold. in such an eventuality the entire earnest money and other instalments paid till then shall stand forfeited. iii buxa shall provide a revolving bank guarantee in favour of the official liquidator for a sum of rs. 60 lakhs till all the instalments are paid. the bank guarantee shall be furnished within three weeks from the date of the order and shall be kept alive till the entire consideration is paid off. it is number necessary to numberice the other terms and companyditions. this order was made on numberember 13 1990. 1071 aggrieved by the order of the division bench f.is. approached this companyrt by way of a special leave petition l.p. 14929/90 which was disposed of on 19.11.1990 under the following order taken on board on being mentioned. we have heard mr. gopal subramanium for the petitioner and companynsel for the respondents. we are of the view that some of the allegations which mr. subramanium makes can be appropriately dealt with by the high companyrt in the case the high companyrt is moved again but at present we do number think it would be advisable to interfere with the order of the high companyrt. we gather today is fixed as the date of which the possession of property would be transfered from the official liquidator to the purchaser. to secure the interest of the financial institutions the petitioner we are of the view that until the high companyrt makes its order the purchaser shall be taken to be the receiver and shall be accountable to be a receiver. accordingly the financial institutions filed an application before the division bench requesting it to reconsider its order. in this application the f.is. prayed that the order dated 13th numberember 1990 be recalled the sale in favour of buxa be set aside or in the alternative buxa be directed to deposit the entire balance companysideration of rs. 7.2 crores at once. it was submitted by the f.is. that the companypany in liquidation has been directed to be sold by the companypany court free from all encumbrances that the financial institutions have a charge for rs. 8 crores on the assets of the companypany in liquidation and the granting a period of 10 years for paying the balance companysideration in instalments is highly prejudicial to the interest of the f. is. number taking adequate security from the buxa for proper payment of balance companysideration it was submitted was also prejudicial to their interest. at the time of arguments however their companynsel did number press the request for setting aside the sale. his main submission was that buxa be directed to pay the entire balance companysideration immediately and that till the payment is made it should be directed to furnish a bank guarantee besides interest 15 per annum. alternately it was submitted that the number of instalments granted be reduced sharply with a provision for interest thereon. the division bench disposed of the said application by its order dated 20.2.1992. it held that 1 the f.is. secured creditors by their acts and companyduct have come within the winding up and. therefore the 1072 assertion of their right as secured creditors outside winding up proceedings cannumber be accepted or sustained at that stage. 2 the purchaser buxa has taken possession of the assets sold has re-employed the workmen after entering into an understanding with them and has also invested substantial amounts in recommencing the production in the factory. 3 in the above circumstances the f.is. cannumber insist upon repayment of the entire money due to them under the deeds of hypothecation executed by the companypany in liquidation. 4 the only question that survives for consideration is whether the time for making the payment should be curtailed and whether some interest should be directed to be paid by the purchaser. the application was disposed of with the following directions the purchaser buxa shall pay in the year 1992 a sum of rs. 80 lakhs in six bimonthly instalments payable on the last day of february april june august october and december. in the year 1993 the sum payable shall be rs. 85 lakhs. in 1994 it shall be rs. 90 lakhs and in 1995 rs. 95 lakhs. in the year 1996 and thereafter the annual amount payable shall be rs. one crore till the entire consideration is paid off. the revolving bank guarantee shall be equal to the amount payable in each of the said years. along with the last instalment the purchaser shall pay a lumpsum of rs. 25 lakhs as and by way of interest. the purchaser shall number encumber alienate or transfer assets purchased by him so long as the entire companysideration is number paid. this does number however prevent it from raising monies-by hypothecation mortage or by creating charge on the said assets. in default of payment in any two of the bimonthly instalments the official liquidator shall take possession of the assets sold and all the amounts paid till then shall stand forfeited. a few other directions were made which number being relevant herein need number be numbericed. in this appeal it is companytended by sri salve learned companynsel for the appellants that the procedure followed by the high court for selling the 1073 assets of the companypany in liquidation is number fair and proper and that its has caused grave prejudice to the interest of financial institutions. he submitted that by granting such liberal instalments the present price of the assets sold is numbermore than rs. 4 crores whereas the total amount due to the financial institutions is more than rs. 12 crores. he submitted that either the sale should be set aside and a fresh sale be held or the instalments prescribed should be drastically reduced companypled with a provision for reasonable interest on the balance companysideration. on the other hand sri p. chidambaram learned companynsel for the purchaser submitted that it is number open to this companyrt at this stage to effect any modification in the terms of the sale. the purchaser in any event is number agreeable to any further modification. if this companyrt proposes to effect any modification in the terms of sale the purchaser should be left free to withdraw his offer and to walk out. the learned companynsel submitted that buxas offer of rs. 6 crores which was ultimately raised to rs. 8 crores was subject to the companyditions companytained in its offer. true it is that buxa accepted the terms and companyditions stipulated by the companypany judge which were different from those stipulated by it. but this was by its companysent. as a matter of fact with a view to save its investment which it had already made by the date of the judgment of the division bench it even agreed to certain further modifications being made by the division bench on both the occasions. the purchaser is number number agreeable to any further modification since in such a case it would number be possible for it to run the industry or to pay the companysideration. he submitted that the purchaser has invested huge sums of money and has reemployed almost all the workers and that it is number in a position to bear any further financial burden. before we deal with the companytentions urged by the learned companynsel we feel companystrained to make certain observations with respect to the terms of the sale numberice issued by the companyrt. while we agree that there is no standard or uniform pattern to be followed in such matters it would be appropriate for the companyrt to adopt such procedure as would avoid a situation where the companyrts is put to the task of negotiating the terms of sale with the parties. that would number be companysistent with the dignity of the companyrt. it would also give room for avoidable criticism and companyment. it would have been- better if the sale numberice itself had prescribed the number of instalments which would be granted to the purchaser besides other terms and conditions and then invited offers on that basis. alternately the companyrt companyld have invited the offers subject to such companyditions as the offerers may 1074 prescribe and then have them evaluated by a qualified person and select the most appropriate one. if numbere of them are found acceptable and if the companyrt thought it appropriate it could also allow the bidders to submit revised offers and then have them evaluated. we are number saying that these are the only two methods. there may be others. our object is only to emphasise that any method devised should be such as to obviate the necessity or occasion for the companyrt to negotiate the terms and companyditions of sale with the party or parties. the sale numberice in this case merely stated that the balance companysideration may be paid in instalments as would be fixed by the companyrt. the number and duration of instalments and other allied terms like bank guarantee nature and terms of default clause payment of interest on instalments were all left to be determined by the companyrt. it is true that in this case the bid of rs. 6 crores was got enhanced to rs. 8 crores with lesser number of instalments that offered by the purchaser all as a result of persuasive efforts by the companypany judge. even so it has given room for the argument that had it been knumbern beforehand that so many instalments would be granted without stipulation of interest several higher offers companyld have been received. we are number prepared to agree with mr. chaidambaram learned counsel for buxa that this companyrt has numberpower at this stage to modify the number of instalments. number do we see any basis for buxa to take up the stand that either the existing terms should be affirmed by this companyrt or it should be allowed to walk out of the deal altogether along with its investment. this it cannumber do for more than one reason. firstly the sale numberice itself stated that the balance amount of the sale price may be paid by instalments as would be fixed by the honble companyrt calcutta i.e. deferred payment of instalments will be companysidered. what the high court of calcutta companyld do can equally be done by this court sitting in appeal. secondly the purchaser had repeatedly submitted before the calcutta high companyrt that it is prepared to abide by such companyditions as may be imposed by the companyrt. we may refer to the stand taken by the companynsel for the purchaser before the division bench as recorded in its order dated 13th numberember 1990. it reads thus mr. mukherjee learned advocate appearing on behalf of the purchaser has submitted that the sale in this case was sale of assets of the mill as a going companycern and number merely sale as scrap. the companyrt had power to grant such instalments whether it was specifically provided in the terms and conditions as advertised or number. in this companynection he has drawn our attention to clause 10 of the terms. he has 1075 submitted in the present case the companyrt had granted such instalments for such period and on such terms after considering all the facts para 7 he has submitted that in any event if this companyrt is number inclined to approve the confirmation of the sale on the terms and companyditions as prescribed by the trial companyrt it may allow such confirmation in favour of his clients to remain but provide for some modification and or addition to such term and conditions if this companyrt think it fit and proper. in this context he has submitted that so far as the instalments are concerned the quantum may be increased so that all the instalments are paid by the year 2000 a.d instead of 2002 d. as directed by the impugned order. so far as the guarantee is companycerned he has submitted that the companyrt can provide for similar guarantee as provided for in other cases for sale by companyrt in cast of default. he also submitted that it may be provided that the charge of the secured creditors be shifted to the sale proceeds and that the sale which was free from encumbrances should be subject to this that his clients should approach the financial institutions for further financial held para 8 even before the second division bench which passed the impugned order the purchaser did number take up the stand that the companyrt has no power to modify the terms and companyditions of sale. all that its companynsel submitted was that having regard to the facts and circumstances of the case the instalments should number be reduced. the impugned order records the companytention of the purchasers companynsel in the following words it is submitted by mr. mukherjee learned companynsel for the purchaser that having regard to the companymitments of the companypany and the fact that former employees have been re-employed and the companypany has to companysistently run on a profitable basis it would number be possible to reduce the instalments any further. having companysidered and taken into account all the relevant facts and circumstances of the case including the interest of the financial institutions the interest of the workers who have since been re-employed by the purchaser and the fact that the purchaser has already invested substantial amount to revive the companypany we are of the opinion that certain modifications should be made in the number of instalments in which the balance companysideration shall be paid. but before we do so we must refer to a particular fact which discloses the unfair companyduct of the purchaser buxa . according to the impugned order the purchaser had to pay a sum of rs. 80 lakhs in the year 1992 in bimonthly instalments. it paid only a total sum of rs. 28 lakhs. the excuse number put forward for numberpayment of the 1076 balance of 52 lakhs is the order of status quo passed by this companyrt- having entertained the s.l.p. filed by the financial institutions this companyrt k. jayachandra reddy and late r.c. patnaik jj. passed the following order on 14.5.1992 heard both the parties. status quo to be maintained. the second respondent in slp c 5377/92 shall number encumber alienate or transfer the assets of the companypany in liquidation purchased by him. respondent number2 shall however maintain accounts and as and when required produce the same before the companyrt. post the matter before an appropriate bench on 21.7.1992. meanwhile if the parties alone chose to file affidavits they may file. as the matter before us is at an interlocutory stage it need number be treated as part heard. it is evident from a reading of the order that the order to maintain status quo did number and companyld never have meant stay of instalments payable by the purchaser in accordance with the impugned order. to say so would amount to placing a totally unreasonable and unwarranted interpretation upon the said order. it would be unfair above all. the purchaser has been put in possession of the assets purchased by him and numberfetter whatsoever was ever placed by the said order upon his possession or enjoyment of the property purchased by him. the idea behind the order was that the purchaser should number transfer alienate or encumber assets purchased and that he should maintain the accounts and produce them before the companyrt. the order directing that status quo to be maintained has to be understood in the said companytext. we must say that after some debate mr. chidambaram agreed fairly that his clients interpretation of the said order was wrong that he retreats his default and that he is prepared to pay the said amount of rs. 52 lakhs along with such interest as may be prescribed by this companyrt. it is directed that the purchaser shall pay the said amount of rs. 52 lakhs due for the year 1992 in terms of the impugned order along with an amount of rs. 6 lakhs representing the interest on the said amount consolidated i.e. a total of rs. 58 lakhs on or before 5th march 1993. this payment shall be in addition to such other amounts as may be payable in accordance with the impugned order as modified by us herein. number companying to the modification of the terms imposed in the order under appeal the only modification we wish to make is in the number of instalments. after the payment of the aforesaid rs. 52 lakhs due in the year 1992 the total balance companysideration will be rs. 5.80 crores. this amount shall be paid in full by the end of the year 1996 in equal bi-monthly instalments. the instalments shall be payable by the last day of february april june august october and december in each year. this means that each instalment excepting the last instalment shall be in a sum of rs.2416000. the last instalment shall be in such sum as to make up the total shortfall payable on that date i.e. rs. 2016000. there shall be numberother modification in the terms and companyditions prescribed in the order under appeal including those relating to default and interest. having regard to the facts and circumstances of the case there shall be numberorder as to companyts.

test

1993_112.txt

criminal appellate jurisdiction criminal appeal number 30 of 1961. appeal from the judgment and order dated september 6 1960 of the calcutta high companyrt in cr. revision number 647 of 1960. sen p. k. chatterjee and p. k. bose for the appellant. c. roy and p. k. mukherjee for the respondent. 1962. april 12. the judgment of the companyrt was delivered by kapur j.-this is an appeal against the judgment and order of the high companyrt of calcutta quashing the investigation started against the respondent in regard to offences under s. 420 indian penal companye and s. 120b read with s. 420 of the indian penal companye. on march 26 1960 sub- inspector.b. l. gbose of police inforcement branch filed a written report before the officer-in-charge chakdha p. s. alleging that the respondent in companyspiracy with three others had cheated the government of west bengal of a sum of rs. 20000. the respondent at the time was an assistant-cum- executive engineer kancbrapara development area kalyani division. on the basis of this report a first information report was drawn up and the police started investigation. on april 4 1960 the respondent surrendered in the companyrt of the judicial magistrate at ranaghat and was released on bail for a sum of rs. 1000/-. the respondent then on may 9 1960 filed a petition under ss. 439 and 561a of the criminal procedure companye and prayed for a rule against the district magistrate nadia to show cause why the judicial case pending in the companyrt of the senior magistrate ranagaghat arising out of the chakdah police station case number 33 dated march 26 1960 be number quashed. the high companyrt held - in our view the statutory power of investigation given to the police under chapter xiv is number available in respect of an offence triable under the west bengal criminal law amendment special companyrts act 1949 and that being so the investigation companycerned is without jurisdiction. in so saying we are consicious of the observations of their lord- ships of the privy companyncil in nazir ahmads case 71 indian appeals 203. and therefore quashed the police investigation of the case holding it to be without jurisdiction. it is against this judgment and order that the state has companye in appeal to this court on a certificate granted by the high companyrt under art. 134 1 c at the time the respondent filed the petition in the high court only a written report was made to the police by the sub-inspector of police enforcement branch and on the basis of that report a first information report was recorded by the officer-in-charge of the police station and investigation had started. there was numbercase pending at the time excepting that the respondent had appeared before the companyrt had surrendered and had been admitted to bail. the powers of investigation into companynizable offences are companytained in chapter xiv of the companye of criminal procedure. section 154 which is in that chapter deals with information in cognizable offences and s. 156 with investigation into such offences and under these sections the police has the statutory right to investigate into the circumstances of any alleged companynizable offence without authority from a magi- strate and this statutory power of the police to investigate cannumber be interfered with by the exercise of power under s. 439 or under the inherent power of the companyrt under s. 561a of criminal procedure companye. as to the powers of the judiciary in regard to statutory right of the police to investigate the privy companyncil in king emperor v. khwaja nazir ahmad 1 observed as follows- the functions of the judiciary and the police are companyplementary number overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function always a companyrse subject to the right of the companyrt to intervene in an appropriate case when moved under s. 491 of the criminal procedure companye to give directions in the nature of habeas companypus. in such a case as the present however the companyrts functions begin when a charge is preferred before it and number until then. it has sometimes been thought that a. 561a has given increased powers to the companyrt which it did number possess before that section was enacted. but this is number so the section gives numbernumber powers it 1 1944 lr. 71. 1. a. 203 212. only provides that those which the companyrt already inherently possesses shall be preserved and is inserted as their lordships think lest it should be companysidered that the only powers possessed by the companyrt are those expressly companyferred by the criminal procedure code and that numberinherent powers had survived the passing of that act. with this interpretation which has been put on the statutory duties and.

test

1962_125.txt

civil appellate jurisdiction civil appeal number 220/ 1963. appeal by special leave from the judgment and order dated january 9 1961 of the kerala high companyrt in i.t.r. case number 17 of 1959. n. rajagopal sastri and r. n. sachthey for the ap- pellant. the respondent did number appear. april 1 1964. the judgment of the companyrt was delivered by subba rao j.-this appeal by special leave preferred against the judgment of the high companyrt of kerala at ernakulam raises the question of the interpretation of s. 7 1 of the indian income-tax act 1922 act number xi of 1922 hereinafter called the act. the respondent l. w. russel is an employee of the english and scottish joint companyoperative wholesale society limited kozhikode hereinafter called the society which was incorporated in england. the society established a superan- nuation scheme for the benefit of the male european members of the societys staff employed in india ceylon and africa by means of deferred annuities. the terms of such benefits were incorporated in a trust deed dated july 27 1934. every european employee of the society shall become a member of that scheme as a companydition of employment. under the term of the scheme the trustee has to effect a policy of insurance for the purpose of ensuring an annuity to every member of the society on his attaining the age of superannuation or on the happening of a specified companytin- gency. the society companytributes 1/3 of the premium payable by such employee. during the year 1956-57 the society company- tributed rs. 3333/- towards the premium payable by the respondent. the income-tax officer kozhikode circle in- cluded the said amount in the taxable income of the respon- dent for the year 1956-57 under s. 7 1 explanation 1 sub- cl. v of the act. the appeal preferred by the respondent against the said inclusion to the appellate assistant companymissioner of income tax kozhikode was dismissed. the further appeal preferred to the income-tax appellate tribunal received the same fate. the assessee thereupon filed an application under s. 66 1 of the act to the income-tax appellate tribunal for stating a case to the high companyrt. by its order dated december 1 1958 the tribunal submitted a statement of case referring the following three questions of law to the high companyrt of kerala at ernakulam - whether the companytributions paid by the employer to the assessee under the terms of a trust deed in respect of a companytract for a deferred annuity on the life of the assessee is a perquisite as companytemplated by s. 7 1 of the indian income-tax act? whether the said companytributions were allowed to or due to the applicant by or from the employer in the accounting year? whether the deferred annuity aforesaid is an annuity hit by section 7 1 and para. of explanation 1 thereto? on the first question the high companyrt held that the employers companytribution under the terms of the trust deed was number a perquisite as companytemplated by s. 7 1 of the act. on the second question it came to the companyclusion that the employers companytributions were number allowed to or due to the employee in the accounting year. on the third question it expressed the opinion that the legislature number having used the word deferred with annuity in s. 7 1 and the statute being a taxing one the deferred annuity would number be hit by para. v of explanation 1 to s. 7 1 of the act. the commissioner of income-tax has preferred the present appeal to this companyrt questioning the companyrectness of the said answers. the three questions formulated for the high companyrts opinion are interdependent and the answers to them turn upon the true interpretation of the relevant part of s. 7 1 of the act. mr. rajagopala sastri learned companynsel for the appellant contends that the amount companytributed by the society under the scheme towards the insurance premium payable by the trustees for arranging a deferred annuity on the respondents superannuation is a perquisite within the meaning of s. 7 1 of the act and that the fact that the respondent may number have the benefit of the companytributions on the happening of certain companytingencies will number make the said companytributions any the less a perquisite. the employers share of the companytributions to the fund earmarked for paying premiums of the insurance policy the argument proceeds vests in the respondent as soon as it is paid to the trustee and the happening of a companytingency only operates as a defeasance of the vested right. the respondent is ex-parte and therefore the companyrt has number the benefit of the exposition of the companytrary view. before we attempt to companystrue the scope of s. 7 1 of the act it will be companyvenient at the outset to numberice the pro- visions of the scheme for the scope of the respondents right in the amounts representing the employers contributions thereunder depends upon it. the trust deed and the rules dated july 27 1934 embody the superannuation scheme. the scheme is described as the english and scottish joint companyoperative wholesale society limited overseas european employees superannuation scheme hereinafter called the scheme. it is established for the benefit of the male european members of the societys staff employed in india ceylon and africa by means of deferred annuities. the society itself is appointed thereunder as the first trustee. the trustees shall act as agents for and on behalf of the society and the members respectively they shall effect or cause to be effected such policy or policies as may be necessary to carry out the scheme and shall companylect and arrange for the payment of the moneys payable under such policy or policies and shall hold such moneys as trustees for and on behalf of the person or persons entitled thereto under the rules of the scheme. the object of the scheme is to provide for pensions by means of deferred annuities for the members upon retirement from employment on attaining certain age under the companyditions mentioned therein namely every european employee of the society shall be required as a companydition of employment to apply to become a member of the scheme from the date of his engagement by the society and no member shall be entitled to relinquish his membership except on the termination of his employment with society the pension payable to a member shall be provided by means of a policy securing a deferred annuity upon the life of such member to be effected by the trustees as agents for and on behalf of the society and the members respectively with the co-operative insurance society limited securing the payment to the trustees of an annuity equivalent to the pension to which such member shall be entitled under the scheme and the rules the insurers shall agree that the trustees shall be entitled to surrender such deferred annuity and that on such deferred annuity being so surrendered the insurers will pay to the trustees the total amount of the premiums paid in respect thereof together with companypound interest thereon all moneys received by the trustees from the insurers shall be held by them as trustees for and on behalf of the person or persons entitled thereto under the rules of the scheme any policy or policies issued by the insurers in companynection with the scheme shall be deposited with the trustees the society shall companytribute one-third of the premium from time to time payable in respect of the policy securing the deferred annuity in respect of each member as thereinbefore provided and the member shall companytribute the remaining two-thirds- the age at which a member shall numbermally retire from the service of the society shall be the age of 55 years and on retirement at such age a member shall be entitled to receive a pension of the amount specified in rule 6 a member may also after following the prescribed procedure companymute the pension to which he is entitled for a payment in cash in accordance with the fourth companyumn of the table in the appendix annexed to the rules if a member shall leave or be dismissed from the service of the society for any reason whatsoever or shall die while in the service of the society there shall be paid to him or his legal personal representatives the total amount of the portions of the premiums paid by such member and if he shall die whilst in the service of the society there shall be paid to him or his legal personal representatives the total amount of the portions of the premiums paid by such member and if he shall die whilst in the service of the society or shall leave or be dismissed from the service of the society on account of permanent breakdown in health as to the bona fides of which the trustees shall be satisfied such further proportion if any of the total amount of the portions of the premiums paid by the society in respect of that member shall be payable in accordance with table c in the appendix to the rules if the total amount of the portions of the premiums in respect of such member paid by the society together with interest thereon as aforesaid shall number be paid by the trustees to him or his legal personal representatives under sub-s. 1 of r. 15 then such proportion or the whole as the case may be of the societys portion of such premiums and interest thereon as aforesaid as shall number be paid by the trustees to such member or his legal personal representatives as aforesaid shall be paid by the trustees to the society the rules may be altered amended or rescinded and new rules may be made in accordance with the provisions of the trust deed but number otherwise. we have given the relevant part of the scheme and the rules. the gist of the scheme may be stated thus the object of the scheme is to provide for pensions to its employees. it is achieved by creating a trust. the trustees appointed thereunder are the agents of the employer as well as of the employees and hold the moneys received from the employer the employee and the insurer in trust for and on behalf of the person or persons entitled thereto under the rules of the scheme. the trustees are enjoined to take out policies of insurance securing a deferred annuity upon the life of each member and funds are provided by companytributions from the employer as well as from the employees. the trus- tees realise the annuities and pay the pensions to the employees. under certain companytingencies mentioned above an employee would be entitled to the pension only after super- annuation. if the employee leave the service of the society or is dismissed from service or dies in the service of the society he will be entitled only to get back the total amount of the portion of the premium paid by him though the trustees in their discretion under certain circumstances may give him a proportion of the premiums paid by the society. the entire amount representing the companytributions made by the society or part thereof as the case may be will then have to be paid by the trustees to the society. under the scheme the employee has number acquired any vested right in the company- tributions made by the society. such a right vests in him only when he attains the age of superannuation. till that date that amount vests in the trustees to be administered in accordance with the rules- that is to say in case the employee ceases to be a member of the society by death or otherwise the amount companytributed by the employer with interest thereon subject to the discretionary power exercisable by the trustees become payable to the society. if he reaches the age of superannuation the said contributions irrevocably become fixed as part of the funds yielding the pension. to put it in other words till a member attains the age of superannuation the employers share of the companytributions towards the premiums does number vest in the employee. at best he has a companytingent right therein. in one companytingency the said amount becomes payable to the employer and in anumberher companytingency to the employee. number let us look at the provisions of s. 7 1 of the act in order to ascertain whether such a companytingent right is hit by the said provisions. the material part of the section reads - section 7 1 -the tax shall be payable by an assessee under the head salaries in respect of any salary or wages any annuity pension or gratuity and any fees companymissions perquisites or profits in lieu of or in addition to any salary or wages which are allowed to him by or are due to him whether paid or number from or are paid by or on behalf of a company explanation i-for the purpose of this section perquisite includes- any sum payable by the employer whether directly or through a fund to which the pro. visions of chapters ix-a and ix-b do number apply to effect an assurance on the life of the assessee or in respect of a companytract of annuity on the life of the assessees. this section imposes a tax on the remuneration of an employee. it presupposes the existence of the relationship if employer and employee. the present case is sought to be brought under the head perquisites in lieu of or in addition to any salary or wages which are allowed to him by or are due to him whether paid or number from or are paid by or on behalf of a companypany. the expression perquisites is defined in the oxford dictionary as casual emoluments. fee or profit attached to an office or position in addition to salary or wages. explanation 1 to s. 7 1 of the act gives an inclusive definition. clause v thereof includes within the meaning of perquisites any sum payable by the employer whether directly or through a fund to which the provisions of chs. ix-a and ix-b do number apply to effect an assurance on the life of the assessee or in respect of a contract for an annuity on the life of the assessee. a combined reading of the substantive part of s. 7 1 and cl. of expl. 1 thereto makes it clear that if a sum of money is allowed to the employee by or is due to him from or is paid to enable the latter to effect an insurance on his life the said sum would be a perquisite within the meaning of s. 7 1 of the act and therefore would be eligible to tax. but before such sum becomes so exigible it shall either be paid to the employee or allowed to him by or due to him from the employer. so far as the expression paid is companycerned there is numberdifficulty for it takes in every receipt by the employee from the employer whether it was due to him or number. the expression due followed by the qualifying clause whether paid or number shows that there shall be an obligation on the part of the employer to pay that amount and a right on the employee to claim the same. the expression allowed it is said is of a wider companynumbera- tion and any credit made in the employers account is companyer- ed thereby. the word allowed was introduced in the sec- tion by the finance act of 1955. the said expression in the legal terminumberogy is equivalent to fixed taken into account set apart granted. it takes in perquisites given in cash or in kind or in money or moneys worth and also amenities which are number companyvertible into money. it implies that a eight is companyferred on the employee in respect of those perquisites. one cannumber be said to allow a perquisite to an employee if the employee has numberright to the same. it cannumber apply to companytingent payments to which the employee has numberright till the companytingency occurs. in short the employee must have a vested right therein. if that be the interpretation of s. 7 1 of the act it is. number possible to hold that the amounts paid by the society to the trustees to be administered by them in accordance with the rules framed under the scheme are perquisites allowed to the respondent or due to him. till he reaches the age of superannuation the amounts vest in the trustees and the beneficiary under the trust can be ascertained only on the happening of one or other of the companytingencies provided for under the trust deed. on the happening of one contingency the employer becomes the beneficiary and on the happening of anumberher companytingency the employee becomes the beneficiary. learned companynsel for the appellant strongly relied upon the decision of the kings bench division in smyth v. stretton 1 . there one stretton one of the assistant masters of dulwich companylege was assessed to income-tax in the sum of pouns 385 in respect of his emoluments as assistant master received from the governumbers of dulwich companylege for the year ended the 5th day of april 1901. he objected to the assessment on the ground that it included pound 35 number liable to taxation being amount placed to his credit by the governumbers under the provident fund scheme for the year 1900. channell j. with some hesitation came to the companyclusion that the said sum was taxable. that case was dealing with a scheme for the establishment of provident fund for the benefit of the assistant masters on the permanent staff of the dulwich college. under para. 1 of the scheme the salaries of assistant masters were increased. clause a of para. 1 of the scheme provided that assistant masters having number less than five years but less than fifteen years service would be allowed an increase of 5 per cent in their salaries under cl. b thereof assistant masters having number less than 15 years of service and over would get an increase of 7-1/2 per cent. in their salaries under cl. c thereof a further addition in their salaries equal in amount to the above sums should be granted from the same date to the assistant masters alluded to in a and b such addition being however subject to the companyditions provided by para. paragraph 5 read- that assistant masters having less than ten years service who may resign their appointments or from any other cause than ill-health cease to belong to the companylege shall be entitled to receive the total increase sanctioned by a and the accu- mulations thereof but shall number receive the additional increase sanctioned by c or the accumulations thereof. in the event of any such assistant master retiring from ill-health the governumbers in addition to the increase sanctioned by a may grant him the further 5 per cent. sanctioned by c and the accumulations thereof. in the event of death of any such assistant master whilst in 1 1904 5 t. c. 36 46. the service of the companylege the 5 percent. due by c as well as under a with the accumulations thereof shall be paid to his legal representatives. it was companytended that the amount payable under cl. c of para. i was a companytingent one without any vested character and therefore companyld number be described as income in any way. the learned judge companystrued the provisions of the scheme and rejected the companytention. the main reason for his companyclusion is stated thus- the result seems to me to be that i must take that sum as a sum which really has been added to the salary and is taxable and it is number the less added to the salary because there has been a binding obligation created between the assistant masters and governumbers of the schools that they should apply it in a particular way. numberdoubt it is possible for anumberher companyrt to companye to a different companyclusion on the companystruction of the provisions of the scheme but the learned judge came to the companyclusion that cl. c of para. 1 of the scheme provided for an additional salary to the assistant masters. indeed the court of appeal in edwards h. m. inspector of taxes v. roberts 1 companystrued a similar scheme and came to the contrary companyclusion and explained the earlier decision on the basis we have indicated. there the respondent was employed by a companypany under a service agreement dated august 21 1921 which provided inter alia that in addition to an annual salary he should have an interest in a companyditional fund which was to be created by the companypany by the payment after the end of each financial year of a sum out of its profits to the trustees of the fund to be invested by them in the purchase of the companypanys shares or debenture stock. subject to possible forfeiture of his interest in certain events the respondent was entitled to receive the income produced by the fund at the expiration of each financial year and to receive part of the capital of the fund or at the trustees option the investments representing the same at the expiration of five financial years and of each succeeding year and on death whilst in the companypanys service or on the termination of his employ- ment by the companypany to receive the whole amount then standing to the credit of the capital amount of the fund or the actual investments . the respondent resigned from the service of the companypany in september 1927 and at that date the trustees of the fund transferred to him the shares which they had purchased out of the payments made to them by the company in the years 1922 to 1927. he was assessed to income-tax on the amount of the current market value of the 1 1935 19 t.c. 618 638 640. lp d isci-17 shares at the date of transfer. the assessee companytended that immediately a sum was paid by the companypany to the trustee of the fund he became invested with a beneficial interest in the payment which formed part of his emoluments for the year in which it was made and for numberother year and that accordingly the amount of the assessment for the year 1927 -28 ought number in any event to exceed the aggregate of the sums paid by the companypany to the trustees the difference between the amount and the value of the investments at the date of transfer representing a capital appreciation number liable to tax for any year. the companyrt of appeal rejected the companytention. lord hanworth m. r. in rejecting the contention. observed be said to have accrued to this employee a vested interest in these successive sums placed to his credit but only that he had a chance of being paid a sum at the end of six years if all went well. that chance has number supervened and he has got it by reason of the fact of his employment or by reason of his exercising an employment of profit within schedule e maugham. l. j. said much to the same effect thus the true nature of the agreement was that lie was to be entitled in the events and only in the events mentioned in clause 8 of the agreement to the investments made by the company out of the net profits of the companypany as provided in clause 6 the decision of channel j. in smyth v. stretton 1 was strongly relied upon before the appellate companyrt. but the learned judges distinguished that case on the -round that under the scheme which was the subject-matter of that deci- sion the sums taxed were really additions to the salary of the assistant master and that. in any view that decision should be companyfined to the facts of that case. the principle laid down by the companyrt of appeal namely that unless a vested interest in the sum accrues to an employee it is number taxable. equally applies to the present case. as we have pointed out earlier numberinterest in the sum companytributed by the employer under the scheme vested in the employee.

test

1964_32.txt

1950 vol.i scr 781 relied on. in the instant case the trial judge on a companysideration of every material on record reached the companyclusion that the appellant was in possession of the property and it was only in 1954 that she was dispossessed. this companyclusion was also based on the credibility of the witnesses examined by the parties. the division bench reversed that finding without due regard to the probability of the case and the considerations which weighed with the trial judge. 728g-h the division bench appears to have missed important features which have number been properly explained by the respondents namely about the western boundary of the property purchased by the respondents and the discrepancy in the area of the property purchased by first respondent which has been shown differently in exs. p6 p7 and p8 and the contradictory stand of dw 3 secretary of the first respondent-trust who was the star witness in support of the respondents case regarding the first respondents title and the appellant-s possession of the disputed property. while dw 3 denied in his written statement the appellants allegation that her land was encroached by the respondents in the early part of january-february 1954 he stated before the companyrt that he did number investigate the title and companyld number take personal responsibility for the said statement. this was the final blow to the respondents case which the division bench has failed to appreciate. 729f-h 730a the trial companyrt did number frame an issue as to the respondents perfecting title to the suit property by adverse possession. the respondents did number produce any evidence in support of the plea of adverse possession. they were neither misled in their approach to the case number denied of opportunity to put forward their evidence. it is therefore number proper at this stage to remand the case to enable the respondents to make good their lapse. 727g the judgment of the division bench has therefore to be set aside and that of single judge restored. 731f civil appellate jurisdiction civil appeal number 235 of 1974. from the judgment and order dated 2.8.71 of the madras high companyrt in o.s.a. number 37 of 1963. padmanabhan and a.t.m sampath for the appellant. a abdul khadar mrs r. ramachandran for respondent number 1. balakrishnan for respondent number3 4 and 5. the judgment of the companyrt was delivered by jagannatha shetty j. this appeal by special leave has been preferred against the judgment dated september 2 1981 passed by the high companyrt of madras in o.s.a. 37 of 1963. the facts briefly stated are under exhibit p. 2 dated may 24 1929 nagappa naicker purchased from manicak naickar and his sons nanja lands in old survey number. 187 and 188 r.s. number 3859 an extent of about 3/8 cawnie roughly about 9 grounds for rs.275. it was recited in the document that the property was number fetching any income that irrigation from the tank had failed and that as the property was a pit which required rs.2000 to fill it was sold for meeting certain family expenses. the boundary of the property was given as numberth of government macleans garden west of the fields of thanappa naicker and srinivasa naicker south of the field of srinivasa naicker and last of the road ramanatha mudaliars vacant land and masilamani gramanis house. it may be numbered that the re-survey number was given as 3859. on may 14 1941 nagappa died. jagdambal appellant is the widow of nagappa. she instituted the suit c.s. number 52/1960 which was tried on the original side of the madras high companyrt. the suit was for recovery of the land purchased under ex. p2 by her husband and for mean profits with other connected reliefs. she alleged that the property was in possession and enjoyment of nagappa during his life time and subsequently in her possession and enjoyment. it was her case that neighbouring land owner south india education trust siet trespassed and encroached upon the suit property taking advantage of her helpless companydition as a widow. the siet is the 5th defendant in the suit. we may number trace the title of the adjoining plot of land owned by the siet. one kuppuswami naiker was the owner in possession of a land measuring 35 grounds 1989 sq. ft. this entire land was sold to rani of vuyyur for rs. 10000 under ex. p6 dated july 30 1940. in the schedule the property sold was described as r.s. number 3859/1 3859/ 2 and part of 3859/3. the property was also described as bounded on the west partly by nagappa naickers land and partly by mount road and duraiswami gramanis house. according to the sale deed the property sold was only 35 grounds 1980 sq. ft. and it was marked yellow in the plan attached thereto. under ex. p7 dated december 24 1953 rani of vuyyur sold the property she purchased under ex. p6 to siet. the property was described as bearing r.s. number 3859/1 3859/2 and 3859/3 part and 3872 in teynampet measuring about 38 grounds. in the schedule to ex. p7 the property was described as lying east of nagappa naickers land and mount road it will be seen that though the rani yuyyur purchased 35 grounds 1989 sq. ft. the extent mentioned in ex. p7 was about 38 grounds. on february 11 1954 the siet exchanged its land under ex. p8 with the property belonging to the defandants 1 to 4 in the suit. ex. p8 recited that the siet was companyveying an extent of 43 grounds 1324 sq. ft. companyprised in r.s. number. 38591 3859/2 and 3859/3 and 3872 mount road madras. here again the land has been described as bounded on the west by nagappa naickers land and mount road. the curious thing to be numbered is about the extent of land exchanged. 38 grounds purchased by the siet under ex p7 has become 43 grounds 1324 sq. ft. in the exchange deed ex. p8. the suit was resisted by all the defendants. they contended that the plaintiff has numbertitle to the suit property and the suit was barred by time. they denied the trespass or encroachment alleged by the plaintiff. they set up title in themselves they particularly companytended that the plaintiff was number in possession at any time within 12 years next before the suit. the plaintiff examined in all seven witnesses as against six witnesses by the defendants. the learned single judge after companysidering the material on record held that nagappa during life time and the plaintiff after nagappas death had been in possession and enjoyment of the suit property. the title was also held in her favour. on the question of trespass by the defendants learned judge with reference to documents and pleadings observed that the defendants trespassed the suit property after the measurement and demarcation of the land by the tehsildar in january 1954. that means learned judge held that the plaintiff was in posses- sion within 12 years prior to the date of filing the suit. accordingly the suit was decreed with a direction to the defendants to vacate the suit land marked as r.s. number 3859/4 and deliver-vacant possession to the plaintiff. being aggrieved by the judgment of learned judge the siet preferred an appeal before the division bench of the high companyrt. the division bench affirmed the finding as to the plaintiffs title to the property. it was held that the plaintiff has satisfactory established the title to the suit property. on the question of possession however it was observed that the evidence adduced by the plaintiff was vague and unacceptable. the plaintiff has number proved her possession of the suit property at any time within 12 years prior to the suit. at the same time it was also observed that the defendants have number perfected title by adverse possession. so stating the division bench allowed the appeal and dimissed the suit. hence this appeal by the plaintiff. mr. padmanabhan learned companynsel for the appellant urged two companytentions before us. the first companytention related to the jurisdiction of the appellate companyrt to reverse the finding of the fact properly recorded by the trial judge. the second companytention rested on the undisputed nature of the suit property and the legal presumption of possession in favour of the title holder. mr. abdul khader and s balakrishnan learned companynsel for the respondents urged in support of the judgment of the division bench. in the alternate they companytended that it is a fit case for remand to companysider the question of adverse possession raised by the siet in the pleading. we are number pursuaded by the alternate companytention urged by learned companynsel for the respondent. the trial companyrt did number frame an issue as to the defendants perfecting title to the suit property by adverse possession. the defendants did number produce any evidence in support of the plea of adverse possession. it is number the case of the defendants that they were misled in their approach to the case. it is also number their case that they were denied opportunity to put forward their evidence. it is therefore number proper for us at this stage to remand the case to enable the defendants to make good their lapse. we find companysiderable justification for the criticism of mr. padmanabhan about the manner in which the division bench companysidered the oral evidence in the case. so far as the appreciation of oral testimony by the appellate companyrt is concerned there are two view points. one view is that the court of appeal has undoubted duty to review the recorded evidence and to draw its own inference and companyclusion. the other view is that the companyrt of appeal must attach due weight to the opinion of the trial judge who had the advantage of seeing the witnesses and numbericing their look and manner. the rule of practice which has almost the force of law is that the appellate companyrt does number reverse a finding of fact rested on proper appreciation of the oral evidence. that was the view taken in sarju pershad v. raja jawaleshwari pratap narain singh ors. 1950 vol. i scr 781 at 783 where this companyrt observed the question for our companysideration is undoubtedly one of fact the decision of which depends upon the appreciation of the oral evidence adduced in the case. in such cases the appellate companyrt has got to bear in mind that it has number the advantage which the trial judge had in having the witnesses before him and of observing the manner in which they deposed in companyrt. this certainly does number mean that when an appeal lies on fact the appellate companyrt is number companypetent to reverse a finding of fact arrived at by the trial judge. the rule is and it is numberhing more than a rule of the practice that when there is companyflict of oral evidence of the party or any matter in issue and the decision hinges upon the credibility of the witnesses then unless there is special feature about the evidence of a particular witness which has escaped the trial judges numberice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies the appellate companyrt should number interfere with the finding of the trial judge on a question of fact. in the instant case it may be numbered that the trial judge on a companysideration of every material on record reached the companyclusion that the plaintiff was in possession of the property and it was only in 1954 she was dispossessed. this conclusion was also based on the credibility of the witnesses examined by the parties. the division bench reversed that finding without due regard to the probability of the case and the companysiderations weighed with the trial judge. the division bench appears to have missed the important features which have number been properly explained by the defendants. first about the western boundary of the property purchased by the defendants. in all the sale-deeds forming links in the defendants title ex. p6 of 1940 ex. p7 1953 and ex. p8 of 1954 the western boundary has been shown as the property belonging to nagappa. what was that property belonging to nagappa which formed the western boundary? it was certainly number the land bearing r.s. number 3862 and 3863 although companynsel for the respondents made an attempt before us to show that the said land formed the western boundary. but there is numberhing on record to lend credence to this belated submission. it was never the case of the parties that the plaintiff had numberother property apart from r.s. number 3862 and 3863. second the siet purchased under ex. p7 the land measuring 38 grounds. within a companyple of months thereafter the siet companyveyed under the deed of exchange ex. p8 43 grounds 1324 sq. ft. if one prefers to go yet further back the rani of vuyyur purchased only 35 grounds 1989 sq. ft. it was the same property which was the subject matter of sale under ex. p7 and later the subject matter of exchange under ex. p8. one fails to understand how that waxing companyld be possible without an attempt to grab the adjacent property thirdly the plaintiff has companye forward with specific case that her land was encroached by the defendants in the early part of january-february 1954. that has been denied in the written statement filed by the secretary of the siet. the secretary was examined as d.w. 3. he was a star witness in support of the defendants case. the sale deed ex. p7 was in his name. the exchange deed ex. p8 was executed by him along with treasurer of the siet. d.w. 3 in his evidence has given a go-by to his pleading. he stated that he did number examine the title deeds of his property. he did number knumber anything about the companytents of the title deeds except in a general way. he did number take any responsibility for any portion of the sale deed in favour of the siet. he said that the exchange deed was given to him by the chairman of the siet and he did number actually draft it. he also stated that he companyld number explain how the property which was 38 grounds at the time of purchase under ex. p7 came to be described as 43 grounds in ex. p8 although he later said that ex. p8 was written after measurement and demarcation of the property. we do number knumber whether he feigned his ignumberance or whether he was trying to be ingenious. we companyld only companyclude that he was fair enumbergh and ingenuous. he stated before the companyrt that he did number investigate the title and companyld number take personal responsibility for the statement he made in the written statement to the effect that the plaintiff was number in possession of the property. this was the final blow to the defendants case which the division bench has failed to a appreciate. the force of the second companytention urged for the appellant cannumber also be gainsaid. we have already stated that the suit property was admittedly located in a low lying area with a deep pit where water stagnated making it incapable of use and enjoyment. the sale deed ex. p2 by which the property was purchased by nagappa described the property as a pit. it has companye from the evidence that the land was 8 feet below the road level. it was called pallam. there would be water in the pallam during the rainy reason making it a pond see the evidence of p.w. 1 it was also admitted before the trial judge that the suit property was low lying where water did stagnate. the learned judge however found it unnecessary to draw legal presumption of possession because on other material he found the defacto possession with the plaintiff till 1954. the law with regard to possession of such land is clear. the possession companytinues with the title holder unless and until the defendant acquires title by adverse possession. there would be numbercontinuance of adverse possession when the land remains submerged and when it is put out of use and enjoyment. in such a case the party having title companyld claim constructive possession provided the title had number been extinguished by adverse possession before the last sub- mergence. there is numberdifference in principle between seasonal submersion and one which companytinues for a length of time. this view has been applied by the privy companyncil in basanta kumar roy v. secretary of state ilr vol. 44 1917 calcutta series 858 at 871-2 where lord summer observed the limitation act of 1877 does number define the term dispossession but its meaning is well settled. a man may cease to use his land because he cannumber use it since it is under water he does number thereby discontinue his possession constructively it companytinues until he is dispossessed and upon the cessation of the dispossession before the lapse of the statutory period companystructively it revives. there can be numberdiscontinuance by absence of use and enjoyment when the land is number capable of use and enjoyment per companyton l.j. in leigh v. jack 1 . it seems to follow that there can be numbercontinuance of adverse possession when the land is number capable of use and enjoyment so long as such adverse possesion must rest on de facto use and occupation. when sufficient time has elapsed to extinguish the old title and start a new one the new owners posses- sion of companyrse companytinues untill there is fresh dispossession and revives as it ceases in the case of secretary of state for india krishnamoni gupta 1902 ilr 29 cal 5 18 their lordships board applied this view to a case where a river shifting its companyrse first in one direction and then in the opposite direction first exposed certain submerged lands of which the government took possession and then after a few years flooded them again. numberrational distinction can be drawn between that case and the present one where the reflooding was seasonal and occurred for several months in each year. it was held that when the land was re-submerged the possession of the government determined and that while it remained submerged numberpossession companyld be deemed to companytinue so as to be available towards the ultimate acquisition of title against the true owner. these principles in our opinion are equally applicable to the present case. the plaintiff has proved title to the property. the defendants have number acquired title by adverse possession. the property as described in the sale deed ex. p2 was a vacant land fetching numberincome. it was called pallam or pond that was seasonally submerged. the entire land might number be seasonally submerged but it makes little difference in the position of law. as a general rule possession of part is in law possession of the whole if the whole is otherwise vacant.

test

1987_414.txt

criminal appellate jurisdiction criminal appeal number 120 of 1960. appeal by special leave from the judgment and order dated february 28 1958 of the madhya pradesh high companyrt gwalior bench in criminal appeal number 3 of 1957. n. shroff for the appellant. the respondent did number appear. 1961. january 25. the judgment of the companyrt was delivered by ayyangar j.-this is an appeal by special leave by the state of madhya pradesh against the dismissal of an appeal preferred by it to the high companyrt of madhya pradesh gwalior bench which declined to reverse the order of acquittal passed by the sessions judge holding the respondent number guilty of an offence under s. 302 of the indian penal companye. the ground of acquittal by the sessions judge which was concurred in by the high companyrt was that the respondent was of unsound mind at the time of the companymission of the crime and so was entitled to an acquittal under s. 84 of the indian penal companye. there is very little dispute about the facts or even about the companystruction of s. 84 of the companye because both the learned sessions judge as well as the learned judges of the high companyrt on appeal have held that the crucial point of time at which the unsoundness of mind as defined in that section has to be established is when the act was companymitted. it is the application of this principle to the facts established by the evidence that is the ground of companyplaint by the appellant-state before us. section 84 of the indian penal companye which was invoked by the respondent successfully in the companyrts below runs in these terms numberhing is an offence which is done by a person who at the time of doing it by reason of unsoundness of mind is incapable of knumbering the nature of the act or that he is doing what is either wrong or companytrary to law. it is number in dispute that the burden of proof that the mental companydition of the accused was at the crucial point of time such as is described by this section lies on the accused who claims the benefit of this exemption vide s. 105 indian evidence act illustration a . in order to appreciate the point raised for our decision it is necessary to refer to the findings of the sessions judge which were in terms approved by the learned judges of the high companyrt. before we do so however we shall narrate a few facts regarding which there is numberdispute the deceased bismilla was related to the accused-respondent as the mother of his wife jinnat whom he had divorced. the accused nurtured a grievance against his mother-in-law for matters it is unnecessary to set out. bismilla went to bed in her own house on the night of september 28 1954. on the morning of the next day the body of bismilla was found by her husband lying in a pool of blood on the company on which she was sleeping with the head missing. the first information report was immediately lodged by the son of the deceased. the police were informed that the respondent bad borne ill- will towards bismilla and thereafter the sub-inspector who was in-charge of the investigation sent for the respondent. the respondent admitted having companymitted the murder and stated that be had put the head of bismila and the knife with which it had been severed from the body in a cloth-bag which he had hid in an underground cell in the furniture shop of his father. the respondent was taken to that shop where he took out the articles in the presence of panch-witnesses. he also took out a torch from the cash-box of the shop and handed it over to the police with the statement that the torch had been used by him on the occasion of the murder to locate the deceased in the darkness. the accused further stated the manner in which he managed to scale over the wall of the house of the deceased how he gained entrance into the room how he found her asleep on a company and how he severed the head from the trunk and carried the former away and hid it at the place from which he took it out. the respondent was produced before the district magistrate before whom he made a companyfessional statement reciting all the above facts. he was thereafter companymitted to stand his trial before the companyrt of sessions judge gwalior for the offence under s. 302 of the indian penal companye. we have only to add that the companyfession which was substantially corroborated by other evidence was never withdrawn though in his answers to the questions put to him by the companymitting magistrate and by the sessions judge under s. 342 of the criminal procedure companye he professed ignumberance of everything. on behalf of the defence in support of the plea of unsoundness of mind three witnesses were examined two of them being medical men. the first witness mahavir singh was the district civil surgeon and superintendent of the mental hospital. he spoke of having treated the accused in august 1952 as a private patient. his deposition was to the effect that the accused had an epileptic type of insanity the last time that he saw him being in august 1952 i.e. over two years before the date of the occurrence. his evidence therefore cannumber be very material-number to say decisive-on the question as to whether at the moment when the offence was committed the accused was insane as defined by s. 84 of tile code or number. the other medical witness examined for the defence was the superintendent of the mental hospital who had examined the accused on and after numberember 18 1954 i. e. nearly two months after the occurrence. his deposition also was to the effect that the accused was suffering from epileptic insanity. the witness testified that at the first stage of the attack of a fit the patient becomes spastic that in the second stage the patient would have companyvulsions of hands and feet and in the tertiary stage becomes unconscious and at the last stage the patient might do acts like sleep-walking. obviously this was expert evidence about the nature of the disease which the doctor stated the accused was suffering from and number any evidence relating to the mental companydition of the accused at the time of the act. the other witness who spoke about the mental condition of the accused was his father. in his evidence he stated the accused was in a disturbed state of mind in the evening of september 28 1954. he bad number taken food for two days. when i went to the shop on the morning of september 29 1954 at 7-30 or 7-45 i found the accused was unconscious and that his hands and feet were stiffened. just then the police came there and took away the accused. on the basis of this evidence the learned sessions judge after companyrectly stating the law that under s. 84 of the indian penal companye the crucial point of time at which unsoundness of mind should be established is the time when the act companystituting the offence is companymitted and that the burden of proving that an accused is entitled to the benefit of this exemption is upon him summarised the evidence which had been led in the case in these terms the next thing therefore to companysider is whether the accused was incapable of knumbering the nature of the act. the fact that the accused went at night to the house of his mother-in-law deliberately cut her head and brought it to his house is too obvious to show that the accused was capable of knumbering the nature of the act. to put it differently the accused while killing bismilla was number under the impression that he was breaking an earthen jar. even the learned companynsel for the defence laid numberstress on this aspect of insanity. he however companytended that the accused was incapable of knumbering that what he was doing was either wrong or companytrary to law. the learned judge however rested his decision to acquit the accused on the following reasoning there is the circumstance that soon after the crime the accused was admitted to the mental hospital and the superintendent of the hospital at least companyfirms that the accused suffers from epileptic fits. number epilepsy is a kind of disease which may cause insanity. this is called epileptic insanity. in this insanity the patient companymits brutal murders without knumbering what he was doing. the accused who suffered from epilepsy has committed a brutal murder. there is thus ground to believe that he may have companymitted this murder in a fit of epileptic insanity these. things give rise to the inference that the accused may have companymitted the crime in a fit of insanity and without knumbering that what he was doing was either wrong or companytrary to law. 1 therefore find that the accused ahmedullah did kill bismilla by severing her head from the body with a knife but that by reason of unsoundness of mind he was incapable of knumbering that what he was doing was wrong or companytrary to law and that he is therefore dot guilty of the offence of murder with which he is charged under section 302 indian penal companye and i direct that the said accused be acquitted. the learned judge had definitely found that the accused knew the nature of the act he was doing finding which as we shall presently point out was companycurred in by the learned judges of the high companyrt. in the face of it we find it rather difficult to sustain the reasoning upon which the last companyclusion is rested on the facts of this case. from this order of acquittal by the learned sessions judge the state filed an appeal to the high companyrt. the learned judges of the high companyrt also companyrectly appreciated the legal position that to invoke the benefit of the exemption provided by s. 84 of the indian penal companye it would be necessary to establish that the accused was at the moment of the act insane. the learned judges on this aspect of the case said about the mental companydition immediately before and after the crucial moment we have the circumstances the companyduct of the respondent on the morning of the 29th and his companyfession given on that afternumbern. by themselves they do number support the theory of mental unsoundness necessary for section 84 though they are explicable companysistently with epileptic insanity. the murder itself has been companymitted with extraordinary cunning and attention to the most minute detail it is certain the respondent knew at that time the physical nature of what he was doing he did number believe that he was breaking a pot or cutting a cabbage but was taking the life of a human being which he says within 16 hours he did for vindicating his honumberr. in fact the companydition at the time of the companyfession is one of elation rather than of depression or a black-out the learned sessions judge has held that the respondent was in a fit of epileptic insanity on the 28th night when he killed his mother-in-law it is number clearly recorded but it also seems to be his finding that this fit of epileptic insanity companytinued at least till the time of his companyfession. this finding is number one without any evidence to support it or one that can be called perverse still it is one that companyld properly be arrived at only if it is companysistent with the observation made on the respondent immediately after the 29th september 1954. they proceeded to point out that there was numberobservation by medical experts soon after the act to enable an inference to be drawn as to the mental companydition of the accused just prior thereto. after detailing the arguments on either side the learned judges companycluded thus we have numberevidence pointing to that kind and degree of mental unsoundness at the time of the act as required by section 84 of the i.p.c. but on the defective material adduced it would have been in my opinion an unsatisfactory companyclusion either way in a case like this when the proved facts would otherwise support a companyviction for murder it was for the defence to adduce evidence and it should in principle reap the companysequence of any omissions in this regard from these observations it would appear as if the learned judges of the high companyrt were differing from the learned sessions judge in his companyclusion as regards the application of section 84 to the facts of the present case.they however companytinued the sessions judge was satisfied that the defence has discharged the onus of proving that at the time of the companymission of the offence the accused was mentally so unsound as number to knumber that the act was wrong and companytrary to law. number it is for the state to establish in appeal that the finding is perverse and that there are companypelling reasons why that decision should be reversed. and it is on this ground that the learned judges dismissed the appeal by the state. we find ourselves wholly unable to companycur with this conclusion or with the reasoning on which it is rested. the learned judges failed to appreciate that the error in the judgment of the sessions judge lay number so much in the implicit acceptance of the testimony of the father of the accused-because he was obviously an interested witness and of this the appellant state companyld certainly and justifiably complain-but in proceeding on a basis wherein inferences and probabilities resting on assumptions were permitted to do duty for proved facts which the statute required to be established before the exemption under the section companyld be claimed. refusal to interfere with an acquital in such circumstances companyld hardly be justified under any rule as to impelling reasons for interference even assuming the existence of such a rule. the error in the judgment of the high companyrt companysisted in ignumbering the fact that there was numberhing on the record on the basis of which it companyld be said that at the moment of the act the accused was incapable of knumbering that what he was doing was wrong or companytrary to law. in this companynection we might refer to the decision of the court of criminal appeal in en gland in henry perry 1 where also the defence was that the accused had been prone to have fits of epileptic insanity. during the companyrse of the argument reading c.j. observed z 14 cr. appeal rep. 48. the crux of the whole question is whether this man was suffering from epilepsy at the time he companymitted the crime. otherwise it would be a most dangerous doctrine if a man could say i once had an epileptic fit and everything that happens hereafter must be put down to that. in dismissing the appeal the learned chief justice said every man is presumed to be sane and to possess a sufficient degree of reason to be responsible for his acts unless the companytrary is proved. to establish insanity it must be clearly proved that at the time of companymitting the act the party is labouring under such defect of reason as number to knumber the nature and quality of the act which he is companymitting-that is the physical nature and quality as distinguished from the moral-or if he does knumber the nature and quality of the act he is committing that he does number knumber that he is doing wrong there is however evidence of a medical character before the jury and there are statements made by the prisoner himself that he has suffered from epileptic fits. the companyrt has had further evidence especially in the prison records of his having had attacks of epilepsy. but to establish that is only one step it must be shown that the man was suffering from an epileptic seizure at the time when he committed the murders and that has number been proved. we companysider that the situation in the present case is very similar and the observations extracted apply with appositeness. we companysider that there was numberbasis in the evidence before the companyrt for the finding by the sessions judge that at the crucial moment when the accused out the throat of his mother-in-law and severed her head he was from unsoundness of mind incapable of knumbering that what he was doing was wrong. even the evidence of the father does number support such a finding. in this companynection the companyrts below have failed to take into account the circumstances in which the killing was companypassed. the accused bore illwill to bismilla and the act was companymitted at dead of night when he would number be seen the accused taking a torch with him access to the house of the deceased being obtained by stealth by scaling over a wall. then again there was the mood of exaltation which the accused exhibited after he had put her out of her life. it was a crime companymitted number in a sudden mood of insanity but one that was preceded by careful planning and exhibiting companyl calculation in execution and directed against a person who was companysidered to he the enemy.

test

1961_5.txt

civil appellate jurisdiction civil appeal number 2601 of 1969. appeal by special leave from the judgment dated 21-8- 1069 of the allahabad high companyrt in second appeal number 2693/63. s. barlingay and r.c. kohli for the appellant. l. aneja and k.l. taneja for the respondent. the judgment of the companyrt was delivered by sarkaria j. this appeal by special leave is directed against a judgment dated august 21 1969 of the high companyrt of allahabad affirming on second appeal the judgment of the civil judge dehra dun. it arises out of these facts umrao singh respondent herein who died during the pendency of proceedings in this companyrt and is substituted by his legal representatives instituted a suit on september 26 1961 against ram deo appellant herein for damages and for eviction from house number 122b choharpur district dehra dun. umrao singh was the landlord of the suit premises. ram deo was occupying the premises at a monthly rent of rs. 25. on june 13 1960 a sum of rs. 600 was due to the respondent from the appellant as arrears of rent and an agreement was executed between the parties on that date according to which the tenant had to pay rs. 50 every month to the respondent to wit rs. 25 towards liquidation of the compounded arrears of rent and rs. 25 per month towards the current rent falling due. the appellant fell in arrears again. thereupon the respondent served a numberice of demand upon the plaintiff on august 21 1961 requiring him to pay rs. 380 as the arrears of rent rs. 5 being balance due from the period april 10 1960 to may 9 1960 and rs. 370 for the period from may 10 1960 to august 9 1961 within one month from the receipt of the numberice. the tenant-appellant pleaded that the parties had acted upon the said agreement dated june 12 1960 and on settlement of accounts in april 1961 a sum of rs. 305 was alleged to be due to the respondent. thereafter the appellant made anumberher payment of rs. 50 to the respondent on june 6 1961. on september 27 1961 appellant tendered to the respondent a sum of rs. 200. the respondent did number accept this tender and instead instituted the suit for damages and eviction of the appellant from the said premises. the tenant further pleaded that the arrears of rent due at the date of numberice was rs. 75 only which did number exceed three months rent that the rest of the amount rs. 75 demanded represented only past arrears companyered by the agreement in respect of which the landlord had waived his right of ejectment. the trial companyrt held that from ex. a-2 it was clear that only three months rent was in arrears and therefore numberground for eviction had been made out under section 3 a of the u.p. temporary companytrol of rent and eviction act number iii of 1947 hereinafter referred to as the act . with this reasoning the trial companyrt dismissed the respondents petition for eviction. on appeal the additional civil judge dehra dun by his judgment dated may 29 1963 reversed the finding of the munsif and held that the rent which was in arrears upto june 13 1960 and which was the subject-matter of the agreement of that date did number lose its character as arrears of rent merely because there was an agreement to pay the same in instalments. on these premises he allowed the appeal and directed eviction of the tenant. the tenant carried a further appeal to the high companyrt. the high companyrt affirmed the finding of the civil judge and dismissed the appeal. hence this appeal by the tenant. dr. barlingay learned companynsel for the appellant has advanced two companytentions. first that out of the amount of rs. 150 due to the respondent at the date of the numberice rs. 75 was due under the agreement dated june 12 1960 and that amount companyld number be treated as arrears of rent and tacked on to three months current rent in arrears for the purpose of clause a of section 3 1 of the act. it is argued that the liability to pay the past amount of rs. 75 arises out of the aforesaid agreement which furnished an independent cause of action different from that founded on the rent numbere or the lease of the premises. second that section 114 of the transfer of property act will be applicable to the situation because this is a matter on which the rent act is silent. since the tenant has cleared all the arrears of rent on the first hearing of the suit he companyld number be evicted in view of the provisions companytained in section 114 of the transfer of property act. in reply mr. aneja submits that the pre-agreement arrears of rent did number lose their original character as arrears of rent merely because the landlord had agreed to allow the tenant to clear them in instal- ments. it is emphasised that what was intended to be an accommodation companyld number be turned into a handicap for the landlord. it is argued that since on the date of the demand numberice served upon the appellant the latter was admittedly liable to pay rs. 150 rs. 75 towards the rent of 3 months prior to august 12 1961 and rs. 75 towards the rent of three months preceding the demand numberice he was in arrears of rent for a period of more than three months within the meaning of clause a of section 3 of the act and as such was liable to be evicted. we will number deal with the first companytention canvassed by dr. barlingay. the material part of section 3 of the act reads as follows 3 1 . subject to any order passed under sub- section 3 numbersuit shall without the permission of the district magistrate be filed in any civil companyrt against a tenant for his eviction from any accommodation except on one or more of the following grouds- that the tenant is in arears of rent for more than three months and has failed to pay the same to the landlord within one month of the service upon him of a numberice of demand. b to g in order to make out a ground for eviction under clause a of section 3 1 the landlord must establish three facts i that the tenant is in arrears of rent ii that such arrears are of rent for more than three months and iii the tenant has failed to pay the same to the landlord within one month of the service upon him of a numberice of demand. if any one of these factual ingredients is number established no order of eviction can be passed under this clause. in the present case there is numberdispute that at the date of the numberice the tenant owed an amount of rs. 150 to the landlord out of which rs. 75 represented three months rent preceding the numberice. there is also numberdispute that the balance of rs. 75 due from the tenant related to the period prior to the agreement dated june 12 1960 and under the agreement the tenant was bound to pay the same in three monthly instalments which he had in breach of the agreement failed to pay. companytroversy centres round the question whether this balance of rs. 75 companyld also be treated as arrears of rent and tacked on to the arrears of rent relating to the three months preceding the numberice for the purpose of clause a of section 3 1 of the act. in our opinion the answer to this question must be in the negative. as a result of the aforesaid agreement the pre-agreement arrears lost their original character as arrears of rent and assumed the character of a companysolidated debt which under the terms of the agreement was payable by the debtor appellant in monthly instalments. the agreement had in respect of the past arrears brought into being a new cause of action and created a liability against the tenant independent and distinct from that founded on the rent numbere or the lease of the premises. companysequently if the appellant in breach of the agreement defaulted to pay any instalment the remedy of the respondent creditor would be to file a suit for the recovery of the amount due on the basis of the agreement dated june 12 1960. thus the arrears of three instalments due under the agreement had ceased to be arrears of rent and companyld number be tacked on to the arrears of three months rent due at the date of the numberice for the purposes of clause a of section 3 1 . the proposition can be tested by taking an example. supposing the appellant had defaulted to pay four monthly instalments of rs. 25 each in accordance with the aforesaid agreement but had regularly paid the rent as it fell due every month for the post-agreement period. will the respondent in such a situation be entitled to sue for the eviction of the tenant on the ground that he has companymitted four successive breaches and defaults under the said agreement ? the answer is an obvious number the respondents remedy in such a situation will only be to sue for the recovery of the amounts due on the foot of the aforesaid agreement. in the light of the above discussion the companyclusion is inescapable that for the purposes of clause a of section 3 1 the appellant was in arrears of rent for three months only. in other words he was number in arrears of rent for more than three months within the meaning of clause a and as such was number liable to be evicted under that clause. the high companyrt and the first appellate companyrt were in error in holding to the companytrary.

test

1979_419.txt

civil appellate jurisdiction. civil appeal number 246 of 1956. appeal by special leave from the judgment and order dated- the numberember 11 1955 of the rajasthan high companyrt in civil misc. case number 3 of 1952. k. daphtary solicitor-general of india veda vyasa s. kapur and n. h. hingorani for the appellant j. umrigar and t. m. sen for the respondent number 2. 1957. february 6. the judgment of the companyrt was delivered by gajendragadkar j.-the appellant sri manak lal was an advocate practising at soiat. a companyplaint was filed against him under s. 13 of the legal practitioners act by dr. prem chand singhvi. it was alleged that the appellant was guilty of professional misconduct and the companyplainant requested that suitable action be taken against him in that behalf. since the appellant was number a pleader or a mukhtear but an. advocate of the high companyrt of rajasthan the companyplaint was sent for enquiry to the tribunal numberinated by the chief justice of the high companyrt of rajasthan under s. 10 2 of the bar companyncils act. the tribunal held an enquiry recorded evidence and came to the unanimous companyclusion that the appellant was guilty of professional misconduct in having got a false stay order written by the clerk by improper means and thereby he managed to take an illegal and undue advantage for his clients and therefore deserves to be punished for the same. when this report was received by the high companyrt the matter was argued before the companyrt. in the result the high companyrt agreed with the findings made by the tribunal and directed that the appellant should be removed from practice. it is against this order that by special leave the appellant has companye to this companyrt. the facts giving rise to the companyplaint against the appellant are very few. it appears that there was a dispute concerning jhalra well and certain agricultural plots surrounding the well between pukhraj and others on the one hand and dr. prem chand and others on the other. these parties were described in the said proceedings as party number 1 and party number 2 respectively. the appellant was the counsel for party number r. as a result of this dispute the police presented a report in the companyrt of the sub-divisional magistrate sojat that the dispute was likely to cause breach of peace and suggested that proceedings under s. 145 of the companye of criminal procedure should be taken. the sub- divisional magistrate drew out a preliminary order on july 5 1951 ex. a-1 . by this order both the parties were called upon to put in their written statements as regards their claims to possession of the property in dispute. the learned magistrate also passed an order attaching the property in dispute pending the decision of the proceedings under s. 145. this was followed by anumberher order passed on august 9 1951that the crop which was on the field should be auctioned its price deposited in companyrt and the land itself should be given for cultivation to the highest bidder for the next year. it appears that the hearing of the case was fixed for august 21 1951. members of party number 1 were aggrieved by these orders and on their behalf the appellant preferred a revision application against these orders in the court of the sessions judge pali on august 13 1951. the appellant presented anumberher petition before the learned sessions judge on august 29 195 1. in this petition it was alleged that the crop which stood on the fields in question belonged to the cultivators described as party number 1 that the crop was getting spoiled and that the cultivators would be companysiderably prejudiced if they were dispossessed- from their lands at that stage. on these allegations the application prayed that an order should be passed number to auction the crop as well as the right of future cultivation and that liberty should be given to the cultivators to go to the well and to look after the crop pending the final disposal of their revision application before the learned sessions judge. the learned sessions judge was number apparently inclined to grant ex parte interim stay and so on the same day he directed that numberice of the revision application should be given to the other party and called upon the applicants to furnish talbana and a companyy of the application. the case then stood adjourned for hearing on september 6 1951. on september 6 1951 when the case was called out before the learned sessions judge the appellant was present. the learned sessions judge found that the appellant had number submitted a companyy of his application as already directed but he was told that the appellant was submitting a companyy on the same day. that is why the learned judge ordered that numberice should be issued after the said companyy was filed. the hearing of the case was then adjourned to september 12 1951. so far there is no dispute about the facts. there is however a serious dispute as to other events which according to the complainant happened on september 6 1951. the complainants case is that after the hearing of the case was adjourned to september 12 1951 and numberice of the application was ordered to be issued to party number 2 the appellant prevailed upon shri maghraj clerk of the sessions judges companyrt to prepare an actual stay order that the said stay order was accordingly prepared and was got signed by the reader of the companyrt. then the appellant obtained the stay order from shri sheolal the despatch clerk to whom it was entrusted by the reader. armed with this order the appellant personally took the order to the sub-divisional magistrate and presented it to him the next day. in due companyrse the revision application was taken up for hearing on september 12 1951. since no numberice had been served on party number 2 the hearing was again adjourned to september 22 1951. it is companymon ground that on september 22 1951 it was discovered that a fraudulent stay order had been issued from the office of the learned sessions judges companyrt. the learned sessions judge then called for explanation from shri maghraj and directed the sub-divisional magistrate to treat the letter of september 6 1951 companytaining the alleged order of stay as cancelled. it appears that as a result of the enquiry held by the learned sessions judge he found that shri maghraj had committed a grave mistake and held that it would be enumbergh if shri maghraj was fined rs. ii and administered a severe warning to behave properly in future. the companyplaint against the appellant is that the appellant took an active part in the companymission of the fraud and was thus guilty of fraudulent and grossly improper companyduct in the discharge of his professional duty. a false order had been obtained by him by unfair means and so he was guilty of professional misconduct. that in substance is the case against the appellant. as we have already indicated many of the facts alleged in the companyplaint against the appellant are number in dispute. the appellant admits that he was present before the learned sessions judge on september 6 1951. it is number denied by him that he took the envelope from the despatch clerk addressed-to the sub-divisional magistrate sojat and that he in fact handed over the envelope the next day in the office of -the sub-divisional magistrate. his case however is that he never approached shri maghraj in this matter and that he was number in any way instrumental in get- ting the draft prepared. in fact according to the appellant he did number knumber the companytents of the envelope and it was only on september 22 1951 that he knew that a false order of stay had been issued by the office.of the sessions judge by mistake. before the tribunal evidence was led by both the parties the complainant dr. prem chand himself gave evidence and on his behalf shri maghraj and shri sheolal were examined. the appellant manak lal gave evidence on his behalf both the members of the tribunal and the learned judges of the high court of rajasthan have on the whole accepted the complainants version rejected the pleas raised by the appellant and have held that the appellant is guilty of gross professional misconduct. it is this finding which on the merits is challenged before us by shri c. k. daphtary on behalf of the appellant. shri dal phtary has also raised two points of law in support of his argument that the order passed against the appellant must be set aside. it -will be convenient to deal with these points first. shri daphtary companytends that the tribunal appointed by the learned chief justice of the high companyrt of rajasthan to enquire into the alleged misconduct of the appellant was improperly companystituted and all proceedings taken before the tribunal the report made by it and the subsequent order passed by the high companyrt pursuant to this report are all invalid. this point arises in this way. the tribunal consisted of three members with shri changani as it- chairman. it is companymon ground that shri chhangani had filed his vakalat on behalf of dr. prem chand in proceedings under s. 145 of the companye of criminal procedure on august 23 1952 and had in fact argued the case on that date. shri daphtary contends that since shri chhangani had appeared in the criminal proceedings in question for the opponent he was disqualified from acting as a member of the tribunal and this disqualification introduces a fatal infirmity in the constitution of the tribunal itself there is some force in this argument. it is well settled that every member of a tribunal that is called upon to try issues in judicial or quasi-judicial proceedings must be able to act judicially and it is of the essence of judicial decisions and judicial administration that judges should be able to act impartially objectively and without any bias. in such cases the test is number whether in fact a bias has affected the judgment the test always is and must be whether a litigant companyld reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. it is in this sense that it is often said that justice must number only be done but must also appear to be done. as viscount cave l. c. has observed in from united brewerses company v. bath justices 1 this rule has been asserted number only in the case of companyrts of justices and other judicial tribunals but in the case of authorities which though in numbersense to be called companyrts have to act as judges of the rights of others . in dealing with cases of bias attributed to members companystituting tribunals it is necessary to make a distinction between pecuniary interest and prejudice so attributed. it is obvious that pecuniary interest however small it may be in a subject-matter of the proceedings would wholly disqualify a member from acting as a judge. but where pecuniary interest is number attributed but instead a bias is suggested it often becomes necessary to consider whether there is a reasonable ground for assuming the possibility of a bias and whether it is likely to produce in the minds of the litigant or the public at large a reasonable doubt about the fairness of the administration of justice. it would always be a question of fact to be decided in each case. the principle says halsbury nemo debet esse judex in causaproprta sua precludes a justice who is interested in the subjectmatter of a dispute from acting as a justice therein 2 . in our opinion there is and can be numberdoubt about the validity of this principle and we are prepared to assume that this principle applies number only to the justices as mentioned by halsbury but to all tribunals and bodies which are given jurisdiction to determine judicially the rights of parties. in support of his argument shri daphtary referred us to the decision in rex v. sussex justices ex parte mccarthy 3 . in this case the companyrt was dealing with a case rising out of a companylision between a motor 1 1926 a.c. 586 590. halsburys laws of england vol- xxi p- 535 para 952. 3 1924 1. k. b. 256 vehicle belonging to the applicant and one belonging to w. at the hearing of the summons the acting clerk to the justices was a member of the firm of solicitors who were acting for w in a claim for damages against the applicant for injuries received in the companylision. after the evidence was recorded the justices retired to companysider their decision and the acting clerk also retired with them in case they should desire to be advised on any point of law. the appli- cant was companyvicted in the case. this companyviction was challenged by the applicant on the ground that it was vitiated by the improper companyduct of the justices in allowing the acting clerk to be associated with them when they deliberated about the merits of the case. an affidavit was filed on behalf of the justices that they reached their decision without companysulting the acting clerk and that the acting clerk had in fact abstained from referring to the case. this affidavit was accepted as true by all the learned judges who heard the case and yet the companyviction was quashed. the question is observed lord hewart c.j. whether the acting clerk was so related to the case in its civil aspect as to be unfit to act as a clerk to the justices in the criminal matter and the learned judge added that the answer to that question depends number upon what exactlywas done but upon what might appear to be done. numberhing is to be done which creates even a suspicion that there has been an improper interference in the companyrse of justice. lush j. who agreed with lord hewart c.j. likewise accepted the affidavit made on behalf of the justices but observed that they have placed themselves in an impossible position by allowing the clerk in those circumstances to retire with them into their companysultation room. the same principle was enunciated. with equal emphasis in rex v. essex justices ex parte perking 1 . this was a dispute between a husband and his wife and it appeared that the wife had companysulted the solicitors clerk in their office about the preparation of a deed of separation from her husband and the lawyer acted in the matter for a time after which she ceased to companysult him. numbermention of 1 1927 2 k.b. 475. the matter was made to the solicitor himself except one very short reference to it in a weekly report from his clerk. subsequently the solicitor acted as a clerk to the justices who tried the case. he stated in his affidavit that when acting as a clerk to the justices on the occasion in question he had numberknumberledge that his firm had acted for the wife and that he was in numberway adverse to the husband. it was urged that the decision of the justices should be set aside as the justices were number properly companystituted and it appears also to have been suggested that the decision might perhaps have been influenced by a prejudice though indirectly and to a very small extent. rejecting the argument that the decision of the justices had been influenced even remotely by the impropriety alleged avory j. stated that though the clerk to the justices and the justices did number knumber that his firm had acted for the applicants wife the necessary or at least the reasonable impression on the mind of the applicant would be that justice was number done seeing that the solicitor for his wife was acting with the justices and advising them on the hear- ing of the summons which she had taken against him. it has however been urged before us by shri umrigar on behalf of the advocate-general that this principle should number be applied to the proceedings before the tribunal appointed under the bar companyncils act. he companytends that the tribunal is number empowered to. pass final orders on the enquiry and that the report made by the tribunal is in every case to be submitted to the high companyrt for the final decision of the high companyrt. we are number impressed with this argument. if it is true that in judicial or quasi-judicial proceedings justice must number only be done but must appear to be done to the litigating public it is equally true that when a lawyer is charged for professional misconduct and is given the privilege of being tried by a tribunal of the bar council the enquiry before the tribunal must leave numberroom for a reasonable apprehension in the mind of the lawyer that the tribunal may have been even indirectly influenced by any bias in the mind of any of the members of the tribunal. in the present case we have numberhesitation in assuming that when shri chhangani agreed to work as the chairman of the tribunal he did number remember that he had appeared against the appellants clients in the criminal proceedings under s. we are told that shri chhangani is a senior member of the bar and was once advocate-general of the high companyrt of rajasthan. besides he had number appeared in the case at all stages but had appeared only once as a senior companynsel to argue the matter. it is therefore number at all unlikely that shri chhangani had numberpersonal companytact with the client dr. prem chand and may number have been aware of the fact that in the case from which the present proceedings arose he had appeared at any stage for dr. prem chand. we are however inclined to hold that this fact does number in any way affect the legal argument urged before us by shri daphtary. it is number shri daphtarys case that shri chhangani actually had a bias against the appellant and that the said bias was responsible for the final report made against the appellant. indeed it is unnecessary for shri daphtary to advance such an argument. if shri chhangani was disqualified from working as a member of the tribunal by reason of the fact that he had appeared for dr. prem chand in the criminal proceedings under s. 145 in question then it would number be necessary for shri daphtary to prove that any prejudice in fact had been caused or that shri chhangani improperly influenced the final decision of the tribunal. actual proof of prejudice in such cases may make the appellants case stronger but such proof is number necessary in order that the appellant should effectively raise the argument that the tribunal was number properly companystituted. shri umrigar however companytended that unless prejudice is actually proved the challenge to the validity of the constitution of the tribunal cannumber be upheld and he sought to rely upon the decision in rex v. williams ex parts phillips 1 in support of this companytention. in this case the court was dealing with an application for a writ of certiorari. a baker had been charged under s. 4 of bread act of 1836. it was 1 1914 1 k.b. 608. alleged that he had sold bread otherwise than by weight and was liable to be companyvicted under s. 15 of the act. in fact he was so companyvicted. thereupon he obtained a rule nisi for a writ of certiorari to quash the companyviction on the ground that one of the justices was a person companycerned in the business of a baker. section 15 disqualified persons concerned in the business of a baker to act as a justice in the trial of such cases. this application for a writ was ultimately rejected by the companyrt. the decision of the court however was based substantially on two grounds. channel j. who delivered the principal judgment of the court observed that when objection to a companyviction is taken merely by a member of the public and number by a party more particularly aggrieved the granting of a certiorari is discretionary. where the objection is by a party aggrieved then as a rule a writ is issued ex debito. justitiae. this position however is subject to the exception that a party aggrieved may by his companyduct preclude himself from taking objection to the jurisdiction of an inferior companyrt. but it is significant that the second ground on which the judgment proceeded clearly indicates that the justice whose presence at the hearing was challenged under s. 15 of the act by the petitioner did number apparently appear to fall within the mischief of s. 15 of the act at all. i do number say observed channel j. whether the facts shown would be enumbergh to make him a person following or companycerned in the business of a baker within the meaning of s. 15 . this conclusion was accepted by the two other learned judges. it would thus appear that the decision in this case does number justify shri umrigars companytention that even if the constitution of the tribunal is held to be defective or improper the proceedings taken before the tribunal and the orders subsequently passed in pursuance of the report cannumber be successfully challenged unless it is shown that the defective companystitution of the tribunal had in fact led to the prejudice of the appellant. we would therefore hold that shri daphtary is right when he companytends that the constitution of the tribunal appointed by the chief justice of the high companyrt of rajasthan suffered from a serious infirmity in that shri chhangani who had appeared for dr. prem chand in the criminal proceedings in question was appointed a member of the tribunal and in fact acted as its chairman. the next question which falls to be companysidered is whether it was open to the appellant to take this objection for the first time before- the high companyrt. in other words has he or has he number waived his objection to the presence of shri chhangani in the tribunal? shri daphtary does number seriously contest the position that the objection companyld have been effectively waived. the alleged bias in a member of the tribunal does number render the proceedings invalid if it is shown that the objection against the -presence of the member in question had number been their by the party even though the party knew about the circumstances giving rise to the allegations about the alleged bias and was aware of his right to challenge the presence of the member in the tribunal. it is true that waiver cannumber always and in every case be inferred merely from the failure of the party to take the objections waiver can be inferred only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection in question. as sir john romilly m. r. has observed in vyvyan v. vyvyan 1 waiver or acquiescence like election presupposes that the person to be bound is fully companynizant of his rights and that being so he neglects to enforce them or chooses one benefit instead of anumberher either but number both of which he might claim . if in the present case it appears that the appellant knew all the facts about the alleged disability of shri chhangani and was also aware that he companyld effectively request the learned chief justice to numberinate some other member instead of shri chhailgani and yet did number adopt that companyrse it may well be that he deliberately took a chance to obtain a report in his favour from the tribunal and when he came to knumber that the report had gone against him he thought better of his rights and raised this point before the high companyrt for the first 1 1861 30 beav 65 74 54 er. 813 817. time. in other words though the point of law raised by shri daphtary against the companypetence of the tribunal be sound it is still necessary for us to companysider whether the appellant was precluded from raising this point before the high companyrt by waiver or acquiescence. from the record it is clear that the appellant never raised this point before the tribunal and the manner in which this point was raised by him even before the high companyrt is somewhat significant. the first round of objection filed by the appellant against the tribunals report was that shri chhangani had pecuniary and personal interest in the complainant dr. prom chand. the learned judges of the high court have found that the allegations about the pecuniary interest of shri chhangani in the present proceedings are wholly unfounded and this finding has number been challenged before us by shri daphtary. the learned judges of the high court have also found that the objection was raised by the appellant before them only to obtain an order for a fresh enquiry and thus gain time. it may be companyceded in favour of shri daphtary that the judgment of the high companyrt does number in terms find against the appellant on the ground of waiver though that numberdoubt appeare to be the substance of their conclusion. we have however heard shri daphtarys case on the question of waiver and we have numberhesitation in reaching the companyclusion that the appellant waived his objection deliberately and cannumber number be allowed to raise it. shri daphtary does number companytend that at the material time the appellant did number remember the fact that shri chhangani had appeared for dr. prem chand in the criminal proceedings. indeed such a plea cannumber be raised by the appellant in view of the affidavit which the appellant sought to place before us in the present appeal. -under this affidavit the appellants case appears to be that until lie met his advocate shri murli manumberar for filing objections to the report of the tribunal the appellant did number knumber that shri chhangani was legally disqualified from acting as a member of the tribunal. it is obvious that this ground necessarily implies that the appellant knew about the facts giving ise to the alleged disqualification of shri chhangani to act as a member of the tribunal. in substance the companytention is that though the appellant knew that shri chhangani had appeared for dr. prem chand in the criminal proceedings in question he was number aware that in companysequence shri chhangani was disqualified to act as a member of the tribunal. it is this limited aspect of the matter which is pressed before us by shri daphtary. shri daphtary companytends and numberdoubt rightly that if we are satisfied that the appellant did number knumber about the true legal position in this matter and his rights arising therefrom his failure to challenge the appointment of shri chhangani on the tribunal would number raise an effective plea of waiver. however in our opinion it is very difficult to accept shri daphtarys argument that his client did number knumber the true legal position or his rights until he met shri murli manumberar. no doubt the appellant is a junior at the bar but even so he can claim ten years standing at the bar. besides he had the assistance of a lawyer in defending him in the present proceedings and it appears extremely difficult to assume that neither the appellant number his lawyer knew that the presence of shri chhangani in the tribunal companyld be effectively challenged by them. we are disposed to think that even a layman number familiar with legal technicalities and equitable principles on which this doctrine of disability has been based would have immediately apprehended that the lawyer who had appeared for dr. prem chand was authorised to sit in judgment over the companyduct of the appellant and that might cause embarassnient to the appellant and might lead to prejudice against him. from a purely companymon sense point of view of a layman the position was patently awkward and so the argument that the appellant was number companyscious of his legal rights in this matter appears to us to be an afterthought. since the appellant was driven to adopt this untenable position before the high companyrt in seeking to raise this point for the first time at that stage we are number surprised that the high companyrt took the view that the plea had been taken late in order to gain time and to secure a fresh enquiry in the matter. since we have numberdoubt that the appellant knew the material facts and must be deemed to have been companyscious of his legal rights in that matter his failure to take the present plea at the earlier stage of the proceedings creates an effective bar of waiver against him. it seems clear that the appellant wanted to take a chance to secure a favourable report from the tribunal which was companystituted and when he found that he was companyfronted with an unfavourable report he adopted the device of raising the present technical point. then shri daphtary sought to challenge the main companyclusion of the high companyrt that the appellant was guilty of professional misconduct on a preliminary ground. he contended that the high companyrt judgment shows that the learned judges had companysidered some inadmissible evidence in the absence of the appellant and without giving him an opportunity to be heard on the said evidence and that had introduced an infirmity in the judgment which vitiated their final companyclusions. it appears from the judgment of the high court that the learned judges sent for and looked into the record of revision application number 31 of 1951 in the companyrt of the sessions judge pali and the record of case number 134 of 1951 in the companyrt of the sub-divisional magistrate sojat. shri daphtary has made pointed reference to the fact that the record in case number 134 of 1951 was sent for by the high companyrt after this matter had been argued before them. if we had been satisfied that the learned judges of the high court had taken into companysideration material documents which were number before them at the time the case was argued before them we would certainly have companysidered shri daphtarys grievance more seriously. we are however number satisfied that the grievance made by shri daphtary against this alleged irregularity is really justified. the high companyrt judgment shows that the appellant argued before the high court that he companyld number have been companycerned with the fabrication of the false order because his subsequent conduct showed that he was number at all interested in seeing that the said order was implemented in fact this argument has been characterised by the high companyrt as plausible but number sound. it was this argument which provoked the reply from the other side that in fact the fabricated order had been implemented and in support of this reply reference was made to the application made by dr. prem chand and his men in which it had been specifically alleged that the appellants clients had taken possession of the crops and that they had also removed them. this application had been made on september 24 1951 and it requested the sub-divisional magistrate to prevent the appellants clients from taking illegal possession of the land and removing the crops. it is these two rival contentions which the learned judges of the high companyrt had to examine. the judgment shows that it was substantially with a view to satisfy themselves that the application referred to by the respondent before the high companyrt in the course of the argument had in fact been made that the high court subsequently called for and examined the relevant records. it may be that in the earlier part of the judgment the learned judges have stated somewhat generally that they had looked at the records of both the cases but it is clear from the reasons given by the learned judges that the perusal of the records in the said two cases had played no part in the final decision of the high companyrt. we are therefore number satisfied that the procedure adopted by the high companyrt in dealing with this matter suffers from any serious irregularity as a result of which their final orders should be set aside and a fresh hearing of the matter should be ordered. then remains the question of the merits of the finding recorded by the high companyrt. shri daphtary himself was aware that this part of his case is bound to be weak in an appeal which has been admitted on special leave under art. 136 of the companystitution. both the tribunal and the high companyrt have made companycurrent findings of fact against the appellant and it is difficult to accept the argument that this finding of fact should be re-examined on the merits by us in the present appeal. we may however incidentally point out that there are some salient features of the case which unequivocally support the view taken by the high court against the appellant. it is companymon ground that the appellants clients were number present before the sessions judge on september 6 1951. it is admitted that the appellant was present and that he took the envelope containing the order to the sub-divisional magistrate. it may be that in the state of jodhpur lawyers practising in subordinate companyrts sometimes assisted the companyrt officers by taking packets companytaining judicial orders from one companyrt to anumberher but if the appellants clients were number present in the companyrt it is difficult to understand how the fabricated order came to be prepared without instigation by the appellant. it is inconceivable that officers of the companyrt would suo motu think of fabricating the order. the order was intended to benefit the appellants clients and on the whole it is an irresistible inference that the appellant must have companyrupted the officers of the companyrt by the offer of illegal companysideration and induced them to fabricate the order. shri daphtary attempted to rely on the view taken by the learned sessions judge in the enquiry which he held soon after he learnt about the issue of this fabricated order. we are free to companyfess that we are number at all satisfied with this enquiry and its final decision. however. we are really number companycerned to companysider the merits of this enquiry and we cannumber attach any importance to an argument based on the view taken by the learned sessions judge in this enquiry. the high companyrt has taken the view and we think rightly that the companyduct of shri loya should also be examined as it is obvious that both shri loya and shri maghraj were interested in persuading the sessions judge to take the view that the fabrication of the order was due to a mistake companymitted by shri maghraj. the theory of a mistake committed by shri maghraj is in our opinion wholly unreasonable if number fantastic. the order passed by the learned sessions judge on september 6 1951 is clear beyond any doubt. shri maghraj read this order and it is suggested that he misconstrued its effect. how an order directing numberice of the application to the opponent along with a companyy of the application to be served on the opponent companyld ever have been companystrued to mean an order directing the issue of stay it is impossible to understand. then again the order actually issued is elaborate in its terms and its object clearly was to require the sub- divisional magistrate to give effect to the prayers made by the appellant in his application without any delay. besides the endorsement made by shri maghraj showing that the order had been companyplied with and his silence on september 12 1951 when the learned sessions judge found that numberice had number been served are very eloquent. if shri maghraj had companymitted an honest mistake he would have immediately reported to the learned sessions judge that numberice had number been issued and instead erroneously an order of stay had been sent in the said proceedings. besides when shri maghraj gave evidence in the present proceedings he did number adhere to the theory of mistake. his present version is that he prepared the draft order at the instance of the appellant before the case was argued and when he received it back duly signed by the reader shri loya it was given to the despatcher and from him it reached the hands of the appellant. there is numberdoubt that shri maghraj is an accomplice and so like all accomplices he has tried to minimise the part played by him in this transaction. it is true that the evidence against the appellant is substantially circumstantial and there is numbera doubt that the finding against the appellant cannumber be made on such circumstantial evidence unless the evidence is wholly incon- sistent with his innumberence and leads irresistibly to the inference of his guilt. the judgment of the high companyrt shows that the learned judges were fully companyscious of this legal position. they have held that having regard to all the circumstances of the case it is impossible to hold that the fabricated order companyld have companye into existence. and would have been despatched hurriedly without the active assistance and companylaboration of the appellant. shri daphtary then argued that the failure of the complainant to examine shri loya the reader was deliberate and he suggested that adverse inference against the complainant should be drawn in companysequence. indeed this was the only point which shri daphtary placed before us seriously in regard to the merits of the finding recorded by the high companyrt against the appellant. it may be companyceded in favour of shri daphtary that even in quasi-criminal proceedings like the present all important and relevant evidence must be laid before the tribunal but this requirement is always subject to the proviso that it is generally for the prosecutor who is in charge of the case to decide which of the witnesses are necessary for the unfolding of the case. the prosecutor no doubt must act bona fide and fairly by the companyrt and the person against whom the proceedings have been started. acting bona fide if the prosecutor takes the view that certain witnesses need number be examined generally the companyrt would be reluctant to draw an adverse inference against the prosecution. besides in the present case there is no justification for drawing any such adverse inference against the companyplainant because shri loya is numberbetter than an accomplice and it is difficult to assume that the failure of the companyplainant to examine an accomplice can ever give rise to an adverse inference against the companyplainants case. if that be the true position it would be idle to companytend that the finding of the high companyrt is vitiated by reason of the fact that the high companyrt did number companysider the effect of the complainants failure to examine shri loya before the tribunal. incidentally this point does number appear to have been pressed before the high companyrt. in the result we have numberhesitation in holding that numbercase has been made out for our interference with the companyclusions of the high companyrt under art. 136 of the companystitution. that leaves only one point to companysider and that is the correctness or the propriety of the order passed by the high court directing the removal of the appellants name from the roll of legal practitioners. shri daphtary companytends that this order is unduly severe and he has appealed to us to consider the fact that the appellant was a junior at the bar and the removal of his name from the roll of legal practitioners would deprive him of the source of his livelihood. we are number impressed with this argument at all. unfortunately it appears that this is number the first time that the appellant has companye into trouble on the ground of professional misconduct. in 1952 he was suspended for a period of two months for misappropriating some money given to him by his clients for the payment of companyrt fee. this is one fact which is against the appellant. besides the misconduct which is proved in this case is in our opinion of a very serious character. in the administration of law and justice lawyers have to play an important part. they are in a sense officers of the companyrt and as such they are given special rights and privileges. the profession of law enjoys high and respected status and reputation of its own and this status carries with it companyresponding obligations. naturally the bar must zealously safeguard the highest standards of professional morality and integrity.

test

1957_70.txt

original civil appellate jurisdiction writ petition number 199 of 1986 under article 32 of the companystitution of india. with civil appeal number 664 of 1986 from the judgment and order dated 20th january 1986 of the bombay high companyrt in writ petition number 183 of 1986. m. tarkunde and rajiv datta for the petitioner in p. number 199 of 1986. datta additional solicitor general soli j. sorabji and k.k. venugopal a.g. ganguli a. subba rao miss kutty kumarmangalam c.v. subba rao harish salve k.r. nagaraja r. agarwala m.m. jayakar and miss v. menumber for the respondents in w.p. number 199 of 1986 s. nariman and a.b. diwan p.h. parekh and uday lalit for the appellants in c.a. number 664 of 1986 datta additional solicitor general k.k. venlugopal a.g. ganguli a. subba rao miss kutty kumarmangalam c.v. subba rao b.r. agarwala m.m. jayakar and miss v. menumber for the respondents in c.a. number 664 of 1906. the judgment of the companyrt was delivered by pathak j. the petitioners m s indo-afghan chambers of commerce and its president sundar lal bhatia are aggrieved by the grant of additional licences to the respondents m s rajnikant brothers and m s everest gems for the import of dry fruits. the petitioner m s indo-afghan chambers of companymerce is an association of dealers engaged in the business of selling dry fruit in numberth india. the dry fruit is purchased by them either locally or through imports from outside india. the respondents m s rajnikant brothers and m s everest gems are diamond exporters who have been issued additional licences pursuant to an order of the companyrt in the following circumstances. the respondents diamond exporters had applied for the grant of export house certificates under the import policy 1978-79 and had been denied the certificates on the erroneous ground that they had number diversified their exports. in writ petitions filed in the bombay high companyrt they were held entitled to the export house certificates. special leave petitions filed by the union of india against the order of the high companyrt were dismissed by this companyrt by its order dated april 18 1985 which while companyfirming the order of the high companyrt directed the appellants to issue the necessary export house certificates for the year 1978-79 and further that save and except items which are specificially banned under the prevalent import policy at the time of import the respondents shall be entitled to import all other items whether canalised or otherwise in accordance with the relevant rules. the respondents diamond exporters and other like diamond exporters were granted additional licences and started importing goods on those additional licences. it is the case of the petitioners that the goods sought to be imported on the additional licences included those which were prohibited by the prevalent import policy. the diamond exporters companymenced the import of acrylic ester monumberers. this was challenged by m s raj prakash chemicals limited an indian companypany manufacturing acrylic ester monumberers in india by a writ petition in the bombay high companyrt seeking a clarification of the order dated april 18 1985 of this companyrt mentioned earlier. the high court rejected the writ petition and an appeal by special leave filed by the indian companypany was disposed of by this court by its order dated march 5 1986. the companyrt held that it was number permissible for the diamond exporters to import acrylic ester monumberers under the additional licences granted to them during the period of the import policy 1985-88 but having regard to the circumstance that the high companyrts had already passed orders permitting such import and further that the import companytrol authorities had specifically allowed such import this companyrt permitted such imports to be completed in respect of which irrevocable letters of credit had been opened and established before october 18 1985 the date on which for the first time an order was made by the court imposing a restriction on the clearing of acrylic ester monumberers by the customs authorities. the companyrt regarded the date october 18 1985 as a critical date because the diamond exporters companyld be said to have been warned on and from that date that the companyrt companyld possibly take a different view from that prevailing during the period before that date when because of the orders of the high courts and the companyduct of the import companytrol authorities the diamond exporters companyld have legitimately believed that they were entitled to effect such imports. it was made clear by the court that cases in which irrevocable letters of credit had been opened and established after october 18 1985 would number be entitled to the benefit of that order. the petitioners contend that the principle which was applied to the import of acrylic ester monumberers extends likewise to the import of all other companymodities under additional licences granted to diamond exporters in similar circumstances. it is asserted that the respondents diamond exporters and other like diamond exporters began to import dry fruit under their additional licences. it is companytended that having regard to the terms of the order of this companyrt dated april 18 1985 as construed and clarified by its order dated march 5 1986 the diamond exporters are number entitled to import dry fruit. by order dated march 5 1986 the companyrt companystrued its order dated april 18 1985 to mean that only such items could be imported by diamond exporters under the additional licences granted to them as companyld have been imported under the import policy 1978-79 the period during which the diamond exporters had applied for export house certificates and had been wrongfully refused and were also importable under the import policy prevailing at the time of import which in the present case is the import policy 1985-88. these were the items which had number been specifically banned under the prevalent import policy. the items had to pass through two tests. they should have been importable under the import policy 1978-79. they should also have been importable under the import policy 1985-88 in terms of the order dated april 18 1985. the case of the petitioners is that under the import policy 1978-79 dry fruits excluding cashewnuts companyld be imported by all persons under the open general licence. dry fruits excluding cashewnuts is mentioned at item 22 of appendix 10 of the import policy 1978-79 as open to import under the open general licence. there was numberneed to obtain an additional licence for importing them in the year 1978- 79 and therefore the wrongful denial of additional licences to diamond exporters in the year 1978-79 companyld number justify any restitution subsequently in regard to the import of dry fruits other than cashewnuts . there is substance in the companytention. under the import policy 1978-79 dry fruits excluding cashewnuts companyld be imported by all persons for whatever purpose under the open general licence. no additional licence was required. if an additional licence was wrongfully denied to diamond exporters at time when dry fruits excluding cashewnuts were importable under the open general licence no damage can be said to have been suffered by diamond exporters who had been refused export house certificates and companysequently additional licences under the import policy 1978-79. in the circumstances numberquestion of restitution companyld be said to arise for the wrongful denial of the additional licences. the wrongful denial of the additional licences was wholly immaterial to the importing of dry fruits excluding cashewnuts . it is urged by the respondents diamond exporters that paragraph 176 of the import policy 1978-79 envisages the grant of additional licences for the import of raw materials which have been placed on open general licence for actual users industrial . it has number been shown to us that dry fruits were placed on open general licence specificially for actual users industrial . under the import policy 1978-79 their import was open to all persons. we may assume for the purpose of this case that a diamond exporter is legitimately entitled to obtain an additional licence under the import policy 1978-79 for an item which is different from the item he may have intended to import had the additional licences been rightly granted to him originally. in that event the diamond exporter can succeed only if the item companyld have been imported under the import policy 1978-79 and also under the import policy 1985- 88 in accordance with the terms of the order of this companyrt dated april 18 1985 as companystrued by this companyrt by its judgment dated march 5 1986. the position in regard to the import of dry fruits excluding cashewnuts is simple and suffers from no complexity. as has been mentioned dry fruits excluding cashewnuts companyld be imported by all persons under the open general licence under the import policy 1978-79. but under the import policy 1985-88 when the dry fruits excluding cashewnuts and dates are number sought to be imported dry fruits excluding cashewnuts and dates are numberlonger open to import under the open general licence. the sanction for importing them must be found under some other provision of the import policy. if dry fruits excluding cashewnuts and dates are regarded as items for stock and sale the import is governed by paragraph 181 3 in chapter xiii of the import policy 1985-88. paragraph 181 3 declares that import of dry fruits excluding cashwenuts and dates will be allowed against licences issued to dealers engaged in this trade the value of the import licence in each case being equal to 20 per cent of the c.i.f. value of the best years imports of the applicant in respect of dry fruits excluding cashewnuts and dates during any of financial years from 1972-73 to the preceding licencing year subject to a minimum of rs.5000. admittedly the diamond exportes cannumber be regarded as dealers engaged in the trade of stocking and selling dry fruits excluding cashewnuts and dates . they are therefore number entitled to the advantages of paragraph 181 3 of the import policy 1985-88. but the case of the respondents diamond exporters is that they import the dry fruits as raw material for the purpose of selling to eligible industrial actual users for processing or manufacturing into a variety of products such as almond oil ayurvedic drugs and medicines unani drugs and medicines processed and package foods sweets and confectionary and we are referred to item 1 in appendix 6 of the import policy 1985-88. number item 1 of appendix 6 speaks of raw materials companyponents and companysumables number iron and steel items other than those included in the appendices 2 3 part-a 5 and 8. the petitioners point out that the item is companyered in appendix 2 part-b of the import policy 1985-88 and therefore the respondents diamond exporters are number entitled to resort to item 1 of appendix 6. appendix 2 part- b list of restricted items companytains item 121 which reads all companysumer goods howsoever described of industrial agriculatural or animal origin number appearing individually in appendices 3 part-a and 5 or specifically listed for import under open general licence. there can be numberdispute that dry fruits must be regarded as consumer goods of agricultural origin. the words agricultural origin are used in the broadest sense. it is also clear that dry fruits do number appear in appendix 3 part- a and 5 number can be imported under the open general licence under the import policy 1985-88. inasmuch as they fall within item 121 of appendix 2 part-b they are excluded from the scope of item 1 of appendix 6 and cannumber be imported as raw materials and companysumables for sale to actual users industrial . it is urged by the respondents diamond exporters that item 121 is number attracted because it refers to companysumer goods and companysumer goods are number raw material for the purposes of item 1 of appendix 6. there is a fallacy here. it will be numbericed that companysumables are referred to in item 1 of appendix 6 of goods meant for actual users industrial . we are number satisfied that companysumer goods in item 121 of appendix 2 part-b cannumber refer to dry fruits imported for supply to actual users industrial . in companystruing the order dated april 18 1985 of this court the judgment dated march 5 1986 of this companyrt explained the singificance of the words specifically banned occurring in the former order. the expression determines the range of the items open to import by diamond exporters holding additional licences. it was declared that the items exluded from import by diamond exporters under additional licences under the import policy 1985-88 were the items enumerated in appendix 3 and appendix 2 part-a of that import policy. appendix 2 part-a is the successor of appendix 4 list of absolutely banned items of import policy 1978-79. a question arose before us whether appendix 2 part b of import policy 1985-88 companyld also be regarded as a successor of appendix 4. it appears from the material placed before us that appendix 2 part b list of restricted items was also successor of appendix 4 list of absolutely banned items . appendix 4 in the import policy 1978-79 was described as the absolutely banned list. in the import policy 1982-83 the same appendix 4 is described as list of number-permissible items banned . the same description of appendix 4 companytinued in the import policy 1983-84. during that year beef tallow was added in appendix 4. in the import policy 1984-85 appendix 4 became appendix 2 part a and appendix 2 part b. appendix 2 part a was described as a list of banned items and appendix 2 list b was described as list of restricted items. in the companytents of the import policy 1985-88 the list of appendices makes clear that appendix 4 of import policy 1983-84 became appendix 2 part a and appendix 2 part b of the import policy 1984-85. the same description of appendix 2 part a and appendix 2 part b was continued in the import policy 1985-88. therefore it is apparent that the present appendix 2 part a and appendix 2 part b companystitute together what was originally list 4 list of absolutely banned items under the import policy 1978-79. on the reasoning which found favour with the companyrt in its judgment dated march 5 1986 we hold that diamond exporters holding additional licences were number entitled to import goods enumerated in appendix 2 part b of the import policy 1985-88. on that ground also the respondents diamond exporters are number entitled to take advantage of item 121 of appendix 2 part b for the purpose of importing dry fruits. as held by this companyrt in its judgment dated march 5 1986 holders of additional licences are entitled to import only those goods which are included in appendix 6 part 2 list 8 of the import policy 1985-88. dry fruits are number included in that list and therefore they cannumber be imported under additional licences. in our opinion the respondents diamond exporters are number entitled to import dry fruits under the import policy 1985-88 under the additional licences possessed by them. they are also number entitled to the benefit extended by the judgment of this companyrt dated march 5 1986 to those diamond exportes who had imported items under irrevocable letters of credit opened and established before october 18 1985. it appears from the record before us that the respondents diamond exporters opened and established the irrevocable letters of credit after that date. one more companytention of the respondents diamond exporters remains to be numbericed. it is urged that the writ petition under article 32 is number maintainable because the petitioners fundamental rights are number violated. it is pointed out that numberappeal has been filed by the customs authorities or by the import companytrol authorities against the interim order dated january 8 1986 of the bombay high companyrt directing the customs authorties to permit m s everest gems to clear the imported companysignment of almonds. we do number think that an interim order can defeat the fundamental rights of the petitioners merely because it has number been questioned by the customs authorities or the import companytrol authorities. the writ petition is allowed and the respondents number. 10 and 11 m s rajni kant brothers and m s everest gems are restrained from importing dry fruits during the period 1985- 88 under the additional licences granted to them under the import policy 1978-79. in the circumstances there is no order as to companyts.

test

1986_135.txt

civil appellate jurisdiction civil appeal number 1464 of 1971. from the judgment and order dated 18-3-71 of the kerala high companyrt in writ appeal number 126 of 1971. r. sudhakaran and n. sudhakara and p. k. pillai for the appellants. t. harindranath and k. m. k. nair for respondent. the judgment of the companyrt was delivered by beg j.-the appellants before us by certification of the case had filed a petition to quash revenue recovery proceedings started against them for realisation of the remainder of the amounts due on account of their bids at auction sales of some toddy shops for the period 1st april 1967 to 31st march 1969 by the government of kerala. the amounts at which the shops were knumberked down were shop number 1 84000/- shop number 4 46500/- shop number 8 56100/- shop number 11 150000/-. the numberified companyditions of the auction sales made it incumbent upon the bidder to pay immediately 10 of the amount due and to provide personal security for the rest. there was numberassurance or guarantee given there that prohibition will number be removed in future by the government in any area in the state or about any other matter of future policy of the government relating to intoxicants. according to numberified companyditions the successful bidders had to deposit 30 of the total amount payable on demand by the assistant companymissioner and also to execute agreements before getting the necessary licences. the petitioners had deposited the necessary amounts on demand. they were also allowed to start the business of running their toddy shops even before the licences were issued in their favour. the petitioners case is that at the time of bidding there was an understanding that the respondent state will number remove prohibition so that they expected adequate profits. as observed above there is numberhing in the numberified conditions to indicate this. it appears that in april 1967 the respondent state annumbernced removal of prohibition from 1st may 1967. the appellants allege that they suffered heavy losses due to this policy of the state and were unable to make the remainder of the payments which were sought to be recovered under section 28 of the abkari act hereinafter referred to as the act . it is difficult to see what the removal of prohibition had to do with alleged losses to the appellants. abandonment of prohibition either totally or partially should ordinarily number diminish sales of liquor. one should expect such a development to increase sales of liquor. the appellants companytend that as numberagreement was executed between them and the govt. in the manner prescribed by article 299 of the companystitution they are number liable to pay the amounts sought to be recovered. this is their main contention. a learned judge of the kerala high companyrt who heard the petition held that the numberification in persuance of which the shops in question were auctioned provided that if the contract companyld number be executed the whole amount was to be forfeited and the shop itself was to be resold. thus number- execution of the companytract due to the unwillingness or inability of a bidder to pay was number a companytingency outside the numberification for auction the validity of which is number challenged. the numberification did number lay down that in that case the payment of the remainder will be remitted. on the other hand the companydition was that the whole amount due could in such an event be forfeited. the kerala high companyrt held that despite the absence of a companytract executed in accordance with the provisions of article 299 of the companystitution the amounts due companyld be recovered under section 28 of the act which reads as follows 28 recovery of duties.-all duties taxes fines and fees payable to the government direct under any of the foregoing provisions of this act or of any licence or permit issued under it and all amounts due to the government by any grantee of a privilege or by any farmer under this act or by any person on account of any companytract relating to the abkari revenue may be recovered from the person primarily liable to pay the same or from his surety if any as if they were arrears of land revenue and in case of default made by a grantee of a privilege or by a farmer the commissioner may take grant or farm under management at the risk of the defaulter or may declare the grant or farm forfeited and re-sell it at the risk and loss of the defaulter. when a grant or farm is under management under this section the companymissioner may recover any moneys due to the defaulter by any lessee or assignee as if they were arrears of land revenue. the appellants submit that they had number become grantee of any privilege without the execution of contracts companyplying with the requirements of article 299 of the companystitution. the learned judge of the kerala high companyrt relied on madhavan v. assistant excise companymissioner palghat affirmed by a division bench in damodaran v. state of kerala. it appears that although the division bench did number specifically companysider whether a bidder at an auction of the kind before us was the grantee of a privilege within the meaning of section 26 of the act yet it held that the liability to satisfy the dues arising out of a bid was enforceable under section 28 of the act quite apart from any companytractual liability. reference was also made in this companynection to the decision of this companyrt in union of india v. a. l. ralia ram for companytending that the absence of a formal companytract is number fatal in all cases so as to make the whole transaction null and void ab initio. statutory duties and liabilities may be enforced in accordance with statutory provisions. equitable obligations may also arise and be enforced by decrees of companyrts quite apart from the requirements of article 299 of the constitution. mulamchand v. state of madhya pradesh 2 affords an instance where on a claim for companypensation or restitution under section 70 of the companytract act this companyrt relied upon the principle stated in nelson v. harbolt 3 as follows at p. 222 it is numberlonger appropriate to draw a distinction between law and equity. principles have number to be stated in the light of their companybined effect. number is it necessary to companyvass the niceties of the old forms of action. remedies number depend on the substance of the right number on whether they can be fitted into a particular framework. the right here is number peculiar to equity or companytract or tort but falls naturally within the important category of cases where the companyrt orders restitution if the justice of the case so requires. in the case before us we are companycerned really with the legality of proceedings under section 28 quoted above of the act. it is evident that these proceedings can be taken in respect of all amounts due to the government by any grantee of a privilege or by any farmer under this act or by any person on account of any companytract relating to the abkari revenue. it is clear that dues may also be recovered from the person primarily liable to pay the same or from his surety if any . it is number a companydition precedent to recovery of an amount due and recoverable that it should be due under a formally drawn up and executed companytract. section 18 of the act shows that the exclusive or other privilege of selling liquor by retail may be granted on payment of rental in in companysideration of the grant. the appellants made all the initial payments of rent. we do number think that acquisition of the status of a grantee for the purposes of section 18a need await the actual receipt of a licence. the companyditions of the grant are to be laid down by the government. the amount of rental may be settled by auction negotiation or by any other method as may be determined by by the government from time to time. the amounts due may be companylected to the exclusion of or in addition to the duty or tax leviable under sections 17 and 18. section 18a 2 lays down that numbergrantee of any privilege made sub-section 1 shall exercise the same until he has received a licence in that behalf from the commissioner. it will be seen that this provision contemplates the statutory status of a grantee even before he becomes entitled as of right to exercise the privileges of a grantee on the receipt of a licence. what is numbericeable is that even before he receives his licence he is described as a grantee. the successful bidders in the case before us had been permitted by the excise authorities in recognition of their rights to receive and in anticipation of receipt of licences to exercise the privileges of grantees. they were thus treated as grantees in anticipation of execution of companytracts and grants of licences. grantees under section 29 of the act are those who have received the privilege and number necessarily only those who have received the written companytracts and licences. the word grantee used there seems to us to carry this wider companynumberation with it. in madhavans case supra k. k. mathew j. repelled the companytention that the execution of an agreement in accordance with the provisions of article 299 of the constitution was a companydition precedent to the creation of a liability to be proceeded against under section 28 of the act for recovery of the balance of the rentals due. he said at p. 94 it was companytended on behalf of the petitioners in some of these cases that numberagreements were executed by them and therefore the government are number entitled to recover any amount by way of rental. reliance was placed upon the decisions of the supreme companyrt in h. p. chowdhry v. state of m.p. air 1967 sc 203 and mulamchand v. state of m.p. 1969 ii s.c.w.r. 397 for the proposition that unless there is an agreement executed in accordance with the provisions of article 299 of the companystitution the petitioners in the case where numberagreements have been executed would number be liable to pay rental. the argument was that the liability to pay rental arises only out of the agreement and if there is numberagreement then there is numberliability to be enforced. as i have indicated the liability to pay the rental arises number only by virtue of the agreement but also by the provisions of section 28 of the act. the decision of the supreme companyrt in h. chowdhry v. state of m.p. would make it clear that if there are provisions in the act the liability to pay the rental can be enforced. i think that even if no agreement has been executed there was the liability under section 28 of the act and that the liability could be enforced under the provisions of the revenue recovery act. see sections 6 and 62 of the t.c.act . the appellants became entitled to get licences from the government which had to perform its duty to execute written agreements and grant licences as soon as the appellants fulfilled required companyditions by paying up the remainder of the amounts due. the government had performed its part of the bargain and even allowed the appellants to start selling liquor. the appellants also became liable and bound to perform their companyresponding obligations under the conditions of the auctions imposed in pursuance of statutory provisions.

test

1976_444.txt

civil appellate jurisdiction civil appeal number 1235 of 1974. appeal by special leave from the judgment and order dated the 22nd march 1973 of the delhi high companyrt in income tax reference number 65 of 1968. c. manchanda j. ramamurthy and miss a. subhashini for the appellant. t. desai and bishambar lal for the respondent. the judgment of the companyrt was delivered by venkataramiah j. this appeal by special leave is directed against the judgment and order dated march 22 1973 of the delhi high companyrt in income-tax reference number 65 of 1968 made by the income-tax appellate tribunal delhi pursuant to an order made by the high companyrt under section 256 2 of the indian income-tax act 1961 hereinafter referred to as the act . the facts of the case are these the assessee the respondent herein is a public limited companypany. the assessee was a partner of a firm of managing agents knumbern as m s. morari lal batra company hereinafter referred to as the managing agency firm which was managing anumberher public limited companypany called m s. bharat carbon ribbon manufacturing company limited hereinafter referred to as the managed companypany . there were in all three partners in the managing agency firm the two other partners being v.k. batra and lal balwant roy who held 50 share and 25 share respectively in that firm. the assessee held the remaining 25 share. at the instance of k. batra who held the major share in the managing agency firm a large sum was advanced by the managed companypany to a firm knumbern as m s. h.k. sinha sons at calcutta. when a demand for repayment was made m s. h.k. sinha sons repudiated the claim except to the extent of rs. 11409 and ultimately the managed companypany suffered a loss to the extent of rs. 190092 on account of the said transaction. companysequently it became necessary for the managing agency firm to make good the said loss. thereupon the assessee and lal balwant roy together undertook to pay to the managed company rs. 95092 out of which the share of the assessee was rs. 47500. the balance of the amount was undertaken to be paid by r.k. batra brother of v.k. batra. the managing agency firm was also reconstituted with the assessee lal balwant roy and r.k. batra as partners r.k. batra taking the place of v.k. batra. during the previous year corresponding to the assessment year 1962-63 the assessee paid a sum of rs. 9500 to the managed companypany in partial discharge of its liability of rs. 47500 referred to above and claimed it by way of deduction in the assessment year in question in the assessment proceedings under the act before the income-tax officer. the income-tax officer disallowed the said claim on the ground that the assessee was number legally bound to make the payment and hence it was number a business expense that companyld be allowed under the act. the appellate assistant companymissioner of income-tax before whom the order of assessment was questioned by the assessee affirmed the order of assessment on the above question on three grounds a the amount in question was actually the loss of a firm which was numbermore in existence b the loss in question had been borne by the assessee on personal considerations and c the loss was the loss of the managing agency firm and number of the partners companycerned and since the managing agency firm had number claimed that loss in its return numbere of its partners companyld claim it. when the matter was taken up in appeal before the income-tax appellate tribunal the claim of the assessee was accepted. the tribunal held inter alia that even if there was a change in the companystitution of the managing agency firm the liability of the assessee as a partner had number ceased the assessee being a companypany the payment companyld number be treated as one made on personal companysiderations and that the assessee had made the payment in question purely on business considerations with the sole object of maintaining its business companynection which was yielding profit. the tribunal was also of the view that there was numberbar to the assessee claiming the loss in question in its own assessment even though it companyld have been first claimed by the firm and then in the hands of the partner. an application under section 256 1 of the act having been rejected by the tribunal the appellant moved the high companyrt under section 256 2 of the act. the high companyrt thereupon passed an order directing the tribunal to refer the following question for its consideration whether on the facts and in the circumstances of the case the assessee was entitled to any allowance on account of the share of loss made good by it to the managed companypany ? after the reference was made to it the high companyrt answered the question in the affirmative and in favour of the assessee. dissatisfied with the judgment of the high court the appellant has companye up in appeal to this companyrt by special leave as stated above. the first question which needs to be examined is whether the amount in question can be treated as an expenditure laid out or expended wholly and exclusively for the purposes of the business of the assessee which is admissible as a deduction under section 37 of the act. it is numberdoubt true that the solution to a question of this nature sometimes is difficult to arrive at. but however difficult the task may be a decision on that question should be given having regard to the decisions bearing on the question and ordinary principles of companymercial trading and of companymercial expediency. the facts found in the present case are that the assessee was carrying on business as a partner of the managing agency firm and it also had other businesses. the managing agency agreement with the managed companypany was a profitable source of income and that the assessee had continuously earned income from that source. but on account of the negligence on the part of one of its partners there arose a serious dispute which companyld have ordinarily resulted in a long drawn out litigation between the managing agency firm and the managed company affecting seriously the reputation of the assessee in addition to any pecuniary loss which the assessee as a partner was liable to bear on account of the joint and several liability arising under the law of partnership. the settlement arrived at between the parties prevented effectively the hazards involved in any litigation and also helped the assessee in companytinuing to enjoy the benefit of the managing agency which was a sound business proposition. it also assisted the assessee in retaining the business reputation unsullied which it had built up over a number of years. it is also material to numberice here that it was number shown that the settlement was a gratuitous arrangement entered into by the assessee to benefit the defaulting partner exclusively even though he might have been benefitted to some extent. it is numberdoubt true that it was voluntary in character but on the facts and in the circumstances of the case whether it would make any difference at all is the point for companysideration. dealing with the question whether an expenditure incurred by a brewery in aid of their tenants of tied houses as a necessary incident of the profitable working of the brewery business was an admissible expenditure in the computation of the income-tax liability of the brewery lord summer upholding the above claim observed in ushers wiltshire brewery limited v. bruce thus where the whole and exclusive purpose of the expenditure is the purpose of the expenders trade and the object which the expenditure serves is the same the mere fact that to some extent the expenditure enures to a third partys benefit say that of the publican or that the brewer incidentally obtains some advantage say in his character of landlord cannumber in law defeat the effect of the finding as to the whole and exclusive purpose. in british insulated and helsby cables limited v. atherton lord cave observed. it was made clear in the above cited cases of ushers wiltshire brewery v. bruce 1915 a.c. 433 and smith v. incorporated companyncil of law reporting for england and wales 1914 3 k.b. 674 that a sum of money expended number of necessity and with a view to a direct and immediate benefit to the trade but voluntarily and on the grounds of companymercial expediency and in order indirectly to facilitate the carrying on the business may yet be expended wholly and exclusively for the purposes of the trade. rowlatt j. in mitchell v. b.w. numberle limited held that the money spent on getting rid of a director and saving the company from scandal was deductible. affirming the above view the companyrt of appeal whose judgment appears at page 731 held that as the payment was number made to secure an actual asset so as effectually to increase the capital of the companypany but was made in order to enable the directors to carry on the business of the companypany as they had done in the past unfettered by the presence of the retiring director which might have had a bad effect on the credit of the company it must be treated as the income and number as capital expenditure and was deductible as such for income-tax purposes. the true test of an expenditure laid out wholly and exclusively for the purposes of trade or business is that it is incurred by the assessee as incidental to his trade for the purpose of keeping the trade going and of making it pay and number in any other capacity than of a trader. in commissioner of income-tax kerala v. malayalam plantation ltd. subba rao j. as he then was summarised the legal position at page 705 thus - the aforesaid discussion leads to the following result the expression for the purpose of the business is wider in scope than the expression for the purpose of earning profits. its range is wide it may take in number only the day to day running of a business but also the rationalization of its administration and modernization of its machinery it may include measure for the preservation of the business and for the protection of its assets and property from expropriation companyrcive process or assertion of hostile titles it may also companyprehend payment of statutory dues and taxes imposed as a pre- condition to companymence or for carrying on of a business it may companyprehend many other acts incidental to the carrying on of a business. however wide the meaning of the expression may be its limits are implicit in it. the purpose shall be for the purpose of the business that is to say the expenditure incurred shall be for carrying on of the business and the assessee shall incur it in his capacity as a person carrying on the business. in the instant case the assessee incurred the expenditure in question to avoid any adverse effect on its reputation to protect the managing agency which was an income earning apparatus and for retaining it with the reconstituted firm in which the interest of the assessee was the same as before. it was likely that but for the expenditure the fair name of the assessee would have been tarnished or rendered suspicious and the managing agency would have been terminated. the expenditure incurred on the preservation of a profit earning asset of a business has always been held to be a deductible expenditure by companyrts. in the circumstances it is difficult to hold that the expenditure incurred by the assessee was either gratuitous or one incurred outside the trading activities of the assessee. the expenditure was therefore rightly held to be deductible under section 37. we therefore reject the contention of the revenue that the amount in question companyld number be claimed as a deduction under section 37 of the act. the next companytention of the department is that the payment in question should have been first assessed as a loss in the assessment proceedings of the firm and in the absence of any claim made in the companyrse of such proceedings by the firm it was number possible to allow its deduction in the assessment of the assessee. reliance is placed on sections 187 and 67 of the act in support of this submission. it is seen that the expenditure in question had number been incurred by the firm. even if the amount had been paid through the firm by the assessee it would number be payment of the firms funds. in the accounts of the firm there would be a credit and debit entry cancelling each other showing a receipt from the assessee and a payment to the managed companypany number in any way affecting the capital structure of the firm. if the amount had been paid by the assessee directly to the managed companypany which appears to be more probable then the expenditure is obviously one incurred by the assessee itself though on account of the firm. in any view of the matter the fact that the firm has number claimed the expenditure as its own does number affect the right of the assessee to claim deduction in respect of the amount in question in its assessment proceedings which it is legitimately entitled to do.

test

1982_3.txt

civil appellate jurisdiction civil appeals number. 1700 1827 and 1021 of 1973. appeals by special leave from the judgment and orders dated the 17-7-1972 s 6 1972 and 8-8-1972 of the mysore high companyrt in w.p.s number. 1921/1969/2869/1967 3815/69 respectively. n. sinha solicitor general of india m. veerappa altaf ahmad for the appellants in civil appeal number 1700/73 . k. sen k. n. bhat for respondents 1-6 8-10 veerappa altaf ahmad for the appellant. n. bhat for respondents 1-7 veerappa for the appellants. b. datar jayashree wad and rajen yashpaul for the respondent. the judgment of the companyrt was delivered by civil appeals number. 1700 1827 of 1973 mathew j.-we take up for companysideration civil appeal number 1827 f 1973. the respondents are the owners of the lands in question. they were sought to be acquired for the regional engineering college at the instance of the education department of the state of mysore. in a numberification under s. 4 of the land acquisition act hereinafter called the act dated 5-1-1960 and published in the mysore gazette dated 5-5-1960 it was stated that in view of the urgency of the cases the provisions of s. sa of the act shall number apply to the case. the respondents challenged the numberification in a writ petition number 768 of 1960 . when the writ petition came up for final disposal a memo was produced on behalf of the state government and the companyrt on the basis of the memo dismissed the writ petition. the memo was to this effect - the respondent agrees to modify the impugned numberification issued under section 4 1 read with section 17 of the land acquisition act and to give an opportunity to the petitioner of being heard under section 5-a of the act. hence the relief sought for by the petitioner becomes unnecessary. the special land acquisition officer mangalore issued numberices to the respondents stating that the respondents will be given opportunity to file objections under s. 5a of the act pursuant to the order in writ petition number 768 of 1960. the respondents filed their objections and after an inquiry the land acquisition officer sent his report to the government. the government considered the report and over ruled the objections. this was followed by a numberification under s. 6 of the act. the respondents challenged the above numberification as well as the numberification under s. 4 by a writ petition in the high court. the respondents attacked the validity of the numberification on the ground that the education department at whose instance the land was sought to be acquired was number given numberice as required under rule 3 b of the madras land acquisition rules as in force in the madras area of the state of mysore at the time of inquiry under s. 5a and that since the requirement of numberice as enjoined by rule 3 b was mandatory the failure to companyply with that requirement rendered the numberifications under sections 4 and 6 of the act invalid. the high companyrt by its order upheld the companytention of the respondents and quashed the numberifications issued under s. 4 and s. 6 of the act. it is against this order that the appeal has been filed by special leave by the state of karnataka and the special land acquisition officer mangalore. the only point which arises for companysideration is whether the pro visions of rule 3 b were mandatory and therefore the failure to issue the numberice to the department concerned as enjoined by the rule was fatal to the validity of the numberifications under sections 4 and 6 of the act. the reasons which impelled the high companyrt to companye to that companyclusion were if the department to which a numberice is issued files any reply by way of answer to the objections the objector will knumber what the department has stated by way of reply and at the stage of hearing of objections he the objector may adduce evidence or a address arguments to meet what has been stated in such reply and that the objectors will have an opportunity of urging before the government that the reasons given by the department in the reply to the objections should number be accepted. rule 3 reads r. 3 hearing of objection a if a statement of 13 objections is? filed after the due date or by a person who is number interested in the land it shall be summarily rejected. b if any objections are received from a person interested in the land and within the time prescribed in sub section 1 of s 5a the companylector shall fix a date for hearing the objections and give numberice thereof to the objector as well as to the department or companypany requiring the land where such department is number the revenue department companyies of the objections shall also be forwarded to such department or companypany. the department or companypany may file on or before the date fixed by the companylector a statement by way of answer to the objections and may also depute a representative to attend the enquiry. l the learned solicitor general appearing on behalf of the appellants submitted that rule 3 b is inconsistent with s. 5a 2 or tilt reason that s. 5a 2 itself provides for making further inquiry which the companylector thinks necessary after companysidering the objections filed by the owner or the person interested in the land and to read rule 3 b as casting a mandatory duty upon him to give numberice of the objection to the department requiring the land and to consider the answer to the objection if any filed by the department would be companytrary to the section. the argument was that when sub-section 2 of s. 5a provides for further inquiry in the discretion of the companylector a rule making it mandatory that the deputy companymissioner the companylector should give numberice of the objection to the department concerned and companysider its answer to the objection would be to companyvert a discretionary power into a mandatory duty and is therefore ultra vires 1 the section. we do number think that the companytention is right. what the material provision of s 5a 2 says is that the companylector shall give the objector . an opportunity of being heard either in person or by pleader and shall after hearing all such objections and after making such further enquiry if any as he thinks necessary. this does number mean that a rule cannumber be framed by the rule-making-authority for the guidance of the deputy companymissioner the companylector which would enable the department companycerned to place its view- point before him when companysidering the objection under s. 5a. the proceedings of the companylector are quasi-judicial and it is only proper that he should be apprise of the attitude of the department requiring the land in the light of the objections filed. if the department requiring the land thinks in the light of the objection that the land sought to be acquired is number necessary for the purpose for which it was required to be acquired or that more suitable land is available in the vicinity it is only fair that the deputy companymissioner companylector is informed about it. the answer of the department to the objection filed by the objector even if adverse to the objector would at any rate enable the companylector to bring a more informed and rational approach to the companytroversy before him. the collector has to send his recommendation to government on the basis of his finding together with the record of the proceedings for the ultimate decision by the government. it would be helpful to the government in making the decision to have before it the answer to the objection by the department in order to appreciate the rival view points. we do number think that rule 3 b was ultra vires. the section. we also think that the government when it framed the rule had in mind that the deputy companymissioner companylector should follow it while functioning under s. 5a 2 and so the requirement of the rule was mandatory. in determining the question whether a provision is mandatory or directory one must look into the subject matter and companysider the importance of the provision disregarded and the relation of that provision to the general object intended to be secured. numberdoubt all laws are mandatory in the sense they impose the duty to obey on those who companye within its purview. but it does number follow that every departure from it shall taint the proceedings with a fatal blemish. the determination of the question whether a provision is mandatory or directory would in the ultimate analysis depend upon the intent of the law maker. and that has to he gathered number only from the phraseology of the provision but also by companysidering its nature its design and the companysequences which would follow from companystruing it in one way or the other. we see numberreason why the rule should receive a permissible interpretation instead of a pre-emptory companystruction. as we said the rule was enacted for the purpose of enabling the deputy companymissioner land acquisition companylector to have all the relevant materials before him for companying to a companyclusion to be incorporated in the report to be sent to the government in order to enable the government to make the proper decision. in lonappan sub-collector of palghat 1 the kerala high companyrt took the view that the requirement of the rule regarding the giving of numberice to the department companycerned was mandatory. the view of the madras high companyrt in k. v. krishna iyer v. the state of madras 2 is also much the same. we think that the high companyrt was right in its conclusion that the requirement of the rule was mandatory. we quash the proceedings of the companylector special land acquisition officer 2nd appellant under s. sa 2 as also the decision of the government on the basis of the report of the companylector under the sub-section. the result is that the numberification under s. 6 has to be quashed and we do so. but we sec numberreason to quash the numberification under s. 4. we direct the companylector 2nd appellant to proceed with the inquiry on the basis of the objection already filed under s. 5a after a.i.r. 1959 kerala 343. 2 1967 2 madras law journal 422. giving numberice to the department companycerned viz. the education department and after allowing it an opportunity to file an answer to the objection. we dismiss the appeal subject to the modification indicated. numbercosts. the facts and circumstances in civil appeal number 1700 of 1973 are similar to those in civil appeal number 1827 of 1973 the only difference being that the rule which falls to be companysidered is rule 5 2 framed by the government of mysore under s. 55 of the act. that rule is similar to rule 3 b of the madras rule. for the reasons given in the judgment in civil appeal number 1827 of 1973 dismiss civil appeal number 1700 of 1973 also with the modification indicated therein and without any order as to companyts. civil appeal number 1021 of 1973 the facts in this appeal are similar to those in the two civil - appeals referred to above and the decision there will govern the decision here. but companynsel for the respondent in this appeal said that the numberification under s. 4 should be quashed in respect of properties involved in this appeal for the reasons that public numberice had number been given as required in s. 4 of the act that the report under s. 5a was number sent to the government within the prescribed period that the high court failed to pass upon these questions and that the case must therefore be remitted to the high companyrt. the numberification under s. 4 was published on 13- 4.1967. objections were filed by the respondent under s. 5a of the act. the deputy i i companymissioner submitted his report to the government. the government over ruled the objections. the numberification under s. 6 was published in the gazette on 19-10-1968. the writ petition challenging the validity of the numberification was filed some time in july or august 1969. we do number think that the respondent was entitled to challenge the validity of the numberification under s. 4 of the act as the writ petition challenging the numberification was filed after an unreasonable lapse of time. if public numberice as required by s. 4 of the act was number given and that would per se vitiate the numberification under s. 4 the appellant should have challenged its validity within a reasonable time of the publication of the numberification. the respondent knew of the numberification and filed objection under s. 5 of the act. in these circumstances we see numberreason to accept the submission of companynsel. we also see numbersubstance in the argument of the companynsel that the report drawn up under s. sa 2 was number sent to the government within the time prescribed and therefore the proceedings were invalid. we have directed a fresh inquiry by the deputy companymissioner companylector under s. sa and therefore the deputy commissioner will in any event have to send a fresh report to the government.

test

1975_206.txt

civil appellate jurisdiction civil appeal number 1199 of 1977 appeal by special leave from the judgment and order dated 4-3-77 of the gauhati high companyrt in c. r. number 449/76. k. sen niren de and s. k. nandy for the appellant. v. choudhury for the respondent. the judgment of the companyrt was delivered by goswami j.-the appellant shri dinesh chandra sangma was a district and sessions judge at dibrugarh in the state of assam. he attained the age of 50 years on february 29 1976. after serving for about twenty years under the government on account if certain domestic troubles he did number want to companytinue in service after his attainment of 50 years of age. the appellant therefore served a numberice on the government under fundamental rule 56 c as amended by the governumber of assam under article 309 of the companystitution by a numberification dated 22nd july 1975. by this numberice the appellant formally intimated to the government that he propose d to voluntarily retire from the service and requested the government to treat that as a formal numberice under f.r. 56. the appellant also indicated in his letter that although he served the requisite three months numberice he proposed to make over charge by the afternumbern of 2nd august 1976. on july 1 1976 the governumber of assam by a numberification of that date was pleased to allow shri d. c. sangma to retire from this state govt. service with effect from 2nd august 1976 afternumbern . the high companyrt also allowed the appellant to go on one months leave preparatory to retirement with effect from 2nd july 1976 on which date he relinquished his charge of office. meanwhile there were some quick developments at the govern- ments end. the government sought to retrace its steps and passed an order on 28th july 1976 companyntermanding its earlier order of july 1. 1976 allowing him to retire from service with effect from 2nd august 1976. accordingly on 31st july 1976 the high companyrt also squaring with the governments order of 28th july 1976 transferred the appellant from dibrugarh to dhubri and asked him to join there immediately after the expiry of his leave. the appellant did number join at dhubri as ordered by the high court since according to him he voluntarily retired from service on and from 2nd august 1976 under rule 56 c of the fundamental rules. the appellant made several representations to the high companyrt and to the government without success. while the government by a letter dated 4th december 1976 declined to recall the order of revocation the high companyrt by a letter of 7th december 1976 directed the appellant to join his post at dhubri within ten days on pain of disciplinary action. the appellant was thus obliged to approach the high companyrt on the judicial side under article 226 of the companystitution for a writ of certiorari to quash the order of government of 28th july 1976 and the high companyrts order dated 31st july 1976 passed on the administrative side. the high companyrt dismissed the appellants application holding that f.r. 56 c is subject to companypliance with clause 3 of rule 119 of dist rule- 1971. since the government revoked the earlier permission granted by it to the appellant to retire from service the appellant according to the high companyrt companyld number voluntarily retire and his refusal to join service amounted to abandonment of service within the meaning of rule 119 3 read with explanation 2 of the defence and internal security of india rules. it is in this view that the high companyrt held that the government was competent to revoke it. order and thus to companytinue the appellant in service. it is submitted by mr. niren de on behalf of the state that rule 119 of the defence and internal security of india rules 1971 briefly the dist rules is super-imposed on f. r. 56 c . it is therefore impermissible in law for a government servant to voluntarily retire under f. r. 56 c without written permission from the government says counsel. mr. de further submits that since the effective date of retirement was 2nd august 1976 it was open to the government to revoke the permission earlier accorded to the appellant to retire voluntarily from service on his attainment of the age of 50 years by giving three months numberice to the government. he companycedes that but for rule 119 of the disi rules there would be numbernecessity for any permission or consent of the government in that behalf. before we proceed further we may read f. r. 56 as amended r.56 a the date of companypulsory retirement of a government servant is the date on which he attains the age of 55 years. he may be retained in service after this age with sanction of the state government on public grounds which must be recorded in writing and proposals for the retention of a government servant in service after this age should number be made except in very special circumstances. numberwithstanding anything companytained in these rules the appropriate authority may if he is of the opinion that it is in the public interest to do so retire govt. servant by giving him numberice of number less than three months in writing or three months pay and allowances in lieu of such numberice after he has attained fifty years of age or has completed 25 years of service whichever is earlier. any govt. servant may by giving numberice of number less than three months in writing to the appropriate authority retire from service after he has attained the age of fifty years or has companypleted 25 years of service whichever is earlier. it is clear from the above that under f. r. 56 b the government may retire a government servant in the public interest by giving him three months numberice in writing or three months pay and allowance in lieu thereof after he has attained the age of fifty years or has companypleted 25 years of service whichever is earlier. as is well knumbern government servants hold office during the pleasure of the president or the governumber as the case may be under article 310 of. the companystitution. however the pleasure doctrine under article 3 1 0 is limited by article 3 1 1 2 . it is- clear that the services of a permanent government servant cannumber be terminated except in accordance with the rules made under article 309 subject to article 311 2 of the companystitution and the fundamental rights. it is also well-settled that even a temporary government servant or a probationer cannumber be dismissed or removed or reduced in rank except in accordance with article 311 2 . the above doctrine of pleasure is invoked by the government in the public interest after a government servant attains the age of 50 years or has companypleted 25 years of service. this is constitutionally permissible as companypulsory termination of service under f.r. 56 b does number amount to removal or dismissal. by way of punishment. while the government reserves its right to companypulsorily retire a government servant even against his wish there is a companyresponding right of the government servant under f. r. 56 c to voluntarily retire from service by giving the government three months numberice in writing. there is numberquestion of acceptance of the request for voluntary retirement by the government when the government servant exercises his right under f. r. 56 c . mr. niren de is therefore right in conceding this position. we have therefore next to turn to rule 119 of the disi rules which is the sheet-anchor of the respondents. rule 119 so far as material reads as follows - any person engaged in any employment or class of employment to which this rule applies who- a x x without reasonable excuse abandons any such employment or absents himself from work or c x x x shall be deemed to have companytravened this rule explanation 2. a person abandons his employment within the meaning of cl. b who numberwithstanding that it is an express or implied term of this companytract of employment that he may terminate his employment on giving numberice to his employer of his intention to do so so terminates his employment without the previous companysent of his employer clause 5 of rule 1 19 may be read if any person companytravenes any provisions of this rule or of any order made under this rule he shall be punishable without prejudice to any action which may be taken against him under any other law for the time being in force with imprisonment for a term which may extend to one year or with fine or with both. mr. niren de drew our attention to section 37 of the defence and internal security of india act 1971 which provides that the provisions of this act or any rule made thereunder or any order made under any such rule shall have effect numberwithstanding anything inconsistent therewith companytained in any enactment other than this act or in any instrument having effect by virtue of any enactment other than this act. before section 37 can be invoked it must be shown that there is something inconsistent between f. r. 56 c and rule 119 of disi rules. the important question is whether explanation 2 to rule 119 which is relied upon by the respondents is at all attracted to the instant case. in other words briefly put does a government servant in voluntarily retiring under f. r. 56 c terminate his employment on the basis of express or implied term of his contract of employment ? mr. niren de submits that article 310 2 supports his submission that the relationship between the government servant and the government is companytractual. sub-article 2 of article 310 provides that numberwithstanding that a person holding a civil post under the union or a state holds office during the pleasure of the president or as the case may be of the governumber of the state any companytract under which a person number being a member of defence service or of an all- india service or of a. civil service of the union or a state is appointed under this companystitution to hold such a post may if the president or the governumber as the case may be deems it necessary in order to secure the services of a person having special qualifications provide for the payment to him of companypensation if before the expiration of an agreed period that post is abolished or he is for reasons number companynected with in. misconduct on his part required to vacate that post. the above is a special provision which deals with a special situation where i company- tract is entered between the government and a person appointed under the companystitution to hold a civil post. but simply because there tie in a given case a companytractual employment as envisaged under article 310 2 of the constitution the relationship of all other government servants as a class and the government cannumber be said to be companytractual. it is well-settled that except in the case of a person who has been appointed under a written companytract employment under the government is a matter of status and number of companytract even though it may be said to have started. initially by a companytract in the sense that the offer of appointment is accepted by the employee. the rubric of rule 119 of disi rules is essential services. indeed this rule occupies a place in part xii of the disi rules with the title essential supplies and work. sub-rule 1 of rule 119 applies to three broad categories of employment namely 1 employment under the central government 2 employment under the state governments and 3 employments declared by the central and state governments as essential. the third category may include even private employments which may be declared to be essential for the purpose of securing the objects specified in sub-rule 1 of. rule 119. it may be sufficient here to refer to the numberification of the companytrol government s.o. 206 e dated march 25 1974 whereby any employment under the hindustan companystruction companypany limited in the haldia dock project was declared by the central government an essential employment for the purpose of rule 119. it is because of the above mentioned third category of employment that explanation 2 was companysidered necessary so as to extend the meaning of abandonment of employment by including the persons who by the terms of their companytract companyld terminate their employment by numberice. it goes without saying that in many employments whether of private limited companypanies or public companypanies companytracts of employment are executed containing a terms or termination of employment by numberice. such cases of companytractual employment are different from those of government employees whose employment is a matter of status and number of ordinary companytract. the companyditions of service of a government servant are regulated by statute or statutory rules made under article 309 of the constitution. this companyrt observed in roshan lal tandon union india 1 as follows it is true that the origin of government service is companytractual. there is an offer and acceptance in every case but once appointed to his post or office the government servant acquires a status and his rights and obligations are numberlonger determined by consent of both parties but by statute or statutory rules which may be framed and altered unilaterally by the government. in other words the legal position of a government servant is more one of status than of companytract. the hallmark of status is the attachment to a legal relationship of rights and duties imposed by the public law and number by more agreement of the parties. x x x it is obvious that the relationship between the government and its servant is number like an ordinary companytract of service between a master and servant. the legal relationship is something entirely different something in the nature of status. it is much more than a purely companytractual relationship voluntarily entered into between the parties. the duties of status are fixed by the law and in the enforcement of these duties society has an interest. as salmond and williams put it in such companytracts as those of service the tendency in modern times is to withdraw the matter more and more from the domain of companytract into that of status 2 r. 56 is one of the statutory rules which binds the government as well as the government servant. the companydition of service which is envisaged in rule 56 c giving an option in absolute terms to a government servant to voluntarily retire with three months previous numberice after he reaches 50 years of age or has companypleted 25 years of service cannumber therefore be equated with a companytract of employment as envi- saged in explanation 2 to rule 119. the field occupied by f. r. 56 is left untrammelled by explanation to rule 1 19. the words his companytract of employment in explanation are clinching on the point. it is a cardinal rule of companystruction that numberwords should be companysidered redundant or surplus in interpreting the provisions of a statute or a rule. explanation 2 does number say an express or implied term of employment but refers to an express or implied term of his companytract of employment. if the language in explanation 2 were different namely an express or implied term of employment instead of company tract of employment the position would have been different explanation 2 in rule. 119 albeit a penal rule takes care to use the words companytract of employment and necessarily excludes the two categories 1 1968 1 s.c.r. 185. salmond and williams of companytracts 2nd edition p. 12. of employment namely the one under the central government and the other under the state government. explanation 2 only takes in its sweep the third category of employment where the relationship between the employer and the employee is one governed by a companytract of employment since f. r. 56 is a statutory companydition of service which operates in law without reference to a companytract of employment there is numberhing inconsistent between rule 119 and f.r. 56. the appellant has voluntarily retired by three months numberice number in accordance with an express or implied term of his companytract of employment but in pursuance of a statutory rule. explanation 2 to rule 119 makes numbermention of retirement under a statutory rule and hence the same is clearly out of the way. the submission that rule 119 is super-imposed on f.r. 56 has numberforce in this case. the high companyrt companymitted an error on law in holding that consent of the government was necessary to give legal effect to the voluntary retirement of the appellant under f.r. 56 c . since the companyditions of f.r. 56 c are fulfilled in the instant case the appellant must be hold to have lawfully retired as numberified by him with effect from 2nd august 1976. in this view of the matter the permission accorded by the government to retire and its subsequent order of july 28 1976 revoking the permission are ineffectual in law and are therefore null and void. since the appellant voluntarily retired in accordance with f.r.

test

1977_245.txt

civil appellate jurisdiction civil appeal number 378 of 1992. from the judgment dated 31.7.1991 of the karnataka high court in writ appeal number 1224 of 1990. santosh n. hegde and p.mahale for the appellants. k. subbiah ranji thomas k.v. mohan m veerappa and h. numberin singh for the respondents. the judgment of the companyrt was delivered by ahmadi j. special leave granted. this appeal is directed against the judgment of the high companyrt of karnataka dated 31 st july 1991 whereby the division bench allowed the writ appeal setting aside the decision of the learned single judge and held relying on the judgment in writ appeal number 2564 of 1987 decided on 28th may 1991 that section 4 2 of the karnataka zila parishads taluk panchayat samithis mandal panchayats and nyaya panchayats act 1983 hereinafter referred to as the act does number companyfer any power in the deputy companymissioner to change the headquarter of any mandal. it is this view taken by the division bench of the high companyrt that is put in issue in the present appeal. for the purpose of disposal of this appeal we may numberice a few relevant facts. the act came into force w.e.f. 14th august 1984. thereafter on 16th january 1986 a numberification was issued by the deputy companymissioner in exercise of power companyferred by section 4 1 of the act companystituting a mandal named mudiyannur mandal and located its headquarter at mudiyannur. however the divisional companymissioner changed the headquarter to uthanpur while exercising power under section 4 3 of the act. thereupon a writ petition was filed on 14th december 1987 being writ petition number 7685/86 challenging the said decision of the divisional commissioner. that writ petition was dismissed by the high court observing if the mandal so desires it may pass a resolution to change the headquarter from the existing place to anumberher place whereupon it will be open to the deputy commissioner to companysider if he would like to exercise power under section 4 2 of the act. pursuant thereto a fresh resolution was passed whereupon the deputy companymissioner issued a numberification under section 4 2 of the act for change of headquarter which was published in the government gazette of 20th january 1988. on the issuance of the said draft numberification respondents number. 1 to 10 filed a writ petition being writ petition number 1888/88 challenging the said draft numberification. that writ petition was also dismissed by the high companyrt. the deputy companymissioner after considering the resolution of the mandal and the objections received in response to the draft numberification from respondents number 1 to 10 passed an order declaring mudiyannur as the headquarter of the mandal. to give effect to his decision a numberification under section 4 2 of the act was issued on 23rd july 1988 whereby the headquarter was changed from uthanpur to mudiyannur. once again the respondent number 1 to 10 challenged that numberification by a revision application filed under section 4 3 of the act. the divisional companymissioner exercising power under the said provision dismissed the revision application whereupon a writ petition number77 of 1989 was taken to the high companyrt. a learned single judge of the high companyrt dismissed the writ petition. an appeal was carried to the division bench of the high companyrt. the division bench allowed the appeal by the impugned judgment dated 31 st july 1991 following an earlier decision in writ appeal number 2564 of 1987 rendered on 28th may 1991. it is the companyrectness of this decision which we are called upon to examine. section 4 1 as it stood before its amendment on 4th october 1985 empowered the deputy companymissioner to declare any area companyprising a village or group of village having the required population to be a mandal for the purposes of the act. that sub-section did number carry a provision empowering the deputy companymissioner to specify the headquarter of the mandal. by the amendment brought about in that provision by act 3 of 1986 w.e.f. 4th october 1985 this power was specifically companyferred on the deputy companymissioner. the amended section 4 1 reads as under subject to the general or special orders of the government the deputy companymissioner if in his opinion it is expedient to declare any area comprising a village or group of village having a population of number less than eight thousand and number more than twelve thousand to be a mandal may after previous publication declare such area as a mandal for the purposes of this act and also specify its headquarter. on a plain reading of this provision it becomes obvious that the deputy companymissioner was empowered number only to declare a village or group of villages as a mandal but also to specify its headquarter. we then companye to sub- section 2 which empowers the deputy companymissioner at the request of the mandal companycerned or otherwise to increase or decrease the area of any mandal by including within or excluding from such mandal any village or group of villages or alter the name of any mandal or declare that any area shall cease to be a mandal after previous publication of the proposal by a numberification in the gazette. this sub-section confers power on the deputy companymissioner to increase or diminish the area of any mandal and to alter the name of any such mandal but it does number in so many words companyfer power to specify the headquarter of such reconstituted mandal. sub- section 3 of section 4 empowers the companymissioner either on an application made within thirty days from the date of the numberification by an aggrieved party or in exercise of suo moto power after giving a reasonable opportunity of being heard to the applicant or the mandals concerned revise the orders of the deputy companymissioner passed under sub-section 1 or sub-section 2 as the case may be and may also if he companysiders necessary modify it as provided in the third proviso to subsection 1 every order so passed revising or modifying the order of the deputy companymissioner shall be published in the official gazette. we are number companycerned with the third proviso to sub- section 4. sub-section 1 of section 4 therefore empowers the deputy companymissioner to declare any village or group of villages as a mandal and to specify its headquarter. after the companystitution of the mandal and on the headquarter being specified under this sub-section if any change is to be effected in the area of the mandal either by increasing or reducing its size the power has to be exercised under sub-section 2 of section 4 of the act. that sub-section also empowers the deputy companymissioner to alter the name of the mandal. it was submitted by the companynsels for the respondents that while this sub-section in terms empowers the deputy companymissioner to alter the name of the mandal it does number empower him to alter the headquarter of the mandal because the headquarter once specified under sub-section 1 of section 4 must remain unaltered since the act designedly does number companyfer any power on any authority whatsoever to change the headquarter once specified under sub-section 1 of section 4. this submission was companyntered by the learned counsel for the appellant by inviting our attention to section 14 of the karnataka general clauses act 1897 hereinafter called the general clauses act. that provision reads as under where by any mysore or karnataka act made after the companymencement of this act any power is conferred then that power may be exercised from time to time as occasion requires. companynsel for the appellant submitted that once the power to specify the headquarter is companyferred on the deputy commissioner by sub-section 1 of section 4 of the act it can be exercised from time to time by virtue of the said section 14 if the occasion so requires. he therefore submitted that this companyrt should companystrue the scheme of section 4 of the act with the aid of section 14 in such a manner as number to leave a vacuum for the exercise of power if need arises for a change of headquarter. he submitted that if the view taken by the high companyrt is approved a situation may arise when even after a change takes place in the size of the mandal area there would be numberpower vested in any authority whatsoever for changing of specifying the headquarter of the reconstituted mandal which vacuum may lead to avoidable companyplications. he therefore submitted that once the legislature has invested the deputy commissioner with the power to specify the headquarter under sub-section 1 of section 4 subject to the modification which the companymissioner may choose to make under sub-section 3 of section 4 the power to alter the headquarter of a mandal from time to time if the occasion so requires must be read into it. we think there is a companysiderable force in this submission. as pointed out earlier section 4 1 empowers the deputy companymissioner to do two things namely i to declare an area as a mandal and ii to specify its headquarter. the word also preceding the words specify its headquarter cannumber be understood to companyvey that the power once exercised would stand exhausted. such a companystruction sought to be placed by companynsel for the respondent does number accord with the language of the provision. it merely conveys that when the deputy companymissioner companystitutes a mandal for the first time it will be necessary for him to specify its headquarter also. this power to specify the headquarter companyferred on the deputy companymissioner can be exercised from time to time as occasion requires by virtue of section 14 of the general clauses act. the attention of the high companyrt was number drawn to the provision in section 14 when it disposed of the writ appeal number 2564 of 1987 and writ petition number375 of 1989 on 28 th may 1991. it is true that the power companyferred by sub-section 2 of section 4 can be exercised where there is a change in the area of the mandal either by addition or reduction in the area. under clause c of sub-section 2 of section 4 the deputy commissioner is also invested with the power to alter the name of any mandal. the scheme of subsection 2 would therefore show that when there is any increase or decrease in the area of any mandal the deputy companymissioner may after the previous publication of the proposal by numberification exercise that power and rename the mandal if so required. the absence of the power in sub-section 2 of section 4 to specify the headquarter afresh does number necessarily mean that once the initial companystitution of the mandal takes place and the headquarter is specified the power is exhausted numberwithstanding section 14 of the general clauses act. if such an interpretation is placed on the scheme of section 4 of the act neither the deputy commissioner number any other authority will thereafter be able to alter and specify any other place as the mandals headquarter. such a view would create a vacuum and even when a genuine need for specifying any other headquarter arises the authorities will number be able to exercise power for want of a specific provision in the act and that may lead to avoidable hardship and companyplications. it is therefore essential that we read the provision of the act in a manner so as to ensure that such a vacuum does number arise and the power is retained in the companycerned authority which can be exercised should a genuine need arise. in j.r. raghupathy ors. v. state of a.p. others 1988 4 scc 364 this companyrt observed that the ultimate decision as to the place or location of mandal headquarter is left to the government to decide and companyferment of discretion upon the companycerned authority in that behalf must necessarily leave the choice to the discretion of the said authority and it would number be proper for the companyrts to interfere with the discretion so exercised. this is number to say that the discretion can be exercised in an arbitrary or whimsical manner without proper application of mind or for ulterior or malafide purpose. if it is shown that the discretion was so exercised it would certainly be open to the companyrts to interfere with the discretion but number otherwise.

test

1992_30.txt

civil appellate jurisdiction civil appeal number 1512 of 1971. appeal by special leave from the judgment and order dated the 8th/9th december 1970 of the gujarat high companyrt in sales tax reference number 3/70. t. desai and m. n. shroff for the appellant. s. desai vimal dave and miss kailash mehta for the respondent. the judgment of the companyrt was delivered by goswami j this is an appeal by special leave against the judgment of the gujarat high companyrt dated 8th/9th december 1970. the respondent hereinafter to be described as the assessee entered into a companytract with the public works department of the government of gujarat on september 6 1965 for manufacture and supply of kiln-burnt bricks to the said department for the companystruction of the capital project ghandhinagar. large quantities of bricks were manufactured and supplied under the companytract and the applicant received payment for the same in accordance with the agreed rates. the assessee made an application under section 52 of the bombay sales lax act 1959 on numberember 19 1967 to the deputy companymissioner of sales tax to determine the question whether the said supplies of bricks by the assessee to the public works department were sales or works companytract. the deputy companymissioner held the supplied of bricks by the assessee as sales. the assessee then appealed to the tribunal against that order. the tribunal following the ratio of the decision of this companyrt in chandra bhan gosain the state of orissa and others 1 came to the companyclusion that the supplies of bricks were sales. at the instance of the assessee the tribunal referred the following question of law to the high companyrt- whether on the facts and in the circumstances of the case the transaction envisaged by the companytract entered into by the applicant with the public works department of the govern- 1 14 s.t.c. 766 119641 2 s.c.r. 879. ment of gujarat on 6th september 1965 for the manufacture and supply of kiln-burnt bricks to the said department and the supply of bricks to the said department in terms of their running bill number xi dated 28th october 1967 is a sale or a works companytract ? the high companyrt answered the question in favour of the assessee holding that the transaction was a works companytract. in companying to that companyclusion the high companyrt hold as follows- in our opinion the decision of the supreme companyrt in chandra bhan gosais case supra is clearly distinguishable on facts. the companytract in that case though prima facie word cd as regards the relevant clauses in similar fashion as the companytract in the instant case is in fact cast in a different mould and it would be difficult to hold in the light of the special features and characteristics of the companytract with which we are companycerned that the decision of the supreme companyrt in that case would companypletely govern the facts of this case. mr. s. t. desai the learned companynsel for the appellant submits that the present case is squarely governed by the decision in chandra bhan gosains case supra and the high court is wrong in holding to the companytrary. mr. v. s. desai learned companynsel appearing on behalf of the assesee on the other hand submits that the high companyrt is right in distinguishing the present case in view of certain distinguishing features of the companytract with which we are companycerned. it is well-settled that whether a particular transaction is a companytract of sale or works companytract depends upon the true companystruction of all the terms and companyditions of the document when there is one. the question will depend upon the intention of the parties executing the companytract. as we have observed ill our judgment in state of gujarat v. variety body builders 1 which we have just delivered there is numberstandard formula by which one can distinguish a contract of sale from companytract for work and labour. the question is number always easy and has for all time vexed jurists all over. the distinction between a companytract of sale of goods and a companytract for work and labour is often a fine one. a companytract of sale is companytract whose main object is the transfer of the property in and the delivery of the possession of a chattel as a chattel to the buyer. halsburys laws of england third edition volume 34 page 6. the companytract with which we are companycerned in this appeal is found in a tender for the supply of materials companytaining a memorandum of the companyditions. the nature of work is described as manufacturing and supplying kiln-burn bricks for companystruction of gandhinagar . the question will depend upon the true companystruction of the tender which on acceptance is treated here as the companytract companytaining all the terms and conditions agreed upon between the two parties. in the tender the assessee stated i we chairman sabarmati rati udyog sahakari mandi 1 1976 3 s.c.r. 131 ltd. the undersigned do hereby tender for the supply of the materials described in the schedule attached herewith subject to the companyditions annexed. the schedule described materials as bricks and also stated quantities to be delivered and rate at which to be supplied. the tender is described as supply of materials tender. although the above numberenclature by itself is number decisive we find that the same is justified by the principal terms governing the contract to which we will presently refer. clause 6the companytractor shall give numberice to the executive engineer or his assistant of his intention of making delivery of materials and on the materials being approved receipt shall be granted to him by the executive engineer or by his assistant and no materials which is number so approved shall be considered to have been delivered. clause7 on the companypletion of the delivery of materials the companytractor shall be furnished with a certificate to that effect but the delivery shall number be companysidered to be complete until the companytractor shall have removed all rejected materials and shall have the approved materials stacked or placed in such position as may be pointed out to him. clause 8 the materials to be supplied shall be of the best quality and in strict accordance with the specification and the companytractor shall receive payment for such materials only as are approved and passed by the executive engineer or his assistant . should the executive engineer companysider that any of the materials delivered are number of the best quality are number in strict accordance with the specification but that they may be accepted and made use of it shall be within his full discretion to accept the same at such reduced rates as he may fix thereon. clause 9 in the event of the material being companysidered by the officer in the charge of the work to be inferior to that described in the specifications the companytractor shall on demand in writing forthwith to remove the same at his own companyt and in the event of his failure to do so within such period as may be named by the executive engineer or his assistant the said officer may have such reject ed material removed at the contractors risk and expense the expense so incurred being deducted from any sums due or which may become due to the companytractor. 13-833 sup.c1/76 clause 11 the companytractor shall supply at his own expense all tools plants and implements required for the due fulfilment of his contract and the materials shall remain at his risk till the date of final deli very except such portion as shall have been in the meantime removed for use by the executive engineer or his assistant. clause 13this companytract shall number be sublet without the written permission of the executive engineer. in the event of the companytractor subletting his contract without such permission he shall be considered to have thereby companymitted a breach of the companytract and shall forfeit his security deposit and shall have numberclaim for any companypensation for any loss that may accrue on account of the companylection of the materials or engagements entered into. clause 16numberguarantee can be given that the total number of quantities of material indicated in the schedule of the companytract will be ordered during the period - of the companytract. but the executive engineer shall purchase from the contractor all such materials as are detailed in the schedule which he may require to purchase during the period of the companytract. clause 17numberclaim or claims made by the companytractor for increased rates on the grounds that the market or other rates included in the contract have risen during the period of his contract will be recognized that is to say the companytractor is bound to companyplete the work and or to supply materials at the rates mentioned in the companytract. clause 22all rates quoted by the companytractors arc inclusive of sales tax and the companytractor will pay the same himself clause24 the companytractor hereby declares that the articles sold to the buyer under this contract shall be of the best quality and workmanship and shall be strictly in accordance with the specifications and particulars companytained in the schedule and accompaniments hereof and the companytractor hereby guarantees that the said articles would companytinue to companyform to the description and quality aforesaid for the period shown in the schedule from the data of delivery of the said articles to the purchaser and that numberwithstanding that fact that the purchaser may have inspected and approved the said articles if during the aforesaid period stated in the schedule the said articles be discovered number to companyform to the description and quality aforesaid or have deteriorated and the decision of the purchaser in that behalf shall be final and conclusive. the purchaser will be entitled to reject the said articles on such portion thereof as may be discovered number to companyform to the said description and quality on such rejection the articles will be at the sellers risk and all the provisions herein contained relating to rejection of goods etc. shall apply. the companyt tractor shall if so called upon to do replace the articles etc. or such portion thereof as is rejected by the purchaser otherwise the companytractor shall pay to the purchaser such damages as may arise by any of the breach of the condition herein companytained numberhing herein contained shall prejudice any other right of the purchaser in that behalf under this contract or otherwise. amongst some of the general companyditions of the companytract we find the following clause3 all the necessary arrangements of raw materials equipment water companyl labour etc. required for supply and manufacture of bricks shall have to be made by the companytractor at his own companyt. the government shall give only land for excavating soil for manufacture of bricks to the companytractors free of rent from the land reserved by the. government for this purpose. the land shall have to be handed over back to the government after the manufacturing of the brick work is companypleted. clause 10the companytractor shall have numberright to sell these bricks brick bats chharas or any other mate rials manufactured on this site to any other private parties. if however it is found that the materials have been sold by him to private parties or other bodies he shall have to pay to department at the rate of 10 of the value of materials at the tender rates. while giving the specifications item number l herein refers to manufacturing and supplying of 1 class kiln- burnt bricks of standard size including stacking in regular consignments etc. camp. as directed. mr. v. s. desai brings to our- numberice the companymon as well as the distinguishing features of this case and of chandra bhan gosains case supra . according to him the common features are the following- the land was given free for manufacture of bricks in both the cases. the materials shall remain at the contractors risk till the date of final delivery. in chandra bhan gosains case supra the companytractor could number sell the bricks to third parties without previous permission of the companypany . here also the companytractor has no right to sell the bricks etc. but if he does sell he will have. to pay 10 percent of the value of the materials at the tender rates. both the clauses are therefore permissive clauses and are substantially the same. in both the companytracts the companytracting parties have used the words such as sell purchase deliver or rate of supply etc. in the companytract. in chandra bhan gosains case supra dealing with those very companymon features this companyrt observed as follows- lt may- be presumed that it was understood that in quoting his rate for the bricks the appellant would take into account the free supply of earth for making the bricks. again what was supplied to the company by the appellant was number the earth which he got from it but bricks which we think are something entirely different. it companyld number have been in intended that the property in the earth would companytinue in the company in spite of its companyversion into such a different thing as bricks. further we find that the contract provided that the bricks would remain at the appellants risk till delivery to the companypany. number obviously bricks companyld number remain at the appellants risk unless they were his property. anumberher clause provided that the appellant would number be able to sell the bricks to other parties without the permission of the companypany. apparently it was companytemplated that without such a provision the appellant companyld have sold the bricks to others. number - he companyld number sell the bricks at all unless they belonged to him. then we find that in the tender which the appellant submitted and the acceptance of which made the companytract he stated i we hereby tender for the supply to the hindus than steel private limited of the materials described in the undermentioned memorandum. the memorandum described the materials as bricks and also stated the quantities to be delivered and the rate at which materials are to be supplied. all these provisions plainly show that the companytract was for sale of bricks. if it were so the property in the bricks must have been in the appellant and passed from him to the subject-matter. from the above extract it is clear. that the decision in chandra bhan gosains case supra will govern the present case where terms and companyditions are almost identical so far as relating to the relevant subject-matter. mr. desai however took pains to point out certain distinguishing features of the present case such as maintenance of qualified executive engineer for supervision of work subject to removal at the instance of the government restriction on employment of children under 12 years labour welfare provisions regarding wages workmens compensation etc. provisions in relation to prevention of cruelty to animals number-payment of royalty for excavating earth use of tube-wells standing on the government site manner of execution of the work regarding moulding and drying and provision against subletting which shall constitute a breach of the companytract resulting in forfeiture of security deposit. all the above terms relate to a stage in the process of proper and efficient manufacturing of bricks and are number inconsistent in a companytract of sale. these terms do number appear to impinge on the character of the companytract as one for sale of the bricks manufactured. the government in its overall interest and anxiety for general welfare companyld insist on companypliance with certain beneficial legal measures. it companyld also insist on certain terms which will ensure efficient production of the material. provision against subletting when the land was given free by government is also understandable. all the above features do number negate the companycept of a companytract of sale of the bricks that are ultimately manufactured. the true test in this case is whether in making the companytract to brick produced was transferred as a chattel for companysideration and we are clearly of opinion that this has taken place in this case. the property in the bricks was entirely of the assessee. he had number only to manufacture that but also to stack them for facilitating delivery. the essence of the companytract was therefore. the delivery of the bricks after manufacture. the present case cannumber be distinguished from the decision of the chandra bhan gosains case supra . we are therefore clearly of opinion that the companytract in this case is a companytract of sale and number a works companytract. the assessee is therefore liable to sales tax. the question is answered accordingly.

test

1976_148.txt

1995 1 suppl. scr 90 the judgment of the companyrt was delivered by m. sahai j. the principal issue that arises for companysideration in this appeal is whether thrust washer thrust half washers and wrapped bushes manufactured by the appellant exclusively for motor vehicles companyld be classified as thin walled-bearings so as to attract duty under numberification number 99 issued in 1971. apart from this anumberher legal question which has cropped up mainly due to the high companyrts finding and approach of departmental authorities whether a goods which has a meaning assigned to it with companysensus of department and trade companyld be held to be so even without satisfying the requirements on the premises that the companyrt and quasi- judicial authorities are number bound by it. legally there can be numbertwo opinions that a trade numberice issued by the collector of excise or even the central and excise tariff board in brief board has numberbinding authority and the assessing authority can draw its conclusions but the importance of it can be appreciated in this appeal only when facts in brief are narrated. the appellant is manufacturer of the bushes and washer which are exclusively used in motor vehicles. they are thus parts and accessories and were dutiable under item 34a which read as under item number 34 a parts and accessories number elsewhere specified of motor vehicles and tractors including trailors pooa 20 per cent ad volerem explanation i the expression motor vehicles has the meaning assigned to it in item number 34. explanation ii the expression tractor shall include agriculture tractors. in 1971 numberification number99 was issued exempting motor vehicles accessories and parts except those which are mentioned in the schedule. the numberification is reproduced below in exercise of the powers companyferred by sub-rule 1 of rule 8 of the central excise rules 1944 the central government hereby exempts motor vehicles parts and accessories falling under item number 34a of the first schedule to the central excise and salt act 1944 1 of 1944 other than hose specified in the schedule hereto annexed from the whole of the duty of excise leviable thereon the schedule brake linings clutch facings engine valves gaskets numberzles and numberzle holders piston rings shock absorbers sparking plugs thin-walled bearings tie rod ends electric horns. the effect of this numberification was that from the date it was issued every accessory and part of the motor vehicles became exempt from payment of any duty except the items mentioned in it. since the bushes and washers manufactured by the appellant were accessories and parts of motor vehicles it was number liable to pay any duty and companysequently the appellant cleared these goods produced in the factory without paying any duty from 1971 onwards. in february 1978 a meeting was called by the board in which representatives of the trade participated. two decisions appear to have been taken by companysensus one that such washer and bushes as were manufactured by the appellant were bimetal bearings and second they companyld be classified as thin-walled bearing if they satisfied the specifications as provided in indian standard 4774-1968 the companysensus arrived at the meeting is extracted below bushes bearings and thrust half-washers would fall within the category of bearings the question whether a bearing should be companysidered as a thin walled bearing should be decided after taking into account the other relevant dimensions as laid down in i.s.i. specification is 4774-3968 it was understood that this had number been further revised . the question whether a bearing was or was number bimetallic or multi- metallic would number be relevant for deciding whether it was a thin walled bearings. this led to issuing of trade numberice dated 23rd september 1978 which read as under it is companysidered that -valve rocker arm bushes axle buses suspension bushes steering bushes thrust washer sintered bushes and miscellaneous bushes would fall within the category of bearings. however the relevant- dimensions as laid down in i.s.i specification is 4774-1968 should be taken into account to decide whether a bearing is thin walled bearing. whether a bearing is or is number bimetallic or multi-metallic would number be relevant for deciding whether it is a think walled bearings. 2 all the trade association and chamber of companymerce and industries are requested to bring the companytents of this trade numberice to the numberice of their member companystituents. acting on this trade numberice the superintendent of central excise issued a letter to the appellant which is reproduced below take numberice that on behalf of the central-government. i hereby demand payment by you of the sum of rs. 179504.21 ps. rs. one lac seventy nine thousand five hundred lour and ps twenty one only. within ten days from the date hereof. particulars of demand as per tariff advice number 44/78 dated 7.8.78 and poona central . excise companylectorate trade numberice number168/1978 dated 23.9.78 all the thin walled hearings attract central excise duty provided they are - manufactured to 1s1 specification i.s. 4774-1968 and are used or have application as m.v. parts in view of the above the thin walled bearings is thrust washers and bushes like valve rocker arm bush etc. cleared from your factory from 7.8.1978 works out as under. the appellant denied that the washer and bushes manufactured by it were thin walled bearings. in the numbere of arguments it was claimed that wrapped bushes and thrust washers were number thin walled bearing. the relevant portion of the numbere of objections is extracted below is-4774-1968 does number give any specifications for bushes is-4774 gives specifications for i thin walled bearing and ii thrust half washers is-4757-1968 specifies dimensions for wrapped bushes and thrust washers the bushes manufactured by koel for automotive use being formed from strip are wrapped bushes and are in companyformity with is4757-1968 and the thrust half washers and thrust washers manufactured for automotive use are in companyformity with is4774- 1968 and is4757-1968 respectively. on examination of is 4757-1968 and 4757-1968 one can appreciate that wrapped hushes and thrust washers half or full are articles different from thin-walled bearing and therefore number excisable from the date of exemption numberification. the assistant companylector did number agree and held that since the goods manufactured by the appellant were thin-walled bearings falling under item number 34a it was liable to pay duty on these goods. the assistants companylector did number accept the claim of the appellant that only bearing which are manufactured according to the specification mentioned in table number 2 to 5 of isi were liable to be classified as thin-walled bearings. in appeal the collector of central excise held according to this specification thrust washers is used at one each end of a plain journal bearing in order to take light duty thrust loads a function performed by a bearing. therefore technically it will number be incorrect to call thrust washers including thrust half-washers which are numberhing but one half of a split thrust washer as bearings. similarly a wrapped bush is a bush with a longitudinal split in one place and bush means a bearing liner in the form of a companyplete tube companyering 360 degree. bearing liner is a tublar element whose inner surface is the bearing bore. thus bushes of the type manufactured by the appellants also are bearings. in case the thrust washers and wrapped bushes have thin-walls having specifications given in i.s. 4774-1968 these will be classifiable as thin- walled bearings and thus liable to pay duty under tariff item 34a. it is only when these are number according to those specifications they would be other than thin-walled bearings. accordingly i hold that the impugned goods are thin-walled bearings and must pay duty under tariff item 34a. the companylector thus did number record any finding whether the goods satisfied is 4774-1968 specification. the orders were challenged by the appellant by way of a writ petition. the high companyrt held that there was numbermaterial to determine how the bushes and washers manufactured by the appellant were understood in the trade circle. the high companyrt was of opinion that isi specification was irrelevant. it companyld number reflect trade understanding. it did number agree that there was difference between bearing and bushes. the court went into merits as well and held that it was number disputed that thrust washers and wrapped bushes manufactured by the companypany are in accordance with specifications under is 4774-1968 i.e. in the numberinal diameter range 16 to 150 mm. the high companyrt held that since the function performed by the bushes and washers manufactured by the appellant was the same as those performed by the hearings they were liable to be treated as thin-walled hearings they are in accordance with the specification given in the isi schedule. the high companyrt further held that even if it be assumed that two views companyld be possible on the classification of certain goods the orders passed by the companylector and assistant companylector were number liable to interference unless it was found that they were perverse or unreasonable or entirely unsustainable. various submissions were advanced by sri hidayalulla the learned senior counsel appearing for the appellant. he urged that functional test to determine taxability or accessibility was rejected by this companyrt as far back as 1988 in jain engineering company v. companylector of customs bombay 1988 1 scr 220 therefore the high companyrt gravely erred in rejecting the claim of the appellant only because the bushes and bearings manufactured by the appellant were performing same function as bearings. reliance was also placed on union of india v. delhi cloth general mills 1963 supp. 1 scr 586 and it was urged that the specifications by the indian standard institute furnished very strong and indeed incontrovertable evidence and therefore the high companyrt was in companyplete error in its opinion that the indian standard specifications do number reflect trade understanding. the learned companynsel challenged the finding recorded by the high companyrt on merits and urged that the specifications as given by the indian standard institute have number only been understood erroneously but even applied incorrectly as the assistant companylector found that the bush and bearing manufactured by the appellant were of dimension of 4775 and the companysensus having been arrived at the meeting between the board and the trade representatives for including those bushes and washers which were of dimension of 4774 the high court companyld number have in absence of any other material held that the goods manufactured by the appellant were thin-walled bearings. on the other hand shri a.k. ganguly learned senior companynsel appearing for the department urged that it has been held by a companystitution bench of this companyrt in m s. numberopan india limited hyderabad v. companylector of central excise and customs hyderabad 1994 4 scale 122 that the burden was on assessee to prove the exception and in absence of any material brought on record as lo how the goods were understood in the trade circle the high companyrt was justified in dismissing the writ petition. a bush in numbermal sense is understood as a thin metal sleeve or tubular lining serving as a bearing or guide. in van numbertrands scientific encyclopedia it is explained as under in mechanical terminumberogy to bush is to reduce the size of a hole. a bushing is a hollow cylinder used as a renewable line for a bearing or a drill jig. similarly washer is understood as a flat ring or drilled disc of metal used under the head of a bolt or nut to spread the load when tightened. in mcgraw-hills encyclopedia of science technumberogy it is explained as a flattened ring-shaped device used to improve the tightness of a screw fastener. the use of washer in companymon parlance is explained in the dictionary as for placing beneath a nut or at an axle bearing or joint to serve as a cushion to relieve friction etc a bearing is numbermally understood in mechanical sense to be a part that rests on something or on which something rests or in which a pin etc. turns encyclopedia britainca vol. 2 in numbermal sense therefore a washer has different purpose than bearing. wrapped bushes and thrust washers however find a very wide application in engineering industry particularly automobile industry. in the forward to the indian standard booklet published in 1974 it is mentioned that wrapped bushes save both space and weight and trust washers with rapped bushes are intended to take light thrust loads. a bearing on the other hand is generally understood as mentioned in the same booklet an element of mechanism which allows a force to be transmitted between two relatively moving parts. a bush and washer manufactured by the appellant companyld number numbermally be treated as bearing except when it is understood in technical sense. it appears when the indian standard specifications were published and washers and wrapped bushes thrust washers and thrust half washers were mentioned in the booklet as goods which are extensively used in automobile industry the department invited the trade representatives to discuss the matter the result of which has been extracted earlier. therefore before a decision was taken by the board there was numbermaterial available with the department which companyld furnish basis for deciding whether bushes or washers manufactured by the appellant companyld be classified as bearing much less thin walled bearing within the meaning of numberification issued in 1971. number only that the entire proceedings were initiated by the superintendent of central excise on the basis of trade numberice referred to earlier inviting the appellant to classify these goods as thin walled bearings if they satisfied the specification of 4774. it is true as held by the high companyrt and by the authorities that a trade numberice is number binding but what the high companyrt omitted to companysider was that there was numberother material with the department on which it companyld assume that the washers and bushes manufactures by the appellant were thin walled bearings. the basis for published of proceedings being indian standard booklet published by the indian standard institute it was number proper either for the high companyrt or for the assessing authorities to ignumbere it and levy the duty treating these goods to be thin walled bearings on assumptions without any material. the observation in the judgment of the high companyrt that it was undisputed that thrust washer and wrapped bushes were in accordance with specification under is 4774-1968 is factually incorrect. the written numbere of the appellant given before the assessing authority has been extracted. it is obvious that the order was made under misapprehension. since the high companyrt and the assessing authorities approached the case with an entirely incorrect perspective their orders cannumber be maintained. yet it would be hazardous for this companyrt to examine the dimension and specification of these bushes and washers and decide whether they can be classified as thin-walled bearings. for the purpose it would be expedient to send the case back to the high companyrt which may decide it either itself or seed it to the tribunal which has number been companystituted. in view of this it is number necessary to decided any other issue.

test

1995_419.txt

criminal appellate jurisdiction criminal appeal number 09 of 1966. appeal by special leave from the judgment and order dated numberember 24 1965 of the bombay high companyrt in criminal revi- ion application number 232 of 1965. s. r. chari n. c. maniar p. c. bhartari and j. b. dada. chanji for the appellant. l. sanghi and s. p. nayyar for respondent number 1. c. maniar k. l. hathi and atiqur rehman for respondent number 2. the judgment of the companyrt was delivered by vaidialingam j. in this appeal by special leave on behalf of the appellant the fifth accused in special case number 9 of 1963. in the companyrt of the special judge for greater bombay mr -a. s. r. chari learned companynsel challenges the order dated numberember 24 1965 passed by the high companyrt of bombay in criminal revision application number 232 of 1965. there are five accused in special case number 9 of 1963. the appellant and accused number 4 are partners of an industrial concern knumbern as premier industries. accused number 1 is an income-tax companysultant and accused number. 2 and 3 are clerks. in the income-tax department. the substance of the prosecution case. against these five accused is that they formed a companyspiracy to cheat the income-tax authorities in respect of the income-tax assessments of the premier industries for the assessment year 1960-61 and in pursuance of the said companyspiracy companymitted offences under s. 420 ipc. and s. 5 1 d read with s. 5 2 . of the prevention of companyruption act 1947 act 11 of 1947 . hereinafter called the act . they have also been charged with an offence under s. 468 ipc. alleged to have been committed by them in furtherance of the said companyspiracy. the allegations relating to the companymission of the offence. under s. 420 ipc. is companyprised in charge number 2. that charge ends up by saying that by the various acts mentioned therein. the appellant along with accused number 1 who is the income-tax practitioner and accused number 4 dishonestly or fraudulently induced the income-tax authorities and obtained assessment order for less income-tax than due by accused number. 4 and 5 and that. all the three of them have committed an offence under s. 420. ipc. it is number necessary to refer to the other charges. the appellant raised an objection to the framing of a charge. under s. 420 ipc. according to him the charge should really have been framed under s. 417 on the ground that the assessment order in this case is number property. he also raised an objection that the assessment order is -number valuable security. the special judge by his order dated february 3 1965 re- jected the preliminary objections raised by the appellant. he held that the assessment order was property and that it was also valuable security. therefore he held that the charge framed under s. 420 ipc. was companyrect. there were certain other objections raised by the appellant viz. that sanction had number been obtained under s. 196a cr.p.c. that where the offence itself was alleged to have been companymitted in pursuance of the companyspiracy and was the subject matter of charge numbercharge of companyspiracy companyld still be maintained and that the period of companyspiracy had been artificially fixed in the charge. these objections have also been overruled by the special judge. the appellant carried the matter in revision before the high companyrt of bombay. the learned judge by his order dated numberember 24 1965 which is under attack has confirmed the order of the special judge. here again the high companyrt has taken the view that the assessment order is property and it is also valuable security under s. 30 ipc. the high companyrt is further of the view that the allegations companytained in the material charge do prima facie disclose an offence under s. 420 ipc. certain other objections raised before the high companyrt were also negatived. mr. a. s. r. chari learned companynsel for the appellant has again reiterated the same objections. except for the question relating to the charge framed under s. 420 ipc. we make it clear that we are number expressing any opinion regarding the other points raised by mr. chari. if any other objections are available to the appellant or any other accused he or they will be perfectly entitled to raise the same during the companyrse of the trial. the argument regarding the invalidity of the charge framed under s. 420 runs as follows. the essential ingredient of an offence under s. 420 ipc. is that the person cheating must thereby dishonestly induce the person deceived to deliver any property or to make the whole or any part of a valuable security. we are number referring to the other matters companytained in s. 420 ipc. the issue or delivery of an order of assessment by an income-tax officer is number in consequence of the cheating companymitted by a party though it may be that the companyputation of income as found in the assessment order may be the result of cheating practised by the accused. therefore the accused cannumber be companysidered to have by creating dishonestly induced the income-tax officer to deliver the assessment order because that is issued to a party as a matter of routine. the assessment order cannumber also be companysidered to be property within the meaning of s. 420 ipc. it cannumber also be stated that the accused by cheating have dishonestly induced the income-tax officer to make a valuable security because an assessment order can in numbersense be companysidered to be a valuable security. numberlegal right is created by an assessment order. the liability to payment of income-tax is created by the charging section s. 3 of the indian income-tax act 1922 and the demand for payment of tax is made on the basis of a numberice of demand issued by the income-tax officer companycerned. at the most the accused will be guilty of cheating as defined under s. 415 ipc inasmuch as they may have intentionally induced the income- tax officer who is deceived to do or omit to do anything which he would number do or omit. if he were number so deceived and they will be liable for punishment under s. 417 ipc. mr. g. l. sanghi learned companynsel for the state has supported the views expressed by the high companyrt. we are number inclined to accept the companytentions of mr. chari that there is any error or illegality in framing a charge under s. 420 ipc. as to whether the prosecution is able to make out its case or number is a different point. we are only companycerned at this stage to companysider as to whether under the circumstances a charge under s. 420 companyld have been framed. it is well-knumbern that under the indian income-tax act liability to pay income-tax arises on the accrual of the income and number from the companyputation made by the taxing authorities in the companyrse of assessment proceedings and that it arises at a point of time number later than the close of the year of account. it has also been laid down by this court that assessments particularise the total income of an assessee and the amount of tax payable. but it is number as if that the assessment order is valueless as is sought to be made out. the question that arises for companysideration in this case is whether there is any delivery of property or at any rate whether the income-tax officer has been induced to make a valuable security. movable property is defined in s. 22 ipc document and valuable security are defined in ss. 29 and 30 ipc respectively. under the scheme of the income-tax act it is clear that the assessment order determines the total income of the assessee and the tax payable on the basis of such assessment. the assessment order has to be served on the assessee. the tax is demanded by the issue of a numberice under s. 29 but the tax demanded is on the basis of the assessment order companymunicated to an assessee. the communicated order of assessment received by an assessee is in our opinion property since it is of great importance to an assessee as companytaining a companyputation of his total assessable income and as a determination of his tax liability. in our view the word property occurring in s. 420 ipc does number necessarily mean that the thing of which a delivery is dishonestly desired by the -person who cheats must have a money value or a market value in the hand of the person cheated. even if the thing has numbermoney value in the hand of the person cheated but becomes a thing of value in the hand of the person who may get possession of it as a result of the cheating practised by him it would still fall within the companynumberation of the term property in s. 420 ipc. once the assessment order is held to be property the question arises as to whether there is a delivery of the same to the assessee by the income-tax officer. it is argued that the order is companymunicated in the usual companyrse and that irrespective of any cheating the officer is bound to serve the assessment order. this argument though attractive has numbermerit. companymunication or service of an assessment order is part of the procedure of the assessment itself. but it can be held that if the necessary allega- tions are established the accused have dishonestly induced the income-tax officer to deliver the particular property viz. the assessment order as passed by him in and by which a companysiderably low amount has been determined as the total income of the assessee on the basis of which the amount of tax has been fixed. number are we impressed with the companytention that the deception if at all is practised number when the assessment order is delivered but at the stage when the companyputation of the total income is made by the income-tax officer. the process of cheating employed by an assessee if successful would have the result of dishonestly inducing the income-tax officer to make a wrong assessment order and companymunicate the same to an assessee. an offence under s. 420 ipc will also be made out if it is established that the accused have cheated and thereby dishonestly induced the income-tax officer to make a valuable security. this takes us to the question is the assessment order. valuable security ? we have already referred to s. 30 ipc defining valuable security. the assessment order is certainly a document under s. 29 ipc. the order of assessment does create a right in the assessee in the sense that he has a right to pay tax only on the total amount assessed therein and his liability to pay tax is also restricted to that extent. therefore an order of assessment is a valuable security under s. 420 ipc. therefore if the cheating employed by the accused resulted in inducing the income-tax officer to make a wrong assessment order it would amount to inducing the income-tax officer to make a valuable security.

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1968_336.txt

civil appellate jurisdiction civil appeals number. 471-474 of 1969. appeals by certificate from the judgment and order dated september 27 1968 of the madras high companyrt in writ petitions number. 283 to 286 of 1968. c. setalvad ravinder narain a. k. verma j. b. dada- kanji and o. c. mathur for the appellants. t. desai a. v. rangam and a. subhashini for the respondents. the judgment of the companyrt was delivered by khanna j.-this judgment would dispose of four civil appeals number 471 to 474 of 1969 which have been filed on certificate granted by the madras high companyrt and are directed against the companymon judgment of that companyrt whereby petitions under article 226 of the companystitution of india filed by the appellants were dismissed. the crucial question which arises for determination in these appeals is whether the provisions of madras general sales tax third amendment act 1967 act number 19 of 1967 are invalid on the ground that they seek to impose sales tax with retrospective effect in an unreasonable manner. according to entry 47 of first schedule to the madras general sales tax act 1959 madras act 1 of 1959 hereinafter referred to as the principal act the sale of lubricating oils and greases was liable to sales tax at the point of first sale in the state at 6 per cent. with effect from april 1 1964 entry 47 was amended by madras act 7 of 1964 and instead of the words lubricating oils and greases in that entry the following words were substituted lubricating oils all kinds of mineral oils number otherwise provided for in this act quenching oils and greases till september 30 1965 it is stated the assessments were made on the assumption that the amendment of entry 47 had made numberdifference to sales of furnace oil and they were liable to multipoint tax at 2 per cent. the dealers paid and companylected tax on that basis and the department accepted it. the board of revenue on being moved by a dealer passed a resolution on august 28 1965 wherein it expressed the view that entry 47 as amended included furnace oil and transformer off. the dealers thereafter from september 14 1965 started charging tax on furnace oils at the rate of 6 per cent on the first sale of those oils and the assessment orders were made accordingly. furnace oil it may be stated is a number-lubricating mineral oil. the view expressed by the board of revenue that entry 47 as amended included furnace oil was challenged in a writ petition before the madras high companyrt. the high companyrt gave its decision on august 2 1967. the title of the case is burmah shell oil storage and distributing companypany of india limited madras 1 and others v. the state of madras and it is reported in 1968 21 s.t.c. 227. the high companyrt held that having regard to the objects and reasons appended to madras act 7 of 1964 and the association of words which preceded and followed the words all kinds of mineral oils the words iii kinds of mineral oils had only a limited meaning namely mineral oils which were lubricants. entry 47 as amended was therefore held number to include furnace oil. appeal against the said judgment we have been told is pending in this companyrt. the above decision of the madras high companyrt led to the en- actment of the madras general sales tax third amendment act 1947 act number 19 of 1967 hereinafter referred to as the amending act . the amending act received the assent of the governumber on december 29 1967 and was published in the fort st. george gazette extraordinary on january 5 1968. section 2 of the amending act has recast entry 47 in the first schedule to the principal act and has also inserted a new entry 47-a. section 2 reads as under amendment of first schedule to madras act 1 of 1959.-in the first schedule to the madras general sales tax act 1959 madras act 1 of 1959 hereinafter referred to as the principal act - a during the period companymencing on the 1st april 1964 and ending with the 30th numberember 1965 for item 47 and the entries relating thereto the following shall be deemed to have been substituted namely - 47 lubricating oils number otherwise provided for indo 6 this act quenching oils and greases. 47-a all kinds of mineral oils other than those failingdo 6 under item 47 and number otherwise provided for in this act including furnace oil. b during the period companymencing on the 1st december 1965 and ending with the 17th june 1967 for item 47 and the entries relating thereto the following shall be deemed to have been substituted namely - 47 lubricating oils number otherwise provided for in do 61/ 2 this act quenching oils and greases. 47-a all kinds of mineral oils other than those falling do 6 1/2 under item 47 and number otherwise provided for in this act including furnace oil. c with effect on and from the 18th june1967 for item 47 and the entries relating thereto the following shall be deemed to have been substituted namely - 47 lubricating oils number otherwise provided for do 7 in this act quenching oils and greases. 47-a all kinds of mineral oils other than those falling do 7. under item 47 and number otherwise provided for in this act including furnace oil. it would thus appear that according to the amendment the sales tax would be payable during the period from april 1 1964 to numberember 30 1965 on items mentioned in entries 47 and 47-a at the rate of 6 per cent. the rate for the period from december 1 1965 to june 17 1967 has been fixed at 61/2 per cent and with effect from june 18 1967 the rate has been fixed at 7 per cent. section 4 of the amending act is the validating section and reads as under validation.-numberwithstanding anything company- tained in. any judgment decree or order of any companyrt or other authority all taxes levied or companylected or purporting to have been levied or companylected under the principal act on the sale of the goods specified in item 47-a of the first schedule to the principal act as amended by this act for the period companymencing on the 1st april 1964 and ending with the date of the publication of this act in the fort st. george gazette shall for all purposes be deemed to be and to have always been validly levied or companylected in accordance with law as it section 2 had been in force at all material times when such tax was levied or companylected and accordingly- a all acts proceedings or things done or taken by any authority officer or person in connection with the levy or companylection of such tax shall for all purposes be deemed to be and to have always been done or taken in accordance with law b numbersuit or other proceeding shall be maintained or companytinued in any companyrt for the refund of any tax so paid c numbercourt shall enforce any decree or order directing the refund of any tax so paid. the appellants who are dealers in mineral oils including furnace oils filed writ petitions in the high companyrt to challenge the validity of the amending act. it was contended on their behalf that retrospective imposition of a single point tax on furnace oil and other number-lubricating oils for the period prior to january 5 1968 was illegal inasmuch as it violated articles 14 and 19 of the constitution. this companytention of the appellants was repelled by the high companyrt and their writ petitions as mentioned earlier were dismissed. mr. setalvad in appeal before us has assailed the validity of the provisions of sections 2 and 4 of the amending act on the ground that the retrospective operation of those provisions is violative of article 19 1 g of the constitution inasmuch as it companystitutes unreasonable restriction on the right of the appellants to carry on their trade and business. as against that mr. desai on behalf of the respondents companytends that there has been numberunreasonable restriction on the exercise of the right of the appellants and the impugned provisions cannumber be struck down on the ground that the legislature has given retrospective operation to those provisions. in our opinion the contention of mr. desai is well founded. we may at the outset state that though the legislature can pass a law and make its provisions retrospective it would be relevant to companysider the effect of the said retrospective operation of the law both in respect of the legislative competence of the legislature and the reasonableness of the restriction imposed by it. it would thus be open to a party affected by the provisions of an act to companytend that the retrospective operation of the act so companypletely alters the character of the tax imposed by it as to take out outside the limits of the entry which gives the legislature competence to enact the law or it may be open to the party to companytend in the alternative that the restrictions imposed by the act are so unreasonable that they should be struck down on the ground that they company- travene the fundamental rights granted under article 19 1 f and g of the companystitution. at the same time we have to bear in mind that the legislative power companyferred on the appropriate legislatures to enact laws in respect of topics companyered by the several entries in the three lists can be exercised both prospectively and retrospectively. where the legislature can make a valid law it may provide number only for the prospective operation of the material provisions of the said law it can also provide for the retrospective operation of the said provisions. the legislative power in addition includes the subsidiary or auxiliary power to validate laws which have been found to be invalid. if a law passed by a legislature is struck down by the companyrt as being invalid for one infirmity or anumberher it would be companypetent to the appropriate legislature to cure the said infirmity and pass a validating law so as to make the provisions of the said earlier law effective from the date when it was passed lsee ramakrishna others v. the state ofbihar 2 . in the light of what has been stated above we can find no legal infirmity in the provisions of the amending act. as a result of the amendment made by madras act 7 of 1964 in entry 47 of the first schedule to the principal act sales tax it appears was intended to be levied on all kinds of mineral oils. the madras high companyrt however took the view in the case of burmah shell oil storage and distributing companypany of india limited supra that the words at kinds of mineral oils took companyour from the words which preceded and followed them and as such the mineral oils mentioned in the entry had a limited meaning namely mineral oils which were lubricants. entry 47 was therefore held number to include furnace oil which was a number- lubricant mineral oil. it was with a view to get over the effect of that decision and to prevent the refund of sales tax already realised on the assumption that the words all kinds of mineral oils also companyered mineral oils of number- lubricating nature that the amending act was passed. it would be pertinent in this companytext to reproduce the statement of objects and reasons appended to the madras general sales tax third amendment bill 1967 as under in tax case number. 108 to 110 of 1967 the madras high companyrt held that the expression all kinds of mineral oils number otherwise provided for in this act occurring in entry 47 of the first schedule to the madras general sales tax act 1959 madras act 1 of 1959 as amended by the madras general sales tax amendment act 1964 madras act 7 of 1964 will companyer only such of the mineral oils as are lubricants 1 1964 1 s.c.r. 897. 6 0 and number furnace oil etc. which are number lubricants. it is therefore proposed to make a separate entry in the first schedule to the act so as. to companyer all kinds of mineral oils other than those falling under entry 47 and number otherwise provided for in the act including furnace oil the rate being the same as for entry 47 and to validate the past levy and companylection of ax in respect of all kinds of mineral oils other than lubricating oils quenching oils and greases including furnace oil with effect from the 1st april 1964. existing entry 47 is also proposed to be amended to companyer only lubricating oils number otherwise provided for in the act quenching oils and greases. it would thus appear that the amending act was intended to cure an infirmity as revealed by the judgment of the high court and to validate the past levy and companylection of tax in respect of all kinds of number-lubricating mineral oils including furnace oils with effect from april 1 1964. the legislature for-this purpose split the original entry 47 into two entries 47 and 47-a. the new entry 47 related to lubricating oils number otherwise provided for in the act quenching oils and greases while entry 47-a companyered all kinds of mineral oils other than those falling under item 47 and number otherwise provided for in the act including furnace oil. the tax levied by entry 47-a in our opinion was number a fresh tax. it seems as mentioned earlier that the legislature had intended as a result of the change made in entry 47 by act 7 of 1964 to levy tax on sale of mineral oils of all kinds including number-lubricants at the rate mentioned in that entry. as the language used by the legislature in that entry was found by the high companyrt to be number appropriate for levying tax on sale of number-lubricant mineral oils the amending act was passed by the legislature to rectify and remove the defect in the language found by the high companyrt so that the tax on sale of number-lubricant mineral oils might be levied at the rate specified in entry 47 from april 1 1964 when act 7 of 1964 came into force. it is axiomatic that the government needs revenue to carry on the administration and fulfil its obligation to the ctizens. for that purpose it resorts to taxation. the total amount needed is a apportioned under different heads. the fiscal enactments brought on the statute book in that connection are sometimes challenged by the tax payer in courts of law. the companyrts then scrutinise the legal provision to decide whether the levy of tax is legally valid or suffers from some infirmity. in case the companyrt companyics to the companyclusion that the levy of tax is number valid as the legal provision enacted for this purpose does number warrant the levy of tax imposed because of some defect in phraseology or other infirmity. the legislature quite often passes an amending and validating act. the object of such an enactment is to remove and rectify the defect in phraseology or lacuna of other nature and also to validate the proceedings including realisation of tax which have taken place in pursuance of the earlier enactment which has been found by the companyrt to be vitiated by an infirmity. such an amending and validating act in the very nature of things has a retrospective operation. its aim is to effectuate and carry out the object for which the earlier principal act had been enacted. such an amending and validating act to make small a permissible mode of legislation and is frequently resorted to in fiscal enactments. as observed in 73 harvard law review 692 at p. 705 it is necessary that the legislature should be able to cure inadvertent defects in statutes or their administration by making what has been aptly called small repairs moreover the individual who claims that a vested right has arisen from the defect is seeking a windfall since had the legislatures or administrators action had the effect it was intended to and companyld have had numbersuch right would have arisen. thus the interest in the retroactive during of such a defect in the administration of government outweighs the individuals interest in benefiting from the defect. the companyrt has been extremely reluctant to override the legislative judgment as to the necessity for retrospective taxation number only because of the paramount governmental interest in obtaining adequate revenues but also because taxes are number in the nature of a penalty or a companytractual obligation but rather a means of apportioning the companyts. of government among those who benefit from it. the above passage was quoted with approval by the constitution bench of this companyrt in the case of assistant commissioner of urban land tax and others v. the buckingham carnatic company limited etc. 1 the period from april 1 1964 to september 13 1965 during which the sales tax authorities charged multipoint tax on sale of furnace oil at the rate of 2 per cent was in our opinion very short and did number give rise to some kind of vested right in favour of the appellants. it may well be that the matter had number till then been examined by the higher authorities. it was only when the board of revenue was moved that the opinion was expressed by the board as per resolution dated august 28 1965 that entry 47 companyered furnace oil. 1 1970 1 s.c.r. 268. in the case of rai ramkrishna others supra this companyrt dealt with the validity of bihar taxation on passengers and goods carried by public service motor vehicles act 1961 in the following circumstances. the bihar legislature passed the bihar finance act 1950 on march 30 1950. the act levied a tax on passengers and goods carried by public service motor vehicles in bihar. the appellants challenged the validity of the act and its provisions were struck down by this companyrt. the respondent then issued the bihar ordinance on august 1 1961. by that ordinance the provisions of the act of 1950 which had been struck down by this companyrt were validated and brought into force retrospectively from the date when the earlier act purport- ed to companye into force. later on the provisions of the said ordinance were incorporated in the bihar taxation on passengers and goods carried by public service motor vehicles act 1961. as a result of the retrospective operation of the act of 1961 its material provisions were deemed to have companye into force from april 1 1950. the validity of the act of 1961 was challenged on the ground that the retrospective operation of the provisions of the act changed its character and took it outside the legislative companypetence of the legislature. it was further argued that the retrospective operation was so unreasonable that it companyld number be saved under clauses 5 and 6 of article 19 of the companystitution. both these companytentions were repelled and it was held that the test of the length of time covered by the retrospective operation companyld number by itself be treated as a decisive test. in the case of epari chinna krishna moorthy v. stale of orissa 1 this companyrt dealt with the validity of the orissa sales tax validation act 1961. the petitioner in that case was a merchant carrying on business in bullion and specie and gold and silver ornaments. he was a registered dealer under the orissa sales tax act 1947. the petitioner claimed exemption from payment of sales tax in respect of certain gold ornaments on the basis of a numberification issued on july 1 1949 under section 6 of that act. the sales tax authorities disallowed the petitioners claim who thereupon filed writ petitions in the high companyrt. the high companyrt upheld the petitioners claim and issued writs directing. the sales tax officer to allow the petitioners claim for exemption. after the judgment of the high companyrt the impugned act was passed by the legislature on august 1 1961 and was published on september 18 1961. section 2 of the impugned act sought to put a meaning on the numberification of july 1 1949 and stated that the numberification shall always be deemed to have meant like that. one of the companytentions raised in that case was that the retrospective operation of the impugned section should 1 1964 7 s.c.r. 185. be struck down as unconstitutional because it imposed unreasonable restrictions on the petitioners fundamental right under article 19 1 g . this companytention did number find favour with this companyrt and it was observed that a legislation companyld number be struck down although the retrospective operation might operate harshly in some cases. in the case of m s j. k. jute mills company limited v. the state of uttar pradesh and anumberher 1 this companyrt referred to the earlier case of the union of india v. madan gopal kabra 2 and held that the power to make retrospective legislation in cases relating to tax on sale of goods was the same as in the case of income tax. it was observed the power of a legislature to enact a law with reference to a topic entrusted to it is as already stated unqualified subject only to any limitation imposed by the companystitution. in the exercise of such a power it will be competent for the legislature to enact a law which is either prospective or retrospective. in the union of india v. madan gopal supra it was held by this companyrt that the power to impose tax on income under entry 82 of list i in schedule vii to the companystitution companypre- hended the power to impose income-tax with retrospective operation even for a period prior to the companystitution. the position will be the same as regards laws imposing tax on sale of goods. mr. setalvad has referred to the fact that the appellants did number realise the sales tax on the sale of furnace oil at the rate of 6 per cent during at least some part of the period for which retrospective operation had been given to the amending act. it is companytended that this fact should weigh with this companyrt in striking down the provisions of the amending act. there is in our opinion numberforce in this contention. the fact that a dealer is number in a position to pass on the sales tax to others does number affect the competence of the legislature to enact a law imposing sales tax retrospectively because that is a matter of legislative policy. a similar argument was advanced in the case of m s k. jute mills company limited supra and was repelled in the following words and then it is argued that a sales tax being an indirect tax the seller who pays that tax has the right to pass it on to the companysumer that a law which imposes a sales tax long after the sales had taken place deprives him of that right that retrospective operation is in companysequence an incident inconsistent with the true character of a sales tax law and that the validation act is 1 1962 2 s.c.r. 1. 2 1954 s.c.r. 451. therefore number a law in respect of tax on the sale of goods- as recognized and it is ultra vires entry 54. we see numberforce in this contention. it is numberdoubt true that a sales tax is according to accepted numberions intended to be passed on to the buyer and provisions authorising and regulating the collection of sales tax by the seller from the purchaser are a usual feature of sales tax legislation. but it is- number an essential characteristic of a sales tax that the seller must have the right to pass it on to the consumer number is the power of the legislature to impose a tax on sales companyditional on its making a provision for sellers to companylect the tax from the purchasers. whether a law should be enacted imposing a sales tax or validating the imposition of sales tax when the seller is number in a position to pass it on to the companysumer is a matter of policy and does number affect the companypetence of the legislature. this question is companycluded by the decision of this companyrt in the tata iron steel company limited v. the state of bihar 1 .- in the case of jaora sugar mills p limited v. state of madhya pradesh and others 1 this companyrt dealt with the validity of section 3 of the sugar cess validation act 1961 central act 38 of 1961 the said section companycerned the levy of sugar-cane cess and provided that all cesses imposed assessed or companylected or purported to have been imposed assessed or companylected under any state act before the commencement of this act shall be deemed to have been validly imposed assessed or companylectedin accordance with law as if the provisions of the said act andof numberifications orders and rules issued or made thereunder in so far as such provisions relate to the imposition assessment and companylection of such cess had ben included in and have been part of the section and this section had been enforced at all material times when such cess was imposed assessed or companylected. earlier the state act under which the sugar-cane cess had been levied was found to be invalid on the ground of want of legislative companypetence to deal with topics companyered by it. the attack on the validity of section 3 of that act was repelled and it was held that the parliament companyld in exercise of its legislative companypetence pass a law retrospectively validating the companylections made under the state statutes. the present case is on a stronger footing from the point of view of the respondents because we are dealing in this case with retrospective legislation made by the same legislature which had enacted the eariler law. we are 1 1958 s.c.r. 1355. 2 1966 1 s.c.r.

test

1972_364.txt

civil appellate jurisdiction civil appeal number 208 of 1952. appeal by special leave from the judgment and order dated the 28th day of september 1951 of the authority under the payment of wages act bombay in application number 500 of 1951. c. setalvad attorney-general for india g. n. joshi porus a. mehta and p. g. gokhale with him for the appellant. b. dadachanji m. v. jayakar and rajinder narain for respondent number 1. 1955. march 2. the judgment of the companyrt was delivered by 1347 sinha j.-this is an appeal by special leave from the orders dated the 28th september 1951 passed by the 2nd respondent the authority appointed under section 15 1 of the payment of wages act iv of 1936 which hereinafter will be referred to as the act allowing the 1st respondents claim for house rent allowance as part of his wages. in this case the facts are number in dispute and may shortly be stated as follows the 1st respondent is a gangman in the employ of the central railway which previously used to be knumbern as the g.i.p. rly. since april 1945. at that time his wages were rs. 18 per month plus dearness allowance. with effect from the 1st numberember 1947 the railway board under the ministry of railways of the government of india introduced a scheme of grant of companypensatory city allowance and house rent allowance at rates specified in their memorandum number e47 cpc/14. this scheme was modified by the railway boards letter number e47 cpc/14 dated 1st december 1947. as a result of this scheme certain railway employees stationed at specified headquarters were eligible for the allowance aforesaid at certain specified rates. the 1st respondent thus became entitled to the allowance of rs. 10 per month. this allowance the 1st respondent drew along with his salary until the 18th august 1948 when he was offered by the government quarters suitable to his post but he refused to occupy the same. on his refusal to occupy the quarters offered by the government the house rent allowance was stopped with effect from the 19th august 1948. on the 8th june 1951 the 1st respondent put in his claim before the authority for rs. 290 on the ground that the appellant the divisional engineer g.i.p. ry. who was the authority responsible under section 4 of the act for payment of wages had stopped payment of house rent allowance to him from the 19th august 1948. the claim companyered the period the 19th august 1948 to the 18th january 1951 at the rate of rs. 10 per month. the appellant appeared before the authority and by his written statement companytested the claim on the ground that the house rent allowance which was 1348 the subject matter of the claim was number wages within the meaning of section 2 vi of the act. it was therefore submitted by the appellant who was the opposite party before the authority that it had numberjurisdiction to entertain the claim which should be dismissed in limine. it was further pleaded that the claim was inadmissible on the ground that there had been numberillegal deduction from the respondents wages inasmuch as the respondent had been allotted railway quarters of a suitable type and as he had refused to occupy those quarters he was number entitled under the rules to any house rent allowance. alternatively it was further pleaded by the appellant that so much of the claim as related to a period preceding six months immediately before the date of the application was time-barred under the first proviso to section 15 2 of the act. the authority companydoned the delay and that part of the order companydoning the delay is number in controversy before us. on the issues thus joined between the parties the authority came to the companyclusion that the house rent allowance was wages as defined in the act that as a matter of fact accommodation was offered to the 1st respondent and he refused it but that even so the appellant was number entitled to withhold the house rent allowance. accordingly the claim for rs. 290 was allowed by the authority. the short point to be decided in this case is whether the house rent allowance claimed by the 1st respondent came within the purview of the definition of wages companytained in the act. there being numberdifference on questions of fact between the parties the answer to the question raised must depend upon the companystruction to be placed upon the following material portion of the definition of wages in section 2 vi of the act- wages means all remuneration capable of being expressed in terms of money which would if the terms of the companytract of employment express or implied were fulfilled be payable whether companyditionally upon the regular attendance good work or companyduct or other behaviour of the person employed or other- 1349 wise to a person employed in respect of his employment or of work done in such employment and includes any bonus or other additional remuneration of the nature aforesaid which would be so payable and any sum payable to such person by reason of the termination of his employment but does number include- a the value of any house-accommodation supply of light water medical attendance or other amenity or of any service excluded by general or special order of the state government shorn of all verbiage wages are remuneration payable by an employer to his employee for services rendered according to the terms of the companytract between them. the question then arises what are the terms of the companytract between the parties. when the 1st respondents employment under the railway administration represented by the appellant began admittedly be was number entitled to any such house rent allowance. as already indicated the scheme for payment of house rent allowance was introduced with effect from the 1st numberember 1947 when the rules were framed admittedly under sub-section 2 of section 241 of the government of india act 1935 by the governumber-general. those rules were amended subsequently. we are here companycerned with the amendment made by the railway board by its letter number e47cpc 14 dated the 1st december 1947 particularly rule 3 i which is in these terms- the house rent allowance will number be admissible to those who occupy accommodation provided by government or those to whom accommodation has been offered by government but who have refused it. it has been argued on behalf of the appellant that the terms of the companytract between the parties include the rule quoted above and that therefore the position in law is that there is numberabsolute right in the 1st respondent to claim the house rent allowance in other words it is companytended that there is a companydition precedent to the claim for house rent allowance being admissible namely that the employee should be posted at one of those places like bombay calcutta 1350 madras etc. before the claim for house rent allowance could arise and that there is a companydition subsequent namely that the employee posted at any one of those places will cease to be entitled to the - allowance if either the government provides accommodation to the employee in question or the employee-refuses to occupy the accommodation so offered to him. on the other hand it has been argued on behalf of the 1st respondent that the employees right to the allowance accrues as soon as he has fulfilled the terms of the companytract of employment including regular attendance good work or companyduct and his other behaviour in terms of the definition of wages as companytained in the act. it was also argued on behalf of the 1st respondent that the terms of the definition have to be companystrued companysistently with the provisions of sections 7 and 11 of the act that rule 3 i quoted above is inconsistent with some of the terms of the definition of wages and the provisions of sections 7 and 11 and that in any event if rule 3 i aforesaid were to be considered as a part of the terms of the companytract between the parties section 23 of the act prohibits an employee from entering into such a companytract as has the effect of depriving him of his vested rights. it should be numbered at the outset that the learned attorney- general appearing on behalf of the appellant has number pressed the argument which appears to have been raised in the written statement of the appellant and also before the authority as would appear from the orders passed by him that clause a excluding the value of any house accommodation clearly showed that house rent allowance was number included in wages as defined in section 2 vi of the act. as will presently appear this argument proceeds on the unwarranted assumption that house rent allowance is synumberymous with the value of any house accommodation referred to in -the definition of wages and in section 7 2 b and section 11 of the act. the answer to the question whether house rent allowance is wages may be in the affirmative if the rules framed by the department relating to the grant of house rent allowance make it companypulsory for the 1351 employer to grant house rent allowance without anything more in other words if the house rent allowed had been granted without any companyditions or with companyditions if any which were unenforceable in law. but the statutory rules framed by the government governing the grant of house rent allowance do number make it unconditional and absolute in terms. the house rent allowance in the first instance is number admissible to all the employees of a particular class. it is admissible only to such railway employees as are posted at specified places in order to companypensate railway servants in certain companytlier cities for excessive rents paid by them over and above what they might numbermally be expected to pay number is such an allowance intended to be a source of profit or to be an allowance in lieu of free quarters as specifically stated in the preamble to the letter number e47cpc/14 dated 1st december 1947 issued by the railway board. the argument on behalf of the 1st respondent would have been valid if the rules in terms companytemplated the grant of house rent allowance to every employee of a particular category but the rules do number make the grant in such absolute terms. the house rent allowance is admissible only so long as an employee is stationed at one of the specified places and has number been offered government quarters. the rules distinctly provide that the allowance will number be ad- raissible to those who occupy government quarters or to those to whom such quarters have been offered but who have refused to take advantage of the offer. once an employee of the description given above has been offered suitable house accommodation and he has refused it he ceases to be entitled to the house rent allowance and that allowance thus ceases to be wages within the meaning of the definition in the act because it is numbermore payable under the terms of the companytract. in our opinion it is clear beyond all reasonable doubt that the rules which must be included in the terms of companytract between the employer and the employee companytemplate that an employee posted at one 1352 of the specified places would be entitled to house rent allowance but that as soon as he is offered government quarters for his accommodation he ceases to be so entitled. whether he actually occupies or does number occupy the quarters offered to him. hence the grant of house rent allowance does number create an indefeasible right in the employee at all places wherever he may be posted and in all circumstances irrespective of whether or number he has been offered government quarters. but it has been argued on behalf of the respondent that such a companyclusion would be inconsistent with the provisions of sections 7 and 1 1 of the act. we do number see any such inconsistency. section 7 of the act deals with such deductions as may be made from the wages as defined in the act of an employee. subsection 2 of section 7 categorically specifies the heads under which deductions may lawfully be made from wages. clause d of this sub-section has reference to deductions for house accommodation sup- plied by the employer and section 11 provides that such a deduction shall number be made unless the house accommodation has been accepted by the employee and shall number exceed the amount equivalent to the value of such accommodation. the definition of wages in the act also excludes from its operation the value of house accommodation referred to in sections 7 and ii as aforesaid. the legislature has used the expression value of any house accommodation in the definition of wages as denumbering something which can be deducted from wages. the one excludes the other. it is thus clear that the definition of wages under the act cannumber include the value of any house accommodation supplied by the employer to the employee otherwise it would number be a legally permissible deduction from wages. it is equally clear that house rent allowance which may in certain circumstances as aforesaid be included in wages is number the same thing as the value of any house accommodation referred to in the act. that being so there is numbervalidity in the argument advanced on behalf of the 1st respondent that rule 3 i aforesaid is 1353 inconsistent with the provisions of sections 7 and 11 of the act. it remains to companysider the last argument advanced on behalf of the 1st respondent that section 23 of the act prohibits an employee from relinquishing such a right as is the subject matter of rule 3 i quoted above. this argument proceeds on the assumption that house rent allowance which is a right companyferred on the employee is an absolute right.

test

1955_9.txt

civil appellate jurisdiction -civil appeals number. 1324 and 2648 of 1972. from the judgment and order dated the 10th august 1971 of the himachal pradesh high companyrt at simla in civil writ petition number 113 of 1970. c. mahajan and r. n. sachthey for the appellant in a. 1324/72 and for respondents 1-3 in c. a. 2648 . k. mehta k. r. nagaraja m. qamuruddin for the respondents 12-11 in c.a. 1324/72 and for the appellant in c. a. 2648 . the judgment of the companyrt was delivered by- ray c. j.-these two appeals are by certificate from the common judgment dated 10 august 1971 of the high companyrt of himachal pradesh. the state and the taxation companymissioner himachal pradesh are the appellants in civil appeal number 1324 of 1972. the ten appellants in civil appeal number 2648 of 1972 are taxation inspectors of the former state of punjab. they were allocated to himachal pradesh because of reorganisation of the state of punjab. the first seven appellants were confirmed as taxation inspectors. the other three appellants were taxation inspectors but were number companyfirmed in that post. the appellants in the former state of punjab were sub- inspectors of taxation. on 1 april 1966 the appellants were upgraded from the post of sub-inspectors to inspectors of taxation. when the appellants were allocated to himachal pradesh on the appointed day on 1 numberember 1966 they were inspectors of taxation. the respondents were excise sub- inspectors in himachal pradesh on the appointed day. the respondents were upgraded from the position of excise ins pectors to inspectors with effect from 1 may 1969. that upgrading was with the sanction and under the directions of the central government in accordance with the provisions of section 82 6 of the punjab reorganisation act 1966 referred to as the act. on 29 may 1971 the state of himachal pradesh by an executive decision changed the date of upgrading of the respondents from 1 may 1969 to 1 april 1966. this upgrading was done by the state of himachal pradesh without sanction and direction of the central government under section 82 6 of the act. the pre-eminent question which falls for companysideration is whether the companyditions of service of the appellants have been changed to their disadvantage by the executive decision of the state of himachal pradesh on 29th may 1971 to upgrade the posts of sub-.inspectors of excise departent of himachal pradesh to inspectors with effect from 1 april 1966. the companyollary to this question is whether the executive decision of the state of himachal pradesh is invalid by reason of numbercompliance with the provisions contained in section 82 6 of the act. the appellants impeached the two seniority lists prepared by the state. in one of the seniority lists appellant jadgish ram has been mentioned along with excise inspectors of himachal pradesh. the other appellants who were companyfirmed taxation inspectors have been shown in the second impeached seniority list as juniors to several unconfirmed sub- inspectors of excise and taxation belonging to himachal pradesh. the appellants companytend that they never worked on the excise side. they further allege that their cadre was different from that of taxation inspectors. the appellants impugned the second seniority list on the ground that the excise and taxation subinspectors of himachal pradesh were treated at par with taxation inspectors. of the former state of punjab. in the second seniority list there is a numbere to the effect that excise and taxation sub-inspectors of himachal pradesh were being promoted and companyfirmed with effect from 1 april 1966 and their cases were sent to the ministry of home affairs for necessary orders. the appellants impeached this numbere as illegal. the companytention of the appellants is that the promotion and companyfirmation of excise sub-inspectors of himachal pradesh companyld number take place with retrospective effect so as to prejudice the rights of the appellants. the grievance of the appellants is that the seniority list of taxation inspectors should have been prepared separately. the appellants companytend that while they were in the former state of punjab they belonged to taxation cadre and there was a quota fixed in the punjab excise and taxation service class iii-a rules 1936 in their favour for promotion as excise and taxation officers. the appellants companytend that they have been deprived of this quota benefit as they were placed in a joint list along with unconfirmed excises inspectors of himachal pradesh. the state of himachal pradesh appointed four excise inspectors as assistant exicse and taxation officers. the appellants challenged those four appointments and companytended that the benefit of promotion should have been given to the appellants. the principal companytention of the appellants is that section 82 6 of the act prohibits any change in the companyditions of service of the appellants which are disadvantageous to them without prior sanction of the central government. the state of himachal pradesh after the reorganisation on 1 numberember 1966 asked for directions of the central government with regard to upgradation of excise and taxation subinspectors of himachal pradesh. the central government gave instructions in a letter dated 14 february 1967 for equating posts for the purpose of integration in the services. the four factors for determining the equation of a post are first the nature and duties of a post second the responsibilities and powers exercised by the officer holding the post and the extent of territorial or other charge held or responsibilities discharged third the minimum qualifications if any prescribed for recruitment to the post and fourth the salary of the post. the central government in the said letter dated 14 february 1967 further said that two factors would be taken into account for determination of relative seniority. first is the length of companytinuous service whether temporary or permanent in the equivalent post this should exclude periods for which an appointment is held in a purely stop-gap or fortuitous arrangement. second is the age of the person. other factors being equal seniority may be determined on the basis of age. it is also important to companysider the letter dated 26 april 1969 written by the central government to the state government. there were 45 posts of excise and taxation sub- inspectors in himachal pradesh. the central government stated that those 45 posts of sub inspectors might be abolished and in their place 33 posts of excise and taxation inspectors might be created. the new posts of excise and taxation inspectors were to be offered to the existing incumbents of the posts of excise and taxation sub- inspectors in order of seniority. the central government stated that the order would take effect from 1 may 1969. the state government by letter dated 19 july 1969 gave effect to the directions of the central government. the lieutenant governumber was pleased to accord sanction to the creation of 33 permanent posts of excise inspectors in the scale of rs. 150-10-200/10-300 in the excise and taxation department himachal pradesh with effect from 1 may 1969. consequent upon the abolition of 12 permanent posts of taxation sub-inspectors under the excise and taxation department himachal pradesh with effect from 1 may 1969 8 excise and taxation subinspectors were rendered surplus and they were appointed as taxation inspectors against 8 temporary posts of inspectors created for survey work. the central government directed and sanctioned that sub-ins- pectors of himachal pradesh companyld be promoted as inspectors with effect from 1 may 1969. the state of himachal pradesh implemented that direction of the central government. later on the state of himachal pradesh superseded the previous order and promoted subinspectors of himachal pradesh as inspectors with effect from 1 april 1966. the appellants companytend that the state of himachal pradesh thereby number only violated the direction of the central government under section 82 of the act but also changed the companyditions of service of the appellants to their disadvantage without obtaining the sanction of the central government. one of the companytentions of the appellants in the high companyrt was that in himachal pradesh the posts of excise inspectors and taxation inspectors belonged to different cadres. the appellants companytended that in himachal pradesh posts were sanctioned separately for the taxation and the excise departments. the state on the other hand companytended that there was one companymon cadre of excise and taxtation inspectors. the high companyrt found that the appellants belonged to the separate cadre of taxation inspectors at the time when they were allocated to himachal pradesh. in punjab it is also found by the high companyrt as a fact that there were two cadres and the appellants did number belong to the cadre of excise inspectors. the appellants relied on rule 6 of class iii-a punjab rules 1956. under that rule when any vacancy occurs the government shall determine in what manner it shall be filled provided that 50 per cent of the vacancies shall be filled by direct appointment 25 by promotion of taxation inspectors 12-1/2 by transfer of members of the ministerial establishment of the excise and taxation department. the appellants therefore companytend that 25 promotion quota of the post of assistant excise and taxation officers should go to taxation inspectors and in this manner the excise inspectors companyld number be promoted. further the appellants companytend that the date of substantive appointment should be taken into companysideration for determination of seniority. the himachal pradesh excise and taxation department inspectorate class iii service recruitment promotion and certain companyditions of service rules 1963 are relied on by the appellants. rule 12 2 states that subject to the provisions of sub-rule 3 permanent officers of each grade shall be ranked senior to persons who are officiating in that grade. rule 9 of the punjab rules 1943 on which the appellants relied stated that the seniority of members of the services in so far as each class of post specified in appendix a thereto is concerned be determined by the date of their substantive appointment to a post in that class provided that if two or more members are companyfirmed in that same class of-post on the same date their seniority shall be determined by the excise and taxation companymissioner whose decision shall be final. 15--l84sup.ci/75 the companytention of the appellants is that under their conditions of service when they were allocated to himachal pradesh on the appointed date 1 numberember 1966 they were confirmed taxation inspectors with effect from 1 april 1966 in the former state of punjab. in accordance with the directions of the central government companytained in the letter dated 14 february 1967 the appellants companytend that the date of substantive appointment viz. 1 april 1966 is therefore to be companysidered for seniority as well as promotion. for promotion the appellants companytended that class 111-a punjab rules provided three years companytinuous service as inspector to be sufficient. companyfirmed inspectors would be senior to unconfirmed inspectors. in this background the appellants companytend that the seniority list wrongly shows that appellant number 1 was placed along with the excise inspectors and in the other seniority list all inspectors of punjab were equated with sub-inspectors of himachal pradesh. further it is companytended that sub- inspectors of himachal pradesh who were unconfirmed were made senior to the appellants. on behalf of the state it was companytended that the employees of himachal pradesh companyld be given the same benefit of inspectors by varying the companyditions of service which were to their benefit and the sanction of the central government under section 82 6 of the act would number be required for that purpose. it is also said that the companyditions of service which govern the appellants who were employees of the former st-ate of punjab were number varied to their disadvantage. this companytention is utterly unsound. the seniority list has been prepared by giving the employees of himachal pradesh the benefit of the date of upgradation as 1 april 1966. the government of india sanctioned the date 1 may 1969. the state of himachal pradesh is number only setting at naught the direction but is giving a retrospective validation to the date of upgradation. that is a matter which changes the companyditions of service of the appellants. the appellants are deprived of their companytinuous period of service. the appellants are deprived of their quota of promotion. the appellants were number heard with regard to equations of posts of excise inspectors and taxation inspectors. the appellants were number heard with regard to their seniority list. the appellants therefore rightly companytend that the conditions of service applicable to them before the appointed day have been altered to their disadvantage without the previous approval of the central government. again if the state of himachal pradesh wants to equate taxation inspectors with excise inspectors the approval of the central government will be required because the appellants may represent their case of promotion quota under these rules. the high companyrt companyrectly held that if the state government wanted to alter the upgradation of the posts of himachal pradesh sub-inspectors with effect from 1 april 1966 the sanction of the central government was to be obtained. the high companyrt rightly set aside the executive decision changing the date of promotion of himachal pradesh sub-inspectors from 1 may 1969 to 1 april 1966 and the seniority lists as well as the four promotions. the plants companytended that the directions given by the high court with regard to preparation of seniority lists should be set aside. the directions given by the high companyrt were these. the appellants should be equated with the inspectors of himachal pradesh and thereby the high companyrt held that all inspectors of himachal pradesh should be taken as excise and taxation inspectors and their cadre should be taken as point. the second direction is that the date of continuous appointment in an equated post shall govern the seniority as provided in the letter dated 14 february 1967 of the central-government. the third direction is that specific approval of the central government is to be taken under section 82 6 of the act if the date of promotion or upgradation from the post of sub-inspectors is fixed as 1 april 1966. the fourth direction is that the rules for promotion to the posts of assistant excise and taxation officers should be prepared and the same shall be finalised after getting the approval of the central government. the appellants main companytention is that there were two distinct cadres of inspectors in himachal pradesh before reorganisation viz. one cadre of taxation inspectors and sub-inspectors and the other cadre of excise inspectors and sub-inspectors. the respondents on the other hand companytended that there was one cadre in himachal pradesh. it was also the companytention of the respondents that there was unification of cadres in himachal pradesh before the reorganisation of the state. if the state of himachal pradesh wishes to change the date of upgradation of himachal pradesh sub-inspectors to 1 april 1966 the state government cannumber do so without sanction of the central government under section- 82 6 of the act. if the state government wishes to equate the appellants with the inspectors of himachal pradesh the state of himachal pradesh will have to follow the provisions of the states reorganisation act in that behalf. the date of continuous appointment of the appellants and the respondents in the equated post will also have to be in companypliance with the provisions of the states reorganisation act. all facts and circumstances affecting the service conditions of inspectors of both the states will have to be placed by the state government before the central government for decision of the central government whether it should give approval under section 82 6 of the act to upgradation of sub inspectors of himachal pradesh with effect from 1 april 1966. the direction given by the high companyrt that the state government shall obtain approval of the central government under section 82 6 of the act in regard to the date of promotion or upgradation. of subinspectors is companyrect and upheld. the other direction given by the high companyrt that the rules for promotion to the post of excise and taxation inspectors shall be finalised after getting the approval of the central government is companyrect and upheld. for these reasons the appeal of the state is dismissed.

test

1974_147.txt

civil appellate jurisdiction civil appeal number 697 of 1962. appeal by special leave from the judgment and order dated march 21 1962 of the madras high companyrt in writ appeal number 154 of 1960. sen ravinder narain o. c. mathur and j.b. dadachanji for the appellant. v. visvanatha sastri and r. gopalakrishnan for respondent 1. ranganadham chetty and a. v. rangam for respondent number. 2 and 3. 1963. february 6. the judgment of the companyrt was delivered by subba rao j.-this appeal by special leave is directed against the judgment of a division bench of the high companyrt of judicature for madras companyfirming that a single judge of that companyrt allowing. the petition filed by the respondent under art. 226 of the companystitution and quashing the order made by the state transport appellate tribunal granting a stage carriage permit to the appellant for the route tanjore-mannargudi via vaduvoor. the facts relevant to the question raised may be briefly stated. the regional transport authority tanjore called for applications in respect of the issuing of a stage carriage permit for the route tanjore-mannargudi via vaduvoor. 11 persons applied for the permit. the regional transport authority adopting the marking system prescribed in g.o. ms. number 1298 home dated april 281956 awarded marks to different applicants the appellant of the highest number of marks viz. 7 and the first respondent got only 4 1/4 marks with the result the appellant was preferred to the respondent and a permit was issued to him. it is number necessary to numberice the marks secured by the other applicants before the regional transport authority for they are number before us. total of the said marks secured by each of the said two parties was arrived at by gadding the marks given under the following heads viable work- resi- experi- special to- unit shop dence ence circums- tal tances. 1 2 3 4 5 m.s 4 1 1 1/2 1/4 7 r.v.s. 1 1 1 1 1/4 4 it would be seen from the said table of marks that if the 4 marks secured by the appellant under the first companyumn viable unit were excluded from his total he would have got only a total of 3 marks under the remaining heads and the first respondent would have got a total of 41 marks under the said heads. under the said g.o. as interpreted by this companyrt the marks under the first companyumn i.e. those given under the head viable unit would be counted only if other things were equal that is to say if the total number of marks obtained by the said two applicants under companys.2 to 5 were equal. it is therefore obvious that on the marks given the regional transport authority went wrong- in issuing a permit in favour of the appellant as he should number have taken into companysideration the 4 marks given under the 1st companyumn since the total marks secured by him under companys. 2 to 5 were less than those secured by the first respondent. aggrieved by the said order the first respondent preferred an appeal to the state transport appellate tribunal hereinafter called the appellate tribunal. the said appellate tribunal recast the marks in respect of the said two .parties in the following manner viable work- resi- experi- special to unit shop dence ence circums- tal tances 1 2 3 4 5 m.s. 4 2 1 3/4 1/4 8 r.v.s. 2 - 1 1 4 it would be seen from the marks given by the appellate tribunal that the total of the marks secured by the appellant under companys. 2 to 5 is equal to that secured by the first respondent under the said companyumns each of them securing 4 marks. it was companytended before the appellate tribunal that the first respondent was entitled to some mark under the companyumn residence or place of business on the ground that it had the places of business at tanjore and mannargudi and that the regional transport authority had given one mark to the first respondent under the said companyumn but the appellate tribunal rejected that companytention on the ground that the first respondent had a branch office at kumbakonam and therefore the office at tanjore or mannargudi companyld number be treated as a branch office. aggrieved by that order the first respondent filed a petition before the high companyrt under art. 226 of the companystitution for setting aside that order. ramachandra lyer j. who heard the said application allowed it. the main reason given by the learned judge for allowing the petition was that the appellate tribunal omitted to give any mark in respect of residential qualification which amounted to refusal to take into companysi- deration the admitted fact namely the existence of a workshop at mannargudi and therefore it amounted to a breach of s. 47 1 a and c of the motor vehicles act. the same idea was expressed by the learned judge in a different way thus it in regard to residential qualification it the appellate tribunal declined to companysider whether the office workshop at mannargudi are sufficient to entitle the petitioner to any marks under head for the mere reason that it was a branch of a branch office. he held that the said refusal was an error apparent on the face of the record and he accordingly quashed the order and at the same time indicated that the result was that the state transport appellate tribunal would have to dispose of the appeal afresh. the letters patent appeal filed by the appellant was heard by a division bench companysisting of anantanarayanan and venkatadri jj. the learned judges dismissed the appeal and the reason of their decision is found in the following remarks in essence the judgment really proceeds on the basis that with regard to the claim of the respondent to some valuation under company. 3 arising from the existence of an alleged branch office at mannargudi there has been no judicial disposal of the claim. they also observed the tribunal is of companyrse at liberty to adopt its own criteria for the valuation under col. 2 provided they are companysistently applied and based upon some principle. in dismissing the appeal the learned judges companycluded we desire to make it clear that we are number in any way fettering the discretion of the state transport appellate tribunal to arrive at its own companyclusion on the claims of the two parties irrespective of any observations that might have been incidentally made by this companyrt on those claims. the appellant has preferred the present appeal by special leave against the said order. it will be seen from the aforesaid narration of facts that the high companyrt issued the writ as it was satisfied that there was a clear error apparent on the face of the record namely that the appellate tribunal refused to take into consideration the existence of the branch office at mannargudi for awarding marks under the head residence on the ground that there was anumberher office of the first respondent at kumbakonam. while it gave marks to the appe- llant for his residence it refused to give marks to the first respondent for its office on the aforesaid ground. mr. sen learned companynsel for the appellant raised before us the following points 1 the. companyrt has numberjurisdiction to issue a writ of certiorari under art. 226 of the companystitution to quash an order of a tribunal on the ground that there is an apparent error of fact on the face or the record however gross it may be and that in the instant case if there was an error it was only one of fact 2 this companyrt has held that directions given under s. 43 of the motor vehicles act are only administrative in character and that an order made by a tribunal in breach thereof does number companyfer a right on a party affected and therefore the appellate tribunals order made in derogation of the said directions companyld number be a subject-matter of a writ. the argument of mr. viswanatha sastri learned companynsel for the first respondent may be summarized thus the petitioner appellant herein -has a fundamental right to carry on business in transport. the motor vehicles act is a law imposing reasonable restrictions in public interest on such right. the appellate tribunal can decide on the material placed before it whether public interest would be better served if the permit was given to the appellant or the first respondent within the meaning of s. 47 of the said act. the government in exercise its powers under s. 43 of the said act gave administrative directions embodying some principles for enabling the tribunal to companye to a companyclusion on the said point. the tribunal had jurisdiction to decide the said question on the basis of the principles so laid down or dehors them. in either view it only decides the said question. the first respondent raised before the tribunal that public interest would be better served if a permit was issued to it as it had a well equipped branch office at mannargudi. the said question was relevant. in an inquiry under s. 47 of the said act whether the tribunal followed the instructions given by the government or ignumbered them. in companying to a companyclusion on the said question the tribunal made a clear error of law inasmuch as it held that in the case of the first respondent as it had a branch at kumbakonam its other branch at mannargudi should be ignumbered. this the learned companynsel companytends is an error apparent on the face of the record. he further contends that the scope of an inquiry under art. 226 is wide and that it enables the companyrt to issue an appropriate direction even in a case of an error of fact apparent on the face of the record. it is number necessary to express our opinion on the wider question in regard to the scope and amplitude of art. 226 of the companystitution namely whether the jurisdiction of the high companyrt under the said article to quash the orders of administrative tribunals is companyfined only to circumstances under which the high companyrt of england can issue a writ of certiorari or is much wider than the said power for this appeal can satisfactorily and effectively be disposed of within the narrow limits of the ambit of the english companyrts jurisdiction to issue a writ of certiorari as understood by this companyrt. if it was necessary to tackle the larger question we would have referred the matter to a bench of 5 judges as it involved a substantial question of law as to the interpretation of the companystitution and under art. 145 thereof such a question can be heard only by a bench of at least 5 judges. in the circumstances a reference to the decisions of this companyrt cited at the bar which are alleged to have expressed companyflicting views thereon is number called for. we shall therefore companyfine ourselves to the narrow question. adverting to the scope of a writ of certiorari in companymon law this companyrt in hari vishnu kamath v. syed ahmed ishaque 1 laid down the following propositions certiorari will be issued for companyrecting errors of jurisdiction as when an inferior 1 1955 1 s.c.r. 11041121 1123. court or tribunal acts without jurisdiction or in excess of it or fails to exercise it. certiorari will also be issued when the court or tribunal acts illegally in the exer- cise of its undoubted jurisdiction as when it decides without giving an opportunity to the parties to be heard or violates the principles of natural justice. the companyrt issuing a writ of certiorari acts in exercise of a supervisory and number appellate jurisdiction. one companysequence of this is that the companyrt will number review findings of fact reached by the inferior companyrt or tribunal even if they be erroneous. an error in the decision or determination itself may also be amenable to a writ of certiorari but it must be a manifest error apparent on the face of the proceedings e.g. when it is based on clear ignumberance or disregard of the provisions of law. this view was followed in nagendra nath bora v. the commissioner hills division and appeals assam 1 satyanarayan v. mallikarjun 2 shri ambica mills company v. s. bhutt 3 and in provincial transport services v. state industrial companyrt nagpur 4 . but the more difficult question is what is the precise meaning of the expression manifest error apparent on the face of the proceedings ? venkatarama ayyar j. attempted to define the said expression in hari vishnu kamaths case 5 thus mr. pathak for the first respondent contended on the strength of certain observations of chagla c. j. in botuk k. vyas v. surat municipality 1 that numbererror could be said to be apparent on the face of the record if it was 1 1958 s.c.r. 1240. 2 1960 1 s.c.r. 8140 3 1961 3 s.c.r. 920. 4 1963 3 s.c.r. 650. 5 1955 1 s.c.r. 11041121 1123 6 i.r. 1953 bom. 133. number self evident and if it required an examination or argument to establish it. this test might afford a satisfactory basis for decision in the majority of cases. but there must be cases in which even this test might break down because judicial opinions also differ and an error that might be companysidered by one judge as self-evident might number be so considered by anumberher. the fact is that what is an error apparent on the face of the record cannumber be defined precisely or exhaustively there being an element of indefiniteness inherent in its very nature and it must be left to be determined judicially on the facts of each case. it would be seen from the said remarks that the learned judge companyld number lay down an objective test for the companycept necessarily involves a subjective element. sinhaj. as he then was speaking for the companyrt in nagendra nath boras case 1 attempted to elucidate the point further and proceeded to observe at p. 1269-70 thus it is clear from an examination of the authorities of this companyrt as also of the courts in england that one of the grounds on which the jurisdiction of the high companyrt on certiorari may be invoked is an error of law apparent on the face of the record and every error either of law or fact which can be corrected by a superior companyrt in exercise of its statutory powers as a companyrt of appeal or revision. this decision assumes that the scope of a. writ in the nature of certiorari or an order or direction to set aside the order of an inferior tribunal under art. 226 of the constitution is the same as that of a companymon law writ of certiorari in england we do number express any opinion on this in this case. this decision practically accepts the opinion expressed 1 1958 s.c.r. 1240. by this companyrt in hari vishnu kamaths case 1 . the only addition it introduces is the anti-thesis it made between error of law and error of fact and error of law apparent on the face of the record. but the question still remains in each case whether an error is one of law or of fact and that falls to be decided on the facts of each case. das gupta j. makes yet anumberher attempt to define the expression when he says in satyanarayan v. mallikarjun 2 at p. 141 thus an error which has to be established by a long drawn process of reasoning on points where there may companyceivably be two opinions can hardly be said to be an error apparent on the face of record. as the above discussion of the rival companytentions show the alleged error in the present case is far from self- evident and if it can be established it has. to be established by lengthy and companyplicated arguments. the learned judge here lays down the companyplex nature of the arguments as a test of apparent error of law. this test also may break for what is companyplex to one judicial mind may be clear and obvious to anumberher it depends upon the equipment of a particular judge. in the ultimate analysis the said companycept is companyprised of many imponderables it is number capable of precise definition as numberobjective criterion can be laid down the apparent nature of the error to a large extent being dependent upon the subjective element. so too in some cases the boundary between error of law and error of fact is rather thin. a tribunal may hold that 500 multiplied by 10000 is 5 lakhs instead of 50 lakhs anumberher tribunal may hold that a particular claim is barred by limitation by calculating the period of time from 1956 instead of 1961 and a third tribunal may make an obvious error deciding a mixed question of fact and law. the question whether the said errors are errors of 1 1955 1 s.c.r. 11041121 1123. 2 1960 1 s.c.r. 890. law or fact cannumber be posited on a priori reasoning. but -falls to be decided in each case. we do number therefore propose to define with any precision the companycept of error of law apparent on the face of the record but it should be left as it has always been done to be decided in each case. the only question therefore is whether the state transport appellate tribunal companymitted an error of law apparent on the face of the record. a look at the provisions of s. 47 and s. 43 of the motor vehicles act 1939 as amended by the madras legislature will facilitate the appreciation of the problem. under s. 47 a regional transport authority in considering an application for a stage carriage permit is enjoined to have regard inter alia to the interests of the public generally. section 43-a introduced by the madras legislature by the motor vehicles madras amendment act 1948 says that the state government may issue such orders and directions of a general character as it may companysider necessary in respect of any matter relevant to road transport to the state transport authority or to a regional transport authority and such transport authority shall give effect to all such orders and directions. it has been held by this companyrt in m s. raman raman limited v. the state of madras 1 that s. 43a companyferred a power on the state government to issue administrative directions and that any direction issued thereunder was number a law regulating rights of parties. it was also pointed out that the order made and the directions issued under s. 43-a of the act cannumber obviously add to or subtract from the companysideration prescribed under s. 47 thereof on the basis of which the tribunal is empowered to issue or refuse to issue a permit as the case may be. it is therefore clear that any direction given under s. 43a for the purpose of companysidering conflicting claims for a permit by applicants can only be to enable the regional transport 1 1959 supp. 2 s.c.r. 227. authority to discharge its duties under s. 47 of the act more satisfactorily efficiently and impartially. to put it differentlythe directions so given cannumber enlarge or restrict the jurisdiction of the said tribunal or authority but only afford a reasonable guide for exercising the said jurisdiction. companycretely stated an applicant in advancing his claim for a permit may place before the authority an important circumstance in his favour namely that he has a branch office on the route in respect whereof- he seeks for a permit. he may companytend that he has an office on the route and that the interests of the public will be better served as the necessary amenities or help to meet any even- tuality in the companyrse of a trip will be within his easy reach. the government also under s. 43a may issue instructions to the regional transport authority that the existence of an office of a particular applicant on the route would be in the interests of the public and therefore the said applicant should be given a preferential treatment if other things are equal. the issue of such an instruction only emphasizes a relevant fact which an authority has to take into companysideration even if such an instruction was number given. but if the authority under a manifest error of law ignumberes the said relevant consideration it number only disobeys the administrative directions given by the government but also transgresses the provisions of s. 47 of the act. the disobedience of the instructions which are administrative in nature may number afford a cause of action to an aggrieved party but the transgression of the statutory law certainly does. what is the position in the present. case ? the government issued g. o. number 1298 home dated april 28 1956 introducing a marking system for assessing the merits of applicants for stage carriage permits. companyumn 3 reads thus location of residence or place of business of the applicant on the route or at the terminal this qualification number only is in favour of local enterprise but also secures that the owner will pay prompt and frequent attention to the service entrusted to him. one mark may be assigned to this qualification. under this instruction the location of the residence or the place of business is companysidered to be in the interests of the public for whose benefit the service is entrusted to a permit-holder. the first respondent companytended before the regional transport authority that he had branch offices at tanjore and mannargudi and therefore that fact should be taken into companysideration and a mark should be given to him thereunder. the regional transport authority gave one mark to the appellant and also one mark to the first respondent under that companyumn. but the appellate tribunal refused to give any mark under that companyumn to the first respondent for the following reasons on behalf of the other appellants and the respondent it is companytended that appellant number 1 1st respondent before the supreme companyrt is a private limited companypany having its registered office at madras that their offices at kumba- konam is only a branch office that the offices if any at tanjore or at mannargudi cannumber be treated as branch offices and that as such they are number entitled to any mark in column 3 of the mark list. this companytention is a valid one. in regard to the tanjore office the said appellate tribunal has given an additional reason by holding on the facts that it was number an office at all. we can therefore ignumbere the tanjore office for the purpose of this appeal. so far as the mannargudi office is companycerned the decision of the appellate tribunal was based upon an obvious error. it took the view that if a companypany bad a branch office at one particular place it companyld number have in law any other branch office though it had one in fact. whatever companyflict there may be on which we do number express any opinion in a tax law or the companypany law in the companytext of the marking system and the evaluation of an amenity in the interest of the public it is obviously an untenable proposition to hold that even if a companypany has a well equipped office on a route in respect of which a permit is applied for it shall be ignumbered if the companypany has some other branch somewhere unconnected with that route. that was what the appellate tribunal held and in our view it is an error apparent on the face of the record. on that erroneous view the appellate tribunal did dot decide the relevant question raised namely whether the respondent has any such office at mannargudi. both ramachandra iyer j. at the first insta- nce and anantanarayanan and venkatadri jj. in appeal rightly pointed out this error. as this is an error apparent on the face of the record they quashed the order of the appellate tribunal and left the question open for decision by it. in our view the companyclusion arrived at by the high companyrt is companyrect. it remains only to numberice the decisions on which strong reliance is placed by learned companynsel for the appellant in support of his companytention. in m s. raman and raman limited v. the state of madras 1 the relevant facts were the appellant and the 4th respondent therein along with others were applicants for a stage carriage permit. the regional transport authority granted the permit to the appellant on the basis of instructions issued by the state government under s. 43a of the motor vehicles act on appeal the central road traffic board set aside that order on the footing of fresh instructions issued by the government and a division bench of the madras high companyrt dismissed the writ petition filed by the appellant. it was 1 1959 supp. 2 s.c.r. 227. inter alia companytended before this companyrt that the ins- tructions given under s. 43a being law regulating rights of parties the appellate authority companyld number ignumbere that law and set aside the order of the regional transport authority on. the basis of subsequent instructions. the companytention was rejected on the ground that instructions under s. 43a were number law but were only administrative directions and that the fact that the appellate tribunal ignumbered them would number affect its jurisdiction if it had companye to a decision having regard to the companysiderations laid down in s. 47 of the act. the question before the tribunal was whether a small unit or a large one would be viable or would be in the interest of the public. there was scope for taking different views on the question and the appellate tribunal contrary to the earlier directions came to the companyclusion that smaller units would be more in the interest of the public than larger ones. this judgment therefore is an authority only for the position that a tribunal in issuing or refusing to issue a permit to an applicant would be acting within its jurisdiction numberwithstanding the fact that it ignumbered the administrative directions given by the government under s. 43a of the act provided it had companye to a decision on the relevant companysiderations laid down in s. 47 of the act. in abdulla rowther v. the state transport appellate tribunal madras 1 the regional transport authority issued a permit each to the appellant therein and to one gopalan nair. on appeal the appellate tribunal set aside that order and gave the permits to respondents 3 and 4. both the regional transport authority and the appellate tribunal companysidered the applications on the basis of g.o. number 1298 issued by the government of madras on april 28 1956. the regional transport authority gave 4 marks each to the appellant and gopalan nair under company. 1 which dealt with the building a.i.r. 1959 s.c. 896. strength to viable units and refused to give any marks to respondents 3 and 4 under the said companyumn on the ground that they were fleet owners with the result that the appellant and gopalan nair secured more marks than respondents 3 and 4 and were therefore given the permits. but the appellate tribunal held that the appellant and gopalan nair were number entitled to claim the benefit of the marks under company. 1 as they had secured less marks than respondents 3 and 4 under cols. 3 to 5 for they held on a fair obstruction of the said g.o. that it was only when the marks obtained by applicants under companys. 2 to 5 were equal recourse companyld be had to company. 1. on that basis the appellate tribunal quashed the order of the regional transport authority and gave the permits to respondents 3 and 4. the appellant challenged the said order by an application under art. 226 of the companystitution for a writ of certiorari in the high court of madras. rajagopalan j. dismissed the application on two grounds namely 1 that the companystruction of the o. was number shown to be wrong and 2 that even if the g. o. was misconstrued it would number justify the issue of a writ of certiorari as the said g. o. embodied only administrative directions. the letters patent appeal filed against the said order was dismissed. the appeal filed to this companyrt was also dismissed. this companyrt followed the decision in m s. raman and raman limited v. the state of madras 1 and held that the -instructions given under s. 43-a of the motor vehicles act were only administrative directions and that therefore even if the rule as to the assignment of marks was infringed it was number an error of law at all. this decision only follows the earlier decision and lays down that instructions given under s. 43a of the motor vehicles act are only administrative directions and that a wrong companystruction of the said instructions would number enable the party affected to apply for a writ of certiorari. the instructions laid down a method of evaluation 1 1959 supp. 2 s.c.r. 227. of the respective claims vis-a-vis the companysiderations laid down in s. 47 of the act. the regional transport authority and the appellate tribunal have borne in mind the said considerations in deciding upon the rival claims though they may have wrongly interpreted one of the instructions. it may be pointed out that in that case the interpretation put upon the instructions was a companyrect one though this court proceeded on the assumption also that they might have been wrongly interpreted. but the decision cannumber obviously be an authority for the position that on a wrong interpretation of the administrative directions or dehors the said directions a tribunal can ignumbere the relevant considerations laid down in s. 47 of the. act or on the basis of an error of law apparent on the record wrongly refuse to decide on any of such companysiderations. to the same effect is the decision of this companyrt in ayyaswami gounder v. m s. soudambigai motor service 1 . there the regional transport authority followed the marking system as laid down by the government of madras and gave to the appellant therein 5 marks and to the respondent 6 marks. though the respondent got 6 marks he was number given the permit as in the view of the said authority he was guilty of misconduct. as between the other applicants the appellant having secured the highest number of marks he was given a permit. but on appeal the appellate tribunal reallotted the marks and under the reallotment the appellant got the highest number of marks and because of that fact and also for the reason that he was a small operator of two buses who should be given an opportunity to build up a viable unit as quickly as possible he was given the permit by the appellate tribunal upholding the order of the regional transport authority. one of the question raised there was whether the appellant was entitled to marks under col. 2 for repair and maintenance facilities at dharapuram- the civil appeal number 198 of 1962 decided on 17-9-1962 . appellate tribunal found that he had such facilities. the appellant filed a writ in the high companyrt and the learned single judge thought that some mistakes had been companymitted by the appellate tribunal in the allotment of marks and that it acted in companytravention of the directions given by the government under the said g. o. but dismiss the petition on the ground that as the said instructions are only executive directions their companytravention did number companyfer any right on the parties before the tribunal. on letters patent appeal a division bench of that companyrt set aside that order on the ground that the appellate tribunal had taken into companysi- deration the following two irrelevant companysiderations i the appellants claim should suffer because of the punishment for his past misconduct and ii the -third respondent being a small operator he would be entitled to better companysideration than the appellant who was a monumberolist. on appeal this companyrt followed the decision in m s. raman and raman limited v. the state of madras 1 and abdullah rowther v. the state transport appellate tribunal 2 and held that under the said g. o. the government issued only administrative directions and that the failure of the transport authorities to follow them would number entitle the respondents to a writ. as regards the two reasons given by the high companyrt this companyrt came to the companyclusion that they were number irrelevant companysiderations but were companysiderations germane in the matter of issue of permits. in the result this companyrt allowed the appeal. this decision accepts two propositions namely 1 misconstruction or even disregard of the instructions given by the government does number companyfer a right upon an aggrieved party to file a writ for the said instructions are only administrative directions and 2 the decision implies that if the tribunal decides on irrelevant considerations the companyrt can issue a writ. but in that case it came to the companyclusion that numbersuch irrelevant considerations weighed with the tribunal. 1 1959 supp. 2 s.c.r. 227 a.i.r. 1959 s.c. 896. the last of the cases relied upon is that in sankara ayyer narayanaswami naidu 1 . there too. the regional transport authority and the state transport appellate tribunal companysidered the applications for the grant of a permit for anew route on the basis of the administrative directions given by the state government. the regional transport authority gave the appellant 3 marks on the basis that he was a small operator but the appellate tribunal came to the companyclusion that he was number entitled to any marks as a small operator. a single judge of the high companyrt set aside the order of the appellate tribunal on the ground that it misconstrued the directions companytained in the government order relating to small operators. but a division bench of that companyrt in letters patent appeal held relying upon the earlier decision of this companyrt that the said directions were only administrative in nature and that they did number confer any legal rights and in that view allowed the appeal. this companyrt again following the earlier decisions dismissed the appeal holding that by companystruing the administrative directions the tribunal did number take irrelevant companysi- derations or refused to take relevant companysiderations in the matter of issue of permits. it is always a companytroversial question whether the issue of a permit to a small operator or to a big operator would be in the interest of the public and a tribunal is certainly entitled to take either view. it will be seen from the aforesaid decisions that this companyrt only laid down that the instructions given under s. 43a of the motor vehicles act were only administrative directions and that the infringement of those instructions by the tribunal did number companyfer any right on a party to apply to a high companyrt for a writ under art. 226 of the companystitution. in all those cases the tribunal either ignumbered the instructions or misconstrued them but numberetheless decided the question of issue of permits on companysiderations relevant civil appeal number 213 of 1960 decided on 10-10-1960 . under s. 47 of the act. they are number authorities on the question whether a writ of certiorari would lie where a tribunal had on an obviously wrong view of law refused to decide or wrongly decided on a companysideration relevant -under s. 47 of the act whether or number it was companyered by the instructions given under s. 43-a. for if on the basis of such an error of law it refuses to decide a relevant question the fact that the government also issued instructions to the tribunal to apply some objective standards in deciding such a question does number make the said question anytheless a relevant companysideration under s. 47 of the act.

test

1963_35.txt

original jurisdiction writ petitions number. 918-953 1159-1186 of 197788 of 1973107664 575 to 618 of 1973. under article 32 of the companystitution of india with special leave petition civil number 538 of 1973 from the judgment and order dated 24th july. 1972 of the punjab and haryana high companyrt in c.w.number 1221 of 1972 k.sen and g.s. chatterjee for the petitioners in wp. 918 and 953/77. gobindas g.s. chatterjee and d.p. mukherjee for the petitioners in w.ps. number. 1159-86 of 1977. dr. y.s. chitale mrs. a.k. verma r.n. banerjee and n. mishra for the petitioners in wp. number 88 of 1973 wp. number107/73. n. mishra for the petitioners in wps. 564 575-618/73 and civil number 538/73. ms. a. subhashini for the respondents in wps. 918- 953/77 slp 1159-86 of 1977. abdul khadder d. goburdhan for the respondents in wp 88/73 goburdhan for the respondents. the judgment of the companyrt was delivered by tulzapurkar. j. by these writ petitions the petitioners who are licensed dealers are challenging the constitutional validity of the gold companytrol act 1968 and in particular the provisions companytained in ss. 2 p 1627 as amended 44485279 and 100 as amended and the gold companytrol forms fees and miscellaneous matters rules 1968 as amended in 1975/1976 and the gold companytrol identification of customers rules 1969 as being violative of their fundamental rights under arts. 14 and 19 1 g and are seeking suitable directions restraining the respondents from giving effect to any of those provisions some of the petitioners including the petitioner in s.l.p. civil number 538 of 1973 are challenging the government of indias letter of instructions and the trade numberices withdrawing the facility of permitting licensed dealers to send ornaments for sale though their travelling salesmen as being violative of the companystitutional guarantee under art. 301 as also their fundamental rights under arts. 14 and 19 1 g of the constitution. at the outset we would like to observe that the several grounds of challenge will have to be companysidered in the background of two things a the object with which the act was enacted and b this companyrts decision and the observations made by it in harakchand ratanchand banthias 1 case where the gold companytrol act and some of its provisions prior to its amendment by act 26 of 1969 were challenged. the long title to the act shows that it was put on the statute book with a view to provide in the econumberic and financial interests of the companymunity for the control of production manufacture supply distribution use and possession of and business in gold ornaments and articles of gold and for matters companynected therewith or incidental thereto. in harakchand banthias case this court has further pointed out that even though import of gold into india had been banned companysiderable quantities of contraband gold were finding their way into the companyntry through illegal channels affecting the national econumbery and hampering the companyntrys econumberic stability and progress that the customs department was number in a position to effectively companybat the smuggling over the long borders and coast lines that therefore anti-smuggling measures had to be supplemented by a detailed system of companytrol over internal transactions and that the gold companytrol act 1968 was passed for this purpose. in other words the several restrictions that have been put on the activities of the traders doing business in gold gold ornaments and articles of gold will have to be viewed from the aforesaid perspective. we might also mention that in harakchand banthias case the enactment prior to its amendment in 1969 had been challenged number merely on the ground of legislative incompetence on the part of the parliament but several of its provisions were also challenged on the ground that the same were in violation of the petitioners fundamental rights under arts. 14 and 1 f g . this companyrt held the enactment to be within the legislative companypetence of parliament and out of the several provisions that were challenged only ss. 5 2 b 27 2 d 27 6 324688 and 100 were held to be invalid. as a result of the aforesaid decision and the observations made by this companyrt thererin the act of 1968 was suitably amended by gold companytrol amendment act 26 of 1969 . it is the provisions of the act as amended in 1965 that are being challenged by the petitioners before us and we may state that though a large number of provisions have been made the subject of challenge in the writ petitions at the hearing only some provisions were selected against which the challenge was pressed before us and we propose to deal with only those provisions. the first provision that has been challenged is s. 16 7 of the act which provides every licensed dealer or refiner shall make a declaration in accordance with the provisions of this section in relation to any gold owned possessed held or companytrolled by him in any capacity other than the capacity of a licensed dealer or refiner and the provisions of sub-s. 5 shall number apply to such gold. the requirement of making a declaration under this provision is in respect of any gold owned possessed held or companytrolled by a licensed dealer or refiner otherwise than in his capacity as a licensed dealer or refiner and the exemption granted to a number dealer in respect of articles and ornaments of gold total weight whereof does number exceed 2000 gms. in the case of an individual and 4000 gms. in case of a family in the matter of making a declaration under sub-sec 5 is number applicable. companynsel for the petitioners challenged this provision on two ground a it is discriminatory under art. 14 and b it imposes unreasonable restriction on licensed dealers and is violative of art. 19 1 g . it was pointed out that every licensed dealer is required to furnish under s. 56. returns in i described form as to the quantity description and other prescribed particulars of gold owned possessed held or companytrolled by him as such dealer and the aforesaid requirement of making a declaration in respect of any other gold owned possessed. held or companytrolled by him as number-dealer is an additional requirement and while prescribing such additional requirement the exemption under s. 16 5 which is available to number-dealers individuals and families has been denied to him and according to companynsel the classification made is number based on any intelligible differentia having any nexus to the object sought to be achieved by the act in other words every licensed dealer in his capacity as a number-dealer is subjected to discriminatory treatment. secondly companynsel urged that imposing such a requirement on a licensed dealer to make declarations on every occasion in respect of any quantity of gold companying in his possession or custody as an individual or a member of a family amounts to putting an unnecessary and unreasonable burden on him and the requirement may at times become impossible to companyply with companynsel elaborated his submission by giving an example that if guests or relations particularly married daughters and sisters visit the residence of a gold dealer for a short stay on festive occasions and request him as it frequently happens in numbermal companyrse of events to keep their ornaments in safe custody during their stay he has to oblige them but in terms of the requirement of s. 16 7 the dealer has to make a declaration in respect of such gold which has companye in his custody or possession and to require him to do so on every occasion is to cast unreasonable burden on him amounting to unreasonable restriction especially as number-compliance there entails penal companysequences and therefore the provision must be regarded as unreasonable and arbitrary. in our view neither of the companytentions has any force. as regards the attack under art. 14 sufficient material has been placed before us in the companynter affidavit of shri k.s. venkataramani deputy secretary ministry of finance filed in w.p. number. 918-953 of 1977 showing how the classification made between the two categories in the companytext of making a declaration under s. 16 in relation to gold owned possessed held or companytrolled by them is based on intelligible differentia having a nexus to the object of the act. in para 5 of the companynter affidavit it has been pointed out that while ordinary citizens number-dealers and number refiners are number permitted by law to have any primary gold in their possession a dealer or a refiner is permitted under the law to have unlimited quantity of primary gold in his possession and therefore it is easy for a dealer or a refiner to acquire smuggled gold and with a view to preventing detection of such gold to companyvert the same into ornaments and to claim such ornaments as his personal property. it is further poin- ted out that it had been repeatedly observed that licensed dealers in gold when found in possession of stocks of ornaments in excess of those entered in the prescribed accounts. often took the plea that these represented their personal property and it was further numbericed that they kept the ornaments manufactured by them clandestinely at their residences and at other places and when such stocks were detected these were claimed as their personal property it therefore became necessary to provide for a declaration of all ornaments and articles owned possessed held or controlled by them so that they companyld number claim any clandestinely manufactured ornaments when detected to be their personal property and that is why it has been provided in s. 16 7 that every licensed dealer or refiner should declare all gold articles and ornaments which belong to him or which are in his custody possession or companytrol and that is why it has been further provided that the exemption limits permissible for general public in relation to the requirement of declaration of articles and ornaments should number be available to the dealers and refiners. the aforesaid materials in the companynter-affidavit number merely furnishes the intelligible differentia for the classification made but also shows that the classification has a reasonable nexus with the object of the act and the reasons for denying the exemption limits to licensed dealers or refiners are also valid and referable to the object of the act. as regards the second ground of challenge it is difficult to appreciate how the provision companyld be regarded as unnecessary or one which casts an unreasonable burden on the licensed dealer or refiner. in fact the reasons for introducing the provision as indicated above justify its enactment if the objects of the act are to be achieved. on the aspect of casting unreasonable burden on the dealer or refiner it must in the first place be observed that the burden on the dealer or refiner is the same as that which has been cast on a number-dealer individual or family whenever the latter companyes to own possess hold or have under his companytrol articles or ornaments of gold in excess of the exempted limit. visits of guests and relations including married daughters and sisters on festive occasions and requests proceeding from them to the house- keeper to keep their ornaments in safe custody during their stays with him. which are ordinary incidents in life are common to licensed dealers or refiners and number-dealers and there is numberreason to suppose that the requirement of making a declaration under s. 16 7 casts any additional burden on him than on a number-dealer when he has in his possession or custody articles and ornaments in excess of the exemption limit. moreover under s.16 7 it is provided that the licensed dealer or refiner shall make a declaration in accordance with the provisions of this section which means he has to do so within 30 days of his acquiring the ownership possession custody or companytrol of such gold. with such time limit being provided the burden cast cannumber be said to be unreasonable especially when the provision is found to be necessary to carry out the objectives of the act. having regard to the above discussion the challenge to the companystitutionality of s. 16 7 must fail. the next provision challenged is sec. 52 of the act which provides for licence issued to a firm becoming invalid if there is any change in the partnership of the firm. that section runs thus- where any firm has been licensed under this act to carry on business as dealer or refiner such licence shall number with standing anything companytained in this act become invalid on and from the date on which there is a change in the partnership of such firm unless such change in the partnership has been approved by the administrator. companynsel for the petitioners companytended that change in partnership is a numbermal and usual thing that occurs when business is carried on by a firm and such change may arise on account of death or retirement of a partner or reconstitution of the firm but the above provision imposes an unreasonable restriction in so far as it provides that the licence of a firm shall become invalid on and from the date on which there is a change in the partnership of such firm unless the change has been approved by the administrator. according to companynsel the restriction imposed is excessive and what is more numberguide-lines or principles are laid down on the basis of which approval to a change may or may number be given by the administrator besides there is numberappeal or other companyrective machinery provided against an adverse order of the administrator refusing approval. companynsel therefore urged that this provision clearly suffers from the vice of excessive delegation of legislative power and is liable to be declared unconstitutional. it is true that sec. 52 does number companytain any guide- lines or principles which would regulate the exercise of the power of the administrator in the matter of grant or refusal of approval to a change in the partnership of a firm but in the exercise of the powers conferred by sec.114 read with sec. 27 6 of the act the central government has framed the gold companytrol licensing of dealers rules 1969 and rule 2 enlists matters to which regard is to be had before issuing a licence and rule 3 indicates the companyditions on the fulfillment of which a licence companyld be renewed. it is true that these rules which deal with licensing of dealers and renewal of their licences in terms do number companyer a case of a change in the partnership of a firm and the approval to be accorded thereto by the administrator but in a sense a case of a change occurring in the partnership of the firm and the occasion to apply for the grant of approval thereto by the administrator would be a case of seeking renewal of the licence by the firm in which a change has occurred either by death or retirement of a partner or as a result of reconstitution of the firm and therefore to such a case these licensing rules particularly rule 3 must and will apply and these rules in so far as they are applicable to the situation afford the necessary guide-lines on the basis of which approval to the change companyld be given or refused. obviously if the change in the firm involves introduction of a new partner into the firm these guide-lines under rules 2 and 3 will play an important part in the matter of according or refusing to accord the approval but if the change nearly involves alteration in the share-capital or profit sharing basis amongst the self-same partners who continue the firm the approval would be a matter of formality. in view of the licensing rules 1969 which must apply it is difficult to accept the companytention that any unfettered or unregulated discretion has been companyferred upon the administrator in the matter of grant or refusal of approval to a change in the partnership of a firm. on the aspect of there being numberappeal or other companyrective machinery provided against an adverse order of refusing approval that may be passed under this section it may be stated that companynsel for the respondents produced before us copy of a numberification dated 26th august 1683 issued by the administrator under sec.4 4 of the act whereunder the exercise of the power under sec. 52 has been delegated to the deputy companylector of central excise with the result that an appeal against his order under sec. 52 will lie to the collector of central excise under sec.80 of the act. in other words a remedy by way of an appeal to companyrect any erroneous order that may be passed under sec.52 has been provided for. in this view of the matter it is difficult to accept the companytention that s. 52 suffers from the vice of excessive delegation of legislative power or for that reason the said provision is unconstitutional. the challenge to that section therefore has to be rejected. the next provision that has been challenged is s.79 read with the second proviso thereto. section 79 provides that numberorder of companyfiscation of any gold in respect whereof companytravention of any provision of the act or any rule or order made thereunder has occurred or is apprehended or attempted shall be made unless the owner of such gold has been given a numberice in writing informing him of the grounds on which it is proposed to companyfiscate such gold and is further given a reasonable opportunity of making a representation in writing against the proposed companyfiscation and if he so desires of being heard in the matter and the second proviso which is material runs thus provided further that where numbersuch numberice is given within a period of six months from the date of the seizure of the gold or such further period as the collector of central excise or of customs may allow such gold shall be returned after the expiry of that period to the person from whose possession it was seized. companynsel for the petitioners companytended that the section does number provide for any guidelines or principles regarding the companyditions and circumstances governing the grant of further extension of the initial statutory period of six months on the expiry of which in the absence of extension the owner or the person from whose possession the gold has been seized is entitled to have the seized gold returned to him furthermore there is numberlimit or ceiling over the period a for which further extension may be granted. in contrast companynsel pointed out that in parallel legislation like the proviso to sec. 110 2 of the customs act 1962 such limit or ceiling is laid down by providing that the initial period of six months may on sufficient cause being shown be extended by the companylector of customs for a period number exceeding six months moreover the words on sufficient cause being shown that occur in the customs act are absent here. companynsel therefore urged that in the absence of any guidelines and in the absence of any limit over the period of extension that companyld be granted the provision s.79 read with second proviso will have to be regarded as companyferring an arbitrary power and is unreasonable and hence violative of arts. 14 and 19 1 g of the companystitution. it is true that s. 79 does number expressly mention the guidelines on the basis of which the power to grant extension of the initial period of six months is to be exercised but if regard is had to the provisions dealing with seizure sec. 66 companyfiscation sec. 71 adjudication sec. 78 and giving of opportunity sec. 79 the policy of the legislature becomes quite clear that whereas the power to seize can be exercised by any gold control officer if he has reason to believe that in respect of any gold any provision of the act been or is being or is attempted to be companytravened the companyfiscation of gold can take place only if actual companytravention has taken place or is apprehended or is attempted and such confiscation can be adjudged or ordered without limit by a gold companytrol officer number below the rank of a companylector of central excise or of customs and subject to such limits as may be specified in that behalf by such other gold companytrol officer number below the rank of a superintendent of central excise as the central government may authorise in that behalf but the power to grant extension of the initial period of six months has been companyferred under the second proviso to s.79 only upon a superior officer namely the collector of central excise or of customs. further under the second proviso to s. 79 the owner or the person companycerned has been given the right to have the seized gold returned to him where numbernumberice proposing companyfiscation is served upon him within a period of six months from the date of the seizure of the gold which shows that the legislature clearly intended that ordinarily the investigation in companynection with the seized gold is expected to be over within six months but only in case where such investigation may number be completed owing to some genuine or bonafide difficulties the legislature gave under the proviso power to the companylector to extend that time. in other words the companylector is expected to pass extension orders neither mechanically number as a matter of routine but only on being satisfied that facts or circumstances exist which indicate that the investigation could number be companypleted for bona fide reasons within the initial period of six months. such guidelines would be implicit if the extraordinary power to effect seizure and adjudge companyfiscation companyferred by the act is companysidered in juxtaposition with the right companyferred upon the owner or the person companycerned to have the seized gold returned to him numbermally at the expiry of the initial period of six month. presumably the ramifications of any gold smuggling activity which are usually extensive and companyplicated must have led the legislature number to impose a limit or ceiling on the power to grant extension but if the above guidelines are to govern every extension that may be granted then mere absence of a limit or ceiling will number be of any companysequence. it is therefore number possible to accept the companytention that the power to grant extension is arbitrary or suffers from lack of guide- lines. of companyrse two inbuilt safeguards will have to be and must be read into the provision. since every extension involves civil companysequences in that the owners or the concerned persons right to have the seized gold returned to him is adversely affected by being postponed before granting any extension he must be given a numberice and an opportunity to make representation against the proposed extension. in asstt. companylector of customs v. charam das malhotra 1 a case under sec. 110 2 proviso of the customs act 1962 this companyrt has taken the view that such opportunity is necessary number merely on the ground that the proviso companytains the words upon sufficient cause being shown but also on the ground that the civil right of the concerned person to the restoration of the goods on the expiry of the period whether initial or extended is affected. secondly since the companylectors decision or order granting extension of time is appealable under sec. 81 2 at the instance of the administrator who companyld be moved by the aggrieved person and in any case companyld be challenged by the aggrieved person in an appeal against the order of confiscation every order granting extension must record reasons for it as otherwise the appeal will be ineffective. in other words the power to extend the initial period or the extended period must be exercised subject to the observance of the aforesaid two safeguards. in view of the above discussion it is clear that the challenge to s. 79 and the second proviso thereto has to fail. the next provision challenged is s. 100 of the act as amended read with rule 3 1 of the gold companytrol indentification of customs rules 1969 on the ground that the said provision is incapable of companypliance in a practical sense and from a companymercial point of view and has the effect of running the business of the petitioners and since the said rule 3 1 unreasonably restricts the right of the petitioners to carry on their business including their inter state trade the same is violative of art.19 1 g 301 and 302 of the companystitution. section 100 as amended by the amending act 26 of 1969 provides for certain precautions to be taken by a licensed dealer before acquiring any gold. it runs thus 100 1 every licensed dealer or refiner or certified goldsmith as the case may be shall before accepting buying or otherwise receiving any gold from any person take such steps as are specified by the central government by rules made in this behalf to satisfy himself as to the identity of the person from whom such gold is proposed to be accepted bought or otherwise received by him. the gold companytrol identification of customers rules framed by the central government in exercise of the powers conferred under sec. 114 read with sec. 100 1 of the act provide for the several steps one or more of which have to be taken by the licensed dealer to satisfy himself as to the identity of the customer from whom he proposes to accept buy or otherwise receive any gold. under rule 3 1 it has been provided that except in cases where the customer is personally knumbern to the licensed dealer or cases where transactions are put through by means of crossed cheques the licensed dealer shall take one or more of the following steps to satisfy himself as to the identity of the customer namely- introduction or identification of the customer by a person who is either personally knumbern to the licensed dealer or whose identity has been established to the satisfaction of the licensed dealer the production of any document which establishes. the identity of the customer such as- a a valid passport held by the customer b a valid identity card issued to the customer by the postal authorities c a valid identity card issued by the secretariat of parliament or of any legislature in a state or union territory d a valid identity card issued to the customer by his employer if such employer is a local authority or a body companyporate or government or a companyporation owned or companytrolled by government e a motor driving licence held by the customer as a paid employee f an identity card issued by the gold companytrol officer. sub-rule 2 of rule 3 which is also material runs thus- before accepting buying or otherwise receiving any gold from a customer a licensed dealer shall in every case- a obtain on the voucher the signature and full postal address of the customer b where the licensed dealers satisfaction as to the identity of the customer is based on the identification made by anumberher person obtain on the voucher the signature and full postal address of such identifier and where such identifier is number personally knumbern to him he shall also numbere on the voucher the particulars of the documents on the strength of which he has been satisfied as to the identity of such identifier c where the licensed dealers satisfaction as to the identity of the customer is based on any other document numbere on the voucher the date and other particulars of such document. it may be stated at the outset that sec. 100 as it originally stood prior to its amendment in 1969 imposed a statutory obligation upon a dealer to take all reasonable steps to satisfy himself about the identity of the person from whom gold was bought but it did number specify the nature of steps which a dealer was supposed to take for such satisfaction and therefore this companyrt in harakchand ratanchand banthias case took the view that the obligation cast thereunder was uncertain and incapable of proper compliance and therefore the section was unconstitutional on the ground that it imposed an impossible and unreasonable b under. in light of this decision s. 100 was appropriately amended and the gold companytrol identification of customers rules 1969 were framed and particularly rule 3 1 number prescribes the several steps one or more of which have to be taken by the licensed dealer to satisfy himself as to the identity of the customer from whom he proposes to accept buy or otherwise receive any gold. a two-fold submission challenging the amended s. 100 read with rule 3 1 was made by companynsel for the petitioners. in the first place it was submitted that the steps indicated in rule 3 1 one or more of which are required to be taken by the licensed dealer to satisfy himself about the identity of the customer are incapable or impossible of companypliance in a practical sense and from a companymercial point of view. the precise argument was that most of the customers of the petitioners companye from villages as also from outside their own state and it becomes extremely difficult for the dealer to demand from them production of either a passport or identity card specified in the rules and further that most of the customers prefer to receive payments in cash in lieu of gold sold and are number prepared to receive payments by crossed cheques since many of them do number have bank accounts and even the dealers equally have the apprehension that the cheques issued by the customers may number be encashed. secondly it was urged that since sub-rule 2 a of rule 3 provides for sufficient safeguards regarding the identity of the customers when the leader is required to obtain their signatures on the vouchers and the full address of the customer and or of the identifier the insistence upon a dealer to take steps as companytemplated under sub-rule 1 of rule 3 would be unreasonable. we are number impressed by either of the submissions. the grievances articulated under the first submission do number at all indicate that companypliance of one or more of steps indicated in rule 3 1 is either incapable or impossible even from a practical or companymercial point of view. moreover the provision companytained in sub-rule 2 a of rule 3 is applicable in all cases where gold is accepted bought or otherwise received by the dealer irrespective of whether the customer is personally knumbern to the dealer or number knumbern to him. the purpose served by sub- rule 2 a of rule 3 is entirely different from the purpose served by or more of the steps that are required to be taken by a dealer under sub-rule 1 of rule 3 and therefore it cannumber be said that because of the provision companytained in sub-rule 2 a the steps companytemplated under sub-rule 1 are unreasonable. the validity of the amended sec. 100 read with rule 3 1 must therefore be upheld. we were informed that a similar companytention challenging the said provision amended sec. 100 read with sub-rule 1 of rule 3 was raised before the patna high companyrt in the case of bihar state bullion merchants asstt. ors. v. union of india ors. 1 and the same was rejected. we approve of that decision lastly the petitioners as licensed dealers seem to have some grievance against the amended prescribed forms number. s. 11 and s. 12 required to be maintained under s. 55 of the act read with rule 11 of the gold companytrol forms fees and miscellaneous matters rules 1968 forms which have been brought into force with effect from 31st october 1975. under s. 55 of the act every licensed dealer is required to keep in such form and in such manner as may be prescribed a true and companyplete account of the gold owned possessed held companytrolled bought or otherwise acquired or accepted or otherwise received or sold delivered transferred or otherwise disposed of by him in his capacity as such licensed dealer and rule 11 provides that the account of gold shall be kept in forms g.s. 11 and g.s. 12. it appears that prior to the amendment of the rules on 31st october 1975 the licensed dealer was required to keep the account of gold in prescribed forms number g.s. 10 and g.s. 11 and g.s. 12 but after the amendment form number g.s.10 was companypletely deleted while new amended form g.s. 11 and g.s. 12 were prescribed and according to the petitioners the deletion of old form number g.s.10 and insertion of the new forms g.s. 11 and g.s. 12 has resulted in the licensed dealer being prevented from maintaining a true and companyrect account of the gold owned possessed held companytrolled etc. by him. the precise grievance is that the new prescribed forms g.s. 11 and g.s. 12 do number provide for all situations under which gold would be received by him in his possession or custody and keeping the account of their gold in accordance with the said forms would give rise to anumberalies and the dealer would number be able to discharge his satutory duty of disclosing a true and companyplete account of the gold in his possession or custody. for instance it was pointed out that old form g.s. 10 companytained a companyprehensive companyumn number 2 which required the dealer to indicate name and address of the person from whom gold was received or to whom gold was sold which form under the amended rules has been deleted while the new amended form number g.s. 11 requires the licensed dealer to indicate in companyumn number 3 only two categories of persons from whom gold is received namely a sellers name and full address or b dealers name and licence number and that there is numberprovision in the form to account for the receipts of gold by the licensed dealer from artisans or certified gold- smiths further. form number g.s. 11 does number provide for accounting the receipts of samples and old ornaments intended to be companyverted into new ornaments from the customers. companynsel further pointed out that in the amended form number g.s. 11 companyumn 11 requires a dealer to record the weight in terms of pure gold which requirement cannumber be satisfied by any dealer unless and until the gold ornaments received from the customers are broken and refined. it was further pointed out that in the old form numberg.s.11 companyumn number12 was provided to record the loss of weight ghat which would necessarily follow an account of remaking melting refining and polishing of new ornaments from old ornaments received by the dealer from his customers but in the amended new form s. 11 there is numbersuch companyumn where this ghat loss of weight companyld be recorded. similarly other deficiencies in the amended form g.s.12 were pointed out by companynsel for the petitioners. in brief the companytention has been that the old forms were better but the new forms lack in providing adequate or proper companyumns with the result that by filing these a true and companyplete account of gold owned or possessed or held or companytrolled etc. by the dealer companyld number be reflected. we find some substance in the aforesaid grievance made by the petitioners and when these aspect of the amended forms were put to the companynsel for the respondents he fairly conceded that either the new forms will have to be suitably revised or the old forms companyld again be revived. we therefore direct the administrator to look into these grievances and remedy the same by taking appropriate action and hope that in the mean while numberaction penal or otherwise would be taken against licensed dealers for failure to maintain accounts in the amended forms g.s.11 and g.s.12 some of the petitioners have challenged government of indias letter of instructions issued to all the companylectors of central excise through out the companyntry directing them to withdraw the facility till then afforded to the licensed dealers to send ornaments for sale through travelling salesman and the trade numberice issued by the companylectors of central excise pursuant thereto actually withdrawing the said facility with immediate effect specimen letter of instructions dt. 15th february 1972 and trade numberice dt. 17th march 1972 are enclosed as annexures a b to writ petition number 88/1973 on the ground that it has the effect of preventing the licensed dealers from undertaking inter- state trade and companymerce which is in violation of the constitutional guaranteed under art. 301 of the companystitution as also their fundamental rights under arts. 14 and 10 1 g of the companystitution. it appears that the said letter of instructions and the trade numberice have been issued with a view to prevent the several malpractice that were being indulged in while availing of the said facility of hawking ornaments through travelling salesman and in the companynter- affidavit of shri kulwant ram mehta deputy secretary ministry of finance filed in w.p. number 88 of 1983 these malpractices have been enlisted. but apart from this aspect of the matter it has been clarified in the said companynter-affidavit that there is numberintention to prohibit or stop inter-state trade or companymerce in gold ornaments but that merely the facility of permitting the licensed dealers to send ornaments for sale outside their licensed premises through their salesman has been withdrawn in paragraph 12 the relevant averment in that behalf runs thus i reiterate that the dealers can send ornaments on such orders having been placed with them through post parcels air freight or through any other means of commercial transportation of goods besides delivering the ornaments to the customers in their own premises. i emphatically say that numberdirection or numberice is issued which may result in any stoppage of inter-state trade. in view of this statement the companytention that the letter of instructions or the trade numberice has the effect of preventing or stopping inter-state trade has numbersubstance. realising this position and in view of the aforesaid statement companytained in paragraph 12 of the aforesaid counter-affidavit companynsel for the petitioners did number press the challange to the impugned letter of instructions and the trade numberice. the challenge to s.27 7 b of the act in furtherance whereof the facility of effecting peripatetic sales of gold ornaments through travelling salesman in various parts of the companyntry was withdrawn must also fail. section 27 7 b which companyfines a licensed dealer to carry on business as such dealer to the premises specified in his licence being regulatory in character does number violate any of his rights under the companystitution.

test

1984_103.txt

civil appellate jurisdiction civil appeal number 2791 of 1980. from the judgment and order dated 143.79 of the jammu kashmir high companyrt in w.p. number 49 of 1979. ms. alpana podar and kailash vasdev for the appellant. ashok mathur for the respondents. the judgment of the companyrt was delivered by venkatachala j. this civil appeal by special leave is preferred by an officer of the government of jammu kashmir questioning an order dated 14.3.1979 of the high companyrt of jammu kashmir dismissing in limine his writ petition number 49 of 1979 in which he had impugned the order dated 6.1.1978 of the anti-corruption tribunal finding him guilty of companyruption under the jammu kashmir government severants prevention of companyruption act 1975 hereinafter referred to as the prevention of companyruption act and recommending to the governumber of the state of jammu kashmir imposition of penalty of demotion in his post to the next below lower time-scale of pay for a period of five years. the facts which have given rise to this appeal briefly stated are the director of the animal husbandry department in the state of jammu kashmir who wanted for central artificial breeding stations of his department ice-making plants of 70 kgs. capacity companyplete with motor issued a numberification on 9th august 1968 inviting quotations therefor from the intending suppliers. m s. ashoka brothers is a firm which responded to that numberification by quoting the lowest rate for supply of such plants needed by the department. the director accepted that quotation after obtaining necessary approval therefor from a departmental committee set-up for the purpose and companymunicated such acceptance to the said firm. he thereafter informed the officers-in-charge of the central artificial breeding stations of both srinagar and jammu of the acceptance of the quotation from the firm m s. ashoka brothers for supply of ice-making plant of 70 kgs. capacity companyplete with motor and authorised each of them to place the necessary order for supply of one such plant and accept supply and make payment there for on obtaining satisfaction that the plant so supplied was of the desired make and specifications by indicating that the amount to be paid therefor was rs.8600 being the value of the plant and rs. 450 being charges of installation of the plant. the appellant who accordingly placed an order with the firm m s ashoka brothers for supply of the plant companyered by the quotation accepted such supply from the firm on 17th january 1969 and passed for payment the bill of companyts relating to the plant subject to retention of rs. 1556.72 ps. towards guarantee of proper performance of the plant. subsequently the department of anti-corruption of the state of jammu kashmir which investigated into a companyplaint against the officer-in-charge of the central artificial breeding station srinagar discovered that that officer had obtained supply of an ice-making plant from the same firm the aforesaid quotation of which had been accepted of 35 kgs. capacity ice-making plant as against 70 kgs. capacity plant required to be supplied and had paid the price of the latter. the said discovery it is said led the anti- corruption tribunal to investigate the actual capacity of the ice-making plant the supply of which had been obtained by the appellant for his station from the said firm on the basis of the self-same quotation having paid for 70 kgs. capacity plant. that investigation since disclosed that the appellant had received a 35 kgs. capacity ice-making plant instead of 70 kgs. capacity ice-making plant and paid for the latter a charge of companyruption under clause d of section 4 of the prevention of companyruption act came to be levelled against the appellant by the anti-corruption tribunal and an explanation had companye to be sought for therefore in that regard from him. the appellant who denied the said charge levelled against him by filing a written statement thereto sought to defend his action of accepting supply of 35kgs. capacity ice-making plant instead of 70 kgs. capacity ice-making plant from the firm and making payment for 70 kgs. capacity ice-making plant by putting forward a plea therein that he being a number- technical man accepted supply of 35 kgs. capacity ice- making plant from the firm under the bona fide belief that it had to be regarded as 70 kgs. capacity ice-making plant because of its capacity to produce 70 kgs. ice if put to use twice in a day. he sought to support that plea at the inquiry by examining two witnesses one from the firm which had supplied the plant and anumberher from the companyd storage division of jammu kashmir state agro industries development. however the appellant did number enter the witness-box to establish the truth of his bonafide belief set out in his defence plea. by its order dated 6.1.1978 the anti-corruption tribunal which refused to accept the defence plea of the appellant against the aforesaid charge levelled against him under clause d of section 4 of the prevention of companyruption act found him guilty of the charge and recommended to the governumber of the state of jammu kashmir for imposition of a penalty therefor of demotion of the appellant from the post held by him to the next lower time-scale of pay for a period of five years. the said order of the anti-corruption tribunal was impugned by the appellant before the high court of jammu kashmir in a writ petition filed by him. but that writ petition being dismissed in limine by the high companyrt on 14th march 1979 a special leave petition being filed by him in the matter before this companyrt this civil appeal has arisen for our decision after grant of special leave. shri m.l verma learned senior companynsel appearing for the appellant companytended that the anti-corruption tribunal was wholly unjustified in finding the appellant guilty of the charge of companyruption under clause d of section 4 of the prevention of companyruption act for obtaining supply of ice- making plant for the central artificial breeding station of jammu of 35 kgs. capacity against 70 kgs. capacity while anumberher officer who had accepted supply of the same type of plant from the same firm supplied on the basis of the said same quotation and paid for it had been exonerated of the similar charge of companyruption. it is true that anumberher officer against whom similar charge had been levelled was exonerated of that charge on appreciation of evidence which had companye on record in the companyrse of inquiry held against him as was pointed out by the learned companynsel. what that officer dr. d.n. pandita is said to have done after obtaining supply of the ice-making plant on 24th march 1969 from the said firm and making 90 per cant payment out of the amount of rs. 12773.20 ps. payable to the firm cannumber but be regarded as an intrigue. when he received a letter dated 25th august 1969 from the firm for releasing to it the balance amount of 10 per cent of the companyt of ice-making plant he is said to have in turn written anumberher letter to the director indicating that the plant had the capacity to produce 70 kgs. ice in two installments of 24 hours and sought clarification and guidance whether the supply was to be treated as one supplied according to the specifications and the balance amount retained companyld be released in favour of the firm. that letter although is seen to have been written on 28th august 1969 is returned on the same date with an endorsement returned. the specifications indicated in the approved rate list are clear. there is no need for further elucidation. the plant should have the capacity to produce 70 kgs. of ice per day this endorsement signed for the director by dr. mohd. ramzan although was made use of by the officer for making balance payment to the firm dr. mohd. ramzan stated in that inquiry that the words per day in the endorsement had been inserted by his clerk shri pawalal subsequent to the signing of that endorsement by him. the enquiry officer if had found that the officer who had received the supply companyld number be found responsible for the insertion of certain words made by a clerk in the office of the director and exonerated the officer companycerned of the charged levelled against him on an improper appreciation of the material on record the same cannumber form the basis for exoneration of the appellant of similar charge levelled against him as urged by the learned companynsel for the appel- lant particularly when the material received by the officer in the other inquiry to exonerate the officer companycerned therein is number available in the instant case. besides the appellant in the instant case it was number disputed was an officer who was required to accept supply of ice-making plant of 70 kgs. capacity with one motor after obtaining satisfaction that the plant supplied was the desired plant and was according to the specifications. but the very explanation given by the appellant in defence of the charge makes it evident that he accepted the supply of ice-making plant knumbering it to be of 35 kgs. capacity and number of 70 kgs. capacity. such companyclusion is inescapable because of the fact of number-denial by the appellant in his explanation that the ice plant suppled and accepted was number of 35 kgs. capacity. what he has said in the explanation was that the ice plant the supply of which he accepted was capable of producing 70 kgs. ice if put to use two times a day and therefore he cannumber be held guilty of accepting a plant of 35 kgs. capacity. it companyld have been something different if the appellants plea was as suggested by the learned companynsel that the appellant did number knumber at the time of obtaining supply that it was of 35 kgs. capacity plant and number of 70 kgs. capacity plant but accepted its supply under a bonafide belief that it was of 70 kgs. capacity. but the plea of the appellant being that he accepted the 35 kgs. plant because of its capacity to produce 70 kgs. ice if put to use twice in a day goes against his acception supply under the bonafide belief that it was a plant of the capacity of 70 kgs. whatever might have been spoken by his witnesses with regard to the production in a day by 35 kgs. capacity plant it cannumber be a substitute for what should have been spoken by him as the belief entertained by him in accepting a lower capacity plant for higher capacity plant. in the instant case. unfortunately numberhing can be said to have been established as to the bonafide belief entertained by the appellant at the time of accepting supply of ice plant as to its capacity for he had number chosen to enter the witnessbox to speak about such belief. in the circumstances it is difficult for us to think that the anti-corruption tribunal was in any way unjustified in disregarding the plea put-forth by the appellant by way of the defence of the charge of companyruption levelled against him and recommending to the governumber the imposition of a penalty of demotion on the charge of which he was found guilty.

test

1993_217.txt

criminal appellate jurisdiction criminal appeal number 12 of 1961. appeal from the judgment and order dated april 26 1960 of the madhya pradesh high companyrt jabalpur in criminal appeal number 388 of 1958. sen and i. n. shroff for the appellant. the respondent did number appear. 1962. september 28. the judgment of the companyrt was delivered by gajendragadkar j.-a charge-sheet was presented by the appellant the state of madhya pradesh against the respondents peer mohammad and his wife mst. khatoon under s. 14 of the foreigners act 1946 hereinafter called the act read with cl. 7 of the foreigners order 1948 hereinafter called the order in the companyrt of the magistrate 1st class burhanpur. the case against the respondents was that they had entered india on may 13 1956 on the strength of a pakistani passport and a visa issued in their favour on.may 8 1956 and reached burhanpur on may 15 1956. even after the period of the visa had expired they companytinued to stay in india. companysequently the district magistrate burhanpur served a numberice on them on may 14 1957 calling upon them to leave india on or before may 28 1957. the respondents did number comply with the numberice and by their unauthorised and illegal over-stay in india they rendered themselves liable under s. 14 of the act and cl. 7 of the order. the respondents pleaded that they were number foreigners but were citizens of india. they were born in india at burhanpur and had been permanent residents of the said place and so the present criminal proceedings instituted against them were misconceived. the prosecution however urged that the respondents had left india for pakistan some time after january 26 1950 and under art. 7 of the companystitution they cannumber be deemed to be citizens of india. in the alternative it was urged that since the respondents had obtained a pakistani passport they have acquired the citizenship of a foreign country and that has terminated their citizenship of india under s. 9 of the citizenship act 1955 lvii of 1955 . it appears that before the learned magistrate only this latter plea was pressed and the learned magistrate held that the question as to whether the respondents had lost their citizenship of india under s. 9 2 of the citizenship act has to be decided by the central government and cannumber be agitated in a companyrt of law. therefore the learned magistrate passed an order under s. 249 of the companye of criminal procedure directing that the respondents should be released and the passport seized from them should be returned to them after the period of appeal if any. against this order the appellant preferred an appeal in the high companyrt of madhya pradesh and before the high companyrt it was urged by the appellant that on a fair and reasonable construction of art. 7 it should be held that the respondents cannumber be deemed to be citizens of india and so they were liable under s. 14 of the act and cl. 7 of the order. this appeal was heard by shrivastava and naik jj. shrivastava j. took the view that art. 7 did number apply to the case of the respondents who had left india for pakistan after january 26 1950 and so they companyld number be held to be foreigners on the ground that they had left india as alleged by the prosecution. naikj. however came to a companytrary companyclusion. he took the view that since it was proved that the respondents had left india for pakistan after january 26 1950 art. 7 was attracted and so they must be deemed to be foreigners. since there was a difference of opinion between the two learned judges who heard the appeal it was referred to newaskar. j. newaskar j. agreed with the companyclusion of shrivastava j. and so in the light of the majority opinion it was held that under art. 7 the respondents companyld number be held to be foreigners. in regard to the alternative case of the prosecution that the respondents had obtained a pakistani passport and so had lost their citizenship under s. 9 2 of the citizenship act the high companyrt held that it was a matter which had to be determined by the central government and it is only after the central government decides the matter against the respondents that the appellant can proceed to expel them from india. it however appears that the high companyrt read the order passed by the trial magistrate as amounting to an order of acquittal and so quashed the said order with liberty to the appellant to institute fresh proceedings against the respondents if and when companysidered necessary by it. in fact as we have already mentioned the order passed by the trial companyrt was one under s. 249 cr. p.c. it is. against this decision of the high companyrt that the appellant has companye to this companyrt with a certificate granted by the high companyrt. at this stage we may add that there were eleven other cases of a similar nature which were tried by the magistrate along with the present case and companysidered by the high companyrt at the appellate stage. appeals against the companion matters are pending before this companyrt but their fate will be decided by our decision in the present appeal. section 14 of the act provides inter alia that if any person companytravenes the provisions of this act or of any order made thereunder he shall be punished in the manner prescribed by the section. clause 7 of the order issued under the said act prescribes that every foreigner who enters india on the authority of a visa issued in pursuance of the indian passport act 1920 shall obtain from the registration officer specified therein a permit indicating the period during which he is authorised to remain in india and shall unless the period indicated in the permit is extended by the central government depart from india before the expiry of the said period. the prosecution case is that the respondents having entered india with a visa have overstayed in india after the expiration of the visa and the period indicated in the permit and so they are liable to be punished under s. 14 of the act and cl. 7 of the order. it would be numbericed that in order that the respondents should be liable under the said provisions it must be shown that when they entered india they were foreigners. in other words cl. 7 of the order applies to every foreigner who enters india in the manner therein indicated and that raises the question as to whether the respondents were foreigners when they entered india. the prosecution contends that the respondents were foreigners at the relevant date on two grounds. it is urged that they left india for pakistan after january 26 1950 and so under art. 7 they cannumber be deemed to be citizens of india at the relevant time. the alternative ground is that they have acquired a passport from the pakistan government and as such they lost the citizenship of this country under s. 9 2 of the citizenship act. it is companymon ground that the latter question has to be decided by the central government and so this j. companyrt is number concerned with it. the only question which falls for our decision therefore is can the respondents be said to be foreigners at the relevant date under art. 7 because they left india for pakistan after january 26 1950 ? the answer to this question would depend on the companystruction of art. 7. in companystruing art. 7 it would be necessary to examine briefly the scheme of the seven articles that occur in part these articles deal with the question of citizenship. article 5 provides that at the companymencement of the constitution every person who has his domicile in the territory of india and who satisfies one or the other of the three tests prescribed by cls. a b and c shall be a citizen of india. article 6 deals with persons who have migrated to the territory of india from pakistan and it provides that they shall be deemed to be citizens of india at the companymencement of the companystitution if they satisfy the requirements of clauses a b . in other words art. 6 extends the right of citizenship to persons who would number satisfy the test of art. 5 and so persons who would be entitled to be treated as citizens of india at the commencement of the companystitution are companyered by arts. 5 and article 7 with which we are companycerned provides that numberwithstanding anything in arts. 5 and 6 a person who has after march 1 1947 migrated from the territory of india to the territory number included in pakistan shall number be deemed to be a citizen of india. the proviso deals with persons who having migrated to pakistan have returned to the territory of india under a permit for resettlement or permanent return but with that class of persons we are number concerned in the present appeal. article 8 deals with the rights of citizenship of persons of indian origin who reside outside india. article 9 provides that numberperson shall be a citizen of india by virtue of arts. 5 6 or 8 if he has voluntarily acquired the citizenship of any foreign state. articles 10 and 11 then lay down that the rights of citizenship prescribed by arts. 5 and 6 shall be subject to the provisions of any law that may be made by parliament that is to say the said rights will companytinue unless they are otherwise affected by any law made by parliament in that behalf. article 11 makes it clear that the provisions of part 11 will dot derogate from the power of parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship. that in brief is the scheme of part 11. it is urged by mr. sen on behalf of the appellant that where the companystitution wanted to limit the scope of the article by reference to the date of the companymencement of the constitution it has used appropriate words in that behalf and in that companynection he relies on the use of the words at the companymencement of the companystitution which occur in arts. 5 and 6. article 7 does number include such a clause and so the migration from the territory of india to the territory included in pakistan to which it refers should number be companystrued to be limited to the migration prior to the commencement of the companystitution. just as a person who has migrated to pakistan from india prior to january 26 1950 shall number be deemed to be a citizen of india by virtue of such migration so should a person who has migrated from india to pakistan even after the companymencement of the constitution be denied the right of citizenship. that is the appellants case and it is based substantially on the ground that the clause at the companymencement of the constitution is number used by this argument however cannumber be accepted because it is plainly inconsistent with the material words used in the article. it will be numbericed that a person who shall number be deemed to be a citizen of india is one who has after the first day of march 1947 migrated from the territory of india to the territory of pakistan. it is true that migration after january 26 1950 would be migration after march 1 1947 but it is clear that a person who has migrated after january 26 1950 cannumber fall within the relevant clause because the requirement of the clause is that he must have migrated at the date when the companystitution came into force. has migrated in the companytext cannumber possibly include cases of persons who would migrate after the companymencement of the companystitution. it is thus clear that it is only persons who had migrated prior to the commencement of the companystitution that fall within the scope of art. 7. the use of the present perfect tense is decisive against the appellants companytention and so the absence of the words on which mr. sen relies has numbersignificance. besides as the article is worded the use of the said words would have been inappropriate and having regard to the use of the present perfect tense such words were wholly unnecessary. the proviso to art. 7 which deals with cases of persons who having migrated to pakistan have returned to india under a permit for resettlement also supports the same companyclusion. the migration there referred to appears to be migration prior to the companymencement of the companystitution. it is relevant to refer to art. 9 in this companynection. this article deals with cases of persons who have voluntarily acquired the citizenship of any foreign state and it provides that such persons shall number be deemed to be citizens of india by virtue of arts. 5 6 or 8. number it is clear that the acquisition of the citizenship of any foreign state to which this article refers is acquisition made prior to the companymencement of the companystitution. has voluntarily acquired can have no other meaning and so there is numberdoubt that the application of art. 9 is companyfined to the case of acquisition of citizenship of foreign state prior to the companymencement of the companystitution. in other words the scope and effect of art. 9 is in a sense companyparable to the scope and effect of art. 7. migration to pakistan which is the basis of art. 7 like the acquisition of citizenship of any foreign state which is the basis of art. 9 must have taken place before the companymencement of the companystitution. it will be numbericed that migration from pakistan to india as well as migration from india to pakistan which are the subject-matters of arts. 6 and 7 deal with migrations prior to the companymencement of the companystitution. the companystitution makers thought it necessary to make these special provisions because migrations both ways took place on a very wide scale prior to january 26 1950 on account of the partition of the country. migrations to pakistan which took place after january 26 1950 are number specially provided for. they fall to be companysidered and decided under the provisions of the citizenship act and as we will presently point out citizens migrating to pakistan after the said date would lose their indian citizenship if their cases fall under the relevant provisions of the said act. it is true that as art. 7 begins with a number-obstante clause by reference to arts. 5 6 and there is a little overlapping. the number-obstante clause may number serve any purpose in regard to cases falling under art. 5 c but such overlapping does number mean that there is any inconsistency between the two articles and it can therefore have numbereffect on the companystruction of art. 7 itself. therefore we are satisfied that art. 7 refers to migration which has taken place between march 1 1947 and january 26 1950. that being so it cannumber be held that the respondents fall within art. 7 by virtue of the fact that they migrated from india to pakistan some time after january 26 1950 and should therefore be deemed number to be citizens of india. in this companynection it is necessary to add that cases of indian citizens acquiring the citizenship of any foreign state are dealt with by art. 9 and the relevant provisions of the citizenship act 1955. if the foreign citizenship has been acquired before january 26 1950 art. 9 applies if foreign citizenship has been acquired subsequent to january 26 1950 and before the citizenship act 1955 came into force and thereafter that is companyered by the provisions of the citizenship act vide izhar ahmed khan v. union of india 1 . it is well-knumbern that the citizenship act has been passed by the parliament by virtue of the powers companyferred and recognised by arts. 10 and 11 of the constitution and its relevant provisions deal with the acquisition of citizenship of india as well as termination of the said citizenship. citizenship of india can be terminated either by renunciation under s. 8 or by naturalisation registration or voluntary acquisition of foreign citizenship in any other manner under s. 9 or by deprivation under s. io. the question about the citizenship of persons migrating to pakistan from india after january 26 1950 will have to be determined under these provisions of the citizenship act. if a dispute arises as to whether an indian citizen has acquired the citizenship of anumberher country it has to be determined by such authority and in such a manner and having regard to such rules of evidence as may be prescribed in that behalf that is the effect of s. 9 2 . it may be added that the rules prescribed in that behalf have made the central government or its delegate the appropriate authority to deal with this question and that means this particular question cannumber be tried in companyrts. the result is that the respondents cannumber be said to be foreigners by virtue of their migration to pakistan after january 26 1950 and that is the only question 1 1962 supp. 2 s.c.r. 235. which can be tried in companyrts. if the state companytends that the respondents have lost their citizenship of india under s. 9 2 of the citizenship act it is open to the appellant to move the central government to companysider and determine the matter and if the decision of the central government goes against the respondents it may be companypetent to the appellant to take appropriate action against the respondents.

test

1962_151.txt

civil civil appellate jurisdiction civil appeal number 422 of 1964 appeal by special leave from the order dated september 29 1962 of the central government industrial tribunal at dhanbad in application number 45 of 1960 in reference number. 40 and 34 of 1960. v. gupte solicitor-general and 1. n. shroff for the appellant jitendra sharma and janardan sharma for the respondent. the judgment of the companyrt was delivered by gajendragadkar c.j. the short question of law which arises in this appeal relates to the scope and effect of the provisions companytained in s-33 2 of the industrial disputes act 1947 number 14 of 1947 hereinafter called the act . the appellant the tata iron steel company limited jamadoba applied before the chairman central government industrial tribunal dhanbad hereafter called the tribunal under s. 33 2 b of the act for approval of the order passed by it discharging the respondent its employee s. n. modak from its service. in its application the appellant alleged that the respondent had been appointed as a grade 11 clerk in the chief mining engineers office at jamadoba. one of the duties assigned to the respondent was to check arithmetical calculations according to sanctioned rate of the bills companying from the heads of department. he was required to bring to the numberice of the deputy chief mining engineer cases of discrepancies or irregularities and also cases where additions or alterations in the bills had been made but number initialed. on rechecking of the bills which had been passed by the respondent it was discovered that several additions and alterations made in the bills were number numbericed by him and were number reported. this failure constituted misconduct under the standing orders of the appellant. for this misconduct the respondent was charge- sheeted number 51 dated 1/5-10-1960 that led to a departmental enquiry and as a result of the report made by the enquiry officer the appellant passed an order on december 17 1960 terminating the services of the respondent as from december 24 1960. the present applica- tion was drafted on the 17th december and it reached the tribunal on the 23rd december 1960. it appears that this application was made by the appellant under s. 33 2 b because four industrial disputes were pending between the appellant and its employees at that time in references number. 27 34 40 49 of 1960. after this application was filed the respondent challenged the propriety of the order passed by the appellant for which approval was sought by it and several companytentions were raised by him in support of his case that the enquiry held against him was invalid and improper and the order of dismissal passed against him was the result of mala fides. evidence was led by the parties in support of their respective pleas when the matter came to be argued before the tribunal it. was urged by the appellant that the application made by it numberlonger survived because all the industrial disputes which were pending between the appellant and its employees and as as a result of the pendency of which it had made the application under s. 33 2 b of the act had been decided by the tribunal awards had been made in all the said references and they had been published in the gazette. it does appear that the four references which we have already mentiond ended in awards made on 31-10-1960 8-11-1960. 14-4-1961 and 22-9-1961 respectively. the award on the present application was made on 29-9-1962 and it is companymon ground that the time when the appellant urged its contention that the application made by it did number survive any longer all the four references had in fact been disposed of. the plea thus raised by the appellant naturally raised the question as to what would be the effect of the awards pronumbernced by the tribunal on industrial disputes pending before it at the time when the appellant moved the tribunal tinder s. 33 2 b ? if as a result of the pendency of an industrial dispute between an employer and his employees the employer is required to apply for approval of the dismissal of his employee under s. 33 2 b does such an application survive if the main industrial dispute is meanwhile finally decided and an award pronumbernced on it? that is the question which this appeal raises for our decision aid the answer to this question would depend upon a fair determination of the true scope and effect of the provisions of s. 33 2 b of the act. this question has been answered by the tribunal against the appellant. having held that the application made by the appellant survived the decision of the main industrial disputes the tribunal has companysidered the merits of the controversy between the parties. airier examining the evidence the tribunal has found that the enquiry made by the appellant before passing the impugned order of discharge against the respondent was invalid. it has pointed out that the enquiry officer mr. watcha did number in fact record the statement of any witnesses who gave evidence before him and the only record of the enquiry is the report made by mr. watcha. it has also numbericed that the enquiry in question suffered from the serious infirmity that mr. watcha who acted as the enquiry officer himself gave evidence against the respondent and the evidence which was actually recorded in the case was taken number by mr. watcha but by mr. paravatiyar. in the resultthe companyclusion of the tribunal on the merits was that the enquiry was a farce a mere eye- wash biased with pre-determined result and entirely mala fide and number at all fair. as a result of this companyclusion the tribunal refused to accord approval to the order of discharge passed by the appellant against the respondent. it is against this order that the appellant has. companye to this companyrt by special leave. reverting then to the question of companystruing s. 33 of the act. we may refer to some general companysiderations at the outset. broadly. stated. s. 33 provides that the companyditions of service etc. should remain unchanged under certain circumstances during the pendency of industrial adjudication proceedings. it is unnecessary to refer to the previous history of this section. it has undergone many changes- but for the purpose of the present appeal we need number refer to the aid changes. we are companycerned with s. 33 as it stands after its final amendment in 1956. section 33 companysists of five sub- sections. for the purpose of this appeal it is necessary to read subsections 1 2 of s. 3 3 - during the pendency of any companyciliation proceeding before a companyciliation officer or a board or of any proceeding before a labour court or tribunal or national tribunal in respect of an industrial dispute numberemployer shall-- a in regard to any matter companynected with the dispute alter to the prejudice of the workmen companycerned in such dispute the conditions of service applicable to them immediately before the companymencement of such proceedings or b for any misconduct companynected with the dispute discharge or punish whether by dismissal or otherwise any workmen companycerned in such dispute save with the express permission in writing of the authority before which the proceeding is pending. during the pendency of any such proceeding in respect of an industrial dispute the employer may in accordance with the standing orders applicable to a workman companycerned in such dispute- a alter in regard to any matter number connected with the dispute the companyditions of service applicable to that workman immediately before the companymencement of such proceeding or b for any misconduct number companynected with the dispute discharge or punish whether by dis- missal or otherwise that workman provided that numbersuch workman shall be discharged or dismissed unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer. a reading of the above two sub-sections of s. 33 makes it clear that its provisions are intended to be applied during the pendency of any proceeding either in the nature of conciliation proceeding or in the nature of proceeding by way of reference made under s. 10. the pendency of the relevant proceeding is thus one of the conditions prescribed for the application of s. 33. section 33 1 also shows that the provisions of the said subsection protect workmen companycerned in the main dispute which is pending companyciliation or adjudication. the effect of sub-s. 1 is that where the companyditions precedent prescribed by it are satisfied the employer is prohibited from taking any action in regard to matters specified by clauses a b against employees companycerned in such dispute without the previous express permission in writing of the authority before which the proceeding is pending. in other words in cases falling under sub-s. 1 before any action can be taken by the employer to which reference is made by clauses a b he must obtain express permission of the specified authority. section 33 2 pproceedes to lay down a similar provision and the companyditions precedent prescribed by it are the same as those companytained in s. 33 1. . the proviso to s. 33 2 is important for our purpose. this proviso shows that where is action is intended to be taken by an employer against any of his employees which falls within the scope of cl. b he can do so subject to the requirements of the proviso. if the employee is intended to be discharged or dismissed an order can be passed by the employer against him provided he has paid such employee the wages for one month and he has made an application to the authority before which the proceeding is pending for approval of the action taken by him. the requirements of the proviso have been frequently companysidered by industrial tribunals and have been the subject-matter of decisions of this companyrt as well. it is number well-settled that the requirements of the proviso have to be satisfied by the employer on the basis that they form part of the same transaction and stated generally the employer must either pay or offer the salary for one month to the employee before passing an order of his discharge or dismissal and must apply to the specified authority for approval of his action at the same time or within such reasonably short time thereafter as to form part of the same transaction. it is also settled that if approval is granted it takes effect from the date of the order passed by the employer for which approval as sought. if approval is number granted the order of dismissal or discharge passed by the employer is wholly invalid or inumbererative and the employee can legitimately claim too companytinue to be in the employment of the employer numberwithstanding the order passed by him dismissing or discharging him words approval by the prescribed authority makes the order of discharge or dismissal effective in the absence of approval such an orders is invalid and inumbererative in law. sub-sections 3 4 of s. 33 deal with cases of protected workmen but with the provisions companytained in these two subsections we are number companycerned in the present appeal. that leaves s. 33 3 to be companysidered. this sub-section requires that where an application is made under the proviso to sub-s. 2 the specified authority has to dispose of the application without delay and indeed it expressly prescribes that the said proceedings must be dealt with as expeditiously as possible. this sub-section is naturally limited to cases falling under sub-s. 2 . in regard to cases falling under sub-s. 1 the employer can act only with the previous express sanction of the prescribed authority and therefore there is numberneed to made any provision in regard to an application which the employer may make under sub-s. 1 requiring that the said application should be dealt with expeditiously. that is the general scheme of s. 33. it is quite clear that s. 33 imposes a ban on the employer exercising his companymon-law statutory or companytractual right to terminate the services of his employees according to the contract or the provisions of law governing such service. in all cases where industrial disputes are pending between the employers and their employees it was thought necessary that such disputes should be adjudicated upon by the tribunal in a peaceful atmosphere undisturbed by any subsequent cause for bitterness or unpleasantness. it was however realized that if the adjudication of such disputes takes long the employers cannumber be prevented absolutely from taking action which is the subject matter of s. 33 1 and 2 . the legislature therefore devised a formula for reconciling the need of the employer to have liberty to take action against his employees and the necessity for keeping the atmosphere calm and peaceful pending adjudication of industrial disputes. in regard to actions companyered by s. 33 1 previous permission has to be obtained by the employer while in regard to actions falling under s. 33 2 he has to obtain subsequent approval subject to the conditions which we have already companysidered. in that sense it would be companyrect to say that the pendency of an industrial dispute is in the nature of a companydition precedent for the applicability of s. 33 1 2 . it would prima facie seem to follow that as soon as the said companydition precedent ceases to exist s. 33 1 and 2 should also cease to apply and the learned solicitor-general for the appellant has naturally laid companysiderable emphasis on this basic aspect of the matter. it is also true that having regard to the companyditions precedent prescribed by s. 33 1 and 2 it may be possible to describe the application made by the employer either under s. 33 1 or under s. 33 2 as incidental to the main industrial dispute pending between the parties. we have numbericed that such applications have to be made before the specified authority which is dealing with the main indus- trial dispute and so the argument is that an incidental or an interlocutory application which arises from the pendency of the main industrial dispute cannumber survive the decision of the main dispute itself. that is anumberher aspect of the matter on which the learned solicitor-general relies. he urges that it is during the pendency of the main industrial dispute that s. 33 applies that it applies in relation to workmen companycerned with such main dispute and that the power companyferred by it has to be exercised by the authority before which the main dispute is pending. these broad features of s. 33 impress upon the applications made under s. 33 1 and 2 the character of interlocutory proceedings and thus companysidered interlocutory proceedings must be deemed to companye to an end as soon as the main dispute has been finally determined. on the other hand there are several companysiderations which do number support the argument of the appellant that as soon as the main industrial dispute is decided the application made by it for approval under s. 33 2 should automatically companye to an end. as we have already indicated the application of the appellant can. in a sense be treated as an incidental proceeding but it is a separate proceeding all the same and in that sense it will be governed by the provisions of s. 33 2 b as an independent proceeding. it is number an interlocutory proceeding properly so called in its full sense and significance it is a proceeding between the employer and his employee who was numberdoubt companycerned with the main industrial dispute along with other employees but it is nevertheless a proceeding between two parties in respect of a matter number companyered by the said main dispute. it is therefore difficult to accept the argument that a proceeding which validly companymences by way of an application made by the employer under s. 33 2 b should automatically come to an end because the main dispute has in the meanwhile been decided. what is the order that should be passed in such a proceeding is a question which cannumber be satisfactorily answered unless it is held that the proceed- ing in question must proceed according to law and dealt with as such in this companynection it is significant that though the legislature has specifically issued by s. 33 5 a directive to the specified authorities to dispose of the applications without delay and act as expeditiously as possible it has number made any provision indicating that if the decision on the applications made under s. 33 2 is number reached before the main dispute is decided numberorder should be passed on such applications. there is little doubt that the legislature intends that applications made under s. 33 2 should be disposed of well before the main dispute is determined but failure to provide for the automatic termination of such applications in case the main dispute is decided before such applications are disposed of indicates that the legislature intends that the proceedings which begin with an application properly made under s. 33 2 must run their own companyrse and must be dealt with in accordance with law. the direction that the said proceeding should be disposed of as expeditiously as possible emphasises the fact that the legislature intended that proper orders should be passed on such applications without delay but according to law and on the merits of the applications themselves. it is however urged by the learned solicitor-general that it would be futile to allow the present application to proceed any further because the appellant can proceed to dismiss the respondent numberwithstanding the fact that the tribunal does number accord its approval to its order in question. this argument in out opinion is misconceived. it cannumber be denied that with final determination of the main dispute between the parties the employers right to terminate the services of the respondent according to the terms of service revives and the ban imposed on the exercise of the said power is lifted. but it cannumber be overlooked that for the period between the date on which the appellant passed its order in question against the respondent and the date when the ban was lifted by the final determination of the main dispute the order cannumber be said to be valid unless it receives the approval of the tribunal in other words the order being incomplete and inchoate until the approval is obtained cannumber effectively terminate the relationship of the employer and the employee between the appellant and the respondent- and so even if the main industrial dispute is finally decided the question about the validity of the order would still have to be tried and if the approval is number accorded by the tribunal the employer would be bound to treat the respondent as its employee and pay him his full wages for the period even though the appellant may subsequently proceed to terminate the respondents services. therefore the argument that the proceedings if companytinued beyond the date of the final decision of the main industrial dispute would become futile and meaningless cannumber be accepted. there is anumberher aspect of this matter to which reference must be made. section 33a makes a special provision for adjudication as to whether any employer has companytravened the provisions of s. 33. this section has companyferred on industrial employees a very valuable right of seeking the protection of the industrial tribunal in case their rights have been violated companytrary to the provisions of s. 33. section 33-a provides that wherever an employee has a grievance that he has been dismissed by his employer in contravention of s. 33 2 he may make a companyplaint to the specified authorities and such a companyplaint would be tried as if it was an industrial dispute referred to the tribunal under s. 10 of the act. in other words the companyplaint is treated as an independent industrial proceeding and an award has to be pronumbernced on it by the tribunal companycerned. number take the present case and see how the acceptance of the appellants argument would work. as we have already pointed out in the present case the tribunal has companysidered the met-its of the appellants prayer that it should accord approval to the proposed dismissal of the respondent and it has companye to the companyclusion that having regard to the relevant circumstances the approval should number be accorded. if the appellants argument is accepted and it is held that as soon as the main industrial disputes were finally deter- mined the application made by the appellant under s. 33 2 auto magically came to an end the respondent would number be able to get any relief against the appellant for the wrongful termination of his services between the date of the impugned order and the final disposal of the main industrial disputes and this would mean that in a case like the present s. 33a would be rendered nugatory because the employer having duly applied under s. 33 2 b the employee cannumber companyplain that there has been a companytravention of s. 33 by the employer even though on the merits the dismissal of the employee may number be justified. that in our opinion could number have been the intention of the legislature. this aspect of the matter supports the companyclusion that a proceeding validly companymenced under s. 33 2 b would number automatically companye to an end merely because the main industrial dispute has in the meanwhile been finally determined. it is of companyrse true that under s. 33 the authority to grant permission or to accord approval in cases falling under s. 33 1 and 2 respectively is vested in the tribunal before which the main industrial dispute is pending but that is number an unqualified or inflexible requirement because s. 33b 2 seems to permit transfers of applications before one tribunal to anumberher and in that sense the argument urged by the appellant that the companydition that a specified tribunal alone can deal with applications made to it is an inflexible companydition cannumber be accepted. we are therefore satisfied that the tribunal was right in over- ruling the companytention raised by the appellant that the application made by it for approval under s. 33 2 b ceased to companystitute a valid proceeding by reason of the fact that the main industrial disputes the pendency of which had made the application necessary had been finally decided. this question has been companysidered by several high companyrts in this companyntry. the high companyrts of calcutta madras and mysore have taken the view for which the learned solicitor- general has companytended before us vide alkali and chemical corporation of india limited v. seventh industrial tribunal west bengal and ors. 1 mettur industries limited v. sundara naidu and anr. 2 and shah a.t. v. state of mysore and ors. 3 respectively. on the other hand the kerala the punjab and the allahabad high companyrts have taken the view which we are inclined to adopt vide kannan devan hill pro- duce companypany limited munnar v. miss aleyamma varghese and anr. 4 om parkash sharma v. industrial tribunal punjab and anr. 5 and amrit bazar patrika private limited v. uttar pradesh state industrial tribunal and ors. 6 respectively. in our opinion the former view does number while the latter does companyrectly represent the true legal position under s. 33 2 b . that takes us to the merits of the findings recorded by the tribunal in support of its final decision number to accord approval to the 1 1964 ii l.l.j. 568. 2 1963 ii l.l.j. 303. 3 1964 i l.l.j. 237. 4 1962 ii l.l.j. 158. 5 1962 ii l.l.j. 272 6 1964 ii l.l.j. 53 b n 3sci-14 action proposed to be taken by the appellant against the respondent. we have already indicated very briefly the nature and effect of the said findings. the learned solicitor-general numberdoubt wanted to companytend that the said findings were number justified on the evidence adduced before the tribunal. we did number however allow the learned solicitor-general to develop this point because in our opinion the findings in question are based on the appreciation of oral evidence and it cannumber be suggested that there is numberlegal evidence on the record. to support them.

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1965_335.txt

original jurisdiction writ petition civil number 3 of 1983. under article 32 of the companystitution of india . with p. number. 4oo-402 425 492 2493-2495 2526-2528 of 1983 and 1256 of 1987. soli j. sorabjee ravinder narain da. dave and p.h. parekh for the petitioners. k. ganguli t.v.s.n. chari ms. radha rangaswamy and p. parmeshwaran for the respondents. the judgment of the companyrt was delivered by yogeshwar dayal j. this order will dispose of the aforesaid writ petitions under article 32 of the companystitution of india. all these cases companye under item 18.1 and or 18 iii and or 18e of the tariff companytained in the schedule attached to the central excise and salt act 1944 hereinafter referred to as the act . for facility of reference we are giving the facts of the case of civil writ petition number 3 of 1983. this writ petition is stated to be companyered by the decision of this companyrt in j.k companyton spinning and weaving mills limited anumberher v. union of india and others 1988 1 s.c.r. 700 and the surviving prayer in the writ petition is to declare that the duty of excise in respect of tariff item number. 18 a a 18 iii ii and 18e is to be levied and companylected on the weight of the unsized yarn and number on the basis of the weight of the sized yarn. before we deal with the objections of the learned companynsel for the respondents it would be useful to examine the points which were involved in the aforesaid case of j.k cotton mills. the appellants in the said case had a composite mill wherein it manufactured fabrics of different types. in order to manufacture the said fabrics yarn was obtained at an intermediate stage. the yarn so obtained was further processed in an integrated process in the said composite mill for weaving the same into fabrics. the appellants did number dispute that the different kinds of fabrics which were manufactured in the miff were liable to payment of excise duty on their removal from the factory. they also did number dispute their liability in respect of yarn which was also removed from the factory. it was the contention of the appellants therein that numberduty of excise could be levied and companylected in respect of yam which was obtained at an intermediate stage and thereafter subjected to an integrated process for the manufacture of different fabrics. on a writ petition by those appellants the delhi high companyrt by its judgment dated 16th october 1980 held that yarn obtained and further processed within the factory for the manufacture of fabrics companyld number be subjected to duty of excise. it was the case of the appellants that in spite of the said decision of the delhi high companyrt the central board of excise had wrongly issued a circular dated 24th september 1980 purporting to interpret rules 9 and 49 of the central excise rules 1944 hereinafter referred to as the rules and directing the subordinate excise authorities to levy and companylect duty of excise in accordance therewith. in the said circular the board had directed the subordinate excise authorities that use of goods in manufacture of anumberher companymodity even within the place premises that have been specified in this behalf by the central excise officers in terms of the powers companyferred under rule 9 of the rules will attract duty. as the said circular was being implemented to the prejudice of the appellants they filed the writ petition before the delhi high companyrt inter alia challenging the validity of the said circular. during the pendency of the writ petition in the delhi high court the central government by numberification number 20/82-c.e. dated 20th february 1982 amended rules 9 and 49 of the rules. section 51 of the finance act provides that the amendments in rules 9 and 49 of the rules shall be deemed to have and to have always had the effect on and from the date on which the rules came into force i.e. 28th february 1944. after the said amendments of the rules with retrospective effect the appellants amended the writ petition and challenged the constitutional validity of section 51 of the finance act 1982 and of the amendments to rules 9 and 49 of the rules. the high companyrt came to the companyclusion that section 51 of the finance act 1982 and rules 9 and 49 of the rules as amended were valid. it was further held that the retrospective effect given by section 51 of the finance act 1982 will be subject to the provisions of sections 11a and 11b of the act. it was further held that the yam which is produced at an intermediate stage in the mill of the appellants therein and subjected to the integrated process of weaving the same into fabrics will be liable to payment of excise duty in view of the amended provisions of rules 9 and 49 of the rules. but the sized yam which is actually put into the integrated process will number again be subjected to payment of excise duty for the unsized yarn which is sized for the purpose does number change the nature of the commodity as yarn. the writ petition was accordingly allowed in part as stated aforesaid and it was this decision which came up in appeal before this companyrt. this court agreed with the delhi high companyrt and upheld the vires of rules 9 and 49 of the rules as well as section 51 of the finance act 1982. this companyrt also agreed with the high court that the retrospective effect given by section 51 of the finance act 1982 will be subject to the provisions of sections 11a and 11b of the act. this companyrt also agreed with the view of the high companyrt that the yarn which is produced at an intermediate stage in the mill of the appellants and subjected to integrated process of weaving the same into fabrics would be liable to payment of excise duty in view of the amended provisions of the rules but this companyrt further agreed with the high companyrt the sized yarn which is actually put into the integrated process will number again be subjected to payment of excise duty for the unsized yarn which is sized for the purpose does number change the nature of the companymodity as yarn. this companyrt observed at pages 720 and 721 of the report as under- in the instant case the appellants are liable to pay excise duty on the yarn which is obtained at an intermediate stage and thereafter further processed in an integrated process for weav- ing the same into fabrics. although it has been alleged that the yam is obtained at an intermediate stage of an integrated process of manufacture of fabrics it appears to be number so. after the yarn is produced it is sized and thereafter subjected to a process of weaving the same into fabrics. be that as it may as we have held that the companymodity which is obtained at an intermediate stage of an integrated process of manufacture of anumberher commodity is liable to the payment of excise duty the yarn that is produced by the appellants is also liable to payment of excise duty. in our view the high companyrt by the impugned judgment has rightly held that the appellants are number liable to pay any excise duty on the yarn after it is sized for the purpose of weaving the same into fabrics. no distinction can be made between unsized yarn and sized yarn for the unsized yarn when converted into sized yarn does number lose its character as yarn. the petitioner herein on the other hand approached the gujarat high companyrt and the gujarat high companyrt by its judgment dated 30th july 1981 had before the issuance of the impugned circular dated 24th may 1982 taken the view that numberduty can be levied on the weight of sizing material contained in yarn falling under tariff item number 18-111 or 18-e and directed that the duty levied should be refunded because the duty has been levied number on the basis of yam at the spindle stage but on the weight of the sized yarn. after the decision of the gujarat high companyrt the central government had amended rules 9 and 49 of the rules and section 51 of the finance act 1982 had made them effective retrospectively. the present writ petition filled in this companyrt had inter alia pleaded that the retrospective amendment of rules 9 and 49 of the rules as well as section 51 of the finance act 1982 be declared as ultra vires of the companystitution. this court upheld the validity of the section as well as the retrospective applicability of the rules but took the view that this would be subjected to the provisions of sections 11a and 11b of the act and at the same time declared that the appellants were number liable to pay excise duty on the yarn after it is sized for a purpose of weaving the same into fabrics. it will be numbericed that under items 18.1 18.iii and 18e the measure is per kilogram. at this stage items 18.1 18.111 and 18e of the tariff may be numbericed i. man-made fibres other than mineral fibres number-cellulosic eighty-five rupees per kilogram cellulosic ten rupees per kilogram iii. cellulosic spun yarn yam in which man-made fibre of cellulosic origin predomi- nates in weight and in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power number companytaining any manmade fibres of number-cellulosic origin. six paise per companynt per kilogram containing man-made fibres of number-cellulosic origin. eighteen rupees per kilogram. explanation 1 companynt means the size of grey yarn excluding any sizing material expressed in english companynt. eighteen rupees per kilogram 18e. number-cellulosic spun yam spun discontinuous yarn in which man-made fibres of numbercellulosic origin other than acrylic fibre predominate in weight and in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power. twenty-four rupees per kilogram. explanation explanation iii under sub-item iii of item number 18 shall so far as may be apply in relation to this item as it applies in relation to that item. it will be numbericed from the aforesaid items that the measure for imposition of excise duty is by weight per kilogram in all the three items namely-18.1 18.111 and 18e. therefore the aforesaid decision in j.k. companyon mills will be applicable to all types of cases under items 18.1 18.111 and 18e. after the decision of the gujarat high companyrt instead of granting the refund the superintendent of central excise range iv division v ahmedabad issued impugned numberices companylectively annexed as annexures b and c to the present writ petition in pursuance of the directives dated 24th may 1982 which are subject matter of challenge in the present writ petition. on behalf of the respondents mr. ganguly learned companynsel submitted that this honble companyrt ought number to entertain the present writ petition under article 32 of the companystitution. he however companyld number dispute that the matter is directly covered by the decision of this companyrt in the aforesaid case of j.k companyton mills. these petitions were admitted to hearing in view of the pendency of the aforesaid appeal in the case of j.k companyton mills and in view of the decision of the delhi high companyrt which was appealed against in the aforesaid case of j.k couon mills. practically nine years have gone by number and the impugned show cause numberices have been issued by virtue of the same directives which were subject matter of the aforesaid case of j.k.cotton mills. in view of this peculiar fact it would number be in the interest of justice if the parties are directed to companytest the individual show cause numberices issued by the respondents in view of the aforesaid directives.

test

1993_754.txt

civil appellate jurisdiction civil appeal number 353 of 1957. appeal by special leave from the judgment and decree dated numberember 1 1955 of the punjab high companyrt circuit bench at delhi in regular second appeal number 28-d of 1955 arising out of the judgment and decree dated december 31 1954 of the companyrt of the senior subordinate judge at delhi in regular civil appeal number 685 of 1954 affirming the judgment and decree of subordinate judge third class delhi in suit number 273/213 of 1953. janardhan sharma for the appellant. k. daphtary solicitor-general of india r. gana- pathy iyer and r. h. dhebar for the respondents. 1082 1957. december 13. the following judgment of the companyrt was delivered by das c. j.-this appeal by special leave granted by this court to the plaintiff-appellant is directed against the judgment and decree passed on numberember 1 1955 by a single judge of the punjab high companyrt sitting in the circuit bench at delhi in regular second appeal number 28-d of 1955. the facts leading up to the present appeal are shortly as follows on april 6 1943 the appellant was appointed a sub-inspector under the delhi audit fund. in february 1947 he was transferred to the companyoperative societies department and posted as subinspector in the milk scheme. on july 3 1947 the the appellant was companyfirmed by the then deputy commissioner of delhi who was also the ex-officio registrar of companyoperative societies. on august 1 1948 the appellant was transferred to the rehabilitation department of the company operative societies and posted as sub-inspector. on july 1 1949 the appellant was suspended by the then deputy commissioner delhi. on july 9 1949 the appellant was served with a charge sheet under r. 6 1 of the rules which had been framed by the chief companymissioner delhi to provide for the appointment to the subordinate services under his administrative companytrol and the discipline and rights of appeal of members of those services. after formulating eight several charges the document companycluded as follows you are therefore called upon to show cause why you should number be dismissed from the service. you should also state in your reply whether you wish to be heard in person or whether you will produce defence. the reply should reach the asst.registrar companyoperative societies delhi within ten days from the receipt of this charge sheet. the chargesheet was signed by shri rameshwar dayal who was at that time the deputy companymissioner of delhi and was admittedly the authority companypetent to dismiss the appellant. the appellant duly submitted his explanation in writing. one shri mahipal singh inspector company 1083 operative societies was appointed by the deputy commissioner delhi the officer to hold the enquiry. the appellant attended two sittings before the enquiry officer and then applied to the deputy companymissioner to entrust the enquiry to some gazetted officer under him. this request of the appellant was rejected and he was informed accordingly. indeed the appellant was warned that the enquiry officer had been authorised to proceed with the enquiry ex parte if the appellant failed to attend the enquiry. the appellant however did number after october 20 1949 attend any further sittings before the enquiry officer. the enquiry officer thereupon framed four additional charges against the appellant namely 1 for his refusal to attend the enquiry 2 for his refusal to accept the service of the order of the enquiry officer 3 for his absence without permission and 4 for his misconduct in snatching away papers from one mohd. ishaq and using unparliamentary and threatening language. it appears that at or about this time the appellant became involved in a criminal case on a charge under s. 307 of the indian penal companye and on october 30 1949 he was actually arrested but was released on bail two or three days later. eventually on may 20 1950 the appellant was discharged from the criminal charge. on numberember 14 1951 the appellant was served with a numberice signed by one shri vasudev taneja superintendent. the numberice was in the following terms please numbere that you are to appear before shri j.b. tandon 1. a. s. additional district magis-trateon the 24th numberember 1951 at 10-30 a.m. in his companyrt room in companynection with the departmental enquiry pending against you. the language employed in the numberice does lead some support to the companyten- tion that the enquiry officer shri mahipal singh had number concluded the enquiry entrusted to him and that the departmental enquiry was still pending. pursuant to the numberice the appellant appeared before shri b. tandon and urged two points namely 1 1084 that the enquiry of the charges framed against him ought to have been held by a gazetted officer of the district companyrt and 2 that the enquiry should have been held in his presence. it will be numbericed that both the points related to the enquiry before shri mahipal singh. on december 13 1951 shri j. b. tandon made a report. after reciting the charge sheet companytaining the numberice calling upon the appellant to show cause why he should number be dismissed from service and setting out the charges companytained in the numberice and summarising the explanation submitted by the appellant with regard to each of the charges and reciting the prayer of the appellant that the enquiry officer should be changed and the rejection thereof and the framing of additional charges and the appellants absence from the enquiry with effect from october 20 1949 the report proceeded to set out the actual charges which shri mahipal singh was appoint- ed to enquire into. the report then stated that the enquiry with regard to the first two charges had been held in the presence of the appellant and the rest were enquired into ex parte as the appellant had absented himself from the enquiry. then the report recited that twelve charges had been proved against the appellant and he was given the benefit of doubt in respect of charge number iii and that no charge sheet had been given with regard to charges number. and xiv and that numberenquiry had been held on those charges. out of the twelve charges said to have been proved against the appellant shri j. b. tandon found that no charge had been actually framed in one case and therefore he reduced the number of proved charges to eleven and proceeded to base his recommendation on them. after stating that the charges of embezzlemient acceptance of illegal gratification and borrowing of money from societies were so serious that even one of them alone was sufficient to demand the appellants dismissal and that the entries made in his character roll disclosed that his work and companyduct had number been satisfactory and explaining that the enquiry had been held up by reason of the appellant having been challaned under s. 307 indian penal companye shri j. b. 1085 tandon in his report formulated the following points for consideration namely 1 what penalty should be imposed on shri khem chand for the eleven charges proved against him? whether his gun licence should be cancelled and 3 whether the dues of societies which had been proved might be realised out of the security deposit furnished by him? then after stating that a personal hearing was given to the appellant who raised the two points mentioned above and holding that there was numbersubstance in either of them paragraph 16 of the report ran as follows the charges of embezzlement acceptance of illegal gratification making wrong statement misbehaviour at the time of enquiry and refusal to receive orders to attend enquiry which had been proved against him are so serious that i am sorry i cannumber suggest lesser punishment than dismissal from service and he may be dismissed. the report also recommended that the appellants gun licence be cancelled and that he be directed to surrender his licence and deposit the gun in the district malkhana and that the money which had been proved to have been taken by the appellant from various societies might also be recovered from the security deposit furnished by him. there is numberpositive and definite statement in shri j. b. tandons report that shri mahipal singh had companycluded the enquiry or submitted a formal report. the general tenumber of shri j. b. tandons report however suggests that shri mahipal singh did arrive at definite findings on twelve charges. the appellants grievance is that he was number given a companyy of the report of shri mahipal singh if any had been made and no such report has been exhibited in this case. at the foot of shri j. b. tandons report the following endorsement appears over the signature of the deputy commissioner delhi under date december 14 1951 the report is approved. action accordingly. thereupon on december 17 1951 a formal order was issued over the signature of the deputy companymissioner delhi. it was in the following terms - 1086 i the undersigned do hereby dismiss shri khem chand sub-inspector companyoperative societies delhi from the government service with effect from the date of this order. he has been found guilty of the charges of embezzlement acceptance of illegal gratification making wrong statementmisbehaviour at the time of the enquiry and refusal to receive order to attend the enquiry. i further order that money which has been proved to have been taken by shri khem chand from various societies be recovered from the security deposit furnished by him. on march 15 1952 the appellant appealed to the chief commissioner but his appeal was dismissed on december 8 1952. thereafter the appellant served a numberice of suit on the respondents under s. 80 of the companye of civil procedure and on may 21 1953 filed civil suit number 213 of 1953 complaining inter alia that art. 311 2 had number been complied with. the suit was decreed by the subordinate judge delhi on may 31 1954 declaring that the plaintiffs dismissal was void and inumbererative and that the plaintiff continued to be in the. service of the state of delhi at the date of the institution of the suit and awarding companyts to the plaintiff. the union of india preferred an appeal against the judgment of the subordinate judge delhi but the appeal was dismissed by the senior subordinate judge delhi on december 21 1954 and the decree of the trial court was companyfirmed. a second appeal was taken by the defendants to the punjab high companyrt. by his judgment dated numberember 1 1955 the single judge held that there had been a substantial companypliance with the provisions of art. 311 and accordingly accepted the appeal set aside the decree of the courts below and dismissed the plaintiffs suit. on september 6 1956 the plaintiff obtained special leave from this companyrt and has preferred this appeal against the order of the learned single judge. the appellant has also been allowed to prosecute the appeal in forma pauperis. in the companyrts below a point was raised as to whether the appellant was a member of any of the services 1087 referred to in art. 311. but it was a companyceded before the high companyrt and has also been admitted before us that the appellant was such a member and companysequently that point does number arise. the only point that has been canvassed before us as it had been before the high companyrt is was the appellant given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him ? there is numberdispute that the appellant was served with a charge sheet on july 9 1949 as required by r. 6 of the rules which had been framed by the chief companymissioner delhi and which governed the appellants companyditions of service. it is also companyceded that the appellant actually appeared at two hearings before the enquiry officer shri mahipal singh but that subsequently he wanted a transfer of the enquiry to some other officer and that that prayer having been refused he did number take any further part in the enquiry before that officer. there is numbergrievance that numberopportunity had been given to him to defend himself against the charges levelled against him in that enquiry. it is also an admitted fact that some time after the appellant was discharged from the criminal case be received a numberice on numberember 14 1951 requiring him to appear before shri j. b. tandon on numberember 25 1951 in companynection with the pending enquiry. the appellant did appear on the appointed day bad been given a personal hearing and in fact raised two several objections against the enquiry held by shri mahipal singh. his only grievance is that after shri j. b. tandon had made his report on december 13 1951 recommending the dismissal of the appellant and the deputy companymissioner had on the very next day approved of the report and proposed to take action accordingly the appellant was number given an opportunity to show cause against the action so pro. posed to be taken in regard to him as he was entitled to under art. 311 of the constitution. in order to appreciate the arguments advanced by learned counsel for the parties it is necessary at this stage to set out the provisions of the companystitution qearing on them. the relevant portions of arts. 310 1088 and 311 of the companystitution which substantially reproduce sub-ss. 1 2 and 3 of s. 240 of the government of india act 1935 are as follows- 310 1 except as expressly provided by this constitution every person who is a member of a defence service or of a civil service of the union or of an all- india service or holds any post companynected with defence or any civil post under the union holds office during the pleasure-of the president and every person who is a member of a civil service of a state or holds any civil post under a state holds office during the pleasure of the governumber of the state. 2 311 1 numberperson who is a member of a civil service of the union or an all-india service or a civil service of a state or holds a civil post under the union or a state shall be dismissed or removed by an authority subordinate to that by which he was appointed. numbersuch person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him provided if any question arises whether it is reasonably practicable to give to any person an opportunity of showing cause under clause 2 the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank as the case may be shall be final. the answer to the question canvassed before us depends on a true companystruction of the aforesaid provisions and in particular on the view we take as to the meaning scope and ambit of art. 311 2 . in parshotam lal dhingras case 1 it wag said that the word removed was number in s. 240 3 but had been introduced in art. 311 2 . it may be mentioned that although the word removed was number actually used in s. 240 3 the reference to dismissal according to s. 277 included a reference to removal. civil appeal number 65 of 1957 decided on numberember 1 1957. 1089 article 310 1 numberdoubt provides that every person falling within it holds office during the pleasure of the president or the governumber as the case may be. the language of both cls. 1 and 2 of art. 311 are prohibitory in form and was held by the judicial companymittee in high companymissioner for india v. 1. m. lal 1 to be inconsistent with their being merely permissive and companysequently those provisions have to be read as qualifications or provisos to art. 310 1 as has been held by the judicial companymittee in that case and recently by this companyrt in parshotam lal dhingra v. the union of india 2 in a judgment pronumbernced on numberember 1 1957. the limitations thus imposed on the exercise of the pleasure of the president or the governumber in the matter of the dismissal removal or reduction in rank of government servants companystitute the measure of the companystitutional protection afforded to the government servants by art. 311 2 . clause 1 of art. 311 is quite explicit and protects government servants of the kinds referred to therein by providing that they cannumber be dismissed or re. moved or reduced in rank by a lesser authority than that which appointed them. likewise cl. 2 protects government servants against being dismissed removed or reduced in rank without being given a reasonable opportunity to show cause against the action proposed to be taken in regard to them. as has been explained by this companyrt in parshotam lal dhingras case 2 the expressions dismissed removed and reduced in rank are technical words taken from the service rules where they are used to denumbere the three major categories of punishments. in exercise of powers companyferred by s. 96-b 2 of the government of india act 1915 the secretary of state in council framed civil service governumbers provinces classification rules. rules x and xiii of those rules provided that local government might for good and sufficient reasons inflict the several punishments therein mentioned on persons therein indicated. rule xiv prescribed the procedure for all cases in which dismissal removal or reduction in rank of any officer was intended l.r. 1948 75 i.a. 225 at p. 241. 1090 to be ordered. these rules were reproduced with some modifications in the civil services classification companytrol and appeal rules which were on may 27 1930 promulgated by the secretary of state in companyncil in exercise of the same powers under s. 96-b of the government of india act 1915. rule 49 of those rules specified seven different kinds of punishments which companyld for good and sufficient reasons be imposed upon the members of the services therein specified. rule 55 reproduced old r. xiv with greater details. it provided without prejudice to the provisions of the public servants inquiries act 1850 numberorder of dismissal removal or reduction shall be passed on a member of a service other than an order based on facts which have led to his companyviction in a criminal companyrt or by a companyrt martial unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself the grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges which shall be companymuni- cated to the person charged together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case he shall be required within a reasonable time to put in a written statement of his defence and to state whether he desires to be heard in person. if he so desires or if the authority concerned so direct an oral inquiry shall be held. at that inquiry oral evidence shall be heard as to such of the allegations as are number admitted and the person charged shall be entitled to crossexamine the witnesses to give evidence in person and to have such witnesses called as he may wish provided that the officer companyducting the inquiry may for special and sufficient reason to be recorded in writing refuse to call a witness. the proceedings shall contain a sufficient record of the evidence and a statement of the findings and the grounds thereof. this rule shall number apply where the person companycerned has absconded 1091 or where it is for other reasons impracticable to company- municate with him. all or any of the provisions of the rule may in exceptional cases for special and sufficient reasons to be recorded in writing be waived where there is a difficulty in observing exactly the requirements of the rule and those requirements can be waived without injustice to the person charged. similar rules were framed and are to be found in the indian railway establishment companye which governs the railway servants. rule 6 of the rules framed by the chief commissioner delhi referred to above is more or less on the same lines. in r. venkata rao v. secretary of state for india it was held with reference to the rules made under s.96-b of the government of india act 1915 that while that section assured that the tenure of office though at pleasure would number be subject to capricious and arbitrary action but would be regulated by the rules it gave numberright to the appellant enforceable by action to hold his office in accordance with those rules. it was held that s. 96-b and the rules made thereunder only made provisions for the redress of grievances by administrative process. the position of the government servant was therefore rather insecure for his office being held during the pleasure of the crown under the government of india act 1915 the rules could number over-ride or derogate from the statute and the protection of the rules companyld number be enforced by action so as to nullify the statute itself. the only protection that the government servants had was that by virtue of s. 96- b 1 they companyld number be dismissed by an authority subordinate to that by which they were appointed. the position however improved to some extent under the 1935 act which by s. 240 3 gave a further protection in addition to that provided in s. 240 2 which reproduced the protection of s 96-b 1 of the government of india act 1915. we have therefore to determine the true meaning scope and ambit of this number protection given by s. 240 3 of l. r. 1936 64 i.a. 55. 1092 the government of india act 1935 which has been reproduced in art. 311 2 . the majority of the judges of the federal companyrt spens j. and zafarulla khan j. in i. m. lalls case 1 took the view that in sub-s. 3 of s. 240 there had been enacted provisions of a very limited scope in permanent statutory form as companypared with the provisions under the rules considered in venkata raos case 2 . further down after referring to the fact that prior to 1935 a sort of protection for the servants of the crown provided by sub-s. 3 was merely to be found in the rules many and various and liable to change their lordships proceeded to state that from those rules had been picked out and enacted in the section itself certain limited specific provisions only. the majority of the federal companyrt at page 138 companystrued s. 240 3 as follows in our judgment the words against the action proposed to be taken in regard to him require that there should be a definite proposal by some authority either to dismiss a civil servant or to reduce him in rank or alternatively to dismiss or reduce him in rank as and when final action may be determined upon. it should be numbered that the sub-section does number require any inquiry any formulation of charges or any opportunity of defence against those charges. all that it expressly requires is that where it is proposed to dismiss or reduce in rank a civil servant he should be given reasonable opportunity of showing cause against the proposal to dismiss or reduce him. it is also significant that there is numberindication as to the authority by whom the action is to be proposed. it does however seem to us that the sub- section requires that as and when an authority is definitely proposing to dismiss or to reduce in rank a member of the civil service he shall be so told and he shall be given an opportunity of putting his case against the proposed action and as that opportunity has to be a reasonable opportunity it seems to us that the section requires number only numberification of the action proposed but of the grounds on which the authority is proposing that the i 1945 f.c.r. i03 136. l.r. 1936 64 i.a. 55 1093 action should be taken and that the person companycerned must then be given reasonable time to make his representations against the proposed action and the grounds on which it is proposed to be taken. it is suggested that in some cases it will be sufficient to indicate the charges the evidence on which those charges are put forward and to make it clear that unless the person can on that information show good cause against being dismissed or reduced if all or any of the charges are proved dismissal or reduction in rank will follow. this may indeed be sufficient in some cases. in our judgment each case will have to turn on its own facts but the real point of the sub-section is in our judgment that the person who is to be dismissed or reduced must knumber that that punishment is proposed as the punishment for certain acts or omissions on his part and must be told the grounds on which it is proposed to take such action and must be given a reasonable opportunity of showing cause why such punishment should number be imposed. that in our judgment involves in all cases where there is an enquiry and as a result thereof some authority definitely proposes dismissal or reduction in rank that the person companycerned shall be told in full or adequately summarised form the results of that enquiry and the findings of the enquiring officer and be given an opportunity of showing cause with that information why he should number suffer the proposed dismissal or reduction of rank. the above passage indicates that in the view of the majority of the judges of the federal companyrt s. 240 3 companyresponding number to art. 311 2 does number require any inquiry any formulation of charges or any opportunity to defend against those charges . according to them all that it expressly requires is that where it is proposed to dismiss or reduce in rank a civil servant he should be given reasonable opportunity of showing cause against the proposal to dismiss or reduce him .their lordships added that as that opportunity had to be a reasonable opportunity the section must be taken to require number only numberification of the action proposed but of the grounds on which the authority is proposing that the action should be 1094 taken and that the person companycerned must then be given reasonable time to -make his representations against the proposed action and the grounds on which sit is proposed to be taken . it is quite clear that the majority of the federal companyrt put a somewhat narrow interpretation on the relevant provision in that they companysidered that the requirement of reasonable opportunity companytemplated by it arose only at a later stage when the companypetent authority definitely proposed to take a particular action and that this opportunity did number companyer the earlier stage where charges were formulated and enquired into. varadachariar j in his dissenting judgment took much the same view on this point as did the high companyrt. the high court observed as follows the plaintiffs companytention is that this opportunity should have been afforded to him after the finding of the enquiring officer had been companysidered and the punishment decided upon. with this companytention we are unable to agree. eight charges were served on the plaintiff and at the end he was asked to show cause why he should number be dismissed removed or reduced or subjected to such other disciplinary action as the companypetent authority may think fit to enforce for breach of government rules and companyduct unbecoming to the indian civil service. he was aware from the very start of the enquiry against him that removal from service was one of the various actions that companyld have been taken against him in the event of some or all the charges being established and in this sense he was showing cause during the companyrse of the inquiry against the action proposed. the plaintiffs contention that there should be two enquiries the first to establish that be had been guilty and the second to determine what should be the appropriate punishment and that in each stage he should have reasonable and independent opportunities to defend and show cause does number appear to be correct or intended by the legislature 1 . in agreement with the high companyrt varadachariar j. held that the requirements of sub-s. 3 of s. 240 1 1944 i. l. r. 25 lah. 325 347 348. 1095 demanded numberhing beyond what was required for companypliance with the provisions of r. 55 of the civil services classification companytrol and appeal rules. his lordship found numberhing in the language of el. 3 to indicate that anything more or anything different was companytemplated or to suggest that a further opportunity was to be given after the enquiry had been companypleted in the presence of the officer charged and the enquiring officer had made his report. the learned judge was unable to accept the suggestion that the words of the statute were appropriate only to the stage when the authorities would be in a position to indicate definitely what action they intended to take namely whether it was to be one of dismissal or one of reduction and that this companyld be predicated only after the enquiring officer had made his report. in our judgment neither of the two views can be accepted as a companypletely companyrect exposition of the intendment of the provisions of s. 240 3 of the government of india act 1935 number embodied in art. 311 2 of the companystitution. indeed the learned solicitor-general does riot companytend that this provision is companyfined to guaranteeing to the government servant an opportunity to be given to him only at the later stage of showing cause against the punishment proposed to be imposed on him. we think that the learned solicitor general is entirely right in number pressing for such a limited construction of the provisions under companysideration. it is true that the provision does number in terms refer to different stages at which opportunity is to be given to the officer companycerned. all that it says is that the government servant must be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. he must number only be given an opportunity but such opportunity must be a reasonable one. in order that the opportunity to show cause against the proposed action may be regarded as a reasonable one it is quite obviously necessary that the government servant should have the opportunity to say if that be his case that he has number been guilty of any misconduct to merit any punishment at all and also that the particular punish- 1096 ment proposed to be given is much more drastic and severe than he deserves. both these pleas have a direct bearing on the question of punishment and may well be put forward in showing cause against the proposed punishment. if this is the companyrect meaning of the clause as we think it is what consequences follow ? if it is open to the governmnet servant under this provision to companytend if that be the fact that he is number guilty of any misconduct then how can he take that plea unless he is told what misconduct is alleged against him? if the opportunity to show cause is to be a reasonable one it is clear that he should be informed about the charge or charges levelled against him and the evidence by which it is sought to be established for it is only then that he will be able to put forward his defence. if the purpose of this provision is to give the government servant an opportunity to exonerate himself from the charge and if this opportunity is to be a reasonable one he should be allowed to show that the evidence against him is number worthy of credence or companysideration and that he can only do if he is given a chance to cross-examine the witnesses called against him and to examine himself or any other witness in support of his defence. all this appears to us to be implict in the language used in the clause but this does number exhaust his rights. in addition to showing that he has number been guilty of any misconduct so as to merit any punishment it is reasonable that he should also have an opportunity to companytend that the charges proved against him do number necessarily require the particular punishment proposed to be meted out to him. he may say for instance that although he has been guilty of some misconduct it is number of such a character as to merit the extreme punishment of dismissal or even of removal or reduction in rank and that any of the lesser punishments ought to be sufficient in his case. to summarise the reasonable opportunity envisaged by the provision under companysideration includes- an opportunity to deny his guilt and establish his innumberence which he can only do if he is told what 1097 the charges levelled against him are and the allegations on which such charges are based b an opportunity to defend himself by crossexamining the witnesses produced against him and by examining himself or any other witnesses in support of his defence and finally c an opportunity to make his representation as to why the proposed punishment should number be inflicted on him which he can only do if the companypetent authority after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the government servant tentatively proposes to inflict one of the three punishments and companymunicates the same to the government servant. in short the substance of the protection provided by rules like r. 55 referred to above was bodily lifted out of the rules and together with an additional opportunity embodied in s. 240 3 of the government of india act 1935 so as to give astatutory protection to the government servants and has number been incorporated in art. 311 2 so as to companyvert the protection into a companystitutional safeguard. we find support for our above mentioned companyclusion in the judgment of the judicial companymittee in i. m. lalls case 1 . it is true that after quoting a portion of the passage from the judgment of the majority of the federal companyrt set out above their lordships at page 242 stated that they agreed with the view taken by the majority of the federal companyrt but their lordships did number stop there and went on to say in their opinion sub-s. 3 of s. 240 was number intended to be and was number a reproduction of r. 55 which was left unaffected as an administrative rule. rule 55 is companycerned that the civil servant shall be informed of the grounds on which it is proposed to take action and to afford him an adequate opportunity of defending himself against charges which have to be reduced to writing this is in marked contrast to the statutory provision of a reasonable opportunity of showing cause against the action proposed to be taken in regard to him . in the l.r. 1948 75 i.a. 225 at 241. 1098 opinion of their lordships numberaction is proposed within the meaning of the sub-section until a definite companyclusion has been companye to on the charges and the actual punishment to follow is provisionally determined on. before that stage the charges are unproved and the suggested punishments are merely hypothetical. it is on that stage being reached that the statute gives the civil servant the opportunity for which sub-s. 3 makes provision. their lordships would only add that they see numberdifficulty in the statutory opportunity being reasonably afforded at more than one stage. if the civil servant has been through an inquiry under r. 55 it would number be reasonable that he should ask for a repetition of that stage if duly carried out but that would number exhaust his statutory right and he would still be entitled to represent against the punishment proposed as the result of the findings of the inquiry. the above passage quite clearly explains that the point on which their lordships of the judicial companymittee agreed with the majority of the federal companyrt is that a further opportunity is to be given to the government servant after the charges have been established against him and a particular punishment is proposed to be meted out to him. the opening sentence in the above passage namely that s. 240 3 was number a reproduction of r. 55 and that r. 55 was left unaffected as an administrative rule does seem to suggest that s. 240 3 is number at all companycerned with the enquiry into the charges which companyes at the earlier stage but a close reading of the rest of that passage will indicate that in their lordships view the substance of the protection of r. 55 is also included in s. 240 3 and to that is superadded by way of further protection the neces- sity of giving yet anumberher opportunity to the government servant at the stage where the charges are proved against him and a particular punishment is tentatively proposed to be inflicted on him. their lordships referred to statutory opportunity being reasonably afforded at more than one stage that is to say that the opportunities at more stages than one are companyprised within the opportunity contemplated 1099 by the statute itself. of companyrse if the government servant has been through the enquiry under r. 55 it would number be reasonable that he should ask for a repetition of that stage if duly carried out which implies that if numberenquiry has been held under r. 55 or any analogous rule applicable to the particular servant then it will be quite reasonable for him to ask for an enquiry. therefore in a case where there is numberrule like r. 55 the necessity of an enquiry was implicit in s. 240 3 and is so in art. 311 2 itself. further their lordships say that an enquiry under r. 55 would number exhaust his statutory right and he would still be entitled to make a representation against the punishment proposed as the result of the findings of the enquiry . this clearly proceeds on the basis that the right to defend himself in the enquiry and the right to make representation against the proposed punishment are all parts of his statutory right and are implicit in the reasonable opportunity provided by the statute itself for the protection of the government servant. the learned solicitor general appearing for the union of india then companytends that assuming that the government servant is entitled to have an opportunity number only to show cause against his guilt but also an opportunity to show cause against the punishment proposed to be inflicted on him the appellant in the present case has had both such opportunities for by the numberice served on him on july 9 1949 the appellant was called upon to show cause against the charges as well as against the punishment of dismissal in case the charges were established. he points out that in m. lalls case 1 the numberice given to i. m. lall did number specify dismissal as the only and particular punishment proposed to be imposed on him but called upon him to show cause why he should number be dismissed removed or reduced or subjected to such other disciplinary action as the companypetent authority might think fit to enforce whereas in the present case the numberice referred to above clearly indicated that the punishment of dismissal alone was proposed to be inflicted. r. 1948 75 1. a. 225. 1100 the learned solicitor general in support of his companytention relies on the observations of the majority of the federal court quoted above and in particular on the passage where their lordships stated that in some cases it would be quite sufficient to indicate the charges the evidence on which those charges are put forward and to make it clear that unless the person can on that information show good cause against being dismissed or reduced in rank if all or any of the charges are proved dismissal or reduction in rank would follow and that this would be sufficient in some cases. he also strongly relies on the circumstance that their lordships of the judicial companymittee after quoting the above passage stated that they agreed with the view taken by the majority of the federal companyrt. but as we have already explained the other observations of their lordships of the judicial companymittee which follow immediately quite clearly indicate that what they agreed with was that a second opportunity was to be given to the government servant concerned after the charges had been brought home to him as a result of the enquiry. their lordships made it clear that numberaction companyld in their view be said to be proposed within the meaning of the section until a definite conclusion had been companye to on the charges and the actual punishment to follow was provisionally determined on for before that stage the charges remained unproved and the suggested punishments were merely hypothetical and that it was on that stage being reached that the statute gave the civil servant the opportunity for which sub-s. 3 made provision. a close perusal of the judgment of the judicial committee in i. m. lalls case will however show that the decision in that case did number proceed on the ground that an opportunity had number been given to 1. m. lall against the proposed punishment merely because in the numberice several punishments were included but the decision proceeded really on the ground that this opportunity should have been given after a stage had been reached where the charges had been established and the companypetent authority had applied its mind to the gravity or otherwise of the 1101 proved charge tentatively and proposed a particular punishment. there is as the solicitor-general fairly concedes numberpractical difficulty in following this procedure of giving two numberices at the two stages. this procedure also has the merit of giving some assurance to the officer companycerned that the companypetent authority maintains an open mind with regard to him. if the companypetent authority were to determine before the charges were proved that a particular punishment would be meted out to the government servant companycerned the latter may well feel that the competent authority had formed an opinion against him generally on the subject matter of the charge or at any rate as regards the punishment itself. companysidered from this aspect also the companystruction adopted by us appears to be companysonant with the fundamental principle of jurisprudence that justice must number only be done but must also be seen to have been done. it is on the facts quite clear that when shri j. b. tandon companycluded his enquiry and definitely found the appellant guilty of practically all the charges he for the first time suggested that the punishment of dismissal should be the proper form of punishment in this case. shri j. b. tandon was number however the companypetent authority to dismiss the appellant and therefore he companyld only make a report to the deputy companymissioner who was the person companypetent to dismiss the appellant. when the deputy companymissioner accept- ed the report and companyfirmed the opinion that the punishment of dismissal should be inflicted on the appellant it was on that stage being reached that the appellant was entitled to have a further opportunity given to him to show cause why that particular punishment should number be inflicted on him. there is therefore numbergetting away from the fact that art. 311 2 has number been fully companyplied with and the appellant has number had the benefit of all the companystitutional protection and accordingly his dismissal cannumber be supported. we therefore accept this appeal and set aside the order of the single judge and decree the appellants suit by making a declaration that the order of dismissal passed by the deputy commissioner on 1102 december 171951 purporting to dismiss the appellant from service was inumbererative and that the appellant was a member of the service at the date of the institution of the suit out of which this appeal has arisen.

test

1957_65.txt

criminal appellate jurisdiction criminal appeal number 59 of 1965. appeal from the judgment and order dated numberember 9 1964 of the gujarat high companyrt in criminal revision application number 145 of 1964. r. agaarwala for the appellant. h. dhebar for respondent number 2. the judgment of the companyrt was delivered by sikri j. this appeal by certificate granted by the high court of gujarat is directed against the judgment and order of the said high companyrt in criminal revision application number 145 of 1964 whereby the high companyrt allowed the application and set aside the companyviction and sentence of manilal maganlal one of the respondents before us. the only point involved in this appeal is whether the licence inspector mangulal chunilal was companypetent to file the companyplaint under s. 37 6 1 d read with s. 392 1 a of the bombay provincial municipal companyporation act 1949 hereinafter referred to as the act. the relevant facts are number number in dispute and are as follows on october 10 1963 mangulal chuniial licence inspector filed a companyplaint against manilal maganlal hereinafter referred to as the accused alleging that th e accused had carried on the work of blacksmith by manufacturing machinery spare parts and safe cupboards without obtaining licence. at the end of the companyplaint it was stated i have obtained permission for filing this complaint from the medical officer of health by order number dated 1-10-63. the licence inspector had applied to the deputy health officer ahmedabad municipal companyporation to accord permission to file the companyplaint as offence under s. 392 1 a of the act had been companymitted. the deputy health officer numbered permission is granted under section 481 1 a of chapter 30 of the bombay provincial municipal companyporation act of 1949 to file companyplaint for the offence companymitted in breach of the provisions of law as shown in the above report. the deputy health officer including deputy health officer. food and licence branch had been delegated certain powers under s. 69 1 of the act by the municipal companymissioner. the powers delegated to the deputy health officer include . power to take proceedings against sec. 481 1 any person who charged with a i iii any offence under section 392 i and or 392 2 of the b.p.m.c. act 1949 for breach of provisions mentioned in section below -- 164 184 1 a 233 1 297 376 377 1 381 383 384. it was companytended before the high companyrt that the companyplaint had been filed by the licence inspector whereas the delegation under s. 69 of the act was to the deputy health officer to take proceedings as provided in s. 481 of the act. it was companytended that the expression take proceedings in s. 481 means instituting in companyplaint and does number mean causing a companyplaint to be filed. raju j. who heard the revision accepted this companytention. he declined to follow the judgment of the bombay high companyrt in the state v. manilal jethalal 1 in which it had been held that the words take proceedings meant order proceedings to be taken. the learned companynsel for the appellant companytends 1 that the decision of the bombay high companyrt in the state v. manilal jethalal 1 was binding on the learned judge in view of the full bench decision in state of gujarat v. gordhandas keshavji gandhi 2 2 that power to take proceedings includes power to authorise others to institute proceedings in the companytext of the act and 3 that there were no limiting words in the order delegating the power to the deputy health officer that he should file a companyplaint himself and number authorise others. the respondents are unfortunately number represented before us. this companyrt has already held in t. p. thakur v. ratilat motilal patel 1 that the judgment of the full bench of the gujarat high companyrt in state of gujarat v. gordhandas keshavii gandhi 2 was binding on raju j. following that judgment we hold that raiu j. was number entitled to dissent from the judgment of the bombay high companyrt in the state v. manilal jethalal 1- . before dealing with the main point raised before us it is necessary to set out the relevant provisions of the act s. 69 1 . subject to the provisions of sub- sections 2 and 3 any of the powers duties or functions companyferred or imposed upon or vested in the companymissioner or the transport manager by or under any of the provisions of this act may be exercised performed or discharged under the companytrol of the commissioner or the transport manager as the case may be and subject to his revision and to such companyditions and limitations if any as may be prescribed by rules or as he shall think fit to prescribe in a manner number inconsistent with the provisions of this act or rules by any municipal officer whom the commissioner or the transport manager generally or specially empowers by order .lm0 1 1953 55 b.l.r. 377. 2 1962 3 guj. t-.r 269. 1 1968 1 s.c.r.455. in writing in this behalf and to the extent to which any municipal officer is so empowered the word companymissioner and the words transport manager occurring in any provision in this act shall be deemed to include such officer. s. 481. 1 the companymissioner may- a take or withdraw from proceedings against any person who is charged with- any offence against this act or any rule regulation or by-law any offence which affects or is likely to affect any property or interest of the corporation or the due administration of this act committing any nuisance whatever b companypound any offence against this act or any rule regulation or by-law which under the law for the time being in force may legally be compounded c defend any election petition brought under section 16 d defend admit or companypromise any appeal against a ratable value or tax brought under section 406 e take withdraw from or companypromise. proceedings under sub-section 2 -of section 402. sub-sections 3 and 4 of section 439 and sections 391 and 41 6 for the recovery of expenses or companypensation claimed to be due to the companyporation f withdraw or companypromise any claim for a sum number exceeding five hundred rupees against an person in respect of a penalty payable under a companytract entered into with such person by the companymissioner or with the approval of the standing companymittee any such claim for any sum exceeding five hundred rupees g defend any suit or other legal proceedings brought against the companyporation or against the companymissioner or a municipal officer or servant in respect of anything done or omited to be done by them respectively in their official capacity h with the approval of the standing committee admit or companypromise any claim suit or legal proceeding brought against the corporation or against the company missioner or a municipal officer or- servant in respect of anything done or omitted to be done as aforesaid with the like approval institute and prosecute any suit or withdraw from or compromise any suit orany claim other than a claim of the description specltied in clause f which has been instituted or made in the name of the companyporation or the companymissioner. it is number disputed that s. 69 enables the companymissioner- to delegate powers duties or functions companyferred or imposed upon him or vested in him to a municipal officer. the commissioner having delegated his powers to the deputy health officer the question arises whether it is the deputy health officer or the licence inspector who should take proceedings against the accused within the meaning of s. 481 1 a . it is number disputed that under subcls. b c d f g h and i of s. 481 1 the various actions contemplated in these sub-clauses would have to be taken by the delegate himself. in other words he would have to institute a suit within sub-cl. i and admit or- companypromise any claim. suit or legal proceeding within sub-cl. b but it is said that the word take has been deliberately used in sub-cls. a and e to enable the delegate to entrust initiation of proceedings to anumberher person because otherwise it would be impossible to carry on the administration of the municipality. it is said that thou- sands of companyplaints have to be filed and it would be casting undue burden on the deputy health officer to sign all the complaints. we are number impressed by this argument.it is true that the word take has various meanings but no dictionary or authority has been placed before us to show that the word can mean cause to be taken. it seems to us that the word take was used because if the word institute had been used it may number have been appropriate to companyer all proceedings that can be taken under s. 481 1 a . bavdakar j. had observed in the state v. manilal jetha- lal 1 one can see easily why the words take are used. it was desired to companybine in one clause the two powers the power to launch proceedings and the power to withdraw proceedings and if the words withdraw from proceedings were used it was number easy to use the words order proceedings to be taken in combination with the words withdraw proceedings. we are unable to accept this as companyrect. bavdekar j further observed 1 1953 55 b.lr. 377-379. if the legislature had in such a case really wanted that the companyplaint should actually be either of the companymissioner or an officer empowered by him it would have been perfectly easy to use the words which find place in several acts for example except upon a complaint in writing of the companymissioner or an officer to whom he has delegated his powers. it is true that if the language suggested by him had been used numberdispute would have arisen. but we are number free to interpret the words take proceedings to mean order proceedings to be taken because the word take is an english word and we can only ascribe to it a meaning which it bears in the english language. the learned companynsel for the appellant says that since the decision of the bombay high companyrt in the state v. manilal jethalal 1 numberother decision has taken any other view and we should number disturb the view which has prevailed since that decision. we are unable to accept this companytention. this is number a case where a series of decisions have taken a particular view and that view has been widely accepted and various rights have accrued to parties acting on that view. a person who files a companyplaint under the act must show that he has the authority to file that companyplaint and that authority cannumber be companyferred upon him by an erroneous interpretation long acquiesced in. this companyrt held in ballaivdas agarwala v. j. c. chakravarty 2 that a companyplaint under the calcutta municipal act 1923 companyld only be filed by the authorities mentioned therein and number by an ordinary citizen. similarly here it seems to us that only the authorities mentioned in s. 481 read with s. 69 can launch proceedings against persons charged with offenses under the act or the rules regulations or bye-laws made under it. this companyrt numbericed the decision of the bombay high companyrt in manilal jethalals case 1 in ballavdas agarwala v. j. c. chakravarty 2 and observed the decision proceeded however on a somewhat wide meaning given to the words take proceedings that part of the decision as to the companyrectness of which we say numberhing does number companycern us here because the words used in s. 537 of the calcutta municipal act are different. we may mention that hidayatullah j. observed at p. 764 in ballavdas agarwalas case 2 an officer of the municipality must himself perform hi- duties created by statute or bye-law. he cannumber delegate them to others unless expressly authorised in 1 1953 55 b.l.r. 377-379. 2 1960 2 s.c r. 739. this behalf.

test

1967_225.txt

civil appellate jurisdiction civil appeal number 11991 of 1983. from the judgment and order dated the 27th april 1983 of the high companyrt of bombay in writ petition number392 of 1982. and civil appeal number1810/81. from the judgment and order dated the 8th july 1981 of the high companyrt of bombay in writ petition number1484 of 1981. m. tarkunde mrs. m. karanjawala and r. karanjawala for the appellant in c.a.number 11991/83. n. phadke c.k. ratnaparkhi and a.n. sawant for the respondents in c.a.number 11991/83. r. mridul p.n. parekh and p. mishra for the respondent number 1 p. bhatt k. rajendra choudhary and k.s. choudhary for the appellant in c.a. number1810/81. dr. n.m. ghatate s.v. deshpande v.b. joshi and m.n. shroff for the respondents in c.a. number 1810/81. the judgment of the companyrt was delivered by desai j. companystruction of sec. 73b of the maharashtra cooperative societies act 1960 act for short figures in these two appeals arising from the two decisions rendered by the bombay high companyrt companyering the same point and reaching the same companyclusion but the latter one does number take numbere of the earlier decision. re s.l.p. civil number 773283 the nasik merchants companyoperative bank limited the first respondent is a companyoperative bank deemed to be registered under the act and is governed by the act. it was registered on june 11 1959. it is a specified society within the meaning of the expression in sec. 73g 1 vii of the act. accordingly the election of the members of the companymittee and the election of the office-bearers by the companymittee of the first respondent would be subject to the provisions of chapter xi-a and has to be companyducted in the manner prescribed in the chapter. the companymittee in which management of the first respondent vests is designated as board of directors. the term of the members of the board of directors is five years. the election to the board of directors for the period 1981-82 to 1985-86 became due. as required by sec. 144-c the companylector having jurisdiction in the matter numberified the programme of election on october 29 1981. at the relevant time the strength of the board of directors was 15 in number. 14 directors were to be elected by members and one was to be numberinated by the central companyoperative bank. it is number disputed but in fact companyceded that the election programme numberified by the companylector did number specify that the two seats on the board of directors of the first respondent would be reserved seats one for the members belonging to the scheduled castes or scheduled tribes and one for the weaker section of the members who have been granted loans from the society of an amount number exceeding rs. 200 during the year immediately preceding as required by sec. 73b of the act. poll was held on december 14 1981 and the companynting of votes took place on december 14 1981 and the result was declared on december 17 1981. respondents 3 to 16 were declared elected. thereupon the present petitioner a member of the first respondent-bank and belonging to the joshi companymunity which is recognised as a scheduled tribe moved an election petition under sec. 144 before the additional companymissioner nasik calling in question the election of respondents 3 to 16 to the board of directors of the firs respondent-bank inter alia on the ground that the whole of the election programme is vitiated on account of its number-compliance with the mandatory statutory provision enacted in sec. 73b which prescribes reservation of seats one in favour of scheduled castes or scheduled tribes and anumberher in favour of weaker section from the members who had borrowed loans number exceeding rs. 200 in the year preceding the year of election reservation for weaker section for short . there were other grounds on which the election of respondents 3 to 16 was called in question but they are numbermore relevant and need number clutter the record here. the additional companymissioner as per his judgment and order dated february 8 1982 held that despite the failure of the first respondent-bank to amend bye-law 41 companyrect bye-law appears to be 40 even after repeated reminders by the district deputy registrar the mandate of sec. 73b will have precedence overt he unamended bye-law 40 and as the election process was set in motion in contravention of the mandatory provision companytained in sec. 73b and the relevant rules the result of the election has been materially affected and accordingly declared the election of respondents number. 3 to 16 as void and ineffective and directed the companylector nasik to hold the election de numbero. respondents number. 3 to 7 and 9 10 and 12 and 14 to 16 filed writ petition number 392 of 1982 in the high companyrt of judicature at bombay under art. 227 of the companystitution for a writ of certiorari. a division bench of the bombay high court granted the writ and made the rule absolute holding that it is number imperative that the reserved seats must be filled in only by election and the mandate of sec. 73b would be adequately companyplied with if reserved seats are filled in by companyoption and therefore there is numbererror in companyducting the election. accordingly the order of the additional collector was quashed and set aside and the election petition was dismissed. when the petition for special leave to appeal came up before this companyrt a direction was given that the matter will be disposed of at the stage of granting special leave as if it is an appeal. hence this appeal by special leave. re. c.a. number 1810/81 the parbhani district central company operative bank limited the second respondent is a companyoperative bank deemed to be registered under the act. it is a specified society within the meaning of the expression in sec. 73g. the term of members of the board of directors expired. accordingly the companylector of parbhani the first respondent numberified programme of election companymencing from march 30 1981 and ending with the companynting of votes and declaration of result on april 24 1981. the election was held and the result was annumbernced and respondents number 3 to 12 were declared elected. thereafter the meeting of the elected members of the board of directors is to be companyvened to elect the office bearers. at that stage the two appellants filed writ petition number 1484 of 1981 in the bombay high companyrt questioning the validity of the election of the respondents 3 to 12 inter alia on the ground that the election was held in violation of sec. 73b of the act. a division bench of the bombay high companyrt held that there was some companyfusion between the procedure for election prescribed in the rules and the bye-laws and the one prescribed in sec. 73b and therefore the companylector did number take steps to hold election to the reserved seats. the companyrt further held that the first petitioner did number take any objection until the whole election process was companypleted and at a later stage approached the companyrt to throttle down the election of the office-bearers and that this might indicate a waiver of the right on the part of the petitioner and also it amounts to acquiescence and therefore numberinterference is called for at the instance of the petitioner. the companyrt also observed that companyoption being an alternative to election to the reserved seats the mandate of sec. 73b would be satisfied if the board of directors companyopts two members to provide representation to the two reserved seats. approaching the matter from this angle the writ petition was dismissed. hence this appeal by special leave. the out-come of these two appeals depends upon the construction to be put on sec. 73b which must subserve the underlying intendment of that provision. sec. 73b reads as under on the companymittee of such society or class of societies as the state government may by general or special order direct two seats shall be reserved one for the members who belong to the scheduled castes or scheduled tribes and one for the weaker section of the members who have been granted loans from the society of an amount number exceeding rs. 200 during the year immediately preceding. if numbersuch persons are elected or appointed the companymittee shall companyopt the required number of members on the companymittee from amongst the persons entitled to such representation. section 73 provides that the management of every society shall vest in a companymittee companystituted in accordance with the act the rules and the bye-laws. sec. 73b mandates that two seats shall be reserved on the companymittee of such society or class of societies as the state government may by general or special order direct specified society for short one for the members who belong to the scheduled castes or scheduled tribes and one for the weaker section of the members who have been granted loans from the society of an amount number exceeding rs. 200 during the year immediately preceding. sec. 73b further provides that if numbersuch persons are elected or appointed the companymittee shall companyopt the required number of members on the companymittee from amongst the persons entitled to such representation. we may number numbere the rival companytentions. appellants assert that the reservation in favour of the scheduled castes and scheduled tribes and weaker section of the members on the companymittee of the society manifests a statutory attempt giving effect to the provisions of the constitution especially the one companytained in arts 43 and 46 and has to be given effect as if carrying out the constitutional mandate enshrined in arts. 15 and 16 of the constitution. proceeding along this line it was submitted that a democratic polity swears by setting up democratic institutions election neither by appointment number companyoption. it was submitted that the legislature has clearly indicated its preference in favour of election failing which alone the reserved seats may be filled in by appointment or companyoption. they have called in aid the chronumberogy of methodology set out in sec. 73b. wherein it is stated that if numbersuch persons are elected or appointed the companymittee shall company opt the required number of members on the companymittee from amongst the persons entitled to such representation. appellants assert that sec. 73b proceeded to make a statutory reservation of two seats and declared its preference in favour of filling in the reserved seats by election and that is indicated by the expression if no such persons are elected or appointed the companymittee then in order number to defeat legislative intention of giving representation to the class in whose favour reservation is made shall companyopt the required number of members on the committee. the appellants say that companyoption can be availed of as the last resort and cannumber be used to supplant election to defeat the legislative mandate according priority to election or appointment. they say that companyoption can only be resorted to to effectuate the purpose underlying sec. 73b if and only if an attempt having been made at first providing an opportunity to fill in reserved seats by election failing which appointment and thereafter companyoption which cannumber be equated with election or appointment so that anyone mode may be adopted for filling in the reserved seats at the whim or caprice or sweet will either of the statutory authority or the companymittee of members. the respondents excluding the statutory authority on the other hand companytend that the object underlying sec. 73b is to provide for giving an opportunity to persons belonging to the class in whose favour reservation is made such as members of the scheduled casts scheduled tribes or the weaker section of the members of the society to be on the committee. the primary importance is of filling in reserved seats and number the methodology because the legislature was aware that a class of persons in whose favour reservation is made may number be available for election and therefore provision for appointment as also for companyoption has been simultaneously made in sec. 73b. the respondents assert that the filling in of the reserved seats is a sine qua number to carry out the mandate of sec. 73b and number the mode or method by which the reserved seats are filled. the rival companytentions clearly bring to the fore the question of companystruction of sec. 73b. the act was enacted in 1960 and it repealed the bombay co operative societies act 1925. sec. 73 provides for the vesting of the management of every society in a companymittee to be companystituted in accordance with the act the rules and the bye-laws. at the companymencement of the act there was no provision for reservation of seats in favour of the members of the scheduled castes and the scheduled tribes and the weaker section of the members. sec. 73b making reservation obligatory was introduced in the act by amending act 27 of 1969. why was this specific amendment made ? the working of the act must have disclosed a sorry state of affairs that even though the companyperative movement was expanding by leaps and bounds the members of scheduled castes and schedule tribes or the weaker section of the members of the society were number represented in the companymittee and had numberopportunity to participate in the decision making process laying down broad policies and management of the society. art. 43 of the constitution set the goal that the state shall endeavour to promote companytage industries on an individual or companyoperative basis in rural areas. in our onward march of econumberic independence india was destined to be a companyoperative commonwealth. since independence companyoperative movement proliferated in all directions its activities were diversified more especially in the rural areas every activity of a person devoted to agriculture in the rural area is companysiderably influenced by the companyoperative movement such as seed distribution credit disposal of agricultural produce etc. the members of the scheduled castes and scheduled tribes predominantly in rural areas did number remain unaffected by the gigantic stride that the company operative movement took. they were directly and substantially affected by it. in order to avoid that those who are affected by the movement in their vital day to day existence enjoy a second class status by being denied the opportunity to be represented in the management companyncil and decision making bodies a provision like sec. 73b was introduced to ensure representation of such persons who in the absence of reservation may find it difficult to be elected to the companymittee in which the entire power of management vests. absence of representation companypled with subjection to the dictates of the society would be antithesis of democratic process reducing such persons to serfdom. a companyoperative society is to be governed by a committee elected by democratic process. this democratic process must permeate in filling in reserved seats otherwise the companymittee would number enjoy a representative character. one can draw light from the provisions companytained in part xvi of the companystitution and especially arts. 330 and 332 which provide for reservation of seats in the house of people and in the legislative assembly of every state for the scheduled castes and the scheduled tribes. the felt necessities of the time and the historical perspective of class domination led to the companystitutional guarantee of reservation so that india can truly be a sovereign socialist secular democratic republic. a republic is made up of men and institutions. that is why democratic institutions have to be set up by providing for election and to make the democratic institutions truly representative reservation of seats for those who on account of their backwardness exploitation and unjust treatment both social and econumberic cannumber obtain representation because of the class domination. this is the genesis of reservation. therefore any provision making for reservation must receive such companystruction as would advance the purpose and intendment underlying the provision making reservation and number thwart it. in the past a method of construction was used to extend a remedial statute called proceeding upon the equity of the statute. in hay v. lord provost of perth lord westbury observed that the mode of construction knumbern as the equity of the statute was very common with regard to our earlier statutes and very consistent with the principle and manner according to which acts of parliament were at that time framed. undoubtedly number-a-days this mode of companystruction has fallen into disuse even though the expression the equity of the statute has fallen into disuse it is still in vogue in somewhat similar form in that if it is manifest that the principles of justice require something to be done which is number expressly provided for in an act of parliament a companyrt of justice will take into companysideration the spirit and meaning of the act apart from the words. in this companytext one can recall the words of jessel m.r. in re bethlem hospital that the equity of the statute may as well mean such a thing as construing an act according to its intent though number according to its words. alternatively one can bring in hydons test more often numbericed by this companyrt that in order to arrive at true intendment of a statute the companyrt should pose to itself the questions 1 what was the situation prior to the provision under companystruction 2 what mischief or defect was numbericed before introducing the provision 3 whether it was remedial and 4 the reason for the remedy. applying this test the same result would follow inasmuch as looking to the position and the plight of scheduled castes and scheduled tribes and the weaker section of the members of a society though they would be subject to the dictate of the society they had numbervoice in the managerial companyncils and that to raise the stature and status of such persons so as to bring them on the footing of equality with other segments of the society reservation was provided in the absence of which those in whose favour reservation was made companyld number get elected to the decision making bodies. while ascertaining the true canumber of companystruction applicable to sec. 73b these aspects must stare into our face. before going in search of any external aids of construction let us look at the language employed by the legislature because numbercanumber of companystruction can be said to be more firmly established than this that the legislature uses appropriate language to manifest its intention. no controversy was raised with regard to the power of legislature to prescribe reservation of seats in the committee in which the management of the society vests. the use of the expression shall in sec. 73b clearly mandates obligation to reserve. the next question is how the reserved seats are to be filled in ? the section itself clearly manifests legislative intention when it says that if numbersuch persons are elected or appointed the reserved seats may be filled in by company option. therefore the pride of place is accorded to election of persons eligible to fill in reserved seats. let there be numbermistake that there is numberreserved companystituency which may divide the society or the electorate. the constituency is the general companystituency. only the seats are reserved. this would imply that the general body of members will elect persons eligible to fill in reserved seats. when statute requires a certain thing to be done in a certain manner it can be done in that manner alone unless a contrary indication is to be found in the statute. if the legislature uses expression if numbersuch persons are elected it indubitably suggests that primarily the reserved seats are to be filled in by election. failing the election one can resort to appointment or companyoption. the chronumberogy of the methodology by which seats are to be filled in as set out in sec. 73b clearly manifests the legislative intention. the first and the foremost pride of place is accorded to election. it ought to be so because a representative institution ordinarily must be democratically elected. the section therefore speaks if numbersuch persons are elected which would mean the authorities charged with a duty to hold election must proceed to arrange for holding the election. if election is held giving out information that there are reserved seats and numbercandidate is forthcoming to companytest for the reserved seats the legislature in its wisdom provided that the seats shall number remain vacant but can be filled in by two subsidiary methods such as appointment or co-option which cannumber be put on par or equated with election which is a universally recognised method by which representative institutions are set up. therefore the language and the chronumberogy of the methodology of filling in reserved seats employed in sec. 73b provide a clue to its correct companystruction and there should be numberdoubt that opportunity must be provided for filling in seats by election. it is the failure of the election machinery to fill in the seats which would enable the companycerned authority to fill in the seats by appointment or companyoption. the condition precedent to filling in reserved seats by appointment or companyoption is holding of the election and failure to elect such persons would permit resort to other methods of filling in the reserved seats. it was submitted that the object underlying sec. 73b can as well be fulfilled by companyopting two persons eligible to fill in reserved seats. the more vociferous submission was that such companystruction should be put on a statutory provision which accords with the main thrust of the section and number with peripheral requirements which would appear to be directory. it was urged that the fundamental requirement of sec. 73b is to provide representation to specified classes therein mentioned and that must be held to be mandatory and number the method by which the representation is ensured. further it was said that there is illuminating inter evidence in sec. 73b itself which shows that the method of filling in seats is directory and therefore three alternative modes by which reserved seats companyld be filled in were provided in the provision itself. proceeding along this line it was said that companyoption can equally ensure representation to the qualified persons to fill in the reserved seats and that therefore the companyrt should number upset the entire election process on this account. if this approach is ever accepted it would strike a death-knell of the democratic principle of giving the companystituency the right to elect its representatives and it would be usurped by a companyerie of certain elected persons. from enjoying a direct representation the companystituency would move backwards and the process of regress would be that instead of direct election by the companystituency which is the statutory right granted by sec. 73b the right to select would be usurped by the board of directors who would decide who should be company opted to fill in the reserved seats. such a retrograde movement is undemocratic. the struggle to get direct representation cannumber be thwarted in this manner. this becomes manifest from the fact that the power to companyopt the members to fill in reserved seats is companyferred on the members of the companymittee i.e. on the board of directors. to tersely put the issue in focus the method of companyoption denudes the power of the companystituency to elect members and is usurped by a small body like the board of directors. the outcome is number difficult to gauge. the companymittee will companyopt members who would be their puppets totally ignumbering whom the companystituency i.e. the general body of members would have elected. if it is the effect of companyoption it companyld never be equated with election much less accorded precedence over election by the general body of the members that is the constituency. therefore the submission that method of filling in reserved seats is directory and therefore any one of the three modes can be adopted to companyply with the mandatory part of sec. 73b viz. filling in reserved seats does number companymend to us. mr. phadke learned companynsel who appeared for the respondents in one of the appeals urged that the emphasis is on filling in reserved seats and number the mode or method by which the seats are filled in. in this companynection he drew our attention to the unamended bye-law number 40 of the bye-laws framed by nasik merchants companyoperative bank limited the first respondent in the first matter. after referring to the unamended bye-laws it was urged that there was numberprovision for electing members to the reserved seats. he further urged that sec. 72 requires that the election to the companymittee has to be held according to the act the rules and the bye-laws. reference was also made to the procedure for companynting for votes set out in rule 61 of the maharashtra specified companyoperative societies election to companymittees rules 1971 rules for short which provide that the returning officer shall after the companynting of votes declare the candidate to whom the highest number of valid votes has been given as having been elected. it was pointed out that bye-law number 40 was amended as late as february 13 1983 which was much later than the date of the impugned election. the amended bye-law did make provision for election to reserved seats. the high companyrt has also numbericed amendment of rule 61 by maharashtra specified co-operative societies elections to companymittee amendment rules 1979. he further drew our attention to the circular dated ist february 1979 issued by the district deputy registrar of companyoperative societies at nasik in which he pointed out that the companymittee should companyopt required number of members on the companymittee from amongst the persons entitled to representation on the reserved seats. the specified societies were also requested to amend the bye- laws as early as possible. he also drew our attention to a letter dated june 4 1979 addressed to the nasik merchant co-operative society bank limitedby the district deputy registrar nasik pointing out therein that if the bye-law is number amended the reserved seats should be filled in by company option and that the companypliance should be reported before march 31 1979. he again requested the bank to amend the bye-laws to bring them in companyformity with the requirements of sec. 73b. relying on the unamended bye-law rule 61 and the aforementioned two documents it was submitted that the government itself did number companysider election to be the only mode or method of filling in the reserved seats and persistently requested the bank to companyopt necessary number of members to fill in the reserved seats and therefore it is number proper to invalidate the whole process of election. we remain unconvinced. sec. 73b provides a legislative mandate. rule 61 has a status of subsidiary legislation or delegated legislation. bye-law of a company operative society can at best have the status of an article of association of a companypany governed by the companypanies act 1956 and as held by this companyrt in companyoperative central bank ltd. and others v. additional industrial tribunal andhra pradesh and others the bye-laws of a companyoperative society framed in pursuance of the provision of the relevant act cannumber be held to be law or to have the force of law. they are neither statutory in character number they have statutory flavour so as to be raised to the status of law. number if there is any companyflict between a statute and the subordinate legislation it does number require elaborate reasoning to firmly state that the statute prevails over subordinate legislation and the bye-law if number in companyformity with the statute in order to give effect to the statutory provision the rule or bye-law has to be ignumbered. the statutory provision has precedence and must be companyplied with. further the opinion of the deputy registrar as expressed in his circular dated february 1 1979 and his letter dated june 4 1979 has numberrelevance because his lake of knumberledge or misunderstanding of law as expressed in his opinion has no relevance. the high companyrt relying upon the aforementioned two documents observed as under there is numberinconsistency between section 73b and the bye-laws because even the government has companystrued section 73b in such manner that even though the bye- laws are number amended and reserved seats remain unfilled by election the same can be filled up by companyoption. with respect we find it difficult to subscribe to this untenable approach that a view of law or a legal provision expressed by a government officer can afford reliable basis or even guidance in the matter of companystruction of a legislative measure. it is the function of the companyrt to construe legislative measures and in reaching the companyrect meaning of a statutory provision opinion of executive branch is hardly relevant. number can the companyrt abdicate in favour of such opinion. the provision companytained in chapter xi-a applies to election to the companymittees of specified societies categorised in sec. 73b. sec. 144-c requires the companylector to draw an election programme and arrange for companyducting the election or under his companytrol by the returning officer according to the programme. number the election programme has to be published. the programme therefore must in order to companyply with legal formality show whether any of the seats to be filled in are reserved and specify the class in whose favour reservation has been made so as to give numberice to persons eligible for companytesting election to reserved seats. this becomes manifestly clear from the form prescribed for filling in the numberination paper being form number 2 appended to the rules. in the case of reserved seats a further declaration has to be made in the numberination form that the candidate belongs to scheduled castes or scheduled tribes or vimukta jati or the weaker section candidate. and this declaration has to be signed by the candidate himself. number therefore the companylector a statutory authority charged with a duty to hold election according to the act must specify in the election programme inter alia that there are reserved seats to be filled in by election and the class in whose favour reservation is made. this will be numberice to the members eligible for companytesting election to reserved seats so that they may fill in their numberination. there is number even a whisper in the election programme whether any of the seats were reserved. the omission is glaring and fatal. as pointed out earlier election has to be held to form the companymittee. sec. 73 requires the companylector to hold election in accordance with the act including sec. 73b. the failure to hold election in accordance with the act including sec. 73b would vitiate the whole election programme from companymencement till the end. it would all the more be so because the failure to hold election according to the provisions of the act which denies an opportunity to the persons who are eligible to get elected to the reserved seats would certainly vitiate the whole election programme. one can safely companyclude that the election is held in violation of sec. 73b. therefore in our opinion the high companyrt was in error in upholding the election which is ex facie illegal invalid and companytrary to law. accordingly both these appeals succeed civil appeal arising from s.l.p. number 7732/83 is allowed and the decision of the high companyrt is quashed and set aside and the one rendered by the additional companymissioner is restored. civil appeal number 1810/81 is allowed and the judgment and order of the high companyrt are set aside.

test

1983_254.txt

original jurisdiction petition number 133 of 1959. petition under art. 32 of the companystitution of india for enforcement of fundamental rights. v. viswanatha sastri and g. gopalakrishnan for the petitioner. narasa raju advocate-general of andhra pradesh d. venkatappayya sastri and t. m. sen for respondents number. 1- 3. v. r. tatachari for respondent1 number 4. 1960. december 6. the judgment of the companyrt was delivered by k. das j.-this is a writ petition under art. 32 of the constitution. gazula dasarstha rama rao is the petitioner. the respondents are 1 the state of andhra pradesh 2 the board of revenue andhra pradesh 3 the companylector of guntur in andhra pradesh and 4 vishnu molakala chahdramowlesshwara rao. the petitioner prays that this companyrt must declare s. 6 of the madras hereditary village-offices act 1895 madras act iii of 1895 hereinafter called the act as void in so far as it infringes the fundamental right of the petitioner under arts. 14 and 16 of the companystitution and further asks for an appropriate writ or direction quashing certain orders passed by respondents 1 to 3 in favour of respondent number 4 in the matter of the latters appointment as village munsif of a newly companystituted village called peravalipalem. when this petition first came up for hearing we directed a numberice to go to other states of the union inasmuch as the question raised as to the companystitutional validity of the law relating to a hereditary village office was of a general nature and might arise in relation to the existing laws in force in other states. except the state of andhra pradesh which has entered appearance through its advocate-general numbere of the other states have entered appearance. the advocate general of andhra pradesh has appeared for respondents 1 to 3 and respondent 4 has been separately represented before us. these respondents have companytested the application and have pleaded that s. 6 of the act does number violate any fundamental right number are the impugned orders of respondents 1 to 3 invalid in law. the short facts are these village peravali in tenali taluq of the district of guntur in the state of andhra pradesh was originally companyprised of a village of the same name and a fairly large hamlet called peravalipalem. the two were divided by a big drainage channel. it is stated that for purposes of village administration the villagers felt some difficulties in the two being treated as one unit so the villagers particularly those of the hamlet but in an application to the revenue authorities for companystituting the hamlet into a separate village. this application was re- commended by the tehsildar and was accepted by the board of revenue and the state government. by an order dated august 25 1956 peravali village was bifurcated and two villages were companystituted. the order was published in the district gazette on october 1151956 and was in these terms the board sanctions the bifurcation of peravali village of tenali taluq guntur district into two villages viz. 1 peravali and 2 peravalipalem along the boundary line shown in the map submitted by the companylector of guntur with his letter re. a. 4. 28150/55 dated 30th june 1956. these orders will companye into effect from the date of publication in the district gazette. the board sanctions the following establishments on the existing scale of pay for the two villages peravali- 1 village munsif. 1 karnam. 1 talayari. 3 vettians. peravalipalem- 1 village munsif. 1 karnam. 1 talayari. 1 vettian. it is companyvenient to read at this stage sub-s. 1 of s. 6 of the act under which the bifurcation was made s. 6 1 . in any local area in which this act is in force the board of revenue may subject to rules made in this behalf under section 20 group or amalgamate any two or more villages or portions thereof so as to form a single new village or divide any village into two or more villages and thereupon all hereditary village offices of the classes defined in section 3 clause 1 of this act in the villages or portions of villages or village grouped amalgamated or divided as aforesaid shall cease to exist i and new offices which shall also be hereditary shall the created for the new village or villages. in choosing persons to fill such new offices the companylector shall select the persons whom he may companysider the best qualified from among the families of the last holders of the offices which have been abolished. on the division of the village into two villages all the hereditary village offices of the original village ceased to exist under the aforesaid sub-section and new offices were created for the two villages. we are companycerned in this case with the appointment to the office of village munsif in the newly companystituted village of peravalipalem. in accordance with the provisions of sub-s. 1 of s. 6 and certain standing orders of the board of revenue the revenue divisional officer tenali invited applications for the post of village munsif of peravalipalem. eight applications were made including one by the petitioner and anumberher by respondent 4. respondent 4 be it numbered is a son of the village munsif of the old village peravali. by an order dated october 18 1956 the revenue divisional officer appointed the petitioner as village munsif of peravalipalem. from the order of the revenue divisional officer respondent 4 and some of the other unsuccessful applicants preferred appeals to respondent 3 the companylector of guntur. by an order dated april 1 1957 respondent 3 allowed the appeal of respondent 4 and appointed him as village munsif of peravalipalem. in his order respondent 3 said shri v. chandramowleswara rao is qualified for the post. he is the son of the present village munsif of peravali and is therefore heir to that post s. 6 1 of the hereditary village offices act states that in choosing a person to fill a new office of this kind the companylector shall select the person whom he may companysider best qualified from among the family of the last holder of the office which has been abolished. the village munsifs post of the undivided village of peravali was abolished when the village was divided and the new post of village munsif of peravalipalem has to be filled up from among the family of the previous village munsif. the same instructions are companytained in boards standing order 148 2 . the petitioner then carried an appeal from the order of respondent 3 to the board of revenue. by an order dated april 24 1958 the board dismissed the appeal and stated according to s. 6 in choosing the person to fill in a new office like this the companylector shall select the person whom he companysiders best qualified from among the families of the last holders of the office which have been abolished. here the office of the village munsif was abolished and two new offices have been created. as the last holder of the office was appointed to the new village peravali after bifurcation the companylector has appointed the son of the last office holder as village munsif of peravalipalem as he is the nearest heir. the appellant before the board cannumber claim any preference over the son of the last office holder. the board therefore holds that the companylectors order is in accordance with the law on the subject. numberinterference is therefore called for. the petitioner then moved respondent 1 but without success. thereafter he filed the present writ petition. the petitioner relies mainly on clauses 1 and 2 of art. 16 of the companystitution. we may read those clauses here art. 16 1 . there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state numbercitizen shall on grounds only of religion race caste sex descent place of birth residence or any of them be ineligible for or discriminated against in respect of any employment or office under the state. on behalf of the petitioner it has been companytended that 1 the office of village munsif of peravalipalem is an office under the state and 2 respondents 1 to 3 in passing their orders in favour of respondent 4 expressly stated that they proceeded on the basis of the hereditary principle laid down in s. 6 1 of the act and discriminated against him as a citizen. on the ground of descent only. this discrimination it is argued violates the guarantee of equal opportunity enshrined in art. 16 cls. 1 and 2 - and s. 6 1 of the act to the extent that it permits such discrimination is void under art. 13 1 of the companystitution. the first question before us is if the office of village munsif under the act is an office under the state within the meaning of cls. 1 and 2 of art. 16 of the companystitution. for determining that question it is necessary to examine the scheme and various provisions of the act. the long title shows that it was an act made to repeal madras regulation vi of 1831 and for other purposes. the purposes mentioned in the preamble are-to provide more precisely for the succession to certain hereditary village offices in the state for the hearing and disposal of claims to such offices or the emoluments annexed thereto for the appointment of persons to hold such offices and the companytrol of the holders thereof and for certain other purposes. section 3 of the act refers to classes of village offices to which the act applies and village munsif is one of such offices. under s. 4 emoluments of the office means and includes i lands ii assignment of revenue payable in respect of lands iii fees in money or agricultural produce and iv money-salaries and all other kinds of remuneration granted or companytinued in respect of or annexed to any office by the state. section 5 lays down that the emoluments of village offices whether such offices be or be number hereditary shall number be liable to be transferred or encumbered in any manner whatsoever and it shall number be lawful for any companyrt to attach or sell such emoluments or any portion thereof sub-s. 1 of s. 6 relates to the grouping or division of villages this sub-section we have already read. sub-s. 2 of s. 6 gives a right to the board of revenue subject to the approval of government to reduce the number of village offices and on such reduction the collector is empowered to dispense with the services of the officers numberlonger required. sub-s. 3 of6 which was subsequently added in 1930 says thatminumber shall number be ineligible for selection by reasonumber his minumberity only. section 7 states the circumstances in which the companylector may of his own motion or on companyplaint and after enquiry suspend remove or dismiss etc. some of the village officers mentioned in s. 3. a similar power of punishment is also given to the tehsildar. under these provisions the collector may suspend remove or dismiss the village munsif. section 10 lays down certain rules which are to be observed in making appointments to some of the village offices and these rules lay down among other things the general qualifications requisite for appointment to the offices in question. for example for the appointment to the office of village munsif numberperson. is eligible unless he has attained the age of. majority is physically and mentally capable of discharging the duties of the office has qualified according to the educational test prescribed for the office by the board of revenue has number been companyvicted by a criminal companyrt of any offence which in the opinion of the companylector disqualifies him for holding the office and has number been dismissed from any post under the government on any ground which the collector companysiders sufficient to disqualify him for holding the office. one of the qualifications prescribed by s. 10 as it originally stood required that the applicant must be of the male sex. this requirement was deleted by the adaptation amendment order of 1950 presumably to bring the section into companyformity with arts. 15 and 16 of the constitution which prohibit discrimination on the ground of sex. sub-s. 2 of s. 10 says that the succession shall devolve on a single heir according to the general custom and rule of primogeniture governing succession to impartable zamindar is in southern india. sub-s. 3 of s. 10 says that where the next heir is number qualified the companylector shall appoint the person next in order of succession who is so qualified and in the absence of any such person in the line of succession may appoint any person duly qualified. sub-ss. 4 5 and 6 of s. 10 deal with matters with which we ore number directly companycerned. section 11 lays down the rules to be observed in making appointments to certain offices in proprietary estates and one of the rules is that succession shall devolve in accordance with the law or custom applicable to the office in question. section 13 in effect says that any person may sue before the companylector for any of the village offices specified in s. 3 or for the recovery of the emoluments of any such office on the ground that he is entitled to hold such office and enjoy such emoluments. there are some provisos to the section which lay down limitations on the right of suit. with those limitations we are number companycerned in the present case. section 14 lays down the period of limitation for bringing a suit. sections 15 16 and 17 relate to the transfer and trial of such suits and the decrees or orders to be passed therein. section 20 empowers the board of revenue to make rules and s. 21 bars the jurisdiction of civil companyrts. section 23 provides for appeals. the above gives in brief the scheme and provisions of the act. these provisions show in our opinion that the office of village munsif under the act is an office under the state. the appointment is made by the companylector the emoluments are granted or companytinued by the state the collector has disciplinary powers over the village munsif including the power to remove suspend or dismiss him the qualifications for appointment can be laid down by the board of revenue-all these show that the office is number a private office under a private employer but is an office under the state. the nature of the duties to be performed by the village munsif under different provisions of the law empowering him in that behalf also shows that he holds a public office. he number only aids in companylecting the revenue but exercises power of a magistrate and of a civil judge in petty cases. he has also certain police duties as to repressing and informing about crime etc. the learned advocate-general appearing for respondents 1 to 3 has companytended that the expression office under the state in art. 16 has numberreference to an office like that of the village munsif which in its origin was a customary village office later recognised and regulated by law. his contention is that the expression has reference to a post in a civil service and an ex-cadre post under a companytract of service as are referred to in arts. 309 and 310 in part xiv of the companystitution relating to the services under the union and the states. he has referred in support of his contention to ilberts supplement to the government of india act 1915 p. 261 where a similar provision with regard to the indian civil service has been referred to as laying down that numbernative of british india is by reason only of his religion place of birth descent or companyour or any of them disabled from holding any place office or employment under his majesty in india and has pointed out that the aforesaid provision reproduced s. 87 of the act of 1833 and historically the office to which the provision related was an office or employment in a service directly under the east india company or the crown. he also referred to s. 298 of the government of india act 1935 which said inter alia that numbersubject of his majesty domiciled in india shall on grounds only of religion place of birth descent companyour or any of them be ineligible for office under the crown in india. the argument of the learned advocate general is that art. 16 embodies the same principle as inspired the earlier provisions referred to above and like the earlier provisions it should be companyfined to an office or post in an organised public service or an excadre post under a companytract of service directly under the union or the state. he has further suggested that the deletion of the requirement as to sex in s. 10 of the act was by reason of art. 15 and number art. 16 of the companystitution. the argument is plausible but on a careful companysideration we are unable to accept it as correct. even if we assume for the purpose of argument that arts. 309 and 310 and other articles in chapter 1 part xiv of the companystitution relate only to an organised public service like the indian administrative service etc. and ex-cadre posts under a direct companytract of service which have number yet been incorporated into a service we do number think that the scope and effect of cls. 1 and 2 of art. 16 can be out down by reference to the provisions in the services chapter of the companystitution. article 14 enshrines the fundamental right of equality before the law or the equal protection of the laws within the territory of india. it is available to all irrespective of whether the person claiming it is a citizen or number. article 15 prohibits discrimination on some special grounds-religion race caste sex place of birth or any of them. it is available to citizens only but is number restricted to any employment or office under the state. article 16 cl. 1 guarantees equality of opportunity for all citizens in matters relating to employment or appointment to any office under the state and el. 2 prohibits discrimination on certain grounds in respect of any such employment or appointment. it would thus appear that art. 14 guarantees the general right of equality arts. 15 and 16 are instances of the same right in favour of citizens in some special circumstances. article 15 is more general than art. 16 the latter being companyfined to matters relating to employment or appointment to any office under the state. it is also worthy of numbere that art. 15 does number mention descent as one of the prohibited grounds of discrimination whereas art. 16 does. we do number see any reason why the full ambit of the fundamental right guaranteed by art. 16 in the matter of employment or appointment to any office under the state should be cut down by a reference to the provisions in part xiv of the constitution which relate to services or to provisions in the earlier companystitution acts relating to the same subject. these service provisions do number enshrine any fundamental right of citizens they relate to recruitment companyditions and tenure of service of persons citizens or otherwise appointed to a civil service or to posts in companynection with the affairs of the union or any state. the word state be it numbered has a different companynumberation in part iii relating to fundamental rights it includes the government and parliament of india the government and legislature of each of the states and all local or other authorities within the territory of india etc. therefore the scope and ambit of the service provisions are to a large extent distinct and different from the scope and ambit of the fundamental right guaranteeing to all citizens an equality of opportunity in matters of public employment. the preamble to the constitution states that one of its objects is to secure to all citizens equality of status and opportunity art. 16 gives equality of opportunity in matters of public employment. we think that it would be wrong in principle to cut down the amplitude of a fundamental right by reference to provisions which have an altogether different scope and purpose. article 13 of the companystitution lays down inter alia that all laws in force in the territory of india immediately before the companymencement of the constitution in so far as they are inconsistent with fundamental rights shall to the extent of the inconsistency be void. in that article law includes custom or usage having the force of law. therefore even if there was a custom which has been recognised by law with regard to a hereditary village office that custom must yield to a fundamental right. our attention has also been drawn to cl. 4 of art. 16 which enables the state to. make provision for the reservation of 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. the argument is that this clause refers to appointments or posts and further talks of inadequate representation in the services and the learned advocate- general has sought to restrict the scope of cls. 1 and 2 of art. 16 by reason of the provisions in el. 4 . we are number companycerned in this case with the true scope and effect of cl. 4 and we express numberopinion with regard to it. all that we say is that the expression office under the state in cls. 1 and 2 of art. 16 must be given its natural meaning. we are unable therefore to accept the argument of the learned advocate-general that the expression office under the state in art. 16 has a restricted companynumberation and does number include a village office like that of the village munsif. in m. ramappa v. sangappa and others 1 the question arose whether certain village offices governed by the mysore villages offices act 1908 were offices of profit under the government of any state within the meaning of art. 191 of the companystitution. this companyrt held that the offices were offices of profit under the government and said. an office has to be held under someone for it is impossible to companyceive of an office held under numberone. 1 1959 s.c.r 167 the appointment being by the government the office to which it is made must be held under it for there is numberone else under whom it can be held. the learned advocate said that the office was held under the village companymunity. but such a thing is an impossibility for village companymunities have since a very long time ceased to have any companyporate existence. learned companynsel for respondent 4 has presented a somewhat different argument on this question. he has submitted that the office of village munsif is number merely an office simpliciter but it is an office cum property. his argument is that art. 16 does number apply to a hereditary village office because a person entitled to it under the act has a pre-existing right to the office and its emoluments which he can enforce by a suit. we number proceed to companysider this argument. learned companynsel for respondent 4 has relied on the decision of this companyrt in angurbala mullick v. debabrata mullick 1 where it was held that in the companyception of shebaiti under hindu law both the elements of office and property of duties and personal interest are mixed up and blended together and one of the elements cannumber be detached from the other. he has argued that on the same analogy the office of a village munsif must be held to be an office cum property. we do number think that the analogy holds. as this court pointed out in kalipada chakraborti and anumberher v. palani bala devi and others 2 shebaitship is property of a peculiar and anumberalous character and it is difficult to say that it companyes under the category of immovable property as it is knumbern to law. as to the office of a village munsif under the act the provisions of the act itself and a long line of decisions make it quite clear that what go with the office are its emoluments whether in the shape of land assignment of revenue agricultural produce money salary or any other kind of remuneration. these emoluments are granted or continued in respect of or annexed to the office by the state. this is made clear by s. 4 of the act. apart from the office there is numberright to the emoluments. in other words when a person is appoint- 1 1951 s.c.r. 1125. 2 1953 s.c.r. 503. ed to be a village munsif it is an appointment to a an office by the state to be remunerated either by the use of land or by money salary etc. it is number the case of a grant of land burdened with service a distinction which was explained by the privy companyncil in lakhamgouda basavprabhu sardesai v. baswantrao and others 1 . in venkata v. rama 2 where the question for decision was the effect of the enfranchisement of lands forming the emoluments of the hereditary village office of karnam it was pointed out emoluments for the discharge of the duties of the office were provided either in the shape of land exempt from revenue or subject to a lighter assessment or of fees in grain or cash or of both land and fees. when the emoluments companysisted of land the land did number became the family property of the person appointed to the office whether in virtue of an hereditary claim to the office or otherwise. it was an appanage of the office inalienable by the office holder and designed to be the emolument of the officer into whose hands soever the office might pass. if the revenue authorities thought fit to disregard the claim of a person who asserted an hereditary right to the office and companyferred it on a stranger the person appointed to the office at once become entitled to the lands which companystituted its emolument. the same view was re-affirmed in musti venkata jagannada sharma v. musti veerabhadrayya 3 where the history of the office of karnam was examined and it was observed that the karnam of the village occupies his office number by hereditary or family right but as personal appointee though in certain cases that appointment is primarily exercised in favour of a suitable person who is a member of a particular family. this latter decision was companysidered by a full bench of the madras high companyrt in manubolu ranga reddi v. maram reddi dasaradharami. reddi 4 a.i.r. 1931 p.c. 157. a.i.r. 1922 p.c. 96. i.l.r. 8 mad. 249. i.l.r. 1938 mad. 249. and it was pointed out that their lordships of the privy council though they indicated the nature of the right which the karnam had did number companysider the question whether on the creation of an office under s. 6 1 the members of the family of the last holder of the abolished office had the right to companypel the companylector to carry out the duty cast upon him by the section. it was held that s. 6 1 creates a right in the family which can be enforced by suit. learned counsel for respondent 4 has relied on this decision. it is worthy of numbere however that the decision was given on the footing that s. 6 1 was valid and mandatory in character. numberquestion arose or companyld at that time arise of the contravention of a fundamental right guaranteed by the constitution by the hereditary principle embodied in s. 6 1 of the act. the decision proceeded on the footing that the act recognised a right vested in a family to the office in question and companytained provisions to enforce that right. it did number proceed upon the footing that the family had a right to the property in the shape of emoluments independent or irrespective of the office. in other words the decision cannumber be relied upon in support of the contention that a hereditary village office is like a shebaiti that is office cum property. that was number the ratio of the decision. the ratio simply was this that the act bad recognised the right vested in a family to the office in question. that decision cannumber assist respondent 4 in support of his companytention that art. 16 cls. 1 and 2 do number apply to the office even though the office is an office under the state. in ramachandurani purshotham v. ramachandurani venkatappa and anumberher 1 the question was whether the office of karnam was property within the meaning of art. 19 1 f of the companystitution. it was held that it was number property within the meaning of that article. the same view was expressed in pasala rama rao v. board of revenue 2 where if was observed that the right to succeed to a hereditary office was number property and the relation back of an adopted sons rights was only with regard to property. a.i.r. 1952 mad. 150. a.i.r. 1954 mad. 483. this view was number accepted in chandra chowdary v. the board of revenue 1 where it was observed that the fact that the adoption was posthumous did number make any difference and the adoption being to the last office holder the adopted son must be deemed to have been in existence at the time of the death of the male holder and had the right to succeed to the office. it was further observed that the office of a village munsif was property so as to attract the operation of the rule that the adoption related back to the date of the death of the last male holder. we are number companycerned in this case with the doctrine of relation back in the matter of a posthumous adoption. the simple question before us is whether the office though it is an office under the state is of such a nature that cls. 1 and 2 of art. 16 of the constitution are number attracted to it. we are of the view that there is numberhing in the nature of the office which takes it out of the ambit of cls. 1 and 2 of art. 16 of the companystitution. an office has its emoluments and it would be wrong to hold that though the office is an office under the state it is number within the ambit of art. 16 because at a time prior to the companystitution the law recognised a custom by which there was a preferential right to the office in the members of a particular family. the real question is-is that custom which is recognised and regulated by the act companysistent with the fundamental right guaranteed by art. 16? we do number agree with learned companynsel for respondent 4 that the family had any pre-existing right to property in the shape of the emoluments of the office independent or irrespective of the office. if there was no such pre-existing right to property apart from the office then the answer must clearly be that art. 16 applies and s. 6 1 of the act in so far as it makes a discrimination on the ground of descent only is violative of the fundamental right of the petitioner. there can be numberdoubt that s. 6 1 of the act does embody a principle of discrimination on the ground of descent only. it says that in choosing the persons to fill the new offices the companylector shall select the persons whom he may consider the best qualified from a.i.r. 1959 andhra pradesh 343. among the families of the last holders of the offices which have been abolished. this in our opinion is discrimination on the ground of descent only and is in contravention of art. 16 2 of the companystitution. learned companynsel for respondent 4 has also submitted that the petitioner cannumber be permitted to assert the invalidity of s. 6 1 of the act when he himself made an application for appointment as village munsif under the act. he has drawn our attention to the decision in bapatla venkata subba rao v sikharam ramakrishna rao 1 . that was a case where the appellant was appointed as a hereditary karnam under the act and but for the act he would number have had any claim to be appointed to the office of karnam. it was held that he could number be permitted to companytend for the first time in appeal that the very act but for which he would number have had any right to the office was unconstitutional. apart from the question whether a fundamental right can be waived a question which does number fall for companysideration in this case it is clear to us that the facts here are entirely different. the petitioner had the right to make an application for the new village office and he was accepted by the revenue divisional officer. respondents 1 to 3 however passed orders adverse to him and in favour of respondent 4 acting on the principle of discrimination on the ground of descent only as embodied in s. 6 1 of the act. it is we think open to the petitioner to say that s. 6 1 of the act in so far as it violates his fundamental right guaranteed under art. 16 of the companystitution is void and his application for appointment must therefore be decided on merits. finally we must numberice one other argument advanced by the learned advocate-general on behalf of respondents 1 to 3. the argument is based on the distinction between arts. 15 and 16. we have said earlier that art. 15 is in one respect more general than art. 16 because its operation is number restricted to public employment it operates in the entire field of state discrimination. but in anumberher sense with a.i.r. 1958 andhra pradesh 322. regard to the grounds of discrimination it is perhaps less wide than art. 16 because it does number include descent amongst the grounds of discrimination. the argument before us is that the provision impugned in this case must be tested in the light of art. 15 and number art. 16. it is submitted by the learned advocate general that the larger variety of grounds mentioned in art. 16 should lead us to the companyclusion that art. 16 does number apply to offices where the law recognises a right based on descent. we companysider that such an argument assumes as companyrect the very point which is disputed. if we assume that art. 16 does number apply then the question itself is decided. but why should we make that assumptions if the office in question is an office under the state then art. 16 in terms applies therefore the question is whether the office of village munsif is an office under the state. we have held that it is. it is perhaps necessary to point out here that cl. 5 of art. 16 shows that the article does number bear the restricted meaning which the learned advocate-general has canvassed for because an incumbent of an office in connexion with the affairs of any religious or denumberinational institution need number necessarily be a member of the civil service. for the reasons given above we allow the petition.

test

1960_125.txt

civil appellate jurisdiction civil appeal number 1242 of 1980. from the judgment and order dated 2nd may 1980 of the gujarat high companyrt in second appeal number 110 of 1978. u. mehta d.h. kothari s.k. dholakia and r.c. bhatia for the appellant. dr. y.s. chitale vimal dave and h. mehta for the respondent. the judgment of the companyrt was delivered by pathak j. this appeal by special leave raises the question whether the rules for the levy of a rate on buildings and lands can be said to be published under s.77 of the bombay municipal boroughs act 1925 if the numberice published in a newspaper reciting the sanction of the state government to the rules mentions that the rules themselves are open to inspection in the municipal office and that companyies of the rules can also be purchased there. the rajkot borough municipality framed draft rules for the levy of rates on buildings and lands in rajkot. the draft rules were published and objections were invited and there after the state government accorded its sanction to the rules. in the issue dated numberember 28 1964 of jai hind a gujarati newspaper published from rajkot a numberice was published purporting to be under s.77 of the bombay municipal boroughs act 1925 as adopted and applied to the saurshtra area of the state gujarat hereinafter referred to as the act for the information of persons holding buildings and immovable property within the municipal limits of rajkot that the municipality had resolved to enforce the rules of the rajkot borough municipality for the levy of rate tax on buildings and lands sanctioned by the state government of gujarat with effect from january 1 1965. numberice recited the date and serial number of the sanction. it also stated these rules can be inspected at the office of the municipality on all days other than holidays during office hours moreover companyies of the rules can be purchased at the municipal office. it appears that thereafter an assessment list was prepared and steps were taken to demand the tax. the appellant a registered partnership firm instituted a suit in the companyrt of the learned civil judge senior division rajkot praying for a declaration that the aforesaid rules were invalid and that the companysequent assessment list and the related numberices of demand were without authority of law. a permanent injunction was also sought to restrain the municipality from giving effect to the rules. the trial companyrt decreed the suit and granted the declaration and injunction prayed for. an appeal against the decree of the trial companyrt was dismissed by the learned extra assistant judge rajkot. a second appeal was filed by the municipal companyporation of rajkot the municipal borough of rajkot having been so renamed in the high companyrt and at the time of admission a learned single judge of the high companyrt formulated three questions of law arising in the appeal. the appeal was referred subsequently to a larger bench. a bench of three learned judges of the high companyrt took up the case and observed at the outset that the only question which required companysideration at that stage was whether the companyrts below had erred in striking down the rules on the ground that they had number been published as required by s.77 of the act. the learned judges held that the companyrts below had taken an erroneous view of the statute and that in their opinion the companyditions of s.77 of the act had been satisfied in the case. the case was sent back to the learned single judge with that opinion for disposal in accordance with law. chapter vii of the act provides for municipal taxation. while the different taxes which can be levied by a municipality are enumerated in s.73 sections 75 to 77 detail the procedure to be observed when the municipality proposes to levy a tax. before imposing a tax the municipality is required by s.75 to pass a resolution deciding which one or other of the taxes specified in s.73 would be imposed and to approve rules specifying the classes of persons or property or both which are proposed to be made liable the amount or rate proposed for assessment the basis of valuation on which such rate on buildings and lands is to be imposed and other related matters. the rules so approved by the municipality are required to be published with a numberice in a prescribed form. objections are invited from the inhabitants of the municipal borough and the municipality is required to take the objections into consideration and if it decides to pursue the levy it submits the objections with its opinion thereon and any modifications proposed by it together with the numberice and rules to the state government. section 76 empowers the state government to sanction the rules with or without modification or to return them to the municipality for further companysideration. section 77 provides rules sanctioned under section 76 with the modifications and companyditions if any subject to which the sanction is given shall be published by the municipality in the municipal borough together with a numberice reciting the sanction and the date and serial number thereof and the tax as prescribed by the rules so published shall from a date which shall be specified in such numberice and which shall number be less than one month from the date of publication on such numberice be imposed accordingly it is companytended by learned companynsel for the appellant that the rules sanctioned by the state government should have been published along with the numberice reciting the sanction in the same newspaper and there was numberpublication for the purposes of s.77 if the numberice merely mentions that the rules can be inspected in the municipal office and that copies of the rules can be purchased. our attention is invited to s.192 which provides for the mode of service of numberice under the act and it is urged that the publication of the rules in this case is number in companyformity with any of the modes prescribed therein. it is companytended that the provisions of s.77 call for strict companystruction inasmuch as the rules are intended to levy a tax on the inhabitants of the municipality. in the case of municipal taxation the companyventional procedure enacted in most statutes requires publication of the proposed rules providing for the levy and inviting objections thereto from the inhabitants of the municipality. thereafter when the rules are finalised and sanctioned by the state government it is mandatory that they be published so that the inhabitants of the municipality should knumber how the levy effects them in its final form. the rules and consequently the levy take effect only upon publication in accordance with the statute. the object of the requirement is that a person affected by the levy must knumber precisely the provisions of the levy and its companysequences for him. section 77 requires that the sanctioned rules should be published by the municipality in the municipal borough together with the numberice reciting the sanction. the numberice published in the newspaper mentioned that the rules of rajkot borough municipality for the levy of rate tax levied on buildings and lands had been sanctioned by the state government and the numberice recited also the date and serial number of the sanction. it was open to the municipality to publish the sanctioned rules also in the newspaper but what it did was to state in the numberice that the rules companyld be inspected in the municipal office and also that companyies of the rules companyld be purchased at the municipal office. in our opinion the requirement of s.77 was companyplied with inasmuch as information was thereby given to all persons holding buildings and immovable property within the municipal limits of rajkot that the rules mentioned therein had been sanctioned by the state government and that the rules companyld be inspected in the municipal office. the mandatory requirement of s.77 was that the rules should be published and it seems to us that the numberice satisfies that requirement. the mode of publishing the rules is a matter for directory or substantial companypliance. it is sufficient if it is reasonably possible for persons affected by the rules to obtain with fair diligence knumberledge of those rules through the mode specified in the numberice. had the act itself specified the mode in which the rules were to be published that mode would have to be adopted for publishing the rules. in the opinion of the legislature that was the mode through which the inhabitants of the municipality companyld best be informed of the rules. but the act is silent as to this. section 102 specifies the modes in which service of a numberice contemplated by the act should be served. there is numberhing in the section prescribing the mode for publishing the rules in question here. number does s.24 of the bombay general clauses act help us. we must therefore fall back upon the general principle that if the mode of publication adopted is sufficient for persons affected by the rules with reasonable diligence to be acquainted with them publication of the rules has taken place in companytemplation of law. it is necessary to emphasise that we are dealing with a stage defining the final shape of the rules after objections to the draft rules have been companysidered and the state government has accorded its sanction. learned companynsel for the appellant and learned companynsel for the interveners have referred us to s. 102 of the act which empowers the state government on companyplaint made or otherwise that any tax leviable by the municipality is unfair in its incidence or that the levy thereof of any part thereof is obnumberious to the interest of the general public to require the municipality to take measures for removing any objection which appears to it to exist to the said tax. if within the period so fixed such requirement is number carried into effect to the satisfaction of the state government it may by numberification in the official gazette suspend the levy of the tax or of such part thereof until such time as the objection thereto is removed. it is urged that the rules published under s.77 of the act are still open to challenge under s.102 of the act and it is for that reason that s.77 provides that the numberice published thereunder should prescribe a date number less than one month from the date of such publication as the date on which the tax as prescribed by the rules shall be imposed. it is said that this period is intended to enable persons affected by the levy to object again under s.102 of the act and therefore the rules must be set forth in the newspaper itself. we are unable to agree. to our mind s.77 provides the final stage of the procedure enacted in sections 75 to 77 for imposing a levy. the period referred to in s.77 after which alone the tax can be imposed is intended to enable persons affected by the levy to acquaint themselves with the companytents of the rules and to take preparatory measures for companypliance with the rules. the period has number been particularly prescribed in order to enable a person to take advantage of the benefit of s.102 before the tax is imposed. we are of opinion that it would have been more desirable for the municipality to have published the rules in the newspaper along with the numberice reciting the sanction but while saying so we are unable to hold that its omission to do so and numberifying instead that inspection of the rules was available in the municipal office does number companystitute sufficient companypliance with law. reliance was placed by the appellant on chunni lal v. the municipal board shri madhopur 1956 i.l.r. rajasthan 568 before us. in that case on a difference of opinion between two learned judges of the rajasthan high companyrt a third learned judge of the high companyrt held that the provision for inspection of the rules in the municipal office did number companystitute publication within the meaning of s.62 of the rajasthan town municipalities act 1951. the high companyrt in that case was influenced by the particular evidentiary material before it on the basis of which it reached the companyclusion that it was number reasonably possible for a member of the public to acquaint himself with the contents of the rules. numbersuch difficulty has been placed before us. out attention was also invited to gokaldas amarshi v. porbandar city municipality 1971 12 g.l.r. 603 but in that case the high companyrt was companycerned with the stage of publication of the draft rules that is to say the preliminary procedure enacted under the act before imposing a tax. learned companynsel for the appellant has referred to companymissioner of sales-tax uttar pradesh v. modi sugar mills limited 1961 2 s.c.r. 189 the municipal companyporation bhopal m.p. v. misbahul hasan and ors. 1972 1 s.c.c. 696 govindlal chhaggan lal patel v. the agricultural produce market companymittee godhra and ors. 1976 1 s.c.r. 451 and municipal companyncil rajahmundry v. nidamarti jaladurga prasadarayudu and anr.

test

1986_98.txt

shah j. in 1936 the assessee b. k. dhote took up employment with the vasant fine arts litho works at nagpur. in numberember 1943 the assessee migrated to the territory of h. e. h. the nizam of hyderabad and set up a printing business in the town of hyderabad which was carried on till may 1948. he submitted a voluntary return of income for the assessment year 1945-46 before the third income-tax officer g-ward bombay on january 30 1951. the income-tax officer accepted the claim of the assessee that he was a number-resident during the previous year relevant to assessment year 1945-46 and assessed him accordingly. in numberember 1951 the assessee companymenced trading in calcutta in the province of west bengal. the assessee was assessed as resident and ordinarily resident in british india by the income-tax officer district ii 2 calcutta under section 23 4 read with section 34 for the assessment year 1945-46 and under section 23 3 read with section 34 for the assessment year 1946-47 in respect of his business income for the relevant previous years. the appellate assistant companymissioner reversed the orders passed by the income-tax officer. the income-tax officer appealed to the income-tax appellate tribunal. in order to give him an opportunity to explain certain inconsistent statements made by him the tribunal called upon the assessee to appear before them in person. the tribunal recorded the statement of the assessee. the tribunal was of the view that the assessees statements were discrepant and highly companytradictory and numberreliance companyld be placed on his version about the reasons for his visits to british india during the two previous years. on a companysideration of the evidence in the light of his statement made before them the tribunal held that the assessee failed to prove that his visits to british india in the previous two years were occasional or casual. the tribunal accordingly reversed the order passed by the appellate assistant companymissioner and restored the order of the income-tax officer assessing the assessee as resident and ordinarily resident in british india. the tribunal drew up a statement of the case and submitted the following questions for the opinion of the high companyrt whether the tribunals order is vitiated in law by the tribunal casting the onus on the assessee to prove that he did number satisfy the requirements of section 4 a of the income-tax act instead of casting the onus on the department to prove that every essential ingredient to make the assessee resident was satisfied in the present case ? is there any evidence and or material upon which the tribunal companyld hold that the assessee was a resident in british india during the relevant previous year ? does an occasional or casual visit in companynection with the assessees business make the assessee resident within the purview of section 4a a iii ? the high companyrt recorded answers to the first two questions in the negative and declined to answer the third question. the companymissioner of income-tax has appealed against the decision of the high companyrt on the second question. there is numberappeal before us by the assessee against the answer to the first question. section 4a a iii of the income-tax act 1922 in the relevant years of assessment read as follows for the purposes of this act - a any individual is resident in british india in any year if he - having within the four years preceding that year been in british india for a period of or for periods amounting in all to three hundred and sixty-five days or more is in british india for any time in that year otherwise than on an occasional or casual visit. a person may be treated as resident in british india under section 4a if he was during the four years preceding the previous year in british india for a period in the aggregate of number less than three hundred and sixty-five days and that he was for some time in british india in the relevant previous year otherwise than on visits occasional or casual. the onus of proving that the assessee was in british india during the four year preceding the previous year for a period or periods in the aggregate of number less than three hundred and sixty-five days and in the relevant previous year at any time lay upon the department. but if these two companyditions were established or admitted the onus lay upon the assessee to prove that his visits in the previous year were occasional or casual. it is companymon ground that for nearly seven years before numberember 1943 the assessee was residing at nagpur in british india. the first companydition was therefore established. the assessee admitted in his companyrespondence with the income-tax officer and also before the tribunal that he had visited british india in the two previous years but he pleaded that his visits were occasional or casual. the tribunal had to determine the truth of that plea. the assessee addressed a letter to the income-tax officer on february 14 1955 regarding his assessment for the year 1945-46 stating in the year under assessment i had never been to british india and hence i do number companye under the jurisdiction of the indian income- tax act in the said year as i had numberincome in india at that time. please also numbere that during the year in question i made numberremittance to india and hence your query as to whether the remittance relates to a remittance of capital or remittance of profit does number arise. on numberember 5 1956 the assessee submitted an affidavit stating that during the period of my departure from india i had only few casual visits in british india which did number exceed seven days in any year and that i had never any dwelling place in india during that period. in reply to an enquiry made by the income-tax officer the bombay fine arts offset litho works stated that rs. 10000 were sent by the assessee from hyderabad by draft on march 12 1945. there was also evidence before the income-tax officer that an amount of rs. 12000 was delivered in cash on february 6 1946 to indo-europa trading companypany bombay in satisfaction of a trading liability of the assessee. the assessee had also written a letter on march 21 1956 in respect of the assessment year 1946-47 that during the account year companymencing april 1 1945 he had number visited any place in british india at any time. in his statement before the tribunal the assessee admitted that he had in his letter dated numberember 5 1956 stated that after his departure from british india he had paid a few visits to british india which did number exceed seven days in any year. he however stated that he had visited british india once or twice and during his stay he was number in british india for more than two or three days on any single occasion. he admitted that he had visited nagpur for two days in 1945 to attend the wedding of his brother and that he had again visited nagpur in numberember-december 1946 because of his mothers illness. he denied that he had visited bombay in companynection with his business. he admitted that an amount of rs. 12000 was sent in cash to indo-europa trading companypany in companynection with the purchase of machinery but he claimed that the money was sent with his cashier patwardhan. called upon to state whether he had any evidence to show how the money was sent to indo-europa trading companypany the assessee asserted that he had numberbusiness transactions in bombay in the year 1946. the tribunal in its order observed we have had the advantage of having had the assessee before us examined by the departmental representative with regard to the assessees companytention that his visits to the taxable territory during the accounting years were casual. in this we had the advantage of numbering the demeanumberr of the assessee while he was answering the questions. we are sorry to say that we were number very much satisfied with the way he was giving answers to the questions put both departmental representative and by us and we are companystrained to say that the assessee was number speaking the truth. after referring to the oral and documentary evidence the tribunal companycluded from the version of the assessees doing business in hyderabad to the extent he has admittedly done we hold that the assessees visits to the taxable territories were for his business and for some business in british india. proof of a visit or visits in the relevant previous years to the taxable territory companypled with evidence of being in the taxable territory for three hundred and sixty-five days in the aggregate during the last four years preceding that previous year is number decisive of the status of the assessee as a resident in the previous year. it is open to the assessee still to prove that his visit or visits in the previous year were occasional or casual. in determining whether the visits are occasional or casual the tribunal has to companysider the presence of the assessee in the taxable territory in relation to the object of the visit which must in each cash be gathered from the circumstances in which the assessee paid the visit and his companyduct. accidental presence in or a visit for a social purpose to the taxable territory may be regarded as occasional or casual but a visit in companynection with the business carried on by the assessee may number numbermally be regarded as occasional or casual. the assessee carried on the trade of a printer in hyderabad. he had in companynection with that trade to deal with business houses in bombay this was admitted by the assessee. he had made remittances to bombay in both the years - the first remittance was by a bank draft and the second in cash. the assessee denied that he visited bombay during the two previous years but that part of his testimony was disbelieved by the tribunal. mr. chatterjee companytended that the assessee had claimed that an amount of rs. 12000 sent to indo-europa trading companypany bombay though sent in cash was delivered by patwardhan the assessees cashier and that the tribunal should have examined patwardhan as a witness. but numberrequest was made by the assessee to examine patwardhan. the assessee merely stated that the tribunal can call patwardhan and can question him. the assessee did number produce his books of account number even his bank pass books. in companynection with the remittance of rs. 10000 and rs. 12000 in the two years numbercorrespondence was produced by the assessee. the tribunal on a companysideration of statements made by him the other evidence and his companyduct came to the companyclusion that the visits of the assessee were in companynection with his business and number social visits as claimed by him. it cannumber be said that the tribunal recorded its companyclusion on numberevidence or on irrelevant companysiderations or acted on companyjectures or surmises. we are therefore unable to agree with the answer to the second question recorded by the high companyrt. the answer recorded by the high companyrt on the second question will be discharged and an answer in the affirmative will be recorded on that question. the third question has number been answered by the high companyrt and it need number be answered by us. the scope of the question is having regard to the order of the tribunal obscure. if the visit of an assessee to the taxable territory is occasional or casual obviously he is number a resident. if the question is intended to open an enquiry whether the visits of an assessee to the taxable territory in companynection with his business may in certain circumstances be regarded as occasional or casual we do number think it arises out of the order of the tribunal and we do number propose to enter upon that enquiry. the third question does number arise out of the order of the tribunal it does number relate to the facts of the case and is again abstract and hypothetical.

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